Singh v Minister for Immigration

[2018] FCCA 802

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 802

Catchwords:
MIGRATION – Partner visa application – review of decision of Administrative
Appeals Tribunal – whether the applicant’s sponsor committed fraud upon the applicant and thus also upon the administrative decision-maker – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), pt.2

Migration Regulations 1994 (Cth), Public Interest Criterion 4020 of sch.4

Cases cited:

Gill v Minister for Immigration & Border Protection (2016) 248 FCR 398; [2016] FCAFC 142
Maharjan v Minister for Immigration & Border Protection [2017] FCAFC 213
Minister for Immigration & Citizenship v SZLIX (2008) 245 ALR 501; [2008] FCAFC 17
Singh v Minister for Immigration & Border Protection (2016) 247 FCR 554; [2016] FCAFC 141
SZFDE v Minister for Immigration & Citizenship (2007) 232 CLR 189; [2007] HCA 35

Applicant: GURJINDER SINGH

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1443 of 2017

Judgment of: Judge Smith

Hearing date: 26 February 2018

Date of Last Submission: 26 February 2018

Delivered at: Sydney

Delivered on: 26 February 2018

REPRESENTATION

Solicitors for the Applicant: Mr R Abbas, R & J Lawyers

Counsel for the First Respondent: Mr N Swann

Solicitors for the Respondents: DLA Piper Australia

ORDERS

1. Leave to amend the application is refused.

2. The application be dismissed.

3. The applicant pay the first respondent’s costs fixed in the amount of $7,206.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1443 of 2017

GURJINDER SINGH

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Delivered Extempore and Revised)

1. This is an application for the issue of a writ of mandamus and the issue of writ of certiorari on its face directed towards a decision of the Minister for Immigration, but reading the application generously, in fact, is directed towards a decision of the Administrative Appeals Tribunal dated 27 April 2017. There are also declarations sought: first, that the application, that is, the application for the visa, was an invalid application; and secondly, a declaration that the applicant can apply for another visa.

2. The applicant is a citizen of India who applied for two partner visas, one a temporary visa and one a permanent visa, on 2 September 2013 on the basis of his relationship with an Australian citizen who was his sponsor for the purposes of that application.  The applicant was granted the first of those visas on 6 January 2015; however, on 30 April 2016 his sponsor withdrew her sponsorship and on 7 July 2016 a delegate of the Minister made a decision to refuse to grant the applicant the second permanent visa, the subclass 100 visa.

3. Essentially, that decision was based upon the conclusion that the applicant had given or caused to be given information that was false or misleading in a material particular and, therefore, that the applicant did not satisfy PIC[1] 4020. The applicant applied to the Tribunal for review of that decision and on 27 April 2017 after a hearing conducted by the Tribunal, it affirmed the delegate’s decision. The basis of this application is that unbeknown to the applicant at the time of the visa application, the applicant’s sponsor was, in fact, only involved in a relationship with him in order to obtain money from him. In other words, that he was the victim of a fraud at the hands of the sponsor.

   [1] Public Interest Criterion, found in sch.4 of the Migration Regulations 1994 (Cth).

4. There are a number of decisions of this Court and the Federal Court that concern the invalidity of a visa application on the basis of the fraud of a third party: see for example Singh v Minister for Immigration & Border Protection (2016) 247 FCR 554; [2016] FCAFC 141; Gill v Minister for Immigration & Border Protection (2016) 248 FCR 398; [2016] FCAFC 142; and Maharjan v Minister for Immigration & Border Protection [2017] FCAFC 213.

5. The last of those cases discusses in some detail the basis for orders made on judicial review once fraud has been found and the questions that arise.  In Maharjan it was stated that the question always arises not only as to whether there is fraud, but also whether there was complicity or indifference towards that fraud by the applicant. The majority at [103] stated that if the fraud is proven to have occurred, the question arises for the Court as to whether it affected the processes by which the applicant’s visa applications were to be considered: see Minister for Immigration & Citizenship v SZLIX (2008) 245 ALR 501 at [33]; [2008] FCAFC 17.

6. Gilmour and Mortimer JJ in Maharjan at [103] also explained that that is because, as the High Court said in SZFDE v Minister for Immigration & Citizenship (2007) 232 CLR 189; [2007] HCA 35, and has been reiterated by the Full Court of the Federal Court, “there must also be a fraud “on” the administrative decision-maker in the sense of the fraud affecting that decision-maker’s statutory functions and obligations or adversely affecting, disabling or stultifying” the process in which the Migration Act 1958 (Cth) prescribes.

7. I have some difficulty, at a conceptual level, accepting that the process of a valid visa application can be adversely affected, disabled or stultified by a fraud without which the applicant would never have been entitled to the visa, such as would have been in this case. Nevertheless, I do not have to get to that point because in this case there is simply no evidence of fraud. The applicant filed no affidavits in support of the application apart from an affidavit of his former solicitor, Mr Hugh Ford, dated 9 May 2017. That affidavit simply annexed the decision record of the Tribunal dated 27 April 2017.

8. Given the seriousness of the allegations and the fact that no other evidence was filed, the applicant was put on notice of the absence of particularisation and proof of fraud well in advance of the hearing, and that use of the Tribunal’s reasons to prove assertions of fact in it would be unfairly prejudicial to the Minister, particularly given that there would be no ability of the Minister to test those allegations. I made an order limiting the use to which the assertions of fact in the Tribunal’s reasons could be put.

9. Given that limitation, there is no evidence before the Court at all to support the underlying factual basis of this claim; that is, that there was a fraud committed by the applicant’s sponsor upon him and thus indirectly or directly upon the administration of the visa process envisaged in pt.2 of the Act. In the absence of that evidence, the only claim in the application as it stands, as I have summarised above, must be dismissed. At the hearing the applicant’s solicitor sought to agitate the fraud ground on another basis, namely, that the Tribunal was obliged to, but did not, consider the impact of fraud upon the question of whether there was compelling, compassionate circumstances to waive the requirement under PIC 4020 of the Regulations.

10. That ground, however, was raised late without any notice and without any explanation of the lateness. Also, I consider that it did not have sufficient merits, and for that reason the application for amendment was unsuccessful.

Conclusion

1. For those reasons I will order that the application be dismissed.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Judge Smith

Associate: 

Date:       4 April 2018