Kaur v Minister for Immigration
[2016] FCCA 736
•18 April 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| KAUR & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 736 |
| Catchwords: ADMINISTRATIVE LAW – Allegation that the Tribunal lacked jurisdiction because the antecedent visa application was invalid. ADMINISTRATIVE LAW – Whether fraud by visa applicant’s agent renders a visa application invalid. |
| Legislation: Migration Regulations 1994, cls.485.221 and 485.224 of sch.2, cl.4020 of sch.4 Tribunals Amalgamation Act 2015, item 15AG of sch.9 Migration Act 1958, ss.65, 69, 98, 234, 474 Migration Amendment Regulations 2011 (No 1), reg.5 and item 4 of sch.3 |
| Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 SZGME v Minister for Immigration & Citizenship (2008) 168 FCR 487 |
| First Applicant: | SUKHWINDER KAUR |
| Second Applicant: | HARWINDER SINGH |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 832 of 2014 |
| Judgment of: | Judge Cameron |
| Hearing date: | 1 March 2016 |
| Date of Last Submission: | 1 March 2016 |
| Delivered at: | Sydney |
| Delivered on: | 18 April 2016 |
REPRESENTATION
| Counsel for the Applicants: | Mr B. Mostafa |
| Solicitors for the Applicants: | Christopher Levingston & Associates |
| Counsel for the First Respondent: | Ms R. Francois |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 832 of 2014
| SUKHWINDER KAUR |
First Applicant
| HARWINDER SINGH |
Second Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
INTRODUCTION
The applicants, who are citizens of India, applied for Skilled (Provisional) (Class VC) subclass 485 visas on 12 January 2011. The first applicant, Ms Kaur, was the primary visa applicant on the application whilst her husband, the second applicant, was included in the application as a member of Ms Kaur’s family unit.
A delegate of the first respondent (“Minister”) refused the applicants’ application on the basis that Ms Kaur did not meet Public Interest Criterion (“PIC”) 4020 and therefore did not satisfy cl.485.224 of sch.2 to the Migration Regulations 1994 (“Regulations”). The applicants then applied to the Migration Review Tribunal (“Tribunal”), a predecessor of the second respondent, for a review of the delegate’s decision. They were unsuccessful before the Tribunal and have applied to this Court for judicial review of the Tribunal’s decision: item 15AG of sch.9 to the Tribunals Amalgamation Act 2015.
In these judicial review proceedings the Court cannot rehear the applicants’ application for visas. Its task is to determine whether the Tribunal’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 of the Migration Act 1958 (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
For the reasons which follow, the application will be dismissed.
RELEVANT LEGISLATION
The criteria for the grant of a subclass 485 visa are set out in pt.485 of sch.2 to the Regulations. At the time the applicants lodged their visa application on 12 January 2011, cl.485.224 required, as a time of decision criterion, that the applicants satisfy a number of public interest criteria. That clause was amended on 2 April 2011 to include PIC 4020, which relevantly applied to visa applications made but not finally determined before that date: reg.5 and item 4 of sch.3 to Migration Amendment Regulations 2011 (No 1). Consequently, cl.485.224 as amended on 2 April 2011 applied to the applicants’ application at the time of the delegate’s decision on 28 March 2012. It also applied to the applicants’ application at the time of the Tribunal’s decision on 4 March 2014, notwithstanding its repeal on 23 March 2013: item 9 of sch.2 and item 1 of sch.6 to the Migration Legislation Amendment Regulation 2013 (No 1).
At all material times, PIC 4020, which is found in sch.4 of the Regulations, relevantly provided:
(1) There is no evidence before the Minister that the applicant has given, or caused to be given, to the Minister, an officer, the Migration Review Tribunal, 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) …
(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.
Section 98 of the Act provides:
Completion of visa application
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.
BACKGROUND FACTS
Application for visas and refusal
As noted earlier, the applicants’ visa application was lodged with the Minister’s department (“Department”) on 12 January 2011. According to information contained in the application form, on 25 February 2010 Ms Kaur had obtained a positive skills assessment from Trades Recognition Australia (“TRA”) in respect of her nominated occupation of “Cook”. A reference number from TRA was listed in the application form as evidence of that skills assessment.
On 20 February 2012 the Department wrote to Ms Kaur as follows:
It is alleged that your 485 application, currently under consideration by the Department, was lodged 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. Whilst you have no agent declared in your application, the Department has identified a file with your personal details and the application reference numbers in the office of S & S Migration.
In addition, as part of your application you answered ‘yes’ to the question ‘have you applied to a relevant assessing authority for an assessment of your skills for your nominated occupation?’. Further, in your application you provided the following reference indicating a successful skills assessment …. This reference was referred to TRA for verification. TRA have no record of providing you this skills assessment. TRA also have no record of ever providing you with any skills assessment. It is therefore alleged that you provided false and misleading information to the Department in relation to your application for a 485 visa.
Ms Kaur was invited to comment on this information but did not respond.
On 28 March 2012 the delegate refused the applicants’ application on the basis that Ms Kaur had provided to the Department false and misleading information about her skills assessment. The delegate noted that, as Ms Kaur had not responded to the invitation to comment, no compassionate or compelling circumstances had been raised which would justify waiving the requirements of PIC 4020(1). Consequently, the delegate found that Ms Kaur did not meet PIC 4020(1) and so did not satisfy the requirements of cl.485.224 for the grant of the visa she sought.
Tribunal review of refusal to grant visas
On 10 April 2012 the applicants applied to the Tribunal for a review of the delegate’s decision.
On 10 April 2013 the Tribunal wrote to the applicants and advised them that it had considered all the material before it but was unable to make a favourable decision on that information alone. The Tribunal invited the applicants to a hearing on 28 May 2013 to give oral evidence and present arguments. The applicants were advised that if they did not attend the scheduled hearing the Tribunal might make a decision on their application without further notice.
In written submissions received by the Tribunal on 8 May 2013, Ms Kaur alleged that she did not lodge the visa application of 12 January 2011 and did not authorise any person to make the application on her behalf. Ms Kaur submitted that absent any instructions, appointment of representative and authority to act, the 12 January 2011 application was not a valid application for the purposes of s.65 of the Act. She also stated that she did not propose to give any oral evidence in the proceedings absent any “documentation as to appointment and authority to act”.
The applicants did not appear before the Tribunal on 28 May 2013. In circumstances where the applicants had indicated that they were aware of the hearing date but chose not to attend, the Tribunal considered it appropriate to make decision on the review without taking any further action to enable the applicants to appear before it.
On 4 March 2014 the Tribunal affirmed the delegate’s decision to not grant the applicants subclass 485 visas. Turning first to Ms Kaur’s submissions, the Tribunal found that the application of 12 January 2011 had been validly made, noting that:
a)an allegation of fraud was not to be made lightly and it was up to an applicant to make out a case in respect of fraud. In the present case, although Ms Kaur asserted that she had not made the visa application or authorised anyone to do so on her behalf, she did not at any stage proffer an explanation as to how an application made in her name and containing her details came to be lodged with the Department. The Tribunal considered it implausible that an application of this nature could have been made without the applicants’ knowledge or participation and, in the circumstances, was satisfied that the applicants either made the application themselves or instructed a third party to do so for them;
b)insofar as the applicants alleged that the person who lodged the application acted without authority, given the inclusion of their details in the application form, the Tribunal found that any such agent did in fact act for the applicants and made the application on their behalf; and
c)the applicants’ denial that they had engaged an agent to lodge an application on their behalf was, in the Tribunal’s view, implausible given that the visa application had been lodged in their names and the applicants had not proffered any explanation as to how this could have happened.
Turning next to whether Ms Kaur satisfied the criteria for the grant of a subclass 485 visa, the Tribunal found that:
a)as had been admitted in their submissions, Ms Kaur did not have a valid skills assessment from TRA and, as such, she did not satisfy the requirements of cl.485.221 of sch.2 to the Regulations;
b)the information set out in the visa application form regarding the purported skills assessment undertaken by Ms Kaur was false and misleading for the purposes of PIC 4020(1) at the time it was given; and
c)as the applicants had not identified any compelling circumstances that affected the interests of Australia or compassionate or compelling circumstances that affected the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand resident, the Tribunal was not satisfied that the requirements of PIC 4020(1) should be waived.
The Tribunal therefore concluded that Ms Kaur did not satisfy PIC 4020 for the purposes of cl.485.224. The Tribunal also found that she did not satisfy cl.485.221 because she did not have a skills assessment for her nominated occupation. Consequently, she did not meet the criteria for the grant of a subclass 485 visa.
PROCEEDINGS IN THIS COURT
Only one allegation made in the amended application was pressed. It was expressed as follows:
1.The Migration Review (Tribunal) erred when it treated the application (Application) for a Skilled (Provisional) (Class VC, subclass 485) visa (Visa) as a valid application.
Particulars
a.The applicant did not authorise the lodgement of the Application.
b.A migration agent lodged the Application without the Applicant’s knowledge or authority.
c.The migration agent engaged in fraudulent conduct when lodging the Application.
d.The fraudulent conduct of the migration agent amounted to fraud committed on the Applicant and against the Commonwealth.
e.Fraudulently and without the knowledge of the Applicant, the migration agent provided false confirmation that the Applicant had obtained a successful skills assessment from Trades Recognition Australia.
f.Fraudulently and without the knowledge of the Applicant, the migration agent provided a false Trades Recognition Australia reference number for a successful skills assessment as part of the application.
g.The Applicant did not, or could not, authorise conduct on the part of the migration agent, which amounted to a criminal offence involving fraud against the Commonwealth.
h.The Application was not a valid application and was void ab initio.
Evidence
Ms Kaur deposed in an affidavit sworn on 19 February 2016:
2.In about January 2011, my visa to stay in Australia was soon going to expire. A friend of mine recommended to me that I see [the agent] about extending my visa.
3.In early January 2011, I went to [the agent’s] office to speak to him about extending my visa. Though I cannot remember the exact words of the conversation I had with him, to the best of my recollection it involved words to the following effect:
Me:I need some help to extend my visa.
Him:Ok I will extend your visa. I’m going to apply for a 485 visa for you.
Me:What is this visa?
Him:It’s a work visa. I’m going to apply. You will do work for 1 year or one and a half or two years and then I will apply for your next visa which will be a temporary residence visa.
Me:What papers do you need?
Him:Your and your husband’s passport.
4.I gave [the agent] my and my husband’s passports. I also gave him $2,500 that he asked for as his fee, my phone number… and my address …
Ms Kaur further deposed that information contained in the application form concerning her parents’ dates of birth, her purported email address and the completed portions of the “Health details” section of the form was not correct.
In her oral evidence Ms Kaur said that she was told by friends in November 2011 and January 2012 that her migration agent had acted fraudulently. She satisfied herself that what her friends had told her was true by checking her visa status online. She said that when she found out her visa application had been rejected she realised that the agent “had done something fraudulent”.
On 29 February 2012 the agent sent an email to a number of people including the applicants, saying:
Subject: Urgent
Hi.
Please send me your new contact no, your file that you asked me to lodge has opened and the department has given 28. They are investigating all files. All your working rights will finish. If you want to extend your visa and have work rights, we have to lodge MRT soon.
We don’t have much time. Please reply ASAP.
Thanks
Ms Kaur said that she had authorised the agent to lodge the visa application on her behalf, and paid him for it, but had not told him to lodge it without supporting documents and without her having seen it.
Ms Kaur said that in January 2012 she sought the advice of a second agent who subsequently represented her and her husband in their Tribunal review. In that regard, Ms Kaur said that before it was sent, she had checked the written submission dated 30 April 2013 which that agent submitted to the Tribunal in May 2013, referred to above at [13]. Amongst other things, that submission said:
The position of the applicant is as follows:
1.She did not make the application for the visa subclass·485.
2.She did not authorise any person to make the application on her behalf.
3.She did not sign the application.
4.She did not sign a form 956 to appoint a representative.
5.She did not enter into a fee agreement with the person who purported to act for her.
6.She did not undertake a skills assessment with TRA.
7.She did not authorise any person to submit any documents on her behalf in respect of an application for a visa subclass·485.
It is respectfully submitted that absent any instructions, absent an appointment of representative and absent any authority that the alleged application is not a valid application for the purposes of section 65.
Discussion
Based on the agent’s 29 February 2012 email to the applicants and the contents of the Department’s 20 February 2012 letter to the applicants, it is apparent that the agent was at least associated with the S & S Migration business.
Fraud in application?
It is also apparent, and the parties did not dispute, that the visa application form contained information which was false and misleading in the sense that some information in the application was purposely untrue. The most significant information of that sort concerned the purported TRA skills assessment relating to Ms Kaur. Section 98 of the Act makes a visa applicant responsible for the content of an application form completed on his or her behalf and PIC 4020 makes a visa applicant responsible for the veracity of the information and documents supplied to support his or her visa application. Neither provision depends on the visa applicant being knowingly complicit in the provision of purposely untrue material: SZGJO v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 393 at [12] and [16]; Trivedi v Minister for Immigration (2014) 220 FCR 169 at 179-180 [43] and [49].
Submissions
The applicants sought to avoid being imputed with having given false and misleading information about the purported skills assessment by alleging that the agent had been guilty of a fraud in connection with the visa application and arguing that his conduct and knowledge was not to be imputed to them. The applicants submitted in this connection that the visa application form’s inclusion of incorrect information concerning Ms Kaur’s parents’ birthdates and her email address was evidence that the details obtained by the agent from Ms Kaur were as limited as her affidavit stated. The burden of this part of the applicants’ submissions was, relevantly, that if the agent had fabricated those answers he must have similarly fabricated the skills assessment information provided in the application form. They submitted that it was most improbable that the errors in the visa application form could be explained by negligence or mishap on the agent’s part and observed that the negative response to the question in the visa application form “Did you receive assistance in completing this form?” was plainly false. The applicants submitted that it could be concluded from these matters that the agent had never intended to lodge a legitimate visa application for Ms Kaur.
The applicants submitted that the agent or his associates intentionally provided false information, which was an offence under s.234 of the Act, and that in doing so had acted contrary to Ms Kaur’s interests, despite her having paid $2,500 for S & S Migration’s assistance. The applicants argued that by charging Ms Kaur for the completion and lodgement of a form which he knew to be untrue, the agent had defrauded Ms Kaur.
The applicants submitted that the fraudulent nature of the agent’s conduct towards them meant that he had been acting independently, in his own interests, and not as their agent.
The Minister’s position was that the agent’s email of 29 February 2012 suggested that his clients, including the present applicants, had either not cared about the content of the visa applications he had filed for them or had known that their contents were not reliable. He also submitted that although Ms Kaur alleged she had been shocked by the agent’s fraud, she took no positive steps to do much about it beyond checking the status of her application online and then seeking a Tribunal review in the course of which she approved a submission which gave an impression very different from the one she sought to give in her evidence in this proceeding.
The Minister submitted that the evidence, not least paras.3 and 4 of Ms Kaur’s affidavit quoted earlier, compelled a conclusion that Ms Kaur had authorised the agent to make the application on her behalf with the result under s.98 that she is to be taken to have completed it. He argued that, in any event, at common law a principal is responsible for the actions of his or her agent if those actions were within the scope of the latter’s authority, even if undertaken in an unauthorised manner.
The Minister made other submissions to which I have had regard but they were not material to the outcome of this litigation and so are not set out here.
Consideration
Legal context
In general, at common law a principal will be responsible to third parties for the acts of his or her agent acting within the scope of his or her actual or ostensible authority, even if the acts are fraudulent in nature: Lloyd v Grace, Smith & Co [1912] AC 716, Colonial Mutual Life Assurance Society Ltd v Producers & Citizens Co-operative Assurance Co of Australia Ltd (1931) 46 CLR 41. In the migration law context, s.98 of the Act makes similar provision in relation to application forms and passenger cards. Consequently, a visa applicant who causes an application form to be filled in on his or her behalf is taken to have done so him or herself.
Therefore, absent other decisive considerations, if the applicants authorised the agent to complete and lodge their visa application form for them, they must bear the consequences of having given him that authority. Relevantly, those potential consequences include not meeting or being taken as not having met PIC 4020 as the delegate and the Tribunal concluded.
This proceeding concerns public law and, relevantly for this aspect of the matter, the due administration of the provisions of the Act concerning visa applications. SZFDE v Minister for Immigration & Citizenship (2007) 232 CLR 189 made it clear that the considerations which apply in public law to an allegation of fraud may be different from those which apply in other areas of the law concerned principally with the creation and protection of personal and proprietary rights. Because, as identified in SZFDE, fraud is capable of unravelling everything, if the existence of fraud is proved the applicants may be entitled to the relief sought notwithstanding their responsibility as principals for any false and misleading statements contained in the visa application form.
It is therefore necessary to determine whether the agent’s conduct or the misrepresentations in the applicants’ visa application were fraudulent and, if either or both were, what consequences follow from that.
Fraud on the applicants?
The Court is not bound by the Tribunal’s findings on whether the applicants’ visa application was tainted by fraud and, in deciding that issue, can take account of any relevant information before it: Craig v South Australia (1995) 184 CLR 163 at 176; Prodduturi v Minister for Immigration & Border Protection (2015) 144 ALD 243 at 249 [18].
In the submission to the Tribunal which Ms Kaur approved, the applicants’ then-representatives contended that Ms Kaur had had nothing to do with the lodgement of the visa application and challenged the Tribunal to provide documentary evidence that the agent had acted as the applicants’ agent in its lodgement. In this proceeding the applicants have taken a very different position. In her evidence Ms Kaur said that she had instructed the agent, and paid him, to obtain a subclass 485 visa for her and her husband but said that he had exceeded his instructions by including false information in the application he lodged. In the first of these inconsistent accounts Ms Kaur contended that the agent, or at least his business, did not act for her while in the second she contended that the agent had acted for her but had done things which she had not authorised.
Based on the information contained in the Court Book, which was exhibit 1, and on Ms Kaur’s evidence, I find that S & S Migration lodged the visa application the subject of this proceeding and that the agent was, in all probability, the principal and the directing mind of that business. I find that the agent or possibly someone acting under his direction completed and lodged the visa application form on behalf of the applicants. Consequently, as far as the applicants’ dealings with the Department are concerned, the statements in the application form are to be taken as their statements.
Although the misleading nature of the submission to the Tribunal casts a poor light on Ms Kaur’s credibility, at the hearing of this application Ms Kaur nevertheless appeared to me to give truthful evidence concerning her dealings with the agent, as far as that limited evidence relevantly went. Relevantly, it canvassed what Ms Kaur had not expressly authorised the agent to do rather than what she had forbidden him from doing, if anything. Based on that evidence, I find that Ms Kaur authorised the agent to lodge the visa application but had not expressly authorised him to complete it in the manner in which it was completed. I note in that connection that Ms Kaur did not say that she had told the agent that she wanted to see the application before it was lodged. It appears that the process by which the application form was to be completed and lodged was not discussed in any more detail than Ms Kaur recounted in paras.3 and 4 of her affidavit of 19 February 2016. I conclude from Ms Kaur’s evidence that she relied on the agent and left things to him. That is to say, he had at least implicit, actual authority to complete the visa application as he considered appropriate - although that could not authorise him to perpetuate a fraud on the applicants, a matter which will be discussed further below. I further find that the applicants were unaware before the visa application was lodged that the agent was going to include in it false and misleading information concerning a TRA skills assessment which Ms Kaur had not undertaken.
The responses in the visa application form concerning Ms Kaur’s purported TRA skills assessment are properly classified as fraudulent if they were made knowingly, without belief in their truth, or recklessly, without caring whether they were true or false: Derry v Peek (1889) 14 App Cas 337. Because I accept Ms Kaur’s evidence concerning the limited instructions she gave him, I find that the agent could have had no belief in the truth of the claim made in the visa application form to the effect that Ms Kaur had successfully undergone a TRA skills assessment. It was, therefore, a fraudulent misrepresentation. To the extent that it is necessary to identify a motive for such conduct, I infer that the agent was a swindler who tricked the applicants into paying him for a service which he did not, in substance, provide. What he provided in return for the applicants’ money was no more than a facsimile of what a migration agent should have provided, with the consequence that he was not entitled to the money he was paid.
Also significant was the fact that the application form was completed in a way which gave no hint that the agent was assisting the applicants. It gave every impression that they had completed the form themselves.
I find that the agent’s lodgement of a visa application containing a fraudulent misrepresentation concerning the skills assessment and his act of charging the applicants for that service amounted to a fraud on the applicants.
Did fraud in the application form make the application one which was not valid?
Although the applicants have proved that the agent practised a fraud on them, they have not demonstrated why such conduct made the visa application one which was not valid. The validity of an application is determined by the terms of the Act and Regulations and an application may be fraudulent but nevertheless a valid visa application: NAWZ v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 199 at [16] – [18]. The applicants have not demonstrated that the manner in which the application form was completed meant that it did not meet the formal requirements of the Act and the Regulations, which was the relevant enquiry. I am not persuaded that it was an invalid application. I find that it was valid.
Fraud on the Commonwealth?
The finding that the visa application’s validity depended on whether it met the formal requirements of the Act and the Regulations, rather than on whether it contained fraudulent misrepresentations, points to the validity of the application being a red herring and to the significance of fraud in the visa application process lying elsewhere.
As the High Court observed in SZFDE at 206 [50], to say of a law or state of affairs that it bears one legal character does not necessarily deny it a second legal character which is of decisive significance. In this case, that means that the fraud on the applicants might also have been a fraud on the departmental decision-maker who, exercising delegated Ministerial authority, refused the applicants’ visa application.
In SZFDE, the High Court limited its consideration to the dispute before it and expressly eschewed any attempt:
… to determine at large and in generally applicable terms the scope for judicial review for “third party fraud” of an earlier administrative decision (whether a primary decision or, as in the case of the Tribunal, an administrative decision itself made as a system of external administrative review), where the applicant for judicial review did not collude in the fraud practised on the administrative decision-maker or review body and did not then learn of the fraud but complains of it in subsequent proceedings. (at 200 [28])
Nonetheless, the court gave guidance concerning the questions to be asked when considering fraud in a public law context. Relevantly for this part of these reasons, their Honours said at 204 [41] that a finding of fraud should specify what was fraudulent, how it was fraudulent, and how it was acted upon.
In this case, the visa application was fraudulent because it was both the product and an essential element of the agent’s fraud on the applicants and, as part of that fraudulent scheme, also contained fraudulently misleading information to the effect that Ms Kaur’s work skills had been the subject of a successful TRA assessment. The application was additionally fraudulent because the application form expressly stated, contrary to the facts, that the applicants had had no assistance in its completion.
Section 54 of the Act required the delegate to consider, relevantly, the information contained in the application. Section 65 required the delegate to refuse the application if not satisfied that the applicants met the criteria for the grant of the visa sought. In this case, the insertion into the visa application of fraudulent misrepresentations led the delegate to refusing the application on the basis that Ms Kaur had provided in it false and misleading information about a skills assessment.
In SZFDE at 206 [51], the High Court described the conduct of the agent in that case as having amounted to the practice of a fraud on the Refugee Review Tribunal because it had disabled that decision-maker from the due discharge of one aspect of its imperative statutory functions, with the consequence that its decision was properly to be regarded, in law, as no decision at all. The question in this case is therefore whether the fraudulent misrepresentations made in the applicants’ visa application disabled the delegate from the proper discharge of an aspect of her imperative statutory functions.
On the face of it, the delegate’s conclusion that the applicants had made a misrepresentation regarding the purported skills assessment was a finding on their conduct, in which case the delegate was mistaken as to who had made the misrepresentation and had been misled by the agent’s concealment of his completion of the form. However, notwithstanding that the visa application stated that the applicants had had no assistance in its completion, the delegate was aware of the history of S & S Migration and of the fact that a file concerning the applicants had been found amongst that business’s papers, apparently following departmental investigations. In her decision record, the delegate said in that regard:
While S and S Migration are not declared as agents in relation to your 485 application, given records of this application were found on their premises I consider that they assisted you in the lodgement of this application. The operation of s98, in line with policy advice, is that you are still legally taken to have completed the form even if it is completed on your behalf.
What the delegate was saying there was that even if the applicants disclaimed knowledge of the contents of the visa application, as they did in this proceeding, as principals they were nevertheless responsible for the misrepresentations made in it by their agent. It can be inferred that the delegate refused the visa application with the possibility in mind that the applicants had not known what was in it.
Although the agent’s conduct would appear to have amounted to criminal breaches of provisions of the Act, such as s.234, as noted earlier in slightly different terms, a principal is not relieved of the civil consequences of an agent discharging his or her duties in a criminal manner: Capricorn Financial Planners Pty Ltd v Australian Securities and Investments Commission (1999) 31 ACSR 46 especially at 52 [14]; Lloyd v Grace, Smith & Co at 727 per Lord Halsbury. Section 98 and PIC 4020 are relevantly to the same effect. Consequently, the delegate did not err in reasoning that it did not matter whether the relevant misrepresentation had been made by the applicants or by their agent.
Because the delegate correctly understood the applicants’ responsibility for the acts of their agent on their behalf, even if they had been unaware of what he was doing, the agent’s fraud did not disable the delegate from the discharge of her imperative statutory function. Consequently, although a fraud had been practised on the applicants, one had not been practised on the Commonwealth in the form of the delegate. That is to say, the delegate’s decision to refuse the visa application was unaffected by the fraud on the applicants and its legality is similarly unaffected by that conduct.
Finding
Because the visa application was valid, or even if it had not been (see s.69 of the Act), and the delegate’s decision was not affected by the agent’s fraud, the Tribunal was required by the Act to conduct the review sought of it and, in doing so, did not err, as the applicants alleged, by purporting to exercise a jurisdiction which it did not have.
Utility in granting relief
Submissions
The Minister referred to Prodduturi’s case and submitted that the present proceeding was futile. Prodduturi’s case also dealt with S & S Migration and had similar facts, including a visa application said to have been affected by fraud of the agent. Mr Prodduturi was represented at first instance by the solicitors who act for the applicants in this case and the particulars of his allegation of jurisdictional error were almost identical to the ones pleaded in this case: Kaur & Ors v Minister for Immigration & Anor and Prodduturi v Minister for Immigration & Anor [2013] FCCA 1805 at [27]. At first instance in that case it was recorded that:
The essence of the applicants’ submissions in connection with [the applicants’ first allegations] was that their applications had been lodged as a result of fraudulent conduct on the part of their migration agent and that, as a result, those applications were not valid. (at [28])
See also Prodduturi at 254 [35].
The applicants referred to SZGME v Minister for Immigration & Citizenship (2008) 168 FCR 487 at 498 [36] where it was said:
… In [Minister for Immigration & Multicultural Affairs v] Li [(2000)] 103 FCR 486 … the Full Court was of the view that the persisting lack of validity of the application directly qualified the power of the Tribunal, through ss.47 and 415. In [Collector of Customs (NSW) v] Brian Lawlor [Automotive Pty Ltd (1979]) 41 FLR 338; 24 ALR 307 there was no power, at the level of the decision-maker or of the AAT. In Li 103 FCR 486 the same applied. The Tribunal could only set the decision aside and make no grant or refusal itself.
See also Minister for Immigration & Multicultural & Indigenous Affairs v WAIK [2003] FCAFC 307 at [30] – [31].
By contrast, it was held in Prodduturi that if the underlying visa application was not valid as Mr Prodduturi alleged, there was no utility in remitting a case to the Tribunal for re-hearing because, if the application had not been valid, the Tribunal would have no jurisdiction over the matter and could not make any order affecting the delegate’s primary decision refusing the visa. That would mean that even if the matter were remitted to the Tribunal, it could do nothing useful and the delegate’s decision would remain in place.
Consideration
Were it necessary to decide the question of utility I would be bound to follow Prodduturi’s later statement of the law concerning the authority of the Tribunal on review. However, as I have found that the visa application was not invalid and that the Tribunal did not err, the question does not arise.
CONCLUSION
Jurisdictional error on the part of the Tribunal has not been demonstrated.
Consequently, the application will be dismissed.
I certify that the preceding sixty (60) paragraphs are a true copy of the reasons for judgment of Judge Cameron
Associate:
Date: 18 April 2016
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