SEBASTIAN v Minister for Immigration

[2015] FCCA 1788

FEDERAL CIRCUIT COURT OF AUSTRALIA

SEBASTIAN v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 1788

Catchwords:
MIGRATION – Application for extension of time in which to bring application – application for judicial review of decision of Migration Review Tribunal – applicant asserting difficulties caused by fraud of migration agent – application doomed to failure – whether applicant responsible for the application – whether agent acted within scope of ostensible authority – no jurisdictional error shown – application dismissed.

Legislation: 
Migration Act 1958, ss.351, 477

Migration Regulations 1994, cl.482.215, 485.221

SZGJO v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 393
SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189

Applicant: LUCKOSE SEBASTIAN

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: MLG 102 of 2014

Judgment of: Judge Burchardt

Hearing date: 14 May 2015

Date of Last Submission: 14 May 2015

Delivered at: Melbourne

Delivered on: 20 July 2015

REPRESENTATION

The Applicant: In person (assisted by an interpreter)

Counsel for the FirstRespondent: Mr McDermott

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The application for an extension of time for the making of the application pursuant to the Court’s power in s.477 of the Migration Act 1958 is dismissed. 

2. The applicant pay the first respondent’s costs. 

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT MELBOURNE

MLG 102 of 2014

LUCKOSE SEBASTIAN

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introductory

1. The applicant seeks judicial review of a decision of the Migration Review Tribunal (“the Tribunal”) dated 13 December 2013.  The Tribunal affirmed a decision of a delegate of the first respondent not to grant the applicant a Skilled (Provisional) (Class VC) visa.  The applicant’s application, filed 20 January 2014, states, “I wanted to get student visa back.”  The grounds of application set out a narrative of alleged false conduct by his prior agents, S & S Migration, which led to his original student visa lapsing.

2. The applicant’s affidavit, also filed 20 January 2014, likewise complains of the agent’s provision of false information and its consequences.

3. The first respondent’s contentions of fact and law can be paraphrased for these purposes as amounting to the propositions that the applicant’s actual application, the subject of the Tribunal decision (it was a Skilled Graduate (Temporary) (Class VC) Subclass 485 visa), was doomed to fail, and that the applicant was responsible in the ultimate for his migration agent’s misconduct, if such it was.

4. For the reasons that follow, I think that the first respondent’s submissions are correct, and it follows that the application will be dismissed.

A brief overview of the matter

1. From a letter written by Carina Ford Immigration Lawyers on behalf of the applicant on 7 November 2013 (CB87), it appears that the applicant arrived in Australia on 15 May 2009 as the holder of a subclass 572 visa, which was due to expire on 25 April 2011.  He was initially enrolled in a Certificate III course in Graphic Pre Press, which he studied until 2010 when he changed courses to a Certificate III in Automotive from MITT.

2. It is clearly that 572 visa that the applicant describes as his student visa.

3. On 1 April 2011, an application was lodged on the applicant’s behalf for a subclass 485 visa with the assistance of S & S Migration.  As the first respondent’s written contentions of fact and law correctly assert, the skilled occupation in the application was Automotive Electrician, the assessing authority was Trades Recognition Australia, and the Skills Assessment was said to be dated 15 September 2010, with reference number TRA10/19132016.  The application did not indicate that a migration agent was nominated.

4. In February 2012, the Department of Immigration and Citizenship sent an email to the applicant’s nominated email address in his application inviting him to comment on the fact that evidence had been received that he had engaged S & S Migration, and that there was no successful skills assessment as nominated by the application.  The email put it to the applicant that he had provided false and misleading information to the Department in support of his visa application, and he was invited to comment as to whether there were any compelling circumstances to justify the waiver of Public Interest Criterion 4020.

5. On 12 March 2012, the applicant replied to the Department’s email outlining how he had been misled and defrauded by S & S Migration (Court Book “CB” 26-27).

6. On 21 February 2013, a delegate of the first respondent refused to grant the visa on the basis that there was no evidence that the applicant met either the competent English requirement in cl.482.215 of Schedule 2 to the Migration Regulations 1994 (“the Regulations”), or that he had obtained a successful skills assessment for his nominated skilled occupation from a relevant assessing authority (cl.485.221 of the Regulations).

7. On 1 March 2013, the applicant applied for a review of the first respondent’s delegate’s decision to the Tribunal, and on 5 September 2013 the Tribunal invited the applicant to appear at a hearing before it.  The invitation invited the applicant to provide evidence demonstrating that he had competent English (CB53-54).

8. The applicant appeared at a hearing before the Tribunal, and was permitted to provide written submissions after the hearing in support of his application for review.

9. On 8 November 2013, the Tribunal received a letter from Carina Ford Immigration Lawyers, to which I have already referred above.  Inter alia, the submission attached a Certificate III in Automotive Mechanical Technology (Light Vehicle) from the Melbourne Institute issued 4 September 2012, and a Certificate IV in Business from the Melbourne Institute issued 30 October 2012.

10. The Tribunal’s decision, as earlier indicated, was dated 13 December 2013, and the applicant lodged his original application to this court on 20 January 2014.  The application was several days late, but the first respondent has expressly waived any objection to an extension of time.

11. On 16 February 2015, the matter was listed before the court, and Judge Whelan dismissed the application for an extension of time with costs.

12. On 19 February 2015, the applicant filed an application in a case, seeking to re-open the matter, and an affidavit in support asserting that his car broke down on the way to court and he arrived late.

13. On 13 April 2015, I ordered, by consent, that Judge Whelan’s orders be set aside and made orders to enable the matter to be heard on

    
    

    14 May 2015. While my order reinstated the substantive proceeding, the applicant of course still requires an extension of time pursuant to s.477 of the Migration Act 1958 (“the Act”). 

14. The first respondent filed short supplementary submissions on 28 April 2015, and the applicant filed a further affidavit on 8 May 2015.

15. The applicant’s affidavit annexed further material about the principals of S & S Migration and the applicant’s interrelationship with that body.  In part, it also repeated material already before the Tribunal.  In substance, it adds nothing to the materials the applicant had already asserted.

The submissions at court

1. The applicant, who represented himself with the assistance of an interpreter in Malayali by telephone (a process by no means entirely satisfactory but the only available practical option), told the court that his student visa had expired.  He approached an agent to get this visa extended, but they told him it was very hard but that he could apply for a work visa and study as well.  He said that he had submitted all the paperwork and then the agent proceeded, and he paid them in instalments.  Then a visa was given to him and he realised it was a Subclass 485 visa, which he said was not appropriate for his qualifications.  He said he returned to the agency three times but the agents were not there.  They had gone to India.  He was requesting to get his student visa back because he wished to complete his study.

2. Counsel for the first respondent was generally content to rely upon the Contentions of Fact and Law filed.  As a matter of fairness, and in order to ensure that the matter was clearly put, he did, however, make some oral submissions.  The application for extension of time was opposed primarily on the basis that the substantive application lacked merit. 

3. Counsel submitted that the court’s task was to see if jurisdictional error had occurred, but the court did not have jurisdiction to review the delegate’s decision on the merits.  At the Tribunal hearing, the applicant conceded that he was unable to meet the Subclass 485 visa requirements.  The Tribunal considered why this was so, and accepted that the visa application was that of the applicant, even though the applicant had explained why he should not be responsible for it.

4. Counsel submitted that the Full Court had made it clear that this Court did not have power to review the delegate’s decisions.  He submitted that, in the circumstances, the court should refuse the extension of time, as the applicant would not meet the visa criteria if referred back to the Tribunal.

5. Counsel submitted that the delay in application for judicial review was only three days but was not satisfactorily explained.  It was submitted the court should exercise its discretion not to grant the extension of time because the applicant had not shown legal error by the Tribunal.

6. In reply, the applicant repeated that it was not his fault.  He approached an agent who cheated him.  He did not know the proper way to proceed and had therefore approached the agency.

The first respondent’s written submissions

1. The first respondent’s written submissions, in part, consist of direct quotations from the Tribunal’s decision, and amount to the proposition that the Tribunal’s decision on the Subclass 485 visa was clearly correct.  It is not necessary to further elaborate on this aspect of the matter because the applicant has not sought to challenge the Tribunal’s findings in this regard.

2. The applicant’s submission before the Court concentrates entirely upon his treatment by S & S Migration, a matter of which the Tribunal was clearly aware (see paragraphs 10 and 11, CB110). The Tribunal did not deal in terms with the applicant’s submissions about the agent, but I note that at paragraph 20, CB111, the Tribunal referred to the operation of PIC 4020 and made no findings with respect to it. The Tribunal also considered whether the matter should be referred to the first respondent under s.351 of the Act, and came to the conclusion that this was inappropriate (see paragraphs 24-25, CB112-113).

3. The first respondent’s Contentions of Fact and Law deal with this aspect of the matter at paragraphs 20-34.  The gravamen of those submissions is at paragraphs 30 and 31 as follows:

   “30.  The Applicant was responsible for the content of his visa application in the circumstances of this case.  Where a migration agent has lodged a visa application on behalf of the visa applicant, and that agent has acted within the scope of the actual or apparent authority invested in them, the visa applicant will be fixed with responsibility for the contents of that application.  This is regardless of whether the visa applicant specifically authorised the inclusion of false or fraudulent information – it is the scope of the actual or apparent authority invested in the agent which is the relevant question. 

   31.  There is no evidence before this Court that the conduct of

   
   

   S & S Migration fell outside the remit of the authority invested in it by the Applicant.  At [10], the Applicant confirmed that that following advice form (sic) S & S Migration a skilled visa application was lodged, which is the subject of the current proceeding.  He knew that he did not meet the criteria for the grant of that visa.”

4. The written submissions go on to assert that the applicant has not proved to the requisite standard that S & S Migration permitted a fraud on the delegate or on the Tribunal in relation to the application, and notes that the applicant could have withdrawn his application should he have wished to do so.

Consideration

1. It is important to note what the applicant actually told the Tribunal. 

   
   

   At paragraphs 10-11, CB110, the Tribunal recorded:

   “At the hearing, the Tribunal put to the applicant the finding of the delegate that he had not provided evidence of the relevant level of English ability for the grant of this visa and that he did not possess relevant skills assessment.  The applicant gave evidence that he went to see a migration agent at ‘S&S Migration’ to extend his student visa.  He was advised that he could not extend his student visa but could instead apply for a two year work visa.  He said that the agent submitted the application on his behalf and told him that he had a visa for two years.  However, he later came to learn that this visa was fake and when he went back to see that agent he had disappeared.  When asked, the applicant confirmed that he did not meet the criteria for the visa.  When asked what he therefore wished for the Tribunal to do, he said that he just wanted to get his student visa back.  The Tribunal explained to the applicant that it did not have the power to grant him a student visa but simply to review his eligibility for the visa presently before it.  The tribunal agreed to delay the finalisation of his matter 14 days to enable him to seek migration advice and provide a written submission. 

   11.  Following the hearing, the applicant engaged the services of a migration agent who provided to the Tribunal written submissions and a number of supporting documents. 

   
   

   In summary, it was claimed that the applicant was the victim of a well-known migration scam by the firm known as

   
   

   S&S Migration who held themselves out as registered migration agents but were not. It was submitted that he approached this purported agent to extend his student visa but was advised that he had little chance to obtain a further student visa and should instead apply for a work visa. It was claimed that the applicant followed this advice and paid the agent his requested fee. He thereafter left the matter in his agent’s hands to lodge the visa application. It was submitted that the applicant had not breached the requirements of Public Interest Criterion (PIC) 4020(1) and, in the alternative, that the waiver under PIC 4020(4) should be exercised. Further in the alternative, it was submitted that the case should be referred to the Minister under s 351 of the Act. At no point in that submission was claimed that the applicant met the requirements of 485.215 or cl.485.221. Nor were any documents provided, such as IELTS results or

   
   

   a skills assessment, to show that the applicant met either of these criteria.”

2. In these circumstances, and given the applicant’s lack of evidence of competent English, and a relevant skills assessment, the Tribunal’s refusal of the application was inevitable.  The question that arises is what, if anything, the Tribunal should have done about the assertions about S & S Migration.

3. The Tribunal was, in my view, correct to say, as it did, that the Tribunal had no power to grant the applicant a student visa.  The matter before it was simply the application for a Subclass 485 visa.  It had no power to direct the first respondent to give any other sort of visa than that for which the applicant had applied.

4. The Tribunal did turn its mind to the applicant’s claim in relation to PIC 4020 and did not need to determine it.  That conclusion was, in the circumstances, correct as the applicant’s application was doomed to fail in any event.

5. The Tribunal considered the request to refer the matter to the first respondent but declined to do so.  The reasons are brief but do not suggest that the Tribunal did not understand its task and turn its mind properly to it.  This does not disclose jurisdictional error either.

6. Further and in any event, the conduct of the applicant in placing his affairs in the hands of S & S Migration, who thereafter proceeded to make the application on the applicant’s behalf, brings him within the purview of the authorities quoted by the Minister in written submissions.  Inevitably, each case turns on its own facts, but in SZGJO v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 393, Bennett J in a case for these purposes indistinguishable, said at [15]-[17]:

   “15. Section 98 of the Act provides:

   “Completion of visa application

   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.”

   16.  The appellant authorised and caused his migration agent to fill in the visa application form on his behalf.  While he did not specifically authorise the inclusion of incorrect or incomplete information, as in NAWZ, s 98 applies.  Section 98 does not require a covert purpose to mislead.  The Federal Magistrate was not in error in finding that, in the circumstances, the visa application was valid. 

   17. The appellant relies upon the conduct of the migration agent who ‘deprived the appellant of the opportunity of a proper merits review’. That does not render the visa application invalid. I agree with Mr Hirsch that the consequences for the appellant are most unfortunate, to say the least. I note that the Federal Magistrate has accepted that the actions of the migration agent were without instructions and fatal to the proper consideration of the appellant’s visa application. Although the application to the Tribunal was invalid, the appellant is now out of time in which to lodge a fresh application for review of the delegate’s decision. It has been suggested that the appellant may consider an application to the Minister pursuant to s 48B of the Act.”

7. In this case, of course, it remains open to the applicant, even now, to make an application to the first respondent himself pursuant to s.351 of the Act.

8. This is not a case like SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189, where the fraud of the agent prevented the applicant having a hearing at all. Rather, what is put is one remove further away.

9. The applicant plainly authorised S & S Migration to make the application on his behalf, and the Tribunal dealt with that application on its merits and in a fashion of which, in truth, no criticism is made even by the applicant.

10. What the applicant is really saying, and indeed his migration agent

    
    

    Ms Ford said also, is that the conduct of S & S Migration misled the applicant as to what his appropriate course of conduct should have been and thereby deprived him of the chance of having a proper application properly considered.  That is the aspect of this matter, which bears some parallel, as I have indicated, with the case considered by Bennett J. 

11. The applicant has not provided evidence which could have enabled the Tribunal, or for that matter this court, to conclude that if he had not made the application through S & S Migration, some other application, which he never in fact made, in some way to extend his student visa would or would not have been successful.  Given his lack of legal representation, this omission is scarcely surprising and cannot be criticised.

12. Even if the applicant had addressed this task and had satisfied it, I do not see how the applicant could have succeeded before the Tribunal in any event.  The Tribunal, as already said more than once, simply had no power to order the first respondent to give the applicant a student visa in the circumstances of the particular review before it.

Conclusion

1. In the circumstances described, the applicant’s case cannot succeed.  I repeat that he may well wish to consider himself applying to the first respondent.  Nonetheless, the application must be dismissed with costs.

I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of Judge Burchardt

Associate: 

Date:  20 July 2015