Singh v Minister for Immigration
[2018] FCCA 193
•31 January 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SINGH v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 193 |
| Catchwords: MIGRATION – Skilled visa application – where migration agent engaged in fraud in lodging visa application – whether applicant should bear responsibility for agent’s fraud – application dismissed. |
| Legislation: Migration Act 1958 (Cth), s.98 |
| Cases cited: Singh v Minister for Immigration and Border Protection [2016] FCAFC 141 Gill v Minister for Immigration and Border Protection [2016] FCAFC 142 |
| Applicant: | JAGDIP SINGH |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 2138 of 2014 |
| Judgment of: | Judge Riethmuller |
| Hearing dates: | 22 September 2017 12 October 2017 1 November 2017 |
| Date of Last Submission: | 19 December 2017 |
| Delivered at: | Melbourne |
| Delivered on: | 31 January 2018 |
REPRESENTATION
| The Applicant appeared In Person |
| Counsel for the First Respondent: | Mr Knowles |
| Solicitors for the First Respondent: | Australian Government Solicitor |
ORDERS
The application be dismissed.
The Applicant pay the First Respondent’s costs fixed in the sum of $7,328.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 2138 of 2014
| JAGDIP SINGH |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The applicant is a citizen of India. On 12 April 2011, S & S Migration, acting as his migration agents, lodged an application on his behalf for a Skilled (Provisional) (Class VC) visa. The completed visa application form stated that the applicant had a skills assessment from the Trades Recognition Australia (“TRA”) authority, with a particular reference number (xx302).
The application was considered by the Department, which resulted in correspondence to the applicant on 17 February 2011 inviting him to comment upon adverse information, namely that the skills assessment xx302 was not a reference number for which the TRA had any record, and therefore it appeared to be a bogus document. The applicant did not respond to this correspondence. As a result, on 24 May 2012, a delegate of the Minister refused to grant the applicant a skilled visa and rejected the visa application.
On 7 June 2012, the applicant applied to the Tribunal for review of the delegate’s decision. On 24 July 2014, the applicant’s then representative, Career Education Consultancy Australia, replied to an invitation by the Tribunal to provide further information, setting out that the applicant had been the victim of a fraud by S & S Migration, and had no knowledge of the visa application nor the bogus documents which purported to support it.
On 26 September 2014, the Tribunal conducted a hearing in which the applicant was represented and gave evidence. In October of 2014, the Tribunal handed down its decision affirming the delegate’s refusal to grant the skilled visa. The Tribunal also concluded that the visa application had been made by S & S Migration acting within the authority given to S & S Migration by the applicant, and therefore that the applicant was responsible for the visa application and the material contained within it.
The Tribunal found that the applicant could not fulfil the requirements for the visa and that he had provided a bogus document and false or misleading information.
The matter was then brought before this Court by way of judicial review application on 22 October 2014. The application was dismissed on the basis that the applicant could not obtain the visa in any event, and that the Court did not have power to hear and determine an application for a declaration with respect to the conduct of the agent.
Following Singh v Minister for Immigration and Border Protection [2016] FCAFC 141, it became clear that the Court does in fact have jurisdiction, and therefore the matter was remitted by the Federal Court for determination according to law on 9 June 2017.
The case, therefore, proceeded by way of a factual inquiry as to the extent of the applicant’s involvement in the fraud of the agent. The applicant relied upon evidence that he set out in three affidavits, sworn 8 September 2017, 2 August 2017 and 21 October 2014.
The Minister relied upon the court book, the affidavit of Ms Yu affirmed 1 September 2017, the affidavit of Ms Scorgie sworn
1 September 2017, and the affidavit of Ms Stone sworn 1 November 2017. Only Mr Singh was required for cross-examination. Mr Singh filed a further affidavit after the hearing, which I have had regard to, however it does little to advance the evidence already before the court.
These matters do not fall to be determined under the common law principles of agency: see Gill v Minister for Immigration and Border Protection [2016] FCAFC 142 and SZFDE v Minister for Immigration and Citizenship [2007] HCA 35. In SZFDE the High Court highlighted that issues of fraud in public law matters should not be equated with cases involving the creation and protection of personal and property rights. The significant difference said to be that damages would rarely be an appropriate remedy in the migration law context. On this point alone, however, even negligence of an agent would arguably found a remedy. Importantly, unlike general common law and equity cases the ultimate decision does not require a determination as to rights to money or property as between the principal and third party (after the fraud of an agent) rather the appropriate and proper implementation of a statutory scheme.
In Gill’s Case, it was noted by the Full Court that:
41. A person in the applicant’s position is entitled to expect that a registered migration agent to whom he pays the appropriate fee will perform his duties as a migration agent in accordance with the Migration Act, and the Code of Conduct.
42. Taking into account the detailed regulatory scheme established for migration agents under the Migration Act and the Migration Agents Regulations, including the Code of Conduct, in our opinion, it is not apt or correct to apply the description of “indifference” to a person who, having retained an agent to apply for a visa and having paid the appropriate fees to that agent, leaves the migration agent to perform his or her work. It is certainly not apt to describe a person in these circumstances as indifferent to the subsequent submission of a fraudulent visa application by the migration agent without further relevant findings concerning the nature and scope of that indifference.
Importantly, the Full Court said:
48. In our view, the primary judge erred in failing to address a question which was of central significance in the particular circumstances here, namely whether the appellant’s “indifference” or imputed general authority to his agent extended to whether or not the agent’s conduct in assisting the appellant to make his visa application went so far as to include unlawful or dishonest conduct. In our view, it is one thing to conclude, on the basis of relevant evidence, that a visa applicant, having retained the assistance of a migration agent, gives his or her general authority to that agent to do whatever is lawful and proper to achieve the visa applicant’s objective of obtaining a particular visa, as opposed to a visa applicant placing such matters in the hands of a migration agent and being indifferent to whether the migration agent uses lawful or unlawful means to achieve the visa applicant’s objective of obtaining a visa.
In this case there is no question that the application form was lodged by the agent on behalf of the applicant. To the extent that the act itself is relevant, the act was an act of the agent of the applicant: see generally Dollars & Sense Finance Ltd v Rerekohu Nathan [2008] NZSC 20. In a case where a person engages an agent to undertake the work on their behalf, ordinarily, the civil law would fix the applicant with responsibility for the agent’s conduct as others rely upon the agents’ conduct (although the rules with respect to fraudulent agents are more complex). Similarly, s.98 of the Migration Act1958 provides:
A non-citizen who does not fill in his or her application form or passenger card is taken to do so if he or she causes it to be filled in or if it is otherwise filled in on his or her behalf.
The result is that prima facie the visa application is taken to have been completed on behalf of the applicant: see SZGJO v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 393 at [12] and [16] and NAWZ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 199 at [16]-[18].
However, in cases where the relevant conduct involves the engagement of a statutory provision, such as a visa application, there is no question of reliance by the department upon the conduct of the agent, as would be the case if an agent was entering into a transaction with a third party in a civil case. The key question in administrative law is whether or not the statutory provision is properly engaged. If the agent’s conduct is fraudulent, unbeknownst to the applicant (and the applicant is not indifferent to that conduct), then the provision is not validly engaged as there has been a fraud upon the department by the agent.
The applicant has the legal onus (being the applicant for the declaration): see P W Young QC, Declaratory Orders (Butterworths, 2nd ed, 1984) 214 [2404] and Industrial Equity Ltd v G & C Consolidated Pty Ltd [1974] 2 NWLR 456. The applicant must show that the applicant’s conduct and knowledge is such that he should not be taken to be responsible for the application lodged.
The mere fact an applicant has engaged an agent on a general retainer, without any express restrictions as to legality or propriety of the conduct of the agent, cannot be taken to show that he authorised or even acquiesced to fraudulent conduct by the agent. This is the point that is made in Gill’s Case. The result is that evidence of a general retainer does not support an inference of an imputed authority or acquiescence to the agent engaging in unlawful means to achieve the visa applicant’s objective of obtaining a visa.
In this case, there is no question that the original visa application contained a fraudulent claim to hold a TRA certification. Nor is there any dispute that in this case, the applicant cannot be entitled to the visa for which S & S Migration applied on his behalf.
I turn then to consider the evidence of the applicant in this case.
Mr Singh presented as a forthright witness in the witness box who had a reasonable grasp of English, sometimes answering in English, and sometimes needing the assistance of the interpreter. His demeanour and use of the interpreter demonstrated a desire to fully engage with the Court and best facilitate the exchange of information required. There was no sense that the use of the interpreter was in some way a ruse, protective device, or obstruction to the proper hearing of the case.
The tenor of the evidence given by the applicant was often not as responsive as one may hope, with the applicant regularly wishing to reiterate to the Court that he did not authorise the agent to undertake a fraud on his behalf. He was certainly aware that this was the central question in the case.
I turn then to consider the evidence given, both at the hearing of this matter and on previous occasions. A number of points of critique were raised by the counsel for the Minister that must be considered:
a)The applicant’s evidence with respect to the timing of his first visit to engage S & S Migration differed over time. Importantly, there was a variation between what the applicant said in his affidavit and other evidence;
b)The method by which the applicant was introduced to S & S Migration was at one point said to be the recommendation of a friend and at another point the result of receiving promotional material;
c)The applicant was inconsistent as to the number of times that he visited S & S Migration, on some occasions stating twice, on another occasion stating three times, and ultimately being unsure whether it was twice or three times. However, the significant events that occurred at S & S Migration, were always said to have occurred in the first two visits;
d)The applicant was inconsistent as to how he gave a copy of his passport to S & S Migration. The applicant had not previously mentioned that he had a copy of it on his phone and may have provided it in that method, which is what he stated on the last day he gave evidence. The applicant was inconsistent as to whether he gave his passport on the first or second occasion;
e)The applicant’s evidence as to the amount that he had paid varied between $3,000 and $5,000. The applicant remained unsure as to the exact amount that he had paid the agent. He was clear that on his understanding the agent would retain only around $500 of the amount paid, with the balance being required to pay government and/or education provider’s fees;
f)The applicant appeared inconsistent as to the extent of contact that he had with S & S: by way of telephone calls and emails, rather than simply attendances in person;
g)There were some inconsistencies in how the applicant came to know of the decision to reject his visa, and the steps that he took; and;
h)There are some inconsistencies with respect to the steps that the applicant took when he found out that there was a problem with his visa, such as whether he rushed to the offices of S & S Migration to find them closed, or immediately found an alternative agent when he heard that they had closed and left the country.
Counsel for the Minister also relies upon four matters that are said to be implausible in the evidence of the applicant:
a)That the agent would take the steps required to obtain a visa (so as to be in a position to show the applicant electronic information on his computer screen confirming that the visa had been sought or obtained) prior to receiving payment from the applicant. The applicant was firm that his payment was made on the second occasion, when a computer screen was shown to him to prove that the application for the visa had been lodged;
b)That it was implausible for the applicant to believe that a genuine visa application could be made without more documents than simply a passport (varying from the version given by his advisors to the Tribunal at CB 53 where it is alleged many documents were provided to the agent) particularly in light of the large amount of information needed for a student visa application (and that his evidence about when he provided his passport varied between providing it on the first or second visit to the agent);
c)That the applicant would obtain no receipt for the cash payment (which was significant) that he made to the agent and in particular, that in such circumstances this was a genuine and lawful visa application; and
d)That the applicant would be unaware of what was put in the application on his behalf.
There are other arguments that can be made for the applicant’s position that should also be considered (although not specifically put by the applicant who was unrepresented), for example (and by no means by way of an exclusive list):
a)In many communities, cash payments are common, and it is well known that often cash payments are sought and that a greater fee would be charged if non-cash payments were made (as to facilitate tax evasion). Whilst implicit in such arrangements is a conspiracy to avoid taxation, the arrangements are common, and do not necessarily taint the evidence with respect to the transaction. However, payments of sums of $3,000 - $5,000 in cash and without a receipt would be a significant risk for a low income earner such as a student.
b)For an applicant with limited English, it may not be uncommon for them not to know the contents of the visa application form. The Department had established a system which did not require any signatures or other form of attestation by the applicant of the contents of the application. It is arguably ironic that the respondent would establish a system that requires no form of verification by the applicant for a visa (the agent simply entering the details online), and then complain that it would be implausible that an applicant would not know the contents of the application form.
c)Arguments that a person had shown a general disregard for the accuracy and content of documents prepared by a professional agent, at least on a simplistic level, would effectively undermine the proposition set out in Gill’s Case. Most people engage professional agents to draw forms or documents needed as they do not have the necessary skills to engage with the materials: for example, few people actually check tax returns prepared by an accountant.
Some of the inconsistencies or lack of clear recollection must also be seen in light of the fact that the particular answer would make little difference. For example, the precise amount paid may take the case nowhere: clearly, a payment would have to have been made as S & S Migration were acting fraudulently in order to generate an income. The amount of that payment, unless unrealistically low or obscenely large, would not be a factor for or against accepting the applicant’s version of events. That is, whether he was charged $3,000 or $10,000 (even though the latter figure would objectively appear to be excessive) would not be so unusual a figure as to lead to an inference on his part that the agent was acting fraudulently or that the applicant was not providing a truthful account. However a small figure (such as $1,500 may give rise to real suspicions): the inability to nominate a figure precisely could be a result of not wishing to provide the true figure, rather than simply frailty of memory.
The evidence as to how the applicant came to know of the adverse decision and the steps he took thereafter (whatever version of those that is actually accurate, at least in the context of the versions given in this case) does seem to tell against the applicant’s version of events. The adverse decision must have been one of the most significant events in the applicant’s life at that time as it resulted in him being unable to remain in Australia. One would also expect that he would have been quite upset that such an outcome flowed despite having paid a significant sum for professional assistance, unless he was aware of or indifferent to the application being made fraudulently.
I accept that it is quite implausible that an agent would lodge applications, which involved significant fees, prior to receiving payment from an applicant.
The nature and extent of the documents that the applicant provided would have put a reasonable person on notice that the agent was proposing to take a course that could not have been or was unlikely to have been legitimate as a result of the lack of information being provided to obtain a visa. In the context of this case, however the applicant gave evidence that he queried this aspect of the application process with the agent and was convinced not only to seek a work visa, but that no further documentation was required.
I have reflected upon the evidence as a whole and had the opportunity of seeing the applicant give that evidence in the witness box. I have considered the inconsistencies alleged and identified above. I have had regard to the time that has passed since the events and the language difficulties that confronted the applicant both at the relevant time and at trial. I also have regard to the fact that many of the points made by counsel for the Minister, at least in isolation, appear relatively minor.
When considering the applicant’s presentation and evidence as a whole, I am not persuaded to accept the applicant’s evidence as to the circumstances of his dealings with S & S Migration. If the Minister bore the onus of proof, the state of the evidence would lead me to conclude that the applicant was, at best, indifferent to fraud by the agent.
In the circumstances I therefore dismiss the application.
I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Judge Riethmuller
Associate:
Date: 31 January 2018
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