Sumit v Minister for Immigration

[2017] FCCA 345

FEDERAL CIRCUIT COURT OF AUSTRALIA

SUMIT v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 345

Catchwords:
MIGRATION – Student visa – allegation of fraud by migration agent – none proven – no error shown.

Legislation:

Migration Act 1958 (Cth)

Migration Regulations 1994 (Cth), sch.2, cl.572.224

Cases cited:

Gill v Minister for Immigration and Border Protection [2016] FCAFC 142

Singh v Minister for Immigration and Border Protection [2016] FCAFC 141

Applicant: SUMIT

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 186 of 2015

Judgment of: Judge Wilson

Hearing date: 7 December 2016

Date of Last Submission: 7 December 2016

Delivered at: Melbourne

Delivered on: 1 March 2017

REPRESENTATIONS

Solicitor for the Applicant: Ronald Gordon

Counsel for the First Respondent: Mr B. Gauntlett of counsel

Solicitor for the First Respondent: Sparke Helmore

ORDERS

1. The amended application filed 14 November 2016 is dismissed.

2. The applicant pay the costs of the first respondent.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 186 of 2015

SUMIT

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. When this case was first opened before me on 17 November 2016,

   
   

   the applicant’s solicitor (who had been retained very shortly prior to that day) told me the case involved a fraud by the applicant’s then migration agent in respect of whose fraud the applicant was innocent.

2. The alleged fraud was said to have been the migration agent’s provision to the Department of Immigration and Citizenship (as it then was) of a false bank deposit statement without the applicant’s authority.

3. The solicitor for the applicant told me the point had not been agitated with the Minister’s delegate and that before the Migration Review Tribunal, now the Administrative Appeals Tribunal (“the Tribunal”), the applicant was told by his migration agent not to bring the alleged fraud to the attention of the Tribunal.

4. The solicitor for the applicant told me on 17 November 2016 that he was not alleging the Tribunal made a jurisdictional error. He also told me he raised the matter for the first time on 14 November 2016 when the applicant consulted his solicitor.

5. The applicant’s solicitor told me I was required to ascertain whether or not any fraud had been involved with the completion and filing of the applicant’s application for the relevant visa. If there was, he said the application was invalid.

6. In view of the number of decisions in the Full Court of the

   
   

   Federal Court of Australia that have directed this Court to carefully examine allegations of fraud allegedly perpetrated by a visa applicant’s migration agent, I took the view that it would be unfair and potentially prejudicial to the applicant to force him to run his application for judicial review in view of a potential knock-out point in respect of fraud. As result, I made directions for the filing of affidavits and submissions and I adjourned the further hearing of this proceeding to

   
   

   7 December 2016.

7. On the resumed hearing, the solicitor for the applicant appeared.

   
   

   Mr Gauntlett of counsel appeared for the first respondent

   
   

   (“the Minister”). I conducted a full hearing into the matters the applicant urged me to consider.

Synopsis

1. In the result, I was not persuaded by the so-called evidence of fraud.

   
   

   As the applicant’s solicitor told me several times, the applicant failed in this application for judicial review if he failed on the point about the so-called fraud. In my view, the applicant failed on that point with the consequence that this proceeding must be dismissed.

Relevant factual setting

1. On 14 March 2013 the applicant applied for a Student (Temporary) (Class TU) visa.[1] The delegate of the Minister refused to grant the visa on the basis that the applicant did not meet the criteria of cl.572.224 of sch.2 to the Migration Regulations 1994 (Cth).[2] The applicant was required to meet the elements of Public Interest Criterion 4020

   
   

   (“PIC 4020”). One element of PIC 4020 was the requirement that there was no evidence the applicant had given or caused to be given a bogus document or information that was false or misleading in a material particular.

   [1] Court book filed 3 June 2015 at pp.1-7.

   [2] Court book filed 3 June 2015 at pp.50-54.

2. The Tribunal questioned the applicant about the documents he supplied in support of his visa application. The applicant told the Tribunal his parents used what he called “third party funds”.[3] The applicant told the Tribunal a distant relative provided the funding. The Tribunal’s narration of the information provided by the applicant was recorded between paragraphs 10 and 17 of the Tribunal’s reasons.[4]

   [3] Court book filed 3 June 2015, p.97 at [10].

   [4] Court book filed 3 June 2015, pp.95-101.

3. Ultimately, the Tribunal concluded that the applicant did not meet

   
   

   PIC 4020. The Tribunal affirmed the decision of the delegate.

Review in this Court

1. The applicant’s solicitor frankly conceded that his client’s case failed unless the applicant was able to show that the applicant’s migration agent perpetrated the fraud and that the applicant was blameless in that fraud.

2. It will be recalled that I permitted the applicant an opportunity to

   
   

   shore up his contentions about the alleged fraud by his migration agent, in whose fraud, so he said, he was not involved. Two affidavits emerged.[5] Each of those affidavits was allegedly made by the migration agents allegedly involved in this case. More than once I asked whether the applicant or the Minister relied on one or other or both of those affidavits. The solicitor for the applicant told me he did not rely on either of those affidavits. Likewise, Mr Gauntlett told me he did not rely on either affidavit.

   [5]

3. In view of the fact that neither party relied on any information from either migration agent, the evidentiary situation thereby created was almost the same as was the state of the evidence when this matter was first called on for hearing before me. I say “almost” because the distinguishing feature between those two scenarios was the existence of the applicant’s two affidavits, one affirmed on 14 November 2016 and the other on 24 November 2016. Those two affidavits of the applicant went into evidence without objection.

4. Relevantly paraphrased, in the first of the two affidavits the applicant asserted –

   a)he arrived in Australia in 2009 on a student visa;

   b)that visa was renewed in 2011;

   c)he applied for the further renewal of his student visa in 2013;

   d)in 2013 he consulted a particular migration agent seeking renewal of his student visa (to interpolate, that migration agent prepared one of the affidavits on which neither party relied in this case);

   e)the migration agent told the applicant that the applicant only needed a recent medical examination plus confirmation of enrolment for the visa to be extended (to interpolate again, one would have expected that conversation to have been corroborated if it took place at all);

   f)the applicant did not fill in any form in because the migration agent told the applicant the application would be lodged online;

   g)the migration agent asked for the applicant’s email address and login details;

   h)on 15 March 2016 the applicant received an email from the Department, reproduced between pages 8 and 13 of the court book;

   i)

   the applicant contacted the migration agent in relation to the

   
   

   15 March 2016 email from the Department in response to which the migration agent said he would take care of it;

   j)the migration agent asked the applicant for a sponsor letter from the applicant’s mother;

   k)the applicant did not provide the migration agent with the bank documents reproduced between pages 18 and 19 of the court book (to interpolate again, that fact was one that beggared corroborative evidence);

   l)the migration agent used the applicant’s email address and login to send the Department documents that commenced at page 8 of the court book (no corroboration of that assertion was given);

   m)the migration agent used the applicant’s email address and login to send the documents to the Department reproduced at page 22 of the court book;

   n)the applicant received an email from the Department stating that the bank information he gave was not correct so he telephoned the migration agent and the migration agent told the applicant that he could not assist the applicant any further (none of that was corroborated);

   o)the applicant then asked the migration agent why the Department had stated that the bank information was incorrect to which the migration agent told the applicant that he (the applicant) should say nothing to the Department as “it would make my case bad”[6] (none of that was corroborated);

   [6] Affidavit of Sumit affirmed 14 November 2016, p.3 at [24].

   p)

   the applicant provided material to the Department on

   
   

   20 June 2016;

   q)the applicant did not give his migration agent or the Department the documents reproduced at pages 18 and 19 of the court book, those documents allegedly being a certificate dated 15 April 2013 from Punjab National Bank and confirmation of deposit into an account with Punjab National Bank; and

   r)

   at the Tribunal hearing the applicant used a different migration agent who told the applicant not to mention the first migration agent providing the Department with bogus documents

   
   

   (that assertion was not corroborated).

5. In the second of the applicant’s two affidavits, the applicant stated that on 24 November 2016 he received a telephone call from the

   
   

   second migration agent who demanded the sum of $750.00 in order for the second migration agent to give evidence in this proceeding.

6. Counsel for the Minister chose not to cross-examine the applicant, whether as to the basis of the alleged establishment of a jurisdictional fact or otherwise. Of course, a forensic decision concerning whether to cross-examine a witness was wholly within the judgment and decision of counsel. However, that decision was to be contrasted with the statement by the Minister’s solicitor on 17 November 2016 when he told me he intended to cross-examine the applicant on his

   
   

   14 November 2016 affidavit.

The alleged fraud

1. Counsel for the Minister on 7 December 2016 opposed the contentions urged by the applicant. Mr Gauntlett relied on the recent observations of the Full Court of the Federal Court of Australia in Singh v Minister for Immigration and Border Protection[7] (“Singh”) and in Gill v Minister for Immigration and Border Protection[8] (“Gill”). In essence, counsel for the Minister submitted before me that assuming the existence of fraud, the applicant must not be aware of or complicit in any such fraud. Mr Gauntlett submitted that the applicant was in fact aware that documents upon which the applicant relied as emanating from his parents were not correct.

   [7] [2016] FCAFC 141.

   [8] [2016] FCAFC 142.

2. Most succinctly, Mr Gauntlett submitted that the applicant was aware that the bank statements that were produced to the Department were not the applicant’s parents’ documents. He said that was the proper construction of the applicant’s concession when he told the Tribunal he got them from a “third party”.[9]

   [9] Court book filed 3 June 2015 at p.98 at [13].

3. On behalf of the applicant, it was submitted that the applicant’s

   
   

   14 November 2016 affidavit was the only source of evidence that showed whether or not the applicant had actual knowledge or was indifferent to the activities of the first migration agent.

4. With commendable candour and frankness, the applicant’s solicitor conceded that the allegations of fraud were raised for the first time on 14 November 2016, two clear days before the hearing before me on

   
   

   17 November 2016. That prompted the following exchange –

   HIS HONOUR: Just pause though. I’m trying to – I’m still trying to absorb what you just put to me a few minutes ago. If this were a point that you make of it now, surely your client would have raised this before the delegate and before the tribunal – surely.

   
   

   I mean, if it’s a pivotal point that you say is determinative of this application, it seems extraordinary that it’s raised at this remarkably late stage.[10]

   [10] Transcript of proceeding, 7 December 2016 at p.17.

5. The solicitor for the applicant resisted my observation that the fraud allegation had the hallmarks of, or smacked of, recent invention.

6. The Minister contended that the Tribunal correctly made findings about the falsity of a deposit statement with Punjab National Bank.

   
   

   The Minister also contended that the elements of PIC 4020 were not satisfied.

Consideration

1. Let me begin by observing that despite the appearance of the so-called fraud allegation being a recent invention, I am nevertheless required to assess its veracity. To my mind, the best way to do that is chronologically.

2. The Punjab National Bank documents that show deposited funds, described by the applicant as third-party funds, revealed the provision of funds from a person bearing the name “Sarla Devi”.

3. The applicant affirmed that the first migration agent attended to all aspects of the visa application. It fell to the applicant to show that the first migration agent completed all documentation including the impugned deposit documentation relevant to Punjab National Bank.

   
   

   To that end, no evidence was led from the two migration agents involved in this case. I was left with the applicant’s assertions to the effect that he had no involvement in anything bogus about the documentation.

4. The applicant was not cross-examined. No doubt that was for the simple reason that the cross-examiner, who had by then already announced the Minister was not relying on the evidence of the two migration agents, was unable to put to the applicant a version of evidence contrary to that advanced by the applicant.

5. That said, the fact that the migration agents were not called and the fact that the applicant was not cross-examined did not mean that I was thereby driven to accepting the version of events as given by the applicant.

6. I do not accept the applicant’s contention that he did not know of the bogus nature of the documentation filed in support of the visa application. I say that for the reasons catalogued below –

   a)this was the applicant’s third visa application - his two other applications were made in 2009 and 2011. He was no newcomer to the visa application process;

   b)in at least one of the previous visa applications, the first migration agent had represented the visa applicant. On the balance of probabilities, I find that during at least one of those previous visa applications the applicant was told of the need for compliance with the elements of PIC 4020; and

   c)

   the applicant gave the Tribunal a detailed explanation about

   
   

   the third-party funds. That was recorded between paragraphs 10 and 12 of the Tribunal’s reasons. The explanation and detail recorded by the Tribunal was extensive. It included a question by the Tribunal whether the applicant was saying third-party funds were funds from a different person (different from him and his parents) to which the applicant agreed. The Tribunal also recorded how the applicant told the Tribunal that his parents provided money from a third party as his parents do not want to use their own money.

7. That stood in stark contrast to the assertion in paragraph 31 of the applicant’s affidavit affirmed 14 November 2016 in which he said the second migration agent told him to say –

   [I]t was a third-party document. I didn’t even know what this meant but I said this to the tribunal as this is what my migration agent told me to say.[11]

   [11] Affidavit of Sumit affirmed 14 November 2016, p.4 at [31].

8. The portion of the applicant’s affidavit just quoted painted, in my judgment, a self-serving and wildly inaccurate version of the true events. The narration recorded between paragraphs 10 to 12 of the Tribunal’s reasons showed that the applicant knew full well what a third-party document was. I am satisfied that the applicant knew as well what third-party funds were. I reject his assertions in paragraph 31 of his affidavit that he did not know what a third-party document meant. He knew. I do not accept that the applicant gave truthful evidence to me. Self-evidently, he did not.

9. Next, it is relevant to assess whether the applicant’s case was within the category of factual scenarios with which decisions such as Gill and Singh were concerned. In my view, the applicant can draw little comfort from those authorities. Here, the applicant was fully aware that he provided funds sourced from a third party and he purported to rely on a document, the Punjab National Bank deposit record, that he knew was misleading. It therefore contravened PIC 4020.

10. There was no jurisdictional fact in this case. The Tribunal made no error. For a very considerable period time the applicant has resided in this country unlawfully.

11. I dismiss his application to this Court and order the applicant to pay the Minister’s costs of this proceeding.

I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Judge Wilson

Date: 1 March 2017

Affidavit of Shiva Sesham sworn 29 November 2016 and affidavit of Mohit Nakra affirmed
7 December 2016.