Singh v MIBP
[2014] FCCA 1816
•20 August 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SINGH & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2014] FCCA 1816 |
| Catchwords: MIGRATION – Review of Migration Review Tribunal decision – Skilled (Provisional) (Class VC) Visa – application dismissed. |
| Legislation: Migration Act 1958, s 98 |
| NAWZ v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 199 SZFDE v Minister for Immigration and Citizenship [2007] HCA 35 SZGJO v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 393 SZIWV v Minister for Immigration and Citizenship [2007] FCA 1338 Zhang v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1706 |
| First Applicant: | BALDEV SINGH |
| Second Applicant: | PROMILA PROMILA |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | MLG 2182 of 2013 |
| Judgment of: | Judge Riethmuller |
| Hearing date: | 4 August 2014 |
| Date of Last Submission: | 4 August 2014 |
| Delivered at: | Melbourne |
| Delivered on: | 20 August 2014 |
REPRESENTATION
| Counsel for the Applicants: | Mr Gordon |
| Solicitors for the Applicants: | Ravi James Lawyers |
| Counsel for the First Respondent: | Mr R.C. Knowles |
| Solicitors for the First Respondent: | Australian Government Solicitor |
ORDERS
The application filed on 11 December 2013 be dismissed.
| FEDERAL CIRCUIT COURT AT MELBOURNE |
MLG 2182 of 2013
| BALDEV SINGH |
First Applicant
| PROMILA PROMILA |
Second Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The applicant seeks judicial review of a decision of the Migration Review Tribunal made 12 November 2013, affirming a decision of the delegate of the Minister to refuse to grant the applicant a Skilled (Provisional) (Class VC) visa under the Migration Act 1958.
The delegate refused to grant the visa on the basis that the first named applicant did not satisfy the requirements of clause 485.224 of the Migration Regulations 1994 because he did not meet various essential criteria.
The second applicant was the spouse of the first applicant.
The applicant argues that the application which was lodged and considered by the delegate, and subsequently considered by the Tribunal, was not, in fact, his application and should be treated as though it had never been lodged with the Department. The applicant’s case in this regard is that the Migration Agent who lodged the application did so fraudulently or at least without appropriate instructions.
The applicant’s grounds are set out in his application lodged in this court as follows:
1.The Migration Review Tribunal (‘the Tribunal’) acted in excess or without authority or did not have jurisdiction to review the purported decision of the delegate because, no valid visa application was made by the applicant or he authorised any one to make the particular application for him or in any way consented to making same. Therefore, no valid decision was made by the delegate.
Particulars
a.The application form was lodged online by a Registered Migration Agent and the applicant did not have any knowledge of or consent to the particular application being made.
b.The applicant had no knowledge of the application made and any particulars contributed in it.
c.The material particulars were incorrect, and no such information was provided by the applicant.
2.In the alternative, the decision of the Tribunal was vitiated by the fraudulent conduct of the migration agent.
Particulars
a.The applicant relies upon the particulars to Ground 1 and in addition the following.
b.The applicant did not complete or sign any consent to lodgement of the particular application.
c.The applicant did not authorise the agent to lodge the particular application.
Precisely what occurred in the course of events leading up to this case is less than clear. It seems that, as a result of broader investigations by the Department of Immigration, it was discovered that a business known as S & S Migration had been found to have lodged a number of applications to the Department containing false and misleading information. During the course of the investigations, departmental officers discovered “…a file with [the applicant’s] personal details and the application reference numbers in the office of S & S Migration” (see court book 23). This information was provided to the applicant.
The delegate dismissed his application for a visa on the basis that it was supported by false documents, (including a false skills assessment from Trades Recognition Australia), as the organisation Trades Recognition Australia had no record of providing a skills assessment for the applicant. The applicant applied to the Migration Review Tribunal for a review of the delegate’s decision.
The applicant supported his application by very brief evidence. There is a statutory declaration that he declared before of a solicitor (who does not appear to be connected with this case) on 16 July 2012 (see page 50 of the court book) wherein he said:
1.In September 2011 I approached the S & S Migration because my student visa was about to expire and a friend had told me that they could provide me with a work visa. On this first visit I met Mr Jeetender S Ajjan and he told me the visa would be valid for 18 months and he could help me get work experience in cooking. The fee for the visa was $1500 cash.
2.I was never provided with a copy of the application that was lodged on my behalf.
3.In my 485 application, Mr Jeetender S Ajjan put his own email address and unfortunately he never provided me with any correspondence sent to me from DIAC.
4.When I last went to S & S Migration in February 2012 the office was closed. I had heard rumours that they were in trouble and closed by the authorities.
5.I only received the information about the refusal of my visa when I login to ebusiness system on 9 May 2012. The next day I lodged my MRT application.
6.I believe I was misled by S & S Migration and Mr Jeetender S Ajjan, so now I would like the opportunity to present my matter to the Refugee Review Tribunal for further consideration.
The Tribunal wrote to the applicant offering him an opportunity to be heard by the Tribunal so as to give evidence in person. He did not respond to the hearing invitation. The invitation was sent to the address that he had given the Department and where he still lives, but had been returned, marked return to sender. Subsequently he failed to appear at the time appointed for the hearing. The Tribunal then wrote a lengthy letter seeking his comments on a number of matters relating to his visa application. That letter was dated 21 August 2013 and runs for some four pages.
Following that letter, the applicant telephoned the Tribunal saying that he was calling from India (the letter had been sent to his address in Australia), saying that he had only that day (3 September 2013), been able to access his email whilst he was in India and that he realised he had missed his hearing. According to the file note, he seemed “a bit vague about what he had actually received”. It was stressed to him that it was important that he write to or email the Tribunal as soon as possible to advise that he is out of the country, and when he expects to return, and how the Tribunal can contact him.
On the same day, an email was sent by the Tribunal enclosing a copy of the letter of 21 August 2013 asking that he respond to it by 13 September 2013. He wrote back seeking an extension of time to comment on the matters set out in the letter and then subsequently the copy of the letter that had been sent to his Australian address was returned to the Tribunal. The Tribunal ultimately granted an extension of time until 23 September 2013, following which on 20 September he again wrote to the Tribunal seeking a further extension of time, saying that he had only returned to Melbourne the day before on 19 September. He was granted a further extension until 30 September, following which he provided only brief comments by way of a letter, dated 27 September 2013 stating:
…
My Federal Court review was remitted because the Migration Agent was a fraud, and he put a lot of people who approached him into difficulties.
I approached and asked him to assist with a further visa, but did not tell him or agree with him to put for this visa.
I never told him that I had a skill assessment or booked medical or passed IELTS test. The email he has given is not mine and many particulars were not those provided by me, and he invented them to make his fraud.
If he did this as my proper agent, why should he give my address for contact.
This is totally fraud by the agent of which I had no knowledge how he did this. I am aware that the department investigated him, and want to charge him. I am not responsible, and so request that you send it back to the department to cancel the application and allow me to make a new one.
The Tribunal specifically recounted the evidence in the statutory declaration at paragraph 18 of their decision and clearly had regard to the letter. The Tribunal concluded:
19. Having considered the evidence overall, the Tribunal finds that there is insufficient evidence to indicate that the review applicants were in fact mislead about the nature of the visa applications or what the agent was doing on their behalf. Having carefully considered the claims and evidence as a whole, in ways similar to the applicant in SZGJO, the Tribunal is satisfied that the review applicants in this case are just as responsible for the false application as if they had lodged it themselves because they were “… indifferent as to its contents” even if the agent himself was “… knowingly concerned with the making of a false application”: SZGJO at [39]. The review applicants have not provided any evidence any evidence that they instructed the agent to apply for a certain kind of visa, other than a “work visa”; or that either one of them instructed the agent not to apply for visas on their behalf at all. Since the visa application form was lodged on-line, the question of whether their signatures were forged does not arise. In conclusion, the Tribunal is satisfied that the review applicants authorised the agent to act on their behalf and to lodge the visa applications for “work visas” and that they were not concerned about the details of the process or the applications.
20. In making the above findings, the Tribunal acknowledges the power differential that exists between visa applicants and agents. However, the review applicants have not satisfied the Tribunal in this case that they were not aware that they had retained the agent to lodge a visa application on their behalf. The Tribunal is satisfied that the review applicants understood clearly enough that the agent was going to lodge a visa application on their behalf that would allow the first named review applicant to work. In particular, the Tribunal is satisfied that the review applicants may not have been fully aware of the subclass of visa that was being applied for, but the Tribunal is satisfied that they were aware of the nature of the retainer. This is so even though the Tribunal accepts that much of the misleading and incorrect information in the visa application was fabricated by the migration agent without the review applicants’ knowledge. Furthermore, the review applicants have also not satisfied the Tribunal that they did not have the capacity to consent to the agent lodging the visa application on their behalf in exchange for his fee.
Ultimately the Tribunal concluded that a valid application had been made under the Act and that having regard to the specific conditions for that visa type, the applicant did not meet the criteria. There is no argument before me that the applicant does not meet the criteria for the visa category to which the application relates.
The Tribunal turned to the question of whether or not there was such fraud by the agent as to invalidate the application in some way, saying:
29. Although the review applicants claim that their visa application was affected by fraud and should be “cancelled”, they do not provide further legal submissions on the nature of the fraud being alleged. In particular, the review applicants have made no claims that the applications were somehow affected by third party fraud of the kind considered by the High Court in SZFDE & Ors v Minister for Immigration and Citizenship & Anor [2007] HCA 35. Rather their claims appear based on allegations of fraud vis a vis the agent and themselves. In any event, on the evidence before it, the Tribunal is satisfied that there has been no fraud on the Minister, his delegate, or this Tribunal by the agent.
30. In making this finding, the Tribunal notes that it has considered carefully the relevant case law in relation to third party fraud in an earlier decision: MRT 1306854 dated 14 October 2013: see SZIVK v MIAC [2008] FCA 334; SZLIX v MIAC (2008) 245 ALR 501; SLIX V MIAC [2008] FMCA 945; SZMGX v MIAC [2009] FCAFC 67. The Tribunal has again considered that case law and notes that third party fraud not only involves the fraud of an agent that subverts and stultifies a decision maker’s obligations of due process and natural justice in processing the application, but the facts themselves must be able to be characterised as fraudulent conduct vis-à-vis the review applicant. In this case, the Tribunal is unable to satisfy itself on the material before it that the agent’s conduct was fraudulent because the review applicants themselves were complicit in the fraud: see SZHLP v MIAC (2008) 172 FCR 170; SZSJA v MIAC [2013] FCCA 741; SZGJO v MIMIA [2005] FMCA 1349.
As the High Court made clear in SZFDE v Minister for Immigration and Citizenship [2007] HCA 35, an important starting point is to clearly identify the specific fraud alleged or relied upon in the case at hand. In this case, the solicitor representing the applicants said that the fraud could be particularised as:
(1)the agent lodging an application without any authorisation to do so; and
(2)the agent including false information in the application, knowing such information to be false (the skills assessment).
Turning firstly to the argument that the application was lodged without any authorisation to do so, I turn back to consider the evidence to the Tribunal on this point. The evidence contained in the statutory declaration sets out that the applicant did attend upon the agent, as a friend told the applicant that the agent “could provide me with a work visa”. The agent told him that a visa would be obtained for 18 months to allow him to work and it would cost $1,500. He says nothing in that material as to his actual instructions to the agent but simply says that he was never provided with a copy of the application.
In the subsequent letter that he sent to the Tribunal on 27 September 2013, said:
I approached and asked him to assist for a further visa, but did not tell him or agree with him to put for this visa.
On the material at hand, there is sufficient evidence for the Tribunal to have concluded that the applicant did give instructions to the agent to lodge a visa application on his behalf. He did not specify the particular type of visa, and was, no doubt, relying upon the agent to choose the most appropriate category of visa.
The visa application was lodged electronically. Section 98 of the Migration Act 1958 provides:
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.
In argument, the applicants’ solicitor was unable to identify a different category of visa that the applicant could have intended the agent to apply for on his behalf, or even a visa that, arguably, the applicant may have been able to obtain.
In this regard, the evidence seems to me to be unremarkable. When a visa applicant attends upon a migration agent they would commonly be relying upon the skill and capacity of the agent to choose the correct visa application and the correct visa category. The instructions to the agent were to obtain a visa and that could only be done so by lodging an application.
In these circumstances, it is difficult not to conclude that the applicant should be taken to have filled in the visa application that was filed. This is consistent with a number of authorities, for example:
a)In SZGJO v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 393, at paragraph 16, it was concluded:
16. The appellant authorised and caused his migration agent to fill in the visa application form on his behalf. While he did not specifically authorise the inclusion of incorrect or incomplete information, as in NAWZ, s98 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.
b)In NAWZ v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 199, the court said at 16:
16. 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. We express no view on the question whether s 98 extends to deem the appellant to be the signatory of the application, albeit under a pseudonym. Notwithstanding that the application was substantially false in its contents and that it carried two false declarations signed by a person who was in reality the appellant’s alter ego, the application itself substantially complied with what was required of an application by the Migration Regulations.
c)In Zhang v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1706, the Court said:
14. Having regard to the background outlined at [2] supra, in particular the circumstances outlined at [2](9) supra, I make the following findings relevant to the validity issue:
(i) Ms Zhang intended that the Business Visa application be lodged on her behalf, either by Linda or someone she instructed. This is manifested by her handing over to Linda her passport, a passport photo and business documents to facilitate the application. It is also manifested by her subsequently paying Linda the sum of $2,800 ‘when she [Linda] told me everything was done and showed me the passport’.
(ii) Ms Zhang understood that the Business Visa application was to be lodged on her behalf, had been lodged on her behalf and, albeit mistakenly, had been successful. Again, her payment of $2,800 to Linda manifested that understanding.
(iii) It was only when she became aware that the Business Visa has been refused and the consequence that had for her application for a Spouse Visa, namely, that, by virtue of s 48 of the Act, the application for a Spouse Visa was infected with invalidity, that she sought to disavow the validity of the Business Visa application.
15. Having regard to these findings, I have come to the following conclusions:
(1) Ms Zhang authorised Linda, or a person instructed by Linda, to make the Business Visa application on Ms Zhang’s behalf. Mr Meng fell within that latter category; he was instructed by Linda to make the Business Visa application on Ms Zhang’s behalf.
(2) The fact that Ms Zhang did not sign the application form nor the Form 956, does not mitigate against the conclusion in (1); nor does the fact that someone, possibly Jack Meng, signed the application form and the Form 956 in Ms Zhang’s name and style of signature or, as it has been put on behalf of Ms Zhang, forged her signature to each document.
(3) The Business Visa application form was, in consequence, filled in on Ms Zhang’s behalf and the deeming of s 98 of the Act is triggered.
(4) Whatever came out of the meeting with Jack Meng, Ms Zhang did not withdraw the instructions given to him by Linda or otherwise instruct him to withdraw or abandon the Business Visa application. This may have been because, according to Ms Zhang’s evidence before the MRT, she was told by Jack Meng that the business visa had been granted, although her husband did not corroborate this. If Jack Meng did not say this at the meeting on 7 June 2001, then it can be more readily inferred that she ratified or adopted the application although such a conclusion is not critical to the conclusion in (3) above.
d)In SZIWV v Minister for Immigration and Citizenship [2007] FCA 1338, the court said:
28. The only question in this case is whether the signing of the blank application means that the application was invalid.
…
37. It follows that the appellant’s application was a valid application. It follows that both the delegate’s decision and the Tribunal’s decision on review were authorised by the Act. That was the conclusion of the Federal Magistrate. No error has been demonstrated.
Having reached the conclusion that the application was a validly lodged application on the applicant’s behalf, I must turn to consider whether or not the fraudulent conduct in relying upon a false claim to having a skills assessment invalidates the application in some way. It appears to me that it does not.
The evidentiary support for the application appears, on everyone’s case, to be fraudulent. The email address was not the applicants’ (as accepted by the Tribunal).
This meant that, to the extent that the delegate was not able to have the benefit of a hearing with the applicant and that the applicant was not offered an actual hearing, the fraud thwarted the proper conduct by the delegate of his duties. However, events came to light and the matter was reheard by the Tribunal. The fraud had been discovered and the applicant was able to place all of the relevant evidence that he wished to place before the Tribunal to have his application determined upon the true facts and circumstances as he established them before the Tribunal.
As the matter has unfolded, the applicant has not lost the opportunity to have a proper hearing before the Tribunal on all of the issues relevant to this visa application. In this sense, the fraud has not denied the applicant of real opportunity to be heard, as occurred in SZFDE v Minister for Immigration and Citizenship [2007] HCA 35.
The Tribunal findings in this case, however, went further to conclude that the Tribunal, based upon the limited material before it, was persuaded that the applicant was indifferent to the contents of the review application.
I turn then to consider what evidence was available to the Tribunal on which to make those findings. The Tribunal had the statutory declaration of the applicant which stated (Court Book 116-117):
On this first visit I met [name of agent] and he told me the visa would be valid for 18 months and he could help me get work experience in cooking. The fee for the visa was $1500 cash.
I was never provided with a copy of the application that was lodged on my behalf.
In my 485 visa application [name of agent] put his own email address and unfortunately he never provided me with any correspondence sent to me from DIAC. When I last went to [name of firm] in February 2012 the office was closed. I had heard rumours that they were in trouble and closed by the authorities.
I only receive the information about the refusal of my visa when I login to ebusiness system on 9 May 2012. The next day I lodged my MRT application.
I believe I was misled by [name of firm] and [name of agent] so now I would like the opportunity to present my matter to the MRT for further consideration.
It also had the contents of the brief letter quoted above. I note that both of these documents are remarkably brief support for allegations of fraud and remarkably loose in their language when one turns to consider precisely what occurred and what consequences should flow. The Tribunal also had the information before it that at least part of the supporting material for the application was fraudulent and that the particular migration agent had been involved in a number of fraudulent applications (see court book 23). The Tribunal also had the information that the applicant’s reference number was found in the migration agent’s file, thus, it seems most likely that the agent lodged the application.
Finally, the Tribunal had the fact that the applicant did not attend for a hearing before the Tribunal, which they noted at paragraph 14 of the reasons, saying:
14. Unfortunately, for reasons outlined above, the review applicants lost their entitlement to a Tribunal hearing and the Tribunal was unable to take further evidence from them regarding the circumstances in which they retained the agent; or how the visa application was lodged, or how they discovered that a decision had been made refusing to grant them the visas. The first named review applicant’s submissions about these matters are vague and lack detail. The second named review applicant has made no contact with the Tribunal at all since lodging the application for review.
I must determine what inferences could permissibly be drawn from the material and the way that it was presented to the Tribunal.
I am not enamoured by the proposition that a person merely seeing and engaging a migration agent (just as would occur if a person sees a solicitor or an accountant) should be treated as taking the view that they are indifferent to the truth or falsity of the contents of documents drawn by the professional. Ordinarily, one would not expect a person to give specific instructions to a migration agent, solicitor or accountant to not engage in any illegal or dishonest activity, such a condition being implicit.
However, in circumstances where fraudulent activity has occurred in multiple cases, there is a real question as to whether or not the migration agent was undertaking a frolic of his own or was expressly or impliedly complicit with the applicant. In this case, it seems that both findings are open on the basic facts and that, ultimately, it depends upon the assessment one makes of the evidence that the applicant has given of his interactions with the agent against the particular factual matrix of this case.
The applicant’s evidence by way of the statutory declaration, the letter, and the failure to appear in person provide flimsy evidence. If the applicant was not indifferent to the way in which the visa was obtained one would have expected a detailed account of the interactions with the agent.
On the material actually before the Tribunal, it appears to me that it was open to the Tribunal to draw the inferences from which to make the findings that it did.
I note that the applicant retains his civil law remedies to bring an action against the migration agent, if he can show any loss or damages as a result of the negligent conduct of the agent. In this regard, I also note that s. 292B of the Migration Act 1958 requires migration agents to have insurance if they are to be registered and that reg.6B of the Migration Agents Regulations1998, requires that there be a minimum level of insurance in the sum of $250,000.
In the circumstances, I am not persuaded that the applicant has made out a ground for judicial review and I therefore dismiss the current application.
I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of Judge Riethmuller
Associate:
Date: 20 August 2014
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