Kaur v Minister for Immigration - [2018] FCCA 3272

FEDERAL CIRCUIT COURT OF AUSTRALIA

KAUR & ANOR v MINISTER FOR IMMIGRATION & ANOR

[2018] FCCA 3272

Catchwords:
MIGRATION – Skilled (provisional) (class VX) (subclass 485) (temporary graduate) visa – S & S Migration – alleged fraud on the tribunal – first applicant’s alleged indifference to agent’s fraud – application dismissed.

FRAUD – Whether applicants indifferent to agent’s fraud – they were indifferent to agent’s fraud.

Legislation:

Migration Act 1958, ss.46-49, 98

Migration Regulations 1994, sch.2, cl.485.224, public interest criterion 4020

Cases cited:
AVQ15 v The Minister for Immigration and Border Protection [2018] FCAFC 133
Galea v Galea (1990) 19 NSWLR 263
Gill v Minister for Immigration and Border Protection (2016) 248 FCR 398
Maharjan v Minister for Immigration and Border Protection [2017] FCAFC 213

Mohammed v Minister for Immigration and Border Protection [2018] FCA 767

Prodduturi v Minister for Immigration and Border Protection [2015] FCAFC 5
Singh v Minister for Immigration and Border Protection (2016) 247 FCR 554
Singh v Minister for Immigration and Border Protection [2018] FCAFC 52
SZRUR v Minister for Immigration and Border Protection (2013) 216 FCR 445

First Applicant:

SUKHWINDER KAUR

Second Applicant:

HARWINDER SINGH

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 832 of 2014

Judgment of:

His Honour Judge Wilson

Hearing dates:

20 February, 27 March and 16 August 2018

Date of Last Submission:

30 August 2018

Delivered at:

Melbourne

Delivered on:

15 November 2018

REPRESENTATION

Counsel for the First Applicant:

Mr W Smith

Solicitors for the First Applicant:

Fernandez & Johnson

Counsel for the Second Applicant:

Mr W Smith

Solicitors for the Second Applicant:

Fernandez & Johnson

Counsel for the First Respondent:

Mr R Knowles

Solicitors for the First Respondent:

Clayton Utz

Counsel for the Second Respondent:

No appearance

Solicitors for the Second Respondent:

Clayton Utz

ORDERS

The application filed on 27 March 2014, amended on 7 July 2014 and further amended on 16 January 2018 is dismissed.
The applicants pay the first respondent’s costs of the proceeding fixed in the sum of $7 328.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

SYG 832 of 2014

SUKHWINDER KAUR

First Applicant

HARWINDER SINGH

Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

Consequent upon the decision of the Full Court in Gill v Minister for Immigration and Border Protection,[1] this proceeding raised the question of the validity of the visa application lodged on behalf of the first applicant by Mr Ajjan of S & S Migration.
[1] (2016) 248 FCR 398
On 12 January 2011 the applicants, who are Indian citizens and married to one another, applied for a skilled (provisional) (class VX) (subclass 485) (temporary graduate) visa. The completed visa application form stated that the first applicant had obtained a skills assessment from Trades Recognition Australia (“TRA”). On 28 March 2012 a delegate of the minister refused to grant the applicants the visa they sought. The delegate relied chiefly on…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2018] FCCA 3272
Decision Date: 15 November 2018

CaseChat Overview and Summary

In *Kaur v Minister for Immigration*, the applicants sought judicial review of a decision by the Minister for Immigration to refuse their applications for a Skilled (provisional) (class VX) (subclass 485) (temporary graduate) visa. The dispute centred on allegations of fraud perpetrated by a migration agent, S & S Migration, and the applicants' alleged indifference to this fraud. The matter was heard by His Honour Judge Wilson in the Federal Circuit and Family Court of Australia.

The primary legal issue before the court was whether the applicants had demonstrated indifference to the fraudulent conduct of their migration agent. This question was crucial in determining whether the Minister's decision to refuse the visa applications, based on the alleged fraud and the applicants' complicity or indifference, was lawful.

His Honour Judge Wilson found that the applicants were indeed indifferent to the agent's fraud. This finding was based on the evidence presented, which indicated that the applicants had not taken reasonable steps to ascertain the truthfulness of the information provided by their agent or to ensure the integrity of their visa applications. The court applied the principle that applicants for a visa bear responsibility for the information submitted in support of their application, and indifference to fraudulent conduct by an agent can lead to adverse findings and visa refusal.

The court therefore dismissed the applicants' application for judicial review.

Orders