Sidhu v Minister for Immigration
[2018] FCCA 1227
•23 May 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SIDHU v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 1227 |
| Catchwords: MIGRATION – Application for judicial review of a decision by the Administrative Appeals Tribunal (“the Tribunal”) affirming a decision of a delegate of the First Respondent refusing to grant the Applicant a Student (Temporary) (class TU) Vocational Education and Training Sector (subclass 572) visa (“the visa”) – whether fraud by third party perpetrated on the Applicant had the effect that the visa application was invalid – held that there was no fraud perpetrated by a third party – whether the Tribunal denied the Applicant procedural fairness – held that the Tribunal provided the Applicant with a meaningful opportunity to give evidence and make submissions at the Tribunal hearing – application for judicial review dismissed with costs. |
| Legislation: Migration Act 1958 (Cth), s.5 Migration Regulations 1994 (Cth), sch.2 cl.572.224, sch.4 cl.4020 |
| Cases cited: Gill v Minister for Immigration and Border Protection [2016] FCAFC 142; (2016) 248 FCR 398 Maharjan v Minister for Immigration and Border Protection [2017] FCAFC 213 |
| Applicant: | KULDEEP SINGH SIDHU |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 2782 of 2015 |
| Judgment of: | Judge Jones |
| Hearing dates: | 21 November 2017, 2 March 2018 |
| Date of Last Submission: | 2 March 2018 |
| Delivered at: | Melbourne |
| Delivered on: | 23 May 2018 |
REPRESENTATION
| The Applicant appeared in person. |
| Counsel for the Respondents: | Mr Priestley of The Australian Government Solicitor (21 November 2017) Mr Hosking (2 March 2018) |
| Solicitors for the Respondents: | The Australian Government Solicitor |
ORDERS
The Applicant’s application for judicial review filed on
16 December 2015 be dismissed.
The Applicant pay the costs of the First Respondent in a fixed amount.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 2782 of 2015
| KULDEEP SINGH SIDHU |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This decision concerns an application for judicial review of an oral decision of the Second Respondent, the Administrative Appeals Tribunal (“the Tribunal”), dated 24 November 2015, affirming the decision of a delegate of the First Respondent, the Minister for Immigration and Border Protection (“the Minister”), made on
20 October 2014 refusing to grant the Applicant a Student (Temporary) (class TU) Vocational Education and Training Sector (subclass 572) visa (“the visa”). A transcript of the Tribunal’s decision is contained in Annexure GP-1 to the affidavit of George Priestley filed on
21 November 2017.
Both the delegate (“the Delegate”) of the Department of Immigration and Border Protection (“the Department”) and the Tribunal found that the Applicant was not entitled to the grant of the visa because he did not satisfy Public Interest Criterion 4020 (“PIC 4020”) of sch.4 to the Migration Regulations 1994 (Cth) (“the Regulations”). Both the Delegate and the Tribunal were satisfied that two documents provided by the Applicant to the Department in support of the Applicant’s application for the visa were “bogus documents” or contained information that was “false or misleading in a material particular” within the meaning of s.5 of the Migration Act 1958 (Cth) (“the Act”). Neither the Delegate nor the Tribunal was satisfied that the Applicant’s circumstances warranted waiving PIC 4020 (cl.4020 of sch.4 to the Regulations).
The central issue arising in this case is whether fraud by a third party had the effect that the Applicant’s visa application was not a valid visa application. This issue was not identified, at the Tribunal hearing or in written submissions filed for the purpose of these proceedings, by the Applicant who is self-represented and whose grounds of judicial review contained in his application for judicial review were mainly a narrative of events following the Applicant’s application for the visa. The only proper ground raised by the Applicant in his application for judicial review was that he was denied a “fair go” by the Tribunal and an opportunity to give evidence.
The issue regarding the effect of fraud by a third party arose in the course of the first hearing of the Applicant’s application for judicial review on 21 November 2017 (“the First Hearing”) during submissions made by the Applicant when asked by the Court to explain his grounds of judicial review. Upon hearing the Applicant’s submissions, it became apparent that the Applicant was submitting that a migration agent the Applicant said he had appointed to assist him in preparing his visa application had committed fraud by submitting false and misleading documents to the Department without the Applicant’s knowledge or involvement during the course of the preparation of the visa application.
By orders made at the second hearing of the Applicant’s application for judicial review on 2 March 2018 (“the Second Hearing”), taking into account the Full Court of the Federal Court decisions in Gill v Minister for Immigration and Border Protection [2016] FCAFC 142; (2016) 248 FCR 398 (“Gill”) and Singh v Minister for Immigration and Border Protection [2016] FCAFC 141; (2016) 247 FCR 554 (“Singh 2016”) and, bearing in mind the Applicant would be unable to characterise the alleged jurisdictional error made by the Tribunal and its impact on his visa application, I decided to amend the Applicant’s grounds of judicial review to include the following:
3. The Administrative Appeals Tribunal erred in purporting to exercise its jurisdiction to hear and determine the Applicant’s application for review on the following base(s):
i. the fraud by the Applicant’s migration agent invalidated the visa application.
In the same orders, I also amended the relief sought by the Applicant in his application for judicial review to include “a declaration that there was no valid visa application made by the Applicant for a Student (Temporary) (class TU) Vocational Education and Training Sector (subclass 572) visa in 2013”. There was no opposition from Counsel for the Minister to these amendments of the Applicant’s grounds of judicial review and relief sought. The Applicant also agreed to the amendments.
The Applicant gave sworn evidence at the First Hearing and orders were made for the filing of written submissions by the Applicant and the Minister “in relation to the Applicant’s evidence about the conduct of the migration agent allegedly representing him in his application for the visa…”. I informed the parties, reflected in a notation in the orders made at the First Hearing, that I would determine whether a further hearing would be required upon receipt of the Minister’s final written submissions on 12 January 2018. On 1 February 2018, the parties were sent a Notice of Listing via email correspondence from my Chambers listing the matter for part-heard final hearing on 2 March 2018.
There can be no dispute where there is a claim that there is no valid application for a visa that this is a jurisdictional fact which this Court “has to decide for itself on the basis of all the evidence before it” (Singh 2018 at [122]).
It should be noted that between the First and Second Hearings, the Full Court of the Federal Court of Australia delivered a decision relevant to the issue in this proceeding in Maharjan v Minister for Immigration and Border Protection [2017] FCAFC 213 (“Maharjan”). At the Second Hearing, Counsel for the Minister informed the Court that the Minister had applied on 15 January 2018 for special leave to appeal to the High Court of Australia against this judgment. After the Second Hearing, the Full Court of the Federal Court delivered another decision relevant to this proceeding in Singh v Minister for Immigration and Border Protection [2018] FCAFC 52 (“Singh 2018”).
The material before the Court is as follows:
a)
the Applicant’s application for judicial review filed on
16 December 2015;
b)the Minister’s Response filed on 23 May 2016;
c)a Court Book (“CB”);
d)a copy of the transcript of the Tribunal hearing and decision dated 24 November 2015 (Annexure GP-1 to the affidavit of George Priestley filed on 21 November 2017);
e)the Applicant’s written submissions, contained in the following documents:
i)the Applicant’s Submissions dated 13 August 2016 (Exhibit A1); and
ii)the Applicant’s Submissions filed on 20 December 2017;
f)the Minister’s written submissions, contained in the following documents:
i)
First Respondent’s Contentions of Fact and Law filed on
19 July 2016;
ii)First Respondent’s Further Contentions of Fact and Law filed on 5 December 2017; and
iii)
First Respondent’s Submissions in Reply filed on
12 January 2018.
Background
The Applicant is a 30-year-old Sikh of Indian nationality who first arrived in Australia in 2011 as the holder of a student visa. The Applicant applied for a further visa on 28 November 2013 (CB 10-16) (the visa the subject of the Applicant’s application for judicial review). In his application for the visa, the Applicant provided the Department with his email address as the means for the Department to communicate with him (“the Applicant’s email address”) (CB 12). The Applicant stated that he had not received assistance from any person in completing the visa application form (CB 12).
By correspondence dated 29 November 2013 sent to the Applicant’s email address (CB 17-28), the Department requested further information from the Applicant, including financial information
(CB 24).
On 23 December 2013, the Applicant sent by email to the Department various documents in response to the Department’s request (CB 29-43). The Applicant’s email stated the following:
Dear Officer
I am attaching the documents as requested by you.
Regards
Kuldeep Singh Sidhu
Included in the documents attached to the Applicant’s email was a letter dated 17 December 2013 with the logo of the Punjab National Bank and addressed to the Applicant’s father, Mr Darshan Singh, at his residential address noting that a loan had been sanctioned to him in the sum of 26,00,000 rupees (approximately AUD$51,000) (CB 38, 45). There was also a further letter from the same bank dated 17 December 2013 noting that the full amount of 26,00,000 rupees had been disbursed into the savings account of Mr Darshan Singh (“the bank documents”) (CB 39, 46).
On 21 February 2014, an email was sent from the Applicant’s email address to the Department signed with the Applicant’s full name. The email stated, amongst other things, the following (CB 49):
…I have attached the documents on 23/12/2013 and still waiting for reply from your side.
I want to go overseas that is why need the results…
On 30 April 2014, by correspondence sent by the Department to the Applicant’s email address, the Applicant was invited to comment on “suspected fraudulent information” that he had provided to the Department in support of his application for the visa (CB 54-59). The correspondence identified the bank statements as the suspected fraudulent information (CB 55).
Relevantly, at the commencement of the email, the correspondence used the word “UNCLASSIFIED” (CB 54). After setting out the Applicant’s residential and client details, the email then provided the heading “Invitation to comment on suspected fraudulent information supplied with a valid application for a Student (class TU) visa” (CB 54) before commencing with the substance of the email.
On 21 May 2014, an email was sent from the Applicant’s email address to the Department signed with the Applicant’s full name, which relevantly stated the following (CB 60):
I have looked into this matter and asked my parents about this as they want the money so they have taken it from that account and used it for personal purpose as they are uneducated they do not know about the consequences of taking out the money and closing the account…when I have told them that I have been asked by you to comment on the adverse information they have told me that they can show the money and they have opened the account of my grandfather and now I am attaching all the documents with my funds which they will never take out…
…
Regards
Kuldeep Singh Sidhu
The documents attached to the email were an alternative set of financial documents providing financial guarantees from the Applicant’s grandfather (CB 65-78).
On 20 October 2014, the Delegate subsequently refused to grant the Applicant the visa on the basis that the Applicant had provided a bogus document (the bank documents) to the Department in support of his visa application and, therefore, could not meet cl.572.224 of sch.2 to the Regulations, which required that the Applicant satisfy a number of prescribed Public Interest Criteria, including PIC 4020 (cl.4020 of sch.4 to the Regulations) (CB 83-87). PIC 4020(1) (sub-cl.4020(1) of sch.4 to the Regulations) requires that there be no evidence before the Minister that the Applicant has given, or caused to be given, to a decision maker, a bogus document or information that is false or misleading in a material particular in relation to an application for a visa. The Delegate noted that the Applicant had not requested a waiver of PIC 4020 (cl.4020 of sch.4 to the Regulations) based on compassionate and compelling circumstances (CB 86). In any case, the Delegate decided, on the evidence before it, that there were no compassionate or compelling circumstances within the meaning of PIC 4020(4) (sub-cl.4020(4) of sch.4 to the Regulations) to justify the grant of the Applicant’s visa.
The Applicant lodged an application for review of the Delegate’s decision with the then Migration Review Tribunal (“MRT”) on
27 October 2014 (CB 88-89). The application for review specified that the Applicant was represented by a registered migration agent (CB 89). The Applicant attended a hearing before the Tribunal on
24 November 2015 to give evidence and present arguments with the assistance of his migration agent (CB 172). The Tribunal gave an oral decision on 24 November 2015, affirming the Delegate’s decision to refuse to grant the Applicant the visa (CB 177). No request was made by the Applicant for a written statement of the Tribunal’s decision.
In its oral decision, the Tribunal found that, on the evidence presented to it, the Applicant had provided bank documents that were bogus on the basis that the bank documents purported to have been, but were not, issued by the Punjab National Bank in respect of the person named in the bank documents and, therefore, the Applicant did not satisfy PIC 4020 (cl.4020 of sch.4 to the Regulations), which the Applicant was required to meet in order to satisfy cl.572.224 of sch.2 to the Regulations for the purpose of being granted the visa.[1]
[1] Affidavit of George Priestley filed on 21 November 2017, Annexure GP-1 at 5.
Judicial Review
As noted earlier, the Applicant’s grounds of judicial review were generally a narrative of what had occurred subsequent to the Applicant’s application for the visa. The only two grounds that raised any question of jurisdictional error were set out at [12] and [13] of the Applicant’s grounds of judicial review as follows:
12. I believe I was not given a fair go when AAT as I was not even given a chance to present my case. Tribunal member gave me oral decision and decision was affirmed.
13. I believe AAT did not exercise its discretion to give me an opportunity to present my arguments.
(Emphasis in original)
At the First Hearing, the Applicant provided the Court with a copy of what he described as a submission dated 13 August 2016 (Exhibit A1). Relevantly, the submission said, under the heading “Visa applicant seeks to oppose orders by the Tribunal and DIBP”, the following:
1. Argument in this submission is that applicant has provided bogus documents for the purpose of student visa extension. DIBP case officer has claimed that bank returned negative verification and that’s the reason applicant’s visa application was refused and subject to PIC4020.
2. DIBP officer has made a Jurisdictional error while deciding on this visa application as…visa applicant provided DIBP officer with new information to support his visa application which was not considered.
3. Visa applicant has denied procedure fairness while deciding on this visa application…[2]
[2] The remainder of this paragraph is impossible to understand and appears to refer to advice from the Department regarding another visa condition which has no relevance to the Tribunal decision the subject of this judicial review.
The Applicant then made further written submissions as to the question of compassionate and compelling circumstances, however, these do not require extraction for the purpose of this judgment.
It is evident from the Applicant’s grounds of judicial review and written submissions that the Applicant claims that the jurisdictional error was the Tribunal’s failure to provide the Applicant with a meaningful opportunity to give evidence and make submissions at the Tribunal hearing. I shall deal with this ground of judicial review later in this decision.
Was the visa application invalid by reason of third party fraud?
At the First Hearing, the Applicant made oral submissions which he had not previously made either before the Tribunal, in his grounds of judicial review or in his written submissions referred to at [25] above.
In summary, the Applicant’s submissions were that:
a)his migration agent was the one who provided the bank documents to the Department, which were subsequently found to be bogus by the Delegate and the Tribunal;
b)he did not provide the bank documents to the migration agent and he had not seen the bank documents prior to them being provided to the Department;
c)he found out that the bank documents had been provided to the Department when he received an invitation from the Department to “correct” them;[3] and
d)he is unable to locate that migration agent.
[3] Transcript of Federal Circuit Court of Australia hearing held on 21 November 2017, p.9 l.15.
Given the serious allegations the Applicant was making about a migration agent he said had assisted him in the preparation of his visa application, I provided the Applicant with the opportunity to give sworn evidence in relation to those allegations. I attempted to explain to the Applicant the different weight the Court might give to sworn evidence compared with statements made in submissions. This process took some time. The following extract from the transcript of the First Hearing best encapsulates my attempt at an explanation:[4]
HER HONOUR: Well, you say you’re telling the truth now. I understand that. But what is important, that you should know about that, is that the court gives what we call greater weight – but higher regard – to evidence that has been given as sworn evidence, but if you give sworn evidence you will be cross-examined by the Minister, most likely, because this is a completely new issue that has arisen. I haven’t even considered this before. Whereas if you say it from the bar table, the court will give – likely give – what you say less regard, because it’s not sworn evidence, but you won’t be cross-examined. So what do you want to do about what you’re saying to the court now? I need to know. It’s very important.
[4] Ibid p.21 l.35.
The Applicant ultimately agreed to give sworn evidence at the First Hearing, which was as follows:
a)he agreed that the bank documents provided to the Department on 23 December 2013 (CB 38-39, 45-46) were bogus documents;[5]
[5] Ibid p.24 l.15.
b)he did not provide the bank documents to the Department;[6]
[6] Ibid p.24 l.40-45.
c)he did not provide the bank documents to the migration agent;[7]
[7] Ibid.
d)he realised the migration agent had provided the bank documents to the Department when he received the letter from the Department inviting him to comment about those documents;[8]
[8] Ibid p.25 l.1-5.
e)the name of the migration agent was Mr Vishal Sharma (“Mr Sharma”);[9]
[9] Ibid p.25 l.30.
f)he did not mention anywhere in the documents provided to the Department for the purpose of the visa application that he had a migration agent at the time of the visa application;[10]
[10] Ibid p.25 l.35, p.26 l.40.
g)the migration agent used the Applicant’s email address to lodge the visa application and to communicate with the Department. The Applicant agreed that Mr Sharma told him that he would be providing the Department with documents using the Applicant’s email address.[11] The Applicant gave Mr Sharma his email password and Mr Sharma was then able to use the Applicant’s email address;[12]
[11] Ibid p.41 l.30-35.
[12] Ibid p.26 l.1-25.
h)he did not know how the visa application process worked and thought that allowing Mr Sharma to use his email address in this way was normal because this was a process that had been adopted when the Applicant had applied for visas in the past;[13]
[13] Ibid p.27 l.1-20.
i)
Mr Sharma sent the email to the Department dated
23 December 2013 (see [14]-[15] above). The Applicant agreed that he provided all other documents attached to that email to Mr Sharma but denied that he provided Mr Sharma with the bank documents;[14]
[14] Ibid p.28 l.1-20, p.40 l.35-p.41 l.5.
j)he was aware that Mr Sharma was sending documents to the Department using the Applicant’s email address but he did not look at the attachments to those emails;[15]
[15] Ibid p.28 l.35-p.29 l.30.
k)he looked at the email dated 30 April 2014 sent from the Department inviting him to comment on the bank documents (see [17]-[18] above) but thought it was a refusal letter (for the visa).[16] The Applicant said he read what he thought was the word “Unsuccessful” in the title of the document, rather than “Unclassified”. The Applicant then spoke to Mr Sharma because he thought the email was a refusal letter and Mr Sharma said “Don’t worry, come tomorrow”. The Applicant attended Mr Sharma’s office and Mr Sharma told him “You need to give a new fund to the immigration”. Following this conversation, the Applicant spoke to his parents and they gave him new funds;[17]
l)he asked Mr Sharma about the bank documents, which he knew were bogus, but Mr Sharma told him “Don’t worry”. The Applicant did not say anything more to Mr Sharma about the bogus bank documents because he did not know what the result was going to be.[18] Even though the Applicant was aware that the bank documents were bogus, he still believed that Mr Sharma was “all right”;[19]
m)
Mr Sharma wrote and sent the email to the Department dated
21 May 2014 (see [19]-[20] above). The Applicant did not read the email before Mr Sharma sent it to the Department but did read the email afterwards when the Applicant received what he thought was a refusal letter. The Applicant agreed that even though he knew that Mr Sharma had provided documents to the Department that the Applicant knew nothing about and which were false, he continued to allow Mr Sharma to use his email address for the purpose of communication with the Department;[20]
n)he was represented by a new migration agent when he applied to the Tribunal for review of the Delegate’s decision because he could not locate Mr Sharma and Mr Sharma’s office had closed;[21]
o)he did not tell the Tribunal about the conduct of Mr Sharma. The Applicant did tell his new migration agent about the conduct of Mr Sharma but the migration agent did not inform the Tribunal about this conduct;[22] and
p)he did not tell the Tribunal about Mr Sharma’s conduct because at the Tribunal hearing he thought that the only matter of concern at the hearing was about the more recent funds provided to the Applicant by his parents.[23]
[16] Ibid p.29 l.35, p.30 l.5, p.41 l.40.
[17] Ibid p.31 l.30.
[18] Ibid p.31 l.35-p.32 l.5.
[19] Ibid p.32 l.15-35.
[20] Ibid p.32 l.15-p.34 l.5.
[21] Ibid p.35 l.5-20.
[22] Ibid p.35 l.20-45, p.36 l.1-15.
[23] Ibid p.37 l.10-15.
By orders dated 21 November 2017, the Applicant and the Minister were ordered to file and serve any further written submissions in relation to the Applicant’s allegations and evidence regarding the conduct of Mr Sharma.
The Minister filed Further Contentions of Fact and Law on
5 December 2017 and the Applicant filed written submissions on
20 December 2017. Acknowledging that the Minister had raised matters in the Further Contentions of Fact and Law filed on
5 December 2017 that had not previously been put to the Applicant at the First Hearing, the Minister sought leave in those submissions to further cross-examine the Applicant on those matters. The Applicant consented to this course.
The Applicant’s written submissions filed on 20 December 2017 included evidence, some of which was not the subject of sworn evidence at the First Hearing. On 12 January 2018, the Minister filed further Submissions in Reply responding to the Applicant’s written submissions and addressing the recent decision in Maharjan. In summary, the Minister informed the Court in its Submissions in Reply that Maharjan was wrongly decided and that the Minister had sought special leave to appeal that decision to the High Court.
At the Second Hearing, I understood the submissions of Counsel for the Minister to be that the Minister does not quibble with the distillation of the principles in Maharjan of the decisions in Singh 2016 or Gill but, rather, the Full Court of the Federal Court’s acceptance in Maharjan that fraud by a third party rendering a visa application a nullity may arise in circumstances where a bogus document or information that is false or misleading in a material particular is given, or caused to be given, to a decision maker at a point after the initial visa application is made. There may be other reasons for the Minister seeking special leave to appeal the decision in Maharjan but Counsel for the Minister did not inform the Court of these. In any event, Counsel for the Minister accepted that if the Court is satisfied of the elements established by Singh 2016 or Gill which are required to be met, then this Court is bound by the Full Court’s decision in Maharjan until it is disturbed on appeal.
In the Applicant’s written submissions filed on 20 December 2017, under the heading “EVIDENCE”, the Applicant relevantly said the following:
2. Vishal Sharma told me that he would need to lodge the application from my email and for this asked for my email address and password. I trusted him because he had applied for and got me student visa twice before as well. I do not use my email much.
3. I gave Vishal Sharma the information and documents he asked me. He did not ask me for any bank documents. I paid him in cash his fee of $2,500. He did not give me any receipt for this.
4. I received an email of 30 April 2014 from the immigration department. In the subject I saw the words “UNCLASSIFIED” which at that time I understood as “unsuccessful” and thought that my application for student visa had been refused. I told of this email to Vishal Sharma. I did not at that time read the email in detail. I met Vishal the next day at his office and he asked me to give documents for funds. By then I had briefly read the email from the immigration department and asked Vishal about the bank letters in the email. Vishal told me not to worry about it.
5. I obtained funding documents from my family in India and provided to Vishal in May 2014, who then sent those to the immigration department from my email. These are on pages 65-78 of the Court Book.
5. In October 2014 I received an email from the immigration department refusing my visa application. I tried to contact Vishal but could not. I thought that the refusal was because of the funds and not because of the bogus documents given to the immigration department by Vishal Sharma.
6. I then contacted another migration agent…
7. In November 2015 I provided more funding documents to the MRT.
8. I did not tell the MRT about what Vishal Sharma had done as I had no evidence or proof about that.
At the Second Hearing, the Applicant swore to the truthfulness of the matters set out in the contents of his written submissions filed on 20 December 2017 under the heading “EVIDENCE”.[24] The further oral evidence the Applicant gave in cross-examination at the Second Hearing was as follows:
[24] Transcript of Federal Circuit Court of Australia hearing held on 2 March 2018, p.10 l.25-30.
a)he confirmed that in his visa application, in response to a question about whether he received assistance from any person in completing the form, he responded “No” (CB 12). However, the Applicant said that Mr Sharma completed the form and that he only gave his education documents to Mr Sharma;[25]
[25] Ibid p.11 l.5-20.
b)
he confirmed that the email sent to the Department dated
23 December 2013 (see [14]-[15] above) had “Regards, Kuldeep Singh Sidhu” written at the bottom of the email but denied that he wrote the email;[26]
[26] Ibid p.11 l.20-25.
c)
he confirmed that the email sent to the Department dated
21 February 2014 (see [16] above) had “Regards, Kuldeep Singh Sidhu” written at the bottom of the email but denied that he wrote the email;[27]
[27] Ibid p.11 l.30-35.
d)
he confirmed that the email sent to the Department dated
21 May 2014 (see [19]-[20] above) had “Regards, Kuldeep Singh Sidhu” written at the bottom of the email but denied that he wrote the email;[28]
e)he confirmed that he never told the Department about Mr Sharma assisting him with the preparation of his visa application, that he did not tell the Tribunal that Mr Sharma had assisted him and that when he wrote his submissions to the Court for the First Hearing on 13 August 2016 (Exhibit A1) he did not mention Mr Sharma in the submissions;[29]
f)he denied that he did not tell the Department, the Tribunal or this Court in his submission dated 13 August 2016 (Exhibit A1) about Mr Sharma because Mr Sharma did not really assist him with the visa. The Applicant repeated that he did not do so because he did not have anything to prove that Mr Sharma had been assisting him;[30]
g)he denied that the reason he did not tell this Court that Mr Sharma had been assisting him was because he knew that he had provided false documents to the Department;[31]
h)he said that he remembered Mr Sharma’s business address, which he had recorded in his submissions filed on 20 December 2017, because he had visited Mr Sharma’s office many times, even though the last time he attended Mr Sharma’s office was in 2013;[32]
i)he said that the only SMS communication with Mr Sharma he had on his mobile phone was to the effect that when he tried to call Mr Sharma, Mr Sharma would respond something like “I can’t talk to you, see you in the office”;[33] and
j)he said there was no email exchange between himself and Mr Sharma.[34]
[28] Ibid p.11 l.35-40.
[29] Ibid p.11 l.40-p.12 l.5.
[30] Ibid p.12 l.5-10.
[31] Ibid p.12 l.10-20.
[32] Ibid p.13 l.20-p.14 l.5.
[33] Ibid p.14 l.35-45.
[34] Ibid p.14 l.45.
Relevant Authorities and Principles
In Maharjan, the Applicant applied for a student visa and needed to satisfy, at the time of the decision, cl.572.224(a) of sch.2 to the Regulations, which, amongst other things, required that a visa applicant satisfy PIC 4020 (cl.4020 of sch.4 to the Regulations). The day after the Applicant filed her visa application, she was requested by a delegate of the Department to provide financial information. Approximately two weeks later, the Applicant provided to the Department two bank certificates purporting to be under the Applicant’s mother’s name. These documents were found to be bogus and formed the basis for both the Delegate’s and the Tribunal’s refusal to grant the Applicant the visa.
I have referred to these circumstances in Maharjan because of the Minister’s submissions regarding the error in Maharjan (see [34]-[35] above). In Gill and Singh 2016, the false information was contained in visa applications for Skilled (Provisional) (Class VC) visas. In both cases, the Applicants said that they had obtained a skills assessment from Trades Recognition Australia (“TRA”) when they had not. Thus, both applicants fell afoul of a requirement of that visa, namely, PIC 4020 (cl.4020 of sch.4 to the Regulations).
The Full Court of the Federal Court relevantly stated the following in Maharjan (at [102]-[103]):
102. …The appellants will be required to prove the fraud (see SZSJA v Minister for Immigration and Border Protection [2013] FCAFC 158; 308 ALR 266 at [38] and the authorities there cited), and satisfy the Federal Circuit Court that the first appellant was neither complicit in the fraud nor “indifferent” to it, in the limited and particular sense explained in Gill and Singh. That is, as the Chief Justice observed in SZRUR v Minister for Immigration and Border Protection [2013] FCAFC 146; 216 FCR 445 at [51], a heavy burden.
103. If the appellants establish those matters, the second question for the Federal Circuit Court will be how, if at all, the fraud which is proven to have occurred, affected the processes by which the appellants’ visa applications were to be considered: see Minister for Immigration and Citizenship v SZLIX [2008] FCAFC 17; 245 ALR 501 at [33]. That is because, as the High Court said in SZFDE and Full Courts of this Court have reiterated, there must also be a fraud “on” the administrative decision-maker, in the sense of the fraud affecting that decision-maker’s statutory functions and obligations, or adversely affecting, disabling or stultifying the processes which the Act prescribes. In SZFDE the effect was on the Tribunal’s hearing function. It may well be that an applicant cannot establish this requirement on the facts: see for example Minister for Immigration and Citizenship v Lu [2010] FCAFC 147; 189 FCR 525 at [38] and SZLHP v Minister for Immigration and Citizenship [2008] FCAFC 152; 172 FCR 170 at [13]-[18] (Branson J), [27] (Lindgren J), [51] (Graham J).
The reference in Maharjan at [102] to the Applicant being required to establish that he was not “indifferent” in the sense explained in Gill and Singh 2016 is explained in Gill, where the Full Court of the Federal Court held that the primary judge failed to (Gill at [49]):
49. …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 Maharjan, the Full Court of the Federal Court summarised the onus on a visa applicant on remittal to the Federal Circuit Court of Australia as follows (Maharjan at [113]):
113. …Before the Federal Circuit Court, the appellants will bear the onus of proving that the fraud alleged was a fraud perpetrated on the first appellant: that is, that she was neither complicit in it nor “indifferent” to it, in the limited sense explained in Singh and Gill. The appellants will also need to prove that the submission of those fraudulent documents provided by the Nepalese agent to their migration agent and then to the Minister’s delegate “stultified” the visa application and determination processes for which the Migration Act provides…
The circumstances in Singh 2018, once again, concerned findings by a delegate of the Minister and the Tribunal that the Applicant had given, or caused to be given, a bogus document and, therefore, failed to satisfy PIC 4020 (cl.4020 of sch.4 to the Regulations). Both the Delegate and the Tribunal further decided not to exercise their discretion to waive the requirements of PIC 4020 (cl.4020 of sch.4 to the Regulations). The bogus document in Singh 2018 was provided together with the Applicant’s visa application (Singh 2018 at [22]).
In Singh 2018, the Applicant’s grounds of judicial review focused on the Tribunal’s findings that the Applicant had given, or caused to be given a bogus document. The Applicant argued that she had not given, or caused to be given, a bogus document because of the fraudulent conduct of a third party. At the hearing of the appeal, the Full Court of the Federal Court refused an oral application by Counsel for the Applicant to include an additional ground that the third party fraud had the effect of invalidating the Applicant’s visa application.
Nevertheless, the Full Court of the Federal Court in Singh 2018 considered various authorities in relation to PIC 4020 (cl.4020 of sch.4 to the Regulations), including authorities dealing with the effect of fraud by a third party on the validity of a visa application, and stated the following (Singh 2018 at [144]):
144. The following general principles may be derived from the analysis of the above case law.
(1) Issues of fraud in migration cases can arise in a wide variety of factual circumstances and by reference to different legislative provisions. There is a danger of being too prescriptive in this area.
(2) Epithets such as that “fraud unravels all” are singularly unhelpful and obscure the need to approach any claim of fraud in a migration context by reference not only to the facts as found by the administrative body or tribunal whose decision is subject to judicial review, but also to the relevant legislative provisions which are said to be affected by such fraud.
(3) In both a judicial review case and any subsequent appeal, it is important to pay close attention to how the applicant/appellant presents his or her case. Different issues arise if the case simply relates to an alleged misconstruction or misapplication or PIC 4020, as opposed to a case which involves a jurisdictional fact concerning the validity of the visa application in which there is a claim that a person other than the visa applicant has engaged in fraudulent conduct without the knowledge or complicity of the visa applicant, resulting in the visa application being invalid.
(4) Where an issue of the proper construction or application of PIC 4020 is raised, Trivedi and Patel authoritatively state that where a visa applicant has given or caused to be given to a relevant decision-maker a document which is a “bogus document” as defined, or information that is false or misleading in a material particular as defined, to determine whether PIC 4020 is satisfied or not, it is not necessary to show knowing complicity by the visa applicant as long as the material is purposely untrue.
(5) The policy and purpose of PIC 4020 were clearly explained by Buchanan J in Trivedi (see [87] above). The construction of PIC 4020 which was adopted and applied in Trivedi, Patel, Arora and Zhang may produce what some may view as a harsh outcome for a visa applicant who claims to be the innocent victim of fraud perpetrated by a migration agent or third party. That harshness is ameliorated in large measure, however, by the option available to such a visa applicant to adopt the course which was taken in cases such as Gill, Singh 2016 and Maharjan. The appellant here made a considered forensic decision not to follow that course in the FCCA because of “the evidentiary issues” involved. It is one thing for a judicial review applicant in a jurisdictional fact case to raise a claim of fraud by another person of which the applicant claims to be an innocent victim, in which event the judicial review applicant has the legal onus of proof. It is quite another matter where such a claim is raised before an administrative decision-maker where, depending upon the terms of the relevant legislative provision to which the claim relates, it is generally inapposite to speak of there being a legal onus of proof (see, for example, McDonald v Director-General of Social Security (1984) 1 FCR 354 at 357-8 per Woodward J; at 365-6 per Northrop J and at 368-9 per Jenkinson J and SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; 228 CLR 152 per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ at [40] where, while noting that it is for a protection visa applicant to establish his or her claims, this did not mean that it was useful to speak in terms of onus of proof).
(6) Zhang illustrates the operation and application of the principles in Trivedi and Patel to the particular facts and circumstances of that case. Likewise, Arora illustrates the operation and application of Trivedi in the particular facts and circumstances there.
(7) In Trivedi, the visa applicant personally lodged her visa application and provided a copy of the bogus IELTS test results which, on her case, had been produced by third party agents in India and contained false and misleading information of which she claimed to be unaware. The Full Court took the view, however, that in those circumstances, the visa applicant had “given” the bogus document and false or misleading information to the Department.
(8) Where there is some evidence to indicate that a visa applicant may not satisfy PIC 4020(1) and the visa applicant claims that his or her migration agent or a third party engaged in fraudulent conduct and provided in support of the person’s visa application a bogus document, or information that is false or misleading in a material particular, and the visa applicant claims that his or her visa application is therefore a nullity, the visa applicant in a judicial review case carries the onus of establishing that:
(a) the migration agent or third party was responsible for the fraudulent conduct;
(b) at the relevant times, the visa applicant had no knowledge of and was not complicit in the fraudulent conduct carried out by the migration agent or third party;
(c) the visa applicant was not indifferent as to whether the migration agent or third party engaged in the fraudulent conduct in the visa application process; and
(d) the fraud affected decision-making under the Act.
(Emphasis in original)
Submissions
The Applicant’s written submissions filed on 20 December 2017 are, in summary, that he did not provide the bogus bank documents to the Department or Mr Sharma. The Applicant submits that the bank documents were provided by Mr Sharma to the Department without the Applicant’s knowledge and that he does not know where and how Mr Sharma obtained the bank documents. The Applicant further submits that he should not be penalised for the wrongdoing of his migration agent and for conduct of which he was not aware. The Applicant submits that he had no reason to provide any bogus financial documents to the Department or any reason to believe that his migration agent would do so as the Applicant’s family had funds and legitimate financial documents were provided to the Department in May 2014.
In support of his submission that his family had the necessary funds at the time of the visa application, the Applicant attached to his submissions filed on 20 December 2017 a copy of a deposit made in 2011 in his father’s former account with the Punjab National Bank, which the Applicant said was subsequently closed, and a copy of statements from the Applicant’s grandfather’s bank account over the period May 2014 to November 2017, which the Applicant asserts proves that the necessary funds were always there.
In the Minister’s written submissions filed on 5 December 2017, the Minister submits that the Court should not accept that the Applicant engaged Mr Sharma as an agent but, rather, that the Applicant provided the bank documents to the Department himself. Alternatively, the Minister submits that if the Court accepts that the Applicant did engage Mr Sharma as an agent, the Court should find that the Applicant was aware that Mr Sharma had provided the bank documents to the Department.
The Minister’s arguments in support of this submission are as follows:
a)on the face of the documents before the Court, the Applicant did not engage a migration agent in connection with his visa application but, rather, first engaged a migration agent in connection with his application to the Tribunal for review of the Delegate’s decision. In particular the Minister notes that:
i)in his visa application, the Applicant gave the Department his own email address for the purpose of communication and also declared that he had not received assistance from any person in completing his visa application (CB 12);
ii)on 29 November 2013, the Department sent to the Applicant’s email address a request for further information (CB 17). On 23 December 2013, in response to the Department’s request for further information, the Applicant sent from his email address an email signed with his name stating “I am attaching the documents as requested by you” (CB 29). The bank documents were attached to this email (CB 38-39);
iii)on 21 February 2014, an email was sent from the Applicant’s email address to the Department signed with the Applicant’s full name and which stated, amongst other things, “…I have attached the documents on 23/12/2013 and still waiting for reply from your side” (CB 49); and
iv)on 30 April 2014, the Department sent to the Applicant by email to the Applicant’s email address an invitation to comment on the adverse information (the bank documents) (CB 54-59). On 21 May 2014, an email was sent from the Applicant’s email address to the Department in response to the Department’s invitation to comment (CB 60-78). The email was signed with the Applicant’s full name and the text commences by stating “I have looked into this matter and asked my parents about this…” (CB 60);
b)
the emails sent from the Applicant’s email address on
23 December 2013 and 21 May 2014 attached a number of other documents that could only have been provided by the Applicant and the genuineness of which was not disputed (CB 30-37, 40-41);
c)it is highly unusual for a migration agent to falsely represent himself as a principal rather than simply acting on behalf of a principal. The Applicant’s claim that he believed this was the normal way for a migration agent to behave is not credible;
d)the Minister submits that the Applicant has provided no documentary or other contemporaneous evidence to the Court that he engaged Mr Sharma, for example, by way of communication between the Applicant and Mr Sharma via letters, emails or text messages;
e)if the Court accepts that the Applicant engaged Mr Sharma to act as his agent, the Minister submits that the Court should infer from the fact that the emails were sent from the Applicant’s email address, which were written in the first person and attached documents that could only have been provided by the Applicant, that the Applicant knew what Mr Sharma was sending from his email address and knew that Mr Sharma sent the bank documents to the Department; and
f)the fact that the Applicant did not mention Mr Sharma to the Department, the Tribunal, or in his application for judicial review or written submissions to this Court casts significant doubt on the credibility of the Applicant’s claims. The Applicant only mentioned the existence of Mr Sharma and his alleged conduct at the First Hearing of the Applicant’s judicial review application before this Court. These circumstances suggest that the Applicant’s claims about Mr Sharma were a recent invention.
The Minister submits that if the Court accepts that the Applicant engaged Mr Sharma as his agent, then the Applicant’s claims that he had no knowledge that Mr Sharma provided the bogus bank documents to the Department are not credible, particularly given the various emails that were sent from the Applicant’s email address attached documents which the Applicant does not dispute, or indeed has confirmed, were provided by him to Mr Sharma. Accordingly, the Minister submits that the Court should determine that the Applicant was complicit in the provision of the bogus bank documents to the Department.
In addition to the written submissions filed with the Court, Counsel for the Minister submitted at the Second Hearing that if it is true that the Applicant used Mr Sharma as a migration agent to obtain previous visas, the Applicant has failed to provide any documentary evidence of the fact that during that process Mr Sharma was a migration agent. Counsel for the Minister submits that there is no probative evidence before the Court by way of emails or SMS text messages between the Applicant and Mr Sharma evincing that the Applicant was in fact assisted by a migration agent in connection with his application for the earlier visa.
Counsel for the Minister submits that the Applicant’s submission that there is no reason why he would have provided false information to the Department given that he had the necessary funds available is without substance. Counsel for the Minister submits that the documents attached to the Applicant’s most recent submissions filed on 20 December 2017 do not establish that there were in fact funds available for the purpose of the Applicant’s studies in late 2013. Counsel for the Minister pointed out that one of the attached documents is a confirmation for a deposit dated July 2011 and there is no evidence before the Court that those funds remained available in late 2013, over two years later. Furthermore, the other attached documents are dated between 2014 and 2017 and suffer from the same deficit in that they do not establish that there were funds available to the Applicant in late 2013.
Counsel for the Minister argues that even if the Court were to find that there was fraud committed by Mr Sharma on behalf of the Applicant and that the Applicant was not complicit in that fraud, then the evidence before the Court that the Applicant was content to allow Mr Sharma to falsely represent to the Department that he was the Applicant is in itself a strong indicator that the Applicant was indifferent to Mr Sharma using an unlawful means to obtain the Applicant’s visa in the sense outlined by the Full Court of the Federal Court in Gill.
Consideration
I am not satisfied that the fraud alleged by the Applicant was a fraud perpetrated on the Applicant on the following bases:
a)I am not satisfied that the Applicant was assisted by any person or migration agent named Mr Sharma in the preparation of his visa application;
b)I am satisfied, even if I found that Mr Sharma had assisted the Applicant and provided the bogus bank documents to the Department, thereby, engaging in fraudulent conduct, that the Applicant was complicit in the fraud; and
c)I am satisfied, even if I found that Mr Sharma engaged in fraud and that the Applicant was not complicit in this fraud, that the Applicant was indifferent as to whether or not the grant of his visa was achieved by Mr Sharma acting unlawfully or dishonestly.
My reasons for the above findings are set out below.
I find the Applicant’s evidence that he engaged Mr Sharma as his migration agent and gave Mr Sharma the password for his email address so that Mr Sharma could assist him in applying for the visa by completing the visa application form; by providing documents to the Department, including the bogus bank documents; and by communicating with the Department using the Applicant’s email address and signing each email with the full name of the Applicant, thereby, falsely purporting to be the Applicant, completely implausible. My reasons for this finding are as follows:
a)I am not satisfied that the Applicant engaged Mr Sharma by the payment of a fee (paid in cash and with no receipt) in circumstances where Mr Sharma did not at any point notify the Department that he was the migration agent representing the Applicant;
b)the idea that a person (in this case the Applicant) would provide a third party (Mr Sharma) with a password to their personal email address to be used at the third party’s will during the visa application process is preposterous. The Applicant has studied in Australia since 2011 and his evidence that he thought this behaviour by a migration agent was normal is not credible;
c)the Applicant has not produced any evidence by way of email correspondence or SMS text messages on his mobile phone to indicate there was any agreement that Mr Sharma would act as the Applicant’s migration agent or that Mr Sharma was even a migration agent at all;
d)all the email correspondence sent to the Department, which the Applicant claims was prepared and sent by Mr Sharma without his knowledge, is composed in a way that suggests it was the Applicant communicating. In particular, I find it impossible to accept that the email correspondence dated 21 February 2014 (see [16] above) and the email correspondence dated 21 May 2014 (see [19]-[20] above) responding to the Department’s invitation to comment on the adverse information (CB 60) was prepared by Mr Sharma. The former correspondence refers to the Applicant’s wish to go overseas and the latter correspondence refers to the Applicant’s parents’ understanding of financial matters. The text in both emails is personal to the Applicant and it is difficult, if not impossible, to conceive that a stranger could compose such a personal explanation without the input of the Applicant;
e)in my opinion, the notion that Mr Sharma would be in a position to prepare the bank documents without the knowledge or assistance of the Applicant, who had accounts with the Punjab National Bank, defies common sense. Each document purporting to be issued by the Punjab National Bank referred not only to the Applicant’s father’s name, but also recorded the precise details of the Applicant’s father’s address. The particular details of the Applicant’s father’s address recorded in the bank documents are not to be found in any other document before or at the time the documents were provided to the Department, including the affidavit of the Applicant’s father (CB 30). This information about the Applicant’s family’s financial arrangements and the correct address of the Applicant’s father can therefore only have been provided by the Applicant;
f)the bank documents were provided to the Department along with a range of other documents, which the Applicant said he had given to Mr Sharma. It does not make sense to me that a migration agent, if there was one, would not ask a visa applicant for the relevant financial information as well as the other requisite documents. Instead, on the Applicant’s evidence, the Court is asked to believe that the Applicant was requested to provide various other documents to his migration agent, such as educational attainment (CB 32-37) and confirmation of health cover (CB 40-41), but not the financial information requested by the Department on 29 November 2013 (CB 24);
g)given the Applicant was on notice that the bank documents were found to be bogus by the Delegate and given the Applicant’s evidence that he informed his new migration agent, who represented the Applicant in his review before the Tribunal, about Mr Sharma’s conduct, the Applicant’s and the migration agent’s failure to inform the Tribunal about Mr Sharma’s behaviour is unfathomable. This failure to inform the Tribunal undermines the credibility of the Applicant’s evidence regarding Mr Sharma. The Applicant’s explanation about why he failed to inform the Tribunal about his allegations that his migration agent had provided the bank documents to the Department, which the Delegate had found were bogus, was unsatisfactory. The Applicant’s sworn evidence was that he thought that the issue at the Tribunal hearing was about the funds that his parents had provided to him. I drew the Applicant’s attention to the fact that as the Tribunal had expressly said to him at the hearing “Those new funds don’t matter, it’s the old documents I’m talking about”?[35], the Applicant could not have genuinely believed that the issue at the Tribunal hearing was about the new funds. The Applicant’s explanation that he did not inform the Tribunal of Mr Sharma’s conduct because he did not have any proof of it is unconvincing;
h)the Applicant had the opportunity in his submissions to the Court dated 13 August 2016 (Exhibit A1) to raise the evidence he subsequently gave by sworn evidence in the judicial review proceedings regarding Mr Sharma but he did not. The Applicant’s explanation to the Court for not doing so was, again, that he did not have any proof.[36] I do not accept that this explanation is credible. I agree with the Minister’s submission that, in the circumstances, the Applicant’s evidence regarding Mr Sharma and his role in the visa application process appears to be one of recent invention.
[35] Transcript of Federal Circuit Court of Australia hearing held on 21 November 2017, p.37 l.15-p.38 l.45.
[36] Ibid p.38 l.10-45.
The Applicant submits that there was no reason for him to provide bogus documents to the Department as there were already sufficient funds available to him to satisfy the Department’s financial requirements for future study. However, I am not convinced by the Applicant’s attachments to his submissions filed on 20 December 2017, which the Applicant maintains supports his argument, that this was the case. One of the documents attached to the submissions is a confirmation for a deposit dated 12 July 2011 in the Applicant’s father’s Punjab National Bank account. The Court cannot be satisfied, in the absence of further evidence, that those funds remained available to the Applicant in late 2013, over two years later, when the Applicant applied for the visa. Furthermore, the other documents attached to the submissions, being statements from bank accounts in the name of the Applicant’s grandfather, are dated between 2014 and 2017. None of these documents satisfy the Court that at the end of 2013 there were sufficient funds available to the Applicant, provided by the Applicant’s family, to support the Applicant’s studies in Australia.
Even if I was satisfied, which I am not, that Mr Sharma committed fraud and the Applicant was not complicit in the fraud, I would find on the evidence before the Court that the Applicant was indifferent as to whether or not obtaining the visa was achieved by his migration agent acting unlawfully or dishonestly for the following reasons:
a)the Applicant willingly participated in conduct which involved Mr Sharma falsely representing to the Department that he was the Applicant; and
b)
the Applicant’s evidence is that he became aware of the existence of the bank documents and knew that they were false soon after he received the correspondence from the Department dated
30 April 2014 to comment on the adverse information. The Applicant’s evidence is that he raised the existence of these false bank documents with Mr Sharma who said not to worry. Notwithstanding the fact that the Applicant knew that Mr Sharma had engaged in conduct that involved providing the Department with false documents, the Applicant continued to allow Mr Sharma to represent him and utilise the Applicant’s email address to communicate with the Department.
Even if I found that Mr Sharma had assisted the Applicant in the application for the visa and engaged in fraudulent conduct as claimed by the Applicant, I would find that the Applicant was complicit in this process. I have formed this view having regard to the reasoning set out in [55](d)-(g) above. Based on this reasoning, I find that the Applicant either provided Mr Sharma with a copy of the bank documents or was at least aware, prior to the relevant emails being sent, that Mr Sharma would be sending the bank documents to the Department.
Accordingly, I find that there was no fraud committed by a third party on the Applicant during the visa application process.
I therefore find that this ground of judicial review does not give rise to jurisdictional error.
Was the Applicant given a fair go?
The Applicant was invited to attend a Tribunal hearing and did attend the Tribunal hearing with his migration agent. At the hearing, there was an interpreter in the Punjabi and English languages available to assist the Applicant. The Tribunal member noted that the Applicant spoke English well and asked if the Applicant was content for the hearing to proceed in English, subject to the Applicant using the assistance of the interpreter at any stage during the proceedings when he did not understand what was being said. The Applicant agreed to this course.
In relation to this ground of judicial review, I understand the Applicant’s submission to be that the Tribunal did not give the Applicant an opportunity to provide a bank statement from the Punjab National Bank, which the Applicant said he had at the time of his visa application.
The Applicant submits that in the time between the Delegate’s decision (24 October 2014) and the Tribunal hearing (24 November 2015), he experienced a lot of bad luck because he was trying to contact the Punjab National Bank to no avail. The Applicant gave similar evidence at the Tribunal hearing and also referred to the documents he had subsequently provided. The Applicant was asked by the Tribunal member if he had any other evidence he wanted to present. The Applicant responded that he had no other documents. No request was made by the Applicant or his migration agent for further time to obtain additional documents. The Applicant’s migration agent also referred to the difficulties in obtaining documents from the Punjab National Bank.
In circumstances where the Applicant had more than one year to obtain documents from a bank in India with which he claimed he and his family had accounts, I am satisfied that the Applicant had a meaningful opportunity to obtain and provide this evidence to the Tribunal.
In any event, the central issue for the Tribunal to determine was whether by reason of the operation of PIC 4020 (cl.4020 of sch.4 to the Regulations), the Applicant satisfied the relevant criteria for the grant of the visa. The Applicant was on notice that this was the central issue before the Tribunal on review by the Delegate’s decision and, at an earlier date, by the Delegate’s invitation to the Applicant on
30 April 2014 (CB 54-59) to comment on the adverse information. The fact that this was the central issue for the Tribunal to decide was also made clear by the Tribunal member at the Tribunal hearing.
After having explained to the Applicant that PIC 4020 (cl.4020 of sch.4 to the Regulations) could be waived if there were compassionate or compelling circumstances, and having explained to the Applicant what was meant by that phrase, the Applicant was asked by the Tribunal member whether there was anything the Applicant wished to say in relation to compassionate or compelling circumstances. The Applicant’s response was limited, focusing on his parents’ financial support for him during his studies in Australia. No further evidence was provided by the Applicant to the Tribunal at the hearing and neither the Applicant nor his migration agent requested that the Applicant be given further time to make submissions in relation to a waiver of PIC 4020 (cl.4020 of sch.4 to the Regulations).
In his submissions before this Court dated 13 August 2016 (Exhibit A1), the Applicant made submissions in relation to compelling circumstances and “How it affects Australia[n] business”. However, this evidence or submission was not given or made to the Tribunal at the Tribunal hearing. There is, therefore, no basis to disturb the Tribunal’s findings with respect to a waiver of PIC 4020(4) (sub-cl.4020(4) of sch.4 to the Regulations).
I am satisfied that the Applicant was accorded procedural fairness by the Tribunal. The Applicant had more than one year, after the Delegate’s decision, to obtain the documents he said he wanted to provide from the Punjab National Bank. The Tribunal member explained to the Applicant the issues on review and gave the Applicant sufficient opportunity to respond. The Applicant gave evidence and made submissions at the Tribunal hearing and there was no request from the Applicant or his migration agent for additional time to make further submissions or provide further evidence to the Tribunal.
Consequently, I find no jurisdictional error arises from the Applicant’s ground of judicial review that he was not given a fair go by the Tribunal and that the Tribunal did not exercise its discretion to give the Applicant an opportunity to present his arguments.
Conclusion
For the reasons set out in this judgment, orders will be made dismissing the Applicant’s application for judicial review filed on 16 December 2015 and, further, that the Applicant pay the costs of the First Respondent in a fixed sum.
I certify that the preceding seventy (70) paragraphs are a true copy of the reasons for judgment of Judge Jones
Date: 23 May 2018
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