Thakur v Minister for Immigration

[2015] FCCA 1647

FEDERAL CIRCUIT COURT OF AUSTRALIA

THAKUR & ANOR v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 1647

Catchwords:
MIGRATION – Review of Migration Review Tribunal decision – refusal of a student visa – whether the Tribunal decision is vitiated by agent fraud considered.

Legislation:

Federal Circuit Court Rules 2001 (Cth)

Migration Act 1958 (Cth), s.425
Migration Regulations 1994 (Cth)

Maan v Minister for Immigration (2009) 179 FCR 581

SZFDE v Minister for Immigration (2007) 232 CLR 189
Kim v Minister for Immigration [2009] FCA 161

First Applicant: KASHIMA THAKUR

Second Applicant: RAJESH KUMAR

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: ADG 222 of 2014

Judgment of: Judge Driver

Hearing date: 17 June 2015

Delivered at: Sydney, via videolink to Adelaide

Delivered on: 17 June 2015

REPRESENTATION

The Applicants appeared in person

Counsel for the First Respondent: Mr K Tredrea

Solicitors for the First Respondent: Sparke Helmore

ORDERS

1. The application is dismissed.

2. The applicants are to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $5,800.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADG 222 of 2014

KASHIMA THAKUR

First Applicant

RAJESH KUMAR

Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This is an application to review a decision of the Migration Review Tribunal (Tribunal).  The decision was made on 27 May 2014.  The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicants Student (Class TU) Subclass 573 Higher Education Sector visas.  There are two applicants who are a husband (Mr Kumar) and wife (Ms Thakur).  Background facts relating to the visa application in issue and the decision of the Minister’s delegate and the Tribunal on it are set out in written submissions prepared on behalf of the Minister and filed on 11 June 2015.   

2. Ms Thakur is a citizen of India and applied for a Student (Temporary)(Class TU) Subclass 573 visa on 12 June 2013.[1]  Mr Kumar’s[2] right to a visa is dependent upon Ms Thakur meeting the requirements for the grant of a visa.

   [1] Court Book (“CB”) 1–20

   [2] CB 3

3. On 16 July 2013, a delegate of the Minister refused to grant the applicants a visa.[3]

   [3] The relevant decision is set out in the decision record dated 16 July 2013, at CB 67–69 (decision)

4. The decision indicates that the delegate refused to grant the visa, not being satisfied that the applicants had established “exceptional reasons for the grant of” the visa, as required by the requirements contained in clause 573.227 of Schedule 2 of the Migration Regulations 1994 (Cth) (Migration Regulations).

5. By application for review to the Tribunal made on 29 July 2013 the applicants sought review of the delegate’s decision.[4]

   [4] CB 71–81

6. The Tribunal dismissed the review application and affirmed the decision of the delegate not to grant the applicants a visa.  The Tribunal in its decision:[5]

   a)noted the requirement prescribed in clause 573.227 for the Ms Thakur establish “exceptional reasons” for the grant of the visa;[6]

   b)determined that the grounds put forward by Ms Thakur did not constitute “exceptional reasons” for the grant of a visa, and found at [19]–[20]:[7]

   The only reasons provided by Mrs Thakur were that the completion of studies in Australia would provide her with significantly increased career opportunities on a return to India. The Tribunal does not accept that her reasons constitute exceptional reasons for the grant of a Subclass 572 visa.

   In the circumstances, the Tribunal finds the applicant has failed to provide evidence of exceptional reasons for the grant of a Subclass 573 visa and therefore does not satisfy the requirements of cl.573.227.

   [5] CB 105-108

   [6] [5] and [18]; CB 106–107 and 108.5

   [7] CB 108.5

The present proceedings

1. These proceedings began with a show cause application filed on 23 June 2014.  The applicants continue to rely upon that application.  The grounds in the application are in narrative form and on their face do not properly engage the jurisdiction of the Court because they do not assert any jurisdictional error.  If the matter had been allocated to my docket from the outset I would have pointed out that to them at first court date.

2. In any event, the applicants have not been disadvantaged because the application has not been dismissed as incompetent and they have had the opportunity to advance arguments at today’s final hearing.  Only the Minister took up the opportunity afforded to the parties to provide written submissions, although I received as a submission the affidavit prepared by the Ms Thakur on 19 June 2014.

3. I have before me as evidence the court book, filed on 15 August 2014. 

4. Ms Thakur’s ground of challenge in her application to this Court does not attempt to identify any legal error. It is instead a narrative description of Ms Thakur’s circumstances.  As was stated in the context of an application for judicial review in respect to the criterion of “exceptional reasons” by Buchannan J in Kim v Minister for Immigration:[8]

   A decision of the MRT is only reviewable judicially for jurisdictional error. Judicial review is not available to review the merits of decisions of the MRT or to substitute some different judgment about the factors which it assesses and the weight which it gives to them.

   [8] [2009] FCA 161 at [6]

5. In the context of clause 573.227 of Schedule 2 of the Migration Regulations, the requirement of “exception reasons” means reasons that are unusual or out of the ordinary.[9]  A finding that circumstances, or reasons, are “exceptional” is a matter of fact for the Tribunal that is not reviewable by the Court where such a finding it is open to the Tribunal on the material before it.[10]

   [9] See Kim v Minister for Immigration [2009] FCA 161 at [5]

   [10] See Maan v Minister for Immigration (2009) 179 FCR 581

6. Essentially, the applicants are concerned that they were misled by their migration agents, who acted for them before the Minister’s delegate and the Tribunal.

7. In order to obtain the class of visa sought, Ms Thakur needed to show exceptional circumstances.  It should have been apparent following the delegate’s decision that no exceptional circumstances had been advanced.  The applicants complain that their then migration agent claimed to have submitted necessary information detailing the applicants’ circumstances in June 2013 but the relevant information was not provided until 5 July 2013.  The significance of that appears to have been that up to June 2013 Mr Kumar would have been able to apply for a visa on his own behalf.

8. The letter apparently prepared by the applicants’ then migration agent is reproduced on pages 60 and 61 of the court book.  The applicants contend that the information in that letter is incorrect and they did not authorise its provision.  As I pointed out to them, however, they adopted and adhered to that information on review before the Tribunal.[11]  The applicants sought to explain that position by telling me that they had been advised by their migration agent to stick to these reasons that had already been provided, although those reasons were not accurate.

   [11] See in particular the Tribunal’s reasons at [14]-[17], CB 108

9. Counsel for the Minister pointed out to me that the agent who acted for the applicants before the delegate was a different person to the agent who was acting for the applicants before the Tribunal.  It is entirely possible that the applicants were advised by the second agent to stick to the information proffered by the first agent.  That does not, of itself, indicate any fraud. 

10. I invited the applicants to tell me what they now say were the exceptional circumstances that would have been advanced before the Tribunal.  To my mind, those circumstances, as explained, do not differ materially from the circumstances actually put before the delegate and the Tribunal.  Mr Kumar is concerned that he missed an opportunity to make a visa application of his own but that would not have been an exceptional circumstance supporting the grant of a visa to his wife. 

11. Ms Thakur is concerned that she missed an opportunity to make a visa application offshore, which, in her view, would have removed the obligation to demonstrate exceptional circumstances.  Again, however, that could not have been a circumstance meriting a grant of the visa onshore, where exceptional circumstances were required.  The applicants may well have a complaint against one or both of the agents who represented them.  There was, however, in my view, no fraud committed against the Tribunal.  This is simply a case of the applicants probably being poorly advised and led down a path in pursuit of a particular class of visa that they were never going to be eligible for, because they could not show exceptional circumstances.

12. That is unfortunate for them but does not indicate any jurisdictional error by the Tribunal.  I otherwise agree with the Minister’s written submissions. 

13. The Minister submits that upon a fair reading of the Tribunal’s decision, there is no basis to conclude the Tribunal did other than give specific consideration to whether Ms Tahkur had established “exceptional reasons” for the grant of a visa. It stated clearly that it did not accept that such reasons had been established.  I agree.

14. As to fraud, SZFDE v Minister for Immigration[12] stands as authority that fraud on the part of a third party (such as a migration agent) that has the effect of stultifying the operation of review process to be undertaken by the Tribunal, may render any consequent decision of the Tribunal “properly regarded, in law, as no decision at all”.[13]

    [12] (2007) 232 CLR 189

    [13] SZFDE v Minister for Immigration (2007) 232 CLR 189 at [52]

15. Fundamental to the decision of the High Court in SZFDE was an emphasis in ensuring the procedural fairness requirement in s.425 of the Migration Act 1958 (Cth) had not been perverted, as a result of a third party fraud.[14]  There were however express limitations to the principle, as set out by the High Court at [53]:

    The significance of the outcome in this appeal should not be misunderstood.  The appeal has turned upon the particular importance of the provisions of Div 4 of Pt 7 of the Act for the conduct by the Tribunal of reviews and the place therein of the ss 425 and 426A.  In the Full Court French J correctly emphasised that there are sound reasons of policy why a person whose conduct before an administrative tribunal has been affected, to the detriment of that person, by bad or negligent advice or some other mishap should not be heard to complain that the detriment vitiates the decision made. The outcome in the present appeal stands apart from and above such considerations.

    [14] See [30]–[32] and [49]–[51]

16. Whatever the application of the principle espoused in SZFDE, negligence, or “other mishap” – such as an allegation of “misguided” advice as in this case – without more, is insufficient to vitiate a subsequent Tribunal process.

17. Fraud is not lightly to be inferred.  As was stated by the High Court in SZFDE at [41]:

    In the Full Court French J properly observed:

    The finding of fraud should have specified, in one place in the reasons, what was said that was fraudulent, how it was fraudulent, and how it was acted upon. The finding of fact that the magistrate made however was not challenged in these proceedings.

18. The “fraudulent document” alleged by Ms Thakur is that appearing at CB 60–61, Ms Thakur’s letter to the delegate dated 5 July 2013.

19. It is difficult to see on Ms Thakur’s case how this document perverted the course of her case before the Tribunal – given she relied upon it, adopted its contents, and put an oral case before the Tribunal at the Tribunal hearing entirely consistent with the contents of this allegedly “fraudulent” document.  Tellingly, the Tribunal found at [14]:

    When asked the grounds on which she believed the decision should be reviewed, she repeated the information she had provided in her statement to the department that given the opportunity to complete a nursing degree in Australia would provide her with significant opportunities when she returned to India.  (emphasis added)

20. This information and assertion is also broadly consistent with Ms Thakur’s own words contained at Item 38 of her visa application, at CB 6, signed by Ms Thakur herself on 12 June 2013.[15]

    [15] CB 20

21. The Minister submits that whatever construction is placed upon Ms Thakur’s dealings with her former migration agent, jurisdictional error in the nature of that as found in SZFDE is not apparent in this case.  I agree.

22. I conclude that the applicants have failed to establish that the decision of the Tribunal is affected by any jurisdictional error.  I will order that the application is dismissed.

23. In consequence of the dismissal of the application, the Minister seeks an order for costs in the amount of $5,800, which is approximately $1,000 less than the amount prescribed under the Federal Circuit Court Rules 2001 (Cth). The applicants did not wish to be heard on costs.

24. I will order that the applicants are to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $5,800.

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Judge Driver

Associate: 

Date:  22 June 2015