Patel (Migration)

[2023] AATA 4148

Patel (Migration) [2023] AATA 4148 (30 November 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Zalak Patel
Mr Mithil Patel
Master Hiyan Patel

CASE NUMBER:  2006761

HOME AFFAIRS REFERENCE(S):          BCC2019/4437840

MEMBER:Alison Mercer

DATE:30 November 2023

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal sets aside the decisions not to grant the applicants Skilled Independent (Permanent) visas and substitutes a decision that the applicants’ Skilled Independent (Permanent) visa applications were invalid.

Statement made on 30 November 2023 at 3:38pm

CATCHWORDS
MIGRATION – Skilled Independent (Permanent) (Class SI) visa – Subclass 189 (Skilled - Independent) – points test – score exceeded pass mark but not score in invitation to apply – some points gained after application made – visa and review applications made by agent – visa application affected by fraud and invalid, not merely negligent – agent being investigated for misconduct and believed to have left Australia – members of family unit – second applicant husband’s successful application for another subclass visa – decision under review set aside and substituted

LEGISLATION

Migration Act 1958 (Cth), ss 65, 98

Migration Regulations 1994 (Cth), r 1.15I, Schedule 2, cl 189.224(1)

CASES

Marhajan v MIBP [2017] FCAFC 213

SZFDE v MIAC (2007) 232 CLR 189

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 17 March 2020 to refuse to grant the applicants Independent (Permanent) (Class SI) subclass 189 (Skilled - Independent) visas under s 65 of the Migration Act 1958 (Cth) (the Act). This is a points based visa designed for skilled applicants who have submitted an expression of interest and received an invitation to apply for the visa.

2. The first named applicant (the applicant) was invited to apply for the visa on 11 July 2019 and applied for the visa on 5 September 2019. The criteria for the grant of a subclass 189 -  Skilled - Independent visa are set out in Part 189 -  Skilled - Independent of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). The delegate refused to grant the visa because the applicant did not satisfy the ‘points test’ criterion in cl 189.224.

3. Specifically, the delegate found that the applicant did not meet cl.189.224 because she had nominated a score of 95 points in relation to her invitation, but the delegate assessed her as only being entitled to 80 points under the points test in Schedule 6D. The delegate assessed the applicant as being entitled to the following points:

   ·Age:  30 points

   ·English language:  20 points

   ·Overseas employment experience:   5 points

   ·Australian work experience:              0 points

   ·Aggregated work experience points:  0 points

   ·Australian professional year:             5 points

   ·Educational qualifications:                 15 points

   ·Specialist educational qualification:   0 points

   ·Australian study:  5 points

   ·Credentialed community language:    0 points

   ·Study in regional Australia:                0 points

   ·Partner skill:  0 points

   ·State or territory nomination:             0 points

   ·Designated area sponsorship:           0 points

   ·TOTAL:  80 points

4. Given this, the delegate found that the applicant did not meet the requirement in cl.189.224(1) to have a score that was not less than the score stated in the invitation to apply for the visa. She therefore did not meet cl.189.224 as a whole and could not be granted a subclass 189 visa. The delegate also refused to grant subclass 189 visas to the second and third named applicants (the applicant’s husband and child) as they did not meet the secondary visa criteria requiring them to be members of the family unit of a person who held a subclass 189 visa, and there was no evidence that they met the primary visa criteria in their own right.

5. The Tribunal received a review application from the applicants on 6 April 2020. It was accompanied by a copy of the delegate’s decision and copies of the biodata pages of the applicants’ passports.

6. On 23 May 2023, the applicant provided a copy of email correspondence between her and the Law Institute of Victoria indicating that a Rashika Prakash (also known as Rashika Sahay) was being investigated for unspecified misconduct and was believed to have left Australia.

7. The applicants appeared before the Tribunal on 31 May 2023 to give evidence and present arguments.

8. The applicants clarified that Rashika Sahay was the person to whom they paid $6,000 to lodge their subclass 189 visa application, and also a subclass 190 visa application. They explained that once the applicant finished her course, they started preparing to make a permanent residence application in one or more of the Points Test visa categories. They were referred to Ms Sahay by the NAATI trainer that the applicant was dealing with to have her community language (Hindi) accredited. Ms Sahay was described to them as a legal practitioner who assisted people with Points Tested visa applications; however, they were referred to her during the COVID19 pandemic, so they never actually met her in person but dealt with her by telephone and email.

9. The applicants told the Tribunal that they had used a migration agent to make an earlier subclass 190 visa in 2018 as they hoped to obtain sponsorship/nomination by the New South Wales government (which had advertised that it was open to nominating visa applicants) but the agent incorrectly put Victoria in the Expression of Interest (EoI), and it was not accepted. With Ms Sahay, they provided her with all of their documents, and she prepared the EoI and the online visa application for the subclass 189 visa. In response to the Tribunal’s query, the applicants said that Ms Sahay did not provide them with a costs agreement, and did not provide them with a copy of their EoI or their online visa application. Moreover, she did not advise them that the EoI she used for their subclass 189 visa had a score of 95 and that this would be used in the invitation to apply for the visa. They added that she advised them that they could obtain extra points for the applicant having a credentialed community language and for the second named applicant having a positive skills assessment for his occupation of Chef and having competent English, but failed to advise them that all of these things had to be in place by the time that they were invited to apply for the visa, and could not be taken into account if they were obtained after this date. They explained that the applicant tried to obtain her NAATI accreditation in Hindi earlier than December 2019 but was unable to as she failed the initial assessment, which took place only 1 month after she gave birth to her son, and the only available dates after this were in December 2019. The second named applicant said that he obtained a positive skills assessment as a Chef via recognition of prior learning (RPL) in 2022, but did not have this at the time that they were invited to apply for a subclass 189 visa. Nor did he have an English test demonstrating that he had competent English prior to being invited to apply for the subclass 189 visa.

10. The applicants told the Tribunal that Ms Sahay told them they could add additional points to the applicant’s score after the visa application was made, which was not true. They told the Tribunal that Ms Sahay did not advise them of the subclass 189 visa refusal and they only found out when the applicant needed to use Medicare for her son’s treatment in 2020, and was advised that the Department had refused the subclass 189 visa earlier that year. The applicants further stated that Ms Sahay lodged a review application with the Tribunal, also without advising them at the time, and paying the fee herself. When they found this out later, they believed that this indicated that she knew that she had mishandled their application.

11. The Tribunal raised with the applicant the fact that their online visa application and their online review application do not list any registered migration agent, legal practitioner or representative, and instead list the applicant herself as the contact person. When told the email addresses listed in each application for the applicant, the applicants emphatically denied that they had ever used these email addresses, speculating that Ms Sahay used her own email addresses using part of their details, so that she received correspondence about their applications, but they did not do so directly. They stated that they thought this was the reason that the Department did not get a timely response to its request for information from them. They stated that they were unaware of any such correspondence. They told the Tribunal that Ms Sahay was extremely difficult to contact as she said that she was not available due to family issues, and they lost contact with her altogether some time after the review application was lodged in April 2020.

12. The Tribunal discussed with the applicants the fact that there appeared no way to allocate the applicant more points under the Schedule 6D Points Test, as most Parts required that various things (such as NAATI accreditation in a community language) had to have been in place at the time that the applicants were invited to apply for the visa (that is, by 11 July 2019 in this case). It noted that the applicant only received accreditation in Hindi from NAATI in December 2019, and the second named applicant also obtained his skills assessment as a Chef after 11 July 2019. Therefore, it appeared that the applicant’s correct score was 80 points, and while this score exceeded the pass mark of 65 points, it was not equal to or greater than the score in the invitation to apply for the visa, which was 95 points. The Tribunal acknowledged the applicant’s assertion that Ms Sahay incorrectly stated that the applicant was entitled to 95 points in their EoI, and that they were unaware of this, but noted that there was no legal basis to be able to change the invitation letter score. It noted that the only possibility that their evidence raised was whether Ms Sahay’s conduct in their case amounted to fraud (as that term is understood in immigration law), but even if this could be established, it might only result in the Tribunal finding that their original subclass 189 visa was invalid if it were affected by fraud. It undertook to undertake further research on this issue and write to the applicants with its preliminary view about what the implications were, prior to making its final decision.

13. The applicants told the Tribunal that in the meantime, the second named applicant had successfully applied for a subclass 482 visa as a Chef, nominated by his Australian employer, the Pancake Parlour, and they held this visa for 3 years from 29 November 2022. They told the Tribunal that they had sought migration advice about whether the second named applicant would be eligible for a subclass 186 Direct Entry permanent residence visa but had been confused by receiving different advice about how much work experience in Australia the second named applicant from several migration lawyers. The applicants told the Tribunal that their son is now 4 years old, is in good health, and is now attending kindergarten.

14. The applicants reiterated that they felt that they had been misled and ripped off by Ms Sahay, who held herself out as a lawyer, but who (as far as their investigations had been able to establish) was neither a registered legal practitioner nor a registered migration agent. The Tribunal noted that the advice they forwarded from the Victorian Legal Practitioners’ Registration Board indicated that Ms Sahay was under investigation by the Victoria Police but it appeared that she had left Australia, which meant it was very uncertain as to whether any findings would or could be made against her by the Police, the Board or the Office of the Migration Agents’ Registration Authority (OMARA). The Tribunal observed that this might also complicate the issue of whether fraud by her could be established.

15. Following the hearing, the Tribunal wrote to the applicants on 4 September 2023 to provide its preliminary views about whether it could be satisfied that fraud had taken place, as follows:

    …

    As discussed at your hearing on 31 May 2023, the Presiding Member has undertaken further research into whether it could be said that the alleged conduct of your former representative, Ms Rashika Sahay (also known as Rashika Prakash) could constitute fraud for the purposes of migration law.

    While the Tribunal notes that it appears that there was no written agreement between you and Ms Sahay, the Australian courts have held that a migration agent or legal practitioner’s authority to act on behalf of another person (or persons) may be implied from the conduct of the parties or the relationship of the parties.

    In this case, the Tribunal considers that there is evidence to suggest that Ms Sahay was acting on your behalf in relation to the lodgement of your subclass 189 visa application, despite her not being listed as your representative in the online visa application, and despite there not being a written costs agreement between you and Ms Sahay. This is because she worked for a migration agency, provided you with migration advice and prepared and lodged your Skill Select invitation, visa applications and review application. On balance, the Tribunal considers that this indicates that there is an implied agency agreement between you and Ms Sahay.

    The next issue for consideration is whether Ms Sahay’s alleged conduct amounts fraud or whether it is merely negligent. If it is merely negligent, then s.98 of the Migration Act 1958 may be engaged, and the actions of the agent, such as applying for the visa and submitting the incorrect information, are attributable to you.

    If fraud is established, s.98 would not be engaged, and your visa application would be vitiated by the conduct of the agent. In such circumstances, the Tribunal could make a decision to set aside the decision under review on the basis that there was never a valid visa application made on your behalf. This is because a visa application may not be valid if it is lodged as a result of fraudulent conduct on the part of a third party which prevented the primary decision-maker from carrying out their statutory functions: Maharjan v MIBP [2017] FCAFC 213 at [113]. However, depending on the precise nature of an agency relationship, a migration agent or legal practitioner exceeding their instructions will not necessarily invalidate a visa application.

    In your case, the view of the Presiding Member is that it is arguable that Ms Sahay’s actions consisted of merely providing bad advice, as opposed to outright fraud. She incorrectly advised you that you could be awarded additional points under the Schedule 6D Points Test for various attributes that you and/or Mr Patel could establish or obtain after lodging the visa application, rather than advising you that all of these factors had to exist at the time that you were invited to apply for the subclass 189 visa. In the Tribunal’s preliminary view, this is not sufficient to establish deliberate fraud by her (though it may constitute negligence).

    If the Tribunal finds that Ms Sahay’s conduct falls short of fraud for migration purposes, then it will have to affirm the decisions to refuse to grant you subclass 189 visas, as it has no legal basis on which to adjust your score under the Schedule 6D Points Test, and has no power to waive the requirement in the Regulations that you must obtain a score equal to or greater than both the pass mark and the score listed in the letter inviting you to apply for the subclass 189 visa.

    In cases where the Tribunal must affirm the decision under review, it may also consider whether it would make a referral to the Minister for Immigration for the Minister to intervene in your case to substitute a decision to grant you a visa, even though you do not technically meet the visa requirements, pursuant to s.351 of the Migration Act 1958.

    Section 351 of the Migration Act confers a personal, non-compellable discretion on the Minister to grant a visa, if he or she believes that it is in the public interest to do so.

    Guidelines about the kinds of circumstances in which the Minister might intervene in a case pursuant to s.351 are set out on the Department’s website: Ministerial Intervention (homeaffairs.gov.au)

    Please provide any comments that you wish to on the above information, including whether you wish the Tribunal to consider referring your matter to the Minister for consideration of the exercise of his or her s.351 power, by 20 September 2023. The Tribunal will then proceed to make its decision on the available evidence.

    …

16. On 6 September 2023, the Tribunal received the following email response from the applicants:

    …

    This email is in regards to the the decision that we have received for review of visa application subclass 189 , I am confused with the response in relation to Ms Rashika Prakash that based on the information we provided at hearing she didn't considered as Fraud or the person who liable to refused our visa without knowing us how she will going to apply for visa application and I would like to know what kind of evidence or document required to prove Rashika as Fraudulent as she didn't mentioned that she is only migration agent but she provide wrong identity of her as Legal Practitioner (P0021511) Lawyer and run V R Intelligence agency. I have attached the fees or invoice that we have paid to her and also screenshots of our conversation while we tried to contact her and she didn't answer or respond and she left Australia already and escaped from this situation, I hope that might help you to support the case in my favour. As I mentioned at hearing Rashika didn't advise or inform her that we refused our visa application due to her misconduct and she paid our AAT application fee without our consent as we didn't know that our visa refused due to the way she applied for our Visa and we compensate her guilty till now as form of refused Visa application.

    The reason for this email is to clear the points against Rashika as we were confused about the information written in the letter and decision made by AAT and also missing information to prove Rashika fraud and responsible for refusing our 189 visa.
    …
    …
    
    Thanks
    Zalak and Mithil

    …

17. The attachments provided were 4 invoices from VR Intelligence Pty Ltd totalling $4,000 issued between June and December 2019, receipts issued by VR Intelligence Pty Ltd issued in the same period to the applicants, and copy of statement of attainment indicating that the applicant had completed 3 subjects in aged care related topics at the Canberra Institute of Technology in 2022.

18. On 13 September 2023, the applicant provided a further email response, as follows:

    …

    I have carefully considered the information that we already have provided enough information for Representative Rashika to prove her Fraud but I could not provide further documents in relation to that.

    I would like to provide my consent to addressing this case to the Ministerial Intervention for further approval of decision to grant our visa if its public interest to do so.

    …

19. On 15 September 2023, the Tribunal received a further email from the applicant, as follows:

    …

    I apologise to letting you now but I found this in my email to support further information with supporting document , I have attached EOI which I have received from Rashika. I have asked for the EOI that she has applied actually with 80 points but she has only provided 190 EOI for NSW and she didn’t provide any documents of 95 points EOI and not given the actual EOI I asked for 189 with 80 points. After that I also asked via message her to get copy of EOI with 189 points but she disregarded that message and promised to call but she didn’t responded.

    I hope this information may help you to assist my case further with supporting documents.

    …

1. The attached documents include a screenshot of the Department’s Skill Select website showing an EOI lodged by the applicant on 21 June 2019 for a subclass 190 visa with a self-assessed score of 85 points, and screenshots of text messages between the applicant and Rashika about providing the EOI for the subclass 189 visa application.

2. For the following reasons, the Tribunal has concluded that the decisions under review should be set aside and substituted with a decision that the applicants’ subclass 189 visa applications were invalid.

   CONSIDERATION OF LAW, CLAIMS AND EVIDENCE

3. The issue in the present case is whether the applicant satisfies the points test criterion which requires that the applicant’s score, when assessed in relation to the visa under Subdivision B of Division 3 of Part 2 of the Act:

   ·is not less than the score stated in the invitation to apply for the visa and

   ·is not less than the ‘qualifying score’.

4. Subdivision B of Division 3 of Part 2 of the Act provides for a points system under which an applicant is given an assessed score based on a prescribed number of points for particular attributes. The qualifications and points applicable to this case are prescribed in Schedule 6D to the Regulations (reg 2.26AC). An applicant achieves the qualifying score if their assessed score is more than or equal to the applicable pass mark (s 94 of the Act), which is set by the Minister from time to time under s 96(2). The Tribunal must consider the applicant against the qualifications and points prescribed in Schedule 6D, and the pass mark as in force at the time of the delegate’s assessment and as in force at the time of this assessment, and apply whichever is more favourable to the applicant (ss 93 and 350 of the Act).

5. Some elements of the points test relate to the nominated skilled occupation. An occupation is a ‘skilled occupation’ if: it is specified by the relevant instrument as a skilled occupation; and, if a number of points are specified in the instrument as being available - for which the number of points are available; and that is applicable to the person in accordance with the specification of the occupation (reg 1.15I). The relevant instrument for this purpose is Legislative Instrument IMMI 19/051. In the present case, the applicant nominated the occupation of Accountant (General).

6. Following the evidence given at the hearing, the Tribunal has considered the claims raised by the applicants concerning Rashika Prakash.

   Conduct of previous ‘agent’ – whether constitutes fraud

7. In summary, the applicants told the Tribunal that:

   ·they paid a person, Rashika Prakash (also known as Rashika Sahay), who held herself out to them as a registered legal practitioner in Victoria, practising in migration law, to lodge an EOI for a subclass 189 visa application for them, and then to lodge the subclass 189 visa for them;

   ·they provided all relevant documents to her, but did not receive a costs agreement, nor a copy of the EOI lodged by Rashika on their behalf;

   ·Rashika was not listed in their online visa application as their representative, nor in their review application, despite her preparing and lodging both these applications. The email address for correspondence in these applications was not one ever used by the applicants;

   ·Rashika incorrectly advised the applicants that they could be awarded additional points under the subclass 189 ‘points test’ for various attributes that they could establish or obtain after lodging the visa, rather than advising them that all of these factors had to exist at the time that they were invited to apply for the subclass 189 visa;

   ·she also did not advise them that their visa application had been refused or that she had lodged a review application on their behalf; and

   ·it appeared that she had now departed Australia and her conduct was (or had been) under investigation by Victoria Police.

8. The Tribunal’s research indicates that Rashika Sahay (nee Prakash) was associated with a business, VR Intelligence, based in Melbourne, whose website indicates that it provides migration and education advice and is ‘a registered migration agent.’ It is not clear whether Ms Sahay herself was or is a registered migration agent herself as there is no record of her on the website of the Office of the Migration Agents Registration Authority (OMARA). There is no record of her on the website of the Legal Practitioners’ Board of Victoria (LPBV) and on 30 November 2023, the LPBV confirmed to the Tribunal that no one of either name had been registered as a legal practitioner and that the practitioner number used by Rashika belonged to another person.

9. As discussed with the applicants at hearing, the Tribunal has considered whether this conduct amounts to fraud.

10. The applicants submitted that that Rashika did not advise them that she had put a higher score in the EoI for the subclass 189 visa than they had self-assessed, nor did she advise them that they could not get points for certain Parts of the Schedule 6D points test after they had lodged their visa application. They further allege that she did not advise them that their visa had been refused in March 2020, nor did she advise them at the time that she had lodged a review application with the Tribunal on their behalf in April 2020 following the visa refusal. They further allege that she used a false email address in their online visa and review applications, which purported to their personal email address but which was not, and which was controlled by her. Finally, she falsely held out to them that she was a registered legal practitioner.

11. The Tribunal found the applicants to be credible witnesses, and it accepts that they engaged Rashika Sahay (also known as Rashika Prakash), who worked for a firm called Migration Intelligence (also known as V R Intelligence), to make their subclass 189 visa application in 2019, including preparing and lodging an EoI with the Department prior to making the subclass 189 visa application. The Tribunal is satisfied that although there was no written costs agreement between Rashika and the applicants and she did not list herself as the applicant’s agent in the EoI or visa application, there was an implied agency agreement between them, given that Rashika provided migration advice verbally and by email to the applicants, prepared the applicant’s EoI and their visa application, and charged them approximately $6,000.

12. As discussed with the applicants, s.98 of the Act provides as follows:

    A non-citizen who does not fill in his or her application form or passenger card is taken to do so if he or she causes it to be filled in or if it is otherwise filled in on his or her behalf.

13. Essentially, s.98 provides that the actions of a person’s agent are taken to be that person’s actions in relation to their visa application. However, this does not apply if the agent has acted fraudulently in relation to the visa application: SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189.

14. The Tribunal has considered whether the former agent’s conduct was merely negligent (in which case s.98 would apply to deem her actions to be those of the applicants in relation to the subclass 189 visa) or amounted to fraud.

15. It concludes that the applicant’s former agent’s conduct does amount to fraud, for the following reasons:

    ·she held herself out as a legal practitioner, when there is no evidence that she was one;

    ·she did not act on the applicants’ instructions (being the applicant’s self assessment that she was entitled to 80 points for the purposes of lodging an EOI for the subclass 189 visa) but completed the EOI on behalf of the applicant making false claims that she knew had to be untrue (notably, that at the time, the applicant had a credentialled community language, and that the second named applicant had a skills assessment for his occupation);

    ·she created an email address (used in the visa and review applications) which purported to be the applicant’s email address but was not; and

    ·she did not inform the applicants that their subclass 189 visa applications had been refused.

16. In the Tribunal’s view, the above conduct goes beyond negligence and indicates a deliberate, fraudulent course of action undertaken by the applicants’ former agent.

17. The Tribunal must also be satisfied that this conduct amounted to fraud on the Department decision maker in the sense that it has prevented, or has tended to prevent, that person from carrying out their statutory functions: Marhajan v Minister for Immigration and Border Protection [2017] FCAFC 213 at [113].

18. In this case, the lodgement of an EOI by the applicants’ former agent that deliberately overstated the points to which the applicant was entitled resulted in them being refused the visas, as that score was used by the Department decision maker to assess the applicant in relation to cl.189.224. Had the applicant’s self-assessed score of 80 been used, she would have met cl.189.224. The Tribunal is therefore satisfied that the former agent’s actions did stultify the Department’s decision-maker in this case.

19. The Tribunal is satisfied from his oral and written evidence that the applicants were not complicit in this fraud, nor were they recklessly indifferent as to their agent’s actions (as they queried the EOI and sought to obtain a copy of it). The Tribunal considers the applicants engaged the services of a person who was recommended to them, and who held herself out as a legal practitioner specialising in point tested visa applications, and it was understandable that they trusted her professional judgment in this matter until they discovered the true state of affairs regarding their visa application. Given this, her fraud should not be attributed to them: Gill v Minister for Immigration and Border Protection [2016] FCAFC 142.

20. As the Tribunal has found that the subclass 189 visa applications made on behalf of the applicants were vitiated by fraud, it follows that the Tribunal sets aside the decisions under review and substitutes a decision that the subclass 189 visa applications were not validly made.

    DECISION

21. The Tribunal sets aside the decision not to grant the applicants Skilled Independent (Permanent) visas and substitutes a decision that the applicants’ Skilled Independent (Permanent) visa applications were invalid.

    Alison Mercer
    Member