KAUR v Minister for Immigration

[2018] FCCA 1958

FEDERAL CIRCUIT COURT OF AUSTRALIA

KAUR & ORS v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 1958

Catchwords:
MIGRATION – Application for a Student (Class TU) (Subclass 572) visa – review of decision of Administrative Appeals Tribunal – whether alleged fraud by a third party stultified the Tribunal’s process of review – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.499, 360, 366A

Migration Regulations 1994 (Cth), cl.572.223 of sch.2

Other materials cited:

Young, Croft and Smith, On Equity (Lawbook Co, 2009)

Cases cited:

Barlow Clowes International Ltd (in liq) v Eurotrust International Ltd [2006] 1 All ER 333

Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89

Hasler v Singtel Optus Pty Ltd (2014) 87 NSWLR 609
Jones v Dunkel (1959) 101 CLR 298
Minister for Immigration & Citizenship v SZLIX (2008) 245 ALR 501

Singh v Minister for Immigration & Border Protection [2018] FCAFC 52

SZFDE v Minister for Immigration & Citizenship (2007) 232 CLR 189

SZSXT v Minister for Immigration & Border Protection (2014) 222 FCR 73 Zhang v Minister for Immigration & Border Protection (2016) 153 ALD 285

First Applicant: RAMANDEEP KAUR

Second Applicant: GURPREET SINGH

Third Applicant: BHAVNOOR KAUR

Fourth Applicant: GURNOOR SINGH

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1765 of 2017

Judgment of: Judge Smith

Hearing date: 18 April 2018

Date of Last Submission: 18 April 2018

Delivered at: Sydney

Delivered on: 7 August 2018

REPRESENTATION

Solicitors for the Applicants: Mr K Kelly, Jackson & Associates

Counsel for the First Respondent: Ms N Blake

Solicitors for the Respondents: Mills Oakley

ORDERS

1. The application be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1765 of 2017

RAMANDEEP KAUR

First Applicant

GURPREET SINGH

Second Applicant

BHAVNOOR KAUR

Third Applicant

GURNOOR SINGH

Fourth Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicants seek judicial review of a decision of the Administrative Appeals Tribunal made on 26 May 2016. That decision was to affirm a decision of a delegate of the Minister to refuse to grant the applicants Student  (Class TU) (Subclass 572) visas. The first applicant was the primary applicant for the visa. For that reason it is convenient to refer to her as the applicant.

2. The applicant contends that she was misled by her migration agent, Mr K, into believing that the agent would attend a hearing held by the Tribunal and that she would not have to say anything. The applicant says that, contrary to this belief, she was informed by the agent on the day before the hearing that the agent would not be attending and that she would have to appear by herself. The applicant claims that, as a consequence, she did not prepare for the hearing and was too nervous at the hearing to be able to properly give evidence.

3. These contentions are rejected and the application must be dismissed. Not only was the applicant not misled as she claimed but, even if she had been, the agent’s conduct did not amount to fraud and, critically, did not prevent her from having a reasonable opportunity to appear before the Tribunal to give evidence and to make submissions in relation to the issues arising in relation to the decision under review.

Background

1. The applicant is a citizen of India who arrived in Australia on 16 May 2009 holding a Subclass 572 visa. She subsequently held a number of other student and bridging visas.

2. On 16 March 2015 the applicant applied for a further Subclass 572 visa on the basis of her enrolment in a Certificate III course in Financial Services. The other applicants applied for the same visa on the basis of their membership of the applicant’s family unit.

3. By letter dated 20 March 2015 a delegate of the Minister wrote to the applicant’s migration agent requesting further information in relation to the visa application. One of the matters in respect of which further information was requested was what was referred to as the genuine temporary entrant criterion. That criterion is relevantly contained in cl.572.223 of sch.2 to the Migration Regulations 1994 (Cth) and requires that the Minister be satisfied that the applicant is a genuine applicant for entry and stay as a student because, having regard to a number of specified matters, “the Minister is satisfied that the applicant intends genuinely to stay in Australia temporarily”.

4. The delegate explained in her letter that the visa for which the applicant had applied would extend her stay in Australia to over 7 years, and that the applicant had been enrolled in a number of different courses and had not provided any substantial reasons as to why she had chosen those courses. The delegate also noted that there was information that the applicant had deferred her intended course and that her rate of completing courses was very low given the amount of time she had been in Australia. The delegate stated that these circumstances indicated that the applicant did not genuinely intend to stay in Australia temporarily and was using the student visa program as a means of obtaining residence in Australia. The applicant was invited to provide a statement setting out her reasons for undertaking her proposed course of study.

5. The applicant made a written statement in reply to the delegate’s letter. In it she gave the reasons for the rate of her course completion as well as the reasons for undertaking her proposed course. The applicant said that she proposed to undertake the course to obtain qualifications and skills in conducting a business and that when she returns to India she hopes to start a business in the “field of medical industry”.

6. On 18 June 2015 a delegate of the Minister made a decision to refuse to grant the applicants visas. The delegate was not satisfied that the criterion in cl.572.223(1) in Schedule 2 to the Regulations was met by the applicant. Her reason for that conclusion were encapsulated in the following statement:

   Overall, given your lack of academic progress, your study history, your potential circumstances in Australia, your immigration history and the lack of value of the courses to your future, I find that you are using the Student visa program to circumvent permanent migration programs and I am not satisfied that you are a genuine applicant for entry and stay as a student and that you intend to stay in Australia temporarily.

7. The applicant applied to the Tribunal for review of the delegate’s decision and employed the same agent as she had used in connection with the visa application.

8. By letter dated 8 January 2016 sent to the applicant’s agent, the Tribunal invited the applicants to a hearing to be conducted on 17 February 2016 “to give evidence and present arguments relating to the issues” in the case.

9. The Tribunal’s letter also stated:

   We will assess whether you intend genuinely to stay in Australia temporarily as required by clause 572.223(1)(a) of the Migration Regulations.

10. Enclosed with the letter was a direction made by the Minister under s.499 of the Migration Act 1958 (Cth). The direction was entitled “Assessing the genuine temporary entrant criterion for Student visa applications”[1] and gave instructions as to the way in which decision makers ought to address that criterion.

    [1] Emphasis in original.

11. On 10 February 2016 the Tribunal wrote to the applicant (by email sent to her migration agent and copied to the applicant) indicating that it would correspond directly with the applicant because the applicant’s migration agent was no longer a registered migration agent.

12. The Tribunal conducted a hearing on 17 February 2016. The Tribunal’s record shows that all of the applicants and the migration agent attended the hearing. A transcript of the hearing was in evidence. It records that only the applicant and the Tribunal spoke. The Tribunal hearing is considered in some detail later in these reasons.

13. At the hearing, in addition to answering questions posed by the Tribunal, the applicant gave the Tribunal 3 documents. The first 2 documents related to early health difficulties suffered by 2 of her children. The first was a referral to a consultant neonatologist dated 28 February 2013 in respect of the third applicant born on 15 February 2013. The second was a referral to a Dr Shanker dated 15 December 2014 in respect of the fourth applicant born on 2 December 2014. The third document was a letter dated 14 December 2015 confirming the applicant’s enrolment in the Certificate III in Financial Services.

14. On 13 April 2016 the applicant wrote to the Tribunal by email asking for the outcome of her review application. The Tribunal replied by email the same day indicating that it was not able to say when the decision would be made.

15. A month later, on 13 May 2016 the applicant’s agent wrote to the Tribunal asking for advice about the status of the matter.

16. On 26 May 2016 the Tribunal made its decision to affirm the delegate’s decision. The decision was sent to the applicant by email addressed to her agent on 30 May 2016.

17. The Tribunal accepted that the applicant had to take time away from her studies in order to care for 2 of her children and accepted that her proposed course would give her some ideas for a business in India. However, it stated, at [23], that it was not satisfied that that course was relevant to farming in India and set out its critical reasoning at [24]:

    The Tribunal places greater weight on applicant’s lack of knowledge of the subjects studied in her course and the medical condition of her daughter who the applicant acknowledges has a limited life span and a need for constant medical attention. Weighing up the applicant’s circumstances the Tribunal is of the view, on balance, that the applicant is studying in Australia in order to maintain ongoing residence in Australia which allows the 3^rd named applicant to obtain ongoing Australian medical treatment.

18. On the basis of those findings, the Tribunal was not satisfied that the applicant intended genuinely to stay in Australia temporarily and so did not meet sub-cl.572.223(1)(a) of Schedule 2 to the Regulations. For that reason the Tribunal affirmed the delegate’s decision.

Consideration

1. The leading case in Australia of the effect of fraud on the exercise of public power is SZFDE v Minister for Immigration & Citizenship (2007) 232 CLR 189. The critical findings in that case were summarised by the Full Court of the Federal Court in SZSXT v Minister for Immigration & Border Protection (2014) 222 FCR 73 at [51] (the references being to the paragraphs in the judgment of the High Court):

   …

   (a)    in the framework of general legal principle, fraud can come in various guises and is “infinite in variety” (at [8]);

   (b) different considerations may arise when fraud is alleged in a public law case, which involves the due administration of Commonwealth laws and has an important constitutional underpinning in Ch III of the Constitution (at [11]);

   (c)     “fraud” can attract different meanings in private and public law and in the latter context has been used in a broad sense which encompasses “bad faith” (at [17]);

   (d)    in a case seeking certiorari based on the fraud of a third party, there is no requirement that one of the parties to the litigation be privy to the fraud (at [20]);

   (e)     another practical aspect of fraud in public law which may set it apart from fraud in civil law is that “often a victim of it will have no useful remedy except to have the fraudulently affected result set aside and a fresh untainted hearing conducted” (at [22]);

   (f) in a public law case, fraud is not limited to that of a decision-maker, a party or a party’s representative (at [25]-[27]); and

   (g)    there was no necessity in SZFDE to determine at large and in generally applicable terms the scope for judicial review for “third party fraud” of an earlier administrative decision where the judicial review applicant did not collude in the fraud and was not aware of it at the time (at [28]). But in the particular circumstances in SZFDE the rogue’s fraudulent dealings with the family had the effect of disabling the Tribunal from duly discharging its imperative statutory functions in conducting a review, such that there had also been a fraud “on” the Tribunal which meant that the Tribunal’s jurisdiction remained constructively unexercised (at [51]-[52]).

   See also Singh v Minister for Immigration & Border Protection [2018] FCAFC 52 at [119]; Zhang v Minister for Immigration & Border Protection (2016) 153 ALD 285 at [37].

2. The applicant says that the fraud here was dishonesty on the part of the migration agent, namely, that he lied to her about the fact that he was going to attend the hearing before the Tribunal and that she would not have to say anything.

3. Although, as explained in SZFDE, the variety of fraud is infinite, it may be accepted that dishonesty can amount to fraud both at law and in equity: see Young, Croft and Smith, On Equity (Lawbook Co, 2009) at [5.10]; Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89. The reference in SZFDE to “bad faith” as fraud in public law suggests that dishonesty may also amount to fraud in that context. Dishonesty amounts to a transgression of ordinary standards of honest behaviour: Barlow Clowes International Ltd (in liq) v Eurotrust International Ltd [2006] All ER 333 at [16] (Lord Hoffman) as paraphrased by Leeming JA in Hasler v Singtel Optus Pty Ltd (2014) 87 NSWLR 609 at [124].

4. Clearly enough, lying is an instance of dishonesty although it may not be enough, on its own, to amount to fraud. As will be seen, it is not necessary to determine whether it is on the facts of this case.

5. It is necessary to first set out the evidence relied on by the applicant to establish both that there was fraud and that the fraud affected the exercise of the Tribunal’s power. I will then examine that evidence in light of the other evidence before the Court including the applicant’s own evidence in cross-examination.

The applicant’s affidavit evidence

1. The applicant’s affidavit evidence was that the migration agent was introduced to her family in about 2012 as being an honourable and skilful agent who could help them stay in Australia. She said that they knew that the agent’s father provided similar services in India and that that made them feel comfortable and confident. The agent’s father was a friend of the applicant’s husband and from the same part of India as her husband.

2. The applicant said that she and her husband speak English as a second language and are nervous and unsure about dealing with authorities in Australia and always thought it better to rely on someone who they could trust. They felt especially comfortable with the agent as they could speak to him in their native tongue, Punjabi.

3. The applicant and her husband decided to use the agent’s services and he assisted them with several visa applications before the one under consideration.

4. The applicant said that she was informed by the Department of Immigration in February 2016 that the agent’s registration had expired. She then telephoned the agent and forwarded the Department’s email to him. The agent then told her over the telephone that all he needed to do was to renew his registration.

5. The applicant stated that she regularly telephoned the agent after the application was lodged and had conversations to the following effect (in the Punjabi language):

   Me:Are you able to come to the hearing with me?

   Mr K:    Yes, I will come with you. You will not need to talk. I will look after everything.

6. The applicant explained that she felt comfortable and relaxed about the hearing due to the agent’s promises and did not think that she needed to do anything to prepare.

7. However, the day before the hearing the applicant spoke to the agent who said:

   I can’t come with you. I am in India. Even if I came you would need to speak by yourself. You will have to speak to the tribunal on your own.

8. The agent also told the applicant that he could not talk on her behalf.

9. The applicant said that after the agent told her this she was very nervous, sad and upset. She felt that the agent had lied to her and had left her and her family in a very bad situation. However, even though she felt that way, she did not know that she could have told the Tribunal that the agent had done that and thought that she needed to speak to the Tribunal on her own because that is what she was told by the agent.

10. The applicant was unable to sleep the night before the hearing as she was nervous and scared about going to the Tribunal on her own and the need to speak for herself. She did not know what to prepare and was not aware of what she should tell the Tribunal.

11. The applicant attended the hearing on her own. This made her extremely nervous and upset to the extent that she was crying and shaking uncontrollably. She was particularly upset that her family had trusted the agent and he had lied to them and was not there when they needed him.

12. During the hearing the applicant could not think correctly due to how nervous and scared she was. She knew that if the Tribunal rejected her application her family could be sent back to India.

The Tribunal hearing

1. The applicant annexed a transcript of the Tribunal hearing to her first affidavit. The transcript was not perfect, but there was no objection to the accuracy of what it contained. It is only necessary to set out a few passages from it, noting that it appears that the applicant gave evidence before the Tribunal in English.

2. What the Tribunal says is recorded after “Q”. The applicant’s evidence is recorded after “A”. The “Q’s” are numbered, starting from the beginning of the hearing.

   Q1    Thank you. Now Madam you have applied for a review of the decision which was made by .....(0.00.31)[2] a new visa and you have applied to this Tribunal .....(0.00.38) the department. It’s my job to review the decision that was made by the department. It’s not my job to grant any other visas. Now do you know why the department has issued the visa?

   [2] I infer that the numbers in brackets are references to a time signature on the recording from which the transcript was prepared.

   A  Because of this I have some gap in this .....(0.01.02) and haven’t properly completed …..(0.01.04).

   …

   Q5    Officer, I need .....(0.04.17) O.K. Thank you. So you came to Australia in 2009.

   A      Yes.

   Q6    To study.

   A  Yes, in May 2009.

   Q7    And what did you come to study?

   A  Before nursing, actually I have - - -

   Q8    .....(0.04.38)

   A  - - - I have done .....(0.04.40) diploma of nursing from India.

   Q9    You did, you did a diploma of nursing in India, right.

   A  Yes, and - - -

   Q10  And did you come alone or with your husband?

   A  No, I came alone before.

   Q11  Right.

   A  Yeah, and then I, like, I, my admission was in University of Western Sydney and I was there for, like, I came with .....(0.05.01) like, finished my course in University of Western Sydney and after that we got our grant to the University of Western Sydney .....(0.05.10) campus and then - - -

   Q12  Yes.

   A  - - - we know, like, there we knew that this one is not actually bachelor of nursing, this one is just a VN program which is, like, made by the university and the .....(0.05.24) like, I came from there is one hospital in India in .....(0.05.28) they are just, like, you know, they are sending all nurses in Australia and the UK and, like, so they have their own programs and they are sending in that one and they are just telling us it’s bachelor of nursing. And then, like, we, I came with some group of girls and then they know, like, when everybody know then they all let’s leave that course and then try to take admission in another course and then after that I just I leave that course and I, like, when I came from India it, because just my .....(0.06.02), like, I have to complete my, like, bachelor here and I have to do nursing, like, because it was my thing to complete nursing and then help people but - - -

   Q13  So what happened with your nursing qualifications?

   A Because bit hard and I have some family issues, like, my father he was, like, in .....(0.06.23) and my father he was expired and I was here that time and I wasn’t able to get back that time. …

1. The discussion then turned to the difficulties faced by the applicant by reason of the birth of her children and their health. The Tribunal next asked the applicant about what she was currently studying.

   Q38  Right. So what are you studying now?

   A       Now I am doing financial service, like .....(0.15.30) financial services. It starts in last August, last years, 17th of August. Now, like, my attendance is good and my progress is good. I’m going to the college .....(0.15.43) now.

   Q39      Have you got, have you got details of your, of your course progress?

   A  Just one letter. I ask them in, in December.

   Q40  Well that just says you’re a student and you’re satisfying all course requirements but it doesn’t, it doesn’t provide me with information about what subjects you’re doing and/or your progress in the, in the course.

   A  It just, down there I think, like, does satisfy all the course - - -

   Q41  Well that doesn’t mean anything. Satisfying all course requirements, I don’t know what, I don’t - - -

   A  Yeah.

   Q41  - - - I don’t know what you’re studying. …

2. The applicant was then asked about the purpose of her course and she gave evidence about her plans to assist in the family business in India. The Tribunal asked for details about her study.

   Q47  So what are the subjects that you’re studying?

   A  In this one I remember not all, just, like, you know, there, I’ve got safety. If you give me some time then I’ll email, I’ll ask the college today and then I will email the document tomorrow.

   Q48  Well I’d like you to tell me. So you started - - -

   A  In August.

   Q48  - - - this course in August.

   A  Yeah.

   Q49  Right. So what was, what subjects did you start to study?

   A  There is, like, some work health and safety issues and also, like, how to manage everything at the work, how to do work, you know.

3. After some discussion about the applicant’s children, the Tribunal explained a difficulty it had with some of the applicant’s evidence.

   Q58  Well I’m, I have some concerns about, about your studying and my concerns are that you have two very small children. Both children with obviously quite a lot of medical problems. You haven’t provided me with sufficient information to be able to assess the progress in your course. I’m also, I’m also concerned about why you’re studying a certificate in financial services when your family has a farm. How that, how that study is relevant to your future.

   A  Because, you know, my husband he was doing, my husband he was in politics before there in India so - - -

4. The Tribunal then asked the applicant further questions about the purpose of the course and where she was doing it before telling the applicant (Q68) that it had looked at the website of her education provider:

   Q68  … Now the courses that the, that they have here on their internet is that, it’s perform financial calculations, establish client relationships, customer complaints, foreign currency transactions - - -

   A  Yes, it’s all that.

   Q68[3]     - - - you know - - -

   A  Sorry, all that I have done, yeah, I - - -

   [3] [sic].

   Q69  Well you didn’t tell me that you’ve done those courses.

   A  - - - I, I have done all these client complaints and foreign currency, all that, even, like, with the work safety, environment, also, everything, all these - - -

5. The Tribunal asked again what these courses had to do with the farm business. The applicant answered that question before the Tribunal indicated (Q71) again that it had concerns about the reasons she had for studying that course and asked her to comment on the possibility that it would consider that she was only extending her stay in Australia to be able to care for her children. The applicant answered:

   A  I just want to finish this study also because it’s just only, like, now, it, it will finish in August and even I have pay all the fees, I’ve just left, fifteen hundred left for the, this one, like, all the course and also I want to just finish the study and then maybe my daughter she get more better and my son is alright, he just taking doctor just his progress, doctor just want to see his progress otherwise he’s O.K. he start walking, even he is just one now and the, I just, I just need the visa for this four, five months, after that we will go. I, like, I’m not going to apply because in future it’s very hard to stay, you know, with two kids, very hard to stay here, even I don’t have any family and don’t have anybody to take care of them and I just want to finish my, this course so that if I have, like, even a one thing in my hand that I have just done this thing in Australia.

6. The Tribunal then asked the applicant if there was anything else she would like to tell it before the hearing was completed and the applicant answered: “That’s it”. The hearing then ended.

Evidence of the applicant in cross-examination

1. Once again, the applicant gave evidence in English.

2. The applicant was first questioned about the reason for which her application to the Court was filed outside the time limit imposed by s.477(1) of the Act. The applicant had given evidence about the reason for the delay in her affidavit of 27 November 2017. It was relied on in her application for an order for an extension of time under s.477(2) and was admitted in part in the substantive proceedings. After questions and answers about that evidence, the following evidence was given:

   … Is it correct what I’m suggesting to you which is the only reason you were late is because you trusted your agent?---Yes.

   There was no other reason; is that correct?---No.

   And to suggest that there was some other reason would be false; is that correct?---Sorry?

   To suggest that there was another reason, that it wasn’t completely the fault of your agent that there was some other reason that you were late?---No. There is no other reason.

   Yes. So it - - -?---According to me my – my agent already lodged the file.

   So it would be false to suggest that there was some other reason you were late because it was totally your agent’s fault; is that correct?---From my side there’s no reason.

   Yes?---Yes.

3. Having firmly closed the gate behind the applicant’s answer on this topic, counsel for the Minister proceeded to ask the applicant about the explanation for the delay given in the application itself.

   Do you recall that the original application that you filed with this Court was in June 2017, so June of last year, and that application asked you to give a reason for why the application was late? The reason given in that application was that your daughter was very sick and you couldn’t make an application in time?---He put these reasons by himself.

   Yes. I understand that you say that now, however - - -?---He put these reasons by himself. Even he told me, “If anyone – anyone ask me you said your daughter was sick that’s why we are late.”

   And you were happy to go along with that explanation, weren’t you?---Because he told me late when I saw the papers, but I didn’t like know that it was like really late. Ms Sharon she told me first time that my application is 300 some days late.

   The issue I’m raising with you is that you were content to let an application that had a false reason sit with the Court and you took no steps to correct that until November of last year. That’s the issue I’m inviting you to comment upon?---Because I did not know I have to do, or even I did not know like why he did this one.

   But you knew that reason had been provided. He told you to - - -?---When he send me the papers that I – that I may – him - - -

   Which is the day after it was filed; is that correct? That’s the evidence you gave in your affidavit that’s in front of you, paragraph 19; is that correct?---Yes. He send me the documents.

   So he sent you the documents with the false explanation?---Yes.

   And it wasn’t until November that you corrected that explanation, is that your evidence?---I don’t know. Like I have to correct that information. On how to correct like that I don’t know anything.

4. Counsel for the Minister then put a series of propositions to the applicant including that the applicant had not told the Tribunal of any difficulties with the agent, that she had no difficulties with English, that her reliance on the agent in commencing these proceedings was inconsistent with the claim that he had broken her trust and then summarised (t.18.29):

   … So the reason I’m suggesting these issues to you is so that you can respond, because what I’m suggesting to you is that your evidence about Mr K is not true, and it’s fair that you have the opportunity to respond to that suggestion?---Everything I said in these documents, that’s true. This happen to me. Yes. And even, like, he just – he wasn’t in the – he wasn’t come to the hearing, but he – he was handling my case, and I trust on him that time.

Consideration of the evidence

1. I do not accept the applicant’s evidence.

2. The main reason for that conclusion is that it is improbable that the agent told her that she would not have to say anything at the hearing. He was, until about February 2016, a registered migration agent who had assisted the applicant in a number of student visa applications. She was told, and there is no reason to doubt, that he was a skilful agent. In those circumstances it is reasonable to assume that the agent had more than a passing familiarity with the Act as well as with the conduct of hearings by the Tribunal. He would have known, for example, that the Tribunal was obliged by s.360 of the Act to invite the applicant to “give evidence” and to “present arguments” at a hearing. He would have known, as an agent, that there were limits on the assistance that can be given to applicants during the hearing. Section 366A provides:

   (1)    The applicant is entitled, while appearing before the Tribunal, to have another person (the assistant) present to assist him or her.

   (2)    The assistant is not entitled to present arguments to the Tribunal, or to address the Tribunal, unless the Tribunal is satisfied that, because of exceptional circumstances, the assistant should be allowed to do so.

   (3)    Except as provided in this section, the applicant is not entitled, while appearing before the Tribunal, to be represented by another person.

   (4)    This section does not affect the entitlement of the applicant to engage a person to assist or represent him or her otherwise than while appearing before the Tribunal.

   (Emphasis in original)

3. If the agent had not known of these provisions from his training and experience, he would have become aware of at least s.360 from the Tribunal’s letter inviting the applicant to a hearing. He received the letter as her authorised recipient. The letter expressly invited the applicant “to give evidence and present arguments relating to the issues in” her case. It specifically stated that the question of the applicant’s genuine intention to stay in Australia temporarily was in issue and enclosed the direction referred to above. That direction made it clear, if it was not already clear, that the applicant would have to address the Tribunal on these matters. That the applicant’s intention was in issue was, as will be developed further below, pellucid from both the delegate’s letter and her reasons for decision.

4. In those circumstances, I conclude that the agent well knew that the applicant would have to give evidence, regardless of whether he was assisting her at the hearing or not.

5. On that basis, there is no plausible reason why he would tell her that she would not have to say anything at the hearing. The applicant did not suggest that the agent would gain any personal advantage from lying to her and I cannot see any for myself. It is not the case, for instance, that the agent was trying to hide some defect of his because it would have quickly become apparent at the hearing that what he said was wrong. If he was trying to hide something he would have told her either not to go to the hearing or that she would have to go to the hearing herself.

6. On the other hand, if I were to conclude that the agent did not know what he was talking about then his statement would have been nothing more than a mistake based on his own ignorance, nothing more than negligent advice. That is insufficient to infect the Tribunal’s decision with jurisdictional error: SZFDE at [53].

7. For those reasons, I do not accept the applicant’s evidence as to what she was told by the agent about what would occur at the hearing.

8. There are a number of other reasons which support my conclusion about the applicant’s credibility. In particular, the applicant’s evidence about the impact of being told that the agent would not attend the hearing and that she would have to attend alone was inconsistent with the other evidence.

9. First, her evidence was that she did not know what she had to tell the Tribunal. I do not accept that. The delegate’s letter to the applicant (see [6]-[7] above) made it plain that the genuine temporary entrant criterion was a significant issue in the determination of the applicant’s visa application. This was not something that the agent kept to himself. The applicant must have been told about this because she signed a statement which directly responded to the concerns about this issue expressed in the delegate’s letter. If that letter had not made the importance of the issue clear, the delegate’s decision did so because it was the reason given for refusing the visa application.

10. The applicant did not say that she did not receive the delegate’s decision and I doubt, given the importance of the outcome of her visa application to her and her family, that she would not have at least discussed the reasons for it with her still trusted agent. Indeed, when the Tribunal asked the applicant at the hearing whether she knew why the delegate had refused her application, she explained that it was because she had a gap in her studies and hadn’t properly completed some courses. That was accurate in so far as it went, although there were other components to the delegate’s reasons.

11. If the applicant was not yet on notice of what was important to her case, and that is simply not believable, the Tribunal’s letter inviting her to a hearing made it plain. Again, the applicant did not say that she did not receive this letter. As I have noted, the letter expressly stated that the genuine entrant criterion would be assessed and enclosed the direction addressed to that very question. Further, and this is of critical importance in undermining the applicant’s evidence, the letter requested that the applicant provide, amongst other things, documents showing her current enrolment and an explanation for any gaps in the applicant’s enrolment and documentary evidence relevant to the explanation. She complied with this request by producing 3 documents at the hearing. This fact alone shows that the applicant was aware of the issues, knew what to do to prepare for the hearing, and knew what she might have to say at the hearing.

12. Secondly, the applicant said that at the hearing she was nervous and upset to the extent that she was crying and shaking uncontrollably. There is no indication in the transcript, or anywhere other than the applicant’s affidavit, that this was the case. The applicant must have had the recording of hearing in order to prepare the transcript, but did not tender it. Neither party addressed me on the application of the rule in Jones v Dunkel (1959) 101 CLR 298 to the failure of a party bearing an evidentiary onus to adduce documentary evidence and, in those circumstances, I draw no inferences in this case.

13. Thirdly, the transcript itself shows that the applicant understood all of the questions asked by the Tribunal and was able to answer them confidently and directly. The applicant relied on a number of passages in the transcript to support her contention that she was having difficulty with the line of questioning and responding to the Tribunal’s questions.

14. The first of these passages was at the commencement of the hearing:

    Q1    … Now do you know why the department has issued the visa?

    A  Because of this I have some gap m this .....(0.01.02) and haven’t properly completed …..(0.01.04).

15. As was ultimately accepted by the applicant in argument, the applicant’s response to the Tribunal’s question was at least partially accurate.

16. Next, the applicant relied on her answer to Q7:

    Q7    And what did you come to study?

    A  Before nursing, actually I have - - -

    Q8    .....(0.04.38)

    A  - - - I have done .....(0.04.40) diploma of nursing from India.

17. While, at first, this answer does not appear to respond to the Tribunal’s question, later passages in the hearing reveal that the applicant was well aware of the question and its importance to the review. After the applicant’s response set out at [65], the Tribunal asked her whether she came to Australia with her husband. After answering that she had come alone, she continued:

    A  Yeah, and then I, like, I, my admission was in University of Western Sydney and I was there for, like, I came with .....(0.05.01) like, finished my course in University of Western Sydney and after that we got our grant to the University of Western Sydney .....(0.05.10) campus and then - - -

    Q12  Yes.

    A  - - - we know, like, there we knew that this one is not actually bachelor of nursing, this one is just a VN program which is, like, made by the university and the .....(0.05.24) like, I came from there is one hospital in India in .....(0.05.28) they are just, like, you know, they are sending all nurses in Australia and the UK and, like, so they have their own programs and they are sending in that one and they are just telling us it’s bachelor of nursing. And then, like, we, I came with some group of girls and then they know, like, when everybody know then they all let’s leave that course and then try to take admission in another course and then after that I just I leave that course and I, like, when I came from India it, because just my .....(0.06.02), like, I have to complete my, like, bachelor here and I have to do nursing, like, because it was my thing to complete nursing and then help people but - - -

    Q13  So what happened with your nursing qualifications?

    A Because bit hard and I have some family issues, like, my father he was, like, in .....(0.06.23) and my father he was expired and I was here that time and I wasn’t able to get back that time. …

18. What the applicant was explaining was that there was a real purpose to the course she originally came to do in Australia. That was the real purport of the Tribunal’s question. Contrary to the applicant’s suggestion, the applicant’s evidence in these passages shows that she was very capable of understanding the Tribunal’s questions and giving evidence in response to them.

19. It is unnecessary to analyse every passage in the transcript; however, the extracts above accurately represent the way in which the hearing was conducted as a whole and, themselves reveal that the applicant had no difficulties at the hearing even accepting, as I do, that she was probably nervous.

20. Fourthly, the applicant’s evidence was that she completely lost trust in the agent; however, she continued to trust the agent after the Tribunal hearing: she gave evidence that she called him many times before the Tribunal’s decision and trusted him to assist her to lodge an application for review in this Court. The applicant trusted him enough to adopt a lie about the reason for delay in bringing the application. None of this sits well with her claim that he had broken her faith in him.

21. The fact that the applicant had, at first, relied on a false basis to seek an extension of time does not assist the applicant’s credibility. It supports the view that she is willing to take any steps to extend her stay in Australia. As such, it supports the general view I have taken of her evidence that much of it was fabricated. What I do accept is that the applicant was nervous at the hearing because she knew that, if the Tribunal did not accept her claims, she and her family could be sent back to India. That nervousness is completely natural and especially understandable in the applicant’s circumstances where she has 2 infant children who have had serious medical issues.

1. As I have rejected the essential factual basis for the applicant’s claim it is unnecessary for me to consider the other issues that would have arisen on the applicant’s version of events. However, given my findings about the applicant’s ability to give evidence and present arguments at the Tribunal hearing, the application would fail even if I had accepted that Mr K had been fraudulent in his dealings with the applicant. It is necessary to show that the relevant fraud directly impacted on the discharge of the Tribunal’s decision-making functions and so became fraud “on” the Tribunal: SZFDE at [51]-[52]; Minister for Immigration & Citizenship v SZLIX (2008) 245 ALR 501 at [33]. Here, there was no relevant impact on the hearing conducted by the Tribunal.

Conclusion

1. The applicant has failed to establish that the Tribunal’s decision was affected by jurisdictional error. The application must be dismissed.

I certify that the preceding seventy-three (73) paragraphs are a true copy of the reasons for judgment of Judge Smith

Date:     7 August 2018