Singh v MIBP
[2015] FCCA 2776
•14 October 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SINGH v MINISTER FOR IMMIGRATION & ANOR | [2015] FCCA 2776 |
| Catchwords: MIGRATION – Application for review of decision of Migration Review Tribunal – Delegate refused to grant visa based on failure to satisfy PIC 4020 – Tribunal affirmed decision of Delegate and also found failure to satisfy cls.485.214 and 485.221 of the Migration Regulations 1994 (Cth) – Court has no jurisdiction to consider the validity of the decision of the primary decision maker – Tribunal correctly applied s.98 of the Migration Act 1958 (Cth) and PIC 4020 – application dismissed. |
| Legislation: Migration Act 1958 (Cth), s.98 Migration Regulations 1994 (Cth), Sch.2 cls.485.214, 485.221 and 485.224, Sch.4, cl.4020(1) |
| Minister for Immigration and Border Protection v Dhillon [2014] FCAFC 157 NAWZ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 199 Prodduturi v Minister for Immigration and Border Protection [2015] FCAFC 5 Singh v Minister for Immigration and Border Protection [2015] FCCA 509 Sran v Minister for Immigration and Citizenship [2014] FCCA 37 SZGJO v Minister for Immigration and Multicultural Affairs and Indigenous Affairs [2005] FMCA 1349 SZGJO v Minister for Immigration and Multicultural Affairs and Indigenous Affairs [2006] FCA 393 Trivedi and Ors v Minister for Immigration and Border Protection and Anor (2014) 220 FCR 169 Vyas v Minister for Immigration and Citizenship [2012] FMCA 92 |
| Applicant: | MANDEEP SINGH |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | MLG 263 of 2014 |
| Judgment of: | Judge Whelan |
| Hearing date: | 17 March 2015 |
| Date of Last Submission: | 17 March 2015 |
| Delivered at: | Melbourne |
| Delivered on: | 14 October 2015 |
REPRESENTATION
| Counsel for the Applicant: | Ms Costello |
| Solicitors for the Applicant: | Clothier Anderson |
| Counsel for the Respondents: | Mr Knowles |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The Amended Application filed 16 February 2015 be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 263 of 2014
| MANDEEP SINGH |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application for judicial review of a decision by the
Migration Review Tribunal (“the Tribunal”) of 13 January 2014 to affirm a decision by a delegate of the Minister not to grant a
Skilled (Provisional) (Class VC) visa, subclass 485 (Temporary )(Graduate) to the Applicant.
In an Amended Application filed on 16 February 2015, the Applicant seeks the following orders:
1. There be a declaration that the decision was unlawful and invalid;
2. Further or in the alternative that the decision be set aside or quashed;
3. The matter be remitted to the Tribunal differently constituted for determination according to law.
4. The respondents be prohibited from relying upon or giving effect to the decision;
5. The first respondent pay the applicant’s costs of and incidental to the application.
6. Such other orders as this Honourable Court thinks appropriate.[1]
[1] Amended Application filed 16 February 2015 at p.2.
Background
The Applicant is an Indian citizen who entered Australia on a student visa on 20 September 2008. On 27 October 2010, he applied for a
485 skilled visa. The application stated that the Applicant had obtained a skills assessment from Trades Recognition Australia (“TRA”) and provided a TRA reference number.[2] On 17 February 2012, the Department of Immigration and Citizenship (as it then was) (“the Department”) wrote to the Applicant inviting him to comment on adverse information which included that, while there was no agent declared on the application form, the Department had evidence that the application had been lodged with the assistance of a particular agent and further that the TRA had no record of providing the Applicant with a skills assessment.[3]
[2] Court Book filed 28 May 2014 at p.17.
[3] Ibid at pp.26-28.
The Department received no response to this correspondence and on
26 March 2012, the delegate refused to grant the visa.[4] On
12 April 2012, the Applicant applied to the Tribunal for a review of the delegate’s decision.[5] On 23 May 2013, the Tribunal conducted a hearing at which the Applicant appeared and gave evidence. On
14 January 2014, the Tribunal handed down its decision affirming the decision of the delegate[6] and on 17 February 2014, the Applicant applied to the Court for a judicial review of the Tribunal’s decision.
[4] Ibid at pp.36-41.
[5] Ibid at pp.42-52.
[6] Ibid at pp.71-82.
The Applicant filed an affidavit of evidence on 17 February 2015 and was cross-examined by the First Respondent at the hearing on
17 March 2015.
The Tribunal’s decision
The Tribunal found that the Public Interest Criterion (“PIC”) in cl.4020(1) of Sch.4 of the Migration Regulations 1994 (Cth)
(“the Regulations”) was not satisfied and there was no material justifying the exercise of the Tribunal’s discretion under cl.4020(4) of the Regulations to grant the visa sought by the Applicant.
In particular, the Tribunal found that the Applicant’s agent had provided false or misleading information in his application, and that information about the TRA’s skills assessment was, in a material particular, false or misleading information. The Tribunal accepted that at the time of making the application, the Applicant was not aware that the agent had provided that false or misleading information. Nevertheless the Tribunal found that the agent made the visa application on the Applicant’s behalf and that in doing so the agent acted with his authority. The Applicant had engaged and paid the agent to make the visa application on his behalf and “[o]n this basis, the Tribunal found that the applicant was responsible for the visa application and the information in it”.[7]
[7] First Respondent’s Submissions filed 3 March 2015, p.4 at para.13.
In accordance with the provisions of cl.4020(1) of the Regulations, the Tribunal therefore found that:
[T]here was evidence before it that the applicant had given, or caused to be given, to the Minister or an officer, information which was false or misleading in a material particular in relation to the visa application.[8]
[8] Ibid, p.4 at para.14.
Further:
The Tribunal therefore found that the applicant did not satisfy the criterion in cl 485.224 of Schedule 2 to the Regulations. The Tribunal also found that the applicant did not satisfy the criteria in cll 485.214 and 485.221 because he had never applied for or received a skills assessment.[9]
[9] Ibid at para.16.
The Applicant’s grounds
The Applicant’s grounds for the review are as follows:
1. The Tribunal’s decision is affected by jurisdictional error in that the Tribunal did not have jurisdiction to review the delegate’s decision because the applicant’s visa application was vitiated by fraud and was in law no decision at all.
2. The Tribunal erred in construing PIC 4020 in finding that the applicant gave or caused to be given to the Minister or an Officer, information in relation to his visa application that was false or misleading in a material particular in that it was not reasonably open on the evidence before the Tribunal to find that the applicant had been indifferent to the false contents of the visa application which S & S Migration purported to lodge on his behalf and that the applicant was therefore legally responsible for the visa application.
3. The Tribunal erred in applying PIC 4020 by failing to ask whether the applicant gave or caused to be given to the Minister or an Officer, each of the relevant pieces of information in relation to his visa application that was false or misleading in a material particular. Instead, the Tribunal assumed that because lodgement of the visa application was within the authority of S & S Migration, the false or misleading contents of the visa application were given or caused to be given by the applicant.
4. The Tribunal erred in applying s.98 of the
Migration Act 1958 (Cth) to deem that the applicant had given or caused to be given to the Minister or an Officer, the information contained in his visa application.[10]
[10] Amended Application filed 16 February 2015 at p.2.
The Applicant’s evidence
It was the Applicant’s evidence that he was referred to a migration agent (“the agent’) by a friend and went to their offices a couple of weeks before his current student visa was due to expire in 2010 to find out if he could apply for a further student visa. He was advised to apply for a work visa instead. There was some discussion about his experience in farm work. The Applicant paid Mr A $1,500.00 to make a visa application for him.
The Applicant stated that at the time the visa application was lodged by the agent, he did not know that the application stated that he had applied to TRA or that his skills had been assessed by TRA. He stated that he did not agree to the agent putting false information in the visa application lodged in his name.
The Applicant stated that he did not receive the correspondence from the Department inviting him to comment on the fraudulent matters in regard to his visa application. In October 2010, he stated that he was forwarded an email by the agent stating that he had applied for a General Skilled Migration visa and that he had been granted a bridging visa A with work rights.
In cross-examination, the Applicant agreed that he had received a letter from the Department with a copy of the delegate’s decision not to grant him a skilled visa. He finished the course, in which he was originally enrolled in 2008, and since that time had not undertaken or enrolled in any other course of study. The Applicant agreed that he had been advised by the agent to apply for a visa to permit him to work and paid the agent to make the application but, at the time, did not know what the visa class was called.
The Applicant agreed that he:
·Did not complete the visa application;
·Provided no documents to the agent before the application was made;
·Expected the agent to take care of the application including completing it;
·Did not know what information would need to be contained in the application; and
·Never reviewed the application before it was lodged.
There was some confusion in the Applicant’s evidence about which emails from the Department he received and whether they were forwarded to him by the agent. He accepted that there were emails sent to him by the Department at the email address provided by him (not the one provided by his agent) including the one inviting him to comment on adverse information.
The Applicant was unable to recall what emails he had received. He agreed that he did not approach the Department about allegations of providing false information.
The Applicant’s submissions
In written submissions the Applicant posed the following questions for resolution by the Court:
7.1.Question 1 – Did the Tribunal have jurisdiction to review the delegate’s decision or was the applicant’s visa application vitiated by fraud?
7.2.Question 2 – Did the Tribunal err in construing PIC 4020 in making its finding that the applicant gave or caused to be given to the Minister or an Officer, information in relation to his visa application that was false or misleading in a material particular?
7.3.Question 3 – Was it reasonably open to the Tribunal to find that the applicant had been indifferent to the false contents of the visa application S & S Migration purported to lodge on his behalf?
7.4.Question 4 – Did the Tribunal err in applying s.98 of the Migration Act 1958 (Cth) to deem that the applicant had given or caused to be given to the Minister or an Officer, the information contained in his visa application?[11]
[11] Applicant’s Outline of Submissions filed 16 February 2015 at pp. 1-2.
In oral submissions the Applicant conceded that the Court was bound by the decision of the Full Court of the Federal Court in Prodduturi v Minister for Immigration and Border Protection [2015] FCAFC 5 (“Prodduturi”) which held at para.35 of that judgment that the Federal Circuit Court of Australia (“the FCCA”) had no jurisdiction to consider the validity of the primary decision.[12] Nevertheless the Applicant pressed the submission that the Court in Prodduturi was wrong on this point.
[12] Followed by Judge Jones in Singh v Minister for Immigration and Border Protection [2015] FCCA 509.
The Applicant submitted that, on the evidence, he had relied upon his migration agent who appeared to be professional and qualified to advise him:
[A] person with a fairly simple understanding of his visa rights placed trust on [sic] his advisor to apply to [sic] a visa and genuinely believed the advice he received that he was eligible to obtain a visa with work rights.[13]
[13] Transcript of proceedings, 17 March 2015, p.29 at lines 13-16.
Further, the Applicant submitted that the receipt of emails by the Applicant after the application was made is not the issue. The fraud was committed in 2010 when the application stated something which was not true, that the Applicant had received a TRA assessment. The false answer to the question: Have you applied to a relevant assessing authority for an assessment of your skills for your nominated skilled occupation? was provided by his agent. It is not a false answer that has been provided by the Applicant. The fact that the Applicant did not attempt to fix it up when he was provided with the opportunity to do so in 2012 does not establish that he was “complicit in the fraud, and nor does it establish that he was indifferent to the fraud”.[14]
[14] Ibid, p.30 at lines 36-37.
With respect to the grounds of review dealing with the Tribunal’s finding concerning cl.4020(1) of the Regulations, the Applicant submitted that the Tribunal erred in its construction of the clause and in relying on the deeming provisions of s.98 of the Migration Act 1958 (Cth) (“the Act”).
The Applicant submitted that the Tribunal’s reasoning was based on its finding that the Applicant’s agent was acting within the scope of his authority when the visa application was lodged and on that basis the false and misleading information can be taken to have been given or caused to be given by the Applicant to the Minister or an officer. The Tribunal erred:
[B]y conflating its finding that the visa application was made within the scope of authority, with the question of whether the applicant had given or caused to be given to the Minister or an Officer, the false or misleading information contained within the visa application.[15]
[15] Applicant’s Outline of Submissions filed 16 February 2015, p.5 at para.24.
Further:
The analysis … that the Tribunal needed to make … was to look at PIC 4020 and consider on the[se] facts before the Tribunal whether the applicant gave or caused to be given the false [information] to the Department.[16]
[16] Transcript of proceedings, 17 March 2015, p.5 at lines 39-41.
It has been accepted that under PIC 4020 it does not matter if the visa applicant provided a bogus document or false or misleading information “knowingly”.[17] The question in PIC 4020 is about causation rather than intention or knowledge:
[T]he Tribunal found that the applicant gave or caused the false or misleading information to be given because he was “indifferent” to the contents of his visa application. Such a finding is a finding about the applicant’s knowledge and is the wrong approach.[18]
[17] Trivedi and Ors v Minister for Immigration and Border Protection and Anor (2014) 220 FCR 169.
[18] Applicant’s Outline of Submissions filed 16 February 2015, p.6 at para.26.
The Tribunal needed to consider whether the actions of the agent severed the causal link between the Applicant and the information given in the visa application.
With respect to s.98 of the Act, the Applicant submitted that there is no authority to say that PIC 4020 cases are automatically affected by the deeming provisions in s.98. Section 98 appears in a subdivision of the Act concerning visa cancellation. It states:
98 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.
The Applicant submitted that s.98 of the Act applies in relation to visa cancellation and not in relation to PIC 4020. Section 98 of the Act is a deeming provision. Public Interest Criterion 4020 contains no such deeming provision. The deeming provision in s.98 of the Act is not specifically adopted by the Regulations:
The question in PIC 4020 is not whether the applicant caused the visa application to be given, but whether the applicant caused the false information to be given.[19]
[19] Ibid, p.7 at para.36.
The Applicant also made submissions on the issue of whether it would in this case be futile to remit the decision. The Court in Prodduturi found that it would be futile to remit the matter to the Tribunal when the person is ineligible for the visa for other reasons (i.e. unable to meet other criteria). The Applicant submitted on the basis of Minister for Immigration and Border Protection v Dhillon [2014] FCAFC 157 (“Dhillon”) that it was not futile to allow the appeal because of the capacity to change the finding about PIC 4020 and thereby avoid the effect of the three-year ban on obtaining another visa. In this case, but for the PIC 4020 finding, the Applicant would have the opportunity to apply for a spouse visa as he is now married to an Australian citizen.
The First Respondent’s submissions
The First Respondent submitted that the decision in Prodduturi was completely on point not only with respect to the jurisdiction of the Court to consider the validity of the primary decision but with respect to the submission concerning futility. Prodduturi was also a case about PIC 4020. Even if the Court was able to make some determination about the Tribunal decision, by reason of the terms of s.476 of the Act, the Court could not do anything about the delegate’s decision. That would still stand and the delegate’s findings about the failure of the Applicant to comply with PIC 4020 in that decision would also stand.
With respect to the Applicant’s second point concerning a misconstruction or misapplication of PIC 4020, irrespective of any such misapplication, that only goes to one of the visa criteria and it is not disputed that the Applicant could not satisfy other visa criteria in order to be eligible to obtain the visa. The Tribunal had to come to the view that:
[T]he visa couldn’t be granted and the decision under review [had] to be affirmed … because at the time of visa application there hadn’t been any application for a skills assessment and at the time of the decision there hadn’t been any skills assessment that had been obtained.[20]
[20] Transcript of proceedings, 17 March 2015, p.34 at lines 43-47.
In Dhillon, the relevant defects were procedural so they had a bearing upon what information was put before the Tribunal and “whether or not that information that could be put before the tribunal would lead to a finding that the visa criteria was satisfied”.[21]
[21] Transcript of proceedings, 17 March 2015, p.35 at lines 14-16.
The First Respondent submitted that the Tribunal was required to make findings about the nature and extent of the authority given to the agent by the Applicant to lodge a visa application on his behalf. The Tribunal found that the Applicant had retained the agent “to lodge a “work permit” application with the Department on his behalf and paid the agent a fee to do so”.[22] The Tribunal also found that the “applicant was indifferent to the contents of the visa application”.[23] These findings were open to the Tribunal.
[22] First Respondent’s Submissions filed 3 March 2015, p.5 at para.22.1
[23] Ibid at para.22.2.
On the evidence before the Court, it is open for the Court to find that the Applicant was clearly involved in the whole process. He acknowledged in re-examination that he knew his agent was applying for a skilled visa. It is open for the Court to find that he was indifferent to the nature of the visa application and the contents of it save for the fact that he wanted a visa to be able to work in Australia. The Applicant accepted in cross-examination, contrary to his affirmed evidence, that he had received an invitation to comment on adverse information and did not respond.
The First Respondent took the Court to a number of cases dealing with the issue of:
·The extent of the authority given by an applicant to an agent to lodge a visa application on his/her behalf;
·The validity of visa applications where they contain false information and the applicant does not even know that the application contains false information because it was completed by somebody else; and
·The responsibility of the applicant for the contents of the application.[24] The general proposition is that where someone is indifferent to the contents of the application they are fixed with responsibility for it.
[24] See Sran v Minister for Immigration and Citizenship [2014] FCCA 37; SZGJO v Minister for Immigration & Multicultural Affairs & Indigenous Affairs [2005] FMCA 1349; SZGJO v Minister for Immigration & Multicultural Affairs & Indigenous Affairs [2006] FCA 393; NAWZ v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 199.
The First Respondent further submitted that the operation of s.98 of the Act was not confined to the place in the Act in which it is found. It goes further than that and relates to the validity of visa applications. In NAWZ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 199 (“NAWZ”) the relevant regulation was reg.2.07 of the Regulations which related to a person completing an application form. The applicant in NAWZ contended that he did not sign his application form personally nor fill it in. The Full Court referred to s.98 of the Act in its finding that the applicant was fixed with responsibility for the actual content of the false application filled in on his behalf.
In accordance with the general principles of statutory construction the First Respondent submitted regulations need to be read subject to some contrary indication consistently with the Act and, in this case, with
s.98 of the Act. Clause 4020 of the Regulations deals with, among other things, the making of visa applications and the information provided in them. It is clearly a regulation to be read in the light of s.98 of the Act.
Clause 4020 of the Regulations requires that there be no evidence an applicant has caused false or misleading information to be given. If there is any evidence that a person might have done something on an applicant’s behalf, that is evidence which gives rise to an inference that they have ‘caused’ that to be done. Just by giving instructions to the person who takes the action, an applicant has ‘caused’ the false information to be given. If an applicant:
·Has given instructions to someone to prepare an application;
·Is indifferent to the contents of the application; and
·The application is made within the terms of the authority:
[T]he applicant is fixed with the responsibility for having caused the application to have been given. It doesn’t matter, and the tribunal was correct to find that it didn’t matter, that the applicant was unaware of the precise contents of the visa application.[25]
[25] Transcript of proceedings, 17 March 2015, p.39 at lines 6-9.
In support of this submission, the First Respondent referred the Court to the decision of the Full Court of the Federal Court in Trivedi and Ors v Minister for Immigration and Border Protection and Anor (2014)
220 FCR 169 (“Trivedi”). In particular, the Court was referred to para.43 of the decision of Buchanan J:
In my view, it is not necessary (for reasons yet to be further developed) to show knowing complicity by a visa applicant. That would impose an impossible task on those administering the visa system. But it is necessary that the information or document have the necessary quality of purposeful falsity, whether or not the visa applicant can be shown to have knowledge of that fact.
There is no dispute in this case that there was a purposefully false TRA assessment provided in the visa application. At para.49 of the judgment his Honour went on to say:
For the reasons I have already given, it should be accepted that PIC 4020 is directed to information or documents which are purposely untrue. It seems to me to be clear from the same analysis that the purpose of PIC 4020 was to render visa applicants ultimately responsible for the veracity of the information and documents supplied to support the application. Although the limited terms of the waiver (and therefore any discretion to excuse non-compliance) make it apparent that innocent errors are not the focus of attention, it is equally clear that PIC 4020 is directed at the overall integrity of the visa system and as a bulwark against deception and fraud from any quarter associated with a visa applicant. It is not inconsistent with a coherent public policy to make a visa applicant ultimately responsible for purposely untrue material provided with a visa application. It would be an intolerable burden on the administration of the visa system to require that those assessing visa applications not only discover that information or documents are false in a material particular, but also that the visa applicant who provided them knew them to be so. In many cases that would be impossible and would defeat the apparent intent of the provision.
The First Respondent also noted that Buchanan J went on to say at para.50 of the judgment that: “It was not necessary to prove that the first appellant knew the contents of the document were false or misleading when she proffered it”.[26]
[26] (2014) 220 FCR 169.
Even if the Court were to find that the Tribunal’s construction or application of the PIC in cl.4020 of the Regulations somehow disclosed error, the case is not one where it would be appropriate for the Court to exercise its discretion to grant the relief sought as no useful result could ensue.
Conclusions
I am satisfied that the facts in this case are such that, there is no basis on which it can be distinguished from the findings in Prodduturi, which caused the Full Court to conclude, at para.35 of that judgment, that:
The decision by the delegate was a decision which was reviewable under Part 5 by the Tribunal hence it was a ‘primary decision’ under subs (4). Section 476(2)(a) means that the Federal Circuit Court would have no jurisdiction to entertain [an application to set aside the delegate’s decision].[27]
[27] [2015] FCAFC 5.
In Prodduturi, the delegate ascertained that the TRA had not assessed the applicant and he had never been certified as a cook by any assessing authority. Information to the contrary contained in his visa application was therefore false or misleading in a material particular. Further, the applicant was never able to satisfy the requirements of cl.485.221(1) of the Regulations and was not entitled, either at the time of the visa application or even at the time of his appeal, to the grant of a subclass 485 visa.[28]
[28] Ibid, p.2 at para.4.
The Tribunal made the following findings:
The Tribunal found that the appellant knew that the migration agent was going to make the application. Whilst it accepted that the appellant did not know of the false statement about the TRA reference it thought that this was because the appellant was indifferent to the contents of the application. On those factual findings it concluded that the appellant was responsible for the misleading statement even if he lacked actual knowledge of it.[29]
[29] [2015] FCAFC 5, p.5 at para.10.
The Full Bench was of the view that the FCCA was “entitled to come to its own view on the facts as to the alleged fraud because they were jurisdictional in nature”.[30] In Prodduturi, the only evidence before the FCCA was that contained in the Court Book and the transcripts of hearing before the Tribunal. The Full Bench was of the view that, as there appeared to be no dispute that the false statement contained in the visa application had been made by the applicant’s migration agent without his knowledge, the critical issue was whether that applicant was in some way complicit in the making of the false statement.[31]
[30] Ibid, p.8 at para.18.
[31] See [2015] FCAFC 5, p.9 at para.20.
This raises the issue of the interpretation of PIC 4020 and the application of s.98 of the Act.
It is not disputed that, at the time of the making of the application, the Applicant was not aware that the agent had provided false and misleading information to the Minister or an officer. The Tribunal, on the basis of the material before it, was satisfied that the agent had made the application on the Applicant’s behalf and in doing so acted within his authority. The Applicant had engaged the agent to make the application on his behalf and had paid him to do so. In his evidence to the Court, the Applicant admitted that he:
·Was aware that the visa being applied for on his behalf was a ‘work’ visa which he later referred to as “the skilled or something”;[32]
·Did not complete the application;
·Provided no documents to the agent;
·Did not review the application before it was lodged;
·Did not know what information would be needed to complete the application; and
·Expected the agent to take care of the application including completing it.
[32] Transcript of proceedings, 17 March 2015, p.27 at lines 43-44.
I am satisfied that the evidence establishes, as the Tribunal found, that there was an agency agreement between the Applicant and his agent for the agent to seek a visa for the Applicant that would enable him to work in Australia. It is accepted that as a general proposition, a principal is bound by the acts of an agent acting within the scope of his/her authority. Actual authority may be express or implied.[33] Under the general laws of agency, a principal can be liable for the actions of an agent, even if the agent’s act is unlawful or amounts to fraud.[34] I am of the view that it was not necessary for the Applicant to be aware that false information was provided by the agent or that he needed to give instructions to the agent to provide false information in order to be responsible for false or misleading information being given.
[33] Lysaght Bros & Co Ltd v Falk (1905) CLR 443 as cited in Sran v Minister for Immigration and Anor [2014] FCCA 37 at para.66.
[34] Brown v Citizen’s Life Insurance Co Ltd (1904) 2 SR (NSW) 202; Lloyd (Pauper) Appellant v Grace [1912] AC 716 as cited in Sran at paras.63 and 78.
It is not disputed that the information was given to the Department by the Applicant’s agent. The issue is, therefore, did the Applicant cause the information to be given?
In Vyas v Minister for Immigration and Citizenship [2012] FMCA 92, Federal Magistrate Driver (as he then was) expressed the view that “the words “given or caused to be given” … should not be construed as importing a mental element”.[35] This view was supported by
Judge Nicholls in Sran, where his Honour also referred to the judgment of Judge Emmett in Trivedi in support of that proposition.[36]
[35] [2012] FMCA 92, p.23 at para.68.
[36] [2014] FCCA 37, p.31 at para.116.
On appeal in Trivedi, Buchanan J supported the conclusion that it was not necessary to show knowing complicity by an applicant in the provision of information that was purposefully false. He expressed the view that the purpose of PIC 4020 was to render visa applicants ultimately responsible for the veracity of the information and documents supplied in support of the application. I am satisfied that the Applicant is not absolved from responsibility because he left everything up to his agent. Indeed, the Applicant’s evidence suggests that the authority he gave to the agent was so wide that it could include the provision of false and misleading information in the application and the fact that the Applicant gave no express instruction to the agent to provide such information, or that the information was provided without his knowledge, did not mean that he did not ‘cause’ the information to be given for the purposes of PIC 4020.
The Applicant also argued that it was an error to apply the provision of s.98 of the Act to PIC 4020. The Minister cited the decision of the
Full Bench in NAWZ as authority for the proposition that s.98 of the Act had application to regulations concerning the making of visa applications beyond consideration of when a visa should be cancelled. I accept the proposition of the Minister that, as a general principle of statutory construction, Regulations made under an Act should be read consistent with that Act, unless a contrary intention applies.
In NAWZ, the regulation required that the approved form be completed by the applicant. It was uncontentious that the form had not been completed or signed by the applicant but had been completed and lodged by his agent. The Court concluded:
The appellant is fixed with responsibility for the actual content of the false application filled in on his behalf: see Migration Act 1958 (Cth), s 98. The application filed on his behalf was his application albeit it lacked what in the circumstances would have been two false declarations signed by him, though they were signed on his behalf by his confederate.[37]
[37] [2004] FCAFC 199, p.4 at para.16.
In SZGJO, Bennett J after referring to the application of NAWZ by the judge at first instance, concluded:
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.[38]
[38] [2006] FCA 393, p.5 at para.16.
It is consistent with the conclusions of Buchanan J in Trivedi that the provisions of s.98 of the Act should apply to PIC 4020 and that an applicant should be deemed to have completed an application form where he or she causes a form to be filled out or his/her behalf as was clearly the case on the facts of this matter.
On the basis of these conclusions I am satisfied that the Tribunal made no error in its application on PIC 4020. It is therefore not necessary for me to consider whether a declaration should issue. As the Court has no jurisdiction to review the decision of the primary decision-maker, the decision of the delegate with respect to PIC 4020 would still stand even if the decision of the Tribunal was overturned. Further, it is clear that the Applicant could not meet other criteria necessary for the granting of the visa sought by him.
For these reasons, the application is dismissed.
I certify that the preceding fifty-eight (58) paragraphs are a true copy of the reasons for judgment of Judge Whelan
Associate:
Date: 14 October 2015
14
10
3