Federal Court allows appeal of an Indian man in – Gill v Minister for Immigration and Border Protection [2016] FCAFC 142

Introduction

1. This appeal was heard together with that in Singh v Minister for Immigration and Border Protection [2016] FCAFC 141 (Singh).In both Singh and here, separate judges of the Federal Circuit Court of Australia (FCCA) made findings that the same migration agent had engaged in fraudulent conduct in the course of making separate visa applications for his two clients by providing false information to the Department concerning their skills.  Both visa applications were refused on the basis of the public interest criterion in PIC 4020 and the provision of false or misleading information concerning the visa applicants’ respective skills.  Both visa applicants were unsuccessful in their separate review applications to the then Migration Review Tribunal (now the Administrative Appeals Tribunal) (the Tribunal).  Each then separately brought judicial review proceedings in the FCCA in relation to the Tribunal’s decisions.  A central issue in both cases was whether the effect of the agent’s fraud meant that the visa applications were not valid visa applications.  The judicial review applications were both dismissed.  Unlike in Singh, however, the appellant’s judicial review application in this proceeding was dismissed not on the ground of lack of utility but on the basis that relief should be withheld because of the appellant’s “indifference and imputed authority in the agent”.
2. The central issue in this appeal is whether the primary judge erred in concluding that because of the appellant’s “indifference” to his agent’s fraudulent conduct and the “general authority” he had given to his agent, he had to bear responsibility for that conduct.

Summary of background facts

3.   The appellant, who is a citizen of India, entered Australia in June 2009 as the holder of a student visa.  On 3 May 2011, an application was made online in his name for a Skilled (Provisional) (Class VC) visa (the visa).  It was stated on the visa application form that the appellant had obtained a skills assessment from Trades Recognition Australia (TRA) and a reference number for that assessment was provided.
4.  On 14 April 2012, the Minister’s delegate refused to grant the appellant the visa.  The delegate stated that TRA had confirmed that there was no skills assessment with the reference number stated in the visa application form.  The delegate found that the public interest criterion in cl 4020(1) of Sch 4 to the Migration Regulations 1994 (Cth) (the Regulations) was not satisfied, which meant that the appellant could not satisfy the visa criterion in cl 485.224 of Sch 2 to the Regulations.  The appellant’s application for the visa was thus rejected.
5.  On 9 May 2012, the appellant sought a review of the delegate’s decision in the Tribunal.  He claimed that he had been the victim of fraudulent conduct by his former migration agent and that the agent had, without his knowledge, provided false information in his visa application, with the consequence that his visa application was invalid.

The appeal to this Court

21.  The notice of appeal raised the following four grounds of appeal.
22.  First, the FCCA erred in finding that there was a valid visa application in circumstances where it was satisfied that there was fraud by the migration agent and the appellant was not positively complicit in that fraud (ground 1).
23.  Secondly, the FCCA erred in finding that the appellant was “indifferent” to the fraudulent actions of his agent in a manner that amounted to a general authority to the agent (ground 2).
24.  Thirdly, the FCCA erred in considering that its finding that the appellant “was indifferent” to his agent’s fraud, having regard to the nature of that indifference, was a sufficient basis to deny the appellant the relief he sought given that the FCCA found that there was fraud by the migration agent and no evidence that the appellant was positively complicit in that fraud (ground 3).
25. Fourthly, the FCCA misunderstood which “process” was stultified by his agent’s fraud because the procedures before the Minister’s delegate and the Tribunal were not the relevant processes, rather the relevant process was the legal consequences which attached only to valid visa applications for the purposes of ss 46, 47, 48, 49 and 98 of the Migration Act (ground 4).
26. The relief sought by the appellant in the appeal included an order quashing the Tribunal’s decision and a declaration that there was no “valid visa application” within the meaning of s 46 of the Migration Act.  Alternatively, an order was sought remitting the matter to the FCCA for rehearing according to law.
27. A central issue as seen by the primary judge was whether the Tribunal erred in finding on the basis of the evidence before it that there was an agency agreement under which the agent acted on the visa applicant’s behalf in making a sub-class 485 visa application. This finding was based on evidence which indicated that the visa applicant had instructed the migration agent to lodge the visa application and that a fee was discussed.  This was found by the primary judge to be sufficient to ground the Tribunal’s finding that there was an agency agreement.  The primary judge stated at [44] that the visa applicant “plainly knew, as his evidence indicates, that an application was to be submitted on his behalf” and that he “plainly said he sent the fee and documents as discussed”.  The primary judge also found that it was open to the Tribunal to find that the visa applicant was “indifferent to the detail of the application” (at [45]).
28.  But the matter did not stop there.  Significantly, the primary judge rejected the visa applicant’s contention that he was simply an innocent or gullible person who had been “duped” by the agent.  The primary judge observed at [48] that the Tribunal had expressly addressed this matter and that it was not persuaded by the visa applicant’s evidence having regard to his educational and migration circumstances over the preceding three years.  The primary judge held that the Tribunal’s findings were reasonably open to it on the basis of the evidence before it and that it was immaterial that another Tribunal member may have taken a different view.  Perhaps reflecting the way in which the case was presented in Sran, it is evident that the primary judge determined the appellant’s judicial review challenge on the basis of the appellant needing to establish jurisdictional error in the Tribunal’s fact finding and not on the basis that the question whether or not there was a valid visa application involved a jurisdictional fact.
29. It is evident from this summary of Sran that the findings of fact were quite different from those here.  In particular, it is notable that the FCCA in Sranrejected the challenge to the Tribunal’s rejection of the visa applicant’s claims that he was simply an innocent, gullible person who had been duped by his agent.  The primary judge emphasised (at [64]) the Tribunal’s finding that it did not accept that the visa applicant was “entirely unaware of the skills assessment requirement as part of a skilled visa application”.  Moreover, as noted above, Sran was not decided on the basis of there being a jurisdictional fact which the Court had to decide for itself on the basis of all the evidence before it but rather on the basis of the need for the appellant to establish jurisdictional error in the Tribunal’s fact finding.
30. Sran is distinguishable in circumstances where, as noted above, the primary judge here expressly found that he was unable to make a positive conclusion that the appellant had colluded in his agent’s fraud, but then proceeded on the erroneous basis that it was sufficient to find that the appellant was “indifferent” to what his agent did, without confronting the issue whether that indifference extended to whether or not the agent acted fraudulently or dishonestly.  At [80] of Sran, the primary judge emphasised that the Tribunal had found that the visa applicant Sran was not “an innocent victim of criminal behaviour or a scam”.  That is to be contrasted with the more limited relevant findings made by the primary judge here. Those findings were insufficient to ground the dismissal of the appellant’s application for judicial review.
31. As to the Minister’s reliance upon Prodduturi, we consider that that decision is distinguishable for the reasons given in Singh.  In particular, it is notable that the relief sought by the appellant below included a declaration that there was no MRT-reviewable decision because there was no valid visa application (see [14] above).

Conclusion

63. For these reasons, the appeal should be allowed.  The orders dated 5 February 2015 of the FCCA should be set aside and the matter remitted to the FCCA for rehearing according to law by a judge other than the primary judge.  This is a case where we consider it is appropriate to make such an order having regard to the adverse findings of fact made by the primary judge (see AMF15 v Minister for Immigration and Border Protection[2016] FCAFC 68 at [54] per Flick, Griffiths and Perry JJ and Hinton v Alpha Westmead Private Hospital [2016] FCAFC 107 at [25] per Collier, Jagot and Perry JJ).  The Minister must pay the appellant’s costs of the appeal.  As noted above, the appellant is content to have the issue of the costs of the proceedings below deferred until the outcome of the remittal is known.
64. Orders will be made accordingly.