KAUR v Minister for Immigration

[2016] FCCA 2942

FEDERAL CIRCUIT COURT OF AUSTRALIA

KAUR & ORS v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 2942

Catchwords:
MIGRATION – Application for judicial review – no matters of principle – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.98

First Applicant: HARPREET KAUR

Second Applicant: ARWINDER KAUR

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: 11 October 2016

Date of Last Submission: 11 October 2016

Delivered at: Melbourne

Delivered on: 11 October 2016

REPRESENTATION

The Applicant  appeared In Person

Counsel for the Respondents: Mr Reilly

Solicitors for the Respondents: DLA Piper

ORDERS

1. The name of the Second Respondent be amended to the ‘Administrative Appeals Tribunal’.

2. The Application for judicial review be dismissed.

3. The First and Second Applicants pay the First Respondent’s costs of the proceeding fixed in the sum of $6,385.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2381 of 2014

HARPREET KAUR

Applicant

ARWINDER KAUR

Applicant

ANGEL PREET KAUR

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Delivered extempore)

1. This is an application for judicial review of a decision of the Migration Review Tribunal (the “Tribunal”) (as it then was) made on 30 October 2014.

2. The applicant attended upon the now infamous S & S Migration organisation to seek assistance in applying for a visa.  As the applicant told the Tribunal, the person she spoke to charged her $1,500 and took a copy of her, her husband’s, and her daughter’s passports.  She obtained a bridging visa, but soon after discovered that the offices of

   
   

   S & S Migration were closed. 

3. The applicant said later that a friend told her that S & S Migration had been engaging in inappropriate practices, they had been closed down and many people had not obtained the visas that they thought they would receive as a result of the advice from S & S Migration.

4. The difficulty that the applicant, and so many others like her, have suffered is that section 98 of the Migration Act 1958 (“the Act”) provides:

   A non-citizen who does not fill in his or her application form or passenger card is taken to do so if he or she causes it to be filled in or if it is otherwise filled in on his or her behalf.

5. It seems that the presumption in the section creates many difficulties, because in the past the Department has allowed agents to lodge applications over the internet without obtaining a signed copy of the application and scanning it and including that in the application material.  Thus there are regularly cases before the courts of persons who have engaged agents such as S & S Migration who claim to have had no knowledge of the fraud that S &S Migration were perpetrating on the Department, apparently on their behalf. 

6. In this case, the documents provided with the application to attempt to obtain a work visa were bogus documents, and as a result of section 98 the applicant was deemed to have provided them to the Minister. The result of PIC4020(1) is that from the date of the delegate’s decision there was also then a three-year ban on the applicant applying for another visa.

7. In this case, however, there is nothing to be achieved by sending the matter back to the Tribunal.  Firstly, the applicant on the true facts is not able to fulfil the visa requirements for a work visa, which means that this particular visa application was always pointless.  Secondly, the three-year ban that follows from PIC 4020 has now expired. 

8. I turn then to formally consider the grounds that the applicant sets out in her application.  Effectively, her complaint was that she engaged

   
   

   S & S Migration and she was not aware that they would engage in such activities and provide wrong information to the Department.  It seems that in substance it is a claim for merits review of the Tribunal decision, although even on the facts as she gives, it is difficult to conclude that the outcome of the Tribunal is contrary to law.  As the Tribunal said:

   15. In the applicant's case she stated at the hearing that she engaged the services of S&S Migration on in March 2011, initially to seek advice about extending her student visa. However she was advised by ‘Jeetender’ at S & S Migration that she could not get her student visa and instead that he would get her a two or three year work permit and later on she would be eligible for permanent residency. The applicant gave him a copy of her (and her husband and daughter's) passports and paid him $1500.  A few days later he gave her notice of a bridging visa being granted.  The applicant said a few months later she went to see him and his offices were closed.  She then called her friend, who had recommended S & S Migration to her in the first place, and her friend told her that they had defrauded many other students.  When asked at the hearing if she contacted the Department at this time, the applicant replied that she did not know what to do, so she did not.

   16. The Tribunal is therefore of the view that the applicant did engage S&S Migration for the purposes of obtaining a visa and that they acted on her behalf.  Although she states that she was not aware that Jeetender had applied for a subclass 485 visa on her behalf, she was aware that he was not applying for a further student visa, but for a 'work permit', and paid him money to do so.  The applicant did not check the visa application form and made no enquiries with the Department about her visa application, including after she found out the offices of S&S Migration had closed (in mid-2011). Given these circumstances, the Tribunal finds that the applicant caused the application form to be filled in within the meaning of s.98 and that the application was completed and lodged with the applicant's knowledge and consent. Further, the Tribunal finds that, in preparing and submitting the present visa application, the applicant's agent was acting within the scope of his authority. In these circumstances, the Tribunal finds that the applicant is legally responsible for the contents of her application.

   17. Therefore, on the evidence before it the Tribunal finds that the applicant has 'given or caused to be given' this false or misleading information to the Minister or a relevant officer by causing a visa application to be lodged in her name in which this information was included. (emphasis added)

9. In the circumstances, I am unable to conclude that the applicant has established a ground for judicial review of the decision of the Tribunal. Further, on the material before me, even if she had established such a ground there would be no purpose to be served in having the Tribunal make the decision again. The applicant cannot establish any entitlement to the visa, and the period of the ban under the PIC4020 has already expired.  I therefore formally refuse the current application for judicial review. 

   [Further argument ensued]

10. In this matter, the respondent has been entirely successful.  It is appropriate that costs follow the event.  The respondent seeks costs in the sum of $6,385, which is less than the scale fee. I find that this is reasonable.  I order that the applicant pay the respondent’s costs,

11. I note that under the regulations migration agents are required to hold insurance.  I suggest that the applicant obtain her own advice as to whether or not she has a cause of action to sue the insurer to recover damages as a result of these events. 

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Judge Riethmuller

Date: 15 November 2016