Kaur v Minister for Immigration

[2019] FCCA 168

FEDERAL CIRCUIT COURT OF AUSTRALIA

KAUR & ORS v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 168

Catchwords:
MIGRATION – Application for judicial review – allegations of fraud – work visa – fraud in the relevant sense not established – application dismissed.  

Legislation:

Migration Act 1958 (Cth), ss.116, 140(1).

Cases cited:

Noeung v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1304; (2002) 125 FCR 503

Patel v Minister for Immigration and Border Protection [2015] FCCA 2893
Farah v Minister for Immigration and Citizenship [2011] FCA 185

Applicant: KULDEEP KAUR

Second Applicant: BACHITTER SINGH

Third Applicant: AVROOP KAUR

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 299 of 2017

Judgment of: Judge Riethmuller

Hearing date: 30 July 2018 and 21 September 2018

Date of Last Submission: 5 October 2018

Delivered at: Melbourne

Delivered on: 31 January 2019

REPRESENTATION

The Applicant appeared In Person

Counsel for the Respondents: Mr Petrie

Solicitors for the Respondents: Clayton Utz

ORDERS

1. The application be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 299 of 2017

KULDEEP KAUR

Applicant

BACHITTER SINGH

Applicant

AVROOP KAUR

Third Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

1. The applicants seek judicial review of a decision of the Administrative Appeals Tribunal (‘the Tribunal’) dated 20 January 2017. That decision affirmed the decision of a delegate to the Minister not to grant the first named applicant (thereafter the applicant) a Subclass 457 (Temporary Work (Skilled)) visa. Whilst a visa was initially granted, a delegate cancelled the applicant’s visa pursuant to s.116(b) of the Migration Act 1958 on the basis that the applicant had not complied with the conditions of her visa.

2. The second and third named applicants’ applications are based upon being the spouse and child of the applicant and as such their visas were automatically cancelled under s.140(1) of the Act.

3. The applicant is a citizen of India.  The applicant was previously the holder of a student visa in Australia from 2008 to 2012, but after unsuccessfully applying for a subclass 485 temporary skilled work visa in 2012 she returned to India. 

4. The applicant was granted a 457 visa offshore on 22 April 2015, and arrived in Australia on 21 May 2015. The applicant’s 457 visa was granted for her to work as a Café or Restaurant Manager, sponsored by Wenham Properties Pty Ltd, t/as Hinchinbrook Resort. Condition 8107 of the visa required the applicant to commence work within 90 days of arriving in Australia.

5. On 4 September 2015, the Department received an email, apparently from the applicant, stating ‘I do not have the position and I advised the lawyers in advance and I guess the visa still got granted’.

6. It appears that it was not until ten months later that, on 6 July 2016, the Department sent the applicant a Notice of Intention to Consider Cancellation (‘NOICC’) on the basis that the applicant had failed to commence work with her nominated employer: see Court Book (‘CB’) p.37. On 13 July 2016, the applicant sent an email to the Department requesting more time to provide all the relevant information: see CB p.45, and the Department granted the statutory 5 working days. No further information was received by the Department.

7. On 25 July 2016 the applicant’s visa was cancelled and on 27 July 2016 she lodged an application for review with the Tribunal. The applicant attended the hearing before the Tribunal to present evidence and make submissions.

8. The applicant told the Tribunal she had paid a recruitment agency $11,500 to find her employment in Australia and a further $40,000 to be held as a bond. The applicant said she did not send the email in September 2015 to the Department and believed the recruitment agency sent it from her email, but could not explain how this could have happened: see [12] to [13].

9. The applicant advised the Tribunal that she was not aware of her nominating employer as the agency would not tell her. The applicant also said she had received the 457 visa from the Department with the name of the nominating employer in the letter, but then latter denied the details were in the letter: see [14] to [15]. The applicant also told the Tribunal that she had received the NOICC and requested an extension, but later denied receiving it: see [19].

10. The applicant told the Tribunal she was aware of the requirement to commence her position within 90 days but failed to notify the Department as she did not want her visa cancelled: see [18]. The applicant told the Tribunal she had not been working in Australia as she was waiting to hear from the recruitment agency, and said that the situation was not her fault as she was relying on the recruitment agency: see [20] to [21].

Tribunal Findings

1. The Tribunal was satisfied that the ground for cancellation in s.116(1)(b) of the Act existed and then went on to consider the applicant’s circumstances and the matters in the Policy Advice Manual (‘PAM3’ in exercising its discretion whether or not to cancel the visa: see [25] to [32].

2. Not surprisingly, the Tribunal found the applicant to be deliberately ‘evasive and untruthful in her evidence’ (at [26]) and found the applicant’s evidence in relation to the recruitment agency ‘vague and unconvincing’: see [27]. The Tribunal found that ‘the applicant [had] not been truthful and cooperative in her dealings with the department, and [was] satisfied that this matter weighs against her in considering whether to cancel the visa’: see [31]. The Tribunal considered the impact on the applicant’s child (the third named respondent) and found there was no evidence ‘that the best interests of the applicant’s child would be disadvantaged…’: see [33].

3. Ultimately, the Tribunal concluded ‘that the factors in favour of cancelling the visa outweigh the factors against, and [the Tribunal] is satisfied that the visa should be cancelled’: see [34].

Grounds of Application

1. The applicant set out the following two grounds in her application:

   1. That decision of the Tribunal is affected by jurisdictional error on the basis that the Tribunal failed to take into account all the matters relevant to whether it was appropriate to cancel the applicant’s Subclass 457 (Temporary Work (Skilled) visa.

   Particulars

   (a) The Tribunal failed to consider section 116(2) of the Migration Act 1958 where it provides the “Minister is not to cancel a visa under subsection (1)… if there exist prescribed circumstances in which a visa is not to be cancelled”

   (b) The Tribunal failed to put the Applicant on notice of the issues dispositive to its decision.

   (c) The Tribunal failed to consider that the applicant had engaged the services of a recruitment agency and relied on the representations of the agency in relation to her employment at the Hinchinbrook resort.

   (d) The Tribunal failed to afford the applicant procedural fairness as adequate particulars of the information upon which the decision not to revoke the cancellation was based were not provided to the applicant for her comment applying Noeung v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1304; (2002) 125 FCR 503

   2. That the Tribunal erred and misconstrued section 140(1) of the Migration Act 1958 in finding the Tribunal has no jurisdiction with respect to the second and third applicant.

2. At the hearing of the matter, based upon the submissions made by the applicant from the bar table, it appeared that there was a potential issue as to whether this was a valid visa application, or one affected by fraud.  As a result the matter was adjourned to allow evidence to be given by the applicant, and for subpoena’s to be issued to her migration agent.

The Evidence

1. Whilst the primary evidence for the judicial review arguments is contained in the court book, there was also other evidence that is relevant to the question of whether the application was vitiated by fraud.

Ms Kulvin Brar

1. Ms Brar gave evidence pursuant to a subpoena issued on 7 June 2018.  She appeared in the Brisbane registry of this Court and her evidence was given via video link.

2. Ms Brar was a former employee at AWSAM Human Resource Management Pty Ltd (‘the company’) between 2012 and September 2015.  Her role as General Manager was to advertise job positions online and check that candidates met the job requirements (including visa eligibility).  Part of her job was to help migrants obtain visas.  Whilst Ms Brar said that she did not give immigration advice personally she referred such applicant’s to FC Lawyers, the applicant’s lawyers at the time.

3. Ms Brar explained that the company charged candidates $15,000 AUD to source a sponsor and that this money was paid after the company had found a sponsor for a candidate.  She would then refer the candidate to FC Lawyers to process the visa lodgement.  The lawyers appear to have charged $5,500 to complete and lodge the forms.  Ms Brar said that she was not involved with sourcing sponsors.  Ms Brar said that she could not answer whether job candidates were told by the company that they would get a job and a visa if they paid $15,000.

4. Ms Brar’s evidence was given in a piecemeal manner.  She was quick to minimise her role and insisted that any communication she had with candidates, including the applicant, was only upon the direction of

   
   

   Ms Geeta Reddy, the company’s director.  For example, the witness was asked about a phone call she made to the applicant in which she congratulated the applicant on receiving a visa and asked when she would be arriving in Australia.  Ms Brar conceded that this was part of her usual course of business but tempered her response by saying ‘I must have told [the applicant] that Geeta asked me to tell you to be here before 20^th, if possible’: see transcript p.49.

5. Despite being quick to minimise her role, Ms Brar conceded that she was copied into a number of emails between the company and the applicant.  The chain of communication between the company and the applicant goes to the question of whether there was, at the relevant time, a job for the applicant in Australia or whether the company perpetrated a fraud on the applicant (and relevantly for these proceedings, whether the applicant acquiesced or was complicit in that fraud).

6. Ms Brar conceded that in April 2015 she called the applicant in India to notify her that her visa had been approved.  It was her evidence that at this time, she was not aware the sponsor had withdrawn.  She further conceded that the applicant would have then told her the date she was coming to Australia after the applicant received her visa.  Ms Brar said it was not part of her role to then communicate this to the sponsor nor was it her role to discuss when the applicant would start employment with her sponsor.  Following the witness’ telephone conversation with the applicant regarding when she was coming to Australia, Ms Brar conceded that the applicant would have been under the impression she was coming to Australia to start a job.

7. On 16 April 2015, Ms Brar informed FC Lawyers that the sponsor no longer wished to proceed with ‘the hire’ and wanted the visa application withdrawn.  This was communicated to the applicant on the same day by an email copied to Ms Brar: see Exhibit ‘2’, p.38.

8. Ms Brar was asked what happened with the applicant’s job and whether there was ever a job for her.  Her evidence was, she knew the sponsor wanted to withdraw on 16 April 2015 but that the applicant was subsequently told to come to Australia on 21 April 2015.  She did not know whether there was a job in Australia for the applicant when she telephoned her to congratulate her in late April 2015.  Although, the witness conceded that the applicant would have believed there was a job for her when she called the applicant and asked her to get to Australia sooner than 20 May 2015.

9. Ms Brar gave evidence that she had nothing to do with the payment or recording of the company’s fees.  She was then taken to Exhibit ‘6’ (being p.129 of the supplementary CB).  That document is an email chain dated 10 April 2015 from Ms Brar to FC Lawyers regarding the applicant’s outstanding professional fees.  The subsequent email confirms FC Lawyers will withdraw the applicant’s file as the applicant owes the company and the Federal government money.  Ms Brar said this was the only time she discussed professional fees and the email related to the applicant withdrawing her application.  It was put to the witness, that it was illogical for the applicant to pay $15,000 to the company and subsequently withdraw her application.  Ms Brar conceded on this point.

10. It was put to the witness that despite receiving the sponsor’s notice to cancel the applicant’s visa sponsorship on 16 April 2015, the visa was subsequently granted on or around 22 April 2015.  Ms Brar’s evidence on this topic was avoidant and unclear at best.  She said that she did not know whether the applicant’s visa had been granted in April 2015 because the applicant’s application was with FC Lawyers.  Ms Brar’s evidence was she did not recall the sponsor withdrawing the visa although she was advised the sponsor may not be continuing with it.

11. Subsequently, on 22 April 2015, Ms Reddy emailed the applicant (and sent a copy to Ms Brar) to confirm her visa was granted.  The email is Exhibit ‘2’, p.41:

    You are very lucky, he only sent the letter to the lawyers yesterday and I guess the letter was not sent to the immigration dept.  Your employer called me this morning after getting a call from the lawyers that your visa is granted. I hope to see you next week to finalise everything.

12. Despite all of this, there was an email exchange between the applicant and Ms Brar (Exhibit ‘5’) dated 27 April 2015 where Ms Brar told the applicant to arrive in Australia sooner than the applicant had planned, saying ‘It will be too late Kuldeep… Please call me today…’.  Ms Brar conceded that she told the applicant to get to Australia sooner.  Her evidence was then that she did not know, at this time, whether the applicant had a job in Australia.  Ms Brar said she was just asked by Ms Reddy to make the call.

13. Ms Brar conceded that she met the applicant at the company’s office in May 2015.  She further conceded that she did not tell the applicant on that occasion that there was no job for her.  When pressed on the subject of the applicant’s job with the sponsor, Ms Brar continually deflected the question by answering that it was not her job to communicate with the sponsor and any interaction or telephone discussion she had with the applicant was only under the instruction of Ms Reddy: see p.50 of the transcript.

14. On 5 June 2015, the applicant emailed Ms Reddy (and sent a copy to Ms Brar) saying:

    Hi mam

    I really need your help mam I know you helped me a lot but plz mam I am requesting you our future in ur hand plz mam Mam believe me I am not making any story it’s really bad time for us.

    Plz help

    Thanks

15. On the same day, Ms Reddy replied (with a copy to Ms Brar) saying ‘Please do not send me any emails’: see Exhibit ‘6’ p.45.

16. I did not find Ms Brar an honest or reliable witness.  Her evidence was far from satisfactory, as was her presentation when giving evidence. 

17. I find that on balance she had a more significant role in the events, and was well aware that the sponsor had withdrawn sponsorship.  Her encouragement (if not pressuring) of the applicant to come to Australia when she was aware that the sponsor had withdrawn shows that she was complicit in a scheme that was, at best dishonourable.

Kuldeep Kaur

1. The applicant’s evidence was that she engaged the agent company to arrange a visa and a sponsor for her and her family.  She paid the company $15,000 in 2014 (prior to her previous visa expiring) to handle ‘the whole process’.  The applicant returned to Australia on 21 May 2015 because the company had advised her that she had a visa.  The applicant’s evidence was that when she met with Ms Reddy and Ms Brar upon her return, they asked for a further sum of $20,000 to ‘hold the visa’ whilst they found a suitable sponsor.

2. The applicant confirmed that she thought the company was dishonest, although she could not answer whether FC Lawyers were dishonest or not.  The applicant was taken to Exhibit ‘4’ (an affidavit of Ms Campbell filed 27 July 2018 at annexure “LC-11”).  That document is a copy of her visa application which detailed her sponsoring employer.  The applicant conceded that, as at December 2014, she knew who her sponsor was.  The applicant said that when she was told the sponsor was no longer willing to proceed, she believed that was a tactic by the company to pressure her into paying more money.

3. The applicant gave evidence that when she arrived in Australia, she and her family stayed with a friend for a few nights.  During that time, the applicant contacted the agent who told her to come to their office which she did, with her husband and child, the following day.  On that occasion, she said she asked for the sponsor’s details so she could start work and was informed the sponsor needed some time.  Some days later, the agent called and told the applicant that if she wanted to hold her visa she would have to pay more money.  The applicant said she explained she did not have any more money.  The applicant said the company then continued to telephone her daily asking for money.  Finally Ms Reddy telephoned the applicant and notified her that her visa would be cancelled.  The applicant received an email from the Department a few days later, cancelling her visa.

4. In respect of payments, the applicant’s evidence is that she paid $15,000 before she returned to India in 2014.  When she arrived in Australia in May 2015, she paid a further $3,000 cash to the company when she met with Ms Reddy and Ms Brar.  She was taken to the Tribunal transcript where she said she paid $40,000: see CB p.135.  The applicant explained that $40,000 included all the fees she had paid up to that time (including solicitor fees).  The applicant resiled from the evidence that she gave to the Tribunal where she said that this amount was not a bond paid to the company. 

5. Unfortunately, the applicant’s evidence was also far form convincing with respect to the details of the transactions, particularly given the variations with respect to fees.

Pearl Pryanka

1. Ms Pryanka is a friend of the applicant.  They arrived in Australia together in 2009 and have previously lived together.

2. Ms Pryanka gave evidence that she knew the applicant was having difficulties obtaining her visa in 2015.  When the applicant arrived in Australia, she stayed with Ms Pryanka.  Ms Pryanka said there were occasions when the applicant was on the telephone and she would put it on loudspeaker for her to hear.  Ms Pryanka said that she heard Ms Brar on the telephone asking for more money to place the visa on hold.  Ms Pryanka was unable to specify how much money Ms Brar was asking for.  Ms Pryanka never spoke directly to Ms Brar and Ms Brar did not know she was listening.

3. I generally found Ms Priyanka’s evidence to be credible, and accept her evidence.

Findings of Fact

1. In this matter the evidence central to the circumstances leading up to the visa application and the applicant coming to Australia are far from clear on the evidence before the Court.  However, on the balance of probabilities I am persuaded of the following:

   a)That the applicant did engage the agent to locate a sponsor and arrange a visa for her.

   b)That a sponsor was located by the agent.  I accept that the applicant believed that it was a genuine sponsor, although I am unclear as to the genuineness of the sponsor on the evidence before this Court.

   c)That the sponsor withdrew before the visa was granted.  When this was actually first communicated to the department is unclear, however a visa was granted soon after the sponsor withdrew. 

   d)Whilst the evidence is unclear as to the extent to which the applicant was told of these difficulties at the relevant time, I accept that she came to Australia understanding that she had a valid visa and sponsor arranged by the agent.

   e)That the agents attempted to obtain further funds from the applicant that she could not pay.

   f)Whilst I accept that the applicant understood that the agent would obtain a visa for her on a genuine basis, I am also of the view that from mid-April 2015 (when the problems arose) that the applicant was no longer concerned with compliance with the Migration Regulations 1994 (Cth), but rather with obtaining a visa that she had paid a substantial sum to receive.

1. Ultimately I am persuaded that the visa application was a genuine application of the applicant (assisted by her agents).  The applicant sought the visa, and the original application was made at her request in terms suitable to her.  Thus I am not persuaded that the application (at the time it was made) could be considered an application made as a result of fraud by the agent.  How the situation was dealt with thereafter does not reflect well on the agents, however their conduct does not appear to have stultified any process under the Act. 

2. Whilst the applicant may have a claim against the agent in (at least) negligence, she has not made out a basis for declaring that the visa application was not her act (in the legal sense) as a result of a fraud.

3. I turn then to consider the grounds raised by the applicant in her application for judicial review.

Ground 1

1. Ground one is put on the basis that the Tribunal failed to have regard to relevant factors when affirming the decisions below.  The four factors that the applicant says that the Tribunal ignored are better described as two factors, and two complaints as to procedural fairness. 

2. The two complaints about failing to consider relevant matters must fail as:

   a)Particular (a) alleges that the Tribunal failed to consider circumstances as prescribed under s.116(2) of the Act 1958. However, no circumstances have been prescribed. This ground cannot succeed on this particular.

   b)Particular (c) alleges that the Tribunal failed to consider that the applicant had engaged the agent and relied upon their advices.  This ground appears to have been drawn without reading the decision as these issues are discussed in the decision at [12] - [15], [20] - [21], [27] - [28] and [31].

3. The two complaints that go to procedural fairness must also fail as:

   a)Particular (b) alleges that the Tribunal failed to put the applicant on notice of the issues dispositive to its decision.  Yet it was apparent from the outset that the core issue was whether the applicant had commenced employment with an approved employer, as identified in the NOICC for the visa.

   b)Particular (d) alleges that the Tribunal failed to provide the applicant with adequate particulars of the information upon which the decision not to revoke the cancellation was based.  However, the core fact, namely that the applicant had not commenced employment with an approved sponsor was known to the applicant form the outset and provided by her to the Tribunal.  The case the applicant refers to, Noeung v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1304; (2002) 125 FCR 503 concerns a cancelation without notice to a visa applicant and has no particular relevance to the current proceedings.

4. As a result I therefore find that the applicant has not made out this ground.

Ground 2

1. The second ground alleges that the Tribunal erred and misconstrued s.140(1) of the Act in finding the Tribunal has no jurisdiction with respect to the second and third applicant.

2. This ground misconceives the effect of the legislation.  The second and third applicants only receive visas as a result of the applicant obtaining a visa.  When the applicant’s visa is cancelled, their visas are automatically cancelled by operation of law (s. 140 of the Act), not a separate decision of a delegate.  Thus, there is no merits review available as a result of this automatic cancellation. The merits review that is open is with respect to the applicant’s visa, and if that is successful, the other applicants will again have visas.

3. Thus, the Tribunal had no power to review the cancelations of the second and third applicants’ visas: see Patel v Minister for Immigration and Border Protection [2015] FCCA 2893 at [29] and Farah v Minister for Immigration and Citizenship [2011] FCA 185 at [2].

Conclusion

1. Neither of the grounds set out in the application have been established in this case. 

2. The potential ground relating to fraud was explored in the proceedings (despite not being formally put in the application) but was not established on the material before the Court.  This does not mean that the applicant cannot sue the agent for negligence (and I note that it is compulsory for registered migration agents to be insured against claims for negligence), however that is a matter for the applicant to pursue in the state courts.

3. I therefore dismiss the application.

I certify that the preceding fifty-five (55) paragraphs are a true copy of the reasons for judgment of Judge Riethmuller

Date: 31 January 2019