Kumar v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FedCFamC2G 792
•30 August 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Kumar v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 792
File number: MLG 1485 of 2018 Judgment of: JUDGE LADHAMS Date of judgment: 30 August 2024 Catchwords: MIGRATION – application for judicial review of a decision of the Administrative Appeals Tribunal – where the applicant alleges that his visa application is invalid as a result of fraud by his migration agent – finding that visa application is invalid. Legislation: Migration Act 1958 (Cth) ss 47, 48, 375A, 476, 477
Migration Regulations 1994 (Cth) Sch 2, 820.211, 880.230, Sch 3
Cases cited: Gill v Minister for Immigration and Border Protection (2016) 248 FCR 398; [2016] FCAFC 142
Katragadda v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 143
Kaur v Minister for Immigration and Border Protection (2019) 269 FCR 464; [2019] FCAFC 53
Maharajan v Minister for Immigration and Border Protection (2017) 258 FCR 1; [2017] FCAFC 213
Singh v Minister for Immigration and Border Protection (2016) 247 FCR 554; [2016] FCAFC 141
SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189; [2007] HCA 35
Division: Division 2 General Federal Law Number of paragraphs: 79 Date of hearing: 28 November 2023 Place: Perth Counsel for the Applicant: Mr T Lettenmaier (pro bono direct access Counsel) Counsel for the First Respondent: Mr J Barrington Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Mills Oakley Lawyers ORDERS
MLG 1485 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: RAJ KUMAR
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE LADHAMS
DATE OF ORDER:
30 AUGUST 2024
THE COURT DECLARES THAT:
A.The applicant’s application for a Skilled – Independent Overseas Student (Residence) (Class DD) Subclass 880 visa dated 31 August 2007 was vitiated by fraud and is invalid.
THE COURT ORDERS THAT:
1.A writ of certiorari issue to quash the decision made by the second respondent on 1 May 2018.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE LADHAMS:
INTRODUCTION
The applicant is a non-citizen who applied for a Skilled – Independent Overseas Student (Residence) (Class DD) visa (skilled visa). A delegate of the Minister refused to grant the applicant a skilled visa and on 1 May 2018 the Administrative Appeals Tribunal (Tribunal) affirmed the delegate’s decision. The applicant seeks judicial review of the Tribunal’s decision under s 476 of the Migration Act 1958 (Cth) (Migration Act).
The applicant’s sole ground of application alleges that the Tribunal erred by treating his visa application as valid. The applicant contends that his visa application was invalid as a result of fraud by his migration agent.
For the reasons explained below, I have found that the applicant’s skilled visa application is invalid, as a result of fraud by the applicant’s migration agent.
VISA APPLICATION AND DECISIONS
The applicant arrived in Australia in March 2005 on a temporary student visa. He applied for a skilled visa on 31 August 2007. The applicant was assisted by a migration agent in his visa application. The application indicated that the applicant had applied to Trades Recognition Australia (TRA) on 31 August 2007 for a skills assessment in the nominated occupation of cook and recorded a reference or receipt number for that application.
On 31 January 2013 a delegate of the Minister refused to grant the applicant a skilled visa on the basis that the applicant did not satisfy cl 880.230 in Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations). That regulation required that a relevant assessing authority had assessed the skills of the applicant as suitable for his nominated skilled occupation.
On 21 February 2013 the applicant applied to the Migration Review Tribunal for merits review of the delegate’s decision.
The Migration Review Tribunal purported to affirm the delegate’s decision on 4 October 2013.
On 23 June 2017 Judge Riethmuller (as his Honour then was) made an Order by consent quashing the decision of the Migration Review Tribunal and remitting the matter to the Tribunal for reconsideration according to law. The Minister conceded that the Tribunal denied the applicant procedural fairness by failing to disclose to the applicant the existence of a certificate issued under s 375A of the Migration Act, in circumstances where at least some of the documents subject to the certificate were relevant, or potentially relevant, to the issues arising on the review by the Tribunal.
Following the remittal the applicant attended a hearing before the Tribunal on 1 May 2018 and the Tribunal made an oral decision that day affirming the delegate’s decision. The Tribunal’s reasons were subsequently provided to the applicant in a written record dated 1 August 2018. The Tribunal found that the applicant did not have a relevant skills assessment and therefore did not satisfy the requirements of cl 880.230.
JUDICIAL REVIEW APPLICATION
The applicant filed his judicial review application on 29 May 2018, and the application was therefore made within 35 days of the date of the Tribunal decision, as required by s 477(1) of the Migration Act.
By an amended application filed on 10 November 2023, the applicant advances the following ground, which, for reasons explained below, is reproduced in a way that does not disclose the name of his former migration agent:
The Tribunal committed jurisdictional error by treating the applicant’s application for a Skilled – Independent Overseas Student (Residence) (Class DD) Subclass 880 visa (visa application) as valid.
Particulars
a.[The migration agent] represented to the applicant that if he paid him around $4000 (Application Fee) he would prepare and lodge an application to the Trades Recognition Australia (TRA) for a skills assessment and the visa application.
b. The applicant paid [the migration agent] the Application Fee.
c.[The migration agent] did not lodge an application for a skills assessment with TRA.
d.[The migration agent] filled in an online form on behalf of the applicant without his knowledge and indicated that an application for a skills assessment had been lodged with TRA. This was false and misleading.
e.[The migration agent] did not tell the applicant that he had not lodged an application for a skills assessment with TRA.
The applicant’s migration agent at the time of the application was not called to give evidence in this proceeding and the Court understands that he is no longer in Australia. An allegation of fraud has been made against him, which is a serious allegation. As it has not been practicable to invite him to comment on and afford him procedural fairness in relation to the allegation of fraud, he is not named in these reasons. I instead refer to him as ‘the migration agent’.
The evidence before the Court comprises:
(a)a court book filed on behalf of the Minister on 20 August 2019 (exhibit 1);
(b)an affidavit affirmed by the applicant, Raj Kumar, and filed on 10 November 2023;
(c)an affidavit affirmed by Uday Mishra and filed on behalf of the applicant on 10 November 2023;
(d)an affidavit of Claire Miriam Laizans filed on behalf of the Minister on 7 September 2023, annexing copies of Department records; and
(e)an affidavit of Claire Miriam Laizans filed on behalf of the Minister on 7 September 2023, annexing copy of the transcript of the Tribunal hearing.
The applicant and Mr Mishra both gave oral evidence at the hearing and were cross-examined.
The applicant was represented by Counsel at the hearing on a pro bono basis pursuant to a pro bono referral that I made. I thank Counsel for the applicant for assisting the applicant. The Court has been assisted by clear and comprehensive submissions by Counsel for the applicant and Counsel for the Minister in this matter and is grateful for the assistance that both parties have provided to the Court.
GENERAL OBSERVATIONS ON EVIDENCE
The evidence in relation to the allegation of fraud is discussed in the context of the applicant’s ground below.
Before addressing the evidence that I have relied on in making findings in this matter, I make the following general observations about the witnesses and the evidence.
First, as mentioned above, the applicant and Mr Mishra gave oral evidence and were cross-examined at the hearing. The applicant gave evidence in relation to the circumstances in which the visa application was made, his actions while the visa application was before the Department, the circumstances in which he found out that a skills assessment application had not been made and about other matters that were occurring in his life at relevant times. Mr Mishra is a registered migration agent who represented the applicant before the Tribunal between 2013 and 2018. Mr Mishra gave evidence about his representation of the applicant and interactions with the applicant. On balance, I found both witnesses to be credible. There were times in the applicant’s evidence in cross-examination where he did not answer the question directly and where his answers were difficult to follow, but these answers did not, in my view, materially detract from his overall credibility.
Second, and relatedly, in assessing the evidence, I am mindful of the effluxion of time since the relevant events and the impact that may have on memory. At the time the applicant gave evidence to this Court, some of the events in relation to which he gave evidence had occurred over 16 years ago and the majority of the relevant events occurred over a decade ago. I make no adverse credibility findings as a result of any gaps in the applicant’s memory or inability to recall details of events that occurred many years ago. Likewise, Mr Mishra was asked to give evidence of events that occurred in 2012 or 2013, again over a decade ago. I make no adverse credibility findings as a result of any uncertainties in Mr Mishra’s evidence or any occasions where he was unable to recall evidence accurately.
Third, there was evidence in the court book that suggested some inappropriate conduct by the applicant’s migration agent in past matters. That came in the form of a quote set out in a letter that a lawyer who previously represented the applicant in a proceeding before the Tribunal sent to the Tribunal. The quote was attributed to the website of Holding Redlich and read:
26 July 2008
Officials from the Department of Immigration raided the Swanston Street, Melbourne, offices of [the migration agent], a registered migration agent, last May. [The migration agent], who has apparently returned to India, is under investigation after lodging hundreds of applications from overseas students seeking recognition of their qualifications after studying in Australia. The documents under official scrutiny include references saying the students have completed 900 hours of work experience in a restaurant kitchen, printing shop or hairdressing salon.
Both parties made submissions about the extent to which the Court should rely on this evidence in the assessment of fraud in the present matter. Counsel for the Minister submitted that the Court should be careful about drawing any inferences from the vague evidence in this case about the migration agent’s office being raided, noting that there is no evidence that it led to anything and therefore does not give rise to any tendency reasoning that because the migration agent had acted in a particular manner in other cases, he is more likely to have acted with that tendency in this case. Counsel for the applicant acknowledged that there is no evidence of the outcome of the investigation, but submitted that the evidence from the Holding Redlich website was at least a basis to find that the migration agent was not conducting himself as a migration agent in accordance with his obligations.
I took this evidence into account in deciding to issue the pro bono referral in this matter, as I considered that this extract gave rise to an inference that there may be additional evidence that the applicant may be able to obtain. However, I do not place any weight on this for the purposes of making a finding about whether the conduct of the migration agent was fraudulent in this particular case. The extract is indirect evidence that the migration agent was under investigation at a particular point in time but does not show the outcome of any investigation or whether the migration agent was deregistered or subject to any disciplinary action by the Migration Agents Regulation Authority. It is of negligible probative value in determining whether the migration agent engaged in fraud in this particular case.
I also observe that there is further relevant evidence in Ms Laizans’ affidavit annexing Department records, which includes screen shots of information recorded by officers of the Department on 4 January 2012 and 31 January 2013 indicating that the migration agent had been deregistered. However, in the absence of any meaningful detail, I do not rely on this evidence to draw any conclusions or inferences based on tendency.
RELEVANT LEGISLATION AND PRINCIPLES
Pursuant to s 47 of the Migration Act, the Minister is required to consider a valid application for a visa and is not to consider an invalid application for a visa. The section provides:
(1) The Minister is to consider a valid application for a visa.
(2) The requirement to consider an application for a visa continues until:
(a)the application is withdrawn; or
(b)the Minister grants or refuses to grant the visa; or
(c)the further consideration is prevented by section 39 (limiting number of visas) or 84 (suspension of consideration).
(3)To avoid doubt, the Minister is not to consider an application that is not a valid application.
(4)To avoid doubt, a decision by the Minister that an application is not valid and cannot be considered is not a decision to refuse to grant the visa.
Fraud on the part of a migration agent in the visa application process can, in some circumstances, result in a visa application being invalid. As the Full Court of the Federal Court explained in Maharajan v Minister for Immigration and Border Protection (2017) 258 FCR 1; [2017] FCAFC 213 (Maharjan) at [105]:
… The concept of a valid visa application, on the current state of authority of this Court, does not include an application made without the actual or otherwise authority of the named visa applicant, where the visa applicant does not have capacity to give authority (see Kim) and does not include an application based on fraudulent documents where the visa applicant is neither complicit in the fraud nor indifferent to the use of unlawful or dishonest means (see Singh and Gill).
The principles in relation to fraud in the visa application process are now well-established.
In summary:
(a)Fraud in an administrative law context requires dishonest conduct. Acting on ‘bad or negligence advice or some other mishap’ will not suffice: SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189; [2007] HCA 35 (SZFDE) at [53].
(b)A visa application prepared by an agent that includes fraudulent information will not be invalid if the applicant colluded in the fraud or was indifferent as to whether the agent used dishonest or unlawful means to obtain the visa: Gill v Minister for Immigration and Border Protection (2016) 248 FCR 398; [2016] FCAFC 142 (Gill) at [50]; Marharjan at [53]; Kaur v Minister for Immigration and Border Protection (2019) 269 FCR 464; [2019] FCAFC 53 (Kaur) at [56], [151]. ‘Indifference’ does not entail a situation where a person has ‘retained an agent to apply for a visa and having paid the appropriate fees to that agent, leaves the migration agent to perform his or her work’: Gill at [42]. Rather, it entails ‘reckless indifference’, which requires a state of mind that is close to intention or wilful blindness as to the truth of what is being said or done, and which should be distinguished from states of mind such as helplessness, fear of authority, naivety, ignorance, want of due care and dependence or reliance: Kaur at [136]-[140].
(c)In an administrative law context, the fraud must have the effect of disabling a person from performing their statutory functions or stultifying the operation of the legislative scheme or the relevant statutory decision-making process: SZFDE at [49], [51]; Kaur at [57]; Katragadda v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 143 (Katragadda) at [45]; Singh v Minister for Immigration and Border Protection (2016) 247 FCR 554; [2016] FCAFC 141 (Singh) at [52].
(d)Whether a visa application is valid is a jurisdictional fact that the Court must determine for itself: Maharjan at [35], [44], [122]; Kaur at [56].
(e)The applicant bears the onus of establishing of establishing that he has been the innocent victim of fraud: Marharjan at [78]; Kaur at [56]; Katragadda at [59].
(f)The Court may draw inferences from the available materials about the motives of a person against whom an allegation of fraud is made: SZFDE at [38].
APPLICATION OF THOSE PRINCIPLES IN THE PRESENT CASE
Did the migration agent engage in fraud?
The action that the applicant asserted in his written submissions was fraudulent in the present case is that the migration agent lodged a visa application on behalf of the applicant that was false and misleading in that it stated that there had been a skills assessment application when there was no such application.
In his oral submissions, Counsel for the applicant submitted that the fraudulent conduct of the migration agent included representing to the applicant that he would lodge a skills assessment application, having taken payment from the applicant, and then subsequently, after the visa application was lodged, representing to the applicant that he had lodged the skills assessment application.
The visa application was made by submitting an electronic visa application form. The migration agent’s details were included in the visa application form and it was indicated on the form that the migration agent provided assistance with completing the form.
The visa application included a section under a heading ‘Skills assessment details’, which included the following relevant information:
At the end of the visa application form, a declaration was made that the information in the form was ‘complete, correct, and up-to-date in every detail’.
The applicant’s evidence was that he paid his migration agent to complete the online application form and that the migration agent did not ask the applicant to look at the form before it was submitted.
The applicant’s evidence in relation to the circumstances in which he engaged the migration agent was that he met the migration agent at the migration agent’s office a few days before his visa application was lodged and that the migration agent told the applicant that it would cost $4,000 to $4,500 to lodge his visa application. To the best of the applicant’s recollection, this amount comprised:
(a)$2,060 in visa application fees;
(b)$300 for the TRA skills assessment fees;
(c)$150 for police clearance certificate application fees (for Australia and India); and
(d)$2,000 for the migration agent’s professional fees.
The applicant gave evidence that he then returned to the migration agent’s office a few days later and gave him cash and documents the migration agent requested relating to the applicant’s employment and academic history and personal details. The applicant signed something to do with the visa application but cannot remember what it was and speculated that it might have been about the skills assessment application or the immigration paperwork. In cross-examination, the applicant gave evidence that he could not exactly remember what he was asked to sign but thought it might have something to do with his skills assessment.
The applicant gave evidence that he returned to the migration agent’s office a few weeks later and was told by the migration agent that he had lodged the visa application and the TRA skills assessment application and gave the applicant a receipt for the visa application fees.
I accept the applicant’s evidence summarised at [33]-[36] above in relation to the circumstances in which his visa application was lodged, save for that I do not make any finding as to whether the document that the applicant signed related to any skills assessment application, as the applicant’s evidence in this regard was speculative.
The information in the visa application form to the effect that the applicant had applied for a skills assessment is not correct.
The applicant gave evidence that he phoned the TRA around mid to late 2012 and the person he spoke to said that they could not locate his skills assessment. In cross-examination, the applicant was somewhat uncertain as to when this phone call took place, but I accept that it was sometime in 2012, most likely the second half of the year.
The applicant wrote to the TRA by letter dated 20 February 2013 to request his skills assessment result and to find out if a skills assessment application was lodged. The TRA replied on 25 February 2013 indicating that ‘TRA has no record of an application matching the details you have provided’.
The applicant submitted that the migration agent’s conduct was fraudulent, but the Minister submitted that the applicant has not discharged his evidentiary onus to establish that the migration agent’s conduct was fraudulent, rather than negligent or that some other mishap occurred. The Minister submitted that, on the applicant’s case and on the material in the court book, there was simply no reason or imperative for the migration agent to have committed fraud. To understand the Minister’s submission in its proper context, it is necessary to refer to the evidence of the applicant in relation to the documents he provided to the migration agent for the purposes of his skills assessment application.
The applicant gave evidence that prior to applying for the visa, he worked, on a voluntary basis, at an Indian restaurant in Melbourne called ‘Desi Needs Indian Takeaway’. The applicant gave evidence that he worked at this restaurant for more than 900 hours. In cross-examination, the applicant gave evidence that he did this because he wanted to be a cook and in the future he wanted to be chef, and he understood that 900 hours was the requirement for a TRA skills assessment. The applicant’s evidence was that Desi Needs provided him with a reference letter after he completed his 900 hours confirming that he worked there. The applicant no longer has any written records of his work experience with Desi Needs because he gave original copies of the documents to his migration agent, and Desi Needs subsequently closed in 2013 or 2014. I accept that the applicant provided documents relating to his work with Desi Needs to the migration agent. It is unnecessary to make further findings of fact as to whether the applicant did indeed complete 900 hours of work experience for the purposes of this application.
In the light of this evidence of the applicant, Counsel for the Minister submitted that there was no reason for the migration agent to engage in fraud, because the applicant had, on his case, provided all the relevant documents to obtain a skills assessment. The Minister noted that the migration agent identified himself on the form, and the applicant responded ‘no’ to the question as to whether he had already obtained a skills assessment. Counsel for the Minister submitted that this indicated that there was seemingly nothing to be gained by fraud because the applicant could never meet the time of decision requirement without a skills assessment and, on the face of the form, he does not have a skills assessment. Counsel for the Minister speculated that perhaps the migration agent cut and pasted the skills assessment receipt number from a different application.
I accept the applicant’s submission that there is a sufficiently clear basis for finding that the conduct of the migration agent amounted to fraud rather than mere negligence over the Minister’s submission. The evidence before the Court suggests that, at the time of the visa application, the applicant had a reasonable basis for believing that he would be eligible for the grant of the visa if he received a positive outcome on a skills assessment. The applicant paid the migration agent to submit the skills assessment application and the visa application. This is not simply a case where the migration agent has ticked a box on a form to indicate that a skills assessment application had been made. The migration agent inserted a reference number for the skills assessment application in circumstances where he must have known that he had not submitted the skills assessment application. The insertion of the reference number suggests that the migration agent’s conduct was deliberate and dishonest. It is purely speculative for the Minister to suggest that, in completing an online form, the migration agent cut and pasted an incorrect receipt number and does not explain why the migration agent did not lodge the skills assessment application when the applicant had paid him to do so.
The fraudulent conduct in this matter was that the migration agent included information in the visa application form that was false and misleading, namely, that the applicant had applied for a skills assessment, and gave a receipt number for that purported application, when in fact no application had been made, in circumstances where the applicant engaged and paid the migration agent to prepare and submit the skills assessment application and the visa application, the migration agent represented to the applicant that he would make the skills assessment application and, after the visa application was lodged, represented to the applicant that the skills assessment application had been made. The applicant relied on the representations made by the migration agent to his detriment and the delegate relied on the representation in the visa application form in proceeding on the basis that the visa application was valid.
Was the applicant complicit in, or recklessly indifferent to, the fraud?
The applicant’s conduct in engaging the migration agent to prepare his visa application and skills assessment application is described in the summary of the applicant’s evidence, which I have largely accepted, above.
I accept the applicant’s submission that, having engaged the migration agent and paid his professional fees, the applicant was entitled to expect that the migration agent would perform his duties in accordance with the Migration Act and any relevant code of conduct: Gill at [41].
In considering whether the applicant was complicit in, or recklessly indifferent to, his migration agent’s fraud, it is also relevant to have regard to the applicant’s conduct after his visa application was lodged, and particularly up to the delegate’s decision, after which he could no longer withdraw his application.
The applicant gave evidence, which I accept, that after engaging the migration agent to prepare and lodge his visa application, he had contact with the migration agent on two further occasions. The first time was a few weeks after he paid the migration agent the fee and gave the migration agent relevant documents. The applicant attended the migration agent’s office and it was on this occasion that the migration agent told the applicant that his visa application and skills assessment application had been lodged. The migration agent also told the applicant that it would take a bit of time to go through and the Department would contact the applicant. In cross-examination, the applicant also said that he contacted the migration agent by telephone some time at the end of 2007 just to ‘check out everything’ and to see how everything was going. Although not explicit from the applicant’s evidence, I infer from the context that the applicant was checking on the progress of his visa application.
The applicant gave evidence in his affidavit and in cross-examination that after about a year, an old colleague from his work phoned the applicant, who was at that time living in Bendigo, and told him that he had heard that the migration agent’s office was closed, and that something had happened to the migration agent. In cross-examination, the applicant said that his friend told him that the migration agent had ‘done wrong stuff and he closed his office and run away’. The applicant then contacted the migration agent’s office and spoke to the receptionist of the building, who told him that the migration agent was no longer there. The applicant did not go and look for the migration agent at his office as the applicant was living in Bendigo at that time. I accept the applicant’s evidence about how he found out his migration agent’s office had closed and the action he took at that time.
The Department records annexed to Ms Laizans’ affidavit show that the applicant then contacted the Department several times over the next few years. The first contact was on 15 September 2008, when the applicant contacted the Department and said that his migration agent disappeared and closed down his business. There were then three further calls in 2009, including the applicant providing updated contact details.
The applicant gave evidence that in around 2009, he got his VEVO number from the Department and checked what documents he needed and there was nothing about a skills assessment recorded. The applicant said that the VEVO record showed that his migration agent had not submitted several documents in support of the applicant’s visa application, so the applicant emailed them to the Department.
A Department record shows that the applicant contacted the Department on 8 February 2011 to follow up on the status of his visa application and to check whether the Department had received relevant documents. The Department’s record indicates that:
(a)the applicant asked if he could resend documents as he was not confident his agent had done so;
(b)the applicant was advised that he may email the documents to the Department and he would receive a confirmation email; and
(c)the applicant was advised that the online checklist would not update until the case officer had assessed all the documents.
The applicant was asked about this conversation with an officer of the Department in cross-examination and could not remember having the conversation with the Department. Counsel for the Minister put to the applicant that he knew in 2011 that the online checklist was not complete or accurate, and the applicant responded that he was going through an extremely hard time and his mind was not all there and he was in a depressive mental state since his separation from his wife in December 2010.
The Department sent the applicant an email on 4 January 2012 attaching a letter requesting that he provide further documents, including a skills assessment. In his affidavit, the applicant indicated that he recalled receiving the letter. He was less certain in cross-examination, but finally indicated that he thinks he received it. The applicant provided some documents but requested additional time to provide further documents on the basis that his passport was being held by the police and he could not get it.
The applicant gave evidence that sometime after receiving the letter he contacted Mr Mishra for assistance. It is not clear exactly when this took place. Mr Mishra gave evidence that he represented the applicant from February 2013, but he may have given general advice to the applicant prior to that and possibly may have spoken to the applicant in 2012.
As indicated above, I accept the applicant’s evidence that he contacted the TRA by phone in the latter half of 2012 and the person he spoke to said that they could not locate his skills assessment. The applicant wrote to the TRA and received a response in writing in February 2013 confirming that the TRA had no record of a skills assessment application matching the details provided by the applicant, which included his name, date of birth and passport number. The applicant obtained the confirmation in writing from the TRA at the request of Mr Mishra. The applicant gave evidence that it was at the time of the written confirmation that he came to believe that the migration agent never lodged a skills assessment application to the TRA.
The applicant also gave evidence that he was never told by the Department to withdraw his visa application before the delegate made a decision because of the conduct of his migration agent. I accept this evidence and note that the delegate accepted, on the face of the visa application, that the applicant had made an application for a skills assessment.
Mr Mishra gave evidence that he told the applicant that he could not be granted the visa because he could not meet the relevant criteria, and that he tried to have the Tribunal refer his case to the Minister for intervention. In cross-examination, Mr Mishra said that he discussed the skills assessment with the applicant, who said that he had submitted all documents but had not got the skills assessment. Mr Mishra said that he told the applicant that without a skills assessment his application for a visa would not be successful and when asked if this advice was given the first time he met the applicant, he responded ‘Possibly, yes. Well – that’s how it works’.
The applicant also gave evidence, which I accept, that in 2012 (including around the time he received the letter from the Department) he was dealing with a criminal case in the County Court of Victoria, after his ex-partner alleged that the applicant threatened to kill her and raped her. The applicant was acquitted of all charges on 14 March 2013. He spent a significant amount of money on legal fees to defend the criminal law matter and that is why he did not ask Mr Mishra to take over his visa application when it was before the Department and would instead only get ‘bits of advice’ from him. The applicant also gave evidence that he was not mentally stable in 2012 and that he did not seek written confirmation from TRA straight away after Mr Mishra advised him to do so because he was just dealing with his criminal matter and wanted to see his son, so he was not thinking about his skills assessment or his permanent residency.
Taking into account the evidence summarised above, I find that the applicant knew, from at least January 2012, that the Department still did not have a skills assessment for him. The applicant did not act promptly to contact TRA and did not seek confirmation in writing from TRA until after the delegate’s decision. The applicant did not approach his visa application with due diligence and appears to have displayed a degree of ignorance in relation to matters relating to his visa application. However, this does not mean that he was complicit in or recklessly indifferent to the fraud of his migration agent.
The applicant submitted that he was not recklessly indifferent to the migration agent’s conduct because, relevantly:
(a)he had done the requisite work experience and study to be granted the visa;
(b)he had been told by the migration agent that he would lodge the necessary applications for him to be granted a visa;
(c)there is no evidence to suggest that the applicant had any idea that the migration agent would not perform his duties as instructed;
(d)the migration agent told the applicant he had made the necessary applications and he should wait for the Department to contact him;
(e)prior to 2012 there was nothing to indicate that the migration agent had not lodged a skills assessment application;
(f)the request for information in 2012 did not refer to any issues with the skills assessment application save to request certification that it had been successfully completed;
(g)the Department never asked the applicant to withdraw his application or undertake any check with TRA in relation to the application number in the visa application;
(h)the Department’s consideration of the visa application took some five years and by the time the applicant became aware that there was an issue with his skills assessment application, he could not successfully make a new application;
(i)it was not until after the delegate’s decision that the applicant obtained written confirmation from the TRA that there was no record of his application;
(j)the applicant obtained advice from Mr Mishra to go to the Tribunal to seek Ministerial intervention;
(k)the applicant’s actions during this period should be considered in light of the fact that he was going through serious criminal proceedings concerning charges of rape and threatening to kill his partner; and
(l)the fact that the applicant continued proceedings after the delegate’s decision does not indicate indifference to the migration agent’s fraud and, rather, the applicant was candid with the Tribunal that he could not get the visa.
Counsel for the Minister submitted that the applicant has not discharged his onus of establishing that he was not recklessly indifferent to the conduct of his migration agent. Counsel for the Minister emphasised based on Katragadda that it was not necessary for the Court to make a finding that the applicant was recklessly indifferent to reject the application, but rather it was open to the Court to find that the applicant had not discharged his evidentiary onus to show that he was not recklessly indifferent. Counsel for the Minister relied on three matters in submitting that the applicant has not discharged the onus in showing that he was not complicit or recklessly indifferent:
(a)the letter given to the applicant on 4 January 2012 and following correspondence in which the Department put the applicant on notice that he had not provided a skills assessment;
(b)his contact with the TRA in 2012, which should have made him aware from that point that the TRA could not locate his skills assessment application; and
(c)the Court should infer from Mr Mishra’s evidence that he told the applicant prior to the delegate’s decision that he did not meet the criteria for the visa.
Counsel for the Minister submitted that the Court should find that by the time of the delegate’s decision, the applicant knew that he did not have a skills assessment or was at least wilfully blind to that fact.
In my view the applicant has discharged his onus of showing that he was not complicit in or recklessly indifferent to the conduct of his migration agent and I accept the applicant’s submissions to this effect.
There is nothing in the applicant’s conduct during the time of his interactions with the migration agent to suggest that he was complicit in or recklessly indifferent to the migration agent’s conduct at the time the visa application was lodged. Those interactions show the applicant paying a fee and providing relevant documents to the migration agent to lodge a visa application and a skills assessment application and relying on the migration agent to do that. There is no evidence of any event prior to 2012 that would have put the applicant on notice that the information in his visa application that he had applied for a skills assessment was false.
The Minister’s submissions rely heavily on the applicant knowing prior to the delegate’s decision that he did not have a skills assessment. This knowledge, in conjunction with the applicant’s failure to act in a timely manner to make the necessary inquiries, does not mean that the applicant has not discharged his evidentiary onus. It is important in considering whether the applicant was complicit in or recklessly indifferent to the fraud to distinguish between knowledge that he did not have a skills assessment and knowledge that he had not made an application for a skills assessment, contrary to the information in his visa application. It was acknowledged in the applicant’s visa application form (correctly) that he did not at the time of the application have a skills assessment. If he already had a skills assessment, it would not have been necessary to instruct his migration agent to apply for one. There is nothing fraudulent in the applicant not having a skills assessment. Likewise, even if the applicant had knowledge that he did not meet the criteria for the grant of the skilled visa without a skills assessment, there is nothing inappropriate in continuing with his visa application, particularly during the period that he believed a skills assessment application had been made and may result in a positive outcome.
Although the applicant was slow to make inquiries, I accept that sometime in the latter half of 2012, before the delegate’s decision, he was aware or ought to have been aware that TRA had no record of his skills assessment application. His telephone call to the TRA should have put him on notice that there was no record of an application, even if the applicant did not fully accept that that was the case until he received the written confirmation in February 2013. Ideally, the applicant would have acted promptly to get advice or to otherwise advise the Department of this information. The applicant might then have been put on notice of the potential consequences of proceeding with his application and been reminded that he could withdraw the application if he was concerned that his agent had engaged in fraudulent conduct. However, I accept that the applicant was focused on his criminal proceedings in 2012 and that this provides some explanation as to why his visa application may not have been progressed by him with due diligence.
The applicant’s failure to take action in the latter half of 2012, after his telephone conversation with the TRA, does not show a state of mind of intention or wilful blindness to the conduct of his migration agent, necessary to show reckless indifference. It shows lack of due diligence and perhaps ignorance but does not amount to reckless indifference.
Did the fraud stultify a process under the Migration Act?
The fraud of the applicant’s migration agent resulted in the applicant’s visa application being invalid. The Minister (or his delegate) considered the visa application when, pursuant to s 47 of the Migration Act, the Minister was required to consider a valid application but was not to consider an invalid application.
I am satisfied that the fraud of the migration agent on the applicant stultified the operation of the statutory provisions relating to the assessment of visa applications.
Conclusion in relation to the validity of the visa application
The applicant has established that his migration agent engaged in conduct that amounted to fraud on the applicant, in circumstances where the applicant was not complicit in or recklessly indifferent to the migration agent’s conduct. That conduct stultified the operation of the provisions of the Migration Act, in particular s 47 of the Migration Act (which in turn, stultified the review conducted by the Tribunal). Consequently, the visa application was invalid.
UTILITY AND RELIEF
The relief sought by the applicant includes a declaration that the applicant’s application for a skilled visa was vitiated by fraud and is invalid, a writ of certiorari to quash the Tribunal’s decision, a writ of mandamus to require the Tribunal to reconsider the matter according to law and costs.
Although the applicant acknowledged that he does not meet the criteria for the grant of the visa and no longer wants this visa, the applicant submitted that there is utility in granting the relief sought. I am satisfied that there is utility in granting relief to the applicant. A declaration that the visa application is invalid will have the effect that the applicant will not be subject to the operation of s 48 of the Migration Act, which restricts the types of visas that the applicant may apply for onshore in circumstances where he does not hold a substantive visa and, after last entering Australia, was refused a visa. The Full Court said in Singh at [51] in relation to s 48:
The issue of the operation of s 48 of the Migration Act where it is claimed that there has been fraud by a third party on a visa applicant, which fraud has affected the decision-making process in relation to that visa application, is a matter of real interest to both the appellant and the Minister. Furthermore, the issue is one which affects not only the appellant here, but also other visa holders whose visa applications are rejected in circumstances where there is fraud on the part of a migration agent or third party and the relevant statutory processes are also stultified. There is considerable public interest in the due and lawful administration of statutory provisions in the Migration Act relating to such matters as the making of visa applications and their determination and review in circumstances where there has been fraud on the part of a third party. As the High Court observed in SZFDE at [11], these concerns, which arise in a public law context, relate to the due administration of the laws of the Commonwealth and have important constitutional underpinnings.
The applicant also gave evidence that he has applied for a partner visa and submitted that the visa application is subject to the Schedule 3 criteria, which can only be waived if there are compelling reasons for not applying those criteria: see cl 820.211(2)(d)(ii) in Schedule 2 to the Regulations. The applicant submitted that a declaration of invalidity will also assist the applicant to meet the relevant criteria.
The Full Court of the Federal Court confirmed in Singh that this Court has jurisdiction to grant declaratory relief where a visa application is invalid. I am satisfied it is appropriate to grant declaratory relief in the present case.
I am also satisfied it is appropriate to grant a writ of certiorari to quash the Tribunal decision, on the basis that the Tribunal decision is affected by the fraud in the visa application process.
I accept the Minister’s submission that it is not appropriate to issue a writ of mandamus to require the Tribunal to reconsider the matter according to law. The Tribunal should not be compelled to reconsider a review application in circumstances where the underlying visa application has been declared to be invalid.
The applicant made submissions on costs, but the Minister has not yet made submissions in relation to the applicant’s costs in the event that the applicant is successful. I will hear further from the parties before making a costs order.
I certify that the preceding seventy-nine (79) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Ladhams. Associate:
Dated: 30 August 2024
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