Louis-Jean v Minister for Immigration
[2010] FMCA 710
•21 September 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| LOUIS-JEAN v MINISTER FOR IMMIGRATION & ANOR | [2010] FMCA 710 |
| MIGRATION – Migration Review Tribunal – subclass 572 Vocational Education and Training sector visa – condition 8517 – failure to maintain adequate arrangements for the education of a school-age dependant – cancellation – dob-in letter – whether substance of letter conveyed under s.359A – whether Tribunal adequately explained in its s.359A letter that it might find that the applicant was deceitful. |
| Migration Act 1958 (Cth), ss.116, 359A Migration Regulations1994, reg.1.03 |
| Applicant: | MARIE FRANCESCA LOUIS-JEAN |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | MLG 376 of 2010 |
| Judgment of: | Riley FM |
| Hearing date: | 3 August 2010 |
| Date of Last Submission: | 3 August 2010 |
| Delivered at: | Melbourne |
| Delivered on: | 21 September 2010 |
REPRESENTATION
| Counsel for the Applicant: | GM Hughan |
| Solicitors for the Applicant: | Waters Lawyers Pty Ltd |
| Counsel for the First Respondent: | David Brown |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application filed on 15 March 2010, and amended on 2 August 2010, is dismissed.
The applicant pay the first respondent’s costs, fixed in the sum of $5,865.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 376 of 2010
| MARIE FRANCESCA LOUIS-JEAN |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an application for review of a decision of the Migration Review Tribunal. In that decision, the Tribunal affirmed a decision cancelling the applicant’s visa.
The applicant obtained a subclass 572 Vocational Education and Training sector visa in Mauritius on 5 February 2008. She travelled to Australia on that visa on 22 April 2008. The applicant was granted another subclass 572 visa in Australia on 22 May 2008. It was subject to condition 8517. That condition provided that the visa holder:
must maintain adequate arrangements for the education of any school-age dependant of the holder who is in Australia for more than 3 months as the holder of a Subclass … 572 … visa (as a person who has satisfied the secondary criteria) …
The term “school-age dependant” is defined in regulation 1.03 of the Migration Regulations 1994 to mean:
in relation to a person, … a member of the family unit of the person who has turned 5, but has not turned 18.
On 29 June 2009, a delegate of the Minister notified the applicant that he was considering cancelling the visa granted on 22 May 2008 for breach of condition 8517.
The applicant did not dispute that her son, Hans Brian Pierre Louis-Jean, who was born on 29 August 1992 (“Brian”), was at all material times a member of her family unit who had turned 5 but had not turned 18. When the applicant was granted the visa in question on 22 May 2008, Brian was 15 years old.
In her response dated 1 July 2009 to the notice of intention to cancel her visa, the applicant admitted that Brian had not attended any school since arriving in Australia on 22 April 2008, about 14 months earlier.
The delegate cancelled the applicant’s visa on 28 July 2009. The applicant applied to the Tribunal for review of that decision on
17 August 2009.
The Tribunal conducted a hearing on 16 December 2009. The Tribunal’s summary of the hearing appears at paragraphs 15 to 24 of its reasons for decision and is as follows:
15.The applicant said that her purpose in coming to Australia was to study pastry-cooking, so that she and her family could have a better life. She agreed that she had no background in that or any allied area of work, although she did some cooking at home.
16.The applicant said that her two sisters-in-law and their families had also come to Australia on student visas at about the same time, and all used the same agent. The Tribunal asked whether the applicant had discussed her plans with either of her sisters-in-law before leaving Mauritius. She initially denied having discussed them with any of her family, but after the Tribunal asked whether she was seriously claiming that, purely by coincidence, all three family members had spontaneously decided to sell their possessions, quit their jobs, withdraw their children from school, enrol in tertiary courses in Australia and apply for student visas, using the same agent, she said that she never discussed her plans with Sophie Theodore, but did mention them to Georgina Casse. She claimed that Sophie only announced her own plans about one week before her departure, when she came to say goodbye.
17.The applicant said that after she arrived in Sydney, she found that the college in which she was supposedly enrolled in a Business Management course did not exist. The man who met them at the airport demanded money to assist them, and there was no accommodation arranged. She and her family therefore travelled to Melbourne, and sought help from Sophie Theodore and her family, and enrolled herself in a patisserie course. The Tribunal asked for how long Sophie had been in Australia at that stage. She said that it was about three months. Asked whether Sophie and her family had been similarly defrauded by the agent in Mauritius, she said they had. The Tribunal asked whether Sophie had warned her of this man’s activities. The review applicant said she had not. She did not contact the review applicant after she left Mauritius. The Tribunal asked whether the review applicant contacted Sophie to let her know she was also coming to study in Australia. She said she had not. The Tribunal asked whether the applicant was asking it to accept that she was close enough to her sister-in-law to seek assistance from her and stay with her when she found herself stranded in Australia, but not to contact her to let her know she was about to relocate to the same country. She said that that was her claim.
18.The Tribunal pointed out that the applicant had initially stated under oath that she wanted to come to Australia to study patisserie. But if that were so, why had she enrolled in a Business Management course? After much hesitation, she said that she really wanted to study patisserie, but that the agent had told her that the only courses available were in Business Management. When that fell through, she found she could study patisserie in Melbourne, where her sister-in-law lived. She agreed that her sister-in-law’s husband also studied patisserie in Melbourne. The Tribunal pointed out that it seemed an extraordinary and serendipitous coincidence that the supposedly sudden and unforeseen collapse of her agent’s arrangements in Sydney should result in her moving to live with or near her family in Melbourne (the same family who had allegedly not forewarned her of the agent’s fraud), and to enrol within a few days of her arrival in the very course she claimed that she really wanted to study.
19.The applicant said that her son Brian attended school in Mauritius, and the intention had been for him to undertake technical and trade education. He was not academically inclined and had some problems at school, but was good with his hands, and a career in one of the trades seemed the best choice for him. The Tribunal asked whether, before she left Mauritius, she had made any arrangements for his schooling in Australia. She said that the agent arranged everything. The Tribunal pointed out that she had earlier said that Brian’s educational needs were not straightforward, and asked whether she had taken the trouble to check whether the agent’s choice of school was suitable for him. She said she had not. After further questioning, she claimed that she had been told by the agent that this would be the best school for him.
20.The applicant said that she knew that Brian was required to attend school, and tried to enrol him in several in Melbourne, but without success. She claimed to have approached four in Doveton and one in Mornington, but that their fees were out of the applicant’s reach, or they were not authorised to accept international students. It was three months before he was finally enrolled, in July 2009, and a further three months before he actually attended classes, in October 2009. The applicant said that he spent this period studying English with a private tutor for about 2 hours weekly. Asked how he spent the rest of his time for those six months, the applicant said that he played football and worked part-time at a stable.
21.Asked about the matters that PAM3 suggests that decision makers should take into account when considering whether to exercise a discretionary power to cancel a visa, the applicant said that she had sold everything before coming to Australia. The Tribunal said that since she had only received a temporary student visa, that seemed a somewhat risky course to take. She then said that she sold everything because she needed the funds to get to Australia and meet her expenses. She said that her mother–in-law owned the house in which they lived, and it was now occupied by a niece. She agreed that she and her husband still had close family members in Mauritius.
22.The Tribunal asked what progress she had made in the patisserie course. She said that she had completed 7 or 8 subjects, and had up to 20 left to complete in a Certificate III course. She had not been studying since the visa was cancelled in July 2009. She said that she wanted to finish the course, and that it would cost a further AUD$13,000. The Tribunal asked whether she had the funds. She claimed that she had. The Tribunal reminded her that she had sought a waiver of the Tribunal’s filing fee on grounds of financial hardship, and asked again whether she had the AUD$13,000 or not. She said that ‘a friend’ would meet these costs, but seemed most reluctant to identify him or her.
23.The applicant’s husband said that he had worked in a stable for four months, but had then found work in a factory, sanding timber. He was a plumber in Mauritius, but was not trade accredited in Australia. He had falsely been led to believe that he could work as a plumber without any difficulties.
24.The applicant’s three friends and her assistant all spoke in her support.
The Tribunal noted in its reasons for decision that, under s.116(1) of the Migration Act 1958, a visa may be cancelled on various grounds, including the ground that a visa holder has not complied with a condition of the visa. The applicant apparently did not dispute that she had not maintained adequate educational arrangements for Brian. The Tribunal concluded that a ground for cancellation existed in the present case.
The Tribunal noted that, in prescribed circumstances, a visa must be cancelled. However, none of those circumstances existed in the present case. Consequently, the Tribunal had a discretion whether to cancel the visa or not. In considering the exercise of its discretion, the Tribunal had regard to the various matters set out in the departmental guidelines.
Relevantly, given the grounds of review, the Tribunal said at paragraph 34 of its reasons for decision that:
34.The applicant has also claimed, largely by implication, that she had made arrangements through the fraudulent migration agent, Siddiqui, for Brian to be enrolled at a private Christian secondary college in NSW, but that those arrangements fell through when it became apparent that the arrangements and fee payments had not in fact been made. The Tribunal rejects that claim, primarily on the basis that it is satisfied, for reasons to be discussed below, that the applicant was fully aware before she departed Mauritius that she was being defrauded, and that there was little or no likelihood that any of the arrangements allegedly effected by Siddiqui, whether for Brian’s education or her own, would materialise. The applicant was, in the Tribunal’s assessment, willingly complicit in the fraud, believing that she would, like her relatives already in Australia, be able to present herself to the Australian immigration authorities as the innocent and unwitting victim of a cruel fraud, and to seek to remain here on that basis. In the Tribunal’s assessment, the loss of the education fees was a price the applicant was willing to pay to gain entry to Australia, and to maximise her chances of remaining here.
The Tribunal later said, under the heading, “The circumstances in which the ground for cancellation arose (for example, whether extenuation or compassionate circumstances outweigh the grounds for cancelling the visa)”:
The applicant has strenuously sought to present herself as the unwitting and innocent victim of a fraud perpetrated by an unscrupulous migration agent in Mauritius, and on that basis, sought to be allowed to remain in Australia. She has claimed that coincidentally, she and her two sisters-in-law and their families had also come to Australia on student visas at about the same time, and all used the same agent. She initially denied, when questioned by the Tribunal, having discussed her plans with either of her sisters-in-law before leaving Mauritius, but when asked by the Tribunal whether she was seriously asking it to accept that, purely by coincidence, all three family members had spontaneously decided to sell their possessions, quit their jobs, sell their businesses, withdraw their children from school, enrol in tertiary courses in Australia and apply for student visas, using the same agent, the applicant amended her story, claiming that she never discussed her plans with Sophie Theodore, but did mention them to Georgina Casse. She claimed that Sophie only announced her own plans about one week before her departure, when she came to say goodbye.
Questioned about another key aspect of her claim to have been a victim of fraud, the applicant said that after she arrived in Sydney, she found that the college in which she was supposedly enrolled in a Business Management course did not exist. As well, the man who met them at the airport demanded money to assist them, and there was no accommodation arranged. She claimed that she and her family immediately travelled to Melbourne, and sought help from Sophie Theodore and her family, and enrolled herself in a patisserie course. She asked the Tribunal to accept that despite enjoying the degree of closeness that allowed her to take up residence with Sophie Theodore within a day of allegedly discovering that she had been defrauded, Sophie had not forewarned her of the agent’s dishonesty, despite having been defrauded by him herself only a few months earlier. She also asked the Tribunal to accept that she had never let Sophie know - even when she allegedly came to say goodbye - that she, too, was travelling to Australia to study. The Tribunal rejects all of these claims as irretrievably implausible, designed to buttress the applicant’s presentation of herself as a hapless victim of the agent’s guile and dishonesty. The Tribunal finds that the applicant and her relatives were abundantly aware of each others’ plans to migrate to Australia, using the Student visa scheme, and all knowingly used the services of the same agent. The Tribunal finds that the applicant was notified of the agent’s fraud by at least one of her two sisters-in-law after they arrived in Australia, but that she decided to turn the situation to her advantage, allowing herself to be ‘duped’ by the agent, having previously made arrangements to travel to Melbourne to stay with Sophie Theodore and enrol in a patisserie course. While the Tribunal gives no evidentiary weight to the ‘dob-in’ letter from a member of the community, it notes the congruence of those allegations with the Tribunal’s own view of the applicant’s circumstances and activities, and the somewhat inadequate quality of her response to its invitation to comment under s.359A of the Act. (emphasis added)
Returning to the question of Brian’s education, the Tribunal finds as a corollary that the applicant never expected him to attend the Christian college in Sydney, which in itself may explain the incongruity implicit in her showing little interest in the arrangements that the agent had allegedly made, despite claiming that Brian had special educational needs.
In essence, the Tribunal finds that the applicant colluded or acquiesced in the agent’s deceit. It therefore completely rejects her claim to have been the innocent victim of an unscrupulous confidence trickster.
The Tribunal, after considering various other matters, affirmed the delegate’s decision.
Ground 1
Ground 1 of the applicant’s amended application filed on 2 August 2010 is:
The Tribunal erred in the exercise of its jurisdiction by failing to comply with the obligations imposed on it by s. 359A of the Migration Act 1958 in respect of what is described as “the ‘dob-in’ letter”.
Particulars
a.The Tribunal considered that the contents of the ‘dob-in’ letter would be the reason, or a part of the reason, for affirming the decision under review.
b.The Tribunal did not give the Applicant the particulars of the information contained in the ‘dob-in’ letter or the substance of that information.
c.The Tribunal did not ensure before or at the hearing of the application for review that the Applicant understood why the information contained in the ‘dob-in’ letter was relevant to the review and the consequences of reliance on this information in affirming the decision that was under review.
d.The Tribunal did not invite the Applicant to comment on or respond to this information before or at the hearing of the application for review.
e.Despite failing to comply with s. 359A in respect of the ‘dob-in’ letter, the Tribunal relied upon the information contained in the letter in that it noted the “congruence of those allegations with the Tribunal’s own view of the applicant’s circumstances and activities”.
The applicant argued that, notwithstanding the Tribunal’s assertion that it had given no weight to the dob-in letter, it clearly had taken the letter into account, because the Tribunal noted the congruence between the allegations in the dob-in letter and the Tribunal’s own view of the applicant’s circumstances and activities. The applicant argued, that, in such circumstances, the Tribunal was obliged under s.359A of the Migration Act 1958 to indicate to the applicant the substance of the dob-in letter. The applicant expressly submitted that there was no obligation on the Tribunal to identify the writer of the letter, or provide a copy of the letter.
The Tribunal sent the applicant a letter dated 15 January 2010 under s.359A of the Act. It said, relevantly, that:
You are invited to comment pursuant to s.359A of the Act on information that, contrary to your claims at the hearing, before you left Mauritius, you were aware of the fraud perpetrated by the agent, Mr Siddiqui, on other people, including members of your extended family, but decided to come to Australia anyway, knowing that there would be no accommodation, no college for you and no school for Brian.
This would be the reason, or part of the reason, for affirming the decision under review because it calls into question your claim to be the unwitting victim of a fraud, and your credibility more generally. It also indicates that you knowingly failed to make adequate arrangements for Brian’s education, as required by condition 8517.
The applicant replied to the s.359A letter, with the assistance of her authorised recipient, saying essentially that her claims were true.
At the hearing before this court, there was some discussion about whether it should or should not be inferred that the s.359A letter contained the substance of the dob-in letter. That discussion was overtaken by the Minister’s solicitor (following the hearing, and following discussion, I understand, with the applicant’s counsel) providing to the court and the applicant’s counsel a redacted copy of the dob-in letter.[1] Neither party, after the dob-in letter was made available, sought to make further submissions.
[1] Exhibit A is the redacted copy of the dob-in letter and an email to the court from the Minister’s solicitor explaining the arrangement with the applicant’s counsel.
I have looked at the redacted copy of the dob-in letter. It is quite difficult to follow, partly because of the occasional deletions, and partly because it is written in imperfect English. However, the gist of it seems to be that:
a)a member or members of the applicant’s family had used the same agent in Mauritius that the applicant used and, consequently, the applicant knew everything that would happen when she came to Australia;
b)the applicant went directly to Melbourne after arriving in Australia;
c)her husband was working full time in a particular factory cash in hand, but only declaring 20 hours per week;
d)the applicant does not speak, read or write English but she would soon have a diploma and then a Certificate III in hairdressing; and
e)the children do not go to school.
In relation to paragraph 19.a above, the applicant herself told the Tribunal that she had used the same agent as her two sisters-in-law.[2] Consequently, that was not a matter that needed to be disclosed under s.359A. The allegation in the dob-in letter that the applicant “knew everything that would happen” when she came to Australia was clearly conveyed by the Tribunal in its s.359A letter saying that the applicant came to Australia “knowing that there would be no accommodation, no college for you and no school for Brian”.
[2] Paragraph 16 of the Tribunal’s reasons for decision
In relation to paragraph 19.b above, the applicant herself told the Tribunal that she went to Melbourne about three months after arriving in Australia.[3] Whether a three month delay fits within the concept of “directly” may be open to question. However, the Tribunal apparently accepted that the applicant did go to Melbourne three months after her arrival. That is, the allegation that the applicant went “directly” to Melbourne, if that means “immediately”, does not seem to have played a part in the Tribunal’s reasons for decision. Consequently, that was not a matter that needed to be disclosed under s.359A.
[3] Paragraph 17 of the Tribunal’s reasons for decision
In relation to paragraph 19.c above, the allegation that the applicant’s husband was working full time cash in hand is not reflected in the Tribunal’s reasons for decision. That is, the supposed facts underlying the allegation do not appear to have been a part of the Tribunal’s reasons for decision. As such, the allegation did not need to be disclosed under s.359A.
In relation to paragraph 19.d above, whether or not the applicant speaks, reads or writes English does not appear to have been a part of the Tribunal’s reasons for decision. Accordingly, the allegation about those matters did not need to be disclosed under s.359A. The allegation that the applicant was enrolled in a Certificate III in hairdressing appears to have been mistaken. The applicant told the Tribunal, and the Tribunal apparently accepted, that she was enrolled in a Certificate III in patisserie. Consequently, the allegations in paragraph 19.d above did not need to be disclosed under s.359A.
In relation to paragraph 19.e above, the allegation that Brian was not attending school was disclosed to the applicant in the notice of intention to consider cancellation of the visa (CB34), and was the reason for the cancellation of the visa by the delegate (CB56 – 68). That allegation was well and truly disclosed to the applicant. The applicant had another child, Yoan, who was only two years old. He was too young to attend school. Consequently, to the extent that the allegation included him, it was nonsense and did not need to be disclosed under s.359A.
The applicant did not submit that there was a residual common law obligation to provide the substance of the dob-in letter to the applicant. However, to the extent that there might be such an obligation, I consider that the Tribunal did in fact provide to the applicant such of the information contained in the dob-in letter as could be regarded as credible, relevant and significant.
This ground is not made out.
Ground 2
Ground 2 of the amended application is:
The Tribunal erred in the exercise of its jurisdiction by failing to comply with the obligations imposed on it by s. 359A of the Migration Act 1958 in respect of the allegation that before she left Mauritius the Applicant was aware of the fraud perpetrated by the agent Mr Siddiqui on other people including members of the Applicant’s extended family (“the information”).
a.The Tribunal considered that the information would be the reason, or a part of the reason, for affirming the decision under review.
b.The Tribunal purported to comply with s. 359A in respect of the information by writing to the Applicant by letter dated 15 January 2010.
c.In the letter of 15 January 2010 the Tribunal invited the Applicant to comment on the information and stated that it “would be the reason, or part of the reason, for affirming the decision under review because it calls into question your claim to be an unwitting victim of fraud, and your credibility more generally” and “also indicates that you knowingly failed to make adequate arrangements for Brian’s education, as required by condition 8517”.
d.In its decision the Tribunal used the allegation to reach the conclusion that the Applicant had behaved “deceitfully towards the Department” in considering whether to exercise the discretion to cancel her visa.
e.The Tribunal did not advise the Applicant that it intended to use the information in this way or otherwise attempt to ensure that the Applicant understood why the information was relevant to the review and the consequences of reliance on this information in affirming the decision that was under review.
The applicant submitted that the Tribunal inadequately explained the relevance of the information provided in the s.359A letter. The deficiency was said to be that the Tribunal did not state explicitly that it might conclude that the applicant had “behaved deceitfully towards the Department”: CB100.5.
The Tribunal said that the relevance of the information was that it:
calls into question your claim to be an unwitting victim of fraud, and your credibility more generally
and
indicates that you knowingly failed to make adequate arrangements for Brian’s education, as required by condition 8517.
It is true that the Tribunal did not expressly state that the information provided in the s.359A letter might be used to support a conclusion that the applicant had behaved deceitfully towards the Department. However, in context, that is clearly what the Tribunal meant, and I daresay, what the applicant would have understood. That is apparent from the applicant’s response, where she said repeatedly that she had told the truth: CB88.
Moreover, the delegate stated in his decision (at CB63.4) that:
I am satisfied that the visa holder was complicit in giving incorrect information to the department which mislead (sic) the original decision-maker …. I am not satisfied that the visa holder’s behaviour towards the department has been satisfactory.
Being “complicit in giving incorrect information” is tantamount to being deceitful. The question of whether the applicant told the truth to the department, or lied to the department, was obviously a prominent issue in the case.
In my view, the Tribunal, in the context of this case, adequately explained the relevance of the information provided in the s.359A letter. This ground is not made out.
Conclusion
As neither of the applicant’s grounds has been made out, the application must be dismissed with costs.
I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Riley FM
Date: 21 September 2010
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