KAUR v Minister for Immigration
[2018] FCCA 166
•31 January 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| KAUR & ORS v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 166 |
| Catchwords: MIGRATION – Application for judicial review – where migration agent engage in fraud in lodging visa application – whether applicant was ‘indifferent to agent’s conduct – whether applicant should bear responsibility for agent’s fraud – application dismissed. |
| Legislation: Migration Act 1958 (Cth), s.98 Migration Regulations 1994, cl.485.224 |
| Cases cited: Singh v Minister for Immigration and Border Protection [2016] FCAFC 141 Gill v Minister for Immigration and Border Protection [2016] FCAFC 142 |
| First Applicant: | HARPREET KAUR |
| Second Applicant: | ARWINDER SINGH |
| Third Applicant: | ANGEL PREET KAUR |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 2381 of 2014 |
| Judgment of: | Judge Riethmuller |
| Hearing date: | 24 November 2017 |
| Date of Last Submission: | 24 November 2017 |
| Delivered at: | Melbourne |
| Delivered on: | 31 January 2018 |
REPRESENTATION
| Counsel for the Applicants: | Mr Meng |
| Counsel for the First Respondent: | Mr L Brown |
| Solicitors for the First Respondent: | DLA Piper |
ORDERS
The application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 2381 of 2014
| HARPREET KAUR |
First Applicant
| ARWINDER SINGH |
Second Applicant
| ANGEL PREET KAUR |
Third Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The applicants seek a declaration that no valid visa application was made by them on 8 March 2011.
The first named applicant’s agent, S & S Migration, applied for a visa on her behalf on 8 March 2011 relying upon fraudulent documents. The other applicants are her dependents.
On 3 November that year, the applicant appointed a new agent to represent her as a result of her concerns about the fraudulent conduct of S & S Migration which she had heard of through friends and associates.
On 20 November 2012, the department sent a letter inviting the applicant to comment on information held by the department that suggested she had given false and misleading information with the original visa application, namely a fraudulent Trades Recognition Australia (“TRA”) skills assessment document.
The delegate refused the applicant’s visa application on 11 May 2012 on the basis that there was no valid TRA skills assessment and that the statement that the applicant had such an assessment was false and misleading and, therefore, contrary to Public Interest Criteria 4020. As such, the applicant did not satisfy cl.485.224 of the Migration Regulations 1994 (“the Regulations”).
The applicant applied to the Tribunal for review of the delegate’s decision on 28 May 2012. The applicant appeared before the Tribunal on 28 October 2014 where she accepted that the visa application contained false information, and alleged that a person at S & S Migration was responsible for this. As a result of the effect of s.98 of the Migration Act 1958 (“the Act”), the Tribunal concluded that the applicant was responsible for the conduct of S & S Migration. The Tribunal, therefore found that PIC4020 applied and that she was, therefore, ineligible for the visa.
The applicant sought judicial review of the Tribunal’s decision that was made in October 2014. The judicial review proceedings came before the Court in October 2016 and were dismissed on the basis that the Court did not have power to grant a declaration as to whether or not a visa application was valid, relying upon the law as it then appeared to be. Since that time, the Full Court of the Federal Court has determined that this Court has jurisdiction to grant a declaration as to the validity of the visa: see Singh v Minister for Immigration and Border Protection [2016] FCAFC 141 and Gill v Minister for Immigration and Border Protection [2016] FCAFC 142. As a result, an appeal from the first decision was allowed by consent on 16 May 2017 and the application remitted for rehearing.
This, and many similar cases, arose because the department had no system for requiring visa applicants to sign the application form. Instead, visa application forms were lodged online by agents such as S & S Migration. There is, therefore, no written evidence of the applicant confirming the contents of the visa application in the way that one would ordinarily expect with respect to an application to a government body.
The matter came on for hearing on 24 November 2017. Prior to the hearing, the Deputy Registrar, through the pro bono barristers’ panel arrangements, obtained a barrister to act pro bono for the applicant in the hearing. The applicant and her husband (the second named applicant) gave evidence before me and were cross-examined.
As the applicant seeks relief by way of a declaration, she bears the onus of proof: P W Young QC, Declaratory Orders (Butterworths, 2nd ed, 1984) 214 [2404] and Industrial Equity Ltd v G & C Consolidated Pty Ltd [1974] 2 NWLR 456.
In a case where a person engages an agent to undertake the work on their behalf, ordinarily, the civil law would fix the applicant with responsibility for the agent’s conduct as others rely upon the agents’ conduct (although the rules with respect to fraudulent agents are more complex).
Prima facie, the applicant is responsible for the application: see s.98 of the Migration Act 1958, SZGJO v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 393 at [12] and [16], and NAWZ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 199 at [16]-[18].
In cases where the relevant conduct involves the engagement of a statutory provision, such as a visa application, there is no question of reliance by the department upon the conduct of the agent, as would be the case if an agent was entering into a transaction with a third party in a civil case. The key question in administrative law is whether or not the statutory provision is properly engaged. If the agent’s conduct is fraudulent, unbeknownst to the applicant (and the applicant is not indifferent to that conduct), then the provision is not validly engaged as there has been a fraud upon the department by the agent.
In a case where a person engages an agent with general authority, it cannot be inferred from this fact alone, that a person is either consenting to or indifferent to fraud on the part of the agent. To hold otherwise would be contrary to common sense, given the large number of processes in the modern world in which a professional agent is engaged, ranging from visa applications to tax returns to planning applications and so forth. When an application is lodged on behalf of an applicant by a migration agent, it is appropriate to start from an assumption that, in the absence of any other evidence, the agent’s authority is to go no further than to conduct themselves lawfully and lawfully pursue an application for a visa of the type or general category sought by their client: see Gill v Minister for Immigration and Border Protection.
In this case, there is no longer any question that the original visa application contained a fraudulent claim to hold a TRA certification. Nor is there any dispute that in this case, the applicant cannot be entitled to the visa for which S & S Migration applied on her behalf.
I granted leave to the applicant’s counsel to amend the application in order to seek an appropriate declaration that no valid visa application had been made. Quite properly, counsel for the Minister did not oppose such an amendment.
Evidence of the Applicant
The applicant gave evidence in the witness box and was cross-examined. Much of her evidence was given directly as she has a good grasp of English, although, on some occasions, she needed the assistance of the interpreter. There was nothing about her use of the interpreter that led me to believe that she was resorting to use of the interpreter to avoid difficult questions.
In her evidence-in-chief, the applicant explained that she came to Australia to study hairdressing. She commenced her course in February 2009, but soon after (April 2009) she deferred as she was pregnant. The applicant gave birth to a child in June 2009 (the third named applicant). The applicant returned to India in March 2010 and came back to Australia in July that year after a holiday.
In March 2011, when her visa only had one month left before it expired, the applicant said she was told about S & S Migration by a girlfriend. The applicant visited S & S Migration and took with her passports, certificates, qualifications and her English language assessment. The applicant explained that she went to the reception and she was shown in to see a person who told her that he was a migration agent.
The applicant said she told the agent that she wanted to renew her student visa and he explained to her that she did not have to “fight for a student visa” as he could help her obtain a work visa for two to three years and then apply for residency. The applicant said she agreed and asked which documents she would need. The agent only required her passport at that stage (and that of her husband and child) which he photocopied and returned. The applicant said that she had to pay $1,500 which she paid to him.
The applicant said that the agent did not mention anything to her about how he would obtain the visa, but that she thought that as he was a regarded agent, he would do things lawfully. However, the applicant said that she had no contact with him after that until she eventually went back to see him and found that his office was locked. The applicant said she called a friend to ask about the situation and her friend told her that the agent had been engaged in fraud and that he had left Australia.
In the witness box, the applicant was taken to the visa application that was lodged: she said that she had never seen it before and had never signed it. At the relevant time, the Minister did not require visa applications to be signed by the person making them. The applicant said she had no knowledge of the visa category or the requirements, nor did she ever know of the TRA requirement, nor did she give any such document.
A key document in the course of events is a letter the department sent to what was believed to be the applicant’s email address on
20 February 2012. The email address was one the agent had given the department, [email protected]. The letter sought comment on information that had been provided for the visa application for a 485 visa, and clearly explained that the TRA skills assessment has been questioned. Importantly, later in the letter, it advised the applicant that she could withdraw her application at any time during processing, in the following terms:
You can withdraw your application at any stage during processing. If any applicant wishes to withdraw their application, they must advise the department in writing. This advice can include any number of applicants but must be signed by each person aged 18 years and over.
The applicant said in evidence that she had not seen this letter until her lawyer gave it to her. The applicant explained that after she had become aware of the difficulties with S & S Migration, she had attended upon a lawyer Ms Falcon, in order to obtain some assistance. Ms Falcon was not able to be called to give evidence as, sadly, she later died in a car accident. None of her files were available.
The applicant was cross-examined about the fact that the agent had not sought any documents from her and whether or not she would have believed that this visa advice was “too good to be true”. The applicant simply replied that he was a registered migration agent and that that was what he told her. She confirmed the fee was only $1,500, and explained that she had been unaware of what the fees were in India, as she said her mother had done all of the application work in India. The applicant did accept, though, that to obtain a student visa she had to provide a number of documents including qualifications, an English language assessment, passport, an enrolment certificate, and proof of financial capacity. Even in light of this, the applicant maintained that she simply trusted the agent, and that she thought in Australia people were not fraudulent.
The letter is of central relevance given that it offered the applicant an opportunity to withdraw the application. When the applicant gave evidence-in-chief, she explained that she was sent this letter by email from Ms Falcon: T12.19. Importantly, the evidence was that she had attended upon Ms Falcon because, as she put it, “we have got involved in this trouble, so what shall we do now, we have been trapped, so she advised us on that matter”: T12.
The applicant went on to explain that she saw the lawyer because the agent at S & S Migration “did a fraud with us”: T13.1. The applicant confirmed on a second occasion in examination-in-chief that the relevant letter had been given to her by Ms Falcon: T14.36. The applicant explained that Ms Falcon advised her that she had to wait for a decision from the department and that she could not apply for any other visa as she had already applied for this visa: T.33.
The applicant confirmed in cross-examination that she had received the relevant letter from Ms Falcon: T34.25. Counsel then took her to the passage in the letter advising her that there was evidence suggesting that she had provided or caused to be provided a bogus document, which she said that she remembered: T35.17.
The applicant agreed that at that point she was clearly aware that the visa application was fraudulent (T35.22) and that this was also explained to her by Ms Falcon (T35.26): however, when counsel took her to the passage that advised she could withdraw her application, the applicant said she did not remember reading that, and then maintained that she had never received a letter by email before (T37.25).
As the evidence went on, the applicant explained that Ms Falcon had read the letter from her own email and told the applicant about it, in order to explain why she was unaware of the option of withdrawing the application, reiterating later that her lawyer did not send the letter to her: T39.34. The applicant was asked about representations made to the Tribunal (at court book p.64), where she said, “I came to know that he has ruined the careers of so many students. Later, I got a letter that my application has Adverse Information, and DIBP requested me to comment on that”, the context of which is:
4. I went to see [JS] (my authorized migration agent) as I wanted to discuss something about my visa application, but to my surprise office was sealed. I found it later that he had defrauded many people and ran away.
5. I came to know that he has ruined the careers of so many students. Later, I got a letter that my application has Adverse Information, and DIBP requested me to comment on that, As I wasn’t aware of anything about what has happened with my application so I couldn’t replied to DIBP.
6. After few days I got an E-mail stating that my GSM visa has been refused. Then I applied for MRT.
The applicant was then asked about a passage of her evidence before the Tribunal member where she said that after she had attended upon
S & S Migration she later received a letter from the department with respect to the TRA assessment asking her to comment upon it. The relevant passage, which makes the evidence clear, is:
INTERPRETER: … I don’t know what documents he – he submitted or lodged. I just gave him my husband, my daughter and my passport. After a few days he gave me a visa A form. After a few months I just went to seek some other advice to his office and his office has closed. Then I conclude that he – he had done a fraud with many other students also and I received nearly one year – nearly one – one year later I received an email from Immigration Department and in that they said that a TRA assessment that I lodged, that is refused and – and they asked me to comment upon that.
MEMBER: Sorry, in the email from the department they said what exactly?
INTERPRETER: They have refused and they – they – they – they said that the document that was submitted, give your comments about those documents. Because I didn’t know anything about that application I couldn’t reply to that mail and then later on I received a letter that it – it has been refused, then I – then I was not left with anything else. I had to apply for MRT.
When asked to explain this evidence, the applicant said, “I – because I didn’t know that I have tell that exactly that my lawyer – my migration agent got a – got a email.”
After being confronted with this evidence, the applicant then became emotional but was able to continue. The applicant explained later that she had told Ms Falcon that she had not completed any study here and did not have any documents to provide to the department as requested in the letter. It was clear that the applicant was well aware of the application at this point. It is also clear that the applicant did nothing at this time, which she explained on the basis that Ms Falcon had told her, “You cannot do anything” (T45). Towards the end of her evidence, when I asked about whether she was hoping that she would simply get a good decision from the department, the applicant became evasive.
I have reflected upon the evidence of the applicant, in particular, that English is not her first language, and that these must be very stressful proceedings for her. Nonetheless, the variation in her account, particularly once her attention was drawn to the part of the letter advising that she could withdraw her application, was telling.
I do not accept that the applicant is a witness of truth in these proceedings. Whether the applicant was aware that the application was fraudulent from the outset is unclear, although given the difference in the documents that she had to provide for her student visa application, and the minimal documents sought by the agent in this case, it is difficult to conclude that she would not have been on notice that it was unlikely to be a proper application.
The fact that she later gave various versions to the Tribunal and the Court as to whether or not she received the letter from the department by email requesting her comment on the TRA assessment claim is particularly damaging to her credibility. It is clear that by the time the applicant was attending upon Ms Falcon she was aware that there was a fraudulent claim that had been lodged.
On the balance of probabilities, I am persuaded that the applicant did receive a copy of the relevant letter, and was aware of its contents. The applicant was therefore aware that she could withdraw the application at any time. On the state of the applicant’s evidence, I am persuaded that she chose not to withdraw the application, but rather to take the course of waiting to see whether or not she was lucky enough to obtain a visa. At this point, at the very least, the applicant was indifferent to the fraud that had been committed upon the department.
The applicant’s partner Mr Singh also gave evidence. There is little in his evidence that was helpful to the applicant or the Minister, given that he relied upon his wife to do everything to do with the visa and he said that his English was not as good as hers. Significantly, Mr Singh said that Ms Falcon had advised them that they had chances with the Tribunal that their case could return and that it depended on their luck. Mr Singh was asked to clarify whether his reference to ‘luck’ was that they may get the visa anyway, to which he responded, “Yes, that’s what she said”: T64.42. Mr Singh also confirmed that Ms Falcon had given them advice that the visa that was lodged was “a fake”: T68.42.
As a result, I am not persuaded to accept the applicant’s evidence. I do not accept that she is a witness of truth. I am therefore not persuaded that the applicant has established the threshold requirements that she had no knowledge of and was not indifferent to fraud on the part of the agent. In any event, it is apparent from the evidence that the applicant and her husband did not choose to withdraw the visa application once they were aware that the fraudulent application had been lodged. In these circumstances, they must be taken to be indifferent to the fraud as they were content for the application to continue and hoped to obtain any relevant benefit from it.
In the circumstances, I therefore dismiss the application.
I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of Judge Riethmuller
Associate:
Date: 31 January 2018
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