Kaur v Minister for Immigration - [2018] FCCA 1139

FEDERAL CIRCUIT COURT OF AUSTRALIA

KAUR & ANOR v MINISTER FOR IMMIGRATION & ANOR

[2018] FCCA 1139

Catchwords:
MIGRATION – Review of decision by Administrative Appeals Tribunal – whether the applicant’s visa application was invalid because it was vitiated by fraud – whether the applicant was a victim of third party fraud – no jurisdictional error – application dismissed.

Legislation:
Migration Act 1958 (Cth), ss.5, 31, 65, 338, 357A, 359A, 360, 474
Migration Regulations 1994 (Cth), sch.2 cl.485.224, sch. 4 cl.4020

Cases cited:
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
Trivedi v Minister for Immigration and Border Protection [2014] FCAFC 42
Singh v Minister for Immigration and Border Protection [2016] FCAFC 141
Gill v Minister for Immigration and Border Protection [2015] FCCA 1

First Applicant:

KULDIP KAUR

Second Applicant:

DALBIR SINGH

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 1094 of 2016

Judgment of:

Judge Emmett

Hearing date:

30 April 2018

Date of Last Submission:

21 June 2018

Delivered at:

Sydney

Delivered on:

27 June 2018

REPRESENTATION

Counsel for the Applicant:

Mr Oliver Jones

Solicitors for the Applicant:

Adrian Joel & Co

Counsel for the Respondents:

Ms Rachel Francois

Solicitors for the Respondents:

Sparke Helmore

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1094 of 2016

KULDIP KAUR

First Applicant

DALBIR SINGH

Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Administrative Appeals Tribunal dated 6 April 2016 (“the Tribunal”), dismissing an application for review by the Tribunal of a decision of a delegate of the first respondent (“the Delegate”) made on April 2012 refusing the first applicant (“the Applicant”) a Skilled (Provisional) (Class VC) visa. The second applicant is the Applicant’s husband and his claims depend on those of the Applicant.
The Applicant, inter alia, sought a declaration that the Applicant’s visa application was invalid because it was vitiated by fraud.
Prior to considering the proceeding before this Court, these Reasons provide the relevant procedural background, a summary of the legislative framework, a summary of the decision of the Delegate, and a summary of the Tribunal’s review and decision.

Background

On 19 August 2009, the applicants arrived in Australia on Subclass 572 Student visas.
On 11 March 2011, the Applicant applied for a Skilled visa under s.65 of the Act.
On 20 February 2012, the then Department of Immigration and Citizenship contacted the Applicant by letter and invited her to comment on adverse information in relation to the application. The Applicant did not respond to that invitation.
On 18 April 2012, the Delegate refused to grant the visa on the basis that the Applicant did not satisfy the requirements of cl.485.224 of Schedule 2 of the Migration Regulations1994 (Cth) (“the Regulations”).
On 15 February 2013, the Applicant lodged an application with the then Migration Review Tribunal (“MRT”) for review of the Delegate’s decision.
On 10 April 2013, the MRT decided it did not have jurisdiction to review the Delegate’s decision as the Applicant did not lodge the application for review within the prescribed time period.
On 24 June 2015, the Department decided that the Applicant was not correctly notified of the Delegate’s decision, dated 18 April 2012, and so re-notified the Applicant.
On 9 July 2015, the applicants applied to the Tribunal for review of the Delegate’s decision.
On 6 April 2016, the Tribunal handed down its decision affirming the decision of the Delegate not to grant the Applicant a Skilled visa.
On 4 May 2016, the applicants filed an application in this Court seeking judicial review of the Tribunal’s decision.

Legislative framework

Pursuant to s.65(1)(a) of the Act, if satisfied of a number of matters, the first respondent may grant a visa. Section 65(1)(b) of the Act provides that, if the first respondent is not satisfied about those matters, then the Minister must refuse to grant the visa.
Section 31(1) of the Act provides that there are to be prescribed classes of visa. One class of visa is a Skilled (Provisional) (Class VC) visa.
Clause 4020 of Schedule 4 of the Regulations sets out the Public Interest Criterion in relation to whether the applicant has given or caused to be given a bogus document or information that is false or misleading in a material particular, as follows:
“(1) There is no evidence before the Minister that the applicant has given, or caused to be given, to the Minister, an officer, the Tribunal during the review of a Part 5-reviewable decision, a relevant assessing authority or a Medical Officer of the Commonwealth, a bogus document or information that is false or misleading in a material particular in relation to:
(a) the application for the visa; or
(b) a visa that the applicant held in the period of 12 months before the application was made.
(2) The Minister is satisfied that during the period:
(a) starting 3 years before the application was made; and (b) ending when the Minister makes a decision to grant or refuse to grant the visa;
the applicant and each member of the family unit of the applicant has not been refused a visa because of a failure to satisfy the criteria in subclause (1).
(2AA) However, subclause (2) does not apply to the applicant if, at the time the application for the refused visa was made, the applicant was under 18.
(2A) The applicant satisfies the Minister as to the applicant's identity.
(2B) The Minister is satisfied that during the period:
(a) starting 10 years before the application was made; and
(b) ending when the Minister makes a decision to grant or refuse to grant the visa;
neither the applicant, nor any member of the family unit of the applicant, has been refused a visa because of a failure to satisfy the criteria in subclause (2A).
(2BA) However, subclause (2B) does not apply to the applicant if, at the time the application for the refused visa was made, the applicant was under 18.
(3) To avoid doubt, subclauses (1) and (2) apply whether or not the Minister became aware of the bogus document or information that is false or misleading in a material particular because of information given by the applicant.
(4) The Minister may waive the requirements of any or all of paragraphs (1)(a) or (b) and subclause (2) if satisfied that:
(a) compelling circumstances that affect the interests of Australia; or
(b) compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen;
justify the granting of the visa.
(5) In this clause:
information that is false or misleading in a material particular means information that is:
(a) false or misleading at the time it is given; and
(b) relevant to any of the criteria the Minister may consider when making a decision on an application, whether or not the decision is made because of that information.
Bogus document is defined in s.5(1) of the Act, as follows:
“ “Bogus document”, in relation to a person, means a document that the Minister reasonably suspects is a document that:
(a) purports to have been, but was not, issued in respect of the person; or
(b) is counterfeit or has been altered by a person who does not have authority to do so; or
(c) was obtained because of a false or misleading statement, whether or not made knowingly.”
Under s.338 of the Act, a decision to refuse to grant a Skilled visa is a decision which may be reviewed by the second respondent.
The requirements of the natural justice hearing rule are exhaustively stated in Division 5 of Part 5 of the Act (s.357A of the Act). Division 5 Part 5 includes ss.359A and 360, which provide that:
“359A Information and invitation given in writing by Tribunal
(1) Subject to subsections (2) and (3), the Tribunal must:
(a) give to the Applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review.
360 Tribunal must invite Applicant to appear
(1) The Tribunal must invite the Applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.”
Under s.474(2) of the Act, a decision of the second respondent is a “privative clause decision”. Under s.474(1)(a) of the Act, a privative clause decision is final and conclusive.
However, a purported decision of the second respondent which is affected by jurisdictional error is not a decision which is made under the Act and therefore is not a privative clause decision (see Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476).

The Delegate’s decision

In making their decision the Delegate took into account the relevant legislation contained in the Act and Regulations; information contained in the Department’s Procedures Advice Manual 3; various documents and information provided by the Applicant, and other relevant information held on Departmental files. The Delegate also noted that Public Interest Criterion 4020 (“PIC 4020”) was considered.
The Delegate noted that 20 February 2012, the following adverse information was given to the applicant for comment:
“It is alleged that you lodged your 485 application with the assistance of a business known as S & S Migration, who have been found to have lodged applications to the Department containing false and misleading information.”
The Delegate noted that the Applicant had provided a reference that indicated she had obtained a successful skills assessment by the Trades Recognition Australia (“TRA”). The Delegate noted that the TRA did not have any record of ever providing the Applicant with a skills assessment.
The Delegate concluded that the Applicant had provided false and misleading information in her application and therefore did not meet the requirements of PIC 4020.
The Delegate also assessed whether any other person included in the visa application could satisfy the primary criteria specified for each of the subclasses within the Skilled visa class.
The Delegate was not satisfied that either applicant was able to satisfy the primary criteria specified in the Regulations for the grant of any of the visa subclasses contained in the Skilled visa class.
On 18 April 2012, the Delegate refused the applicants’ application for Skilled visas on the basis that the applicants did not meet the legal requirements that were specified in the Act and the Regulations.

The Tribunal’s review and decision

On 9 July 2015, the applicants’ representative lodged an application on behalf of the applicants for review of the Delegate’s decision by the Tribunal.
On 29 October 2015, the Tribunal wrote to the applicants’ representative, informing him that the Tribunal had considered the material before it but was unable to make a favourable decision on that material alone.
On 22 March 2016, the Applicant and her representative attended the hearing and gave evidence.
During the hearing the Tribunal agreed to defer any decision until after close of business on 5 April 2016 to allow the Applicant’s representative time to provide any further evidence.
On April 6 2016, the Applicant’s representative wrote to the Tribunal by email and attached two declarations.
During the hearing the Tribunal considered the pre-hearing submissions made by the Applicant’s representative. The Tribunal noted that the submissions “drew a long bow”. The Tribunal stated that “the fact that fraud was involved with the visa application does not prevent the tribunal from reviewing the primary decision”.
The Tribunal identified the question before it as being whether or not the Applicant met PIC 4020 as required by cl.485.224 of Schedule 2 of the Regulations for the grant of the Skilled visa.
The Tribunal considered whether the Applicant had given, or caused to be given, a bogus document or information that is false or misleading in a material particular.
The Tribunal made the following relevant findings of fact:
a)The Applicant’s visa application provided a TRA, suggesting that she had a successful skills assessment.
b)The Trades Recognition Australia has no record of providing the Applicant with the particular skills assessment.
c)The Applicant stated that she was unaware of the actions of S&S Migration.
d)The Applicant stated that she was an innocent victim of fraud.
e)The Applicant gave evidence that she dealt with a man named Jatinder Singh, whom she understood to be associated with S&S Migration. At her flatmate’s advice, the Applicant contacted Jatinder Singh who told her she would be eligible for a visa with full work rights for two years.
f)The Applicant never travelled to Melbourne and has never met Mr Jatinder Singh in person.
g)The Applicant transferred $2500 into an account number given to her by Mr Jatinder Singh. The transfer of this money was in consideration for Mr Jatinder's assistance in helping the Applicant obtain a visa.
h)The arrangement between the Applicant and Mr Jatinder Singh of S&S is an agency relationship, although there is no evidence that there was ever a signed service agreement or retainer.
i)The Applicant paid Mr Jatinder Singh $2500 for S&S to provide migration services which enlivened an agency arrangement.
j)Implied in the Applicant’s evidence is that she did not authorise S&S Migration to commit fraud on her behalf, with the inference being that the actions of S&S Migration went beyond any agency arrangement.
k)The Applicant engaged S&S Migration for assistance with obtaining a visa.
l)The agent acted within the scope of his authority.
m)The Applicant had "caused" the process of making the application for the visa, which extended to the giving of false and misleading information.
The Tribunal was mindful of that fact that PIC 4020 did not require the Applicant to have perpetrated or have been aware of the false and misleading information (see Trivedi v Minister for Immigration and Border Protection [2014] FCAFC 42).
The Tribunal accepted the Applicant’s evidence that her flatmate advised her to contact Mr Jatinder Singh of S&S Migration who told her she should be eligible for a visa with full work rights for two years.
The Tribunal found on the evidence and material before it, that by the Applicant engaging S&S Migration to act on her behalf for the visa which is the subject of review, the Applicant had given or caused to be given information that was false or misleading in a material particular in relation to that visa application.
The Tribunal considered whether the PIC 4020(1) should be waived. In doing so, the Tribunal considered whether there were compelling circumstances that affected the interests of Australia, or whether there were compassionate or compelling circumstances that affected the interests of an Australian citizen, Australian permanent resident, or an eligible New Zealand citizen, which may justify the granting of the visa.
The Tribunal noted that the Applicant was unable to identify any Australian citizens, Australian permanent residents, or eligible New Zealand citizens whose interests would be affected by the matter. The Tribunal noted the two statutory declarations received post-hearing which detailed the second applicant’s ill health as well as the Applicant’s pregnancy through in vitro fertilisation. The Tribunal was not persuaded that the statutory declarations constituted compassionate or compelling circumstances which would affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen.
The Tribunal found that the applicant did not satisfy PIC 4020 for the purposes of cl.485.224 of Schedule 2 of the Regulations. The Tribunal further noted that there was nothing before it to suggest that the applicant could satisfy the requirements for a Subclass 487 visa, being a subclass of the Class VC visa.
Accordingly, on 6 April 2016, the Tribunal affirmed the decision under review, refusing the applicants Skilled visas.

The proceeding before this Court

The Applicant was represented by Mr Oliver Jones, of counsel. Mr Jones confirmed that the Applicant relied on Ground 1 only of the Amended Application filed on 26 March 2018 and no longer pressed Ground 2 of that Amended Application.
Ground 1 is as follows:
“1. The Tribunal made a jurisdictional error as it had no jurisdiction in the proceeding on the ground that the original application for the visa was not valid as it was vitiated by the fraud of a third party.”
The applicants also seek a declaration that the original application for the visa was invalid for third party fraud.
The only issue in this proceeding is a factual question as to whether the Applicant was indifferent to (or complicit in) the fraud committed by her then migration agent to try and obtain a visa, or whether the Applicant was also the victim of a fraud by the migration agent.
It is common ground that if the Court finds that the Applicant was not indifferent to, or complicit in the fraud to try and obtain the visa, then the Minister accepts that the applicants are entitled to the relief they seek (see Singh v Minister for Immigration and Border Protection [2016] FCAFC 141 at [14] (“Singh”)).
The applicants relied on an Affidavit of the Applicant sworn 26 March 2018, which was in the following terms:
“l. I am the First Applicant in these proceedings.
2. In 2011, I contacted by telephone Mr Jatinder Singh of S&S Migration in Melbourne.
3. I believed Mr Singh to be a migration agent.
4. Mr Singh told me I would be eligible for a visa with full work rights for two years.
5. I did not ever meet Mr Singh in person.
6. I transferred $2500 to an account number given to me by Mr Singh.
7. This was payment for Mr Singh's assistance in obtaining the visa.
8. I was not aware of the contents of the visa application which Mr Singh lodged on my behalf.
9. I did not know that the application contained a false TRA assessment.
10. I am an honest person. I did not want dishonesty in my visa application. I did not authorise and would never have authorised Mr Singh to make false statements on my behalf.
11. I intend to apply for another visa if l am successful in this case.”
The Applicant was cross examined by counsel for the first respondent.
In the course of cross examination, it was put to the Applicant that she did not care how she got the visa to remain in Australia, in that it did not matter how it was obtained, she just wished to remain in Australia. The Applicant said that she did not understand and wished to study further. It was then put to the Applicant by counsel for the first respondent that she could have continued to study on the visa that she had for a further year, but that the Applicant had wanted to work, and that that was why she wanted a new visa. The Applicant doggedly refused to concede that she had applied for the new visa so that she could have work rights and no longer had to finish her one year of study. Further, every time the Applicant was concerned that any concession that she may make would not assist her, she would repeat that she did not know her migration agent was going to cheat her and that no one gave her good advice.
The Applicant’s evidence in relation to her engaging the migration agent was that her roommate suggested that she apply for the work visa and that if she gave her roommate a copy of her passport, he would provide that to the migration agent whom he recommended. The Applicant said that she spoke only once to the migration agent and did nothing else.

The Applicant was cross examined for almost two hours. The impression that I formed was that the Applicant is an educated, intelligent woman. She was able to answer responsively and succinctly any question that she felt was either innocuous or in her interests. However, whenever any matter was put to the Applicant, the answer to which she thought may not assist her, the Applicant became unresponsive, obtuse and obfuscating in her answers.
In relation to a subpoena issued by the first respondent to the Applicant seeking, inter alia, evidence of all payments made to the Applicant’s migration agent, copies of all text messages between the Applicant and the migration agent, copies of all emails between the Applicant and the migration agent, and copies of all communications between the Applicant and any person in the period between August 2009 and March 2011 in relation to obtaining a visa to remain in Australia, the Applicant produced no documents at all. The Applicant said she had nothing to produce by way of evidence of payments made to her migration agent. The following cross examination then took place in relation to that subpoena:
“MS FRANCOIS: Item number 2 in the schedule that was sought that you provide to the court was evidence of all payments made to S and S Migration by or on your behalf. And you didn’t produce anything.
THE INTERPRETER: Because we don’t have anything.
MS FRANCOIS: You say that you transferred the money to him. That suggests you made the transfer through a bank.
THE INTERPRETER: Yes.
MS FRANCOIS: Did you ask your bank for records of the transfer?
THE INTERPRETER: No. That has been a long time ago, and that account has been closed. It was the ANZ account.
MS FRANCOIS: So you didn’t ask the ANZ if they still had records.
THE INTERPRETER: No because I put cash in that account.
MS FRANCOIS: But if you put cash – are you saying you didn’t transfer, that you took money out of your account and physically deposited cash into the S and S Migration account?
THE INTERPRETER: Yes. I had – yes, we had his account number and we put the money in his account.
MS FRANCOIS: Well, when you say you transferred $2500 “to an account number given to me by Mr Singh”, how did you do that?
THE INTERPRETER: You mean, how I put it in that account?
MS FRANCOIS: Well, you’ve used the word “transferred”. Do you understand what that word means?
THE INTERPRETER: Yes. It’s like just taking and putting it somewhere – account.
[…]
MS FRANCOIS: Okay. So you know that in your affidavit of 26 March 2018 you say you transferred 2500 “to an account number given to me by Mr Singh”.
THE INTERPRETER: Yes.
MS FRANCOIS: And you say what you understood by “transferred” was that you physically went to a bank, took cash out, and put it into another account; is that right?
THE INTERPRETER: Yes.
MS FRANCOIS: And do you understand that that would leave a trace in your account of that money coming out when you withdrew the cash?
THE INTERPRETER: I – I think I withdrew some amount, and I had some cash at home, so I put that amount in the other account.
MS FRANCOIS: So - - -
THE INTERPRETER: It has been a long time.
MS FRANCOIS: So there would have been, still, a record on the day of some cash coming out of your account that you say you put into the account number given to you by Mr Singh.
THE INTERPRETER: Yes.
MS FRANCOIS: And did you ask your bank for your records to show that you had taken that money out on that day?
THE INTERPRETER: Yes. My account has been closed and it’s in Brisbane. It has been a while. I didn’t ask.”
Again and again, the Applicant demonstrated herself to be a person whose testimony is totally unreliable. In the circumstances, I do not accept any of the Applicant’s evidence that is not otherwise supported by the documents. Accordingly, I do not accept that the Applicant transferred $2,500 to an account number given to her by her migration agent. I do not accept that she is an honest person who did not want dishonesty in her visa application. I do not accept that she would never have authorised the migration agent to make false statements on her behalf.
It is common ground that the Applicant did not know that the application contained a false TRA assessment. The question before the Court is whether or not the Applicant, by her conduct, engaged in wilful blindness such that the Applicant could be said to have been complicit or involved in the fraud of the migration agent. I accept that is a very high threshold. However, having regard to the Applicant’s complete lack of interest, involvement or engagement in the visa application; and having regard to her education and intelligence, I am satisfied that the Applicant demonstrated wilful blindness in relation to the conduct of the migration agent.
I am satisfied that the Applicant would have authorised the migration agent to do whatever was necessary, including by dishonest means, to obtain the visa for which she applied. I do not accept that had she known about the false TRA assessment, the Applicant would have declined to authorise the application containing that false TRA assessment. Further, the Applicant knew that the Department did not have her correct email address.
In the circumstances, I find that the Applicant did not engage with the 485 visa application process. On the evidence before me I am satisfied the Applicant was indifferent to the means by which her migration agent procured her visa for her. I do not accept that she was a victim of fraud by her migration agent. As stated above I find the Applicant was indifferent as to whether her migration agent used unlawful and dishonest means to obtain a visa (see Gill v Minister for Immigration and Border Protection [2015] FCCA 1 at [48-51] as per Kenny, Griffiths and Mortimer JJ).
In Singh at [52], Kenny, Griffiths and Mortimer JJ identified factors to be considered by a court in an application for declaratory relief. They include the following:
(i)Whether the evidence justifies the making of relevant and necessary findings of facts relating to such matters as the validity of the visa application;
(ii)Whether an applicant for a visa has been the victim of fraud;
(iii)Whether that fraud stultified some relevant aspect of the decision making process in relation to the consideration of the visa application.
In the case before this Court, as stated above, relevant and factual findings have been made as to the Applicant’s indifference to any dishonesty by her migration agent in obtaining a visa. Based on the evidence before me, I am satisfied that the Applicant was not the victim of non-complicitous fraud and that the Tribunal’s decision making process has not been stultified.
Counsel for the applicants conceded that in the event I made such findings, that the Applicant could not succeed in the relief she claimed.
The Tribunal found that the arrangement between the Applicant and the migration agent was an agency relationship for the purposes of the visa application. The Tribunal found that the Applicant paid a fee of $2,500 to the migration agent. The Tribunal found that the migration agent acted within the scope of his authority and that the Applicant had caused the process of making the application for the visa, which extended to the giving of false and misleading information.
The Tribunal found on the evidence before it that by engaging the migration agent to act on her behalf for the visa the subject of the review, the Applicant gave or caused to be given information that was false or misleading in the material particular in relation to the visa application.
The Tribunal found that the provision of false details in the visa application form (being that a skills assessment had been obtained) is relevant to the time of decision criterion that the Applicant’s skills must be assessed as suitable by a relevant assessing authority for the nominated skilled occupation. In the circumstances, having regard to the false TRA, the Tribunal found that PIC 4020(1) was not satisfied.
The Tribunal then considered whether the requirements of PIC 4020(1) should be waived. The Tribunal did not accept that there was anything about the Applicant’s personal background that gave rise to compelling circumstances affecting the interests of Australia and found that there were neither compassionate nor compelling circumstances such that PIC 4020(1) should be waived.
The Tribunal then concluded that the Applicant did not satisfy PIC 4020 for the purposes of cl.485.224 of Schedule 2 of the Regulations and, accordingly, affirmed the decision under review.
In the circumstances, the Tribunal’s findings were open to it on the evidence and material before it and for the reasons it gave.
Accordingly, the original application for the visa was a valid application and was not vitiated by the fraud of a third party.
In the circumstances, the Tribunal’s decision was not affected by jurisdictional error and the proceeding before this Court should be dismissed with costs.

Conclusion

A fair reading of the Tribunal’s decision record makes clear that the Tribunal understood the claims being made by the applicants; explored those claims with the Applicant and her migration agent at a hearing; and, had regard to all material provided in support, including post hearing submissions by the migration agent. The Tribunal put to the Applicant matters of concern it had about her evidence and noted the Applicant’s responses.
The Tribunal then made findings based on the evidence and material before it. Those findings of fact were open to the Tribunal on the evidence and material before it and for the reasons it gave. A fair reading of the Tribunal’s decision record makes clear that the Tribunal reached conclusions based on the findings made by it and to which it applied the correct law.
In the circumstances, the Tribunal complied with its obligations under the statutory regime in the making of its decision, including the conduct of its review.
Accordingly, the Tribunal’s decision that the visa application was a valid application is not affected by jurisdictional error and the relief sought should be refused.
The proceeding before this Court should be dismissed with costs.

I certify that the preceding seventy-five (75) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Associate:

Date: 27 June 2018