Majid v Minister for Home Affairs
[2020] FCCA 3186
•27 November 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MAJID & ORS v MINISTER FOR HOME AFFAIRS & ANOR | [2020] FCCA 3186 |
| Catchwords: MIGRATION – Migration Act 1958 (Cth) – Fraud in relation to Subclass 457 visa application – application for judicial review of decision of Administrative Appeals Tribunal which found that it did not have jurisdiction to review a decision of the Delegate of the Minister for Home Affairs refusing to grant to the applicants Temporary Work (Skilled) (Class UC) (Subclass 457) visas and further for a declaration that the original application to the Minister for Subclass 457 visas was not a valid application under s.46 of the Migration Act 1958 (Cth) – Applicants claimed that the migration agent who formerly represented them committed fraud on them and on the Department of the Minister which had the effect of stultifying the decision-making process – HELD: former migration agent is a dishonest fraudster and acted fraudulently – however first applicant colluded with the former migration agent and was complicit in the fraud – no jurisdictional error established – application for judicial review dismissed |
| Legislation: Evidence Act 1995 (Cth), s.91 Migration Act 1958 (Cth), ss.46, 47, 48, 65, 140E, 140GB Migration Regulations 1994 (Cth) |
| Cases cited: Heo v Minister for Immigration [2020] FCCA 586 Kang v Bishop & Ors [2018] NSWSC 46 Twyne’s Case [1601] 76 E.R. 809 |
| First Applicant: | MOHAMMED MAJID |
| Second Applicant: | SHAESTA KOWNAIN |
| Third Applicant: | SAFA MAJID |
| Fourth Applicant: | ZAYAN MOHAMMED |
| First Respondent: | MINISTER FOR HOME AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 780 of 2019 |
| Judgment of: | Judge Dowdy |
| Hearing dates: | 8 November 2019, 2 December 2019 and 16 December 2019 |
| Date of Last Submission: | 20 December 2019 |
| Delivered at: | Sydney |
| Delivered on: | 27 November 2020 |
REPRESENTATION
| Counsel for the Applicants: | Mr P. Guan |
| Solicitors for the Applicants: | Paul Guan & Associates |
| Counsel for the First Respondent: | Mr G. Johnson of Counsel |
| Solicitors for the First Respondent: | Sparke Helmore |
THE ORDERS OF THE COURT ARE AS FOLLOWS:
By consent, order that the Third Applicant cease to be a party to this proceeding under Rule 9.08 of the Federal Court of Australia Rules 2011 as a party who had been improperly joined.
Grant leave to the Applicants to file in Court on 16 December 2019 a Further Amended Application dated 14 December 2019.
The Further Amended Application is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 780 of 2019
| MOHAMMED MAJID |
First Applicant
| SHAESTA KOWNAIN |
Second Applicant
| SAFA MAJID |
Third Applicant
| ZAYAN MOHAMMED |
Fourth Applicant
And
| MINISTER FOR HOME AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The Applicants in this proceeding are as follows:
a)the First Applicant is a male citizen of India aged 40 years;
b)the Second Applicant is a female citizen of India aged 29 years and is the wife of the First Applicant;
c)the Third Applicant is a female citizen of India aged 3 years and is the daughter of the First and Second Applicants. At the hearing on 16 December 2019 Mr G. Johnson of Counsel, who appeared for the Minister, and Mr Guan, who appeared for the Applicants, agreed that she should cease to be a party to the proceeding; and
d)the Fourth Applicant is a male citizen of India aged 5 years and is the son of the First and Second Applicants.
(collectively the Applicants)
By Further Amended Application filed in Court on 16 December 2019 the Applicants seek declaratory relief to the effect that the application by the First Applicant (with the Second and Fourth Applicants applying as members of his family unit and dependent upon the success of his application) for a Temporary Work (Skilled) (Class UC) (Subclass 457) visa (Subclass 457 visa) lodged electronically on 1 June 2017 with the Department (Department) of the First Respondent, the Minister for Home Affairs (Minister), was not a valid one within the meaning of s.46 of the Migration Act 1958 (Cth) (the Act). I note that by force of s.47(3) “the Minister is not to consider a [visa] application that is not a valid application”.
Subsequent to the lodging of the Subclass 457 visa application the Second Respondent, the Administrative Appeals Tribunal (Tribunal), in its decision dated 12 March 2019 had found that it did not have jurisdiction to review the decision of the Delegate (Delegate) of the Minister dated 18 June 2018 refusing to grant to the First Applicant a Subclass 457 visa under s.65 of the Act.
Background
As at 1 June 2017 the First Applicant was the holder of a Student (Vocational Education and Training Sector) (Subclass 572) visa (Student visa), which was to cease on 4 June 2017. He had been living, studying and working in Australia since his first arrival for the purpose of study in 2008 and he had thereafter obtained in Australia a Diploma of Business, Advanced Diploma of Business, Advanced Diploma of Management, a Diploma of Marketing, an Advanced Diploma of Marketing, a Certificate IV of Accounting and a Diploma of Accounting. In 2012 he had married the Second Applicant and as at 2017 had one child. On his own evidence, as at around April 2017 he “much wished to have a permanent visa to stay in Australia”.
By a written contract for services dated 20 April 2017 (the contract) the First Applicant retained Goldman Pintex Management Pty Ltd (Goldman Pintex) to represent him in relation to obtaining a Subclass 457 visa and permanent residency for a total consideration of $55,000, payable by four instalments conditional upon certain events, which were $7,000 payable upon execution of the contract, $23,000 upon Goldman Pintex obtaining an employment contract for the First Applicant and lodging his Subclass 457 visa application, $15,000 upon approval of a Subclass 457 visa and $10,000 upon attaining permanent residency. In relation to his retention of Goldman Pintex, the First Applicant stated in his affidavit affirmed on 10 December 2019 as follows:
[5] I knew that an employment sponsored visa could be a good option for me. However, I could not have an employer who was willing to sponsor me for a 457 visa and then a permanent visa.
[6] In April 2017 I came across a company in the Facebook, which was known as Goldman Pintex, and they said that they could assist to find an employer to sponsor for an employed sponsor visa.
[7] I was very excited and tried to contact them to help me, because my visa would expire soon. If I was not able to have my visa renewed, I would have to leave Australia.
[8]I eventually got an appointment with the company, Goldman Pintex.
[9] When I went to see them on 20 April 2017, the company and the people working there impressed me a lot.
[10] The company was located in a very good office building, and I saw many young professionals working there.
[11] The company CEO, Ted and another guy called Ken received me. They were professional, polite and confident.
[12] They listened to my story and then said to me that they could help me. They would find an employer who would like to sponsor me for a 457 visa and then a permanent visa. He further guaranteed to me that they would give a full refund if it was not successful.
[13] I was very happy and believed that they could help me, as they looked so professional and confident.
[14] I then signed the service contract with Goldman Pintex Pty Ltd and paid $3500 on that day, and then tried my best to pay all their fees, as they said that they would not file my sponsorship application until I have made a full payment of their fee $35000.
Notwithstanding its preparation and lodging on 1 June 2017 by Goldman Pintex, the Subclass 457 visa application form made no reference to Goldman Pintex as representing the Applicants, but rather denied the involvement or assistance of any other person in completing the form and so appeared on its face as if it had been prepared by the First Applicant himself without assistance. The email address given for communications from the Department was not that of the First Applicant, and the evidence does not disclose the owner of that email address (nominated email address). The sponsoring employer nominated in the Subclass 457 application form was Mercury Trading Pty Ltd of Merrylands, Sydney (Mercury Trading) which was represented as intending to employ the First Applicant for guaranteed annual earnings of $55,000.
Decision of Delegate
Pursuant to cl.457.223(4)(a) of Sch.2 to the Migration Regulations 1994 (Regulations) it was a requirement for the grant of a Subclass 457 visa at the time of decision that:
a)a Nomination of an occupation in relation to the First Applicant had been approved under s.140GB of the Act;
b)the nomination was made by a person who was a Standard Business Sponsor at the time the Nomination was approved; and
c)the approval of the Nomination had not ceased as provided for in reg.2.75.
On 18 May 2018 the Department wrote to the First Applicant at the nominated email address inviting his comment on information that his prospective employer and sponsor, Mercury Trading, “does not have an approved nomination for you at this time”. The letter was not received by the First Applicant and no response appears to have been made to this letter by or for the Applicants.
On 18 June 2018 the Delegate refused to grant the First, Second and Fourth Applicants a Subclass 457 visa for the following reasons:
On 18 May 2018, the primary applicant was advised that their prospective sponsoring employer Mercury Trading Pty Ltd did not have an approved nomination in place for them and was provided an opportunity to comment (including providing evidence that they are the subject of an approved nomination) or withdraw the application in writing.
At this time the primary applicant is not the subject of an approved nomination and has not withdrawn the application in writing.
One of the criteria for the grant of a Temporary Work (Skilled) (subclass 457) visa is an approved nomination. The primary applicant is not the subject of an approved nomination at this time.
As the primary applicant is not the subject of an approved nomination at the time this application is being decided, I am therefore not satisfied that paragraph 457.223(4)(a) has been met.
As the Applicant did not satisfy the primary criteria for the grant of the visa, the Delegate found that the Second and Fourth Applicants did not satisfy the requirements for the grant of the visa. The Delegate did not make a decision in respect of the Third Applicant.
The Minister forwarded a notification of refusal letter and the Delegate’s Decision Record both dated 18 June 2018 to the First Applicant, at an email address which was not the nominated email address. The recipient of these documents indicated to the Department on 29 June 2018 that they were not related to her.
By email dated 2 August 2018 the Department then re-sent the notification of refusal letter and the Delegate’s Decision Record to the First Applicant at the nominated email address. This email also did not come to the attention of the First Applicant, but nevertheless constituted notification to the Applicants of the Delegate’s decision as required under the Act.
Decision of Tribunal
On 21 September 2018 the Applicants applied without any involvement of Goldman Pintex to the Tribunal for review of the Delegate’s decision. They gave a copy of the Decision Record of the Delegate to the Tribunal at the same time, together with a statement of the First Applicant dated 21 September 2018, in the following terms:
1.The application was lodged on behalf of me and my family by a migration agent, Goldman Pintex Management at Suite 401 (Level 4)/80 Mount Street, North Sydney NSW 2060 on 1 June 2017, tele: 0434351689
2. I was not given any letters of acknowledgement on this application or correspondence on this application.
3. Every time I went to their office, I was replied to it that the application was still being processed, or its officer, Eddy Kang, known as Ted avoided seeing me
4. I now know that Eddy Kang is a famous cheater on migration matters through the media
5. I captured a shot of TRN from his ImmiAccount in my recent visits to his office two weeks ago. He also told me that my application was still going on.
6. On that day I told him that I have got a newly born child, and he created a sort of invoice with Immi Logo to pay $2455 to adding my child to the application.
7. With the TRN, I got to know that my application had been declined on 18 June 2018. It was very surprised to me.
8. I also got to see an invitation letter to comment but I was never given this letter, which advised that the Immigration will refuse my application, because they have refused the nomination application.
9. I consulted other migration agents that the tribunal might not have jurisdiction to my application if I appealed the decision to it now, as it was more than 21 days.
My arguments
10. I never received this decision by usual means of transmission such as email, post or fax. I got a copy of it through downloading of it from my own ImmiAccount two weeks ago.
11. Accordingly, I should be taken to have received this application two weeks ago, which is 7 September 2018.
12. So, I say that my review application was lodged within 21 days after my receipt of it, and the tribunal has jurisdiction to it.
On 26 November 2018 Mr Guan of ANZIA Immigration Lawyers (Mr Guan) informed the Tribunal that he had been appointed as the Applicants’ solicitor and registered migration agent.
By letter dated 29 January 2019 the Tribunal in short invited the Applicants to comment on whether or not their application to it for review was invalid, because at the time it was lodged the First Applicant had neither been the subject of an approved or pending nomination under s.140GB of the Act nor was there a valid and pending application before the Tribunal for review of a decision not to approve the sponsor under s.140E.
The Applicants responded by Mr Guan’s email of 8 February 2019. This email attached a statement of the First Applicant prepared for the purposes of a New South Wales Fair Trading complaint (NSW Fair Trading complaint). The email from Mr Guan stated:
Dear Tribunal:
The applicant reported it to me that he is a victim of the fake visa rort perpetrated by Eddie Kang. See BBC report below.
zealand/10768242?pfmredir=sm
He is assisting the related authorities and investigator to look into the rort. Attached please find the correspondence between him and the investigator and his statement to be presented to the court.
As a result of the rort, he was not identified in a nomination under s.140GB of the Migration Act 1958 that was either approved or pending, and nor was there a valid and pending application for review before us of a decision not to approve the sponsor under s.140E, or of a decision not to approve the nomination under s.140GB of the Act.
He expects a fair determination on the issue from the tribunal.
Regards,
Paul Guan
I note that correspondence attached to Mr Guan’s email between the First Applicant and a Senior Investigator from NSW Fair Trading recorded that the matter of Mr Edward ‘Ted’ Kang (Mr Kang) was “before the District and Supreme Courts of NSW”.
In his NSW Fair Trading complaint the First Applicant claimed in substance:
a)he can speak English and Hindi;
2017
b)on 20 April 2017 together with a friend he attended the untitled office of Goldman Pintex at 80 Mount Street, North Sydney (Mount Street Office) where he met a young Asian man named Ken and an older Asian man being Mr Kang who said he was the company director and manager of Ken;
c)Mr Kang had him execute the contract and told him that Goldman Pintex would lodge the application for the Subclass 457 visa once he had paid $35,000;
d)from time to time he attended the Mount Street Office to make part payments to Goldman Pintex and on each occasion he met with Ken first;
e)by email dated 5 May 2017 Ms Sally Lee of Goldman Pintex advised the First Applicant that his sponsor was Mercury Trading, of which he said at [33] of the NSW Fair Trading complaint:
[33] Sally had already sent me an email on 05 May 2017 with my IMMI Acknowledgement of Application Received. The Sponsor was a company named 'Mercury Trading Pty Ltd' in Merrylands NSW and the position was for 'Organisation and Methods Analyst'. I don't know what this position is, and I am not qualified for this and its not correct for my skills and background. This is wrong. This Application got reject by Immigration when I called them to find out the status. I even called the owner of the business (Asian guy) and he knew nothing of me, my case or what was happening. He say they are only a small business and he’s very scared.
(emphasis added)
f)on 22 May 2017 the First Applicant paid the final payment of $3,500 to make up the total payment of $35,000, being the amount Mr Kang had asked for prior to lodging the Subclass 457 visa application. On that date he met Mr Kang and he introduced the First Applicant to Sally Lee, who Mr Kang told him was the lawyer and migration agent who would look after his case;
g)he was advised on 1 June 2017 that his Subclass 457 visa application had been lodged on that date and he was happy and Goldman Pintex sent him “all the Immigration documents and papers and I see they have [lodged] the document which is what I paid them for”;
h)on 4 September 2017 Ms Sally Lee told the First Applicant that she had left working for Mr Kang. Around this time the First Applicant went to the office of Goldman Pintex and Mr Kang told the First Applicant that Ms Claudia Skaff was now dealing with his visa application and Ms Skaff arranged for a Bridging visa for the First Applicant to enable him to go and visit his family in India for a couple of weeks;
2018
i)in July 2018 the First Applicant met with Mr Kang and Ken at the Mount Street Office. At [34] of the NSW Fair Trading complaint the First Applicant stated:
[34]Then after a few days of texting Ted agree to meet with me at his office in July this year. I ask him what’s going on? So then he tell Ken to go apply for me to this new company called ‘Shah and Tiwanas Pty Ltd’. Ken brought the paperwork to me to show me, and I cannot believe they could do all this in the one day so quickly – how could they get this approval just like that, something wasn’t right they can just go make up something like that using details.
j)on 6 September 2018 the First Applicant found out from “Visa Status Entitlement Verification Online” that his Subclass 457 visa application had been refused, as it had on 18 June 2018;
k)he went to the Department which told him that he would have to apply to the Tribunal;
l)he went to the Mount Street Office and saw Ken who told him that his Subclass 457 visa application was “under process”;
m)at [40] – [41] of the NSW Fair Trading complaint the First Applicant concluded:
[40] Ted was the 'Managing Director' at GPM. His contact number is '0434 351 689' and his email is 'Hedge Fund Property Developer' <nzmi2009@gmail.com>. He is the boss, he is in charge, everything that happens is at his decision.
[41]The last time I went to see Ted was in late September 2018. I went to ask my Visa status. He just say the "process is ongoing", but I don't think anything is going to happen. Ted doesn't know that I found [out] my Visa is refused so I keep him thinking that I am depending on him, because I want to see what he is going to do.
By Decision Record dated 12 March 2019 the Tribunal determined that it did not have jurisdiction in the matter. The Tribunal referred to the relevant provisions of the Act and Regulations and at [4] stated:
[4] For an applicant who claims to be nominated by a standard business sponsor, a nomination of an occupation in relation to the applicant must have been approved under s.140GB of the Act and the nomination made by a person who was a ‘standard business sponsor’ at the time the nomination was approved: cl.457.223(4)(a) of Schedule 2 to the Regulations. A ‘standard business sponsor’ is a person who is an ‘approved sponsor’; and is approved as a sponsor in relation to the standard business sponsor class by the Minister under s.140E(1) of the Act: ss.5 and 140E of the Act and rr.1.03 and 2.58 of the Regulations. It is therefore a criterion for the grant of the visa that the non-citizen is sponsored by an approved sponsor and s.338(2)(d) applies: Ahmad v MIBP [2015] FCAFC 182 (Katzmann, Robertson and Griffiths JJ, 16 December 2015) (Ahmad) at [95] - [96].
The Tribunal took into account the submissions advanced to it by the Applicants through Mr Guan concerning allegations of a fake visa rort by Mr Kang and the Applicant’s NSW Fair Trading complaint. At [9] of its Decision Record the Tribunal expressed its empathy for the First Applicant, but concluded that it was “nonetheless bound by the legislation” and that it did not “have the ability to choose when it has jurisdiction”.
At [10] – [11] of its Decision Record the Tribunal found as follows:
[10] The Tribunal finds that, at the time the application to review the decision to refuse to grant the visa was made, the applicant was not ‘sponsored’ by an ‘approved sponsor’ and no review of a decision not to approve the sponsor was pending. Accordingly, the requirements of s.338(2)(d) were not met.
[11] As such, the delegate’s decision in the circumstances is not a reviewable decision under s.338(2) or under any of the other subparagraphs of s.338 and r.4.02(4).
Accordingly the Tribunal found that it did not have jurisdiction to review the decision of the Delegate.
Relevant Procedural History
This matter commenced by the Applicants themselves filing an Application on 29 March 2019, with a first return date of 10 May 2019. The Ground of the Application referred to “a fake visa rort” and claimed that the Tribunal had not given the Applicants a chance to appear before it prior to making a decision and was biased in concluding that it did not have jurisdiction to review the Delegate’s decision.
On 10 May 2019 the Court made consent orders to get the matter ready for hearing and a final hearing date was set for 8 November 2019.
On 7 November 2019 I read the file in preparation for the hearing on the following day and had my Associate on that afternoon send the following email to the parties:
Dear Parties,
His Honour enquires why in substance this case ought not to be regarded as an application for declaratory relief that there was never any valid 457 visa application because of 3rd party fraud, which stultified the assessment and determination of the said visa application in accordance with the processes set out in the Migration Act: see generally Maharjan v Minister for Immigration [2017] 161 ALD 233, and particularly at [37]?
Further, his Honour considers that the Exhibits referred to on CB74 to the Statement made to NSW Fair Trading should have been in the Court Book and should be made available tomorrow as evidence in the case.
Regards,
Associate to Judge Dowdy
At the hearing on 8 November 2019 when Mr Johnson of Counsel appeared for the Minister and the First Applicant appeared in person, Mr Johnson in acting for a model litigant accepted the pertinence of my Associate’s email of 7 November 2019. I informed the First Applicant that the Exhibits to his NSW Fair Trading complaint ought to be before the Court and he told me that he had them at his home. I then advised him as follows:
HIS HONOUR: All right. Well, all right. Well, I think that’s the first thing to be done, Mr Johnson. I will have him produce them to the court next Friday. Do you know anything about the Mercury Trading Company who was to be your nominee – nominator? Mercury Trading at Merrylands.
MR MAJID: No, because when I applied, he didn’t inform anything about – to – about these things to me.
HIS HONOUR: Well, did you have some employment lined up with them?
MR MAJID: No.
HIS HONOUR: All right. All right. Well, you are – the position is this: you have to show that the decision of the tribunal is wrong and it may be possible for you to show that because of Mr Kang’s activities, the visa application itself from its inception or beginning was invalid. Is that an argument you wish to put, or you don’t know at this point?
It suffices to say that during the period from 8 November 2019 to 16 December 2019 Mr Guan filed a Notice of Appearance and, despite some minor missteps, events occurred which were directed at ensuring that relevant evidence and documentation was before the Court to enable the Applicants to run the sort of case referred to in my Associate’s email. The matter returned for completion of the hearing on 16 December 2019.
Grounds of Attack on Decision of Tribunal in this Court
The orders sought by the Further Amended Application and the Grounds for those orders are as follows:
Final orders sought by applicant/s
·An order that the decision of the tribunal be quashed.
·A declaration that the tribunal's decision was induced or affected by fraud perpetrated on the Department of Home Affairs, the Applicants and itself.
·A declaration that the 457 visa application lodged on 1 June 2017 for the First Applicant and his family was not a valid one within the meaning of s46 of the Migration Act.
Grounds
1. The tribunal made a jurisdictional error because it had failed to take into account relevant information.
Particulars
a.The jurisdictional fact of fraud upon the visa application or the visa application process perpetrated by Goldman Pintex Management Pty Ltd.
b.The fraud had stultified the decision-making process in the sense of SZFDE v Minister for Immigration and Citizenship [2007] HCA 35.
2. The tribunal made a jurisdictional error because its decision was induced or affected by fraud.
Particulars
a.The fraud perpetrated on the Department of Home Affairs and the Applicants by Goldman Pintex Management Pty Ltd was also perpetrated on the Tribunal.
b.The fraud had subverted the operations of the Migration Act and the Tribunal had failed to discharge its due imperative statutory function with respect of the findings as to whether the review application had complied with Section 338(2)(d).
c.Its jurisdiction remained constructively unexercised.
The avowed purpose of the declarations which are sought is to avoid and overcome the preventive terms of s.48 of the Act. It is not now submitted by the Applicants that, independently and separately from this Ground, the Tribunal committed jurisdictional error by finding that it lacked jurisdiction. Even if such jurisdictional error had been committed by the Tribunal, it would have been futile to remit the matter back because of the changes made to the Subclass 457 visa regime on 18 March 2018: see Salh v Minister for Immigration [2019] FCCA 2096 at [36] – [42] and Heo v Minister for Immigration [2020] FCCA 586 at [42] – [45].
In short, the Applicants contend and seek to establish that they never made a valid Subclass 457 visa application because of third party fraud which had the result of stultifying the assessment and determination of their Subclass 457 visa application in accordance with the process as set out in the Act: Maharjan v Minister for Immigration and Border Protection (2017) 258 FCR 1 (Maharjan) at 11 [37] per Gilmour and Mortimer JJ. The relevant area of law has recently been surveyed by the Full Court of the Federal Court of Australia comprised of Murphy, Mortimer and O’Callaghan JJ in Kaur v Minister for Immigration and Border Protection (2019) 269 FCR 464 (Kaur) where at 477 – 478 [56] – [58] they set out the applicable principles in relation to public law fraud of the kind alleged in the present case, as follows:
[56]The principles applicable to the determination of whether fraudulent conduct vitiates a visa application are helpfully set out in the Minister’s written submissions at [6]-[9], and were not disputed by the appellants. They arise from the High Court’s decision in SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189, and four decisions of the Full Court of this Court, and there is no challenge to the correctness of those authorities:
First, the Act does not constitute an exhaustive statement as to when an application for a visa is valid; it “leaves … room for relevant fraudulent conduct on the parties of a migration agent or third party to invalidate an application”(Singh v Minister for Immigration and Border Protection (2016) 247 FCR 554 at [45]). A purported visa application prepared with the assistance of an agent may be invalidated by fraud in accordance with the principles discussed by the High Court in SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189 (Singh at [52]).
Secondly, whether a visa application prepared by a migration agent which includes fraudulent information will be invalidated depends on the role of the applicant. “[I]t is critical to establish whether the visa applicant colluded in the fraud or was, as the Full Court put it in Gill v Minister for Immigration and Border Protection (2016) 248 FCR 398, ‘indifferent as to whether the agent used unlawful or dishonest means to obtain a visa’” (Marharjan at [53], citing Gill at [50]).
Thirdly, whether a purported visa application is valid is a “jurisdictional fact” that the Court must determine for itself (where the issues arises) (Marharjan at [35], [44], [122]).
Fourthly, the applicant has the onus of proving that “she or he has been the (innocent) victim of such a fraud” (Marharjan at [78]). An applicant must satisfy the court to the requisite standard that she or he was “neither complicit in the fraud not ‘indifferent’ to it, in the limited and particular sense explained in Gill and Singh”. “That is, as the Chief Justice observed in SZRUR v Minister for Immigration and Border Protection [2013] FCAFC 146; 216 FCR 445 at [51], a heavy burden”.
[57]To this summary should be added the following propositions articulated by the High Court in SZFDE:
(a) There are important differences between fraud in public and private law, in particular the need in the context of public law for a fraud to have an effect on the processes of the exercise of public power in order for it to vitiate those processes, and be capable of “unravelling” decisions or conduct: see SZFDE at [14], [24]-[27], [29], [42] (by reference to the reasons of French J (in dissent, and as his Honour then was) in the Full Court: Minister for Immigration and Multicultural Affairs v SZFDE (2006) 154 FCR 365), [47]-[49]. One way of expressing this is to ask whether the repository of the public power was “disabled” from performing its statutory functions by reason of the fraud (at [51]).
(b) Often the only effective remedy for victims of fraud in public law is for the tainted decision-making process to be set aside and a “fresh untainted hearing conducted” (at [22]).
(c) Circumstances where an applicant for judicial review has “colluded” in the fraud are excluded from these principles (at [28]).
(d) A finding of fraud should specify “what was said that was fraudulent, how it was fraudulent, and how it was acted upon” (in the words of French J in SZFDE in the Full Court, quoted with approval by the High Court at [41]).
[58]Relevantly for the resolution of the grounds of appeal in this case, the following matters should be emphasised:
(a) The appellants, but in reality the first appellant, bore the onus of proving that she was the “innocent victim” of the undoubted and accepted fraud committed by S & S Migration: see Maharjan v Minister for Immigration and Border Protection (2017) 258 FCR 1 at [78].
(b) While the High Court in SZFDE spoke only of “collusion” by a visa applicant as avoiding the otherwise unravelling effect of fraud in the public law context, authorities in this Court have held that, where a visa applicant is found to be “indifferent” to a fraud perpetrated by a third party as part of the decision-making process, this will also avoid the unravelling effect. We deal at [133]-[140] below with what we consider “indifferent” actually means in this context.
(c) Relevantly to circumstances such as those the subject of this appeal, in order to deny the unravelling effect of a proven fraud, a Court must be satisfied on the balance of probabilities that a visa applicant was (recklessly) indifferent to whether her or his migration agent used unlawful means, or fraudulent information, to attempt to secure the applicant a visa: see Gill at [48]-[49]; SZFDE at [25].
(d) Recalling the point made by French J in the Full Court in SZFDE, it is necessary for the Court to identify with precision what the fraud was, how it was perpetrated, and what effect it had.
Further, it is a requirement of the party claiming third party fraud in a migration context to specify the conduct which was fraudulent, how it was fraudulent and how it was acted upon: see generally SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189 and the recent discussion of the relevant principles in the decision of the Full Court of the Federal Court of Australia comprised of Griffiths, Mortimer and Wheelahan JJ in Minister for Home Affairs v DUA16 (2019) 273 FCA 213 (DUA16), and in particular Griffiths J at 223 [46].
Factual Consideration and Intermediate Findings
I first find that the purpose of the grant of a Subclass 457 visa to a person is for that person to work in Australia for an approved business sponsor in an approved nominated occupation
Further, based on the evidence before me, including in particular the First Applicant’s affidavits of 3 December 2019, 10 December 2019 and his cross-examination at the final hearing, I make the following findings:
a)the First Applicant is no innocent abroad. He had obtained in India before he came to Australia a Bachelor of Commerce degree from a University and in Australia graduated in the courses listed at [4] above which were conducted in the English language. He has held a number of employment positions in Australia since December 2010, including within the security industry, which involved him in fire safety inspection, providing first aid and emergency assistance, providing access to guests and contractors in and out of buildings and handling special circumstances such as noise complaints, intoxicated residents and evictions. He speaks, reads and writes the English language with a reasonable degree of facility. Whilst he had access to an interpreter at the final hearing, he answered questions in cross-examination for the most part without recourse to the interpreter. There is no suggestion that he needed the services of an interpreter in the preparation of his two affidavits;
2017
b)as at April 2017 the First Applicant knew that his Student visa was shortly going to expire and he accepted in cross-examination that he was “quite desperate… to sort out what [his] next visa was going to be”, because otherwise he would have to leave Australia and he very much wished to have a permanent visa to stay in Australia;
c)prior to contacting Goldman Pintex, just before 20 April 2017, he had already decided that he wanted a Subclass 457 visa to permit him to work in Australia and knew:
i)that he would have to be sponsored by an employer; and
ii)that he would have to work for the sponsoring employer because that was the purpose of a Subclass 457 visa.
d)at all material times Goldman Pintex had as its controlling mind and will Mr Kang, notwithstanding that according to an ASIC search of that company Mr Kang was not a director or shareholder;
e)at his first meeting with Mr Kang the First Applicant told him that Goldman Pintex’s fees were too much, but he was willing to pay the significant sums of money required to Goldman Pintex to get his Subclass 457 visa;
f)prior to 5 May 2017 the First Applicant had not been introduced by Goldman Pintex to Mercury Trading or any other prospective employer nor consulted about who was to be his sponsoring employer or any nominated employment role. At [20] – [21] of his affidavit of 10 December 2019 he stated as follows:
[20]However, I was never introduced to any employer, nor did they mention to me which company would like to offer a job for me and would like to sponsor me, nor did they tell me what position they would offer to me.
[21]It appeared to be assured that I would be all right when I had paid all the money they asked for. I would have a sponsored visa and I would have a permanent visa.
I accept the truth of [20] – [21] up to, but not on or after, 5 May 2017: see [31(h)] below.
g)on 5 May 2017 Mercury Trading applied to the Department on separate application forms both for approval as a Standard Business Sponsor and to Nominate the First Applicant to be its employee in the position and occupation of an Organisation and Methods Analyst. That occupation bore code number 224712 from the Australian and New Zealand Standard Classification of Occupations and involved the study of organisational structures, methods, systems and procedures and included the specialisations of Change Management Facilitator, Industry Analyst, Quality Auditor and Skills Auditor. Neither application form made any reference to Goldman Pintex, but each had been wholly prepared by Goldman Pintex as part of the services provided to the First Applicant under the contract. The two application forms were deliberately false and misleading in that Mercury Trading had in truth never agreed to employ the First Applicant in any employment role and knew nothing about him;
h)by way of an email from Ms Sally Lee dated 5 May 2017, with attachments which the First Applicant read, he was informed by Goldman Pintex that his proposed sponsor and employer was Mercury Trading and that his sponsored position as an employee was to be an Organisation and Methods Analyst. The First Applicant had in fact admitted this at [25] of his affidavit of 3 December 2019 and at [22] – [23] of his affidavit of 10 December 2019, although he sought to resile from that position early in his cross-examination at the hearing on 16 December 2019, by the following answer, the truth of which I reject:
MR JOHNSON: But the fact is, Mr Majid, isn’t it, that before your visa application was lodged by Sally, Goldman Pintex did tell you who your prospective employer was going to be?
THE WITNESS: No.
(TP24.15 - .19)
i)as at 5 May 2017 and at all material times thereafter the First Applicant knew that he did not have any qualifications to be an Organisation and Methods Analyst, that such a role did not match his skills at all, that he would not be able to perform such a job properly and that he could not properly understand what were to be his foreshadowed main duties as set out in the 457 Nomination of him by Mercury Trading, which was attached to the email to him of 5 May 2017. However, the First Applicant never had any contact with any person at Mercury Trading until 16 months later, after he had found out on 6 September 2018 that his Subclass 457 visa application had been rejected, when by a Google search he obtained contact details for Mercury Trading and then telephoned and spoke to a male person at Mercury Trading who told the First Applicant that he knew nothing about him;
j)on 22 May 2017 the First Applicant paid the final payment of $3,500 to make up the total payment of $35,000, being the amount Mr Kang had asked for prior to lodging the Subclass 457 visa application. On that date the First Applicant met and was introduced by Mr Kang to Sally Lee, who Mr Kang told him was to be the lawyer and migration agent who would look after his case;
k)the First Applicant never subsequent to 5 May 2017 sent any written notification to Goldman Pintex, either by email or SMS text message, questioning his proposed employment by Mercury Trading or advising of his lack of qualifications for the proposed role of Organisation and Methods Analyst. His evidence under cross-examination on this issue, and whether he notified Goldman Pintex orally, is considered in the following sub-paragraph;
l)the First Applicant never after 5 May 2017 orally raised with anyone at Goldman Pintex his lack of qualifications for the proposed role at Mercury Trading of Organisation and Methods Analyst:
i)first, he never suggested that he had done so in either of his two affidavits, his Statement dated 21 September 2018 sent to the Tribunal (see [13] above) or his NSW Fair Trading complaint. Paragraphs [22] – [24] of his affidavit of 10 December 2019 rather implicitly suggested that he had made no such contact, stating as follows:
[22] I got to know the name, Mercury Trading Pty Ltd for the first time when I received a copy of the nomination application form from Sally Lee, a migration agent then in working in Goldman Pintex in May 2017.
[23]I did not much understand the position, Organisation and Methods Analyst and its job description in the nomination form, and I was never consulted about it that whether I had the skills for the job.
[24]However, I had a trust on them, because they were professional and they knew what was the best for me.
ii)second, at the hearing on 16 December 2019 Mr Johnson cross-examined the First Applicant in relation to this issue, as recorded from TP29 – 55. His evidence under cross-examination on this issue was not impressive or persuasive. He initially asserted that when he saw the email of 5 May 2017 he tried to ask Goldman Pintex questions about Mercury Trading, but “they refused to meet him”:
MR JOHNSON: Yes. So you must have known before your visa application was lodged, Mr Majid, that what Goldman Pintex was proposing to do was to put forward Mercury Trading as your employer sponsor. That’s what you understood was happening, didn’t you?
THE WITNESS: Yes.
MR JOHNSON: Yes. And you say that you hadn’t met with anyone from Mercury Trading. Correct?
THE WITNESS: No.
MR JOHNSON: Well, having seen that 5 May email, having seen what Goldman Pintex was proposing to do, did you ask Goldman Pintex any questions about who Mercury Trading was?
THE WITNESS: Yes. I did, but they didn’t try to meet me that time.
MR JOHNSON: Well, where’s the evidence
THE WITNESS: They refuse to meet.
MR JOHNSON: Where’s the evidence in your affidavits about you asking questions about Mercury Trading before your visa application was lodged?
[I interpolate here that the First Applicant did not answer this last question for some 18 seconds]
HIS HONOUR: You understand the question, sir, don’t you?
THE WITNESS: No.
HIS HONOUR: There’s no point in looking at me.
THE WITNESS: I didn’t mention here, yes. I didn’t mention.
MR JOHNSON: Yes. So you didn’t ask any questions of Goldman Pintex about who Mercury Trading was?
THE WITNESS: I asked but I didn’t mention here in the - - -
MR JOHNSON: Right. All right.
THE WITNESS: Yes.
MR JOHNSON: Well.
HIS HONOUR: All right. Well, that wasn’t the question that Mr Johnson asked you. [It] was; can you refer to any written communication or email to Goldman Pintex where you asked about Mercury Trading as your prospective employer? Is that what you – that’s what I understood you to be asking.
MR JOHNSON: Yes. That’s the question. Yes.
THE WITNESS: No. No. We don’t have.
MR JOHNSON: Don’t have that.
THE WITNESS: I called him. That’s it.
MR JOHNSON: Right. So you – well, you say you called them to ask them a question. When did you call and who did you call?
THE WITNESS: I tried to call Ted but he didn’t answer.
MR JOHNSON: Right. So you didn’t – you attempted to call Ted and he didn’t answer. Did you try to call anyone else?
THE WITNESS: Yes. Yes. I tried. Yes. No. No. No. He didn’t answer.
HIS HONOUR: Well, did you ring up Mercury Training or go to them? Go and see them?
THE WITNESS: No.
HIS HONOUR: Why not?
THE WITNESS: I tried after later but he said he just have – he said I am not – there’s not a response or anyone. I called later.
HIS HONOUR: But that was a long time later, wasn’t it?
THE WITNESS: Yes.
(TP29.10 – 30.47)
iii)then the First Applicant asserted that he had tried to call Mr Kang “but he didn’t answer”. He gave evidence that he went to see Goldman Pintex after 5 May 2017 to talk to Ken about his Nomination by Mercury Trading, but Ken would not see him. Ultimately he agreed with Mr Johnson “that after 5 May 2017 [he] had no more contact with Ted or Ken” with respect to the issue of his unsuitability for his proposed role at Mercury Trading. He implausibly suggested that he did not try to stop Goldman Pintex lodging his Subclass 457 visa application based on his proposed role at Mercury Trading because he did not “have proper details about that company”. However, the First Applicant had no difficulty in obtaining the contact details for Mercury Trading from his Google search in September 2018 (see [31(i)] above) and no reason has been suggested why he could not have contacted Mercury Trading to make enquiry between 5 May 2017 and the lodging of the Subclass 457 visa application on 1 June 2017;
iv)ultimately in cross-examination the First Applicant agreed that after 5 May 2017 he had not queried with Goldman Pintex his proposed role at Mercury Trading by any form of written communication. However, in getting to that point his evidence again was unpersuasive. The First Applicant had put in to evidence numerous SMS text messages between himself and officers of Goldman Pintex. He was questioned at one point, as follows:
THE INTERPRETER: Yes. At that point of time, I knew that I couldn’t do – or perform this job properly at all. That is the reason I tried to contact the people in that company Goldman.
MR JOHNSON: But you said a number of times this morning, Mr Majid, that when you read the main duties on page 5, you didn’t understand them. Isn’t that right?
THE INTERPRETER: That’s correct. I couldn’t understand the duties. In addition to that, I don’t have any qualifications to do this kind of job. That is the reason I tried to contact the Goldman Pintex company.
MR JOHNSON: Did you send an – withdraw that. It’s the case, isn’t it, Mr Majid, that apart from telephone calls, you often sent text messages to people at Goldman Pintex.
THE WITNESS: Text – yes. Text messages.
MR JOHNSON: Did you send a text message to anyone at Goldman Pintex saying that you didn’t think you could do the organisation analysis job?
THE INTERPRETER: I have no idea.
MR JOHNSON: Well, you’ve put into evidence in this court, haven’t you, quite a number of text messages between yourself and Goldman Pintex staff.
THE INTERPRETER: I don’t think so I sent a message such like that.
MR JOHNSON: No. My question was in your evidence, in your affidavit, for instance, at page 74 of your affidavit of 3 December. Page – that large affidavit, 3 December affidavit, Mr Majid, page 74. Have you got page 74 there?
THE WITNESS: Yes. Yes.
MR JOHNSON: These are text messages between you and Mr Kang. Correct?
THE WITNESS: Yes. Yes.
MR JOHNSON: So you put into evidence, and there are many pages of it – you put into evidence in this proceeding text messages that you’ve sent to staff at Goldman Pintex.
THE WITNESS: Yes.
MR JOHNSON: And if there were text messages that you have sent to Goldman Pintex alerting them to your concerns about the job with Mercury Trading, those emails would be before the court, wouldn’t they?
[I interpolate here that the First Applicant did not answer this last question for some 45 seconds]
HIS HONOUR: What’s the problem with the question, Mr Applicant? I don’t know – understand the problem, but let me – I want to be quite fair. Can you – what Mr Johnson is doing is asking you whether or not you can produce any document, either in your affidavit or from your phone that indicates that before your visa nomination was lodged you had told Goldman Pintex that the job wasn’t suitable for you for which you were being nominated. Do you understand that question? Translate it for him, Mr Interpreter.
THE INTERPRETER: No. I didn’t. He wants me to interpret, your Honour. I don’t think so I got anything.
HIS HONOUR: Well, why didn’t you? What I’m trying to work out for myself and I think it’s important for you, sir, is why you didn’t put something in writing about your concern that the job for you were being nominated was not something you had any qualifications for? Why didn’t you put it in writing?
THE WITNESS: I don’t have that email address .....
HIS HONOUR: I’m sorry. I didn’t catch that.
THE WITNESS: I don’t have that email – I didn’t email about those things to .....
HIS HONOUR: You’ve already said that, and I’m asking you why you didn’t.
THE INTERPRETER: I used to call them, send them messages or visit them personally.
HIS HONOUR: And what was the result of those messages? Did you ever speak to anyone at Goldman Pintex about this matter?
THE INTERPRETER: I met after a long time after applying ..... application ..... I get – I made ..... after long time. I – I told – I discussed with them, so they said ..... “Okay. If you’re not happy, we’re going to lodge .....” he said like that, when I meet them at the office.
HIS HONOUR: I’m asking you about prior to the lodgement of your application. Have a look at page 74. In the middle of the page, you’re saying:
Hi, Ted. I hope you have lodged my application today as you said. Thanks.
Do you see that?
THE WITNESS: Yes.
HIS HONOUR: Do you have any, prior to that email, which appears to have been sent on 23 May 2017, did you have any – did you ring up someone and have a conversation with someone at Goldman Pintex where you said words to the effect of, “This job that I’m being nominated for, I have no qualifications for”?
THE INTERPRETER: I was trying to get my message across to them that I couldn’t get the job.
HIS HONOUR: Well, who did
THE INTERPRETER: Couldn’t do this job.
HIS HONOUR: Well, I’m asking who did you speak to and what was the result of the conversation?
THE WITNESS: I talked to the - - -
HIS HONOUR: Right. Well, what’s the conversation and when did it take place and what did you say and what did he say?
THE WITNESS: I said, “I just – this is not meant ..... with my skill.” He said, “Okay. If you’re not happy with this, so we go to the – another sponsorship. I will look after you, another one.”
HIS HONOUR: But that was after you had got the result, wasn’t it? Not before. That was after the nomination ‑ ‑ ‑
THE WITNESS: Before – before I get the result.
HIS HONOUR: Well, when approximately?
THE WITNESS: After two months ..... after one month ..... maybe I’m not sure. After lodge the application.
HIS HONOUR: Mr Johnson……………….
MR JOHNSON: So, Mr Majid, you said a moment ago that you didn’t send any emails to Goldman Pintex about ‑ ‑ ‑
THE WITNESS: Yes.
MR JOHNSON: ‑ ‑ ‑ concerns with doing this job.
THE WITNESS: Yes.
HIS HONOUR: Well, I took that as meaning or texting, written communications as ‑ ‑ ‑
MR JOHNSON: Yes. And would that include – and you didn’t send any text messages either about that, did you?
THE INTERPRETER: No.
(TP52.26 – 55.36)
v)the First Applicant’s evidence that he could not inform Goldman Pintex in writing about his lack of qualifications for the proposed role at Mercury Trading because he did not have its email address was quite implausible in light of the string of SMS text messages back and forth between the First Applicant and officers of Goldman Pintex which the First Applicant had put in to evidence. Ultimately towards the end of his cross-examination the First Applicant stated that it was in July 2018 that he had a discussion with Mr Kang about the fact that he was not qualified to carry out the proposed role with Mercury Trading; and
vi)accordingly, the evidence before me on this issue leads me to conclude that the First Applicant never sought between 5 May 2017 and lodgement of his Subclass 457 visa application on 1 June 2017 to either orally or in writing advise Goldman Pintex that he was not suitably qualified for the job at Mercury Trading;
m)on 23 May 2017 the First Applicant sent a SMS text message to Mr Kang which stated:
Hi Ted, I hope you will lodge my application today, as you said. Thanks.
Neither this SMS text message nor the approximately 20 other SMS text messages sent by the First Applicant to Goldman Pintex between 5 May 2017 and 1 June 2017 which are in evidence made any suggestion of his unsuitability for the role of Organisation and Methods Analyst.
n)on 1 June 2017 Goldman Pintex electronically lodged the Subclass 457 visa application form of the Applicants, which form it had prepared but which disavowed that any person had assisted the Applicants in its preparation and deliberately falsely and misleadingly represented to the Department that the First Applicant had an agreement with Mercury Trading to be employed in a position with guaranteed annual earnings of $55,000. As at 1 June 2017 the First Applicant in fact “didn’t really know what an Organisation and Methods Analyst was”;
o)by email dated 1 June 2017 Ms Sally Lee advised the First Applicant that the Subclass 457 visa application had been lodged on that date;
2018
p)the Department refused approval of Mercury Trading as a Standard Business Sponsor on 18 May 2018 because, although by letter dated 30 May 2017 the Department had asked Mercury Trading to provide evidence that demonstrated its active operation in Australia, in response Mercury Trading had only supplied Financial Statements for the year ending 30 June 2015 and not for the financial year ending 30 June 2016, which Financial Statements ought to have been available. The Department was of the view that the Financial Statements for the year ending in June 2015 were not sufficient for the purposes of reg.2.59(c) of the Regulations to demonstrate that Mercury Trading was lawfully operating a business. The failure of Mercury Trading to supply Financial Statements for the 2016 financial year made it almost inevitable that its nomination as a Standard Business Sponsor would be refused by the Minister;
q)on 18 June 2018 the Delegate refused to grant Subclass 457 visas to the Applicants;
r)on 18 July 2018 Goldman Pintex prepared and lodged with the Department an application in the name of Shah & Tiwanas Pty Ltd (Shah & Tiwanas) nominating the First Applicant to be employed under the Regional Sponsored Migration Direct Entry Stream (Subclass 187) visa (Regional Sponsored visa) as an Advertising Manager in Marden, which is a suburb of Adelaide, at a salary of $65,000. It was stated in this Nomination that the business operation of Shah & Tiwanas was the serving of Indian and Australian food. Notwithstanding his claimed suspicions of the facile creation of the Regional Sponsored visa (see [17(i)] above), by at least 21 July 2018 the First Applicant had received a copy of the Department’s Acknowledgement of Receipt of the Regional Sponsored visa application and was pressing Goldman Pintex in three SMS text messages dated respectively 21 July 2018, 27 July 2018 and 1 August 2018 for it to be followed up and pursued. However under cross-examination the First Applicant admitted that at this time he did not know anything about Shah & Tiwanas and that it did not concern him that he was being put forward for a job with another employer of which he had never heard;
s)on an occasion in September 2018, after the First Applicant had found out on 6 September 2018 that his Subclass 457 visa application had been refused, he attended the Mount Street Office but was told by Ken that his visa application was still “under process”; and
t)Mercury Trading existed and had been registered as a corporation in NSW on 17 June 2004, and on the face of an ASIC search had no apparent connection with any of the Applicants, Goldman Pintex or Mr Kang.
Dispositive Findings
Were Mr Kang and Goldman Pintex Fraudulent as Against the Department
Although a finding of fraud against persons who are not a party to a proceeding should not lightly be made, the evidence before me leads me to conclude that Mr Kang is a dishonest fraudster. There is evidence which, although of an informal nature, was very reasonably not objected to by Mr Johnson and establishes that the NSW Fair Trading complaint led to criminal charges against Mr Kang at the Downing Centre Local Court, which were listed for a three week hearing from 9 – 27 September 2019 in which the First Applicant was to give evidence. However Mr Kang failed to appear and on 11 September 2019 was convicted of fraud offences under s.192E of the Crimes Act 1900 (NSW) and also ordered to pay the First Applicant $35,000. The fraud offences obviously relate to the First Applicant’s dealings with Mr Kang and Goldman Pintex, but there are no actual details of the alleged facts and circumstances grounding the fraud charges in evidence before me.
Further, notwithstanding the exclusionary provision in s.91(1) of the Evidence Act 1995 (Cth) I note that it appears that Mr Kang has been subject to other convictions as described by N Adams J in Kang v Bishop & Ors [2018] NSWSC 46 at [2] – [3] as follows:
[2] On 29 November 2016, the plaintiff was found guilty by Magistrate Keady of a number of offences contrary to ss 192E and 192G of the Crimes Act 1900 (NSW). His convictions arose out of his alleged deceptive conduct as a migration agent. Eleven separate foreign nationals had engaged Mr Kang, through his company, to obtain a visa for them to work in Australia. They each alleged that he had fraudulently misrepresented to them that his company would obtain sponsored employment and a visa for them upon the provision of a significant fee.
[3] The prosecution was brought by Jay Bishop. He is a public servant employed as a senior investigator within NSW Fair Trading, which is a Division of the Department of Finance, Services and Innovation. Mr Bishop is the first defendant in these proceedings.
Turning to the particular circumstances of this case Mr Kang was the controlling mind and will of Goldman Pintex which, deliberately and falsely, represented to the Minister through the lodgement of the Subclass 457 visa application on 1 June 2017, that the First Applicant then had an agreement to be employed by Mercury Trading with guaranteed annual earnings of $55,000. This Subclass 457 visa application had been preceded by Goldman Pintex lodging on 5 May 2017 the necessary correlative applications in the name of Mercury Trading for approval as a Standard Business Sponsor and to nominate the First Applicant to be its employee, which deliberately falsely represented that he was to hold the position of Organisation and Methods Analyst with guaranteed annual earnings of $55,000. I find that the purpose and intention of these false representations to the Minister was to obtain the grant of a Subclass 457 visa to the First Applicant on a false basis and thereby disabling, vitiating, subverting and stultifying the true nature, scope and purposes of the grant of a Subclass 457 visa under the Act.
The mosaic of evidence before me is incomplete. For example, the nature and scope of the relationship between Goldman Pintex and Mercury Trading is not clear. As Sir Edward Coke said arguendo in Twyne’s Case [1601] 76 E.R. 809, “Secrecy is a mark of fraud”, and here Goldman Pintex sought to keep secret its involvement in the Subclass 457 visa application by failing to identify itself on the visa application form, but instead representing that it was filed by the First Applicant personally. However Goldman Pintex, at the time of the lodgement of the Subclass 457 visa application, knew that Mercury Trading had not had any dealings, negotiations or discussions with the First Applicant concerning a role for him as an employee. Goldman Pintex never consulted with the First Applicant about his suitability for his proposed employment role at Mercury Trading and never sought to introduce the First Applicant to Mercury Trading. Goldman Pintex had no good reason to consider that the First Applicant could fulfil the role of an Organisation and Methods Analyst. In other words, Goldman Pintex concocted a deliberately false scheme and strategy which it submitted to the Minister with the intent that the Minister grant a Subclass 457 visa to the First Applicant on an untrue and false basis. If there were any doubt of this, which is there is not, it would be confirmed by Goldman Pintex’s preparation and lodgement on 18 July 2018 of a further application in the name of Shah & Tiwanas, nominating the First Applicant for a Regional Sponsored visa as an Advertising Manager in Adelaide, South Australia, which visa application was again not grounded in reality (see [17(i)] and [31(r)] above).
Alternatively Goldman Pintex was recklessly indifferent to the truthfulness of the contents of the Subclass 457 visa application and Mercury Trading’s Standard Business Sponsor and Nomination applications, and that reckless indifference is sufficient to found a finding of fraud in the relevant public law sense: see DUA16 at 224 [50] per Griffiths J.
Was the First Applicant involved in Goldman Pintex’s Fraud or an Innocent Victim?
The Applicants, though relevantly here the First Applicant, bear the onus of proving that he was the “innocent victim” of the fraud of Goldman Pintex and that he did not collude in its fraud or be recklessly indifferent to that fraud. In relation to reckless indifference the Full Court in Kaur said at 501 [137] as follows:
[137] What these authorities make clear is that the reckless indifference (or wilful blindness) must be as to the truth of the representation, which is said to be deliberately false. The state of mind is thus found to be close to deliberate dishonesty. Once this is understood, the need for a careful finding, based on probative evidence, becomes apparent.
On the evidence before me, I find that the First Applicant did collude with Goldman Pintex and was complicit in the lodgement of his deliberately false Subclass 457 visa application on 1 June 2017 when he knew by that time that the correlative false application by Mercury Trading had been lodged by Goldman Pintex with the Minister on 5 May 2017. If I am wrong in this conclusion, then I would find that the Applicant was recklessly indifferent to the fraud.
In my view the First Applicant implicitly agreed and cooperated to lodge his Subclass 457 visa application on a false basis to make it falsely appear to the Minister that it would be proper to grant to him a Subclass 457 visa as a person who was able and had agreed to work in Australia for an approved business sponsor in an approved nominated application, when he knew that such was not the case.
The First Applicant is not in the position of many visa applicants in being unable to speak, read and write the English language. He is an intelligent person. The SMS text messages which he sent to Goldman Pintex indicate that he could represent his position forcefully. In April 2017 he had a strong wish to stay in Australia. He knew that prior to 5 May 2017 he had no arrangement with Mercury Trading to be an employee of that company. At that date he had never even heard of Mercury Trading. However, on that date he was advised by Goldman Pintex that it had arranged for Mercury Trading to apply to the Department for approval as a standard business sponsor and to nominate him to be its employee as an Organisation and Methods Analyst. It was a role for which he did not consider he had any qualifications and which he would not be able to perform properly. However, the Applicant made no enquiry of Mercury Trading and did not advise Goldman Pintex of his unsuitability for the role of Organisation and Methods Analyst. He was not concerned with such matters because he was determined to get a visa to remain in Australia on any basis, whether true or false. Knowing of his unsuitability for the proposed role and that he had no employment contract with Mercury Trading, he pressed Goldman Pintex by his SMS text message on 23 May 2017 to lodge his Subclass 457 visa application on that day.
In other words, in my view the First Applicant was so intent on staying in Australia that he was prepared for Goldman Pintex to assert any basis to the Minister for the grant of a Subclass 457 visa to him, whether true or false. He knew by 5 May 2017 that his Subclass 457 visa application was to be lodged on a false and untrue basis and that it was going to be represented to the Minister that he would be employed by Mercury Trading as an Organisation and Methods Analyst on a salary of $55,000. He knew on 1 June 2017 that his Subclass 457 visa application form had been lodged that day on the false and untrue basis that he was to be employed by Mercury Trading when he knew that he had no contract of employment with that company and that he had never had any dealings or negotiations concerning employment with that company.
The confirmation of the First Applicant’s willingness to claim any basis, whether true or false, for the grant of a visa to him is given by his preparedness in July 2018, when as he claimed he had not yet learnt of the rejection of his Subclass 457 visa application, to accept Mr Kang’s suggestion to apply for a Regional Sponsored visa for a job as Advertising Manager in the food industry in Adelaide, supposedly nominated by Shah & Tiwanas (see [17(i)] and [31(r)] above). The First Applicant has not given any persuasive or plausible reason or explanation why he would authorise Goldman Pintex to make the application for this visa, which would have involved him uprooting his family from Sydney and moving to Adelaide. I infer that the First Applicant was prepared to authorise Goldman Pintex to make any application for a Subclass 457 visa which would have enabled he and his family to have stayed in Australia on any factual basis, whether true or false.
In such circumstances it is unreal to regard Goldman Pintex as perpetrating a fraud on the First Applicant. The only criticism of Goldman Pintex open to the First Applicant is that it charged him a significant sum of money for its services, and those services do not appear to have been carried out very competently, witness the failure to respond to correspondence from the Minister and the failure to provide Financial Statements of Mercury Trading to the Minister for the financial year ending June 2016: see [8] and [31(p)] above.
Conclusion
The First Applicant was not an innocent victim of fraud. He was a willing participant in Goldman Pintex’s lodgement with the Minister of his Subclass 457 visa application on a false and fraudulent basis. Alternatively, he was recklessly indifferent as to whether Mr Kang and Goldman Pintex would take false and dishonest steps vis a vis the Minister to obtain the grant of a Subclass 457 visa on his behalf. It therefore follows that in the present circumstances the Subclass 457 visa application is not to be regarded as invalid: Maharjan at 25 [105] per Gilmour and Mortimer JJ.
The Applicants have failed to establish the invalidity of the Subclass 457 visa application. There is no basis for making the declarations relating to invalidity sought by the Applicants and the Further Amended Application is to be dismissed.
I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of Judge Dowdy
Associate:
Date: 30 November 2020
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