Sran v MIBP

[2014] FCCA 37

FEDERAL CIRCUIT COURT OF AUSTRALIA

SRAN v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 37

Catchwords:
MIGRATION – Allegation of jurisdictional error by the Migration Review Tribunal – existence of an agency relationship between applicant and migration agent – whether when giving false and misleading information in the application the agent acted within the scope of authority – whether the application was a valid application – meaning of “cause to be given” pursuant to cl. 4020(1) of the Migration Regulations 1994 (Cth) – no jurisdictional error by the Tribunal –Application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.46, 48, 379, 359A, 476.

Migration Regulations 1994 (Cth), Schs.2, 4.

SZFDE v Minister for Immigration and Citizenship [2007] HCA 35
SZGJO v Minister for Immigration & Anor [2005] FMCA 1349
SZJGO v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 393
SZMME v Minister for Immigration & Citizenship [2009] FMCA 323
International Harvester Co of Australia Pty Ltd v Carrigan’s Hazedene Pastoral Co (1958) 100 CLR 644
Alliance Craton Explorer Pty Ltd v Quasar Resources Pty Ltd [2013] FCAFC 29
Norwich Fire Insurance Society Ltd v Brennans (Horsham) Pty Ltd [1981] VR 98
Brown v Citizen’s Life Insurance Co Ltd (1904) 2 SR (NSW) 202; (1902) 19WN (NSW) 130
Lysaght Bros & Co Ltd v Falk (1905) CLR 443
VBAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 965
Miller v Hilton (1937) 57 CLR 400
O’Sullivan v Truth and Sportsman Ltd (1957) 96 CLR 220
Ross Hillman Ltd v Bond (1974) QB 435
Vyas v Minister for Immigration and Citizenship & Anor [2012] FMCA 92
Trivedi & Ors v Minister for Immigration, Multicultural Affairs & Citizenship & Anor [2013] FCCA 578

Applicant: AMRITPAL SINGH SRAN

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 247 of 2013

Judgment of: Judge Nicholls

Hearing date: 05 November 2013

Date of Last Submission: 05 November 2013

Delivered at: Sydney

Delivered on: 17 January 2014

REPRESENTATION

Counsel for the Applicant: Mr P Afshar

Solicitors for the Applicant Christopher Livingston & Associates

Counsel for the Respondents: Ms R Francois

Solicitors for the Respondents: Clayton Utz

ORDERS

1. The application made on 11 February 2013, amended on 16 May 2013, and further amended on 4 October 2013, is dismissed.

2. The applicant pay the first respondent’s costs set in the amount $10,000.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 247 of 2013

AMRITPAL SINGH SRAN

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application made pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) on 11 February 2013, amended on 16 May 2013, and further amended on 4 October 2013, seeking review of the decision of the Migration Review Tribunal (the “Tribunal”) made on 11 January 2013 which affirmed the decision of the Minister’s delegate not to grant a “Skilled (Provisional) (Class VC)” visa (“the visa”) to Mr A.S Sran (“the applicant”).

2. The Court had before it in an evidentiary context, a bundle of relevant documents filed by the Minister (the Court Book – “CB”), the affidavit of Christopher Hugh Levingston, solicitor, annexing a transcript of the Tribunal hearing (“T”). Further, the Court had before it written submissions and subsequently, supplementary submissions from both parties.

The Grounds of the Application to the Court

1. The grounds of the further amended application are in the following terms:

   “1. The Migration Review Tribunal (Tribunal) erred when it treated the application (Application) for a Skilled (Provisional) (Class VC, subclass 485) visa (Visa) as a valid application.

   Particulars

   a. The Applicant did not authorise the lodgement of the Application.

   b. A migration agent lodged the Application without the Applicant’s knowledge or authority.

   c. The migration agent engaged in fraudulent conduct when lodging the Application.

   d. The fraudulent conduct of the migration agent amounted to fraud committed against the Applicant and against the Commonwealth.

   e. Fraudulently and without the knowledge of the Applicant, the migration agent provided false confirmation that the Applicant had obtained a successful skills assessment from Trades Recognition Australia.

   f. Fraudulently and without the knowledge of the Applicant, the migration agent provided a false Trades Recognition Australia reference number for a successful skills assessment as part of the Application.

   g. The Applicant did not, or could not, authorise conduct on the part of the migration agent, which amounted to a criminal offence involving fraud against the Commonwealth.

   h. The Application was not a valid application and was void ab initio.

   2. The Tribunal erred when it held that an agency agreement was established between the Applicant and the migration agent and that the migration agent had lodged the Application on the Applicant’s behalf.

   Particulars

   a. The Applicant did not authorise the lodgement of the Application.

   b. A migration agent lodged the Application without the Applicant’s knowledge or authority.

   c. The migration agent engaged in fraudulent conduct when lodging the Application.

   d. The fraudulent conduct of the migration agent amounted to fraud committed against the Applicant and against the Commonwealth.

   e. Fraudulently and without the knowledge of the Applicant, the migration agent provided false confirmation that the Applicant had obtained a successful skills assessment from Trades Recognition Australia.

   f. Fraudulently and without the knowledge of the Applicant, the migration agent provided a false Trades Recognition Australia reference number for a successful skills assessment as part of the Application.

   g. The migration agent acted beyond any agency agreement that existed between the migration agent and the Applicant when the migration committed fraud as set out at e. and f. above.

   h. The Applicant did not, or could not, authorise conduct on the part of the migration agent, which amounted to criminal offences involving fraud against the Applicant and the Commonwealth.

   i. The Application was not made “on behalf of” the Applicant, because the Applicant did not, or could not, authorise conduct on the part of the migration agent, which amounted to criminal offences involving fraud against the Applicant and the Commonwealth.

   3. In the alternative to prayers 1 and 2, the Tribunal erred when it determined that the Applicant had failed to meet the criteria set out in PIC 4020 in circumstances when it was unnecessary to do so.

   Particulars

   a. Clause 485.221 of Schedule 2 to the Migration Regulations 1994 require that the skills of an applicant’s nominated skilled occupation be assessed by the relevant assessing authority suitable for that occupation as a criteria for grating the Visa.

   b. The Tribunal determined that the Applicant had never applied for a skills assessment with Trades Recognition Australia.

   c. The Tribunal found that the Applicant thus did not satisfy the criteria for granting the Visa.

   d. It was unnecessary for the Tribunal to determine whether the Applicant met the criteria set out in PIC 4020.

   4. The Tribunal erred when it held that there was evidence that the applicant had given, or caused to be given, to the first respondent or an officer of the first respondent, information that is false or misleading in a material particular in relation to the Application.

   Particulars

   a. Fraudulently and without the knowledge of the Applicant, the migration agent provided false confirmation that the Applicant had obtained a successful skills assessment from Trades Recognition Australia.

   b. The migration agent acted beyond any agency agreement that existed between the migration agent and the Applicant when the migration agent committed fraud.

   c. The Applicant did not, or could not, authorise conduct on the part of the migration agent, which amount to criminal offences involving fraud on the Applicant and the Commonwealth.

   d. The Applicant did not give to the first respondent or an officer of the first respondent the false confirmation that the Applicant had obtained a successful skills assessment from Trades Recognition Australia.

   e. The Applicant did not cause the false confirmation that the Applicant had obtained a successful skills assessment from Trades Recognition Australia to be provided to the first respondent or an officer of the first respondent.”

   [Emphasis in Original.]

Before the Court

1. At the hearing Mr P Afshar of counsel appeared for the applicant. Ms R Francois of counsel appeared for the first respondent.

2. Following some explanation it became clear that ground one of the further amended application was dependent upon ground two being made out. For this reason it is convenient to approach the consideration of the grounds having regard first to ground two and then consequentially to ground one. Further, grounds three and four represent different aspects of the same issue and consequently should be considered together.

3. The applicant has, as a schedule to his written submissions, set out relevant legislation and regulations. For convenience, I adopt that schedule as a schedule to this judgment.

Background

1. The following is useful background to understanding all of the grounds. The applicant is a national of India and arrived in Australia in 2008 as the holder of a student visa. He applied for the visa, the subject of the Tribunal’s consideration, on 9 June 2011 (CB 1 to CB 11). He declared in the application form (CB 10) that he had not received any assistance “in completing this form” (CB 5.1)

2. An unidentified person, presumably in the employ of the Minister’s department, sent an email to the applicant dated 17 February 2012 (CB 12 to CB 14). The applicant was told, relevantly, the following (at CB 12.8):

   “It is alleged that your 485 application, currently under consideration by the Department, was 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.”

3. The email was sent to the email address “amritpalsran” which was given in the application as the applicant’s email address (CB 4.8)

4. The delegate subsequently summarised the matters put to the applicant in the following terms (at CB 21.5):

   “In summary, this invitation to comment put the following adverse information to you.

   It is alleged that you lodged your 485 visa application 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.

   The Department identified a file with your personal details and the application reference numbers in the office of S & S Migration.

   You provided the following reference indicating a successful skills assessment TRA09/98799517. Trades Recognition Australia (TRA) have no record of providing you this skills assessment.

   TRA also have no record of ever providing you with any skills assessment.

   It is alleged that you provided false and misleading information to the Department in relation to your application for a 485 visa.”

5. No response was received by the delegate (CB 21.7). The delegate noted this in his decision record. He found (at CB 22.6) 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 s98, in line with policy advice, is that you are still legally taken to have completed the form even if it is completed on your behalf.”

6. The delegate found that the applicant had provided false or misleading information with his visa application (the TRA skills assessment). The delegate found that the applicant did not, therefore, meet relevant “Public Interest Criteria” for the grant of the visa (“PIC 4020”) (CB 22).

7. The applicant applied to the Tribunal for review on 13 April 2012 (CB 31 to CB 41). He was represented by a registered migration agent whose agency is not identified as the same agency which was the subject of the delegate’s allegation (“Immigration and Education Consulting and Visa Advisory Services” - the applicant’s “second” migration agent) (CB 30).

8. The Tribunal wrote to the applicant on 5 November 2012 by letter sent to the authorised recipient (his agent) for that purpose (CB 66 to CB 70). The letter contained an invitation sent pursuant to s.359A inviting the applicant to comment on, or respond to, certain information which the Tribunal said it considered would be the reason, or a part of the reason, for affirming the delegate’s decision. In the same letter the Tribunal invited the applicant (pursuant to s.359 of the Act) to “provide” certain information (Generally, the matter raised centred on the allegations concerning S & S Migration, and the purported TRA skills assessment).

9. The applicant’s migration agent responded on 27 November 2012 (CB 72 to CB 74). The applicant’s submissions to the Court now provide the relevant extracts at [12]:

   “On 27 November 2012, Mr Piotr Ferend, the Applicant’s migration agent at the time, made submissions on behalf of the Applicant, which included the following:

   In the current case the Applicant engaged a Migration Agent to prepare and file an unspecified application for which there was no fee agreement, fee disclosure or other material facts in the possession of the applicant, which could have enlivened the relevant intent to mislead or deceive.

   I note that the statutory scheme contemplates the possibility of there being a “mislead” by a mistake or unintentionally but it could be the purpose of the statutory scheme to enliven such an onerous sanction where there has been fraud upon DIAC put on foot without the knowledge or consent of the applicant.

   …

   Even assuming that the Migration Agent was validly appointed, that appointment could not be in respect of criminal conduct as that would traverse the “contract” and the “agency”, unless of course the applicant in that case was a party to the deceit.

   That is not a matter for the drawing of an inference but is rather, having regard to the criminal nature of the conduct probably within the realm of Briginshaw v Briginshaw.

   …

   …For reason explained above, we are of the view that there was no application validly made on behalf of my client.

   …

   As it turns out the claimed TRA qualifications which would have been a nullity even if they had been genuine…came on foot not at the behest of the applicant but by reason of the fraud. Simply stated the applicant never authorised nor did he wilfully ignore the agents conduct in the making of this bogus document.”

10. In his written submissions (at [16]), the applicant has helpfully recorded the Tribunal’s findings that provide background to his grounds:

    “The Decision was sent to the Applicant under the cover of a letter dated 15 May 2013. In effect, the Tribunal found:

    16.1.The claims that the Applicant was mislead by the Migration Agent, who acted without this authority, were rejected.

    16.2.The Tribunal did not accept that the Applicant was entirely unaware of the skills assessment requirement as part of a skilled visa application.

    16.3.The Tribunal found that the Applicant “appeared to have been indifferent as to the content of his application”.

    16.4.There was an agency relationship established between the Applicant and the Migration Agent and that the lodging of their application, which contained the fraudulent TRA reference number, was within the scope of that agency relationship.

    16.5.The Tribunal was not satisfied that, at the time of making the Application, the Applicant met the criteria for the visa, because he had not applied to TRA for skills assessment.

    16.6.Accordingly, the Applicant was in contravention of PIC 4020.”

Ground Two and Ground One

1. Ground two asserts that the Tribunal erred in finding that an agency agreement was established between the applicant and his migration agent. In context, this was a reference to the responsible person, or persons, at “S & S Migration” (“S & S”) not his subsequent, or second, migration agent. Further, that the Tribunal erred when it found that S & S had lodged the visa application on the applicant’s behalf. Ground one asserts that the Tribunal erred when it treated the application for the visa as a valid application.

2. The applicant’s grounds have a number of interrelated strands:

   1)     No agency relationship existed between the applicant and S & S.

   2)     Even if it could be said that there was some agency relationship, at least initially, then the “fraud” committed by S & S went beyond any authority that S & S had been given.

   3) Further, while a principal may be liable for an agent’s conduct (under the general law of agency), the commission of fraud in the current case by S & S went beyond the authority given to it having regard to the Act and the Migration Regulations 1994 (Cth) (“the Regulations”).

3. The following must be made clear at the outset. First, although trite, it is well to be reminded that these proceedings seek judicial review of an administrative decision. While the applicant’s ground, as stated, takes issue with the Tribunal’s finding (the applicant says the Tribunal “held”) that an agency agreement was established between the applicant and S & S, the applicant’s ground can only succeed if this finding was not reasonably open to the Tribunal on what was before it, or the finding itself was attendant with some other legal error.

4. Second, as is apparent from the Tribunal’s decision record, it made a number of findings both antecedent and consequent upon that finding. These included that the “agent’s” authority extended to the lodging of the visa application and various findings about the relationship between S &S and the applicant in the making of the visa application. (See, for example, at [38] at CB 147).

5. Third, it is the case that fraudulent conduct on the part of a third party (including a migration agent) can vitiate the proceedings before an administrative decision maker (SZFDE v Minister for Immigration and Citizenship [2007] HCA 35 (“SZFDE”)).

6. It is important to note that, in the current case, the fraud alleged against S & S by the applicant now, if accepted, was a fraud committed on the Minister (and his delegate) in the making of the application for the visa. There is no third party fraud alleged in relation to the process before the Tribunal. Nor was there any argument before the Court that the fraud alleged was a fraud perpetrated during the conduct of the review by the Tribunal.

7. To be clear, the applicant’s case now in regard to the allegation of fraud is, in essence, the case that he put to the Tribunal concerning the making of his application for the visa, and events before the Minister’s delegate. A case which the Tribunal did not accept as being such as to assist the applicant before it.

8. It must be said that a substantial part of the applicant’s ground seeks to challenge the factual findings of the Tribunal. It is trite to say that this Court cannot look at the evidence before the Tribunal and substitute its own preferred findings for those of the Tribunal in circumstances where those findings were reasonably open to the Tribunal on what was before it. The consideration of the applicant’s ground, therefore, must be considered in that light.

9. Through his second migration agent, the applicant made a number of claims concerning the circumstances of the lodging of his visa application, the conduct of S & S, and his relationship with S & S. The Tribunal summarised these in its decision record at [33] (at CB 146):

   “…The applicant claims that his agent acted without authority and in a criminal manner, there was no agency and the S&S Migration did not act on his behalf, that he did not authorise the agent to lodge the false or misleading information and, ultimately, that he did not make a valid application for the Skilled visa…”

1. The Tribunal then proceeded to give reasons for rejecting these claims. In doing so, it made certain findings. The immediate question for the Court, therefore, is whether those findings were reasonably open to the Tribunal on what was before it, and whether in making these findings the Tribunal otherwise fell into legal error such that it could be said it failed to exercise its jurisdiction.

2. It is important to note that before the Court the applicant emphasised the evidence which he gave the Tribunal about the circumstances of his relationship with S & S and the lodging of the application for the visa.

3. That evidence was, in essence, that he approached S & S about the immigration options available to him and, in particular, asked whether he could apply for a “work visa”. He said he was told he could apply for a “subclass 485 visa”. (The subclass visa that was subsequently the subject of consideration by the delegate, and the Tribunal.) The applicant gave evidence that he asked S & S what types of documents were required to be submitted in support of any such application. He said that S & S told him he would inform the applicant of the relevant requirements “step by step”.

4. The applicant’s evidence to the Tribunal also claimed that he did not know much about the requirements necessary for the subclass of visa. He claimed that he knew generally about the ability to apply for “work” or “study” visas or other temporary visas but that he made no inquiries.

5. In relation to the application for the visa, the applicant said he did not know when “his file was opened”, and did not see the “papers” submitted. Further, that the application was lodged without his knowledge or consent.

6. In relation to the skills assessment document and relevant information submitted to the Minister’s department, the applicant said that he had nothing to do with creating it, or providing it, to the Minister’s department.

7. Through his second migration agent the applicant alleged “criminal conduct on the part of S & S”, and that a “fraud had been done upon DIAC” (Department of Immigration and Citizenship) without the applicant’s knowledge or consent. While an agency relationship may have been created (the applicant accepted that he had engaged S & S) S & S acted outside the scope of the agent’s authority by its fraudulent and “criminal” conduct, and did so without the applicant’s knowledge or consent.

8. For this evidence and submissions see variously:

   1)The second migration agent’s written submissions to the Tribunal on 27 November 2012 (CB 72 to CB 74). [Curiously, while in part identifying the applicant as a male in submissions [at [1] at CB 73], the applicant is referred to in other parts of submissions as if he were a woman, for example “she; “herself” (see [2] at CB 73)].

   2)The applicant’s “comments” in a “Complaints Form” to the Office of the Migration Agents Registration Authority (“OMARA”) also provided to the Tribunal on 27 November 2012 (see CB 78 to CB 84 and in particular CB 81 to CB 82).

   3)The applicant’s comments in a “Complaint Form” to the Queensland Government “Office of Fair Trading” (CB 94 to CB 100).

   4)The applicant’s second migration agent’s submissions to the Tribunal dated on 8 January 2012, but which in context was meant to be 8 January 2013. That is, the date it was faxed to the Tribunal (CB 132 to CB 133).

   5)The applicant’s evidence at the hearing with the Tribunal, as reported in the Tribunal’s decision record at [24] (at CB 144) to [31] (at CB 145) (see generally, and variously, the transcript of the Tribunal hearing).

Consideration Grounds Two and One

1. The questions for the Court posed by ground two (and, for that matter, by ground one) are:

   1)Did the Tribunal err when it held that an agency relationship was established between the applicant and S & S?

   2)If there was no error and that an agency relationship did exist, did the Tribunal err in finding that S & S acted within the scope of the authority “conferred” by this relationship when S & S submitted “false” information to the Minister’s delegate?

   3)Was there a valid application for the visa?

2. In relation to the first question above, the Tribunal had regard to SZGJO v Minister for Immigration & Anor [2005] FMCA 1349 (“SZGJO”), and found at [36] (at CB 146) to [38] (at CB 147) that:

   “[36] The Tribunal has had regard to the reasoning in SZGJO v MIAC [2005] FMCA 1349 where the applicant was also arguing that he did not give authority to the agent to lodge the application on his behalf or to provide false information. The Court made the following observations at [39]ff:

   It is open to me to conclude that the applicant wanted a long term visa that carried with it work rights and was not too particular how he got it. A protection visa application proved to be the preferred mechanism but the applicant showed little concern as to its contents. His interest was in the outcome. I find that the applicant was indifferent as to the content of the protection visa application. His instructions to Mr Shiao were general. He expected a protection visa application to be lodged on his behalf and he expected Mr Shiao to do everything necessary for that to occur. That is what he paid for…

   The applicant asserts that the protection visa application is invalid, not only because he did not sign it, but because the content of it was in part false. That may be so (I do not know) but, in my view, an applicant is just as responsible for a false application when he is indifferent as to its content as where he has been found to be knowingly concerned with the making of a false application.

   [37] This was upheld on appeal ([2006] FCA 393). The Tribunal has also had regard to the comments in SZMME v MIAC [2009] FMCA 323. In that case the applicant conceded to having signed an application form for a visa but left the details to his migration agent. The Court found that the applicant made a valid application for the visa.

   [38] The Tribunal is of the view that the circumstances of the present case are not dissimilar. The applicant instructed S&S Migration to lodge an application on his behalf. The applicant paid a fee to the agent to do so. The applicant knew that the application was for a subclass 485 visa but left the details of the application to the agent. He appeared to have been indifferent as to the content of his application. The Tribunal is satisfied, having regard to the applicant’s circumstances, that having instructed an agent to file an application on his behalf and having paid a fee to do so, the agency agreement was established and the agent acted on the applicant’s behalf by lodging the application for the subclass 485 visa. The Tribunal finds that the application for the subclass 485 visa was validly made.”

3. It is important to note that the Tribunal’s conclusion, and its antecedent reasoning, arose from the applicant’s evidence to it. Each of the antecedent findings, or elements, leading to that conclusion was probative of the evidence that the applicant gave, particularly at the hearing before the Tribunal.

4. As set out above, the Tribunal relied on the (Federal Magistrate) Court’s observations in SZGJO. The Tribunal said (at [36] at CB 146) that it had regard to the Court’s “observations” at “[39] ff”. [It would appear from what is quoted from that case in the Tribunal’s decision record that the Tribunal was actually referring to a part of [38] and a part of [39] of that case.] The Tribunal noted that that judgment was upheld on appeal at [37] (at CB 146). (See SZJGO v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 393 per Bennet J.)

5. In essence, what the Tribunal drew from that case (and also from SZMME v Minister for Immigration & Citizenship [2009] FMCA 323) was, relevantly, that an agency relationship can be created in circumstances where a person engages a migration agent to assist in the application for a grant of a visa, was interested only in that outcome, and was “not too particular” how he got it (SZGJO at [38]). The Tribunal noted that, in that case, in the circumstances presented, the applicant was “indifferent” to the contents of the application.

6. The Tribunal found that the circumstances in the case before it were relevantly “not dissimilar” ([38] at CB 147). The Tribunal’s findings at [38] (at CB 147) were illustrative of this.

7. The applicant’s initial position before the Court was that there was no agency relationship created because the applicant was misled by S & S as to the requirements of the application for the visa. The applicant submitted before the Court that he was misled by S & S which held out to him that he was eligible for the “485 visa” when he was not. This is because he did not have the requisite skills assessment. Further, that he was misled because he was told by S & S that he would be provided with the information about the requirements of the visa, and he was not.

8. This latter point appears to have been far more eloquently and clearly developed by the applicant’s counsel before the Court than by the applicant’s second migration agent before the Tribunal. The second migration agent’s focus in his submissions of 27 November 2012 to the Tribunal appeared to be focused on the “fraudulent” conduct of S & S as it related to the Minister’s department, rather than how it affected the applicant and his application for the visa.

9. Further, it is important to note, in relation to the question of whether an agency relationship was at least initially in existence, that the second agent submitted to the Tribunal, in context, with reference to S & S that, (at CB 72.5):

   “In the current case the Applicant engaged a Migration Agent to prepare and file an unspecified application for which there was no free agreement, fee disclosure or other material facts in the possession of the applicant which could have enlivened the relevant intent to mislead or deceive.”

   This would appear to support the Tribunal’s view that an “agency” arrangement had been entered into. Implicit in that was (with reference to the word “unspecified”) that the applicant was not interested in how he obtained a visa, only in the outcome.

10. The applicant’s complaint now must also be viewed in light of his actual evidence to the Tribunal, given at the hearing, relating to the matter of the engagement of S & S (at T6 line 34 to T7 line 9):

    “[The applicant]: I don’t know; that’s what I want to know, like, from that agent. So I just want to seek that advice from him. So that’s what I know, like what – what I can do, and, what, like, as much as information I can get from him. So that’s what he guided and applied for, is 485 visa.

    [Tribunal member]: So you didn’t know that you had to apply within six months?

    [The applicant]: No, I don’t know before. Sorry.

    [Tribunal member]: All right. So you came to the agent. The agent said we will apply for a 485 visa for you, and did you ask what it was? Did you ask what it required?

    [The applicant]: Yes. I asked, yes, I already tell him – I told him, like, I’ve done this course – commercial cookery and diploma hospitality management and I sort of, like,  I have to do, like, after this my student visa going to expire. So he told me – advise me, like, we can apply for, like, a work permit. He just say, like, work permit, and I said “All right. What sort of”, like “documents do you need?” He said, like, “Whatever you have done, like, the studies,” and I said “All right. That’s fine.” And he said, like, “You need a…and we can provide that documents as soon as”, like, “the file gets open. And you just send me the fees and the – passport copy. I will lodge the application.” And what I did, like, I sent him, like though the email – like, normally he’s in Melbourne, I was in Brisbane at that time, so we normally like, have a chat on the phone or through emails. And I sent the documents…”

11. What arises from this evidence (and the broader evidentiary context in which it appears) is that the applicant “instructed” S & S to lodge a visa application. Further, contrary to the representative’s submissions (at CB 72.5 – “no fee agreement”), the applicant’s evidence was that a fee was discussed. The applicant plainly knew that the “485 visa application” was to be made. This is sufficient to ground the Tribunal’ finding that an “agency agreement was established” for that purpose. The applicant plainly knew, as his evidence indicates, that an application was to be submitted on his behalf. He plainly said he sent the fee and documents as discussed. (See T7 line 17).

12. That the applicant was found to be indifferent to the detail of the application was also available to the Tribunal on the evidence before it and, as set out above, the Tribunal’s finding also answers the applicant’s charge now that no agency relationship was created because he was misled by S & S as to the requirements for the 485 visa, and that he was not given the specific information about the visa requirements.

13. The import of the Tribunal’s finding is that whether a skills assessment was necessary to meet the visa requirements, or not, and whether there was “detail” to be provided, was not of importance to the applicant. The applicant’s evidence shows that he was content to follow the advice of S & S, and complied with what he had been told to provide.

14. Further, before the Court now, the applicant has sought to present a picture of an “innocent”, “gullible person” “duped” by S & S in applying for a 485 visa without the necessary skills qualification. This echoes his representative’s submissions to the Tribunal on 27 November 2012 (see in particular at CB 73.5). That is, that he had no personal knowledge of these matters, and in particular, of the need for a skills assessment.

15. The Tribunal addressed this matter in its decision record (see at [34] at CB 146). This matter had also been raised at the hearing (see T8 line 19 to line 30, T9 line 1 to line 19). That the Tribunal was not persuaded by the applicant’s evidence, and viewed this evidence in light of his educational and migration circumstances over the preceding three years, does not reveal legal error on the part of the Tribunal. The Tribunal’s findings were reasonably open to it on what was before it. That another Tribunal member may have taken a different view does not reveal legal error in what this Tribunal member reasoned and found.

16. It is trite to note that an agency relationship can be characterised by the authority, or other capacity, given to an agent to affect a legal relationship between a principal and a third party. (See, for example, International Harvester Company of Australia Pty Ltd v Carrigan’s Hazeldene Pastoral Company (1958) 100 CLR 644; cited with approval by North, Cowdroy and Katzmann JJ in Alliance Craton Explorer Pty Ltd v Quasar Resources Pty Ltd [2013] FCAFC 29.

17. It is important for current purposes to note that whether an agency relationship is constituted is to be assessed having regard to what can be said to be the “nature” of the agreement between the alleged principal and the purported agent, or even the exact circumstances of the relationship, rather than simply just having regard to the “language” used by them. (See, for example, Norwich Fire Insurance Society Ltd v Brennans (Horsham) Pty Ltd [1981] VR 98.)

18. In the current case, the applicant’s arguments as to why an agency relationship was not created tended to merge the matters relevant to that consideration (that is, the nature and exact circumstances of the relationship), with the subsequent question posed for consideration. Namely, whether “S & S”, as the agent, acted within the scope of the authority given. This was evident with the matter of the provision to the Minister’s department of the “false” skills assessment.

19. The Tribunal’s finding that an agency relationship was created between “S & S” and the applicant must be viewed, therefore, in light of whether there was an express or implied agreement between the two.

20. Whatever else may be said about the relevant evidence before the Tribunal, it was reasonably open to the Tribunal to find that the applicant engaged S & S to give advice about applying for a visa, then to make an application for the visa, and that he was “indifferent” to the detail of that application.

21. I should note that, before the Court, the applicant submitted that there was some ambiguity when regard is had to the applicant’s evidence to the Tribunal at the hearing as to whether the applicant gave express instructions to S & S to lodge the application. In my view, that instruction was at least implicit, if not explicit, in what the applicant told the Tribunal he had said to S & S.

22. However, again, it was open to the Tribunal to see the language used by the applicant in the context of the circumstances presented. That the applicant did not use clear and express language in giving a specific instruction merely supports the Tribunal’s finding that he was “indifferent”. What the applicant really wanted, that is, in the circumstances presented to the Tribunal, and as found by the Tribunal, was a visa. As the Tribunal said, on what was reasonably and plainly open to it, the applicant was indifferent to the detail of how that could be achieved.

23. The question now becomes whether S & S acted outside the scope of the authority given to it by the applicant. The applicant now proposes three reasons why he says it did. First, that he did not authorise the making of an application that did not meet the criteria for the visa.

24. This argument is based on the assertion that there is no evidence that the applicant had ever applied for, or received, a “successful” skills assessment, which was a requirement for the visa. Further, that there is no evidence that the applicant instructed S & S to include a “false” “TRA number” in the application. Even further, the applicant argues that this was done in the context where the agent (S & S) had engaged in fraud in a number of other cases and the Tribunal considered that S & S had been “found to have lodged a number of applications containing false and misleading information” ([16] at CB 141).

25. I should note that whether S & S engaged in “fraud” in other cases does not assist in the current case without something of further relevance to this case.

26. In any event, the Tribunal’s finding of “indifference” on the part of the applicant provides the answer to this argument. That finding, as is set out above, was reasonably open to the Tribunal on what was before it. The Tribunal’s finding that the “agent” acted on the applicant’s behalf in lodging the application in these circumstances (that is, with an indifference as to detail) remains in answer to the applicant’s case now.

27. Before the Court, the applicant argued that the he “did not and indeed could not, authorise the Migration Agent to lodge a fraudulent visa application” ([2] of supplementary submissions).

28. The words “lodge a fraudulent visa” must be understood in context. With respect, a literal reading makes no sense. That context is that the applicant could not be said to have authorised S & S to make a false assertion in the visa application. That is, to engage in unlawful behaviour. The applicant argues that he could not be said to have authorised any fraudulent conduct. (The matter of “fraud” is dealt with below.)

29. I agree with the Minister that the applicant’s argument proceeds on the basis that this is a case involving an enforceable contract. However, the question in the current case, as the Minister submits, is whether the “unlawful acts” (the inclusion of the “false” TRA reference and the like in the visa application) fell within the scope of S & S’s authority.

30. In this regard, as the Minister also submits, whether the applicant gave express authority to commit the unlawful act is not relevant. (See Brown v Citizen’s Life Insurance Co Ltd (1904) 2 SR (NSW) 202; (1902) 19WN (NSW) 130 per Stephen J at 211.)

31. The Tribunal’s relevant findings represent and encompass the position that the scope of the authority given by the applicant extended to the making of the application in circumstances where the applicant knew the visa application was for a subclass 485 visa. While the applicant was indifferent to the detail ([38] at CB 147), the Tribunal “[did] not accept that the applicant was entirely unaware of the skills assessment requirement as part of a skilled visa application” ([34] at CB 146).

1. The Tribunal’s findings here were all reasonably open to it on what was before it. Given the scope of the authority, as found by the Tribunal, and as separately open to it to so find, the acts of S & S bind the applicant. This is so, given that, as a general proposition, a principal (the applicant) is bound by the acts of an agent (S & S) acting within the scope of the authority.

2. While generally an agent’s authority may be actual or apparent, it is important to note in the current case, given the applicant’s reliance now on the language of what he says he told S & S, that actual authority may be express, or relevantly, implied (see Lysaght Bros & Co Ltd v Falk (1905) CLR 443).

3. The applicant’s second reason in support of the proposition that S & S acted outside the scope of any authority was that the conduct of S & S in lodging the application with the “false” TRA reference amounted to fraud ([21] at CB 143).

4. The applicant urged the Court to make a finding, with reference to the evidence before the Tribunal, as set out at [16] (at CB 141) of its decision record, that S & S engaged in fraud. That is with reference to the submissions of the “false and misleading information” to the Minister’s department. The applicant relies on SZFDE.

5. There are a number of difficulties for the applicant here. First, the applicant says that a finding of fraud should be made by the Court in this case based on the evidence before the Tribunal (which in that sense, is also before the Court given that the Tribunal’s decision record is before the Court in an evidentiary context).

6. That “evidence” included references to “the investigation” carried out by the Minister’s department where a number of visa application records were found, which linked the applicant’s visa application to S & S (on its face that application made no reference to S & S), and that S & S had also lodged a number of other visa applications containing “false and misleading information” (at [16] at CB 141).

7. What S & S may have done in other cases cannot, on its own, be a basis for establishing such a serious matter as fraud in the current case. While the circumstances may be “suspicious”, it is evidence about the applicant’s case that is necessary, not simply the drawing of inferences from the circumstances in other cases.

8. The import of the Tribunal’s findings, as set out above, was that whatever S & S did, it did within the authority given to it by the applicant. As set out above, no legal error is revealed in the Tribunal’s relevant findings in that regard.

9. It is the case that the Tribunal also found that “false and misleading information” was given or caused to be given by the applicant, in circumstances where the application for the visa was actually lodged by S & S. This was in circumstances where the Tribunal also found that the applicant was “indifferent” as to what was in the application and in circumstances where the applicant would have had knowledge of the relevant requirements.

10. Second, as referred to above, before the Court, the applicant relied on SZFDE. The difficulty for the applicant, however, was that no satisfactory attempt was made by him to relate the circumstances of that case to the Tribunal decision. In effect, the applicant’s argument was that in SZFDE the High Court relied on  a finding of fraud made by the primary judge in relation to a migration agent (who was not a registered migration agent) to find for the applicants. The applicant claims that the migration agent here had also acted fraudulently, therefore, the Court should find for the applicant in this case.

11. The fraud perpetrated by the third party in SZFDE was such that it vitiated the process before the Tribunal. The applicants in that case had been invited to a hearing by the Tribunal, and on the evidence accepted by the primary judge, were denied the opportunity to attend the hearing by the conduct of the third party (the unregistered migration agent).

12. However, the “fraud” alleged in the current case was not said to be as a result of conduct during the process of the review by the Tribunal, but fraud in the making of the application for the visa. The applicant submitted (see at [17.2] of submissions) that “the Application (in context, the application for the visa) was vitiated by fraud”. The applicant did not explain how that vitiated the conduct of the review before the Tribunal, other than to assert this conduct rendered the initial application for the visa “invalid”.

13. This argument was put to the Tribunal by the applicant’s second migration agent. (See, for example, CB 73.4.) The Tribunal dealt with it by finding that given that S & S acted within the authority given by the applicant, the application was validly made ([38] at CB 147). It specifically rejected the submission that “the applicant was a victim of fraud” ([44] at CB 147 to CB 148).

14. No legal error is revealed in these findings, which were reasonably open to the Tribunal on what was before it. Further, I note that in his written submissions to the Court, the applicant “concedes”, at [20], that:

    “Under the general law of agency, a principal might be liable for the conduct of an agent acting within the scope of his authority, even if the agent’s act amounts to fraud (Lloyd (Pauper) Appellant v Grace [1912] AC 716)…”

15. Nor can it be said that the current circumstances are otherwise similar to those in SZFDE. There the process before the Tribunal was vitiated by the fraudulent conduct of a third party (the unregistered migration agent) who deprived the applicants in that case of the opportunity to attend a hearing before the Tribunal in circumstances where they would have wanted to attend a hearing.

16. By contrast, in the current case, the applicant was found to be indifferent to what was put in his visa application. As repeatedly stated above, that finding was reasonably open to the Tribunal. The Tribunal found that he was not “an innocent victim of criminal behaviour or a scam…” (that includes, in context, the claim of fraud) ([44] at CB 148).

17. The applicant’s third reason, in support of the proposition that S & S acted outside the scope of the authority given to it, was that the authority of S & S (a migration agency) was limited by the relevant provisions in the Act. The Act, and the Regulations, regulate and constrain a migration agent’s authority, by prohibiting the provision, by them, of false or misleading information in support of a visa application. The Act provides for “criminal sanctions where the prohibition is breached”. The applicant’s argument is that where the agent provided such information he must have acted outside the scope of the authority because it “went beyond any such relationship”. (See, for example, the applicant’s written submissions at [25].)

18. The deficiency in the applicant’s argument is that he did not satisfactorily explain to the Court the relationship between the provision of the false and misleading information and how the Act and Regulations would operate to limit the scope of the authority given by the applicant.

19. The point of what the Tribunal found was that the applicant was indifferent to what S & S did in the detail of the making of the application. His “remarkable indifference” ([44] at CB 149 to CB 150), amongst other things, was such as to make the scope of the authority wide enough to include the provision of the false and misleading information ([44] at CB 149 to CB 150). There is nothing in the Act or Regulations to reveal legal error in the Tribunal’s reasoning, or its findings, in this regard. The Act and Regulations, relevantly, at those parts relied on by the applicant now, focus on the conduct of the migration agent, not any relationship between the agent and the applicant or the scope of the agent’s authority.

20. In particular, and on the question of whether a valid application for the visa was made, I also note that the application for the visa met the requirements set out in s.46 of the Act for the making of a valid application, and did not fall within any of the bases for the making of an invalid application.

21. In all, grounds one and two are not made out.

Grounds Three and Four

1. Grounds three and four are directly concerned with the question of the false and misleading information. The complaint is that the Tribunal fell into error in its “determination” that the applicant did not meet the criterion in PIC 4020 (see Schedule 4 to the Regulations). Ground four asserts that the Tribunal fell into error in finding that there was evidence that the applicant had “given, or caused to be given” to the Minister, information that is false or misleading in a material particular.

2. In a number of important ways the basis for grounds three and four arise from the assertions made in relation to grounds one and two. This includes that the applicant had no knowledge or had given no authority, for the submission of the false trade skills information (“TRA information”), and skills certificate (“TRA certificate”), to the Minister’s department. For the reasons already set out above, the basis for that premise is not now available to the applicant.

3. In any event, some attention must be given to what the Tribunal relevantly reasoned in its decision record. The applicant applied for the visa. The criteria for the visa, relevantly, were set out at cl.485 of Schedule 2 to the Regulations.

4. As set out above in relation to grounds one and two, the application for the visa was validly made on the applicant’s behalf. That is, at the very least, he caused it to be made. Amongst the criteria for the grant of the visa is the requirement that at the time of the decision the applicant’s occupational skills have been assessed by the relevant assessing authority (cl.485.221).

5. The Tribunal’s finding that at the relevant time the applicant had not applied for any such assessment, let alone that his skills had been assessed ([40] at CB 147), was not the subject of dispute by the applicant before the Court. The applicant confirmed to the Tribunal in his evidence that he had not made any such application (see at [40] at CB 147).

6. It is important to note that before the Court the applicant argued that “the Tribunal made two decisions” (See, for example, at [44] of written submissions.) This appears to be a reference to the Tribunal’s finding that the applicant did not meet cl.485.221, and its separate finding that the applicant did not meet the requirement of PIC 4020.

7. The applicant’s submissions that these were two “decisions” must be rejected. They were plainly two independent, and separate, conclusions, or bases, upon which the Tribunal found that the delegate’s decision was to be affirmed.

8. The Tribunal itself made this plain when it stated at [41] (at CB 147):

   “While it is unnecessary to consider the remaining criteria in light of the findings above, the Tribunal has also considered whether the applicant meets PIC 4020 for the purpose of cl.485.224.”

9. In any event, I comprehend the real import of this assertion was to highlight the differences in the consequences of the Tribunal’s two findings. The applicant argues that the consequence of the finding that the applicant had made no TRA application was that the application for the visa was refused. It does not affect his capacity to make any further application for another visa. However, the applicant argues that the finding that the applicant “contravened PIC 4020” “has a substantially different effect on the Applicant’s rights in that he is automatically barred from applying for another visa for three years…” (see [44] of the applicant’s written submissions).

10. It must be emphasised that even if any legal error is found in relation to the Tribunal’s consideration of the PIC 4020 matter (and for the reasons that follow, no such error is apparent) then the finding in relation to the absence of a TRA application, assessment and certificate, in circumstances where a valid application for the visa was made, is a sufficient independent basis upon which the delegate’s decision may be affirmed, and in circumstances where no jurisdictional error is, therefore, established (VBAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 965).

11. Although not expressly explained as such by the applicant, I understand his submissions in “futility” to be directed to the question of whether the Court should exercise its discretion to grant the relief the applicant seeks if legal error is found with the “second decision”. That is, that the Court should exercise the discretion in the applicant’s favour because of what he described as the “additional punishment” contemplated by PIC 4020.

12. Before the Court, the Minister gave the statutory context which was missing from the applicant’s submissions. This was that the affirmation of the delegate’s decision by the Tribunal plainly leads to the “refusal of the application for the visa being maintained”. This leads to the application of the various parts of the Act which preclude him from applying for another visa while onshore (except a protection visa), and would mean he would be required to leave Australia or be removed, presumably to his home country.

13. I agree with the Minister’s submission that it is difficult to see ‘why it is such a terrible consequence to be back home”. Also that under s.48(1) of the Act the applicant is not precluded from applying for a protection visa in Australia if the concerns about a return to his own home country include some fear of harm. (See reg. 2.12 of the Regulations for the list of prescribed visas for the purposes of s.48(1)).

14. In any event, before the Court, the central thrust of the applicant’s attack in grounds three and four (noting that it springs from the background to the claimed relationship between the applicant and S & S as set out in relation to grounds one and two) is focused on that part of PIC 4020 in Schedule 4 to the Regulations, at cl.4020(1):

    “(1) There is no evidence before the Minister that the applicant has given, or caused to be given, to the Minister, an officer, the Migration Review Tribunal, a relevant assessing authority or a Medical Officer of the Commonwealth, a bogus document or information that is false or misleading in a material particular in relation to:

    (a) the application for the visa; or

    (b) a visa that the applicant held in the period of 12 months before the application was made.”

    [Emphasis Added.]

15. The Tribunal had regard to what was stated in the application form for the visa. In particular, that the applicant had stated that he had applied for a skills assessment to the TRA. It noted advice from the TRA that there was no record of the applicant having done so, or holding a skills assessment ([42] at CB 147).

16. The applicant confirmed at the Tribunal hearing that he had not applied for a skills assessment. The Tribunal found, based on this, that the applicant had not asked for the skills assessment, and that the skills assessment reference number which he had provided in his application for the visa was “not genuine”. It found the information the applicant gave to the Minister “was false or misleading in a material particular” ([42] at CB 147).

17. Using the language found at PIC 4020(1) the Tribunal found (at [43] at CB 147) that

    “…there is evidence that the applicant has given, or caused to be given, to the Minister or an officer, information that is false or misleading in a material particular in relation to the application for the visa. The Tribunal finds that such information was relevant to cl.485.221. The Tribunal is not satisfied that the applicant meets PIC 4020(1).”

18. The Tribunal then considered the applicant’s claim relevant as to the circumstances of the provision of this information. In particular, that it was in the best interests of Australia not to apply PIC 4020 because the applicant claimed to have been a “victim of fraud” ([44] at CB 147).

19. The Tribunal’s relevant reasoning is at [44] at CB 147 to [46] at CB 148:

    “[44] The applicant claims that it is in the best interests of Australia not to apply PIC 4020 or to grant the applicant the visa because the applicant was a victim of fraud and sought help from various government agencies and it is in the Australian interest to provide those in Australia with fair treatment and ensure the agents can be trusted and send an international message that victims of fraud are treated fairly. The Tribunal has considered, but does not accept, the applicant’s submissions. As noted above, the Tribunal does not accept that the applicant was entirely removed from the application and that he had no knowledge about the processes associated with such an application. The Tribunal does not consider that it would have been unreasonable for the applicant to seek full information from the migration agent or to even request to see the forms and various documents being submitted on his behalf. The applicant claims that he relied fully on the evidence of a professional agent and while the Tribunal accepts that he has done so, the Tribunal does not consider it unreasonable for the applicant to have been more involved in the preparation and lodgement of his application. Thus, even if the applicant was not aware of the skills assessment requirement, the Tribunal is of the view that had the applicant taken the most basic interest in his application, he would have known what was being submitted on his behalf. That is, the applicant should have known about false or misleading information being provided on his application. Instead, he has shown a remarkable indifference about the application process. The Tribunal does not accept that the applicant is an innocent victim of criminal behaviour or a scam, as he submits. The Tribunal therefore does not accept that there is a compelling interest in protecting the applicant as a victim of a scam.

    [45] The applicant also refers to his employment in Australia and claim that it is in the interest of Australia that he should be able to continue to work in Australia. The applicant presented little documentary evidence of his employment or how such employment gives rise to compelling circumstances that affect the interests of Australia (as opposed to the applicant’s employer). On the basis of limited evidence before it, the Tribunal is not satisfied that there are compelling circumstances that affect the interests of Australia that justify the grant of the visa.

    [46] The Tribunal is not satisfied that there are compelling circumstances that affect the interests of Australia or that there are compassionate or compelling circumstances that affect the interests of an Australia citizen, an eligible New Zealand citizen or an Australian permanent resident. The Tribunal has determined not to waive the requirements in subclause PIC 4020(1). The Tribunal finds that the applicant does not meet PIC 4020. The Tribunal is not satisfied that the applicant meets PIC 4020 and cl.485.224.”

20. In essence, the applicant’s argument now mirrors what he put to the Tribunal. Namely, that he did not give, or cause to be given, any false or misleading information to the Minister or officers of the Minister’s department. His argument to the Tribunal was that S & S gave the information, and did so without his authority. As set out above in this judgment, there is no legal error in the Tribunal’s finding, in the circumstances before it, and on consequent findings reasonably open to it, that S & S acted within authority and that the applicant was “indifferent” to the detail of what was submitted on his behalf.

21. The applicant’s argument now is that it was not open to the Tribunal to find adversely to him because he did not “give” or “cause” the impugned information to be given to the Minister. The applicant accepts that the relevant phrase in PIC 4020 prohibits a person from providing information that is false or misleading, or providing a bogus document and with emphasis, given the thrust of his attack, prohibits the person from “causing another person to commit” that contravention (referring to Miller v Hilton (1937) 57 CLR 400).

1. There was no dispute between the parties that S & S had “physically” lodged the application, and, therefore, “given” what was contained within, and accompanying, the application.

2. The parties diverge on what, at law, is meant by the word “causes” or “causing” in the relevant context. The applicant submits that the concept of “causing” invokes a number of elements:

   1)A direction to the person (in this case S & S) to do the relevant act (here the giving of the false and misleading information).

   2)The situation requires that the act was done in circumstances where the person (here the applicant) could make the other person (S & S) the agent of his will.

   [The above are put with reference to O’Sullivan v Truth and Sportsman Ltd (1957) 96 CLR 220 at 227 to 228 and 231.]

   3)A requirement of some degree of foresight or contemplation that the relevant act will, or may, have the result that occurred. [With reference to Miller v Hilton (1937) 57 CLR 400) and also Ross Hillman Ltd v Bond (1974) QB 435)].

3. These were, in essence, put before the Court as complaints about the Tribunal’s analysis and findings.

4. Before dealing directly with this understanding of “causes” above, I should note that in submissions the applicant drew a distinction between “given” (as in the giving of the information) and “cause to be given” (as in given by a second party).

5. There is no question in the current proceedings that the applicant did not physically “give” the information. This was plainly done by S & S. “Cause to be given” is of a different character and derived from a difference circumstance. The question in the current circumstances is whether the applicant “caused” S & S to “give” the false and misleading information.

6. That question, as the Minister submitted, is answered by the Tribunal’s findings as referred to above. Namely, that S & S acted within the scope of the authority given by the applicant to it. That is, in acting as his agent and within authority. The Tribunal found that the applicant “caused” the process of making the application for the visa, which included the giving of false and misleading information. Once the Tribunal’s findings as to agency and the agent’s conduct, as being within the authority given by the applicant, are understood (as set out above) as being free of legal error, then much of the applicant’s complaint now falls away.

7. What is left from the matters referred to at [108] above is whether PIC 4020(1) requires a “mental element”. That is, the applicant submits now that, in effect, he did not knowingly, or wittingly, instruct his agent to give false and misleading information. The applicant now asserts (as he did before the Tribunal) that there was no such express or specific instruction given by him, and that he did not know what the agent had done. He claims he did not know that false and misleading information was given and would not have agreed to it being given, had he known.

8. As the Minister submits, this is an argument by the applicant that the “test” relevant to PIC 4020(1) contains a “mental element”. The Minister asks the Court as a matter of comity to follow what was relevantly said by Federal Magistrate Driver (as he then was) (albeit obiter) in Vyas v Minister for Immigration and Citizenship & Anor [2012] FMCA 92 (“Vyas”) that the words “given or caused to be given” “…should not be construed as importing a mental element” (at [68]). His Honour’s analysis is at [57] to [67]).

9. The Minister also directed attention to Trivedi & Ors v Minister for Immigration, Multicultural Affairs & Citizenship & Anor [2013] FCCA 578 (“Trivedi”) per Judge Emmett at [34], where Her Honour agreed with “Judge Driver’s conclusion that PIC 4020 should not be construed as importing a mental element”. In Trivedi, that agreement was part of the ratio. The Minister again urges that the Court should follow it.

10. It is the case that I am not bound by either of these two judgments. But, having regard to the analysis in Vyas, I am respectfully of the view that the relevant view taken there of the construction of PIC 4020, as agreed with in Trivedi, is correct. I too agree with Judge Driver on this issue.

11. Once it is accepted that PIC 4020 is not also directed to imposing a penalty for the breach of some obligation, but rather “seeks to ensure that an applicant for a visa truly fulfils the criteria for the visa” (Vyas at [65]) or as Judge Emmett put it, PIC 4020 “is doing no more than clarifying the criteria that an applicant must satisfy for the grant of a visa” (at [35]), then the applicant’s submissions now are of no assistance to him.

12. Given the construction of PIC 4020 in Vyas, with which I agree, it makes no difference whether the applicant knowingly, or unwittingly, provided the false and misleading information, or not. On this basis, both grounds three and four are not made out.

Conclusion

1. The applicant’s grounds as further amended and explained do not reveal jurisdictional error in the Tribunal’s decision. The application to the Court should be dismissed. I will make an order accordingly.

I certify that the preceding one hundred and nineteen (119) paragraphs are a true copy of the reasons for judgment of Judge Nicholls

Associate: 

Date:17 January 2014

SCHEDULE

1. The applicant’s submissions set out the relevant legislation and regulations, as below.

   “Statutory framework

   Requirements that applications be made

   1. Section 45 of the Migration Act 1958 Act (Cth) states, “Subject to this Act and the regulations, a non-citizen, who wants a visa must apply for a visa of a particular class”.

   2. Section 45A states, “A non-citizen who makes an application for a visa is liable to pay a visa application charge if, assuming the charge were paid, the application would be a valid visa application”.

   3. Regulation 2.07 of the Regulations states, “(1) For sections 45 and 46 of the Act…if any application is required for a particular class of visa: (a) the relevant item of Schedule 1 sets out the approved form (if any) to be completed by an applicant” and “(3) An applicant must complete an approved form in accordance with any directions on it.”

   (Emphasis in original.)

   4. Section 98 of the Act states, “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”

   (Emphasis added.)

   PIC 4020

   5. PIC 4020 were introduced by the Migration Amendment Regulations 2011 (No 1) (SLI No 13 of 2011), which came into force on 2 April 2011. The Applicant was required to satisfy PIC 4020 as at the time of the decision concerning the visa application (r.886.225(a)), namely that:

   4020

   (1) There is no evidence before the Minister that the applicant has given, or caused to be given, to the Minister, an officer, the Migration Review Tribunal, a relevant assessing authority or a Medical Officer of the Commonwealth, a bogus document or information that is false or misleading in a material particular in relation to:

   (a) the application for the visa; or

   (b) a visa that the applicant held in the period of 12 months before the application was made.

   (2) The Minister is satisfied that during the period:

   (a) starting 3 years before the application was made; and

   (b) ending when the Minister makes a decision to grant or refuse the application;  the applicant and each member of the family unit of the applicant has not been refused a visa because of a failure to satisfy the criteria in subclause (1).

   (3) To avoid doubt, subclauses (1) and (2) apply whether or not the Minister became aware of the bogus document or information that is false or misleading in a material particular because of information given by the applicant.

   (4) The Minister may waive the requirements of any or all of paragraphs (1) (a) or (b) and subclause (2) if satisfied that:

   (a) compelling circumstances that affect the interests of Australia; or

   (b) compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen;  justify the granting of the visa.

   (5) In this clause: information that is false or misleading in a material particular means information that is:

   (a) false or misleading at the time it is given; and

   (b) relevant to any of the criteria the Minister may consider when making a decision on an application, whether or not the decision is made because of that information (emphasis added).

   [Emphasis in Original.]

   6. A “bogus” document is defined in s 97 of the Act as follows.

   “bogus document", in relation to a person, means a document that the Minister reasonably suspects is a document that:

   (a) purports to have been, but was not, issued in respect of the person; or

   (b) is counterfeit or has been altered by a person who does not have authority to do so; or

   (c) was obtained because of a false or misleading statement, whether or not made knowingly.”

   7. A breach by an applicant of the PIC 4020 would, in effect, result in the applicant being barred from applying for another visa for a period of 3 years. Further, the consequences of contravening PIC 4020 affects not only the primary applicant but also any related applicants. The ban applies equally to them. Finally, given the nature of the criteria, the Court should accept that it is unlikely that any applicant that has been found to have contravened PIC 4020 would be granted a visa even after the 3-year ban had come to an end. In other words, a finding that an applicant has contravened PIC 4020 has serious negative consequences for that visa applicant.

   Criteria for the relevant visa

   8. The criteria that need to be satisfied by an applicant for a subclass 485 visa, at the time of the making of the application, are set out in Schedule 2, regulation 485.21 of the Regulations. They include that:

   8.1. Each degree, diploma or trade qualification used to satisfy the Australian study requirement is closely related to the applicant’s nominated skilled occupation (regulation 485.213(b)); and

   8.2. The Minister is satisfied that the applicant has applied for an assessment of the applicant’s skills for the nominated skilled occupation by a relevant assessing authority (regulation 485.214).

   9. The criteria that need to be met at the time of decision, includes:

   9.1. “The skills of the applicant for the applicant’s nominated skilled occupation have been assessed by the relevant assessing authority as suitable for that occupation” (regulation 485.221); and

   9.2. “The applicant…(a) satisfies public interest criteria…4020...” (regulation 485.224).”