FEDERAL COURT OF AUSTRALIA

Kaur v Minister for Immigration and Border Protection [2019] FCA 212

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellants pay the first respondent’s costs of and incidental to the appeal, as assessed or agreed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

(Revised from transcript)

BROMWICH J:

1    This is an appeal from orders made by a judge of the Federal Circuit Court of Australia on 27 June 2018. Her Honour dismissed an application for judicial review of a decision of the second respondent, the Administrative Appeals Tribunal. The Tribunal had, on 6 April 2016, affirmed a decision of a delegate of the first respondent, then known as the Minister for Immigration and Citizenship, made in April 2012, to refuse the grant of a Skilled (Provisional) (Class VC) subclass 485 visa to the first appellant, Mrs Kuldip Kaur. Mrs Kaur’s husband, the second appellant, was the secondary visa applicant, and therefore reliant on her visa application. He had no independent role at any stage.

Adjournment application

2    On 8 August 2018, a registrar of this Court made procedural orders for the preparation and hearing of this appeal, including that the appellants file and serve written submissions by 10 business days before the hearing of the appeal. The covering email sending those orders to the appellants referred to the appeal likely being heard in the period from 5 to 30 November 2018. On 24 August 2018, Mrs Kaur emailed the Court’s registry, asking that the matter be heard in December 2019 so that she could obtain legal representation. The Minister consented to the appeal being adjourned for hearing in February 2019.

3    On 12 December 2019, an email was sent to the parties by a registrar of the Court, advising that the Court was considering a possible listing of this appeal in the 4 February 2019 to 1 March 2019 appeal sittings.

4    On 11 January 2019, a further email was sent to the parties from the Court, advising that this appeal would be heard by me at 10.15 am on 15 February 2019. Thus, the appellants were required to file and serve their submissions by 1 February 2019. They did not do so, nor communicate any inability to do so to the Court or to the Minister. Instead, on 7 February 2019, Mrs Kaur sent the following email to the registry, seeking an adjournment in order to obtain legal representation (verbatim):

Dear sir/Madam,

file number:NSD1236/2018

file name kuldip kaur &Anor.

Dear sir/madam,

Due to the lack of funds, i filed the notice of appeal (NSD1236/2018) as a self represented applicant.

i have now recently managed to obtain enough funds in order to brief a barrister on 29 January 2016 i contacted Mr Adrian joel of Adrian joel & co solicitors in order to engage the service of a barrister Mr Olivier jones.

Mr joel requesteda copy of the appeal book and other documents.

on 31 January 2019 Mr joel replied with instructions that Mr Olivier jones is unavailable on Friday 15 February 2019.

please note that Mr Adrian joel and Mr Olivier jones represented me at the federal circuit court of Australia (syg1094/2016)

A number of issues require precise articulation. matters of singh v minister for immigration and border protection (2016) FCAFC141 and gill v minister for immigration and border protection (2016) FCAFC 142 are extremely important and relevant to this matter. mr Olivier jones would be the appropriate person to prosecute my matter

in all of the circumstances i kindly request on adjournment and provide an undertaking that Mr Adrian joel and Mr Olivier jones will be present at any adjourned hearning date.

i apologise for any inconvenience but please understand my difficult situation.

as a self represented applicant i will not be able to articulate any technical issues and make out my case. therefore i would be denied justice.

your cooperation and kind consideration regarding this matter is greatly appreciated.

please help,

kind regards,

kuldip kaur

5    The registry referred that email to my chambers and advised Mrs Kaur accordingly by reply email on 8 February 2019. Later the same day, the registry again emailed Mrs Kaur as follows:

Dear Ms Kaur

Further to below, please note that any adjournment application needs to be made either at or prior to the appeal hearing date (Friday, 15 February 2019), supported by affidavit or oral evidence, together with any documents relied upon.

The deponent (the person making the affidavit) must be available at Court for cross-examination. No assumption should be made that any such application will succeed or that the appeal hearing will not proceed as listed. If any adjournment applica[tion] that is made is not granted, the appeal will proceed at the appointed time of 10.15 am on Friday, 15 February 2019.

Kind regards

…

6    The Minister’s solicitors advised by email later on 8 February 2019 that the appellants’ request for an adjournment was opposed in circumstances in which there was no solicitor on the record and given the lateness of the request.

7    When the appeal was called on for hearing, Mrs Kaur sought to hand up an affidavit. After seeing the affidavit, counsel for the Minister did not object to the affidavit being handed up, nor to it being read. Upon the reading of the affidavit, there was no application to cross-examine Mrs Kaur. The text of the affidavit is as follows (verbatim):

1.    I ‘am the applicant and authorised to prepare this affidavit

2.    Due to lack of funds, I filed the Notice of Appeal (NSD 1236/2018) as a self represented applicant..

3.    I have recently managed to obtain enough funds in order to brief a barrister.

4.    On 29 January 2019, Mr Adrian Joel of Adrian Joel & Co Solicitors was contacted with view of engaging the services of a barrister Mr Oliver Jones.

Mr Joel requested a copy of the appeal book and other documents.

5.    On 31 January 2019, Mr Joel replied with instructions that Mr Oliver Jones is unavailable on Friday, 15 February 2019.

6.    On 12 February 2019, Mr Joel reinforced that if an adjournment was granted on Friday, 15 February 2019, then Mr Oliver Jones will be in a position to attend any foreshadowed hearing.

7.    Please note that Mr Adrian Joel and Mr Oliver Jones represented me at the Federal Circuit Court of Australia (SYG1094/2016).

8.    A number of issues require precise articulation. Matters of Singh v Minister for Immigration and Border Protection (2016) FCAFC141 and Gill v Minister for Immigration and Border Protection (2016) FCAFC 142 are extremely important and relevant to this matter. A legally trained person of the calibre of Mr Oliver Jones would be appropriate person to prosecute my matter.

In all of the circumstances, I Kindly request an adjournment and provide an undertaking that Mr Adrian Joel and Mr Oliver Jones will attend any adjourned hearing date.

I apologise for any inconvenience, please understand my difficult situation. Asa a self represented applicant, I will not be in a position to articulate any technical Issues and make out my case. Therefore, I would be denied justice.

Your cooperation and kind consideration regarding this matter is greatly appreciated.

8    Mrs Kaur relied upon her affidavit to make a formal adjournment application on behalf of herself and the second appellant, reiterating that the reason for seeking it was that their barrister was not available. I pointed out to her the history of listing and adjournments referred to above, and that only approaching a lawyer on 29 January 2019, three days before her submissions were due, was a virtual guarantee that they could not be furnished as required.

9    The Minister submitted that even taking Mrs Kaur’s affidavit at face value, there was no supporting evidence from her proposed lawyers, and that she could have approached another lawyer to appear for her, noting that the Minister’s original counsel had not been available.

10    I refused the adjournment upon the basis that there was an insufficient explanation for the delay in seeking legal representation. I was, and am, firmly of the view that there could be no confidence that the situation would be any better at an adjourned date, despite the assurances and purported undertaking given in Mrs Kaur’s affidavit. As already noted, the appeal was fixed for hearing some considerable time ago. Its presence in the list prevented other appeals being listed for hearing.

11    I asked Mrs Kaur what submissions she wished to make in support of the appeal. In substance, she reiterated what had been her case before the primary judge, as detailed below, to the effect that there had been fraud by her migration agent, that she was not involved in that fraud and that she disagreed with the conclusions reached by the primary judge. Mrs Kaur then sought and was granted a short adjournment, without opposition from the Minister, to consult with her husband, the second appellant. She made further submissions upon resumption, as summarised below.

Overview

12    The appellants arrived in Australia on Subclass 572 Student visas in 2009. In March 2011, they applied for the Skilled (Provisional) (Class VC) subclass 485 visa under s 65 of the Migration Act 1958 (Cth). In February 2012, the Minister’s Department contacted Mrs Kaur by letter and invited her to comment on adverse information in relation to her visa application. She did not respond to that invitation.

13    On 18 April 2012, the delegate refused to grant the visa on the basis that Mrs Kaur did not satisfy the requirements of cl 485.224 of Schedule 2 of the Migration Regulations 1994 (Cth). On 15 February 2013, the appellants lodged an application for merits review with the then Migration Review Tribunal (MRT) for review of the delegate’s decision. On 10 April 2013, the MRT decided it did not have jurisdiction to review the delegate’s decision as the appellants did not lodge the application for review within the prescribed time period. On 24 June 2015, the Department decided that the appellants were not correctly notified of the delegate’s decision, so re-notified the appellants. On 9 July 2015, the appellants applied to the Tribunal for merits review of the delegate’s decision (the MRT having amalgamated with two other tribunals to become the Administrative Appeals Tribunal on 1 July 2015). On 6 April 2016, the Tribunal handed down its decision affirming the decision of the delegate not to grant visas to the appellants. On 4 May 2016, the appellants filed an application in the Federal Circuit Court of Australia, seeking judicial review of the Tribunal’s decision.

14    A relevant criterion for the grant of the visa was Public Interest Criterion 4020 (PIC 4020), set out in Sch 4 of the Regulations. PIC 4020 relevantly required the delegate, and thus the Tribunal in the delegate’s shoes, to be satisfied that there was no evidence that the visa applicant had given or caused to be given to the Minister, an officer, or the Tribunal a bogus document or information that is false or misleading in a material particular in relation to the application for the visa. Section 5(1) of the Migration Act provides:

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.

15    Mrs Kaur’s visa application was accompanied by a reference that indicated that she had obtained a successful skills assessment by Trades Recognition Australia (TRA). The delegate noted that the TRA did not have any record of ever providing Mrs Kaur with a skills assessment. The delegate concluded that she had therefore provided false or misleading information in her application and therefore did not meet the requirements of PIC 4020.

16    The primary judge summarised the Tribunal’s findings of fact as follows (at [37]) :

  a)    The Applicant’s visa application provided a TRA, suggesting that she had a successful skills assessment.

  b)    The Trades Recognition Australia has no record of providing the Applicant with the particular skills assessment.

  c)    The Applicant stated that she was unaware of the actions of S&S Migration.

  d)    The Applicant stated that she was an innocent victim of fraud.

  e)    The Applicant gave evidence that she dealt with a man named Jatinder Singh, whom she understood to be associated with S&S Migration. At her flatmate’s advice, the Applicant contacted Jatinder Singh who told her she would be eligible for a visa with full work rights for two years.

  f)    The Applicant never travelled to Melbourne and has never met Mr Jatinder Singh in person.

  g)    The Applicant transferred $2500 into an account number given to her by Mr Jatinder Singh. The transfer of this money was in consideration for Mr Jatinder’s assistance in helping the Applicant obtain a visa.

  h)    The arrangement between the Applicant and Mr Jatinder Singh of S&S is an agency relationship, although there is no evidence that there was ever a signed service agreement or retainer.

  i)    The Applicant paid Mr Jatinder Singh $2500 for S&S to provide migration services which enlivened an agency arrangement.

  j)    Implied in the Applicant’s evidence is that she did not authorise S&S Migration to commit fraud on her behalf, with the inference being that the actions of S&S Migration went beyond any agency arrangement.

  k)    The Applicant engaged S&S Migration for assistance with obtaining a visa.

  l)    The agent acted within the scope of his authority.

m)    The Applicant had “caused” the process of making the application for the visa, which extended to the giving of false and misleading information.

17    The primary judge summarised the Tribunal’s reasoning and conclusions as follows (at [38]-[44]):

The Tribunal was mindful of that fact that PIC 4020 did not require the Applicant to have perpetrated or have been aware of the false and misleading information (see Trivedi v Minister for Immigration and Border Protection [2014] FCAFC 42).

The Tribunal accepted the Applicant’s evidence that her flatmate advised her to contact Mr Jatinder Singh of S&S Migration who told her she should be eligible for a visa with full work rights for two years.

The Tribunal found on the evidence and material before it, that by the Applicant engaging S&S Migration to act on her behalf for the visa which is the subject of review, the Applicant had given or caused to be given information that was false or misleading in a material particular in relation to that visa application.

The Tribunal considered whether the PIC 4020(1) should be waived. In doing so, the Tribunal considered whether there were compelling circumstances that affected the interests of Australia, or whether there were compassionate or compelling circumstances that affected the interests of an Australian citizen, Australian permanent resident, or an eligible New Zealand citizen, which may justify the granting of the visa.

The Tribunal noted that the Applicant was unable to identify any Australian citizens, Australian permanent residents, or eligible New Zealand citizens whose interests would be affected by the matter. The Tribunal noted the two statutory declarations received post-hearing which detailed the second applicant’s ill health as well as the Applicant’s pregnancy through in vitro fertilisation. The Tribunal was not persuaded that the statutory declarations constituted compassionate or compelling circumstances which would affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen.

The Tribunal found that the applicant did not satisfy PIC 4020 for the purposes of cl.485.224 of Schedule 2 of the Regulations. The Tribunal further noted that there was nothing before it to suggest that the applicant could satisfy the requirements for a Subclass 487 visa, being a subclass of the Class VC visa.

Accordingly, on 6 April 2016, the Tribunal affirmed the decision under review, refusing the applicants Skilled visas.

18    The only ground of review that was pressed before the primary judge, by counsel appearing for the appellants, was as follows:

The Tribunal made a jurisdictional error as it had no jurisdiction in the proceeding on the ground that the original application for the visa was not valid as it was vitiated by the fraud of a third party.

19    A declaration was also sought that the visa application was invalid for third party fraud.

20    The primary judge described the only issue before her Honour as being the factual question of whether Mrs Kaur was indifferent to, or complicit in, the fraud committed by her then migration agent to try and obtain a visa, or whether she was also the victim of a fraud by the migration agent. If she was only a victim, she was entitled to the relief that she and her husband sought, following Singh v Minister for Immigration and Border Protection [2016] FCAFC 141; 247 FCR 554 at [14].

21    Mrs Kaur swore an affidavit and was cross-examined at length by counsel then appearing for the Minister. The primary judge reached the following conclusions about her evidence, including as to why she had not produced documents in answer to a subpoena issued by the Minister seeking evidence of payments to, and communications with, the migration agent (at [54], [56]):

The Applicant was cross examined for almost two hours. The impression that I formed was that the Applicant is an educated, intelligent woman. She was able to answer responsively and succinctly any question that she felt was either innocuous or in her interests. However, whenever any matter was put to the Applicant, the answer to which she thought may not assist her, the Applicant became unresponsive, obtuse and obfuscating in her answers.

…

[consideration of subpoena related evidence]

Again and again, the Applicant demonstrated herself to be a person whose testimony is totally unreliable. In the circumstances, I do not accept any of the Applicant’s evidence that is not otherwise supported by the documents. Accordingly, I do not accept that the Applicant transferred $2,500 to an account number given to her by her migration agent. I do not accept that she is an honest person who did not want dishonesty in her visa application. I do not accept that she would never have authorised the migration agent to make false statements on her behalf.

22    The primary judge made the following adverse findings (at [57]-[59]):

It is common ground that the Applicant did not know that the application contained a false TRA assessment. The question before the Court is whether or not the Applicant, by her conduct, engaged in wilful blindness such that the Applicant could be said to have been complicit or involved in the fraud of the migration agent. I accept that is a very high threshold. However, having regard to the Applicant’s complete lack of interest, involvement or engagement in the visa application; and having regard to her education and intelligence, I am satisfied that the Applicant demonstrated wilful blindness in relation to the conduct of the migration agent.

I am satisfied that the Applicant would have authorised the migration agent to do whatever was necessary, including by dishonest means, to obtain the visa for which she applied. I do not accept that had she known about the false TRA assessment, the Applicant would have declined to authorise the application containing that false TRA assessment. Further, the Applicant knew that the Department did not have her correct email address.

In the circumstances, I find that the Applicant did not engage with the 485 visa application process. On the evidence before me I am satisfied the Applicant was indifferent to the means by which her migration agent procured her visa for her. I do not accept that she was a victim of fraud by her migration agent. As stated above I find the Applicant was indifferent as to whether her migration agent used unlawful and dishonest means to obtain a visa (see Gill v Minister for Immigration and Border Protection [2015] FCCA 1 at [48-51] as per Kenny, Griffiths and Mortimer JJ).

23    The primary judge then referred further to Singh at [52] on the question of declaratory relief and went on to say the following (at [61]-[74]):

In the case before this Court, as stated above, relevant and factual findings have been made as to the Applicant’s indifference to any dishonesty by her migration agent in obtaining a visa. Based on the evidence before me, I am satisfied that the Applicant was not the victim of non-complicitous fraud and that the Tribunal’s decision making process has not been stultified.

Counsel for the applicants conceded that in the event I made such findings, that the Applicant could not succeed in the relief she claimed.

The Tribunal found that the arrangement between the Applicant and the migration agent was an agency relationship for the purposes of the visa application. The Tribunal found that the Applicant paid a fee of $2,500 to the migration agent. The Tribunal found that the migration agent acted within the scope of his authority and that the Applicant had caused the process of making the application for the visa, which extended to the giving of false and misleading information.

The Tribunal found on the evidence before it that by engaging the migration agent to act on her behalf for the visa the subject of the review, the Applicant gave or caused to be given information that was false or misleading in the material particular in relation to the visa application.

The Tribunal found that the provision of false details in the visa application form (being that a skills assessment had been obtained) is relevant to the time of decision criterion that the Applicant’s skills must be assessed as suitable by a relevant assessing authority for the nominated skilled occupation. In the circumstances, having regard to the false TRA, the Tribunal found that PIC 4020(1) was not satisfied.

The Tribunal then considered whether the requirements of PIC 4020(1) should be waived. The Tribunal did not accept that there was anything about the Applicant’s personal background that gave rise to compelling circumstances affecting the interests of Australia and found that there were neither compassionate nor compelling circumstances such that PIC 4020(1) should be waived.

The Tribunal then concluded that the Applicant did not satisfy PIC 4020 for the purposes of cl.485.224 of Schedule 2 of the Regulations and, accordingly, affirmed the decision under review.

In the circumstances, the Tribunal’s findings were open to it on the evidence and material before it and for the reasons it gave.

Accordingly, the original application for the visa was a valid application and was not vitiated by the fraud of a third party.

In the circumstances, the Tribunal’s decision was not affected by jurisdictional error and the proceeding before this Court should be dismissed with costs.

Conclusion

A fair reading of the Tribunal’s decision record makes clear that the Tribunal understood the claims being made by the applicants; explored those claims with the Applicant and her migration agent at a hearing; and, had regard to all material provided in support, including post hearing submissions by the migration agent. The Tribunal put to the Applicant matters of concern it had about her evidence and noted the Applicant’s responses.

The Tribunal then made findings based on the evidence and material before it. Those findings of fact were open to the Tribunal on the evidence and material before it and for the reasons it gave. A fair reading of the Tribunal’s decision record makes clear that the Tribunal reached conclusions based on the findings made by it and to which it applied the correct law.

In the circumstances, the Tribunal complied with its obligations under the statutory regime in the making of its decision, including the conduct of its review.

Accordingly, the Tribunal’s decision that the visa application was a valid application is not affected by jurisdictional error and the relief sought should be refused.

24    On 1 July 2018, the appellants filed the present notice of appeal. The grounds of appeal are as follows:

I am not agree with decision

Decision of unreasonable

decision ungegaly [legally] unreasonable, error of law.

25    Upon the resumption of the appeal hearing, the first appellant made the following further oral submissions, noting that she:

(1)    did not agree with the primary judge’s decision; and

(2)    had no part in the fraud carried out by her migration agent.

26    The Minister submits in writing, provided to the appellants prior to the appeal hearing, which the first appellant said that she had previously read:

(1)    that the primary judge had the advantage of seeing Mrs Kaur give evidence, and found that her testimony was “totally unreliable”: see [56] of her Honour’s reasons, reproduced at [21] above;

(2)    that her Honour also found that, having regard to Mrs Kaur’s education and intelligence, her complete lack of interest, involvement or engagement in her visa application demonstrated wilful blindness to the conduct of her migration agent: [57]-[58];

(3)    those findings were open to her Honour and are not so obviously improbable as to be capable of being set aside on appeal within the principles in Fox v Percy [2003] HCA 22; 214 CLR 118 at [20]-[31] (see also Fard v Minister for Immigration and Border Protection [2013] FCAFC 126 at [23]);

(4)    Mrs Kaur had the onus of demonstrating that she was not indifferent to the dishonesty of her agent, citing Mohammed v Minister for Immigration and Border Protection [2018] FCA 767 at [30];

(5)    Mrs Kaur failed to discharge that onus;

(6)    having found that Mrs Kaur was indifferent as to the dishonesty of her migration agent, her Honour was correct to find that “non-complicitous” fraud on Mrs Kaur was not established, citing Gill v Minister for Immigration and Border Protection [2016] FCAFC 142; 248 FCR 398 at [48]-[49]; and

(7)    the appeal should therefore be dismissed with costs.

27    The Minister’s submissions should be accepted. This appeal, whether upon the grounds in the present notice of appeal, or as could be better drafted, has no serious prospect of success. As counsel appearing at the hearing before the primary judge conceded, if her Honour was satisfied that Mrs Kaur was not the victim of non-complicitous fraud and that the Tribunal’s decision making process had not been stultified, she could not succeed in obtaining the relief she claimed.

28    As no error on the part of the primary judge has been identified, let alone established, the appeal must be dismissed. There is no reason why the appellants should not pay the Minister’s costs.

29    The orders of the Court are:

(1)    The appeal be dismissed.

(2)    The appellants pay the first respondent’s costs of and incidental to the appeal, as assessed or agreed.

Associate:

Dated:    15 February 2019