Kaur v Minister for Immigration
[2018] FCCA 3272
•15 November 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| KAUR & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 3272 |
| Catchwords: 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: Mohammed v Minister for Immigration and Border Protection [2018] FCA 767 Prodduturi v Minister for Immigration and Border Protection [2015] FCAFC 5 |
| 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 the applicants’ failure to meet public interest criterion 4020, and therefore the applicants’ failure to meet cl 485.224 of sch 2 to the Migration Regulations.
On 10 April 2012 the first applicant and her husband applied to the tribunal for a merits review of the delegate’s decision. The tribunal invited the first applicant to give evidence and present arguments. She declined, yet she maintained a contention that she had been a victim of fraudulent conduct by her then migration agent. She said in particular that her agent had, without her knowledge, provided false information in the visa application, thereby invalidating the visa application.
On 4 March 2014 the tribunal handed down its decision. It affirmed the delegate’s decision to not grant the applicants the visas they sought.
On 27 March 2014 the applicants applied to this court for judicial review of the tribunal’s decision. On 18 April 2016 a judge of this court dismissed the applicants’ application for judicial review. On appeal from that decision to the Federal Court of Australia, on 24 May 2017 Mortimer J ordered by consent that the order dismissing the application for judicial review was to be set aside and her Honour remitted the proceeding to this court.
Thereafter, the case came into my docket. On 25 July 2017 I made orders by consent fixing the hearing of the applicant for judicial review for 20 February 2018.
On 20 February 2018 both counsel told me the issue in the case was whether or not the first applicant was indifferent to whether her migration agent intended to use unlawful means to obtain a visa. The first applicant entered the witness box, she was affirmed, and she verified the contents of her affidavit sworn 19 February 2018. She was then cross-examined for some time. Her cross-examination had not been completed by 20 February 2018 so it was necessary to find another time for the resumption of the case on a part heard basis. All parties agreed to 27 March 2018.
The cross-examination of the first applicant was concluded during the morning of 27 March 2018. After re-examination, the parties indicated they wanted time to prepare written submissions. I gave them time to do that and told the parties there was no need for further appearance.
Counsel for the applicants took issue with the evidentiary status of certain affidavits. I told the parties that any debate about that issue had to be conducted in open court. The case was listed for further hearing on 16 August 2018, being the first available date I was able to take this case. On the third hearing date the question of receipt of further affidavit evidence came into sharp focus. Both parties urged me to receive the additional affidavits, which I did, giving the parties still additional time to file submissions in respect of matters arising out of those affidavits.
Against that procedural backdrop I examined grounds advanced by the applicants in their further amended application filed on 16 January 2018. It is useful to set out the single ground of review on which the applicant relied. It was in the following terms (with errors in the original) –
The visa application was affected by the fraud of a migration agent such that the visa application was not a valid visa application for the purposes of the Migration Act 1958, and consequently the second respondent had no jurisdiction to review the delegate’s decision.
Particulars
1.1.The visa application was an application for a Skilled (Provisional) (Class VC) visa (subclass 485) lodged on 12 January 2011, refused on 28 March 2012, the refusal was affirmed by the second respondent on 4 March 2014.
1.2.The visa application was prepared and lodged by a migration agent Jeetander Ajjan, who was associated with a migration agency S & S Migration.
1.3.Mr Ajjan engaged in fraudulent conduct when lodging the application:
1.3.1.he falsely represented that the first applicant had completed a skills assessment by Trades Recognition Australia (TRA); and
1.3.2.he lodged with the application a fraudulent document purporting to be a skills assessment by TRA; and
1.3.3.he provided a false TRA reference number for a successful skills assessment along with the application.
1.4.The first and second applicants:
1.4.1.did not authorize the migration agent or any other person to engage in the above fraudulent conduct; and
1.4.2.had no knowledge at the relevant time that the migration agent had engaged in the above fraudulent conduct
1.4.3.were not indifferent as to whether the migration agent engaged in fraudulent conduct;
Relevantly paraphrased, the applicants’ contentions amounted to three principal propositions. First, they said their application was affected by the fraud of a migration agent and therefore that their application was not a valid visa application with the consequence that the tribunal had no jurisdiction to review the delegate’s decision. Second, they said that the migration agent, Jeetender Ajjan, engaged in fraudulent conduct in lodging the visa application in the manner described in particular 1.3 of the grounds of application. Third, they said they did not authorise Mr Ajjan to engage in fraudulent conduct nor did they know he had engaged in fraudulent conduct nor were they indifferent as to whether he had engaged in fraudulent conduct.
Synopsis
For the reasons that follow, in my judgment the applicants failed to show the existence of jurisdictional error in this case with the consequence that this proceeding must be dismissed and the applicants must pay the minister’s costs.
Some relevant facts
It was common cause that the applicants were not eligible for the visa that was the subject of the proceeding as the first applicant did not complete a skills assessment, a point advanced by the applicant’s counsel at paragraph 6 of his written submissions filed on 16 January 2018 and accepted on behalf of the minister at paragraph 2.8 of his submissions filed 8 May 2018. It followed that unless I accepted the applicants’ contentions about the invalidity of the visa application on account of fraud no jurisdictional error was thereby demonstrated.
Since the decisions in Gill and Singh v Minister for Immigration and Border Protection,[2] various Full Courts of the Federal Court have addressed the evidentiary matters that an applicant must show when alleging the relevant fraudulent conduct. The first was Maharjan v Minister for Immigration and Border Protection[3] and the second was Singh v Minister for Immigration and Border Protection.[4] Relevantly paragraphed, in Maharjan Gilmore and Mortimer JJ held that the appellants (translating in this case to the applicants) –
a)bear the onus of proving that a fraud was perpetrated on the visa applicant;
b)must prove that the visa applicant was neither complicit in the fraud nor indifferent to it; and
c)further, the visa applicant will need to prove that the submission of fraudulent documents provided by the relevant agent to the minister’s delegate stultified the visa application and the determination process for which the Migration Act provided.
[2] (2016) 247 FCR 554
[3] [2017] FCAFC 213
[4] [2018] FCAFC 52
Gilmore and Mortimer JJ further held that the minister is permitted to adduce any evidence he considers appropriate and to test the visa applicant’s case whether by cross-examination or by the adduction of further evidence. Whether the Federal Circuit Court judge is satisfied of the matters alleged will be a matter for the Federal Circuit Court judge, as was held in Singh.[5]
[5] [2018] FCAFC 52 (at [144(5)])
These authorities were drawn together by Middleton J in Mohammed v Minister for Immigration and Border Protection,[6] an appeal from one of my decisions[7] which was upheld.
[6] [2018] FCA 767
[7] Mohammed v Minister for Immigration and Border Protection & Anor [2017] FCCA 2741
Let me now turn to the evidence in this case about the fraudulent conduct by Mr Ajjan and to my findings about the first applicant’s involvement in it or her indifference to it.
The first applicant’s affidavit
The first applicant swore an affidavit on 19 February 2016. It became exhibit A in the proceeding before me. It is useful to set out its contents in full. After giving her name, address and occupation, the first applicant swore as follows –
1.I am the first applicant. The second applicant is my husband.
2.In about January 2011, my visa to stay in Australia was soon going to expire. A friend of mine recommended to me that I see Jetander Ajjan about extending my visa.
3.In early January 2011, I went to Mr Ajjan’s office to speak with him about extending my visa. Though I cannot remember the exact words of the conversation I had with him, to the best of my recollection it involved words to the following effect:
Me: I need some help to extend my visa.
Him: Ok I will extend your visa. I’m going to apply for a 485 visa for you.
Me: What is this visa?
Him: It's a work visa. I’m going to apply. You will do work for 1 year or one and a half or two years and then I will apply for your next visa which will be a temporary residence visa.
Me: What papers do you need?
Him: Your and your husband’s passports.
4.I gave Mr Ajjan my and my husband’s passports. I also gave him $2,500 that he asked for as his fee, my phone number at the time which was [redacted] and my address at the time which was [redacted]. Annexed and marked A are copies of pages of my and my husband’s passports that I gave to Mr Ajjan.
5.I then left Mr Ajjan’s office. I was not present when the visa the application form that is in the Court Book (of which I have been shown a copy) (Application Form) was completed.
6.I did not tell Mr Ajjan that I had completed a skills assessment with Trades Recognition Australia (which I had not).
7.I did not see Mr Ajjan again after that day. After I went to his office, I received a call from a girl who said she was from his office, and that a bridging visa had arrived for me. I went into his office the next day to collect the bridging visa but I did not see Mr Ajjan when I went.
8.I understood Mr Ajjan to be a lawyer and trusted him.
9.By about March or April 2012 I had become aware that Mr Ajjan had been accused of taking peoples’ money and I thought that he had committed a fraud on me. I checked online using my TRN that I received at the time I received by bridging visa and I found out that my application had been rejected. This the same TRN that appears at the bottom of the pages of the Application Form.
10.In relation to certain information that appears in the Application Form, I make the following comments:
a.in relation to my parents’ details on pages 4 and 5, my parents’ names are correct, although these appear in my passport. The dates for my parents’ dates of birth are not correct;
b.the email address listed on page 6 of the form is not mine;
c.in relation to the “Health details” section on page 7 of the form, I did not have a medical examination as stated, and nor did I discuss medical exams with Mr Ajjan.
11.My husband was not present when I met with Mr Ajjan.
That affidavit was prepared by a solicitor. To it the first affidavit annexed a copy of portions of her passport as well as a copy of portions of her husband’s passport.
Before going to the matters that emerged from the cross-examination of the first applicant it is pertinent to point out two issues raised by the applicant’s counsel. First, he accepted that the applicants bear a heavy burden to establish the fraud of the agent, citing the observations of Allsop CJ in SZRUR v Minister for Immigration and Border Protection.[8] Second, the applicants’ counsel contended that any such “heavy burden” does not require the applicant to establish that they were innocent victims of the fraud, as distinct from establishing that the applicants were not complicit in such fraud, relying on the decision of the Full Court in Prodduturi v Minister for Immigration and Border Protection.[9] Without explanation, the applicant’s counsel did not address the holding of the majority in Maharjan even though the decision in that case had been handed down in 2017 and the applicants’ counsel’s written submissions were written later on 16 January 2018, significantly postdating the decision in Maharjan. By reason of that failure it was not possible to glean from the applicants’ counsel’s submissions on what precise factual matters the applicants relied as their proof that the fraud committed by Mr Ajjan in this case was a fraud committed on the first applicant in which she was neither complicit or to which she was indifferent, in the limited sense explained in Gill and Singh.[10] Further, it was not possible to tell from the first applicant’s affidavit how the provision of the fraudulent documents to the minister’s delegate stultified the visa applicant and determination processes. It fell to the applicants to prove those matters. The applicants bore a heavy burden when seeking to prove those matters. In my view, the first applicant’s affidavit sworn 19 February 2016 did not discharge that evidentiary burden.
[8] (2013) 216 FCR 445 (at [51])
[9] [2015] FCAFC 5 (at [24])
[10] Singh v Minister for Immigration and Border Protection [2018] FCAFC 52
It is necessary to say something about the details of the first applicant’s affidavit. In paragraph 2 she deposed to a recommendation given to her in January 2011 to see Mr Ajjan about extending her visa that was then soon to expire. In paragraph 3 of her affidavit the first applicant purported to recite her conversation with Mr Ajjan in early January 2011. She said she was unable to give the exact words for the conversation yet she purported to state the conversation as if a transcript. In essence, she stated that she went to his office to speak to him about extending her visa. During the conversation that ensued, she stated that Mr Ajjan said he would extend her visa by applying for a subclass 485 visa. The first applicant said she asked what that visa was, to which (so she said) Mr Ajjan answered saying it was a work visa, he would apply for it, that it entitled her to work for up to two years following which he would apply for her next visa, a temporary resident visa. The first applicant stated that she asked Mr Ajjan what papers he needed to which (so she said) he answered by stated he needed the applicants’ passports.
In paragraph 4 of her affidavit, the first applicant stated that she provided Mr Ajjan with the applicants’ passports together with $2 500 and the applicants’ address, details and mobile telephone number.
In paragraph 5 of her affidavit, the first applicant stated that she then left Mr Ajjan’s office. She said she was not present when the visa application was completed.
In paragraph 6 of her affidavit, the first applicant swore that she did not tell Mr Ajjan she had completed a skills assessment with TRA. She said she did not see Mr Ajjan after her meeting with him but understood that he was a legal practitioner and that she trusted him.
In paragraph 9 of her affidavit, the first applicant swore that by April 2012 she became aware that Mr Ajjan had been accused of taking people’s money. She stated she thought he had committed a fraud on her. She then checked online and found that her visa application had been rejected and in paragraph 10 of her affidavit she recorded a variety of errors in her visa application.
Before turning to her cross-examination, several things must be said of the first applicant’s affidavit evidence, to the extent that it purported to address legal and evidentiary issues relevant to a consideration raised in the key cases of Singh,[11] Gill, Maharjan and Singh.[12]
[11] Singh v Minister for Immigration and Border Protection (2016) 247 FCR 554
[12] Singh v Minister for Immigration and Border Protection [2018] FCAFC 52
Those matters arising from the first applicant’s application included the following –
a)she did not say what information was given to her by her unnamed friend about Mr Ajjan, especially about his expertise and his qualifications as a migration agent and his likely ability to procure for her the result she wanted in respect of the visa that she sought through him;
b)she did not depose to any detail of her conversation with Mr Ajjan once he told her that he would apply for a subclass 485 visa having regard to the fact that to that point in time she had two student visas;
c)she deposed to a perfunctory meeting with Mr Ajjan during which he told her that he needed no more than a copy of the applicants’ passports by way of documentation;
d)based on that extremely limited exchange of information during the one and only meeting she said she had with Mr Ajjan, she nevertheless paid him $2 500 and she “trusted him”, somehow believing he was a legal practitioner; and
e)having deposed to the extremely basic one and only discussion with Mr Ajjan in 2011 that she said imbued her with trust of him, she somehow concluded that in March 2012 she had been the victim of his fraud.
A forensic and logic gap manifested itself in her version of events. On that version of events, untested by cross-examination, the first applicant’s version purported to demonstrate that she was not complicit in any fraud that may have been committed by Mr Ajjan. To that end, she swore that she did not prepare the visa application, she was not present when the visa application was presented, she did not tell Mr Ajjan that she had completed a TRA skills assessment and she paid Mr Ajjan $2 500.
Yet that recital of her version of the evidence failed to address two key components of evidentiary issues that an applicant in the shoes of these applicants must prove (according to Maharjan), namely –
a)the submission of the fraudulent documents to the minister’s delegate stultified the appliction and determination processes for which the Migration Act provided; and
b)the question of indifference to the fraudulent conduct by Mr Ajjan.
In Gill, the Full Court emphasised how necessary and critical it is for a judge in my shoes to play close attention to the operation of ss 46 to 49 of the Migration Act (“Act”) as well as to s 98 of the Act. I have done so in this case.
Cross-examination of the first applicant
On behalf of the minister, Mr Knowles of counsel cross-examined the first applicant and at length. That said, at no stage was he unfair towards the first applicant as his questions were all entirely permissible. Some of the more important matters that arose from the answers given by the first applicant when she was cross-examined were as follows –
a)her friend Hardeep Kaur told her about Mr Ajjan of S & S Migration;
b)the first applicant saw Mr Ajjan a couple of times prior to the visa application;
c)she consulted Mr Ajjan because she was looking for a lawyer from whom she could take advice about extending her student visa and he said that she could apply for some other visa;
d)she did not fill out any form;
e)she paid Mr Ajjan on the second visit;
f)she agreed for Mr Ajjan to apply for a subclass 485 visa;
g)during the first of her two meetings with Mr Ajjan, the first applicant said she completed an information sheet with details of her name, address, email address, identification particulars and study details;
h)during one of the two meetings the first applicant had with Mr Ajjan, he said he would send her passport to the department;
i)she thought it was unusual that Mr Ajjan did not ask her to provide information for the requirements of the visa, yet he applied for the visa nevertheless;
j)she agreed that “it seemed too good to be true”;
k)she paid Mr Ajjan $2 500 in cash on the second meeting for which she said he gave her a receipt, but she did not produce the receipt;
l)she did not see a copy of the 485 visa application, nor did she ask to see it;
m)she knew from early November 2011 that her visa application contained false information;
n)she realised that Mr Ajjan made a visa application on her behalf that contained false information;
o)the first applicant took no steps to notify the department about any concern she might have had that Mr Ajjan had been publicly revealed as having been involved in frauds when she first learned of them;
p)in reference to a statutory declaration made 25 June 2012 (being exhibit CY-10 to the affidavit of Cecilia Yu, affirmed on 6 February 2018), the first applicant said in that declaration that she did not give authority to her agent to lodge the subclass 485 visa application; and
q)on her version of events, she had a consultation with Mr Ajjan and the next thing she knew was that he had applied for a visa for her without her authority.[13]
[13] Transcript of proceeding 48
Matters arising from the evidence of the first applicant
At a starting point, it is pertinent to observe that as the primary judge hearing this challenge about Mr Ajjan’s fraudulent activities, I observe the advantages to which Kirby ACJ adverted in Galea v Galea.[14] They were as follows –
The trial judge hears and sees all of the evidence in context, chronologically unfolding as it is given in testimony. Typically, the trial judge has the time during the trial and adjournments to reflect upon the evidence and to weigh it against all of the other evidence whilst the latter is still fresh in his or her mind. A busy appellate court may not always, in the nature of things, have the time or opportunity to do more than to visit particular passages of the transcript. From these there may, or may not, emerge an accurate impression of the whole of the evidence and the conclusions to be derived from it. The trial judge has advantages which simply cannot be provided to an appellate court under present arrangements. He or she is aware of interruptions, hesitations and delays in the giving of testimony which will generally be quite unknown to the appellate court. The judge at the trial will be able to observe the body language of the witnesses that can sometimes be important for interpreting communication. This is usually unrecorded in the cold page of an appeal book. These and other reasons have led to the conventional theory, accepted by the courts of this country and of England, that a trial judge has marked advantages in the assessment of the credibility of witnesses which an appellate court, prisoner of the transcript, can rarely match.
[14] (1990) 19 NSWLR 263, 265-66
In some respects, although not all, issues relating to the first applicant’s demeanour played a role in my overall assessment of her veracity. That said, her demeanour in the witness box was not determinative of the issues of importance in this case. In assessing the matters in issue in this case, I have considered not only what the first applicant said and how she said it but also the likelihood of her version of events transpiring in the manner she said they transpired, whether other objective evidence contradicted her version of events and whether contemporaneous documentary evidence corroborated or contradicted her version of events.
The minister invited me to reject the version of events given by the first applicant to the extent that the first applicant asserted that she was indifferent to the dishonest conduct of Mr Ajjan. As has been mentioned earlier, the minister also contended that I should reject the first applicant’s evidence in relation to any alleged stultification of the statutory processes under the Act.
As a catch all proposition related to the first applicant’s evidence, the minister contended that the first applicant gave evidence that was unclear and inconsistent. Of those two propositions, in the migration jurisprudence, the Full Court of the Federal Court of Australia recently addressed the significance of inconsistent evidence in AVQ15 v The Minister for Immigration and Border Protection.[15] In précis form, the Full Court held that inconsistencies in a visa applicant’s evidence may (although not must) support a rejection of the visa applicant’s evidence where that inconsistency or where those inconsistencies are on material matters. To interpolate, if one or more inconsistencies emerge but they are in respect of unimportant issues, then those inconsistencies may not provide a proper foundation for the rejection of the visa applicant’s evidence. With that instruction in mind, I have considered the first applicant’s evidence in this case.
[15] [2018] FCAFC 133
Certain factual matters were uncontested. No real challenge was made to the phenomenon of the first applicant paying $2 500 as the fee for the visa application in this case, nor was there any dispute that the visa application of relevance in this case was the last of several prior visa applications sought by the applicants, although the earlier visa applications were for student visas.
The fraud in this case was said to lay in Mr Ajjan providing to the department the first applicant’s visa application on which there appeared a falsity, namely, that the first applicant had completed a skills assessment with TRA. The first applicant said in her affidavit that –
a)when she met Mr Ajjan for the first time, he told her he would seek a 485 visa even though she had held several previous student visas; and
b)she paid Mr Ajjan $2 500 after providing a copy of her passport, thereafter trusting him.
It must not be overlooked that the first applicant had, on her own version of events, not previously met Mr Ajjan and she had been referred to him by a friend called Hardeep Kaur. The first applicant knew next to nothing about Mr Ajjan. On the evidence she gave, she said nothing that could legitimately support her contention that she trusted Mr Ajjan. She as a total stranger to him. She did not explain why she gave Mr Ajjan a significant sum ($2 500) at her first meeting, nor did she explain why she did not correct Mr Ajjan when he mentioned applying for a subclass 485 visa in view of the fact that she said she had held several different previous visas, namely student visas. She gave no evidence that she baulked at his suggestion that he would seek a subclass 485 visa. She gave no evidence that she baulked at his request, at the first meeting, to hand over $2 500. Yet she did give evidence that she complied with Mr Ajjan’s request and that she did in fact hand over $2 500. She gave no evidence that she made her own investigations about the bona fides of Mr Ajjan or about his business. On the first applicant’s version of events, a friend put her in touch with a stranger (Mr Ajjan) who spoke of applying for a visa that she had not previously held and who asked her for $2 500, which she paid without further inquiry. When the first applicant said in cross-examination that “it seemed too good to be true”, I agree. In addition, the first applicant admitted she knew from November 2011 that her visa application contained false information and she took no steps to notify the department about any concern she had.
She said in her evidence that she became aware by April 2012 that Mr Ajjan had been accused of taking people’s money, at which time she took the view that she had been a victim of his fraud. She did not say what steps in her deductive reasoning led her to the conclusion that she had been a victim of his fraud. On her version of events, no basis existed for such a conclusion because, according to the first applicant, she was wholly innocent of any wrongdoing by Mr Ajjan.
I reject her contentions in that regard.
In my view, the first applicant was indifferent to the activities of Mr Ajjan.
The evidence revealed that the first applicant visited Mr Ajjan, completed an information sheet, she visited Mr Ajjan’s office for a second time, she gave $2 500 to him and then learnt that Mr Ajjan had applied for the subclass 485 visa without her approval. She did not explain why she so willingly gave Mr Ajjan $2 500 upon completing no more than an information sheet. On her own evidence, she wanted a visa. That was the reason for her consulting Mr Ajjan in the first place. She gave him $2 500 to achieve that purpose.
On her version of events, she first attended Mr Ajjan in January 2011. Hearing nothing from Mr Ajjan thereafter, she said she learned in November 2011 that others had been the victim of his fraud. In other words, the first applicant did nothing to pursue her visa application with Mr Ajjan between January and November 2011 despite the fact that she had paid him $2 500 and despite the fact that she had originally consulted Mr Ajjan with a view to extending her student visa. If the timing involved in extending her visa was important, as it seemed that it was, I found it difficult to accept that the first applicant made no follow-up investigations with Mr Ajjan about the process or the steps she had retained him to perform. In my view, the more likely set of circumstances that applied were these.
The first applicant consulted Mr Ajjan about her visa. That discussion was in general terms, Mr Ajjan raised with her the possibility of applying for a subclass 485 visa notwithstanding that she held student visas up to that point in time. She completed an information sheet. She thereafter provided Mr Ajjan with $2 500 for the purpose of obtaining a visa for her. She thereafter left the whole visa application process to Mr Ajjan and made no inquiry about his work for which she deposited the sum of $2 500. She learned in November 2011, 11 months after her first consultation with Mr Ajjan, that others had been adversely affected by his fraudulent activities, she having made no inquiry in the intervening period about what he was doing for her in respect of which she had paid him $2 500.
I do not accept the first applicant’s evidence that she did not know Mr Ajjan had applied for the subclass 485 visa without her authority. According to common experience and ordinary behaviour, the first applicant either pursued Mr Ajjan for the $2 500 she had deposited with him (about which she gave no evidence) or she was satisfied that Mr Ajjan had done as she retained him to do by applying for the visa in return for the payment of the sum of $2 500. Otherwise, it made no sense that she did no pursue with Mr Ajjan the money that she had given him.
In this case, it is necessary for me to make certain factual findings.
I find that –
a)the first applicant did not expressly authorise Mr Ajjan to engage in fraudulent activities in connection with the 485 visa in this case;
b)the first applicant was indifferent to whether Mr Ajjan had engaged in his fraudulent activities in connection with the obtaining of the 485 visa in this case; and
c)the 485 visa application was false in that it wrongly asserted that the first applicant had completed a skills assessment with TRA.
In view of those findings, in my view the applicants did not demonstrate that they were not indifferent to Mr Ajjan’s fraud. They were indifferent to Mr Ajjan’s fraud. Further, they failed to prove that the submission of the fraudulent documents stultified the visa application and determination process.
It follows that the applicants in this case failed to discharge the heavy onus upon them. The visa application was not invalidated. I refuse the declarations the applicants sought and I dismiss this proceeding with costs.
I certify that the preceding forty-eight (48) paragraphs are a true copy of the reasons for judgment of his Honour Judge Wilson
Associate:
Date: 15 November 2018
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