Mohammed v Minister for Immigration
[2017] FCCA 2741
•10 November 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MOHAMMED v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 2741 |
| Catchwords: EVIDENCE – Whether the rule in Jones v Dunkel applies to applications under the Migration Act 1958 (Cth) – it does not. |
| Legislation: Evidence Act 1995 (Cth) s.140 Migration Act 1958 (Cth), ss.359A, 359C, 360, 360A Migration Regulations 1994 (Cth) sch.2, pt.485, 485.221, 485.224 |
| Cases cited: Booth v Bosworth [2001] FCA 1453 |
| Applicant: | MUSHTAQUDDIN MOHAMMED |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 2335 of 2014 |
| Judgment of: | Judge Wilson |
| Hearing date: | 31 August 2017 |
| Date of Last Submission: | 19 October 2017 |
| Delivered at: | Melbourne |
| Delivered on: | 10 November 2017 |
REPRESENTATION
| Applicant in person |
| Counsel for the First Respondent: | Mr T Smyth |
| Solicitors for the First Respondent: | Australian Government Solicitor |
ORDERS
The application filed 19 November 2014 is dismissed.
The applicant pay the costs of the first respondent.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 2335 of 2014
| MUSHTAQUDDIN MOHAMMED |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
S & S Migration (“S & S”), a migration agency once in operation in Australia, orchestrated widespread chaos and disruption to the migration system in Australia by reason of its fraudulent activities.
S & S was ultimately driven out of Australia. The effects of its activities were felt for many years. The visa application in this case was said to have been affected by its fraud.
In his application to this Court for judicial review
filed 19 November 2014, the applicant asserted he was a victim of
S & S’s fraud. He said the Migration Review Tribunal, now the Administrative Appeals Tribunal (“the Tribunal”), when hearing his merits review from the decision of the delegate dated 29 March 2012, denied the applicant “natural justice”.[1] In support of that assertion the applicant relied on a document three paragraphs in length running for a page and a half. The applicant also swore an affidavit in support of his contentions affirmed 19 November 2014.
[1] Application filed on 19 November 2014 at p.3.
The Tribunal found that the applicant did not meet the mandatory criteria for the grant of the relevant visa.
Before me, Mr Smyth of counsel for the Minister invited me to hear viva voce evidence from the applicant in relation to his allegations of fraud. Mr Smyth urged me to caution the applicant about his evidence, especially the desirability of the applicant entering the witness box and, if necessary, subjecting himself to cross-examination about whatever evidence he gave in respect of the alleged fraud. I duly cautioned the applicant in accordance with Mr Smyth’s request. The applicant elected not to enter the witness box. The Minister was therefore unable to test the applicant’s assertions of fraud.
In the face of that state of affairs, it fell to me to determine whether there was any merit in the applicant’s contentions that he had been the victim of fraud by S & S. It also fell to me to assess whether the Tribunal fell into jurisdictional error in its consideration of this case.
Synopsis
For the reasons that follow, I was not persuaded that the applicant made out his allegations that he was the victim of fraud allegedly committed by S & S. Further, I was not persuaded that the Tribunal fell into jurisdictional error in its consideration of this case. It follows that the decision of the Tribunal stands, with the consequence that this application for judicial review must be dismissed and the applicant must pay the Minister’s costs.
Short factual narration
On 19 March 2011 the applicant applied for a skilled (provisional) (class VC) visa. When the visa application was lodged, class VC was made up of two subclasses – 485 and 487. The subclass selected for the applicant’s visa was 485, the relevant criteria for which were set out in part 485 of schedule 2 of the Migration Regulations 1994 (Cth)
(“the regulations”).
Before the delegate the applicant failed to satisfy clause 485.224 of schedule 2 of the regulations.
On 13 April 2012 the applicant applied to the Tribunal. By letter dated 28 April 2014 the Tribunal invited the applicant to respond to certain information and to provide other information. The Tribunal informed the applicant that Trades Recognition Australia (“TRA”) had no record of providing the applicant’s skills assessment referred to in the visa application. It also stated that information relating to the applicant was located in the office of S & S and that S & S had been found to have lodged applications to the Department of Immigration and Citizenship (as it was then), now the Department of Immigration and
Border Protection (“the Department”), that contained false or misleading information. The Tribunal told the applicant that such information was relevant because the criteria for the grant of the visa he sought included a requirement that there be no evidence that the applicant had given or caused to be given to the Minister a bogus document or information that was false or misleading.
On 28 April 2014 the Tribunal invited the applicant to provide evidence that as at the date of the visa application the applicant had applied to the relevant assessing authority for an assessment of his skills for his nominated occupation and that his skills for that occupation had been assessed by the relevant assessing authority as suitable for that occupation. The Tribunal gave the applicant until 12 May 2014 to respond.
On the applicant’s behalf, his agent responded by letter dated 12 May 2014. The letter was non-responsive. However it raised the involvement of S & S for the first time. It is useful to record the details of the letter. It read as follows (verbatim) –
In April, 2012, Mr Mohammed came to know from other international students that S&S Migration was involved in a scam and the Immigration had raided their office. He tried to contact S&S Migration but the office was closed. Concerned about his visa status, Mr Mohammed contacted DIBP call centre and was informed that his visa application was refused and that he had only a few days left to appeal with the Migration Review Tribunal. Upon further enquiry, he came to know that the information provided in the visa application including the skills assessment, IELTS and contact details were all incorrect.
Mr Mohammed never got a chance to explain this situation to DIBP as the letter sent by the case officer on the 17th February, 2012 inviting to comment on the information provided in the application was to an e-mail address created by S&S Migration for the purpose of lodging the visa application and not to
Mr Mohammed's e-mail address. Mr Mohammed never intended to mislead or to provide any incorrect information to DIAC.
He never gave permission to S&S Migration to lodge a Skilled (Provisional) (Class VC) visa. Mr Mohammed was completely misguided about the application. The non-disclosure ofMr Jeetender S. Ajjan as not being a Migration Agent, the application lodged on behalf of the applicant without authority and all the contact details being incorrectly provided prove that Mr Mohammed had been duped and cheated.[2][2] Court book filed 21 April 2015 at p.68.
The Tribunal did not conduct a hearing. In his written submissions
Mr Smyth said that the Tribunal was correct in not conducting a hearing by reason of the contents of the 28 April 2014 letter from the Tribunal to the applicant. Mr Smyth said that the 28 April 2014 letter was in two parts. The first, he said, was the Tribunal’s request for the applicant’s comment on the matters that were raised in the letter.
The second, he said, was the Tribunal’s request for certain information. An examination of the letter itself bore out the validity of Mr Smyth’s submissions on point. The heading of the letter was “Invitation to comment on or respond to information and to provide information”.[3]
[3] Court book filed 21 April 2015 at pp.65-66.
In other words, the verbs “to comment on” and “to provide” were linked by the conjunction “and”. Further, the body of the letter was segregated into discrete parts, one of which was headed “invitation to comment or respond to information” and the other was headed “invitation to provide information”. Under each heading the Tribunal set out in very precise terms the particulars of the information on which comment was invited and the Tribunal set out in equally precise terms the particulars of the information the applicant was invited to supply.
Mr Smyth said the applicant’s agent did not supply the information the Tribunal sought. Mr Smyth submitted that such a failure enlivened the provisions of s.359C of the Migration Act 1958 (Cth) (“the Act”) thereby entitling the Tribunal to make a decision on the review without taking any further action to obtain the applicant’s view on the information. Further, the requirements of s.360(1) of the Act that compelled the Tribunal to invite the applicant to appear had no application in circumstances to which s.359C of the Act applied,
this being one.
In my judgment, in this case the Tribunal was properly entitled to proceed to make a decision without taking any further action to obtain the applicant’s views on the information once the applicant failed to provide the information the Tribunal sought in its 28 April 2014 letter. The contents of the 12 May 2014 letter were not a response to the request for information contained in the 28 April 2014 letter.
The Tribunal correctly construed events such that the request for information in the 28 April 2014 letter went unanswered. It followed that s.359C of the Act applied as did s.360 of the Act. The matter was put beyond doubt by operation of s.360A of the Act.
To my way of thinking, it could not be sensibly contended that the Tribunal was not entitled to proceed in the way it did in this case. Authority at high level has sanctioned such an approach in such cases as Hasran v Minister for Immigration and Citizenship,[4] Minister for Immigration and Multicultural and Indigenous Affairs v Jing Shan Sun,[5] M v Minister for Immigration and Multicultural Affairs[6] and my own decision in Singh v Minister for Immigration and Border Protection[7] (although I do not suggest that my decision in that case was authority “at high level”).
[4] [2010] FCAFC 40.
[5] (2005) 146 FCR 498.
[6] (2006) 155 FCR 333.
[7] [2017] FCCA 160.
The Tribunal’s reasoning
Part of the Tribunal’s reasons was directed to background material while part was directed to matters relevant to S & S. The Tribunal found that the applicant made a valid visa application and that the Tribunal had jurisdiction to review the delegate’s decision.
The Tribunal then proceeded to consider whether the applicant satisfied the criteria for the grant of a subclass 485 visa. The Tribunal considered the requirements of clause 485, especially the requirement that at the time of the decision, the visa applicant’s skills for the nominated skilled occupation had been assessed by the relevant assessing authority as suitable for that occupation. The Tribunal said that the relevant assessing authority specified was TRA and that TRA had no record of a skills assessment having been issued to the applicant, despite the Tribunal having put the applicant on notice for five months that it required evidence of an appropriate skills assessment. The Tribunal found that the applicant did not meet the mandatory requirements of clause 485.221 of schedule 2 of the regulations.
The Tribunal affirmed the delegate’s decision not to grant the applicant a skilled (provisional) (class VC) visa.
So far as involvement of S & S in the visa application was concerned, the Tribunal made several references to it. First, in paragraph 13 of its reasons the Tribunal recited the applicant’s response to the Tribunal’s invitation to comment in which the applicant asserted that he was not aware that any potentially false or misleading information had been given as part of the visa application nor did he authorise the giving of it. Next, in paragraph 18 of its reasons the Tribunal recited that the applicant appeared to have been indifferent as to the content of the visa application, as he left the details of the visa application to S & S. Nevertheless, the Tribunal found that the applicant made a valid visa application and therefore the Tribunal had jurisdiction to review the delegate’s decision.
In this Court
Mr Smyth very helpfully took me to the observations of the Full Court of the Federal Court of Australia in Gill v Minister for Immigration and Border Protection[8] (“Gill”) where the Full Court made specific comments about the adequacy of the distinction between an agent’s conduct that took the form of indifference as to a desired outcome as opposed to indifference about the lawfulness of the agent’s conduct leading to the outcome. The Full Court of the Federal Court of Australia said the following –
As emphasised above, the primary judge found that it was not possible for him to make a positive finding that the appellant was complicitous or colluded in the agent’s fraud. Rather, the primary judge proceeded on the basis that his lesser findings relating to the appellant’s “indifference” and the general authority he gave to his agent meant that the appellant had to bear responsibility for the agent’s fraudulent conduct. In our respectful view, this approach fails to recognise and give effect to the relevant distinction between an indifference as to how the migration agent acting lawfully and properly can achieve a visa applicant’s desired outcome, as opposed to an indifference as to whether or not that outcome is achieved by the agent acting unlawfully or dishonestly. This distinction is equally important in the context of considering the legal significance of any general authority given to a migration agent by a visa applicant. In our respectful view, the primary judge erred in failing to recognise and give effect to the significance of this distinction.[9]
[8] [2016] FCAFC 142.
[9] [2016] FCAFC 142 at [49].
With that in mind, Mr Smyth recommended a particular course in the conduct of the hearing before me so as to address the assertions the applicant made about his being a victim of fraud by S & S. Mr Smyth drew heavily from two decisions of the Full Court of the Federal Court of Australia in making those submissions, namely SZRUR v Minister for Immigration and Border Protection[10] (“SZRUR”) and Singh v Minister for Immigration and Border Protection.[11] Mr Smyth submitted I should proceed in the following manner –
34.1.formulate an explanation of the Court's process for
Mr Mohammed, consistently with the Full Court's observations in this regard in SZRUR;34.2.invite Mr Mohammed to enter the witness box and give such evidence as he wishes under oath or affirmation, and be cross-examined on it;
34.3.(assuming Mr Mohammed takes up the invitation) receive submissions (either at the end of the evidence, in writing,
or at a separate hearing) as to the evidence that emerges and in relation to any other legal or factual issues in the case; and then —34.4.dispose of the proceeding by performing the analytical exercise identified in Gill at [49] and dealing with any other legal or factual issues arising and whether to grant relief consistently with the Full Court's observations in Singh FC (footnotes omitted).[12]
[10] (2013) 216 FCR 445.
[11] [2016] FCAFC 141.
[12] First respondent’s contentions of fact and law filed on 17 August 2017 at p.8.
It took a little time to explain that to the applicant. However, over a significant amount of hearing time I did, the transcript of which recorded the exchange in the following terms, ultimately leading to the applicant declining to enter the witness box. This was how it
unfolded –
HIS HONOUR: Okay. In your case in this court you have made a statement that brings into issue certain conduct by S & S Migration agents. Have I understood you correctly about that?
MR MOHAMMED: Yes.
HIS HONOUR: Essentially you say that somehow you are the victim of a fraud in this case, correct?
MR MOHAMMED: Yes, sir.
HIS HONOUR: Now, at the moment there is no evidence about that issue. There’s your application and a statement that’s made by you, but no one has sworn to the truth of this whole issue concerning S & S. Just accept that if you would for the moment.
MR MOHAMMED: Yes, sir.
HIS HONOUR: We’re now at the point where if you wish to proceed with your case before me insofar as it concerns allegations of fraud against S & S, you can either tell me what you want about that point from the bar table, or go into the witness box and swear to tell the truth. Do you follow? No. Okay. At the moment the comments that you’ve made about S & S have not been proved. They’re merely comments on – on your application and you haven’t sworn that they’re truthful.
MR MOHAMMED: Yes, sir.
HIS HONOUR: It’s important in this case if you want me to accept what you say about this point, that we have to take one of two approaches. If you want, you can give sworn evidence about the truth of those matters. Do you follow what I mean about that?
MR MOHAMMED: Yes.
HIS HONOUR: That will require you to enter the witness box and swear on your holy book or tell me that you affirm to tell the truth in this case. Do you follow that?
MR MOHAMMED: Yes, sir.
HIS HONOUR: You are not compelled to do that. If you do that, it’s only a matter of choice by you. If you – and do you follow that? You don’t have to go into the witness box if you choose not to. Do you follow now?
MR MOHAMMED: I don’t have an issue.
HIS HONOUR: Okay.
MR MOHAMMED: If you want I can go and swear.
HIS HONOUR: Okay. Well, now, just one second, I’ve got to outline the options to you. If you don’t go into the witness box and swear or affirm to tell the truth, of course I can hear whatever you want to say from the point at the bar table where you’re now standing, but the weight that I give to any statement given by you from where you’re now standing unsworn or unaffirmed is less. Do you follow? Do you follow what I’ve just said to you?
MR MOHAMMED: Yes.
HIS HONOUR: In other words, it’s a question of believability.
If you enter the witness box and swear or affirm to tell the truth,
I am likely to place greater weight on what you tell me having done that than if you tell me the very same thing from where you are now without swearing or affirming to tell the truth. Do you follow?
MR MOHAMMED: Yes, I –
HIS HONOUR: Now, just one second, you’ve got to hear the whole story. If you enter the witness box and swear or affirm to tell the truth, it’s – it’s likely that Mr Smyth who represents the Minister will perform an activity in – known in the courts called cross-examination. You may have seen it on television.
That’s where he asks you a lot of questions and some of them can be quite challenging. Some of them can – they will always be expressed with a proposition, a concept already formed in them, and they’re designed to get you to say things most favourable to the Minister’s case; do you understand?
MR MOHAMMED: Yes.
HIS HONOUR: Now, if you do enter the witness box, that is the likely consequence, that your story, or the version that you give, will be the subject of cross-examination. In other words,
Mr Smyth will be questioning you quite closely about whatever you say. Do you follow?
MR MOHAMMED: Yes.
HIS HONOUR: Now, as I say, you don’t have to enter the witness box, but if you do beware because you are likely to be
cross-examined. If you have no problems with that, and of course this is your choice, feel free. If you don’t and you tell me what you want to say from where you are at the bar table without swearing as to the truth of it or affirming, I am likely to give it less weight.
I hope you follow me so far.
MR MOHAMMED: Yes, I follow you.
HIS HONOUR: Now, I need to tell you that when it comes time for me to consider this case and consider the version of events that you give about S & S, I will take into account whatever you say from the witness box or the bar table about the involvement of S & S. Do you follow?
MR MOHAMMED: Yes.
HIS HONOUR: This is a very important part of the case.
You need to understand this, and you need to understand the importance of where we’re at in this case. Do you follow?
MR MOHAMMED: Yes, I do.
HIS HONOUR: Now, you’re – you are, as I say, not required and I cannot compel you, to enter the witness box, but if you do you will be cross-examined. And even if you tell your story from where you’re standing now at the bar table without entering the witness box, I will consider everything you say on this point for the purposes of my judgment in this case. Do you follow?
MR MOHAMMED: Yes, I follow.
HIS HONOUR: Okay. Now, it’s time for you to make a choice.
MR MOHAMMED: I will stay here and answer.
HIS HONOUR: You don’t – I see. Now –
MR MOHAMMED: Yes.
HIS HONOUR: – bear in mind that as I’ve said to you previously, I will give weight to what you say, but it won’t be the same weight if you had entered the witness box. Do you understand that?
MR MOHAMMED: I’m happy to go there but I’m not a professional. And, you know, what he can speak I can’t speak like that like if ...
HIS HONOUR: No, that’s understandable.
MR MOHAMMED: I’m representing myself, so if I go there I may be cross-examined, I can’t just run in the –
HIS HONOUR: Well, Mr Mohammed –
MR MOHAMMED: –
HIS HONOUR: – it’s not for me to give you advice. I’ve done my best to explain to you how this will unfold, and if – it’s up to you, if you want to tell your story from where you are, that’s fine, if you want to enter the witness box that’s fine; your choice.
MR MOHAMMED: I want to stay here.
HIS HONOUR: Okay.[13]
[13] Transcript of proceedings, 31 August 2017 at pp.14-17.
As a result of the position adopted by the applicant, Mr Smyth submitted that it was not possible for me to find that the applicant’s visa application was affected by fraud because there was nothing before me to that effect.
Strictly speaking, it was not correct to conclude there was no evidence about the matters about which the applicant spoke as the applicant filed affidavits setting out certain issues. That said, I invited the applicant to tell me all he wanted to tell me about the visa application in this case and of the role S & S had in the process.
In support of his application to this court, the applicant relied on a document that ran for three typed paragraphs on a page and a half of script. It may fairly be assumed that the document was prepared by or with the assistance of a legally qualified person as language such as “heretofore” was peppered throughout it. Parts of it seemed to have been generic with no particular relationship to this case. Lest it be said that no consideration was given to the applicant’s contentions by reason of his having failed to give evidence in this case, in the passages below I have addressed the essential components of the applicant’s assertions and considered them.
Attached to the applicant’s affidavit made 19 November 2014 was a document headed “Affidavit for federal circuit court of Australia” (sic). It purported to have been affirmed, although the document did not appear to have at its conclusion a statement indicating that it had been made before a person authorised to take it. Be that as it may, the following was an accurate distillation of its terms –
a)
the applicant came to Australia to pursue studies at
Cambridge International College;
b)he achieved certificate III status in 2009, a diploma in multimedia in 2010 and a certificate IV in 2011;
c)he approached S & S in March 2011;
d)he said he was “conned” by S & S (although he did not say who perpetrated the “con”, when or where it happened or what constituted the “con”);
e)S & S ran “their agency openly advertising in media offering their services to the visa seekers”;[14]
f)giving no details of the contention, he said (verbatim) –
S&S Migration being an agent itself created with a purpose to defraud its clients and usurp their money by giving advice of obtaining ‘work permit’ for several years by lodging their application in one of the existing relevant visa category if assessed potentially eligible with an instruction to leave their relevant documents along with depositing an advance visa fees with them so as a guarantee towards availing their services if found eligible and be lately informing that an application was already made on behalf of the applicant leaving the applicant in limbo.[15]
[14] Affidavit of Mushtaquddin Mohammed filed 19 November 2014.
[15] Affidavit of Mushtaquddin Mohammed filed 19 November 2014.
The applicant’s grounds of review were a replica of the attachment to his affidavit made 19 November 2014.
Mr Smyth submitted that the evidence revealed various means by which the applicant came into contact with S & S. They were –
a)by word of mouth;
b)having seen an advertisement; and
c)through a travel agent.
From the bar table the applicant gave a version of events about S & S. Having informed the applicant about his option to enter the witness box in order to give evidence, the applicant elected not to do so. Instead, he elected to make a statement from the bar table. Mr Smyth told me the evidentiary status to be accorded to that statement from the bar table was a matter for me as it was a question of weight. Mr Smyth’s precise submission, after stating that the situation was not the same as that in SZRUR, was as follows –
Now, your Honour isn’t exactly in that position because you’ve conscientiously explained the significance of evidence, and
Mr Mohammed has made a forensic choice, but I think you would be acting unhelpfully courageously to say that there was no evidence before your Honour about the points that have been given.[16]
[16] Transcript of proceedings, 31 August 2017 at p.39.
The applicant gave a version of events from the bar table.
The following is a condensed distillation of the information he gave –
a)he arrived in Australia in 2008;
b)he learned about S & S by word-of-mouth;
c)the applicant provided S & S with $3,000.00;
d)S & S told the applicant it would obtain the necessary material from TRA;
e)after some time a person from S & S who the applicant said was Jeetender Ajjan told the applicant that S & S had applied for certification from TRA and for the visa;
f)Mr Ajjan did not use the $3000 for the purpose of obtaining a visa;
g)Mr Ajjan took the applicant’s personal details and email address from the applicant; and
h)a migration agent called Chetan Zabde filed the application with the Tribunal.
In answer to a general question put to the applicant, he responded as follows –
HIS HONOUR: Okay. Thank you very much, and more generally, is there anything you would like to tell me about this case that we haven’t talked about already?
MR MOHAMMED: I have been here from 2008, sir. This is now 2017, and I never got the chance to straighten my visa. I never got the chance to go for sponsorship. I never got the chance of having a student visa. I want to study here, but I can’t go, sir.
I was in the ... these are all these cases –[17]
[17] Transcript of proceedings, 31 August 2017 at p.34.
With the agreement of the applicant, Mr Smyth relied on an affidavit of Cecilia Yu affirmed 25 August 2017. In that affidavit, Ms Yu stated that visa status checks to the online system known as “visa entitlement verification online” (converted to the acronym VEVO) had been undertaken in the name of the applicant between 23 March 2010 and 5 July 2014 on not less than 14 occasions, two of which were on two days during that period. Mr Smyth submitted that the applicant was savvy with technology and migration matters. Mr Smyth put the position thus –
MR SMYTH: Yes. So the point that I was seeking to get out of all those exhibits to Ms Yu’s affidavit was simply that Mr Mohammed is not as unsophisticated or naive as he would now have you believe, and it would be surprising for somebody with such experience of the visa system to be saying that he was not involved in the scheme, or he wasn’t – he didn’t have the degree of connection to the scheme when he knew perfectly well how an application like this would ordinarily fall out. He also hasn’t given evidence about how much money he handed over, which, no doubt, would be of great significance.
HIS HONOUR: I thought he said $3000.[18]
[18] Transcript of proceedings on 31 August 2017 at p.46.
An assessment of the information given by the applicant about S & S, its role in the applicant’s visa application, the applicant’s involvement with the relevant agent or agents and the acts said to have constituted the so-called fraud was only part of the picture. It seemed to me it may have been relevant to learn about Mr Ajjan and Mr Zabde and why they did not give evidence in this case. In debate with Mr Smyth I canvassed the evidentiary significance of the absence of his evidence. Specifically, I wanted Mr Smyth’s submissions on whether it was open, or indeed legally permissible, to draw an adverse inference against the applicant by reason of their absence. Mr Smyth sought a short time to prepare submissions on point. I extended to the applicant the same opportunity to provide written submissions. Mr Smyth duly provided written submissions. To my surprise, the applicant also provide written submissions in which he referred to both fact and law in relation to principles espoused in Jones v Dunkel.[19]
[19] (1959) 101 CLR 298.
For different reasons, both the applicant and the Minister urged me not to draw an adverse inference against the applicant in this case.
Having carefully considered the submissions of each on point, I agree that it is not proper nor in the circumstances is it legally permissible to draw an adverse inference against the applicant by reason of the absence of Mr Ajjan and Mr Zabde.
My reasons may be shortly stated.
First, the Minister contended, correctly in my view, that general rules of the law of evidence are not affected by anything peculiar to litigation conducted under the Act. For that matter, what has come to be known as the rule in Jones v Dunkel has not been countermanded, qualified or negated by s.140 of the Evidence Act 1995 (Cth), as Branson J held in Booth v Bosworth.[20]
[20] [2001] FCA 1453 at [41].
Next, in order for the rule in Jones v Dunkel to be operative, there must be an unexplained failure by a party to give evidence, to call one or more witnesses or to tender documents.
Here, both the Minister and the applicant recognise that Mr Ajjan left Australia in late October 2011, and each contended that Mr Ajjan’s absence was not, therefore, unexplained.
Next, both parties argued that Mr Ajjan could not be said to have been in the applicant’s camp as that concept was explained in O’Donnell v Reichard.[21]
[21] [1975] VR 916.
There is considerable force in that submission. On the applicant’s version of events, the applicant was the victim of Mr Ajjan’s own fraud, Mr Ajjan being the perpetrator. One could hardly say that the interests of the applicant and Mr Ajjan were aligned. Moreover, had the applicant attempted to call Mr Ajjan, Mr Ajjan would in all likelihood have claimed the privilege against self-incrimination.
[22] (2000) 199 CLR 620.
It could not be said that a reasonable expectation existed that the applicant would have called Mr Ajjan as a witness. That much put the circumstances of this case on an entirely different footing to
the observations made by the High Court of Australia in
RPS v The Queen[22]where Gaudron ACJ, Gummow, Kirby and Hayne JJ held as follows –
In a civil trial there will very often be a reasonable expectation that a party would give or call relevant evidence. It will, therefore, be open in such a case to conclude that the failure of a party (or someone in that party's camp) to give evidence leads rationally to an inference that the evidence of that party or witness would not help the party's case and that:
where an inference is open from facts proved by direct evidence and the question is whether it should be drawn, the circumstance that the defendant disputing it might have proved the contrary had he chosen to give evidence is properly to be taken into account as a circumstance in favour of drawing the inference.[23](footnotes omitted)
[23] (2000) 199 CLR 620 at [26].
In those circumstances, it seemed to me that the absence of any person to give evidence about this case beyond the applicant was not a matter in respect of which I should draw an inference adverse to the applicant. In those circumstances, I declined to draw any such adverse inference.
That left the information given by the applicant from the bar table as well as the attachment to the 19 November 2014 affidavit. The question for me was whether the totality of the information given by the applicant from the bar table together with the evidence given by the applicant in his affidavit showed that the applicant had been the victim of S & S’s fraud. Another question for me was whether the Tribunal fell into jurisdictional error in reaching its conclusion that the visa application that asserted that the applicant had a TRA assessment was a document that contained false or misleading information.
In essence, it was the applicant’s contention that after giving S & S his personal details along with his email address and $3,000.00, he did not participate further in the application process and that he was blameless in so far as the visa application falsely stated that the applicant had been assessed by TRA.
It seemed it was common ground that S & S acted fraudulently. The Minister did not suggest that the applicant actively participated in the agent’s fraud. However, the focus before me turned on the concept of indifference in the sense canvassed in Gill. Mr Smyth submitted that if I were to find that the applicant had been indifferent as to what unlawful steps were taken, it would not be open to me to find that fraud adversely affected the application process.
The information given from the bar table by the applicant included his recital that he paid S & S $3,000.00 in response to which the S & S representative (I infer, Mr Ajjan) told the applicant that he (Mr Ajjan) would obtain the necessary material from TRA. Unlike the situation mentioned in SZRUR at [38] of that judgment, in this case no information was provided by the applicant to the effect that he did not authorise the S & S representative to sign documentation on his behalf or to file it by way of lodgement with the Department.
The applicant did not to subject himself to cross-examination as he elected not to give evidence. As a result, the Minister was not given an opportunity to test the applicant’s assertions. They remained just that – assertions – except in so far as they were the subject of evidence in the form of the attachment to the applicant’s 19 November 2014 affidavit. That attachment disclosed little more than the applicant approaching S & S in March 2011 and that he was (to use his words) “conned”.
In other words, the applicant’s evidence, as opposed to his assertions from the bar table, about the involvement of S & S was extremely limited.
It must not be overlooked that the applicant did not provide his version of events to the Tribunal about the alleged fraud of S & S.
I attach no weight to the applicant’s comments from the bar table, whether about the role of S & S or other aspects of the visa application that would not otherwise be borne out by the documents in this case. An allegation of fraud is easily made but it must be proved.
In Gill, the court held as follows –
It is entirely understandable that a person in the position of the appellant, who did not speak good English and who had no knowledge of the Australian legal or migration systems, which are technical and complex, would retain a registered migration agent to assist him in obtaining a visa and to rely upon the agent taking reasonable and proper steps in seeking to obtain the grant of a visa. Significantly, there was no finding by the primary judge that the appellant’s “indifference” as to how his agent carried out his retainer to assist the appellant in obtaining a visa extended so far as to countenance or authorise the agent engaging in fraud or dishonesty. The position would be different if there was such a finding and that finding was one which was reasonably open. Whether or not there should be such a finding in this case will be a matter to be determined on the remittal and in the light of all the relevant evidence.[24]
[24] [2016] FCAFC 142 at [51].
At its highest, the applicant’s evidence was to the effect that by whatever means he first came into contact with S & S, he put that entity into funds to the extent of $3,000.00 and, after providing personal details, requested S & S to obtain the relevant visa for him. In order to obtain the visa, the applicant needed to demonstrate that he had a skills assessment reference number. One was duly supplied. The evidence did not reveal how it was supplied. However, the visa application purported to bear a skills assessment number from TRA. Yet TRA did not give any such assessment. In consequence, the Tribunal found that the applicant failed to meet clause 485.221(1) of schedule 2 of the regulations. The Tribunal remarked in paragraphs 28 and 29 of its reasons that the applicant had been on notice for some time that the applicant had to provide information demonstrating that his skills had been assessed as suitable for that nominated skilled occupation by the relevant assessing authority and that he had not provided that information.
The applicant came to this court with unparticularised assertions that he was the victim of S & S’s fraud. He gave evidence of an extremely general and imprecise nature. The information he gave from the bar table was not helpful. He knew from the date of the letter given under s.359A of the Act that the Tribunal was particularly interested in such information as he could offer about the TRA assessment. At no stage did the applicant give that information to the Tribunal in response to its request. At no stage did he tell me anything about the TRA assessment.
To state the obvious, the TRA reference number appeared on the applicant’s visa application lodged by or on behalf of the applicant.
The applicant sought to distance himself from it. Yet he gave no account of how the TRA reference could have appeared on his application beyond asserting S & S must have done it. Was he –
a)indifferent as to how S & S, acting lawfully and properly, could have achieved his desired outcome (as was postulated in Gill at [49]); or
b)indifferent as to whether or not the agent could achieve a visa by the agent acting unlawfully and dishonestly (also, as postulated in Gill at [49])?
There was no evidence on either proposition. The applicant was alleging fraud. He had the burden of showing it. He failed to do so, despite having been given an opportunity to –
a)respond to the s.359A letter dated 28 April 2014; and
b)enter the witness box before me to say whatever he wished to say on point.
It seemed to me that the Tribunal was correct in reaching the conclusion that it did, especially on the issue of the TRA reference number on the applicant’s visa application being false.
Conclusion
This application for judicial review failed.
I dismiss this proceeding and order the applicant to pay the Minister’s costs.
I certify that the preceding fifty-nine (59) paragraphs are a true copy of the reasons for judgment of his Honour Judge Wilson
Date: 10 November 2017
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