Kaur v Minister for Immigration & Border Protection
[2021] FCCA 1981
•27 August 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
Kaur v Minister for Immigration & Border Protection [2021] FCCA 1981
File number(s): MLG 1122 of 2016 Judgment of: JUDGE BLAKE Date of judgment: 27 August 2021 Catchwords: MIGRATION – Administrative Appeals Tribunal - Skilled (Provisional) (Class VC) visa –Applicant self-represented at hearing - Applicant arguing she was a victim of fraud and visa application was not valid – Tribunal finding fraud did not affect validity of visa application - Applicant failing to particularise application – no jurisdictional error or misapplication of law found – application for review dismissed. Legislation: Migration Regulations 1994 (Cth) sch 2 pt 485, sch 2 cl 485.214, 485.215, 485.221
Migration Act 1958(Cth) s 425
Cases cited: WZATH v Minister for Immigration and Border Protection [2014] FCCA 612
WZATH v Minister for Immigration and Border Protection [2014] FCA 969
WZAVW v Minister for Immigration and Border Protection [2016] FCA 760
Number of paragraphs: 44 Date of hearing: 19 August 2021 Place: Melbourne Counsel for the Applicants: Self-Represented Solicitor for the Applicants: Not Applicable Counsel for the Respondents: Mr Brown Solicitor for the Respondents: Australian Government Solicitor ORDERS
MLG 1122 of 2016 BETWEEN: SANDEEP KAUR
First Applicant
AMANDEEP SINGH
Second Applicant
DILSAHEB SINGH
Third Applicant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE BLAKE
DATE OF ORDER:
26 AUGUST 2021
THE COURT ORDERS THAT:
1.The Application filed on 30 May 2016 be dismissed.
2.The Applicant pay the First Respondent's costs of the proceeding fixed in the sum of $7,467.
REASONS FOR JUDGMENT
JUDGE BLAKE:
INTRODUCTION
This is an application for review of a decision made by the Administrative Appeals Tribunal (‘Tribunal') on 6 May 2016. In that decision, the Tribunal affirmed a decision of a delegate of the Minister not to grant the applicants a Skilled (Provisional) (Class VC) visa (‘visa’).
For the reasons that follow, I have decided to dismiss the application for review.
BACKGROUND
The First Applicant is the primary Applicant for the visa. The Second Applicant is the Husband of the primary Applicant and the Third Applicant is their son (both are also the secondary applicants for the visa). In these reasons, I refer to the First Applicant as the ‘Applicant’.
The Applicant is an Indian national. The Applicant arrived in Australia with her husband. Their son was born in Australia in 2010.
The Applicant applied for the visa on 17 October 2011. At that time, there were two subclasses to this visa. The relevant subclass applicable to the Applicant is Subclass 485. The criteria for subclass 485 visas are set out in Part 485 of Schedule 2 to the Migration Regulations 1994 (‘Regulations’). Among other things, the Regulations required the Applicant to have achieved a particular English language test score, and to have undertaken a skills assessment.
In her application for the visa, the Applicant stated, inter alia, that she had obtained a skills assessment from Trades Recognition Australia (‘TRA’) with a reference number of TRA 10/947578420 (Court Book 23).
On 21 May 2012, the Department of Immigration & Citizenship (‘Department’) wrote to the Applicant. In that letter, among other things, the Department notified the Applicant that it was alleged that the Applicant’s application for the visa had been lodged by a business (S & S Migration) who had been found to have lodged applications to the Department containing false and misleading information. The Department further notified the Applicant that the TRA Reference Number provided had not been verified by TRA and that TRA had no record of ever providing the Applicant with any skills assessment. It was alleged by the Department that the Applicant had therefore provided false and misleading information to the Department.
On 9 June 2012, the Applicant made a statutory declaration which contained her written submissions.
On 16 July 2012, the Applicant’s legal representative wrote to the Department. The representative submitted that the application for the visa was not valid. That submission was made on the basis that the Applicant had been a victim of fraud conducted by S & S Migration, the Applicant was unaware and had no involvement in the fraud and the Applicant had not authorised the making of an application for a skilled visa.
On 28 February 2013, a delegate of the Minister ('delegate') refused to grant the Applicant the visa. The delegate found that the Applicant did not satisfy the requirements in the Regulations because she had not undertaken the relevant skills assessment and also did not have the required English language proficiency.
On 4 March 2013, the Applicant applied for a review of the decision of the delegate. The then Migration Review Tribunal (‘MRT’) affirmed the decision of the delegate.
The Applicant subsequently applied for judicial review of the MRT decision. On 13 July 2015, the Court, by consent, remitted the matter to the MRT for rehearing.
The Applicant attended the hearing before the Tribunal on 2 May 2016. At the hearing, the Tribunal heard evidence from the Applicant as well as submissions.
On 6 May 2016, the Tribunal affirmed the decision of the delegate not to grant the Applicant the visa.
The Applicant commenced proceedings in this Court on 30 May 2016 by filing an application for judicial review (‘Application’) and an affidavit in support.
Orders were subsequently made for the conduct of the matter. The Applicant has not, despite being given opportunities to do so, filed any amended application, further affidavit, or written submissions pursuant to those orders. The Minister filed a Court Book and a written outline of submissions.
THE DECISION OF THE TRIBUNAL
The Tribunal commenced its consideration of the matter by setting out the background at paragraphs [1]-[7] of its reasons. At paragraph [7], the Tribunal noted that the Applicant’s case was essentially that the visa application was not valid.
From paragraphs [9]-[14], the Tribunal summarised the visa application made by the Applicant, submissions made by and on behalf of the Applicant in the course of the proceeding and evidence given by the Applicant to the Tribunal.
At paragraph [17] of its reasons, the Tribunal identified the two issues before it, which are as follows. First, whether the application for the visa was valid. Second, whether the Applicant met the relevant criteria in order for the visa to be granted. The Tribunal observed that it could only proceed to consider the second question if the application for the visa was found to be valid.
From paragraphs [21] – [28], the Tribunal commenced a detailed consideration of the evidence of the Applicant. Among other things:
(a)at paragraph [21], the Tribunal noted that the Applicant insisted that she instructed Mr Aijan of S & S Migration to apply for an extension of her student visa, but that he had instead applied for the visa;
(b)at paragraph [22], the Tribunal stated it was not satisfied that the Applicant’s interaction with Mr Aijan was as she had described it, and set out an explanation for its view in paragraphs [22] - [25] of its reasons;
(c)at paragraph [26] of its reasons, the Tribunal considered whether there may be an explanation for the discrepancies in the evidence given by the Applicant and found there was not a reasonable explanation for the contradictions. The Tribunal went on to find that ‘Rather, whether [Applicant] was “persuaded” to apply for a “work permit” or whether she agreed to Mr Aijan doing “something else” (that is, something other than applying for an extension of her Student visa) for her, the Tribunal finds that in essence she agreed to whatever it was that Mr Aijan promised’;
(d)at paragraph [28], the Tribunal stated that it did not accept the Applicant’s claims.
From paragraphs [29]-[42], the Tribunal considered the principles relating to alleged fraud, agency, and their effect on the validity of visa applications, as distilled from relevant authority.
At paragraphs [43]-[46], the Tribunal considered the relevant principles in the context of the facts before it.
In paragraph [43], the Tribunal stated as follows:
The visa application in the present case was evidently made online. The Tribunal accepts that Ms Kaur did not sign any visa application. The visa application that was lodged contained a number of false statements. Nevertheless, considering the whole of the evidence, the Tribunal finds that Ms Kaur provided her passport and relevant information to Mr Aijan and paid him. Ultimately she was indifferent to the precise nature and contents of the visa application. The Tribunal considers the evidence Ms Kaur gave the MRT on 1 April 2014 to be the more likely version of events. It may be that her intention initially was to obtain a further Student visa, but she went along with what Mr Aijan said he would actually be able to do for her. Significantly, Ms Kaur did not approach the Department after she was told that Mr Aijan had absconded after defrauding a number of clients.
In paragraph [44], the Tribunal found, inter alia, that the Applicant gave Mr Aijan general authority to act as her agent and to make the visa application, and that he acted within the scope of that authority.
Then, at paragraph [46], the Tribunal concluded as follows in relation to the question of whether the visa application was valid:
The Tribunal therefore finds that there was a valid visa application that has never been withdrawn. This means that the Tribunal can and must now consider whether the applicants satisfy the relevant criteria for the visas.
The Tribunal then moved to consider the second issue it identified being whether the Applicant was able to satisfy the criteria for the grant of the visa.
At paragraph [48] of its reasons, the Tribunal set out concessions made by the Applicant in relation to her eligibility for the visa. The Tribunal noted that the Applicant confirmed that:
(a)she and the Secondary Applicants were holders of an Indian passport;
(b)she had never achieved the required English language test score;
(c)she did not have the required assessment of her skills for her nominated occupation.
In paragraphs [49]-[52], the Tribunal set out the relevant requirements in respect of the undertaking of the English language requirement, the relevant requirements of IMMI 11/036 and the requirements for the undertaking of a skills assessment.
At paragraph [53] of its reasons, the Tribunal found that the Applicant did not meet the requirements of clauses 485.214, 485.215 or 485.221 of Schedule 2 to the Regulations and that she therefore did not satisfy the criteria for the grant of the visa. At paragraph [54], the Tribunal found that the Secondary Applicants also did not meet the requirements for the visa.
At paragraph [55], the Tribunal considered whether the Applicants would be eligible for another class of visa, but found they would not satisfy relevant comparable criteria.
On the above basis, the Tribunal decided to affirm the decision of the delegate.
THE APPLICATION
The Application contains ten grounds of review. They are as follows:
1.The Administrative Appeals Tribunal erred in law and/or in fact when it found and/or held that the visa application was valid;
2.The Administrative Appeals Tribunal erred in law and/or in fact, and thereby fell into jurisdictional error, when it took into account irrelevant maters and/or information and/or evidence as required by law;
3.The Administrative Appeals Tribunal erred in law and/or in fact, and thereby fell into jurisdictional error, when it did not take into account relevant matters and/or information and/or evidence as required by law;
4.The Administrative Appeals Tribunal erred in law and/or in fact, and thereby fell into jurisdictional error, when it failed to give proper consideration to and weight to the evidence presented by the Applicants;
5.The Administrative Appeals Tribunal erred in law and/or in fact, and thereby fell into jurisdictional error, when it summarily dismissed and discounted the evidence presented by the Applicants;
6.The Administrative Appeals Tribunal erred in law and/or in fact, and thereby fell into jurisdictional error, when it found and/or held that the evidence presented by the Applicants did not satisfy the requirements of the Migration Act 1958 and the Migration Regulations 1994 (Cth). which evidence the Tribunal failed to and/or failed to adequately and/or properly consider;
7.The Administrative Appeals Tribunal did not act in a way that was fair and just;
8.The Administrative Appeals Tribunal erred in law by making findings that were not open on the evidence before the Administrative Appeals Tribunal;
9.The Administrative Appeals Tribunal misconstrued or misapplied the applicable law, or otherwise failed to ask itself the right question;
10.The Administrative Appeals Tribunal failed to comply with s 425(1) of the Migration Act 1958;
At the hearing, the Applicant appeared unrepresented. She addressed the Court directly as did her husband. Both the Applicant and her husband had the assistance of an interpreter.
In their oral submissions to the Court, the Applicant and her husband stated, among other things, the following. That they were victims of a fraud perpetrated by their agent. That the agent’s wife was working in the Department and was issuing bogus visas. That they have invested time and money into having the visa granted and are struggling and suffering. That they only ever sought a student visa, and not the visa. That their son’s future is in Australia and he will suffer if they are required to return to India given the stage of his education. They implored the Court to grant them a visa at least until their son had completed his education.
The Applicant was visibly upset during the court hearing, and it is difficult not to feel some sympathy for her and in particular, her son. Ultimately, however, none of what the Applicant or her husband put before the Court assisted the Court to identify an error in the reasons of the Tribunal. In light of that, I have turned to consider the grounds of review set out in the Application and the Tribunal decision.
The first matter to observe about the grounds of review set out above is that they constitute unparticularised assertions of jurisdictional error. Failure to particularise a ground of review is a sufficient basis for it to be dismissed: WZATH v Minister for Immigration and Border Protection [2014] FCCA 612 at [60], upheld in WZATH v Minister for Immigration and Border Protection [2014] FCA 969; see also WZAVW v Minister for Immigration and Border Protection [2016] FCA 760 at [35]. That in my view, is a sufficient basis to dispose of the matter.
Noting that the Applicant is not represented, I have also briefly considered the reasons of the Tribunal in the context of the asserted grounds of review, as best as I am able.
Under Ground 1, the Applicant takes issue with the finding of the Tribunal that the application for the visa was valid. I have set out earlier in these reasons, a summary of the reasons of the Tribunal. In my view, when regard is had to the reasons of the Tribunal, it was open to the Tribunal to find that the application for the visa was valid. The Tribunal carefully considered the evidence of the Applicant. It clearly and correctly identify the issues before it, and set out the relevant principles governing the area. The Tribunal paid particular attention to what it regarded as inconsistencies in the Applicant’s evidence and submissions. It was open to the Tribunal to conclude that the Applicant gave Mr Aijan general authority to act as her agent, that the Applicant was indifferent to the nature and content of the visa application, and that the fraud committed by Mr Aijan did not stultify the decision-making under the Act. In my view, the decision reached by the Tribunal that the application for the visa was valid was a decision that was open to it.
Grounds 2 and 3 take issue with the Tribunal either taking into account irrelevant matters, or failing to take into account relevant matters. For the reasons set out earlier, in so far as it considered whether the visa application was valid, I am satisfied that the Tribunal took account of all relevant matters and did not take into account any irrelevant matters. Insofar as the Tribunal considered whether the Applicant satisfied the criteria for the grant of the visa, the decision reached by the Tribunal was one that was open to it. The concessions made by the Applicant meant she was never going to satisfy the criteria for the grant of the visa.
Grounds 4, 5 and 6 take issue with a failure by the Tribunal to properly consider or give weight to evidence presented by the Applicant. In my view, these grounds of review do not disclose any jurisdictional error. The Tribunal carefully considered the evidence of the Applicant throughout the course of the proceeding. It weighed the evidence carefully in making its findings. In weighing the evidence, it gave express consideration to whether any discrepancies in the Applicant’s case may merely be the result of an imperfect memory, and discounted that possibility: at [26]. Ultimately, the weight given by the Tribunal to the evidence before it was a matter for it to determine.
Ground 7 is a complaint that the Tribunal did not act in a way that was fair or just. This ground, in my view, cannot succeed. The Applicant was initially notified that the hearing was to occur on 5 April 2016. The Tribunal postponed that hearing at the request of the Applicant and the Applicant was properly notified of the new hearing date of 2 May 2016. The Applicant attended the hearing to give evidence and present arguments on 2 May 2016. She was assisted by an interpreter. There is nothing, in my view, that suggests that the conduct of the Tribunal was unfair or unjust, or that the Applicant was otherwise denied procedural fairness.
Ground 8 is a complaint that findings made by the Tribunal were not open to it. The Applicant has not identified which particular findings were not open to the Tribunal. As I have indicated earlier, I am satisfied that the findings made by the Tribunal were open to it.
Grounds 9 and 10 assert that the Tribunal has misapplied the law or failed to comply with provisions of the Act. The Applicant has not identified which law has been misapplied or misconstrued, or how it is that the Tribunal has failed to comply with section 425 of the Act. In my view, having reviewed the decision of the Tribunal and the Court Book, these grounds cannot be made out and must be rejected.
It follows from what I have said above that the Application must be dismissed in its entirety. The Applicant has been entirely unsuccessful.
I certify that the preceding forty-four (44) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Blake. Associate: Sarah Baffi
Dated: 27 August 2021
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