Singh v Minister for Immigration
[2017] FCCA 2948
•29 November 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SINGH v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 2948 |
| Catchwords: MIGRATION – Alleged fraud by S & S – none proved – applicant failed to discharge the heavy burden of proving fraud. |
| Legislation: Federal Circuit Court Rules 2001 (Cth) Migration Act 1958 (Cth) Migration Regulations 1994 (Cth), regulation 1.15C(1), clauses 485.215, 485.221 |
| Cases cited: Gill v Minister for Immigration and Border Protection [2016] FCAFC 142 SZRUR v Minister for Immigration and Border Protection (2013) 216 FCR 445 |
| Applicant: | SARBJEET SINGH |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLC 1156 of 2014 |
| Judgment of: | Judge Wilson |
| Hearing date: | 20 October 2017 |
| Date of Last Submission: | 20 October 2017 |
| Delivered at: | Melbourne |
| Delivered on: | 29 November 2017 |
REPRESENTATION
| Applicant in person |
| Counsel for the First Respondent: | Mr L. Brown |
| Solicitors for the First Respondent: | Australian Government Solicitor |
ORDERS
The application filed on 12 June 2014 is dismissed.
The applicant pay the costs of the first respondent.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLC 1156 of 2014
| SARBJEET SINGH |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
In this case the applicant for judicial review alleged that the visa application was made fraudulently or with indifference to any dishonesty or unlawfulness. In accordance with the observations of the Full Court of the Federal Court of Australia in SZRUR v Minister for Immigration and Border Protection[1] (“SZRUR”) I invited the applicant to go into the witness box to give evidence about his contentions associated with the visa application. He declined to do so. He was given an opportunity to make out whatever he wanted with a view to establishing fraud. The applicant chose not to do so.
[1] (2013) 216 FCR 445.
The applicant sought a skilled (provisional) (class VC) visa. The Minister’s delegate refused the visa application because the applicant did not –
a)have the required level of English language proficiency for the purposes of clause 485.215 of the Migration Regulations 1994 (Cth); and
b)satisfy the skills assessment under clause 485.221 of the regulations.
The Migration Review Tribunal, now the Administrative Appeals Tribunal (“the Tribunal”), affirmed the delegate’s decision.[2] It did so on the basis that the applicant conceded he had not undertaken an English language test in the relevant period. The Tribunal found the applicant did not have competent English for the purposes of regulation 1.15C(1) of the regulations. He therefore failed to meet the requirements of clause 485.215. The Tribunal found it unnecessary to consider
clause 485.221 as the applicant failed to meet the mandatory requirement of clause 485.215 of the regulations. The Tribunal also found the applicant did not meet the criteria for the grant of a subclass 487 visa because a subclass 487 visa had identical criteria as did the subclass 485 visa which he sought.
[2] Court book filed 30 October 2014 at pp.88-90.
The applicant sought judicial review in this court. He relied on
one ground, namely, he was misguided by his migration agent,
S & S Migration (“S & S”).
In his affidavit sworn 4 August 2015 the applicant stated he was the victim of fraudulent activity by Jeetender Ajjan of S & S. The question for me was whether the applicant made out his assertions of fraud.
Synopsis
In my judgment the applicant failed to discharge the heavy burden of proving fraud. In the absence of proof of fraud, I was not persuaded that the Tribunal made any error, let alone jurisdictional error.
This application for judicial review must be dismissed.
The fraud, so-called
As I recently held in Mohammed v Minister for Immigration & Anor,[3] S & S orchestrated widespread mayhem in the work of the Minister’s department and in the Tribunal because of its fraudulent activities.
The applicant for judicial review in this case claimed he was yet another victim of the fraud of S & S. When confronted with an allegation of fraud of the sort the applicant made in this case, a trial judge in my shoes has been commanded by high authority to follow a particular path. Those cases include SZFDE v Minister for Immigration and Citizenship[4] (“SZFDE”), Minister for Immigration and Citizenship v SZLIX[5] (“SZLIX”), SZRUR and Gill v Minister for Immigration and Border Protection[6] (“Gill”). I adopted the instructions from those cases by warning the applicant of the significance of the allegations he made, of the need to deal with the matters highlighted in SZFDE, SZLIX and Gill and that I invited him to go into the witness box to give evidence.
After inviting Mr Brown of counsel to formulate the precise words that the cases required me to say to the applicant, the exchange unfolded in the following way –
[3] [2017] FCCA 2741.
[4] [2007] HCA 35.
[5] [2008] FCAFC 17.
[6] [2016] FCAFC 142.
HIS HONOUR: Now, Mr Singh, in this case, you allege that your visa application was obtained by a migration agent; is that right?
MR SINGH: Yes, your Honour.
HIS HONOUR: Okay. You are inviting me to say that the acts of your migration agent were fraudulent; is that right?
MR SINGH: Yes.
HIS HONOUR: Okay. I need to explain several things to you because the law in this area is complicated and it requires me to tell you certain things so that you can make a choice about what you do. Do you follow? Are you following this so far? All I’m asking you is if you follow what I’m saying to you now? You have to answer me. Do you or don’t you?
MR SINGH: Yes, I do.
HIS HONOUR: Very good. If you wish me to consider your claims of fraud in this case, you will be required to go into the witness box and swear on the Holy Bible or affirm and give your version of events. Do you understand that?
MR SINGH: Yes.
HIS HONOUR: You don’t have to do that but, if you do not do that, I will hear what you have to say but I will place less weight on it than if you go into the witness box and swear on your holy book or you affirm to tell the truth about your version of events. Do you follow? So either go into the witness box and swear or affirm and tell your version – of course I will hear you – or you stay where you are but, if you stay where you are, I will give whatever you tell me less weight than if you go into the witness box and tell your story. Do you follow that? Do you follow what I’ve just said to you? Yes or no?
MR SINGH: Yes.
HIS HONOUR: Okay. Now, there’s a risk to you. If you do go into the witness box, Mr Brown – counsel for the Minister – may, if he chooses, cross-examine you. Do you follow what I mean so far? That means he can question you and quite vigorously, if he chooses, to challenge you about what you say. Do you follow that?
MR SINGH: I accept.
HIS HONOUR: Now, if you don’t tell the truth and if you’re caught out not telling the truth, there are consequences for that. Do you follow? You don’t have to go into the witness box. Do you understand?
MR SINGH: Yes.
HIS HONOUR: If you do, it’s likely that Mr Brown will
cross-examine you and challenge you about what you say. Do you follow that?
MR SINGH: Yes, your Honour.
HIS HONOUR: Okay. Now, if you do go into the witness box and give evidence in this case, you need to satisfy me of two things: the first is that you did not authorise the dishonest visa application. Do you understand that?
MR SINGH: Yes.
HIS HONOUR: And the second – you were not uncaring whether the agent used unlawful or dishonest means to obtain the visa.
Do you follow that?
MR SINGH: Yes.[7]
[7] Transcript of proceedings, 20 October 2017 at pp.8-10.
Then followed the commencement of the applicant’s statement about what happened in this case. I stopped him and brought him back to the procedure that I said needed to be followed. The exchange went as follows –
HIS HONOUR: Just a minute. You have to confront what I’m asking you to do. Don’t worry about anything except this.
Will you enter the witness box and tell your story or not? If you do, you will be questioned. It might be brutal. I can’t tell. But you need to understand that anything you tell me from the witness box will be questioned, at length probably. Do you follow that?
MR SINGH: Yes.
HIS HONOUR: Now, wait, if you don’t go into the witness box and swear to tell the truth or affirm, I will give your version of events less weight. I may not believe you. Who knows. This is a very important point in this case, Mr Singh. Choose wisely.
What do you want to do?
MR SINGH: Your Honour, I’m just staying here.
HIS HONOUR: Okay. Thank you. The transcript needs to record that you’ve chosen not to go into the witness box, correct; is that right, Mr Singh?
MR SINGH: Yes, your Honour.[8]
[8] Transcript of proceedings, 20 October 2017 at p.11.
The applicant was not legally represented. In accordance with my usual practice when dealing with an application for judicial review by an unrepresented applicant, I invited the Minister to go first with a view to outlining the essential non-controversial aspects of the case. Mr Brown helpfully adopted that course.
Procedural history
Mr Brown narrated the history of this case after its commencement
as an application for judicial review filed 12 June 2014. On
3 September 2014 a registrar of this court fixed this proceeding for hearing on 14 September 2015. That date was moved administratively to 6 April 2016. On that date the applicant did not appear so I dismissed the proceeding under rule 13.03C(1)(c) of the
Federal Circuit Court Rules 2001(Cth) and ordered the applicant to pay scale costs in the amount of $6,825.00.
On 13 April 2016 the applicant filed an application in a case seeking reinstatement of his application for judicial review, returnable on
6 May 2016. On that date, the applicant did not appear again.
I dismissed his application in a case from non-appearance and ordered him to pay scale costs of $1,706.00. The applicant sought an extension of time to appeal against the dismissal of his application in a case.
That application came before the Honourable Justice Moshinsky on
17 August 2016. His Honour dismissed the application for an extension of time and ordered the applicant to pay the Minister’s costs.
The applicant sought leave to reinstate the proceeding and the Minister consented to that reinstatement so on 16 November 2016 I made orders by consent reinstating the proceeding and fixing it for final hearing on 21 April 2017. On 3 April 2017 the applicant and the Minister jointly sought orders adjourning the hearing of the proceeding for
21 April 2017, pending the hearing and determination by the
High Court of Australia for special leave to appeal from the judgment of the Full Court of the Federal Court of Australia in Singh v Minister for Immigration and Border Protection.[9]
[9] [2016] FCAFC 141.
By consent, on 28 July 2017 I ordered the hearing of this matter to be held on 20 October 2017 at 2.15 p.m.
Pausing there, the applicant had up until that point failed to appear several times when this case was listed, he had incurred several costs orders (there being no evidence he had paid any) and he had taken up the time of three judicial officers (Registrar Caporale, myself and Moshinsky J) on eight separate occasions prior to final hearing.
When the case was called on for final hearing on 20 October 2017 at 2.15 p.m., the applicant asked for the case to be adjourned because he said –
a)he had blood pressure issues; and
b)his grandmother had passed away in India a month earlier.
The applicant failed to produce any medical evidence about any medical ailment and I regarded one month since his grandmother’s passing as sufficient to enable him to proceed. I refused his adjournment request.
The way the applicant cast his case of fraud
The applicant did not go into the witness box to give evidence of the fraud of which he said he was a victim. To the affidavit made on
4 August 2015, the applicant attached a single handwritten sheet of paper headed “written submissions”. It stated, verbatim, as follows –
I have just only one point to put front of you that is: -
I am victim of fraudulent activity by Mr Jatinder of S & S migration consultant. Mr Jatinder totally misguided me and spoiled my future. He did wrong things with other hundreds of students that time as same like me.[10]
[10] Affidavit of Sarbjeet Singh sworn 4 August 2015.
The applicant’s ground of review was in similar terms. It stated, verbatim, as follows –
I was misguided by Jeetender Singh Ajjan. He was education consultant agent in S & S Migration. I wrote an email to the department explaining this. But department didn’t response on this matter. They refuse my file. Please review my case.[11]
[11] Application filed 12 June 2014 at p.3.
The applicant refused to enter into the witness box. The comments he made from the bar table were not easy to follow. The exchange unfolded in the following manner –
HIS HONOUR: Okay. I will hear from Mr Singh. Mr Singh, you’ve been very patient. You’ve listened to a lot of legal discussion. Thank you for your patience. Now we’ve got to the time where I want to hear from you on whatever you would like to tell me. So talk to me.
MR SINGH: Your Honour, I just like to tell you about when it happens on that S and S Migration, then I went to – because my friends told me some other news comes here, the agent Jatinder Singh is fraud. They just maybe – because he took $2000 from me, they say we can, like, apply with the files ..... how can I – as for visa check. Then they apply for, they say, you granted the visa. Then when I got the frauds, the things because the most ..... effect by Jatinder. Then I – I write one email to immigration. That’s why I’m not written to S and S because in my conditions because you come here but if happen, like badly happen with you, with us, we confuse. We like just lost like this one. That’s ..... your Honour. And I don’t want anything to be – from you and anything. I just say – I just give just chance, proper chance, like this one,
I applied student visa. I had completed my test and the government give me a visa. Then I’m happy. Just for this reason I applied. No nothing. Just, your Honour, that’s it.
HIS HONOUR: Thank you very much, Mr Singh. I take it nothing arising out of that, Mr Brown?
MR BROWN: No, your Honour.[12]
[12] Transcript of proceedings, 20 October 2017 at pp.36-37.
Mr Brown submitted I should ignore what the applicant said because the applicant refused to enter the witness box to be challenged. I agree. So little of the applicant’s statement had factual content. I was left with nothing beyond a payment the applicant allegedly made to Mr Ajjan. As to the amount, I was not persuaded it was as the applicant asserted.
That may have been sufficient to dispose of this case. However,
Mr Brown demonstrated to me that the applicant was not as removed from the visa application as the applicant would have had me believe.
The applicant applied for the visa on 12 September 2011. In the part of the form headed “Applicant skills assessment”, the form was completed by the inclusion of the words “Graphic pre-press Trades Worker” against “Nominated Occupation”.[13] In the same part of the form, Trades Recognition Australia (“TRA”) was specified as the assessing authority, 23 August 2010 was completed as the date of the skills assessment and a receipt as well as the TRA reference number specific to the applicant was set out. That information was important as the applicant asserted that he had no knowledge of any aspect of the TRA details.
[13] Court book filed 30 October 2014 at p.8.
On 9 January 2012 the applicant wrote to the Department of Immigration and Citizenship (as it then was) to inform the relevant case officer that he had changed his email address and he gave his new email address. Relevantly, he stated in that letter that he had lodged the visa application on 12 September 2011 and he provided his client identification number as well as the transaction record number
(both unique to him) as well as the permission request identification. The following day he sent an email to the department, attaching forms 1023, 1193 and 929 stating he referred to his visa application.
No suggestion was made that S & S lodged the documentation.
The applicant stated he did. The form 1193 supplied bore his signature as did the form 929 and the form 1023.
On 17 February 2012 the department wrote to the applicant informing him that the department had identified a file with the applicant’s personal details in the offices of S & S. The department invited the applicant to comment on that information. In the email, the department informed the applicant that he was at liberty to withdraw his application for a 485 visa at any stage.
On 14 March 2012 the applicant sent an email to the department with his version of his involvement with S & S. So far as the TRA reference was concerned, the applicant said the following in his email,
verbatim –
I didn’t provide any false and misleading information from my side. The information which is in the application is wrongly provided by S & S Migration without my consent. I don’t have any information and knowledge about TRA and about the reference number that he has provided to DIAC.[14]
[14] Court book filed 30 October 2014 at p.26.
The applicant said the same thing in an email sent the following day on 15 March 2012.
Mr Brown submitted that he was denied the opportunity of
cross-examining the applicant about those emails by reason of the fact that the applicant had refused to enter into the witness box.
S & S was not in operation in Australia by 2 December 2011.
Mr Brown submitted that when the applicant sent correspondence that incorporated the applicant’s TRA reference, his transaction record number and his visa number, that was information unique to the applicant. So when the applicant incorporated those details in correspondence where he referred to lodging his visa application, Mr Brown contended that I should conclude that the applicant was correctly referring to documentation that he personally filed. I agree. That accorded with common sense. It also tended to show that S & S were not as involved in this visa application as the applicant asserted but rather that the applicant took the running of the visa application himself.
Mr Brown submitted that the applicant knew at an early point in time about the workings of the department’s computer system. He said that based on the information in paragraph 11 of the affidavit of Cecilia Yu affirmed 13 October 2017 (exhibit A in this proceeding), the visa entitlement verification online (“VEVO”) system had been used in the name of the applicant to undertake visa status checks –
a)twice on 15 October 2011;
b)on 2 December 2011;
c)on 10 September 2013; and
d)on 15 May 2014.
There is force in the submission that the applicant was sufficiently computer literate that he lodged the visa application and that on the dates recorded above, by the use of the VEVO system and in the applicant’s name, visa status checks were undertaken, some of which were undertaken after S & S had departed Australia.
I was not persuaded that the heavy burden of establishing fraud was discharged by the applicant in this case.
In my judgment, no jurisdictional error was shown. Fraud was not shown. This application for judicial review failed.
I dismiss this proceeding and order that the applicant pay the Minister’s costs.
I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Judge Wilson
Associate:
Date: 29 November 2017
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