Nayeck v Minister for Immigration
[2013] FMCA 88
•4 February 2013
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| NAYECK v MINISTER FOR IMMIGRATION & ANOR | [2013] FMCA 88 |
| MIGRATION – Judicial review – whether migration agent fraudulent – whether migration agent failed to provide evidence and make submissions – fraud not proved. |
| Migration Act 1958 (Cth), ss.425, 476(1)(f), 474 Migration Regulations 1994, sch. 2 Migration Agents Regulations 1998, sch. 2 |
| Jama v Minister for Immigration and Multicultural Affairs (2000) 61 ALD 387 SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189 Wati v Minister for Immigration and Ethnic Affairs (1996) 71 FCR 103 |
| Applicant: | JAYSHREE RESMEE NAYECK |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | MLG 855 of 2012 |
| Judgment of: | F. Turner FM |
| Hearing date: | 4 February 2013 |
| Date of Last Submission: | 4 February 2013 |
| Delivered at: | Melbourne |
| Delivered on: | 4 February 2013 |
REPRESENTATION
| The Applicant appeared In Person |
| Counsel for the Respondents: | Mr Wood |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The application for judicial review filed on 17 July 2012 is dismissed.
The applicant pay the first respondent’s costs fixed in the amount of $6,471.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 855 of 2012
| JAYSHREE RESMEE NAYECK |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Delivered Ex Tempore & Revised)
This is an application for judicial review of a decision of the Migration Review Tribunal (the “Tribunal”) dated 18 June 2012. That decision affirmed the decision of a delegate to the Minister, not to grant the applicant a Student (Temporary) (Class TU) visa.
The applicant’s grounds and particulars for judicial review are as follows:
(1)The decision of the Tribunal was made without jurisdiction or is affected by an error of jurisdiction;
PARTICULARS
(a)The applicant was reliant upon her migration agent to provide her with proper legal advice as to her application to the Department of Immigration for the appropriate visa to enable her to get either temporary or permanent residence in Australia.
(b)The Migration agent was fraudulent in that he provided her with incorrect advice and information and misled her into applying for an inappropriate visa, namely an ELICOS course, when in fact the applicant had completed a Diploma of Hospitality Management and had a successful skill assessment in Cookery which would have enabled her to apply for permanent residence.
(c)The migration agent was negligent in that he did not respond to the tribunal’s request to provide any material or written arguments.
(d)The applicant was dependent upon the said migration agent to provide the tribunal with proper evidence.
The criteria prescribed for a Vocational Education and Training Sector visa are set out in Part 572 of Schedule 2 to the Migration Regulations 1994 (the “Regulations”). The relevant criteria is set out in clause 572.223 as follows:
(1)The Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student because:
(a)the Minister is satisfied that the applicant intends genuinely to stay in Australia temporarily, having regard to:
(i)the applicant's circumstances; and
(ii)the applicant's immigration history; and
(iii)if the applicant is a minor -- the intentions of a parent, legal guardian or spouse of the applicant; and
(iv)any other relevant matter; and
(b)the applicant meets the requirements of subclause (2).
(2)An applicant meets the requirements of this subclause if:
(a)the applicant gives the Minister evidence in accordance with the requirements mentioned in Schedule 5A for the highest assessment level for the applicant; and
(b)the Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student, having regard to:
(i)the stated intention of the applicant to comply with any conditions subject to which the visa is granted; and
(ii)any other relevant matter; and
(c)the Minister is satisfied that, while the applicant holds the visa, the applicant will have access to the funds demonstrated or declared in accordance with the requirements in Schedule 5A relating to the applicant's financial capacity.
In SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189 the migration agent there misrepresented to an applicant that he was a registered agent when he was in fact not registered, and, as a result of believing that the agent was registered, the applicant accepted his advice not to appear at the hearing. That fraud resulted in the Tribunal not exercising its jurisdiction by failing to give the applicant a hearing pursuant to s.425 of the Migration Act 1958 (the “Act”). The agent in SZFDE (supra) acted fraudulently for personal gain, as he extracted money under false pretences: see SZFDE (supra) at [40].
In the present case, there was no such fraud by the migration agent. Negligence perhaps, but that did not prevent the Tribunal exercising its jurisdiction. It exercised its jurisdiction and decided whether the visa applied for by the applicant should be granted. If the incorrect visa was applied for, there was no evidence that that was as a result of fraud by the migration agent.
The conduct complained of here may be considered negligent, but not fraudulent. Negligent conduct by the migration agent does not “unravel anything, everything or indeed any thing in the proceeding.”
Quoting from SZFDE (supra) at [24]:
“As the Act previously stood, s 476(1)(f) provided as a ground for judicial review by the Federal Court that the decision in question "was induced or affected by fraud". Lindgren J held in Wati v Minister for Immigration and Ethnic Affairs[1] that the "fraud" was not limited to that of the decision-maker, a party, or a party's representative, but that the decision in question must be actually induced or affected by the fraud. That reasoning was followed and applied by Lehane J in another s 476(1)(f)[2].”
[1] Wati v Minister for Immigration & Ethnic Affairs (1996) 71 FCR 103 at 112.
[2] Jama v Minister for Immigration and Multicultural Affairs (2000) 61 ALD 387.
Lindgren J held in Wati v Minister for Immigration and Ethnic Affairs (1996) 71 FCR 103 at [112] that the fraud was not limited to that of the decision maker, a party or party’s representative, but that the decision in question must be “actually induced or affected by fraud”. That reasoning was followed and applied by Lehane J in Jama v Minister for Immigration and Multicultural Affairs (2000) 61 ALD 387.
In SZFDE (supra) at [26], the High Court applied reasoning akin to that of Lindgren J in Wati (supra). The Court finds, that here fraud was not practiced on the Tribunal or on the applicant. The Court relies on the following passage in SZFDE (supra) at [53]:
“The significance of the outcome in this appeal should not be misunderstood. The appeal has turned upon the particular importance of the provisions of Div 4 of Pt 7 of the Act for the conduct by the Tribunal of reviews and the place therein of the ss 425 and 426A. In the Full Court French J correctly emphasised that there are sound reasons of policy why a person whose conduct before an administrative tribunal has been affected, to the detriment of that person, by bad or negligent advice or some other mishap should not be heard to complain that the detriment vitiates the decision made[3]. The outcome in the present appeal stands apart from and above such considerations.” (emphasis added)
[3] Minister for Immigration and Multicultural Affairs v SZFDE (2006) 154 FCR 365 at 399
I just hesitate; the conduct being alleged here may be said, or possibly said to be bad or negligent advice or some other mishap, but certainly falls short of being classified as fraud. If bad or negligent advice was given by the migration agent, that does not vitiate the decision made.
As already stated, in SZFDE (supra) the migration agent extracted money under false pretences; That is, that he was a registered agent and he lied about being registered in order to charge fees for his services: see SZFDE at [40].
The Court will now analyse the applicant’s Contentions of Fact and Law filed on 18 October 2012, as to why she says that the migration agent’s conduct was fraudulent. Paragraph 9 of the Contentions is that the migration agent was fraudulent in providing the applicant with incorrect advice or not responding to the Tribunal’s request to provide written material or argument.
Such conduct does not amount to fraud. The Court Book (“CB”) shows that submissions and evidence were provided to the Tribunal from the migration agent. CB pp.78 and 88, shows that the migration agent provided documents in connection with the application. CB pp.133 and 134 shows that the agent made submissions to the Tribunal on 7 March 2012; It is stated in [27] of the decision that:
“The applicant appeared before the Tribunal on 7 March 2012 to give evidence and present arguments.”
And at [31]:
“Upon resumption of the hearing, the applicant’s representative made an oral submission on her behalf.”
CB pp.108 to 123 show that the migration agent provided the Tribunal with submissions and evidence. At CB p.132 the decision refers to submissions and evidence received from the agent. The allegation that the agent did not provide material and made submissions to the Tribunal is rejected.
Paragraph 10 of the Contentions alleges “that the overall effect of the alleged conduct of the migration agent was fraudulent” as its purpose was to protect the migration agent in terms of his obligations under the Code of Conduct, and to avoid disciplinary action against him in relation to his breaches of the code. That code is set out in Schedule 2 to the Migration Agents Regulations 1998.
The Court finds that there is nothing in the applicant’s Contentions or in the Code of Conduct that establishes that the migration agent acted fraudulently. The allegation of fraud has been distinctly made, but is not proved. The Court refers to that requirement referred to in SZFDE (supra) at [15].
The allegation that the migration agent was negligent and provided incorrect information or did not make written arguments and put them to the Tribunal, does not vitiate the decision: SZFDE at [53].
Paragraph 11 of the Contentions refers the Court to the agent’s obligations under the Code of Conduct and that poor conduct can lead to cancellation of registration. The Court recognises those provisions but there is nothing in them to establish fraud by the agent in this matter.
Paragraph 12 of the Contentions refers to the obligation of an agent to act in the legitimate interests of their client and to provide sufficient relevant information to the Department. Again, there is an obligation on the agent. The breach alleged here does not show fraud.
The applicant has made oral submissions to the Court today which do not add to the basis for her application for judicial review.
The Court finds that particular 1(a) of the application, even if proved, would not establish fraud or any ground for judicial review. Particular 1(a) is dismissed.
The Court finds that particular 1(b) is not established. That is, it has not been established that the agent was fraudulent.
The Court finds that even if particulars 1(c) or 1(d) were established, and it rejects particular 1(c) because information and submissions were provided to the Tribunal; But even if they were established they would not vitiate the decision of the Tribunal.
The Court dismisses the ground and particulars 1(a), (b), (c) and (d).
The Court find’s that the Tribunal’s decision is a privative clause decision that has not been infected with jurisdictional error. In such circumstances, and pursuant to s.474 of the Act, there is no jurisdiction for this Court to interfere.
The Court dismisses the application for judicial review.
I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of F. Turner FM
Date: 14 February 2013
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