Kaur v Minister for Immigration

[2014] FCCA 2112

FEDERAL CIRCUIT COURT OF AUSTRALIA

KAUR v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 2112

Catchwords:
MIGRATION – Review of decision of Migration Review Tribunal – Allegation of third party fraud on Tribunal – necessity to take evidence from applicant concerned – consequences of findings on credibility – no fraud found on Tribunal – no jurisdictional error disclosed – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.98; 360; 360(1); 360A(1) 362B; 379A; 474; 476(1)

Migration Regulations 1994, rr.2.07; 485

Plaintiff 157/2002 (2003) 211 CLR 476
Craig v South Australia (1995) 184 CLR 163
SZFDE v Minister for Immigration & Citizenship (2007) 237 ALR 64
SZIVK v Minister for Immigration & Citizenship [2008] FCA 334
Minister for Immigration & Citizenship v SZLIX (2008) 245 ALR 501
NAWZ v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 199
SZGJO v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 393

Applicant: KAMALDEEP KAUR

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: ADG 320 of 2013

Judgment of: Judge Brown

Hearing date: 22 July 2014

Date of Last Submission: 22 July 2014

Delivered at: Adelaide

Delivered on: 25 September 2014

REPRESENTATION

Counsel for the Applicant: In person

Counsel for the Respondents: Mr Tredrea

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. The application filed 30 October 2013 be dismissed.

2. The applicant pay the first respondent’s costs fixed in the sum of five thousand and eight hundred ($5,800.00) dollars.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADG 320 of 2013

KAMALDEEP KAUR

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. Kamaldeep Kaur “the applicant” instituted proceedings, in this court, on 30 October 2013, seeking to review a decision of the Migration Review Tribunal “the MRT” made on 30 September 2013 not to grant her a Skilled (Provisional) (Class VC) Visa pursuant to the provisions of the Migration Act 1958 “the Act”.

2. Ms Kaur ostensibly applied for the visa in question on 19 May 2011.  The application was made electronically.  The applicant acknowledges that the application contains a number of particulars, which correctly relate to her.  However, she now asserts that a number of other important matters, on the form in question, are not correct. 

3. Details which are said to be correct include her date and place of birth; details of her passport; and the fact that she had previously been granted a student visa, by the Australian authorities, on 16 October 2008.  In respect of this visa, the applicant indicated that she had completed a diploma in business, at a Melbourne College, on 14 May 2011. 

4. In order to satisfy conditions relating to the grant of a skilled visa, the applicant in question must nominate a profession or occupation, in which he or she holds relevant skills and provide formal proof of such skills. 

5. The conditions are mandatory in nature and contained in Regulation 485 of the Migration Regulations 1994.  An applicant for a skilled visa must be assessed by a relevant assessing authority as suitable for the occupation nominated.

6. In her electronic visa application, the applicant has nominated cook as her skilled occupation.  Further, the form indicates that an authority known as Trades Recognition Australia assessed her skills on 16 May 2011. 

7. The applicant now concedes that this information is not correct.  Applicants are also asked, on the form in question, to indicate in the affirmative or negative, if they have had any assistance in completing the form.  To this question, the applicant has ostensibly answered “no” by marking a box to this effect. 

8. Applicants are also asked on the form, to declare that the contents of the form completed under their name are “true and correct” and that they have “read and understood” the information contained in the application.  Again, the applicant has ostensibly answered “yes” to this latter statement. 

9. The applicant did not provide any proof that she had satisfactory skills, as a cook, and therefore satisfied the relevant criteria attaching to the visa for which she had ostensibly applied, to a delegate of the Minister for Immigration & Citizenship, who was charged with assessing the visa application in question. 

10. Accordingly, the delegate refused the application on the basis that she had not provided any evidence, in the form of a skills assessment from a relevant authority, that she possessed the applicable skills to perform her nominated occupation, as a cook, satisfactorily. 

11. As a consequence of this decision, on 2 July 2012, the applicant applied to the MRT to review this decision.  The relevant pro forma application was completed in handwriting and included the ticking of a number of boxes.  In response to a question “Do you want to appoint a representative to act on your behalf and to be your authorised recipient?” a tick has been placed in a box against the word no.

12. In sworn evidence, provided by her to this court, the applicant has indicated that she personally signed the form in question and that the address and other contact details on it, relating to her, are correct. 

13. However, also in her sworn evidence, the applicant has asserted that a migration agent, whom she approached to convert her student visa into some form of visa allowing permanent residence in Australia, completed the form in question and did not properly inform her of its contents. 

14. It is currently the applicant’s position that she signed the form in question, at the direction of the migration agent in question, who effectively filled in the form as well, as the earlier electronic application, after she informed him of some of her particulars.

15. On 3 July 2012, an officer employed by the MRT wrote to the applicant, at the contact address nominated in the review application to the MRT.  This address was 15 Illawarra Street, Glenroy.  The letter in question acknowledged receipt of the application and requested that the Department be informed if the applicant changed her address or contact details in any important way. 

16. On 4 September 2013, a letter was sent to the Glenroy address inviting the applicant to appear before the MRT on 27 September 2013.  In the letter, the applicant was advised that the MRT was not in a position to make a decision favourable to her on the basis of the evidence then available to it. 

17. The jurisdictional basis of this letter arises under section 360 of the Act, which requires the Tribunal to invite a visa applicant to give evidence before it, if the Tribunal is unable to determine the matter in a manner favourable to the applicant, on the evidence then available to it.

18. The invitation letter[1] was sent by registered post.  As previously indicated it was sent to the address nominated by the applicant, in her review application to the MRT, as her address for correspondence.  However, it was returned to the MRT unclaimed.  The envelope in question is endorsed with a stamp indicating it was returned on 3 October 2013.[2]

    [1] See Case Book at 43

    [2] Ibid at 45

19. Section 360A(1) of the Act stipulates the information which an invitation letter is required to contain.  This information includes the date and time of the hearing and the location where the applicant concerned must attend.  The letter in question contained this information.

20. Section 379A(4) of the Act stipulates the means by which documents, including an invitation letter, are to be conveyed to an applicant.  These include pre-paid post to the last residential address or address for service provided by to the MRT by any applicant in question.

21. In this particular case, the solicitor for the first named respondent, the Minister for Immigration & Border Protection, has provided an affidavit indicating the letter in question was despatched by registered pre-paid post to 15 Illawarra Street, Glenroy on 5 September 2013, in compliance with the provisions contained in section 379A.[3]

    [3] See Affidavit of Ashlee Louise Briffa filed 20 December 2013

22. The applicant did not appear before the MRT on 27 September 2013, the date nominated for her to present evidence regarding her application for review.  In addition, the applicant had failed to respond to an earlier request to provide proof of her skills in the occupation nominated. 

23. Pursuant to the provisions of section 362B of the Act, if an applicant fails to respond to an invitation to give evidence, the relevant Tribunal is vested with a discretion to make a review decision on the evidence then available to it, without taking any further action to enable the applicant in question to appear before it.

24. In these circumstances, the MRT elected to complete its review of the decision of the Minister’s delegate.  Unsurprisingly, the MRT affirmed the decision not to grant the visa in question, concluding as follows:

    “At the time of the delegate’s decision, the review applicant had not provided any evidence of a suitable skills assessment by the relevant assessing authority.  Since lodging her application for review the review applicant has provided no further information or evidence regarding her ability to meet cl.485.221.  The review applicant did not appear at the scheduled Tribunal hearing.  Based on the material before it, the Tribunal finds that the applicant’s skills have not been assessed as suitable for the nominated skilled occupation by the relevant assessing authority, and the that the applicant therefore does not meet the requirements of cl.485.221 (1).”[4]

    [4] Ibid at 53

25. It is not possible for the applicant to challenge this as a finding of fact in itself.  The applicant’s purported skills, as a cook, have not been assessed by a relevant assessing authority.  This is because the applicant does not have skills as a chef and accordingly has no skills to be assessed.  Certainly no approach was made, in this context, to an appropriate skills assessor.

26. In this context, the applicant asserts that both she and the MRT have been duped by her migration agent, who completed the original visa application form and the subsequent application for review to the MRT.

27. In addition, it is not open to the applicant to challenge the MRT’s compliance with the provisions regarding the formal provision of the invitation letter, which was sent to the address contained in her application for review by a prescribed manner of despatch.

The Current Application

1. The applicant applied to this court for a judicial review of the decision in question on 30 October 2013.  The applicant has prepared her own application, which seeks that the decision of the MRT be quashed.  No grounds are provided in support of this application.

2. The applicant has prepared a brief (and in parts illegible) affidavit in which she deposes as follows:

   “Because my previous agent didn’t tell me anything about my ...visa and my MRT.  I tried to call him again.  He didn’t tell me anything.  He told me I delet [sic] your data [illegible].”[5]

   [5] See affidavit of the applicant filed 30 October 2013

3. The applicant has filed no further document with the court and has failed to comply with a direction that she file an outline of her submissions ten days prior to the date allocated for the hearing.  She appeared on her own behalf on 22 July 2014.

4. At the hearing, the applicant reiterated her concerns that she had been tricked by the migration agent in question and that she had had no knowledge that the agent was asserting, both to the delegate and the MRT, that she had skills as a cook and that these had been appropriately assessed.  In these circumstances, I elected to hear evidence from the applicant personally.

The legal framework

1. Pursuant to section 476(1) of the Migration Act 1958, the Federal Circuit Court has “the same original jurisdiction in relation to migration decisions as the High Court under section 75(v) of the Constitution”.

2. However, this jurisdiction is qualified by section 474 of the Act, which stipulates that a wide variety of decisions made under the Act, which are of an administrative nature are “privative clause decisions”.

3. The decision of the MRT, which the applicant seeks to review in this case is such a “privative clause decision” as defined by section 474 of the Act. 

4. Pursuant to the section, privative clause decisions are final and conclusive and as such are not open to being challenged, appeal against, reviewed, quashed or called in question in any court and as a consequence, they are not to be subject to any prerogative writ. 

5. However, the High Court has held that the provisions of section 474 do not prevent the review of decisions made by the Tribunal, which are affected by jurisdictional error of have been made in bad faith.[6]

   [6]  See Plaintiff 157/2002 (2003) 211 CLR 476

6. An administrative tribunal exceeds its powers and thus commits a jurisdictional error if it identifies a wrong issue; asks a wrong question; ignores relevant material; relies on irrelevant material; or, in some circumstances, makes an erroneous finding or reaches a mistaken conclusion, in a way that affects the exercise or purported exercise of the tribunal’s power.[7]

   [7]  See Craig v South Australia (1995) 184 CLR 163

7. Jurisdictional error is a complex concept.  It does not entail a merits review or a re-hearing of the facts of the case concerned.  In addition to the matters listed above, it can also encompass a breach of procedural fairness or a denial of natural justice, including bias or the appearance of bias.

8. As a consequence of the High Court’s decision in SZFDE v Minister for Immigration & Citizenship [8] courts such as this, conducting a process of judicial review, are duty bound to take allegations of fraudulent behaviour, arising from proceedings before tribunals, such as the MRT, seriously. 

   [8]  SZFDE v Minister for Immigration & Citizenship (2007) 237 ALR 64

9. This is because allegations of fraud, in the field of public law, if left unchecked, might have the effect of calling into question the propriety of the decision making process itself, which would not be in the public interest.

10. As such, in my view, I was obliged to conduct the inquiry which I did.  Necessarily this involved the taking of evidence from the applicant, although she had not previously been put on notice that this may occur. This was because otherwise, in the absence of evidence in respect of the issue of fraud raised by the applicant, it was inevitable that her application would fail, as it had no other intrinsic merit.[9]

    [9]  See SZIVK v Minister for Immigration & Citizenship [2008] FCA 334 at [26] – [27] per Finkelstein J

The applicant’s evidence

1. I appreciate that the applicant is unrepresented in these proceedings and does not speak English as her first language.  I also appreciate that she is not legally qualified and has little appreciation of the complexities of jurisdictional error.  She did, however, have the assistance of a Punjabi interpreter and, in my assessment, had a reasonable understanding of the English language. 

2. I did not find the applicant to be a credible witness overall.  She asserted that she had stopped living at the relevant address, in Glenroy, in February, but was unable to recall the year.  After some thought, she indicated probably 2013.

3. She conceded that she was living in Glenroy, in July of 2012, when the relevant application was made to the MRT.  She also accepted that the signature on the application for review was her own.  Otherwise she asserted that everything else written on the form originated with her migration agent, which she said she had not otherwise read.

4. It was the effect of her evidence that she had gone to see the migration agent concerned with the intent of securing the transition of her student visa to one which enabled her to have permanent residence in Australia and had trusted that the agent would do what was necessary to obtain this result.

5. The applicant also asserted that she had changed her address with Immigration.  In this context, she pointed to the fact that her email address, as detailed on the form, remained a current one.  As such, she presented as being somewhat aggrieved that correspondence had not apparently been sent to her electronically. 

6. I did not believe the applicant’s evidence regarding her assertion that she had informed the Department that she was leaving her address in Glenroy.  I am also troubled by the late stage at which the applicant has raised her allegations of malfeasance on the part of her agent and the inchoate nature of her grievances.  In addition, there is no evidence from the agent himself or any form of corroboration of the applicant’s allegation in the departmental record.

Discussion

1. In my view, the factual situation confronting the court in this case is markedly to that which arose in SZFDE.  In SZFDE a family had applied for a protection visa, with the assistance of a migration agent. The agent advised the family not to attend a hearing before the tribunal concerned as he (the agent) claimed that the Tribunal was not currently accepting any visa applications and would therefore dismiss their applications.

2. At the relevant time the migration agent in question had had his registration as a migration agent cancelled and his practising certificate as a lawyer suspended.  At first instance, it was accepted that he had acted fraudulently, extracting money from the family under false pretences and falsely inducing them not to attend before the Tribunal to give evidence as to their circumstances.

3. In the High Court it was found that the fraud of the migration agent had had the effect of subverting the invitation extended by the Tribunal, to the relevant individuals in question to give evidence, with the consequence that the Tribunal had not been able discharge its obligation to accord procedural fairness to them. 

4. This failure was a matter of the highest magnitude and stultified the Tribunal’s legislatively mandated requirement to accord natural justice to the applicants concerned.  It was characterised as being in the nature of a fraud on the Tribunal itself and to have rendered its subsequent decision no decision at all.

5. However, the High Court placed a significant gloss on this principle.  It said as follows:

   “…there are sound reasons of policy why a person whose conduct before an administrative tribunal has been affected, to the detriment of that person, by bad or negligent advice or some other mishap should not be heard to complain that the detriment vitiates the decision made.”[10]

   [10] Ibid at 77 [53] approving French J (as he then was) in the proceedings before the Full Court of the Federal Court.

6. In all these circumstances, it seems apposite that the court, exercising a judicial review function in respect of a tribunal such as the MRT, must proceed extremely cautiously in cases in which an applicant raises allegations of fraud or some other species of mala fides on the part of a person or persons said to have been providing advice to him or her.

7. Very often the allegations of fraud are inchoate, as here.  In addition, again as here, they arise at an extremely late stage of proceedings and are unsupported by any form of independent evidence regarding the fraud in question. 

8. In particular, the migration agent in question has not been examined or put on notice of the allegations made in respect of his or her conduct.   Indeed, I have not been provided with any formal evidence indicating whether the agent in question is or is not registered pursuant to the provisions of the Migration Act 1958. 

9. In these circumstances, the court must be cautious about unreasonably drawing inferences concerning fraud on the part of the migration agent against whom allegations arise.  The situation in this case is markedly different to that which prevailed in SZFDE, where the fraud of the migration agent was established in evidence before the court.

1. No such fraud has been definitively established against the person identified by the applicant in her evidence given at the hearing of this matter.  In addition the alleged agent was not previously identified in any affidavit material filed by the applicant or disclosed in the application for the original visa or in the application to the MRT, which the applicant acknowledges she personally signed.

2. Significantly, in this case, the applicant adopted the contents of her application for review to the MRT by signing the necessary form.  At worst she was complicit in the bogus information said to be contained in the application.  At best she can be said to have been neglectful in not being more careful to check the contents of the various forms, which were sent out containing her name and details and which were created at her instigation.

3. Again, the applicant seems to have been, on the best view of the facts available to her, to have been remarkably cavalier about the circumstances surrounding her change of address from Victoria to South Australia, so far as the Department was concerned.  Whether she did or did not know precisely what was contained in the various documents concerned, she did know (on her own case) that she had an application pertaining to her migration status, in Australia, before the Department.

4. Most importantly, if there is a fraud arising in this case, in my view, it is not possible to categorise it as a fraud on the MRT.  The section 360(1) invitation, which it was required to issue to the applicant, was issued in compliance with the section and delivered in the mode stipulated by the other provisions relevant. 

5. The alleged failure of the applicant to receive the notice was not due to any subversion of the functions of the Tribunal itself.  On the applicant’s own case, it was due to her own conduct, in not checking the documents herself and the conduct of her migration agent.

6. In this context, the following comments of the Full Court of the Federal Court in Minister for Immigration & Citizenship v SZLIX[11] appear apposite.  This too was a case in which allegations of fraud were raised against a purported migration agent, which were said to have vitiated the Tribunal’s decision-making function.  The Full Court said as follows in respect of the evidence given by the applicant concerned to the Federal Magistrates Court (as this court was formerly known):

   “The state of the evidence before the Federal Magistrate was, in our view, such that it revealed little about the alleged agency of the migration agent, but it suggested much about the veracity of the respondent.  While the confused picture that emerged in the hastily conducted hearing may have engendered real suspicion in the Federal Magistrate – a suspicion obviously exaggerated by his Honour’s experience with what he considered to be relatively comparable cases – that suspicion did not constitute proof of the serious allegations being made in the show causes application.”

   [11]  Minister for Immigration & Citizenship v SZLIX (2008) 245 ALR 501 at [23]

7. In my view, all of these considerations apply in the current matter.  Undoubtedly the hearing in question was hastily convened.  This was because the applicant raised her claims in an inchoate manner in her affidavit material filed in support of her application for judicial review.  She expanded on her complaints orally only when her case was called on for hearing. 

8. The respondent was given no opportunity to check its records in regards to these complaints to establish their veracity or otherwise.  All in all, in my assessment, the matters were raised in an attempt to forestall the court’s process and delay any adverse consequence of it for the applicant.

9. The behaviour, sought to be castigated by the High Court in SZFDE, was characterised, by the High Court, as fraud on the tribunal.  For reasons relating to public policy, particularly the probity of their decision making processes, it is imperative that the integrity of tribunals, such as the MRT, be maintained.

10. Accordingly, to be relevant in judicial review proceedings, such as these, the fraud alleged must not only be satisfactorily established but also relate to the decision making process of the tribunal concerned, particularly its overall integrity. 

11. As the High Court approved,  there are equally sound policy reasons which militate against a court, such as this one, too readily vitiating any decision of a tribunal, in cases where issues are raised relating to alleged poor advice or some other unspecified mishap on the part of the applicant concerned. 

12. In my view, these concerns must be heightened in cases where there are issues concerning the complicity of the applicant in the behaviour complained of – either in a direct sense or through reckless or negligent conduct on the part of the applicant concerned.

13. In this case, the evidence of the applicant is that she engaged the migration agent in order to secure some form of legal entitlement to remain in Australia following the completion of her studies.  As such, on her own case, the instructions she provided to the agent were general in nature.

14. The application, on its face, originated with the applicant personally, as in answer to the question did you receive assistance in completing this form a negative answer is provided.  The applicant concedes that she was present during the process in which the electronic visa application form was completed and provided correct information, germane to her, in respect of many of the questions posed on the form. 

15. If this evidence is correct, on her own case, it seems to me that the applicant was, at best, recklessly indifferent to the entire contents of the form or was negligent in not checking the form’s contents prior to its despatch.  As such, it seems difficult to draw any other conclusion than that the applicant was complicit in any deception visited upon the Tribunal. 

16. In my view, this cannot be held to a fraud on the tribunal, in the sense envisaged in SZFDE.  Given her involvement, on her own case, in the commission of the original visa application and the application to the MRT which followed it, the filing of both documents cannot be said to characterise a fraudulent omission vis-à-vis the applicant herself.[12]

    [12]  See SZLIX (supra) at [33]

17. This consideration, in my view, engages the provisions of section 98 of the Migration Act 1958 which provides as follows:

    “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 be filled in or if it is otherwise filled in on his or her behalf.”

    Associated with this provision is Regulation 2.07 of the Migration Regulations 1994, which requires a visa applicant to complete any required form in accordance with directions.

18. In the circumstances, which prevail in this case, the question arises as to whether it is appropriate for the court to, in effect, allow the applicant to disown her visa application and subsequent application to the MRT by giving credence to her implied assertion that there was no proper hearing before the Tribunal because the original application was invalid.

19. In NAWZ v Minister for Immigration & Multicultural & Indigenous Affairs[13] an applicant for refugee status was found to have fraudulently used a pseudonym and claimed to have a nationality different to that which he had.  Later, he asserted that he had not personally signed or filled in the application and therefore it did not satisfy the strict requirements of the Act.

    [13]  NAWZ v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 199

20. The Full Court rejected this contention. It held that the applicant in question, as a consequence of section 98, was fixed with responsibility for the false document.  As such, the application was found to comply with the provisions of the Act and to be therefore valid.  Rather, it was characterised as a false application which was in formal terms, a valid application.[14]

    [14]  See NAWZ (supra) at [18]

21. Even if I was prepared to accept that the applicant did not know that her agent had ascribed to her cooking skills without her knowledge, which I am not, given the involvement of the applicant in the commission of the original visa application, in my view, the aforesaid formulation is applicable to the application in question. 

22. The applicant is fixed with responsibility for her application.  In formal terms, the application was valid.  As a consequence, both the delegate and later the MRT were bound to consider it in such terms.  Accordingly, in my assessment, it cannot be said that the relevant decision of the MRT which resulted was no decision at all.

23. In SZGJO v Minister for Immigration & Multicultural & Indigenous Affairs [15] Bennett J said as follows:

    “The applicant authorised and caused his migration agent to fill in the visa application on his behalf.  While he did not specifically authorise the inclusion of incorrect or incomplete information, as in NAWZ, s 98 applies.”

    [15]  SZGJO v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 393 at [16]

Conclusions

1. Given that I have found that the visa application and the subsequent review application to the MRT were, in formal terms valid and thereafter the Tribunal itself followed the legislative requirements to invite the applicant to give evidence before it, in my view, it cannot be said that there has been any failure of the jurisdiction of the MRT in the discharge of its review function pursuant to the provisions of the Migration Act 1958.

2. For all these reasons, the application should be dismissed and the applicant ordered to pay the first respondent’s costs fixed in the sum of $6,646.00.

3. For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.

I certify that the preceding eighty-two (82) paragraphs are a true copy of the reasons for judgment of Judge Brown

Associate: 

Date:       25 September 2014