SINGH v Minister for Immigration

[2016] FCCA 2412

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 2412

Catchwords:
MIGRATION – Application for judicial review – no matters of principle – application dismissed.

Legislation:

Migration Act 1958 (Cth)

Cases cited:

Prodduturi v Minister for Immigration and Border Protection [2015] FCAFC 5

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 date: 27 July 2016

Date of Last Submission: 27 July 2016

Delivered at: Melbourne

Delivered on: 27 July 2016

REPRESENTATION

The Applicant appeared In Person

Counsel for the Respondents: Ms Lucas

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The name of the Second Respondent be amended to the ‘Administrative Appeals Tribunal’.

2. The application be dismissed.

3. The Applicant pay the First Respondent’s costs fixed in the sum of $7,000.

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

(Delivered extempore & revised)

1. This is an application for judicial review of a decision of the Migration Review Tribunal (“the Tribunal”) (as it was then called). The Tribunal determined in October 2014 not to overturn the decision of the delegate of the Minister. The delegate had decided in 2012 to refuse to grant the applicant a Skilled Provisional (Class VC) visa under the Migration Act 1958.

2. The applicant came to Australia in 2009 with his then wife. She held a student visa, and he came as her spouse. In 2011, after he and his wife had split up, he sought a visa. The applicant then attended upon S & S Migration wanting to apply for a student visa. He was advised that it would be better to apply for a work visa. S & S Migration lodged an application on his behalf for a work visa in April 2011.The applicant told the Court today that at that time, he wanted a student visa to learn English, but accepted the advice of S & S Migration.

3. Unfortunately, the work visa application was supported by fraudulent documents, in particular, a certification of a skills assessment with respect to the applicant. That is, S & S falsely claimed that the applicant had a skills assessment to show that he had the skills for the occupation that the work visa related to. The applicant did not have such a skills assessment. As a result, he could not have been entitled to the work visa that was sought. For this reason, his visa application had to be refused both by the delegate and the Tribunal.

4. The Tribunal sets this out at paragraph [40] as follows:

   40. The Tribunal has also considered whether the applicant satisfies the criteria for the grant of a Subclass 487 visa. However, the Tribunal finds that the applicant did not pay the applicable fee for a subclass 487 visa application under Item 1229 and, accordingly, the application was not valid with respect to that subclass. Further or alternatively, the applicant has not provided any claims or evidence to meet the primary criteria for the grant of a subclass 487 visa.

5. The Tribunal also had regard to the public interest criteria 4020 relating to false information being given to the Tribunal. It made a number of findings in this regard which, it seems to me, are not disputed on the facts. That is that false or misleading documents were provided as part of the visa application and that the visa application was lodged on behalf of the applicant.

6. It is in dispute by the applicant whether or not he was aware that S & S Migration would attempt to use false or misleading documents.  However, that does not affect the fact that they were forwarded by his migration agent on his behalf. Regardless of the arguments about whether or not the agent was acting on authority by sending the false documents, the applicant confronts the difficulty that he cannot satisfy the requirements for a work visa and therefore could not have been granted a work visa by the Tribunal, as the Tribunal found at the end of its decision.

7. In these circumstances, the Tribunal’s decision must be correct. It is perhaps arguable that the application for the work visa itself should not be considered to be the applicant’s true application, given that it was lodged by the agent after the agent giving bad advice and lodged in a fraudulent way by the agent. However, this Court does not have jurisdiction to determine whether or not the visa application itself was effectively a nullity or not a real application. This jurisdictional point has been confirmed by the Full Court of the Federal Court in Prodduturi v Minister for Immigration and Border Protection [2015] FCAFC 5 at paragraphs [34] and following. Such an application would need to be brought to the High Court of Australia.

8. On the material before me at present, even if I had jurisdiction to make such a declaration, it is difficult to see that such a discretion would be properly exercised. There is no material to show that the determination of such a question and the resulting declaration would make any practical difference to the applicant’s current circumstances, rather than simply being an academic determination of a legal question that could be seen to arise in this case.

9. For these reasons, I find that it is not appropriate for me to consider making such a declaration.

10. Turning to the specific grounds that the applicant raised in his grounds of application, the first was that he was an innocent victim of fraud by S & S Migration. It seems to me that, that is a question that goes to the merits of the case, and that the Tribunal, in any event, made findings of fact about the extent to which he was aware of the fraud of S & S Migration. The crucial question was that the applicant engaged S & S Migration to undertake the application on his behalf, and therefore he is left with some responsibility for what they did, even if he was unaware of the fraud.

11. The second ground was that he never applied for a skills assessment. This was accepted by the Tribunal and leads to the fact that he is not eligible for the visa he applied for, as he does not have a skills assessment: that is one of the mandatory criteria for the grant of the visa. The applicant says that he did not give false and misleading information. The reasoning of the Tribunal is only that the information was given on his behalf by S & S Migration. I do not see that this forms a valid basis for judicial review. 

12. Ground 4 claims that the Tribunal failed to remove “the PIC 4020 ban” which I take to mean that the Tribunal did not exercise the discretion under the public interest criteria to wave that criteria, despite the false information having been given. Even if they had waved the public interest criteria, for the reasons given, the applicant was still not eligible for a work visa, and could not have succeeded before the Tribunal.

13. Finally, it’s alleged that the decision is not rational and intelligible as the applicant says he was an innocent victim of a fraud by S & S Migration.

14. That ground seems to me to confuse the difference between fraud perpetrated by a third party against whom he would have a cause of action to bring a suit (if he could find that third party he could pursue their insurers), and the Tribunal which is required to decide whether or not, in his particular circumstances, he satisfies the criteria for the grant of this particular category of visa. Clearly he did not satisfy the criteria for the grant of this particular category of visa, and therefore the Tribunal decision was correct in refusing to overturn the delegate’s decision not to grant the visa.

15. In the circumstances, I must therefore dismiss the current application.

16. I make orders firstly that the name of the Tribunal be amended to the Administrative Appeals Tribunal as a result of the recent statutory amendments, and that the application be dismissed.

    [Further argument ensued]

17. As to the questions of costs, the Minister has been entirely successful, costs ordinarily follow the event. It seems to me that it’s appropriate that costs should follow the event in this case. The costs sought are less than the scale fee and I find they are reasonable having regard to the work done in this case based upon the documents on the Court file and the appearances.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Judge Riethmuller

Date: 15 September 2016