Singh v Minister for Immigration
[2021] FCCA 908
•5 May 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SINGH v MINISTER FOR IMMIGRATION & ANOR | [2021] FCCA 908 |
| Catchwords: MIGRATION – Fraud of agent – Skilled-Graduate (Temporary) (Class VC, Subclass 485) visa – where applicant arrives in Australia holding Student visa expiring March 2011 – college at which applicant engaged in study ‘blacklisted’– where applicant unable to obtain Confirmation of Enrolment – applicant engages registered migration agent for reward to assist in obtaining extension of Student visa – agent lodges application for Skilled-Graduate visa – application contains false and misleading information – applicant not qualified for visa – whether visa application valid – whether applicant had been involved, complicit in, or indifferent to, fraudulent conduct of agent – applicable principles – onus of proof – application dismissed. |
| Legislation: Constitution 1901 (Cth) s 75 Evidence Act 1995 (Cth) ss 55, 140 Migration Act 1958 (Cth) ss 4, 5, 44, 45, 46, 47, 48, 48A, 51A, 54, 55, 56, 57, 58, 59, 65, 97A, 98, 105, 106, 276, 280, 314, 349, 357A, 422B, 426A, 476, 496 Migration Agents Regulations 1998 (Cth) Sch 2 cls 2.1, 2.3, 2.4, 2.6, 2.7, 2.8, 2.9, 2.14A, 2.23 Migration Regulations 1994 (Cth) Sch 2 cll 485.221, 485.224, Sch 4 cl 4020 |
| Cases cited: ABT17 v Minister for Immigration and Border Protection (2020) 94 ALJR 928 Trivedi v Minister for Immigration and Border Protection (2014) 220 FCR 169 Aronson, Mark, Matthew Groves & Greg Weeks, Judicial Review of Administrative Action and Government Liability (Lawbook Co., 6th ed, 2017) |
| Applicant: | HARPEJ SINGH |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 879 of 2015 |
| Judgment of: | Judge A. Kelly |
| Hearing date: | 15 May 2020 |
| Date of Last Submission: | 15 May 2020 |
| Delivered at: | Melbourne |
| Delivered on: | 5 May 2021 |
REPRESENTATION
| Counsel for the Applicant: | C.J. Oldham |
| Solicitors for the Applicant: | Ravi James, Lawyers |
| Counsel for the First Respondent: | M. Hosking | |
| Solicitors for the First Respondent: | Australian Government Solicitor | |
ORDERS
The name of the first respondent be amended in the title of the proceeding to Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.
The applicant have leave, now for then, to further amend the amended application filed on 12 May 2020 so as to seek by way of final orders a declaration that the visa application made on 9 February 2011 is invalid.
The amended application filed on 12 May 2020 be dismissed.
The applicant pay the costs of the first respondent, including reserved costs, as agreed or assessed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 879 of 2015
| HARPEJ SINGH |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
By an amended application filed on 12 May 2020, the applicant seeks judicial review of a decision of the Administrative Appeal Tribunal (Tribunal) made on 26 March 2015 affirming a decision of a delegate of the first respondent (Minister) made on 24 April 2012, refusing to grant him a Skilled-Graduate (Temporary) (Class VC, Subclass 485) visa (visa) pursuant to s 65 of the Migration Act 1958 (Cth) (Act).
The applicant seeks relief by way of judicial review in the circumstance that, as he now contends, the visa application is invalid by reason that it had been lodged by his registered migration agent, S & S Migration, in circumstances that were tainted by fraud. The application should be dismissed. While it was common ground that the conduct of the applicant’s agent in relation to the visa application was fraudulent, I am not satisfied the applicant has discharged the onus of proving that he was not indifferent, in the requisite sense, to whether his agent used unlawful or dishonest means to secure his object of obtaining a visa.
The present case bears marked similarities to many of the decisions in which other visa applicants had retained S & S Migration. While those points of similarity will become readily apparent, there is no particular utility in addressing them at this point. However, it may be noted that in contrast with other such cases, in the present case, the applicant presented as an articulate and intelligent person who did not merely engage the agent to assist in lodging his visa application. Rather, in circumstances where the applicant had sought unsuccessfully to obtain a Confirmation of Enrolment (CoE), he also engaged the agent to procure that CoE, well knowing that it was an essential requirement for the student visa which he sought and that he could not obtain it.
It was accepted the applicant’s agent had engaged in conduct which was fraudulent, including by the manner in which false information respecting a skills assessment purportedly given by Trades Recognition Australia (TRA), had been stated in an application for the visa. What was in dispute was whether the applicant had been complicit, or indifferent, in the requisite sense, to such fraud. For those reasons, close attention to the facts and circumstances of the case is required.
Procedural history
On 24 April 2015, the applicant filed an application for judicial review by which he advanced four grounds of review. By his application, the applicant indicated he did not require the services of an interpreter.
By an affidavit affirmed on 24 April 2015, the applicant deposed that he had requested his agent “to lodge a student visa application however the agent lodged a graduate skilled visa [application] which were (sic) subsequently refused on 24 April 2012.” The applicant deposed that the agent “was misleading and acting in a fraudulent manner” and stated:
4. On the 24th of April 2012 my “so called” visa application was refused. My agent lodged a fraud application without my consent. I had consented the agent to lodge a student visa application however the agent did not do that and lodged a different application.
5.The reasons for refusal provided are not true and I do not agree with them at all.
6.I have been misguided and my agent who lodged that case has been fraudulent with me.
7.After I received the refusal as the decision was not correct I wanted to have the decision reviewed as i (sic) did not approve the decision. I had applied for a review application, however that was refused. The refusal is attached and marked with letter “HS1”
8.I am now applying for a judicial review and hope I can get justice and my story can be understood and be provided with a fair decision and chance. The public interest criterion should not be applied in the first place however the agent has acted in a manner which has tarnished my life and other students I know who are in the same situation.
Although it had been drawn in somewhat conclusory terms, reduced to its essentials, by his initial affidavit, the applicant sought to adduce the following evidence: (1) he had retained a registered migration agent; (2) the agent had been instructed, for reward, to lodge a student visa application; (3) contrary to those instructions, the agent had lodged a visa application of a different kind; (4) he had been misled by the agent; (5) other, unidentified, students had likewise been misled by the agent.
By a response filed on 5 May 2015, an order was sought for dismissal of the application on the ground that it was not affected by error. On the same date, a solicitor acting on behalf of the Minister wrote to the applicant drawing to his attention that the issues raised by the application were inherently complex and that he ought to apply for legal assistance.
The proceeding was listed for directions on 19 August 2015. On that date, an order was made by a Registrar dismissing the proceeding by reason of the applicant’s non-appearance at that directions hearing.
On 24 August 2015, the applicant filed an application in a case seeking, in effect, an order for reinstatement of the proceeding. By an affidavit affirmed on that date, the applicant deposed that he had missed the Court hearing because he confused the dates, stating that he had made an honest mistake, adding “Please reconsider my application. Thank you!”
The application in a case was set down for hearing on 19 November 2015 and, in advance of that date, detailed submissions were filed on behalf of the Minister opposing the order for reinstatement. At the return of the application, there was no appearance by or on behalf of the applicant and an order was made that it too be dismissed pursuant to r 13.03(1)(c) of the Federal Circuit Rules 2001 (Cth).
On 6 November 2019, at a hearing at which the applicant appeared and a solicitor-advocate represented the Minister, orders were made, by consent, setting aside the Registrar’s orders and providing directions affording the applicant opportunities to file and serve any amended application, affidavits and submissions in support of the application.
Conformably with the directions given, on 31 January 2020, a Court book was filed on behalf of the Minister. Later, on 28 April 2020, an outline of submissions was filed on behalf of the Minister, in circumstances where no amended application, further evidence or submissions had been filed by or in behalf of the applicant.
By an affidavit affirmed on 27 April 2020, an officer of the Department of Home Affairs furnished evidence of the applicant’s visa history including that which had been derived from his review of information retrieved from the Departmental Integrated Client Services Environment database (ICSE).
By an affidavit affirmed on 29 April 2020, a solicitor having the conduct of the proceeding on behalf of the Minister deposed to the particular difficulties which had been encountered in obtaining from Auscript a transcript of the hearing before the Tribunal on 26 March 2015. The deponent also exhibited a copy of a transcript which, in the event, was obtained from another transcript service provider.
At a hearing which was listed on 30 April 2020, the applicant appeared on his own behalf and sought an adjournment which was granted on terms that the matter be relisted for final hearing on 15 May 2020. A further opportunity was afforded to the applicant to file and serve any amended application, affidavit and written submissions.
On 12 May 2020, an amended application was filed on behalf of the applicant by lawyers whom he had retained (being a firm which had acted in a number of appeals respecting frauds by S & S Migration). By his amended application, the applicant abandoned his original grounds of review and advanced in their place a single ground of review.
By the amended application, the applicant sought orders quashing the Tribunal’s decision and relief in the nature of mandamus requiring the Tribunal to determine the application according to law. Notably, no declaration was sought respecting the validity of the visa application.
On that date, the applicant also affirmed an affidavit by which he provided a slightly more detailed narrative of the sequence of events than he had previously identified and which he said had occurred.
In addition, the applicant’s counsel furnished detailed submissions.
Responding to this material, submissions and a series of further affidavits were filed on behalf of the Minister. Commendably, counsel for the Minister drew attention to the absence of declaratory relief respecting the validity of the visa application and that no objection would be taken to the further amendment of the application.
I have re-examined each of the affidavits that were relied upon.
In the circumstance that the matter was listed at an early stage in the Covid-19 pandemic, the parties were given a choice as to whether their hearing should occur remotely by audio and video link but preferred that it be conducted in open Court. The parties’ lawyers adopted an essentially co-operative approach in the conduct of the proceeding including that no objection was taken in reliance upon affidavits which had not been formally sworn. This occurred on the basis that the parties would observe practice directions that had been issued respecting the conduct of proceedings during the Covid-19 pandemic.
The applicant, who was cross-examined upon his evidence, initially presented as a relatively forthright and candid witness. The applicant gave his evidence in this proceeding (as he did in the Tribunal), without the assistance of an interpreter. Before me he demonstrated no difficulty in addressing the questions put to him and provided his answers in an essentially articulate manner. Likewise, he demonstrated no difficulty in reading documents that were put to him in cross-examination.
When giving his evidence, the applicant confirmed that his second affidavit should be understood as providing a narrative which described events in chronological order.
I have also re-examined the transcript of his evidence. The evidence which was given in cross-examination undermined a good deal of what he had sworn to in his affidavits and demonstrated that they were inaccurate or incomplete, in material respects.
As his evidence progressed I became increasingly concerned by the reliability of the answers which he gave upon several topics and concluded that he was prepared to provide a narrative as he perceived to be most advantageous to the case he sought to make. For the avoidance of doubt, I have not made a broad finding that the applicant lied. Rather, I did not find that I was persuaded of much of the evidence that he gave. In evaluating his evidence, I have not ignored that English was not the applicant’s first language. Nor have I ignored that the applicant has provided a narrative of the events upon which he relies at different times and over a period of some years.
My findings upon all of the evidence are set out below, including those which were common ground, proved by the documentary evidence, the parties’ affidavits, the applicant’s evidence given in cross-examination and the inferences which I consider properly available on that material.
Student visa: 2008-2011
The applicant, a male citizen of Indian ethnicity aged 32 years, first came to Australia on 6 February 2009 holding a student visa.
Before coming to Australia, on 12 November 2008, the applicant submitted, offshore, an application for a student visa. For this purpose, the applicant retained an agent in India to whom he provided his passport and certain certificates that he was asked for. The agent suggested some courses that the applicant might wish to consider and said that he would arrange for his course enrolment, a letter of offer and the visa application.
On 16 December 2008, the applicant was granted a student visa which was to expire on 15 March 2011.
In cross-examination, the applicant stated that he came to Australia with a CoE for the cookery course in which he had enrolled, adding that he had changed his study and chosen to pursue a different path in business management. He also said that he held a CoE for the business management course which was due to finish in early 2012. Neither of the applicant’s CoEs were produced.
Before the Tribunal, and this Court, the applicant gave evidence as to the course of his study including that: (1) he first attended the Chelsea International College on Fitzroy Street which was blacklisted; (2) he was unable to “get any units” from that college; (3) he pursued, but could not finish, his diploma at a private institute, International College; (4) he asked this college to provide him with a CoE, asking them “I need a CoE from you guys, like, you know, to apply for student visa”; (5) the twofold reply which he received to this request was that: (a) the applicant first needed to finish all the units in his course; (b) it could not provide assistance unless the applicant paid, in advance, all of the fees for his course. Of no little importance to the present application is that in evidence to the Tribunal, the applicant identified these factors as the catalyst for his decision to consult a migration agent. He stated:
And this is why I went to SMS (sic) and I tried, like, to see if he can help me out, and he said “that’s one I can help you out, get your CoE from the different college and then you can continue your study.”
In evidence to the Tribunal given at a later point, the applicant also stated that he had asked the Chelsea College to give him a CoE.
In this Court the applicant’s evidence was that he wanted to study business management, but that after the college was blacklisted he had not known what to do and, evidently, began to consider his options.
Before the expiry of his student visa and thereafter, the applicant had been working part-time at Woolworths. He continued to do so until about 2015 and thereafter worked as an Uber driver.
Visa application: February 2011
The applicant was acutely aware of the expiry date of his student visa. Before the Tribunal, the applicant’s evidence was that because he had been unable to get a CoE from Chelsea College after it was blacklisted “I was fairly desperate, I needed a visa extension.”
The applicant told the Tribunal that his visa was expiring at a time when he was in the middle of his study in a business management course and that he needed to extend his visa to complete the remaining units. His evidence to the Tribunal was, in effect, that a migration agent would have a better understanding than he did of how to extend the visa.
The applicant’s evidence in relation to the number of migration agents whom he had consulted differed and became increasingly unclear. He appeared to tell the Tribunal that initially he saw one migration agent on Collins Street but did not know how many others he had seen at that time. Before this Court he was initially insistent that he had just seen one agent (S & S Migration) in circumstances where another student had made a visa application using that agent, “and I knew them”. He agreed that when he first saw the agent it was only about a month before his current visa was due to expire. He agreed that he was pretty desperate to get the visa extended so that he could stay in Australia.
In February 2011, the applicant approached S & S Migration and requested “assistance for an extension on my visa or a new student visa”. The applicant deposed that he did not ask the agent “to make an application on my skills as a cook.” In cross-examination, the applicant said that he told the agent he needed a student visa extension so that he could complete his study.
The precise number of dealings which the applicant had with his agent at S & S Migration was also unclear. It seems more probable that the applicant met with his agent on two occasions and spoke with him once by telephone. Insofar as he had any dealings with S & S Migration, the applicant only dealt with one person (“an Indian guy”). In this Court, the applicant stated that at an initial meeting he had a discussion with the agent about the visa application and then attended a second meeting at which he provided his documents and paid the fees that were required. This seemed to be an inherently plausible version of likely events.
The applicant told the agent of the study which he was undertaking – a course in business management – and which he wished to continue.
The agent took some details from the applicant of his background. There was a paucity of evidence of the details so provided.
While it was unclear precisely what number of documents were provided by the applicant to his agent, he told the Tribunal that when he went to see the agent he had brought all of the documents that he had been asked for. I infer that the applicant was referring to the second occasion that he had met with his agent at the offices of S & S Migration. He told the Tribunal that he gave the agent his passport and details of the units in the business management course which he had completed. At one point he seemed to suggest that he had also given the agent a copy of a CoE.
However, his evidence to the Tribunal on this issue was inconsistent. I conclude that, for the reasons below, he had not provided any CoE to the agent. Instead, the net effect of the applicant’s arrangement with his agent was that, in exchange for a fee of $4,000, the agent would variously, procure a CoE by means of “a contact”, together with such other information as was required to complete the visa application and lodge the application form on his behalf. As appears below, the applicant would later characterise the fee demanded, and paid, as extortionate.
He also told the Tribunal that, as with a previous college, he needed a new CoE and was asked by the agent “When you get it?” to which, as he told the Tribunal, he replied “Soon. Maybe in two weeks.” At a later point in his evidence to the Tribunal, the applicant said that he did not think he had told the agent about Chelsea College and, after explaining his state of desperation at that point, stated “and I went up to the agent and, you know, like, they said, ‘You need to bring the CoE,’ and all this, first thing.” However, his further evidence was that “and when I went up to him and he says, ‘You don’t need anything. You just bring all the documents’”. In the evidence which followed, the applicant told the Tribunal that it was the agent who then stated he knew someone who could help him receive an enrolment and that the agent said “I know someone who can” – like, you know, “I can get you CoE and, you know, I’ll get the visa extension” . . . “And then - - - you can, you know, you can continue your study.” Upon this evidence, it seems more probable that, in his state of desperation, and without a CoE, the applicant had accepted the offer of his agent to get a CoE for him. His evidence to the Tribunal was that the agent had told him he would be able to procure a CoE for him “through a contact.”
The applicant next told the Tribunal that, after discussing when the CoE would be provided, “And he took the like, money” which was paid in cash “because he asked for cash”. I also infer the applicant was clear in his understanding that his agent would not get his CoE to lodge his visa application until his fee had been paid.
Upon the evidence given to the Tribunal, at the conclusion of his second consultation with the agent, it appears the applicant asked when he would get the visa, and in the course of which he said to the agent “My visa’s expired”. It will be recalled that his first student visa was to expire on 15 March 2011. At all events, in giving evidence to the Tribunal, the agents reply was “No, you’re all good. You’ll get a letter soon” which, I infer, was intended to placate the applicant’s concern that the issue would not be resolved before his student visa had expired.
By his second affidavit made on 7 May 2020, the applicant said that he told the Tribunal he had neither obtained nor provided any information about a TRA assessment or of making any application for a Federal Police check or of “requesting a visa as a cook”. With apparent reference to his application he stated that the email address was not his.
In this Court, the applicant stated that he had not given the agent a CoE but rather that, when asked for details of the units which he had completed, he had shown them his academic transcript whereupon the agent replied “he will arrange everything else.” Further, he stated that he had not given the agent a CoE in the circumstance that “no one would give me, you know, like, if I don’t have the student visa, like, I can get the CoE anyway, so I just sent whatever he asked for at that time.” Later he said that he thought the agent had said that he would arrange the CoE for the applicant. He agreed in the proposition that “If you just pay us the money, we will arrange this visa application.” Is that right? - - - Yes. That’s right. Yes.” The applicant said that he told the agent he wished to study in the course of business management and that the agent replied “We will do the business management. You will get the extension and we will call you once you get approval.” He reiterated that he was told by the agent to just arrange for the money to be paid and that the agent would contact him “like, once it’s approved and I will call you and then you can go ahead and complete a study.”
Later, the applicant accepted that the only documents he had given the agent was a copy of his passport and academic transcript but could not recall and did not know whether he had provided any other documents.
In cross-examination, the applicant said that on the first occasion he had consulted S & S Migration, he had given the agent the money for his services and the agent had replied “We will handle all of the documents.” He further agreed that he may or may not have signed any documents but that he had not been shown a copy of any information that was to be sent to the Department. It seems more likely that the applicant paid the agent his (extortionate) fees at the second (and not the first), meeting. Having regard to the nature of the admitted fraud, it is inherently likely that the agent was not prepared to do any work for the applicant (in spite of, or perhaps because of, his desperate situation), including obtaining a CoE until his fees had been paid.
In this proceeding, the applicant’s evidence was that his agent told him he would obtain certain other documentation and then make the visa application. He said that he gave the agent his passport and whatever else they had asked of him at that time. There was a paucity of detail as to what other documentation the agent would obtain, how this would occur or where it would be obtained from. How this could be achieved without, for example, a signed authority given by the applicant to obtain the information on his behalf was not explored and is a matter about which I do not speculate. Suffice to say, there was no evidence of any such authority having been requested of, or given by, the applicant.
Subclass 485 visa application
On 9 February 2011, an application was lodged for the Skilled Graduate (Temporary) (Class VC, Subclass 485) visa (Subclass 485). The application was embodied in a form entitled General Skilled Migration Applicant Form, Record of Responses, being a 10-page document in which the author and/or person lodging the application was not identified at any point. Although his evidence on the issue was inconsistent, the application was not signed by the applicant.
It is the applicant’s case, and I accept, that this application had been prepared and lodged on his behalf by S & S Migration, an agent whom he had retained to assist him and to whom he had paid substantial monies.
Before the Tribunal, the applicant stated he believed the agent had asked him to sign the visa application and that he thought he had done so. The applicant told the Tribunal that he did not ask the agent for a copy of the visa application but the agent told him that “when you’ve given me the money,” he would “do the documents”.
The visa application recorded the applicant as having a postal address in xxxx, Victoria. The visa application also contained details of the applicant’s mobile phone number and an email address.
The applicant denied that this email address in the application (xx@xx) was his.
The application, as completed by the agent, stated the applicant had undertaken a skills assessment for the nominated occupation of cook which assessment had been made by TRA on 20 May 2010 (Ref, TRA 10/283764032). The applicant’s evidence included that he had never undertaken any such assessment and had never provided any such information to the agent.
Later, when asked by the Tribunal why he had not requested a copy of the draft application before it was lodged, the applicant stated that he thought he had done so but that the agent had replied that he did not need it. In this Court the applicant stated that he had not asked for a draft of the application before it was submitted and that the agent had said that, once it was approved, he would contact the applicant. He also stated that he did not ask to see a copy of the draft application and volunteered “No, I just trusted them.” He proceeded to explain why he had adopted that stance. The applicant agreed he had never met the agent before. The applicant also agreed that he knew the visa application was an important document to be sent to the Australian Government. He agreed that he had not insisted on checking it before it was submitted.
By his second affidavit, the applicant deposed that he was not asked to, and did not sign, any documents for the purposes of the visa application.
In cross-examination he said that he had not given the agent a copy of a CoE, stating “No. They just gave me some document to sign on and I just signed them in whatever they asked, like, CoE and stuff.”
Taken to his second affidavit and reminded of his evidence given at the hearing in this proceeding, the applicant retreated to the position that he actually couldn’t recall whether or not he had signed the application. Further, he stated “I think obviously he – like, I said, he take care of the rest and I just did whatever he asked me to do.”
In this proceeding, the applicant’s evidence was that the agent told him the application would be submitted “online” and the agent would advise him about the progress of the application. The applicant stated that after he had paid the agent his fees, the agent told him he would submit the application that day. I infer that the applicant’s second meeting with the agent occurred on 9 February 2011.
Before the Tribunal, the applicant said he had asked to see a draft of the application form prior to its lodgement: [11]. His evidence was that the agent assured him this would not be necessary and the matter was not pursued because, as he said, at this time he ‘trusted’ the agent. This evidence was expressed in essentially conclusory terms. However, the preponderance of evidence persuades me that his adjectival use of ‘trust’ was inapt. Having regard to the applicant’s somewhat desperate circumstances, it is more accurate to characterise the relationship as one of principal and agent driven more by expedience than trust. From my evaluation of the whole of the evidence, I have concluded that the applicant’s deployment of ‘trust’ as a descriptor of the reason he had not pressed for a copy of the draft application more precisely reflected his acceptance that the agent had told him he could obtain a CoE on his behalf through a contact for the purposes of the visa application – something he had been unable to do for himself and which he could not obtain by any legitimate means that he had already explored for himself.
The applicant’s evidence was that after the second meeting he had called the agent asking when he would obtain his visa to which the agent replied that he should hear soon but could come to the office to obtain details of the documents and “all the approval.” Otherwise, the applicant stated when he again contacted the agent there was no answer to the phone call and when he attended the office he found it was closed. The date on which this occurred was less than clear.
The applicant agreed that on the date of his meeting on 9 February 2011, he was working at xxxx. Viewed more broadly, I infer the applicant, recognising the essential requirement that he supply a CoE (which he did not have and could not get except by paying the total fees for his business course), was none too troubled as to how his agent went about procuring the CoE for his application or the visa itself. The circumstance that he paid an extortionate fee for this service is notable.
Bridging visa – a letter?
On 10 February 2011, the applicant was issued with a Bridging Visa allowing him to remain in Australia. In his evidence to the Tribunal, and this Court, the applicant said that he received a ‘letter’ informing him of the grant of this visa a couple of weeks after he consulted his agent. While no such letter was tendered in evidence, a departmental email dated 10 February 2011 (transmitted to xx@xx) advised him that he had been granted a Bridging Visa A as a result of the receipt of his visa application permitting him to work and stating:
PERMISSION TO WORK
There are no work or study conditions attaching to a Bridging Visa A. This means that the applicant has unlimited work and study rights for the period that the Bridging Visa A is in effect.
The applicant, who consistently denied having the email address to which this document had been transmitted, agreed in cross-examination that, having looked at the Departmental email above, he also thought the letter that he had received had advised him he could work full-time under the Bridging Visa A.
The applicant’s further evidence to the Tribunal was, in effect, he had been very surprised to have received from the agent “some weeks later” a letter from the Department confirming that he had been issued a Bridging Visa which conferred work rights: [12]. Upon the applicant’s evidence the letter stated that the Bridging Visa was associated with an application for a Subclass 485 visa – not a Student visa as the applicant had instructed. His evidence to the Tribunal was that at this time he had sought clarification from the agent but was unable to do so as he could not make contact with him and later discovered the agent’s offices were closed. The applicant told the Tribunal that he sought advice from a different migration agent at some later stage but made no effort to contact the Department to clarify the position.
The applicant’s evidence indicates that the applicant had received this ‘letter’ by the end of February 2011.
By his second affidavit, the applicant deposed that he had been ‘given’ the document which advised of the issue of his Bridging Visa. Before the Tribunal he stated that he was not handed the letter by his agent but that he received it directly from the Department at his home and that it was a confirmation of the grant of a Bridging Visa. Although I make no finding whether the ‘letter’ had been sent to the applicant, both by post to his residential address and also by email, it suffices that the applicant acknowledged having received notice in February 2011 of the grant of his Bridging Visa and that he well knew: (a) the visa conferred work rights; (b) he was not qualified for, or entitled to, a visa of that kind. So much is established by the events which followed.
It is the applicant’s case that he retained the agent to make application on his behalf for a further Student visa and that he had never instructed the agent to apply for a Subclass 485 visa.
Response to receipt of ‘letter’
Before the Tribunal, the applicant said that when he received this letter he went back to his agent because, as he realised, he had “applied for actually my business skill visa, which I had no idea.” The applicant also told the Tribunal, in substance, that he knew he did not have the requisite skills to apply for the visa because “I don’t have any skill or anything. I haven’t finished my study.” He also told the Tribunal that after receiving this letter he tried to contact his agent by telephone without success and that when he went to the office he found that it was shut. He said he speculated that because of the agent’s caseload he thought he might have returned “to India for a bit.”
The applicant told the Tribunal that it was because of the ‘unexpected’ nature of the Department’s letter that he decided to contact the agent. I infer from this evidence that he regarded the decision to issue him with a Bridging Visa granting work rights pending a decision on the Subclass 485 visa application as what was ‘unexpected’. The applicant agreed in cross-examination that he knew at the time he received this letter that it conferred unlimited work rights upon him.
By his second affidavit, the applicant stated that upon receiving the Bridging Visa he “contacted S & S Migration about the document.” One might infer that the reason the applicant tried to contact, and speak with, his agent was because the Bridging Visa conferred work rights upon him. He also deposed that the agent told him he was eligible to make the application for that visa and that this gave him a right to study.
The applicant also deposed that during this conversation his agent told him that the processing of his application would take some time and that he would be sent a copy of the application by email. By his affidavit he stated that, as he did not receive any email, he contacted the agent by telephone “a few times” but there was no answer.
In this Court, the applicant agreed that when he received the ‘letter’ advising of the grant of a Bridging Visa that he noticed his agent had applied for a Subclass 485 visa and not a Student visa and so knew that they had applied for the wrong type of visa. The applicant agreed he also knew at that time that he was not eligible for a Subclass 485 visa, adding that he knew he had not yet finished his study. He agreed that upon receiving that ‘letter’ he had seen that it conferred unlimited work rights under the Bridging Visa and stated that it was then he tried to contact his agent by telephone and attend his office. He stated that during the phone call the agent had told him “You can continue study. It’s all right” and that he had replied “I told him, you know, ‘This is not the right visa. Like, I haven’t finished . . . completed” to which, as he claimed, the agent responded “And then he said, like, ‘You can come and see me and next time and then I will just fix it. You can still continue, but you have been granted a visa. You can continue study.” He confirmed this evidence in further cross-examination adding that the agent had also said he would arrange to get the CoE documents for him. This evidence was at odds with any version of his dealings with the agent that the applicant had given to that point, whether before the Tribunal, in either of his affidavits or in this Court.
The applicant’s further evidence was about 10 days after this phone call where he had attended the agent’s office to discover that it was closed. He also stated that he had called his agent, doing so on the basis that the office might have been shut on the day of his attendance, but after this he had attended another migration agent in Queen Street. He said that these events had occurred in about March or April 2011. The applicant’s attention was then drawn to the evidence in his second affidavit in which he stated that he had consulted the second agent who had checked his visa status and advised him that his application had been refused. He accepted that this occurred in April 2012. Confronted with his earlier evidence, the applicant advanced a further version of events stating “No. Even before that I went to the – the agent and the same, like, agent, like, on the same street, on the Queen Street, but I think it was a different guy. And he said, ‘You can’t do other than just waiting, so you have to wait, because that’s not the – your application has been refused.”
When pressed in relation to his evidence, the applicant agreed that he had not mentioned seeing another migration agent on Queen Street before April 2012 and responded “I went to actually several agents” and proceeded to provide a convoluted response that I have considered. Ultimately, he also agreed he had not suggested to the Tribunal that he had seen another agent in 2011. Offered an opportunity to clarify the position he stated “I didn’t tell the Court, but I had been – I went to see, like, agents after the – they provide me, like, a skilled migration visa.”
Taken to the transcript of his evidence before the Tribunal, where he stated that he had received a letter from the Department concerning his Bridging Visa and that he could work full-time, he conceded that some weeks after his visa application had been lodged he had received that letter. In the course of this cross-examination, the applicant was also taken to the Bridging visa email dated 10 February 2011 and agreed that, like the letter of which he had given evidence, this email also stated that the applicant had permission to work, including unlimited work and study rights, for the period that the Bridging Visa was in effect pending the determination of the Subclass 485 visa.
In this Court, the applicant agreed that after receiving advice of his Bridging Visa he had never contacted the Department to advise it he was not eligible for the visa or seek to withdraw his application. He cavilled at the suggestion the reason he had not done so was because he recognised that if he did he would not be eligible for any type of visa. He agreed the reason he did not contact the Department was that he decided the best thing to do would be to wait, on the off chance, the visa might be granted, stating that this was what he had decided to do from the start and that he would have his agent deal with the matter. Yet he denied that a reason why he had decided to wait and see what would happen was because he could take advantage of the unlimited work rights conferred by the Bridging Visa.
Insofar as it was suggested that the applicant had, in effect, laboured under a belief that his agent had told him he would rectify the matter, there was a dearth of cogent evidence to support any such belief.
From the whole of his evidence, I consider a fair and reasonable inference is that the applicant made a conscious decision not to inform the Department that he knew he had a Bridging Visa granting him work rights pending the determination of the application for a Subclass 485 visa, the criteria for which he knew he could not satisfy.
The applicant said that during the rest of 2011 he did not continue studying his business management course. He explained that he did not continue studying because he did not hold a student visa and then suggested that “And I went to the agent and he said, like, ‘you can’t do anything other than just waiting for your application result.” This statement was inconsistent with his evidence that he had attended on the agent S & S Migration on only two occasions. When asked for further detail he agreed that he had in fact been referring to a consultation with another agent whom he had seen after he had found out about the delegate’s decision to refuse the visa application in 2012.
The applicant also stated that he did not continue studying after the expiry of his student visa in March 2011 as he did not receive a CoE, adding that he needed a student grant for the CoE so that he could attend the college. It was implicit that the applicant knew he had no such grant. Contextually, it will be recalled that part of the evidence given by the applicant was, in the desperate situation in which he found himself, it was his agent who had offered to arrange, via another person, to obtain a CoE for him. It will also be recalled that part of his evidence in this proceeding was that he held a CoE for the business management course (which was due to finish in early 2012), however, the existence or terms of this CoE was otherwise not proved by any evidence.
On 29 March 2011, a notice was lodged by the applicant which informed the Department of a change to his passport details. This notice, which had been completed by the applicant in his own hand, contained the same Hughesdale address as that contained in the visa application. Before the Tribunal, the applicant initially said that he had been asked by his agent to provide the Department with the change of address form but immediately changed this evidence and stated that he “went to a second agent” who was “on Queen Vic”. Asked to clarify his evidence he stated that he first went to the agent “on Queen Vic” after receiving the decision refusing the visa application (which did not occur until April 2012).
Rumours & other events
The applicant deposed that in mid-2011 he heard rumours about S & S Migration, adding that he could not contact them and heard that their offices were closed. The applicant’s evidence as to the precise sequence of events from this time forward was somewhat disjointed and unclear.
The applicant deposed that he then went to the offices of S & S Migration and observed it to be closed and that there was no contact telephone number or forwarding address. The applicant said that he heard these rumours from other students, and that when he went to an agent in Queen Street he was told that there were several other cases involving S & S Migration. He agreed he did not go to the Department, whether in mid-2011, or after being told by the Queen Street agent, or take any steps to withdraw his application or try to correct the information that had been provided to it. He restated that he decided to just wait for the results.
The applicant stated he received no further communications from the Department and said that he later realised that the email address as recorded by his agent in his visa application was false.
The applicant volunteered to the Tribunal that he did not appreciate it would take the Department a year to decide the visa application and, when asked whether he considered going directly to the Department to inform it that the Subclass 485 visa application had been made without instructions and to try and sort the matter out, he agreed that he did not do so but waited for the application to be processed. While it was submitted that the applicant had thought that waiting was the best thing to do, it is clear that from the time he had received his Bridging Visa, the applicant well knew he had been conferred unqualified working rights in Australia under a visa he knew he was not qualified to obtain.
Later, in giving his evidence to the Tribunal, when given a further opportunity to explain why he had not approached the Department upon receipt of the Bridging Visa, the applicant’s answer was that he didn’t have, and couldn’t get from the college, the CoE and so considered that:
And I can’t go to the migration directly and tell them, like, look, I need to study – at that time I was running out of my visa and I really, you know, like, needed my visa. And I didn’t know, like, it takes eight or nine months or something like that. I thought, like, they would review my application, and I would tell them what happened . . .
At one point in his evidence in this Court the applicant stated that after he could get no answer from his agent he went to another agent which, he thought, was in March and said that he did so as he was scared, unsure of what was going on with his application and did not know what was an appropriate next step to take. In further cross-examination the applicant denied receiving a letter saying that he had been granted a Bridging Visa. When his attention was drawn to the contrary statement in his second affidavit, his somewhat hesitant response was “that’s how I find out from the second agent that I – when I went to.” When his attention was next drawn to the following paragraph of his second affidavit (in which he had deposed that he had contacted S & S Migration after receiving a letter in relation to his Bridging Visa and been given advice by them upon the matter), his answer was non-responsive.
On the documentary evidence adduced on behalf of the Minister, I am satisfied the three persons having involvement in the conduct of the business of S & S Migration departed Australia on 29 October 2011.
Despite the various versions of events that he advanced with respect to his consultations with one or more migration agents in 2011-2012, the documentary evidence adduced on behalf of the Minister supports a conclusion that at no stage in the period from 19 January 2011 (before the visa application was made), and 8 May 2012 (after the delegate’s decision), that the applicant or any other person had accessed the VEVO system for any purpose, including to ascertain the applicant’s visa status.
Fraud investigations
An undated departmental record included in the Court book entitled Operation Danube – Skills assessment NOT verified stated that the Department had supplied the reference number TRA 10/283764032 to TRA and that this had been done “for checking as DIAC investigators found records linking this client’s current 485 application to a business called S and S Migration, who were (sic) been found to have lodged a number of applications to the Department containing false and misleading information.” Under the heading OUTCOME, it was recorded that on 20 December 2011, DIAC had been informed by TRA that it held no record of the applicant and that the reference TRA 10/283764032 was invalid. TRA advised the Department that it had no record of the applicant having undertaken or held a skills assessment.
On 17 February 2012, the Department sent an email to the applicant (being to the email address provided in the visa application), in which he was invited to comment upon aspects of his application for the visa. In the body of the letter, the applicant’s attention was drawn to the need to satisfy Public Interest Criterion (PIC) 4020, cl 4020(1) which required there to be no evidence before the Minister that the applicant had given, or caused to be given “a bogus document or information that is false or misleading in a material particular” in relation to, relevantly, the visa application. The letter advised the applicant that it was alleged his visa application had been “lodged with the assistance of a business known as S & S Migration, who have been found to have lodged applications to the Department containing false and misleading information. Whilst you have no agent declared in your application, the Department has identified a file with your personal details and the application reference numbers in the office of S & S Migration.”
The letter further informed the applicant of the information contained in the visa application that he had applied to TRA for an assessment of his skills for a nominated occupation and that a reference number TRA 10/283764032 had also been supplied. The Department advised the applicant the reference had been supplied to TRA for verification and that it had “no record of providing you this skills assessment. TRA also have no record of ever providing you with any skills assessment. It is therefore alleged that you provided false and misleading information to the Department in relation to your application for a 485 visa.”
The applicant was invited to comment within 28 days upon these matters including whether there might be any compelling or compassionate circumstances as might justify waiver of the PIC 4020 criteria. The applicant denied ever receiving this email.
Delegate’s decision – April 2012
As the Department did not receive a response from the applicant, on 24 April 2012 a decision was made to refuse the visa application. The applicant was notified of the decision by letter also dated 24 April 2012, which letter was addressed to the applicant at his Hughesdale address but apparently transmitted to the email address that had been supplied within the body of the visa application. There was no evidence that this letter had been transmitted by post.
In his evidence to this Court, the applicant stated that he found out about the delegate’s decision from the Queen Street agent whom he had consulted on 8 May 2012. The applicant agreed that on the following date he contacted the Department, telling them that S & S Migration had applied for the wrong type of visa.
The delegate’s Decisional Record, also dated 24 April 2012, noted much of the history set out above and contained a finding that by reason of the information provided in the visa application respecting his skills assessment by TRA (including the reference TRA 10/283764032), the applicant had “provided false and misleading information” in a manner which engaged, and so demonstrated the applicant’s failure to satisfy, the public interest criterion in, PIC 4020(1)(a).
The Decisional Record drew attention to s 98 of the Act and stated that whilst “S and S Migration are not declared as agents in relation to your 485 application, given records of this application were found on their premises I consider that they assisted you in the lodgement of this application. The operation of s 98, . . . , is that you are still legally taken to have completed the form even if it is completed on your behalf.”
The Decisional Record noted that the applicant had not responded to the invitation to respond to the adverse information to which his attention had been drawn or to demonstrate compassionate or compelling reasons why the public interest criterion PIC 4020 might be waived.
For each of those reasons, the delegate refused the visa application.
Consultation with new agent
Thereafter, the applicant approached another migration agent whose name he could not recall but who practised in ‘Queen Street’. Before the Tribunal, the applicant stated that he believed that this agent was still practising (no evidence was called from this agent). He told the Tribunal that he first consulted this agent after receiving the ‘refusal’ decision.
An entry from the Department’s ICSE system on 9 May 2012 records the applicant had contacted the Department on that date, advising “he got to know that a decision has been made but did not receive any email. He advised that he is unable to contact his agent. Advised him that there is no agent used with this application” and that the applicant was informed of the need to provide a change of email address.
Asked what advice he could recall receiving, in evidence to the Tribunal he stated “I said they are refusing the case and I need to go for, you know, like I need to apply for a visa, student visa. And he said ‘You need to pay the money first’” which he said he paid (together with the fees for the visa application). The applicant also told the Tribunal that he was advised by this agent that he may need to re-apply for a visa. In further evidence the applicant told the Tribunal that this agent had not had any dealings with the Tribunal in relation to his application for merits review. If any further Student visa application had been applied for, whether by a new agent or the applicant, it was not proved by any evidence.
By his second affidavit, the applicant deposed that this agent informed him that many other visa applicants were facing a similar situation arising from the conduct of S & S Migration. He stated that this agent checked the applicant’s visa status and informed him that his visa application had been refused. The applicant deposed that this agent also advised him to lodge an application for review to the Tribunal. He stated, “I did not have a copy of the decision but he advised [me] to do it even without it to be within time and to hold onto my visa.” It was conceded there was no direct evidence of any advice that had been provided.
At the time of making his second affidavit the applicant had been served with the first of two affidavits made by a Departmental officer to which was exhibited a series of records retrieved from its ICSE database, and which provided a detailed summary of the applicant’s visa history. This affidavit provided a summary of, and exhibited screenshots taken, from, the Department’s VEVO system, being a system from which persons could ascertain the status from time to time of, relevantly, a visa application. A second affidavit made by the same Departmental officer exhibited a series of further records and proved the identity of the persons who had accessed the VEVO system. Relatedly, the evidence on behalf of the Minister establish that the visa holder could access the VEVO system by using a Transaction Reference Number (TRN) whereas said parties, such as employers, could access the system by other means. The only evidence of the applicant having been supplied with the TRN for his Bridging Visa was the email that had been transmitted on 10 February 2011. Again, while it is unnecessary to decide whether or not the applicant received that email, on his own evidence he had accessed the VEVO system on multiple occasions.
In summary, the evidence showed that the status of the applicant’s visa application had been checked via the VEVO system on no less than 69 occasions in the period 25 December 2008 – 17 April 2020.
The applicant’s second affidavit sought to address these checks on the VEVO system in a number of ways:
a)first, the applicant deposed that he had arrived in Australia in February 2009 and did not know how to access any information about his visa. He stated that any access “before those dates would have been by my migration agent for any purposes he may have needed.” I infer that this evidence sought to address the first six of the series of 69 visa status checks made to the Department’s VEVO system. Each of those visa checks to the VEVO system had occurred in the period 25 December 2008 – 6 January 2009 and so post-dated the grant of the applicant’s student visa on 16 December 2008. Why it would have been necessary for the applicant’s Indian migration agent to have sought access to the VEVO system after the grant of the visa was neither explored nor explained;
b)secondly, three further visa checks to the VEVO system were made in the period 8-15 May 2012. The applicant deposed that the access to that system on those dates had been undertaken “by the migration agent to whom I went for assistance to verify my status. He did it to check the status of my application with the Department and then after lodging the review to the Tribunal.”
c)thirdly, the remaining 60 visa checks to the VEVO system occurred in the period 1 September 2015 – 17 April 2020. By his second affidavit the applicant deposed that these checks were either made by him: (i) in the case of a check on 23 October 2013, so as to verify his visa status at a time when his application was pending before the Tribunal; (ii) after the dismissal of this proceeding on 19 August 2015 by reason of his anxiety and concern to verify his visa status. Further, he stated that some of these visa checks may have been made by his employers so as to ascertain “my status the eligibility to work from time to time.”
Otherwise, the applicant’s affidavits and other evidence did not address the purely coincidental nature of the circumstance that he consulted another migration agent at the very time of the delegate’s decision to refuse his visa application.
On the Minister’s documentary evidence I am satisfied that in the period 9 February 2011 – 4 June 2014 there was only one check by a migration agent upon the applicant’s visa status via the VEVO system (being a check made on 8 May 2012), and that such other checks were made by third parties, being non-migration agent entities (e.g. xxxx, xxxx, and the xxxx).
While the letter was addressed to the applicant at his xxxx address, within the body of the letter it was clearly stated that the Transmission Method was “Letter sent to email: xx@xx”, this being the email address set out in the visa application. It was also the email address used on 17 February 2012 by the Department to advise the applicant of the adverse information that had been identified and affording him an opportunity to comment upon it. As noted, the applicant denied that this was an email address that he had ever used or that he had received the Department’s email dated 17 February 2012.
While no affirmative finding can be made as to the circumstances in which the applicant received the delegate’s Decisional Record, one might infer that, as he had agreed to pay another migration agent for advice in circumstances where that agent had accessed the VEVO system and ascertained that the visa application had been refused, it would not have been a difficult matter for the agent to have downloaded and printed a copy of the Decisional Record for the purposes of giving advice. It is not necessary to determine whether this occurred.
Before the Tribunal, when asked to explain how he had obtained a copy of the delegate’s Decisional Record, the applicant said that it had been sent to his residential address.
By his second affidavit, the applicant deposed that “I made the application to the Tribunal on 15 May 2012 without the decision.” While it may not be inconsistent with that evidence, it appears that at some point the applicant did provide the Tribunal with a copy of the delegate’s decisional record: see reasons of Tribunal, [7].
How, from where and when the Decisional Record had been obtained by the applicant and given to the Tribunal was not apparent.
At all events, in this Court the applicant said the advice he received from his new Queen Street agent was that there was nothing to be done about the fact that S & S Migration had applied for the wrong type of visa and he should instead wait for the results of his application to the Tribunal. He then suggested that he had been told by the Queen Street agent to apply to the Tribunal for a review of the delegate decision, adding “I just did whatever he told me. He said, like, ‘This is the only thing you can do.’ And he asked me for his fees as well as I paid him.” He said that the agent told him he would just have to wait and agreed that at this time he was still working at xxxx and continued to do so until he commenced driving for a ride share services business (which he continues to do). He agreed that he knew S & S Migration had provided incorrect information to the Department and further agreed that he decided to do nothing until the Department had made a decision.
When it was put to him that he could have gone to the Department and withdrawn his application, the applicant responded that this was not what he had been told, maintaining the agent had advised him “You can just wait and then once the Tribunal results, and then you can take these further steps. And I won’t be acting on your behalf and this is the only thing you can do.” Why the agent had said he would not act for the applicant was not explained.
At the conclusion of his cross-examination, when a series of propositions were being put to him, the applicant agreed upon the following matters: (a) he knew in February 2011 that he urgently needed a new visa or a visa extension; (b) he was desperate to get some sort of visa so that he could continue studying in Australia; (c) the only documents he provided to his agent were a copy of his passport and academic record; (d) he maintained his agent told him that he would sort out everything and put all of the information in a visa application; (e) he did not know where his agent would get the relevant information from; (f) he never asked to see the information that had been put in his visa application; (g) he never checked whether the information in his application was correct; (h) in a matter of weeks after his visa application had been lodged, he had received a ‘letter’ stating that he had been granted a Bridging Visa in respect of an application for the wrong type of visa; (i) he knew that the ‘letter’ conferred on him full work rights in Australia; (j) he knew at that stage that the information provided to the Department was incorrect; (k) he took no steps to inform the Department that false information had been provided in his visa application; (l) he had instead consulted “agents, because that time I thought that’s the right thing to do.” Despite it being put that he had not at that time contacted any agent, other than S & S Migration, the applicant maintained that he had done so; (n) he eschewed responsibility for having decided to wait and see what would happen with the visa application and attributed the decision to the advice of the ‘agents’ he consulted “It’s something that you have to wait for.” Contextually, it will be recalled that the agent who had apparently proffered this advice had also told the applicant he would not act for him.
In a similar vein, the applicant sought to dilute the significance of seeking to take advantage of the unlimited work rights conferred by the Bridging Visa, doing so on the basis that “I mean, I wasn’t working full-time [or] anything. I was just waiting to [get] the results.”
The applicant also denied making a deliberate decision to remain silent about the conduct of his agent or that he saw this is the best way to extend the time that he could remain in Australia, advancing yet a further version of events “I didn’t sit quietly and do nothing. I did went to – after 2012, like, a lot of several agents and the guy in Carnegie as well, he said someone who is charging X amount of money, a high – really high amount of money. It was way too much and he said that he had dealt with so many cases and he will definitely get my student visa back. Until I meet other agents and he said, ‘You just have to wait.’
Notwithstanding that such disclosures were made for the first time at the hearing of this proceeding (but not previously, including before the Tribunal), I have considered whether, when giving evidence in cross-examination, the applicant had decided, in effect, to advance a more precise narrative of the events that had occurred and which he perceived would be in his best interests in seeking relief at the final hearing.
The applicant adhered to the position that he had seen registered migration agents in 2011, other than S & S Migration. Contextually, the belated and progressive disclosures of having seen not one but several migration agents in 2011 from the time when he knew he had been granted a Bridging Visa (and which he knew he was not qualified for), was somewhat consistent with his discovery that S & S Migration had shut its offices. To have consulted migration agents was also consistent with his practice of having engaged such agents both in India and Australia for such assistance. The disclosure of having engaged or at least consulted other agents was also consistent with his recognition that he had applied for a visa which he knew he was not entitled to hold and with his concern as to how he might extract himself from what he evidently regarded as a dilemma which had arisen in his desperate circumstances. These various factors may well have been of increased significance for the applicant in light of his disinclination to deal on his own with the Department or make relevant disclosures to it.
I have concluded that it is more probable the applicant did not consult any migration agents in 2011, other than S & S Migration, including by reason of the absence of any visa status checks on the VEVO system in the period 20 January 2009 to 7 May 2012. In this respect, there was some force in the submission made on behalf of the Minister that, had the applicant consulted a migration agent during that period, one might have expected to see that a visa status check had been made via the VEVO system (as only occurred in May 2012).
Application to Tribunal – May 2012
On 15 May 2012, the applicant lodged an application with the Tribunal for a review of the delegate’s decision. The application, which was lodged by the applicant on his own behalf, stated the Tribunal might communicate with him at a new address in xxxx, and provided an email address: xx@xx.
On 17 May 2012, the Tribunal acknowledged the application.
A series of email and other departmental communications during October 2012 were contained in the Court book and variously entitled Operation Danube or National Investigations, Risk, Fraud and Integrity Division which addressed the subject of a manual verification of 1,170 records that had been provided to TRA in relation to Operation Danube. The results of that verification process were set out.
A series of connected emails are contained in the Court book:
a)the first, transmitted in the period 28 March – 30 April 2014, between the Tribunal and the legal division of the Department, entitled Request for Information – Many Cases Relating to S & S Migration, concern a request for information so as to support the Tribunal in the discharge of its function of review and noted that the Tribunal was currently conducting a review of a number of cases refused under PIC 402 for alleged connection with S & S Migration and stated, in part:
The Tribunal requests that you provide – separately for each case – a copy of the evidence that the delegate relied on to conclude that the applicant did not satisfy PIC 4020 – for instance (a) confirmation from TRA*that the applicant does not have the skills assessment referred to in the visa application and (b) material obtained from the premises of S & S Migration linking the applicant to that agent.
In the ensuing emails, after follow-up with the Department’s Legal Division, the Tribunal was informed that an urgent request for a status update had been made to the Program Area.
b)the second series of two emails, transmitted on 7 – 8 July 2014, comprised an email from the Department’s Legal Division to the Tribunal extracting advice from the Program Area (and attachments), including certain information from the Assistant Director, National Criminal Investigations, stating, in part:
. . . , none of the related warrant material was ever provided to this office and so was never available to the decision-makers for the cases covered by the MRT information request
A final email dated 8 July 2014 appears to be an internal email within the Tribunal’s Skilled Team Inbox indicating as to the current Flag Status, that the request had been “Completed”.
On 15 April 2014, the Tribunal wrote to the applicant inviting him to comment or respond to information that was considered would be the reason, or a part of the reason, for affirming the decision under review. The information to which the letter drew attention was twofold: (1) TRA had no record of providing the applicant with the skills assessment referred to in the visa application; (2) documents or information related to the applicant had been located at the office of S & S Migration “which entity has been found to have lodged applications to the Department that contained false or misleading information.”
In a letter dated 13 May 2014 to the Tribunal, the applicant responded to the invitation to address the adverse information above and stated that as far as he was concerned, he had never applied for a Graduate Skilled visa and that there had been a mistake. The applicant further stated that some three years earlier he had approached a migration agent, S & S Migration, asking them to apply to “extend my student visa.” The applicant stated that he had supplied S & S Migration with “all the requested documents and he extorted a lot of money from me and me being desperate to stay in Australia I paid him all the money he asked for . . .”
The applicant’s response then stated:[1]
He said I would be given the visa extension in a couple of weeks providing me misleading information saying he had applied for a student visa instead applied for TRA (trade recognition Australia. He did it all without my consent. I found out a couple of months later that he took money from a lot of other students and been running a fraudulent scam and deceiving everybody. He ruined a lot of student’s life including one of my own. Just because of him I have to go through MRT process, again, costing me a lot of money.
The applicant concluded by asking that his case be looked into carefully and requested a further student visa so that he could study for a bright future, help the Australian economy and make it a better country than it already was, thanking the Tribunal in advance for its precious time.
[1] Errors in original.
Tribunal hearing – 26 March 2015
On 12 February 2015, the Tribunal invited the applicant to attend a hearing scheduled for 26 March 2015 where he could give evidence and present arguments relating to the issues arising in his case. He did so.
A transcript of the Tribunal’s hearing, which was exhibited to an affidavit made on 29 April 2020, was tendered in this proceeding. During his cross-examination in this proceeding, the applicant was questioned upon the evidence he had given to the Tribunal. Matters from the transcript of particular relevance to the present proceeding have been described in the findings above.
Tribunal’s decision
On 26 March 2015, the Tribunal made a decision affirming the delegate’s decision not to grant his application for a Subclass 485 visa. A statement of reasons for that decision were provided (Reasons) and transmitted to the applicant on 31 March 2015.
The Tribunal recognised that the delegate had found the applicant did not meet the public interest criterion, PIC 4020, including by reason of the provision of false or misleading information in his visa application respecting the purported skills assessment by TRA and the provision of a TRA reference which was not genuine: [2]. The Tribunal observed that the applicant had responded to the invitation to address the subject adverse information set out above including by his letter (which was replicated in full) and in the course of giving oral evidence: [3]-[10].
The Tribunal found, notwithstanding the allegations of fraud, that the applicant had made a valid visa application. It also found that the applicant did not satisfy the criteria for a Subclass 485 visa in circumstances where his skills had not been assessed, and he did not meet the requirements of PIC 4020: Migration Regulations 1994 (Cth), Sch 2, cls 485.221, 485.224: [8], [28]-[41], [46]. The Tribunal concluded that the requirements of PIC 4020 could not be waived: [42]-[45].
In assessing the validity of the visa application, the Tribunal paid close regard to the applicant’s written response to the invitation to address the adverse information which had been put to him and to his oral evidence upon the topic: [9]-[12]. It considered that the applicant’s oral evidence was consistent with his written response including that: (a) he had gone to S & S Migration for the specific purpose of applying for a further student visa; (b) he had provided the agent with his passport and information concerning those units which he had already completed in a business management course; (c) he had explained to the agent that he did not have all of the documents required for his visa application, including a CoE in any course; (d) the agent responded that he could organise a CoE on the applicant’s behalf “through a contact”; (e) pursuant to the agent’s request, the applicant had paid him $4,000 in cash for his services: [10].
The Tribunal examined the applicable legislation, regulations and several authorities in concluding that a valid visa application had been made: [13]-[27]. It paid particular regard to the principles respecting the effect of fraud upon a visa application and how they were to be applied in the context of the legislative framework provided by the Act. Of some particular significance in the Tribunal’s evaluation of the issue, attention was paid to circumstances in which a visa applicant had simply engaged an agent and been none “too particular [about] how he got it” and identified a number of authorities upon this issue.
The Tribunal found that the applicant had engaged his agent and thereafter left the matter in his hands and had not been “particularly concerned as to how the agent went about procuring the visa” [18]-[22].
It was on these bases the Tribunal affirmed the delegate’s decision and concluded, relevantly, that the application was valid: [26 will].
Although it was not the subject of particular submissions before me, the Tribunal made no finding whether the applicant had been an innocent victim of the fraud of S & S Migration.
Upon receiving the Tribunal’s decision, the applicant returned to the agent practising in Queen Street whom he had initially consulted after receipt of the delegate’s decision and was told that he needed to pay some $3000 for legal assistance. The applicant decided not to retain this agent on the basis that he considered the agent had done nothing to help.
Judicial review – validity of visa application
The procedural history of the proceeding has been set out above.
The ground of review as advanced in the amended application reads:[2]
[2] Errors in numbering of (vi) as per the original. The underlining of amendments has been omitted.
The decision of the Tribunal was made without jurisdiction or is affected by an error of jurisdiction in that the Tribunal erred by finding that the Applicant had made a valid visa application.
Particulars
(i) The Applicant’s migration agent at S & S Migration (the “Agent”) engaged in fraudulent conduct when lodging the visa application;
(ii)At the time of the visa application, the Applicant had not obtained a skills assessment from Trades Recognition Australia (TRA);
(iii)Fraudulently and without knowledge or authority of the Applicant, the migration agent provided false information in the visa application, namely that the Applicant did have such an assessment;
(iv)Fraudulently and without the knowledge or authority of the Applicant, the Agent also provided a false TRA number for a purportedly successful skills assessment;
(v)The Agent was registered to give immigration advice under the Migration Act and Regulations. The Agent was obliged to give proper advice and act in accordance with the Applicant’s instructions.
(vi)The conduct of the Agent amounted to fraud committed against the Applicant and against the First Respondent;
(vi)The Applicant did not authorise or otherwise condone the conduct this part of the migration agent;
(vii)The Applicant was not complicit in the fraudulent activity of the Agent nor indifferent to the use of unlawful or dishonest means; and
(viii)The Application was not a valid application.
As that amended ground indicates, the substantive basis upon which the applicant sought judicial review was that the visa application lodged on his behalf by his agent was not a valid visa application by reason that, in completing and lodging the application, the agent had not acted in accordance with his instructions and further, had furnished false information in the body of that application. Although the particulars to the amended application did not address the issue directly, it has been plain from the outset, including by reason of the applicant’s first affidavit, that the alleged failure to act upon instructions was based upon the applicant’s contention that he had instructed the agent to lodge an application for a further student visa and that the agent, contrary to those instructions, had lodged an application for a Subclass 485 visa. Further, although it was not included in the particulars above, it is equally plain that the agent had been retained for reward.
For the purposes of ss 45-46, the term ‘application’ is used in the wide sense which includes the entire application process: Maharjan, [108]-[111]. It follows that throughout that process, conduct, which may include provision of the form itself, documents, submissions or other information, may be properly characterised as fraudulent. By extension, where a fraud based challenge is made on judicial review, the validity of the entire application process may be subject to scrutiny. Again, it would follow that the applicant’s burden of proof may extend to satisfying the Court of the absence of reckless indifference in particular aspects of that application process. On the principles stated in above, what may be of decisive significance is the legal character of a particular state of affairs upon consideration of all of the evidence: cf Lu and SZFDE, [50].
In contrast with some earlier S & S Migration appeals, in the present case the applicant did not have a poor command of English (spoken, written or when reading). Nor was he wholly lacking in familiarity with the Australian migration system: cf Katragadda, [67]. To the contrary, he had (with the assistance of a migration agent in India), secured his original Student visa. To do so he had already obtained one CoE. Once in Australia he later tried to obtain others from several sources.
By dent of ss 44-45 of the Act, the applicant was obliged to apply for a visa of a particular class. He wanted a Student, not a Subclass 485, visa.
The applicant was acutely aware of the date upon which his visa expired. He was admittedly desperate to obtain a new visa. He well understood the need for a current CoE. He had attempted by a number of means to obtain such a CoE. He had been wholly unsuccessful in doing so. It was only at this point he contacted S & S Migration, doing so, either upon referral from another student or because of his own awareness of that migration service. From his initial meeting, he understood that a most substantial fee (of $4,000) was payable for the service he sought. As his letter dated 13 May 2014 to the Tribunal stated, the applicant described the agent as having “extorted a lot of money from me and me being desperate to stay in Australia I paid him all the money he asked for . . .” I consider that a fair and reasonable inference in all the circumstances is that the applicant was then prepared to pay an extortionate fee in order that his agent, using the resources of “a contact”, would obtain a CoE. This was very different to a mere conferral of general authority.
I have examined above in some detail the sequence of events which occurred in this case. Almost immediately upon the lodgement of the visa application on 9 February 2011, the applicant received a ‘letter’ from the Department advising of the grant of a Bridging Visa and which, as he immediately recognised, conferred unlimited work rights on him in Australia pending the determination of the application for a Subclass 485 visa. The applicant’s evidence was clear that he knew he had not instructed his agent to apply for that visa and that he was not qualified to obtain it. His evidence as to the attempts to rectify the matter, whether by speaking with, or attempting to consult, S & S Migration, or one or more other agents or the Department was less then cogent. So too was his evidence that he had acted on advice to simply “wait and see”. The absence of due diligence is readily apparent. At the least, the applicant’s conduct was redolent of acquiescence in the fraud which he had quickly recognised, including by reason of the immediate and lasting advantages that inured to his benefit for so long as it was not disclosed. As his evidence confirms he has retained those advantages. Contextually, I note that his belated evidence to having consulted one or more agents (other than S & S Migration) has been rejected.
I am not persuaded the applicant has discharged his burden of proof of satisfying the Court that he was not recklessly indifferent to whether his agent used unlawful or dishonest means to secure his object of obtaining a visa. Upon this finding, the applicant cannot rely upon the fraud of his agent as negating the validity of the visa application. Stated in other terms, the circumstances of the fraud which are sought to be relied upon here are excluded from the principles which might otherwise vitiate the validity of the visa application and thus unravel its consideration.
A fraud on the decision-making process
Particular care is required not to conflate the question whether a third party’s fraud has disabled or stultified administrative decision-making with the distinct question whether an applicant has, in the requisite sense, been complicit or indifferent to such fraudulent conduct. As is apparent, in this case also the relevant stultification “relates to the prescriptive and specific requirements in the Act concerning consideration of valid visa applications, and non-consideration of visa applications which are not valid”: Maharajan, [54].
As concerns the second question as to how, if at all, a proven fraud affected the processes by which the visa application was to be considered, it cannot be said that in this case the fraud of S & S Migration in any way stultified the merits review by the Tribunal for by this stage the fraud had been well and truly identified. Any effect upon the processes of administrative decision-making in the sense of the fraud affecting the discharge of “the decision-maker’s statutory functions and obligations, or adversely affecting, disabling stultifying the processes which the Act prescribes” could only have affected the anterior administrative processes which preceded consideration by the Tribunal.
Availability of relief
Original jurisdiction is conferred on this Court, in terms referrable to s 75(v) of the Constitution, to grant relief in relation to ‘migration decisions’: Act, ss 5, 476. Such jurisdiction includes the grant of mandamus and prohibition. Further, certiorari is available to quash a decision and, in aid of such relief, the Court has power to direct the issue of writs and to make declarations of right: Federal Circuit Court of Australia Act 1999 (FCCA), ss 15-16. However, this Court is denied jurisdiction to undertake judicial review of a primary decision, including a decision made by the Minister or a delegate to grant or refuse a visa: Act, s 476(2). The absence of jurisdiction to do so magnifies rather than dilutes the potential importance of the availability of declaratory relief.
In cases where the consequence of a fraud is that the visa application is invalid, the relief which the visa applicant will be more concerned to secure is a declaration as to such invalidity. The substantive object of securing such relief is to negate the operative effect of ss 48 or 48A of the Act which would otherwise prevent a visa applicant from making a further application for any, or certain, other types of visas.
Utility
In a public law proceeding, the only practical remedy which may be of any utility to the applicant is that the decision be quashed in order that an untainted administrative hearing can occur: cf Plaintiff M61/2010E v Commonwealth (2010) 234 CLR 319, [103]; SZQBN v Minister for Immigration and Citizenship (2013) 213 FCR 297, [83]; Singh (2016) 247 FCR 554, [48]-[50]; Kaur, [57(b)]; Katragadda, [48]. Stated in other terms, in an appropriate case, relief in the nature of certiorari may be granted where the applicant is also shown to be a victim of the fraud.
Where the operative effect of the fraud is such as to render a visa application invalid, there is no ‘application’ before the Minister capable of being considered and, in turn, no ‘application’ which can be the subject of a merits review. As the Court has no jurisdiction to grant relief in respect of a primary decision, there may be utility in a judicial determination, resulting in declaratory relief, upon the validity of a visa application. The only effective relief will be a declaration as to the invalidity of the visa application itself: Singh [39]-[40]. Conceptually, a valid visa application does not include an application based on fraudulent documents where the visa applicant is neither complicit in the fraud nor indifferent to the use of unlawful or dishonest means: Maharjan, [105] citing Singh and Gill. As noted, the concept of ‘visa application’ embraces the totality of the documents and information that are supplied to the point where the visa application has been considered, withdrawn, granted or refused.
Where the only effective remedy is a declaration as to the validity of a visa application, the particular utility of such relief bears a dual character. First, it recognises the real personal interest of the applicant and the Minister. Secondly, it recognises the very real public interest in the due and lawful administration of the Act: Maharjan, [34], citing Singh, [51]. Applied here, declaratory relief as to the validity of an application that is alleged to be tainted by fraud would be the only effective relief available to the applicant.
Jurisdictional fact
In Singh at [52], a Full Court stated that whether it was ultimately found to be appropriate to grant or refuse declaratory relief would depend upon a range of matters including whether: (1) the evidence justifies the making of relevant and necessary findings of fact relating to such matters as the validity of the visa application; (2) whether the visa applicant has been the victim of fraud, and; (3) whether that fraud has also stultified some relevant aspect of the decision-making process in relation to the consideration of the visa application. Accordingly, “it will be necessary to find that the agent’s conduct is not only a fraud on the visa applicant but also must also stultify one or more aspects of the relevant statutory decision-making processes under the Migration Act.”
More recently, in Kaur, a Full Court reaffirmed that the factors which constitute a pre-condition to the grant of declaratory relief in relation to the validity of a visa application include (and thus depend upon findings) that the agent’s conduct was a fraud upon the visa applicant and further that such conduct stultified one or more aspects of the relevant statutory decision-making processes. In restating this principle the Full Court relied upon SZFDE, [33]; Singh, [52]; Maharjan, [78], [90], 102]-[103].
Consequently, the determination upon the validity of the visa application as a jurisdictional fact is essential to the grant of any declaratory relief.
As applied here, the availability of declaratory relief respecting the validity of the visa application depends on the applicant proving that he was not involved, in a relevant sense, in the fraud of S & S Migration: Kaur, [53] and cases cited; Katragadda, [54].
Upon the principles considered, and for the reasons, above the applicant has not discharged the burden required to prove that he had not been recklessly indifferent to the fraud of his agent. The applicant’s evidence does not persuade me that it is inappropriate to fix him with the consequences of his agent’s fraud. As a consequence, he cannot negate the validity of the visa application. For the same reason, the circumstances of the fraud which are sought to be relied upon here are excluded from the principles which might otherwise vitiate the validity of the visa application. The objective jurisdictional fact, the existence of which was essential to the exercise of power by the delegate to consider (and then refuse) his visa application is established. Conversely, the jurisdictional fact upon which the applicant depended – invalidity – is not made out and so an entitlement to declaratory relief must fail.
Residual discretion
If contrary, to my conclusions it should have been found the applicant had discharged the onus of proof and that he was entitled to rely upon the agent’s fraud as vitiating his application, it is necessary to address the question of residual discretion in granting or withholding relief.
The grant or withholding of declaratory relief turns upon the exercise of a statutory discretion: FCCA, s 16
The threshold for the grant of any relief on judicial review is not merely that the decision-making process was affected by error – the error must be jurisdictional in nature: Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355, [34]-[36], [92]-[93]. After jurisdictional error has been demonstrated, a question arises whether the court should deny relief in the exercise of its residual discretion: Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421, [85] (Nettle and Gordon JJ). One sense in which the expression “residual discretion” is used is to denote cases in which, notwithstanding the presence of jurisdictional error, the Court will refuse relief: CNY v Minister for Immigration and Border Protection [2019] HCA 50, [128] (Edelman J). His Honour identified that the circumstances which might attract the exercise of a residual discretion include unwarrantable delay, acquiescence, waiver, bad faith, where “the illegality in issue had subsequently been legitimised” and where there would be no utility in a new hearing. Edelman J also cited a long-standing series of authorities which confirm the residual discretion to refuse relief in cases of bad faith.
If invalidity be established, “whether or not a Court exercising judicial review jurisdiction determines ultimately to grant declaratory relief will depend upon a range of matters”: Singh, [52]; Maharjan, [35], [65]-[67]. Relevantly, it is now “quite clear . . . that declaratory relief . . . is available in public law to an applicant contends that he or she has been the (innocent) victim of such a fraud, and is able to show that third-party fraud stultified a process or processes under the Migration Act”: Maharjan, [78], [90], [96]-[99]. The Full Court stated this principle in somewhat broad terms as extending to cases where the fraudulent conduct had stultified a process or processes under the Act. The Full Court was undoubtedly conscious that stultification could affect the process of consideration of a visa application from the point of lodgement of an application form, or the obtaining of additional information, including in the course of interview or when responding to an invitation to address adverse information.
In the grant or refusal of relief, the Court is also entitled to consider other conduct occurring “in the course of the administrative proceeding or in other relevant circumstances”: Re: Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82, [53]. Upon that principle, the exercise of the residual discretion is not confined by matters occurring during the period of consideration and only up to the date of the grant of the visa.
Bad faith
The scope for refusing relief on the ground of bad faith extends to conduct “on the part of the applicant, either in the transaction out of which the duty to be enforced arises or toward the court to which the application is made”: R v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust) Ltd (1949) 78 CLR 389, 400. Again, in Ex parte Aala (2000) 2004 CLR 82, [55]-[61] Gaudron and Gummow JJ expressed no doubt of the caution to be exercised in refusing constitutional relief where, otherwise, no other relief might be available. Their Honours endorsed the non-exhaustive list of factors given in Ozone Theatres of circumstances which might attract the refusal of relief and gave qualified support for the proposition that an applicant might be debarred from relief where:
. . . he has acquiesced in the invalidity or has waived it. If he does not come with due diligence and ask for it to be set aside, he may be sent away with nothing. If his conduct has been disgraceful and he has in fact suffered no injustice, he may be refused relief.
Citing F Hoffman La Roche & Co AG v Secretary of State for Trade and Industry [1975] AC 295, 320; aff’d [1975] AC 329. However, the question of relief in Ex parte Aala turned on utility and delay: [80]-[84]. Bad faith was not in issue.
In the sphere of migration law, discretionary relief may be refused where there has been bad faith which has a sufficient connection to the transaction in respect of which relief is sought; may be a discretionary bar to relief: SZQBN v Minister for Immigration and Citizenship (2013) 213 FCR 297, [46]-[53] (Jacobson, Edmonds and Logan JJ). There, the Full Court endorsed the view that bad faith which may justify the exercise of discretion to refuse relief would be “characteristically constituted by significant dishonesty on which an applicant relies to subvert the proper processes of, and secure and advantageous outcome in, the relevant transaction or Court proceeding”: citing MZYSU vMinister for Immigration and Citizenship (2012) 132 ALD 341, [111]. The Full Court emphasised that there should be an immediate and necessary relation between the alleged misconduct and the relief claimed.
So too, bad faith in connection with the administrative process may ground the discretionary refusal of relief. In NAWZ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 199, [14], a Full Court considered it contrary to the public interest that the applicant should be granted relief in light of his lack of candour both in the course of the administrative process and before the Court. This reasoning was endorsed in SZBIV v Minister for Immigration and Citizenship [2006] FCA 56, [32] (Branson J). Similarly, in Lu, the Court focussed upon whether the visa applicant’s complicity had been an effective cause of a fraud upon the administrative processes: (2010) 189 FCR 525, [44]. Notably, in Lu, although the Full Court identified the twofold frauds which were in train in that application, it concluded that relief would also have been refused on discretionary grounds: [45].
Although a range of considerations may be advanced as barring a favourable exercise of discretion to grant relief on judicial review notably, where futility is relied upon, there is some support for the view that the onus of establishing futility – that is, that there would be no material difference in outcome on remitter – lies on the executive: cfABT17 v Minister for Immigration and Border Protection (2020) 94 ALJR 928 at 936, [72], [95], [109]-[110] (Nettle and Gordon JJ). Notwithstanding that this view does not prevail, it remains clear that the Court must “provide a realistic and appropriate answer to questions about the legality of exercises of executive power.” ABT17, [110].
I have concluded that the applicant should not be permitted to rely upon his agent’s fraud as vitiating his application. As in the appeal of Lu, considerations akin to a lack of due diligence, misconduct and bad faith are in issue. Upon the findings I have made there was force in the submission that the applicant, with clear awareness that he had secured a Bridging Visa to which he had no entitlement, had consciously remained silent rather than addressing the receipt of such visa. Such silence is to be evaluated in the context of ss 104-105 the Act.
Allied to those considerations are questions of inutility in circumstances where it is clear that on the eve of the expiry of his existing visa, the applicant had not, and had no realistic prospect of obtaining a CoE. For the reasons given above, the applicant well knew that he did not have and could not obtain that CoE. Upon a realistic appraisal of all of the circumstances, there is every reason to consider that if a Student visa application had been made which had otherwise been valid in all respects, the decision-maker would have been bound to refuse it for his failure to satisfy an essential criterion; namely, a current CoE: cf SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190, [29], [32].
Had jurisdictional error been made out, I would not have been satisfied that the Court should exercise its discretion in favour of the grant of declaratory relief. On the whole of the evidence, I am clear that, armed with the certain knowledge that he had received the Bridging Visa which conferred unlimited work rights, coupled with his decision not to correct the errors which he had recognised immediately, the applicant thereby sought to retain the advantage which he had secured in deciding to simply “wait and see” until the administrative process and any associated claims for additional review had been finally determined. In reaching that conclusion I do not ignore that other visa applicants had also advanced a case on the basis of ‘advice’ to wait and see.
Conclusion
This application involved a question whether or not it is appropriate to regard the applicant as a person who was merely indifferent to a fraud or instead recklessly indifferent to it in the requisite sense. The applicant has failed to adduce sufficient evidence to persuade the Court that he had not been recklessly indifferent to whether his agent used unlawful or dishonest means to obtain a visa.
The application should be dismissed.
I certify that the preceding two hundred and seventy-four (274) paragraphs are a true copy of the reasons for judgment of Judge A Kelly
Associate:
Date: 5 May 2021
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