KAUR v Minister for Immigration

[2017] FCCA 3167

FEDERAL CIRCUIT COURT OF AUSTRALIA

KAUR & ANOR v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 3167

Catchwords:
MIGRATION – Where migration agent engaged 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

Cases cited:

Singh v Minister for Immigration and Border Protection [2016] FCAFC 141

Gill v Minister for Immigration and Border Protection [2016] FCAFC 142

Industrial Equity Ltd v G & C Consolidated Pty Ltd [1974] 2 NSWLR 456
SZGJO v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 393
NAWZ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 199

First Applicant: JAGWANT KAUR

Second Applicant: BEANT SINGH

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 147 of 2015

Judgment of: Judge Riethmuller

Hearing date: 11 October 2017

Date of Last Submission: 11 October 2017

Delivered at: Melbourne

Delivered on: 18 December 2017

REPRESENTATION

Counsel for the Applicants: Mr Chan

Solicitors for the Applicants: VSTAR Lawyers and Consultants

Counsel for the Respondents: Mr Brown

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The application be dismissed.

2. The Applicants pay the First Respondent’s costs fixed in the sum of $7,206.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 147 of 2015

JAGWANT KAUR

First Applicant

BEANT SINGH

Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicants seek a declaration that no valid visa application had been made by the first applicant for a Skilled Graduate (Temporary) (Class VC, Subclass 485) visa on 16 February 2011 under application ID 1455539985.

2. In matters such as this, the Court has jurisdiction to determine whether or not to make a declaration as sought:  see Singh v Minister for Immigration and Border Protection [2016] FCAFC 141 and Gill v Minister for Immigration and Border Protection [2016] FCAFC 142.

3. The applicants bear the onus of proof on the balance of probabilities in order to obtain the declaration: P W Young QC, Declaratory Orders (Butterworths, 2^nd ed, 1984) 214 [2404] and Industrial Equity Ltd v G & C Consolidated Pty Ltd [1974] 2 NSWLR 456.

4. Ordinarily a person is responsible for acts committed by their agent.  The ordinary common law rules do not govern administrative law proceedings because a fraudulent act of an agent could not engage in the statutory provisions.  Unlike the common law cases, where a third party relies upon the agent’s apparent authority, there is no reliance of a third party involved in determining whether a statutory provision has been engaged: see generally Gill.

5. In cases where the circumstances go no further than providing general instructions to a migration agent, such general instructions would not indicate indifference to fraud on the part of the agent.  Put simply, in the absence of any other evidence or relevant facts or circumstances, a person’s evidence that they merely gave general instructions to a migration agent would be sufficient to satisfy their onus of proof in order to obtain a declaration that the fraudulent visa application of an agent was not a valid application by the principle.  Of course, in most cases there is other evidence that bears on the question of whether they can satisfy the court that they were not indifferent to fraud by the migration agent.  Whilst the applicant bears the legal onus, it must also be borne in mind that in a case such as the present case (where there is no question that the agent committed a fraud) it is a serious finding to reject the applicant’s evidence and conclude that the applicant was indifferent to fraud.

6. The first applicant had been in Australia on a student visa and carried out vocational training.  When the student visa was coming to an end, she attended upon S & S Migration, where she spoke to a person who described themselves as a “education consultant.”  She explained that her student visa was due to expire.  She said that she would like to undertake further studies in Australia and asked about what visas she may be able to obtain to enable her to continue to study in Australia.

7. She said that she provided her passport and $2,000.00 as a consultation fee, together with her husband’s passport (the second respondent).  The agent took photocopies of both passports.  She said that the agent did not give any advice as to the type of visa or criteria for visas at that time.  She said in evidence that, the next day she attended upon the agent again and he advised that he had already made application for the visa on her behalf.  She said that she was shocked by this, however, took no further steps.

8. On 2 March 2011, the agent rang her on her mobile telephone to advise that a bridging visa had been granted and that she was able to complete her studies and work once her student visa had expired.  At the same time, she received an email advising that a bridging visa had issued as a result of the receipt by the Department of a “work visa” application.  She said she thought nothing of the description of the visa application as being a “work visa” application, even though she had attended upon the agent to obtain a student visa. 

9. She said she attended upon the agent again and was advised that he had applied for a work visa on her behalf and that she was able to undertake further studies and work in Australia once her student visa expired.  She said he also advised that she was not required to provide further documents at this stage and that, once she had completed her studies and gained some relevant experience, she could provide further documents as requested.

10. The applicant said that, in April 2011, she attended upon the agent again and provided him with a copy of her Certificate III in Graphic Pre-press and Certificate IV in Business and Diploma of Business Management.  She heard nothing from him for a few months and tried to contact him by telephone and email to seek information about the progress of her visa application.  She said that she received no reply.

11. The applicant then visited the offices of S & S Migration and was advised that the agent was overseas, following which she received a text message from him saying that he was in India and would contact her upon his return.  She said that she received no further contact from him and therefore visited his offices in late 2011, only to find that the S & S Migration office was closed.

12. In her affidavit, she said she then contacted the Department to provide her correct contact details: a copy of that email and forms appears in the Court Book.  In that email of 22 March 2012 (Court Book p.30 and following), the applicant advised the Department as follows:

    My previous email address is no more working due to some hacked the email.

13. On the applicant’s evidence before me, this sentence was a lie, in that the previous email address had been generated by the agent and operated by the agent, never the applicant.  The applicant could provide no explanation as to why she would include such a statement in her email to the Department, save that she was scared and confused.  Such a statement is consistent with a desire to avoid mentioning to the Department that S & S Migration had assisted her with lodging her migration application.

14. In the attached ‘Change of address and/or passport details’ form, she set out that she had applied online (which was the case for the application made by her agent) and she described the type of application not as a student visa, but “other” and in the description box “485”.  She said in evidence that she had discovered that it was a 485 visa that the agent had applied for because she had telephoned the Department prior to writing the email, however she did not include that evidence in her affidavit.

15. On 30 March 2012, an officer of the Department wrote to the applicant alerting her to a statement in the application (that she had obtained a Trades Recognition Australia skills assessment) and that the relevant Trades Recognition authority had advised that there was no record of providing such a skills assessment.  Therefore, it was alleged that she had provided false or misleading information to the Department in relation to her application for a 485 visa.  Importantly, towards the end of the letter, the following appeared:

    Withdrawing your application

    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.

16. The applicant did not respond to this letter, nor did she withdraw her application.  Again, her explanation was simply that she was stressed and scared and did not know what to do. 

17. Not surprisingly, a delegate then dismissed the application and made a finding that a bogus document had been provided.  The applicant then applied to the Administrative Appeals Tribunal (“the Tribunal”) for review of the delegate’s decision.  In making this application, the applicant obtained the assistance of another migration agent, who prepared a letter for her, which she signed (Court Book p.76).  The letter was provided to the Tribunal on 22 April 2014.  In the letter, the applicant said that S & S Migration had:

    …advised that I was eligible to lodge a subclass visa application which will allow me to stay for 18 months once granted in which I can gain my proffesional experience.

18. In cross-examination, the applicant agreed that this was untrue and stated that it was only included because she was advised to make this statement by the migration agent then acting for her. 

19. The letter also stated that:

    All education documents requested by my agent S & S Migration were provided to them.  The agent advised me that he needs them for assessment and charged me with fee of $2000 for assessment.(Receipt attached) I was surprised when next day i went to nhim and he told me that my visa application is lodged. 

20. This appears inconsistent with her evidence with respect to not having provided any educational documents initially to the agent, although maybe explicable by misunderstandings between her and the subsequent agent in preparing this letter.

21. I also note that, in this letter, the applicant sets out that:

    I never gave any authority to my agent to put any information in my file.  Everything was done by him without my notice I truly understand that if we engage any agent then we can be held responsible for any information he provides in application we never gave him any information and everything was done by him even without informing us.

22. It appears remarkable that the applicant openly acknowledges that she is responsible for the conduct of the agent, yet earlier in the letter has set out a falsehood with respect to the interview that she had with the S & S Migration agent who has acted fraudulently in this application.

23. When assessing the credibility of the applicant’s evidence, I have also had regard to her presentation in the witness box.  In giving answers to difficult questions, she was often evasive, not accepting any responsibility for her conduct, and portraying herself as someone acting always upon advice of others, whether it be agents or friends.  I found the applicant unimpressive as a witness in the manner in which she gave evidence.  However, I am also mindful of the fact that English is not her first language and that cultural differences can sometimes impact upon the impression one obtains from witnesses in the witness box and, therefore, I turn to also carefully consider the nature of the evidence that she gave.

24. The evidence that she instructed the agent to obtain a student visa and paid $2,000.00 to him without discussing any topic or subject for study, nor any potential cost for study (that may have been beyond her reach), nor any institution, seems to me to be remarkable.  Whilst I would not expect that there would necessarily be any detailed discussions, it is difficult to accept that there would not have been some degree of discussion about at least the subject of study and the level or cost involved, even if it were only to identify the preferences of the applicant, particularly when she was engaging the agent and paying $2,000.00 to obtain advice.

25. As set out above, her evidence is that she did not provide study documents at the earlier stages, yet the letter of 22 April 2014 says that she did provide those documents.  Although, as referred to above, this may be the result of some slippage of communication between her and the subsequent agent. 

26. When the applicant received the letter from the Department prior to the delegate’s decision, setting out the fraud allegation, she did not respond to it.  This must be seen in the context of her oral evidence that, prior to receiving this letter, she had attended upon another migration agent and says that she had been told that they would not give her advice as S & S Migration were acting for her.  The evidence of this attendance upon another agent is not contained within her affidavit and arose only when she was pressed during cross-examination. 

27. The step that she had previously taken in her email of 22 March 2012 to change her email address with the Department once she was aware that there were difficulties with S & S Migration, tells against her explaining her position of taking no steps when she received the letter from the Department setting out the alleged fraud.  She could easily have responded at that point by advising that she was unaware that such documents had been provided and that it must have been the fraudulent conduct of her agent.

28. Indeed, an even simpler option was open to the applicant.  The letter from the Department provided her an opportunity to withdraw the application that had been made on her behalf by the agent; however she did not take up that opportunity.

29. In her letter of 22 April 2014, the first paragraph is clearly untrue, which she explains only on the basis that the subsequent migration agent advised her to say such things.  This tells seriously against her credibility.

30. When she changed her email address by notifying the Department on 22 March 2012, she lied with respect to the previous email address and it having been hacked.  She could provide no purpose for that lie, other than to blame a friend who suggested that she tell such a lie.  As put during addresses, it is difficult to see that there is any rational purpose for such a lie, other than to avoid disclosing that S & S Migration had been involved in her case.  Whilst counsel hypothesised that, perhaps, this was because she had heard that S & S Migration had been engaged in frauds, she did not give evidence to that effect.

31. In the form that she enclosed with the email to change her address, she referred to a 485 visa and did not say on that form that she had a student visa.  Her only explanation for having this knowledge at that point is a claim that she had telephoned the Department before providing the email, such evidence not having appeared in her affidavit, but only set out during the course of cross-examination to explain the reference to the visa type in the form.

32. The attempts to obtain advice from an alternative agent were not set out in her affidavit material and, again, only disclosed in cross-examination when taxed with difficult evidence. 

33. Viewing the evidence as a whole, I do not accept the applicant as a witness of truth.  I am not prepared to accept her evidence.

34. On the evidence before me, the application was lodged by S & S Migration on the applicant’s behalf. 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].

35. 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: Gill v Minister for Immigration and Border Protection [2016] FCAFC 142, [46]-[49]. In this case, however, the evidence does go further.

36. The evidence with respect to the instructions she gave to the agent was so lacking in detail as to the nature of the studies that she wished to pursue that, even if it were true, the evidence is indicative of an indifference as to how the visa was obtained.  The complete absence of detail indicates a lack of genuineness in seeking a student visa. 

37. The evidence in the email to the Department to change the email address contains a lie, the purpose of which appears to be to conceal the identity of the agent who lodged the form on the applicant’s behalf.  Further, the applicant did not advise the Department that the agent had lodged fraudulent material at the time that she had notice of it, prior to the decision of the delegate, nor withdraw the application at that point. 

38. It appears to me that this evidence indicates that the applicant was indifferent to any fraud.  Even if I am wrong in this regard, there was an opportunity for the applicant to withdraw the fraudulent application, and by failing to do so, it can be inferred that she adopted, or was indifferent to, the fraudulent application, at least from the receipt of the 30 March letter.

39. Having regard to all of these matters, I find that, on the balance of probabilities, the applicant was, at best, indifferent to the conduct of the agent, but more likely aware that the agent was engaging in fraudulent conduct to obtain a visa.

40. In the circumstances, I therefore dismiss the applicants’ application. 

41. The parties, at the end of submissions, agreed that costs should follow the event, fixed at $7,206.00.  I therefore order the applicants to pay the first respondent’s costs fixed at $7,206.00.

I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of Judge Riethmuller

Date: 18 October 2017