Kaur v Minister for Immigration

[2018] FCCA 101

FEDERAL CIRCUIT COURT OF AUSTRALIA

KAUR & ORS v MINISTER FOR IMMIGRATION [2018] FCCA 101

Catchwords:
MIGRATION – Review of administrative appeals decision – whether decision affected by jurisdictional error – jurisdictional error not established – application dismissed.

Legislation:

Migration Act 1958 (Cth)

First Applicant: HARPREET KAUR

Second Applicant: JUGSEER SINGH

Third Applicant: JASLEEN KAUR BASSI

Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

File Number: BRG 209 of 2017

Judgment of: Judge Vasta

Hearing date: 15 January 2018

Date of Last Submission: 15 January 2018

Delivered at: Brisbane

Delivered on: 15 January 2018

REPRESENTATION

The Applicants appearing on their own behalf

Counsel for the Respondent: Mr Johnson

Solicitors for the Respondent: Minter Ellison

ORDERS

1. The Application filed on 6 March 2017 be dismissed.

2. The Applicant pay the Respondent’s costs of and incidental to the application fixed in the sum of $7,328.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 209 of 2017

HARPREET KAUR

First Applicant

JUGSEER SINGH

Second Applicant

JASLEEN KAUR BASSI

Third Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Respondent

REASONS FOR JUDGMENT

(Ex tempore)

1. By application, dated 6 March 2017, the Applicant, Harpreet Kaur, asked this Court to review a decision of the Administrative Appeals Tribunal.  However, it really is a review of a decision of the delegate for the Minister. 

2. The facts of the matter are that, on 16 December 2015, the Applicant submitted an application for a temporary work visa, commonly known as a 457 visa.  That application was completed by a registered migration agent by the name of Ravinderjit Toor. 

3. In that application, on the first page, was this question:

   “If the application for sponsorship or nomination is refused or withdrawn, do you wish to withdraw your visa application.”

   The answer given is “Yes”.

   A notation is:

   “If yes, you withdraw your application, the case will be considered closed and you will forego any review rights to which you might have been entitled.  If you withdraw your application, you have paid the visa application charge.  Do you wish a refund of it?”

   Answer:  “Yes”.

   “If you include secondary applications in this application, and you withdraw your application because the application for sponsorship or nomination is refused or withdrawn, do you also wish to withdraw the secondary applications?”

   Answer:  “Yes”.

4. The application was then filled in over the next six pages, by the registered migration agent.

5. Those first few questions are very important, because the sponsorship or nomination must be made by a particular sponsor or company or employer for the Applicant.  If that application by the sponsor is refused, then the application for the visa, by the Applicant, would then be refused, obviously because there would be no approved sponsor. 

6. To have a visa refused may be seen as a bit of a “mark” against a visa Applicant, because they will then have the status of being a person who has been previously refused a visa. 

7. That is why those questions, at the beginning of the visa application form, are important.  If it is that the application by the Sponsor is refused and the applicant has answered as they have in this case, it means that there is no visa application that has been considered, and so therefore no visa application that has been refused. It also allows the Applicant to have their visa application fee refunded to them.

8. So what did happen, in due course, is that the sponsor’s application was refused.  Having regard to the sponsor’s application being refused, the Department did not consider this application because the Applicant had marked that they wanted this application to be withdrawn if the sponsor’s application had been refused.

9. The Applicant was then contacted by the Department, to say that her application had been withdrawn and that the matter was now at an end. 

10. She took some umbrage to this, and was very upset, saying that she had not given the migration agent authority to fill out the form in the way that he had.  She now claims that she did not want him to answer the “If the application for sponsorship or nomination is refused or withdrawn, do you wish to withdraw your visa application?” question in the affirmative because if she had said no, the delegate would have considered her application, though it is quite obvious that the application would have been refused.

11. That is a matter for the Applicant, but she insists that she did not give the migration agent those instructions, which then begs the question as to what else in this application she did not give proper instructions, or what else in this application is false. 

12. It would seem that if the migration agent has answered falsely to the first lot of questions, there could be absolutely no faith given as to the veracity of any of the other questions that are put in the rest of the application. 

13. Such a claim by this Applicant is also very curious, when one considers that, after submitting the application, the migration agent sent also a notification of incorrect answers.  That is a form that allows an Applicant, or their migration agent, to tell the Department that there have been some incorrect answers on the form, so that such is not counted against them, because everyone knows mistakes can be made.

14. The migration agent sent the form. It stated that the incorrect information was that, in the original application for a visa, it had said that the Applicant is located onshore at the time of the application, whereas the correct information was that the Applicant was located offshore at the time of the visa application.  The form also noted that it was a mistake made by him, the migration agent.  It is extremely telling that no other mistake was noted by the migration agent.

15. The Applicant, in her affidavit, has annexed a very curious email, sent by the migration agent, on 15 February, to the Department.  It reads as follows:

    “Dear Officer, the 457 visa application for our client, Ms Harpreet Kaur, has been withdrawn.  Neither our office or the visa application has requested the application withdrawal.  The visa applicant does not wish to withdraw this visa application.  In the account, I also noted that the documents were attached to the visa application on 12 January 2017, and 16 January 2017.  I confirm that neither our client and nor we have attached these documents.  Please contact me urgently to clarify the matter.  The passport bio-data of visa applicant is attached. 

    Regards, Ravinderjit Toor.”

16. No other explanation is given, and there is nothing more in the court book that would clarify this very odd email, but the Applicant says that this letter is proof that she did not give him those instructions and that her application ought be reinstated. 

17. Even if I did have the power to reinstate the application, the email is, for the reasons I have previously gone through, insufficient for me to be convinced that such a mistake was made.  There is no affidavit from Mr Ravinderjit Toor so that such a contention became sworn evidence.  There is no explanation as to how such a document ended up being submitted.  There is no explanation as to why it is that Mr Toor had such instructions, and acted contrary to them. 

18. It is a very unsatisfactory state of affairs and has the very strong inference of someone simply writing something for the sake of writing something so as to stay in the good books of the Applicant.

19. As I have said, this Court has jurisdiction to review the decisions made of the Administrative Appeals Tribunal and also, in respect, the decisions made by the delegate for the Minister.  However, in this case, there has been no decision made at all. 

20. The application for a visa was filed.  The application made it clear that if the sponsor’s application were refused, that that application that was filed with the Department was also taken to be withdrawn.  There has been no decision made and, therefore, there is no jurisdiction for this Court to exercise.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Judge Vasta

Date:  29 March 2018