· 2021-08-31T07:18:52+0000 · 465 posts

Primary Judge's Decision in Fraud by Migration Agent Opposed by Appellant

Kaur v Minister for Immigration and Border Protection [2021] FCA 1026 (27 August 2021)

Ms Kaur applied for a working visa through Mr Ajjan. However, it was found that Ms Kaur had provided false or misleading information in respect of her application for the working visa. Mr Ajjan acted fraudulently in attempting to procure a visa for Ms Kaur. Ms Kaur asserts that she was a victim of fraud but the primary judge held that she was not indifferent to fraud. The Court, in adjudicating this dispute, assessed whether the primary judge's reasons were inadequate or not.

Facts:

On 12 January 2011, Mr Ajjan applied for the working visa purportedly on behalf of Ms Kaur. On 28 March 2012, a delegate of the Minister refused to grant the visa. The application being prepared by S & S Migration had been previously found to have provided false or misleading information to the Department of Immigration and Citizenship (Department). The Public Interest Criterion 4020(1) (PIC 4020(1)) then operated to impose an exclusion period upon Ms Kaur and members of her family, precluding them from making visa applications.

Mr Ajjan acted fraudulently in attempting to procure a visa for Ms Kaur. Mr Ajjan lodged a falsified document purporting to be a skills assessment by Trades Recognition Australia in support of the visa application. Ms Kaur maintained that she was the victim of fraud by Mr Ajjan. The fraud of Mr Ajjan was held not to vitiate the visa application or the decision of the Tribunal. The primary judge refused the declaration sought by the appellants that the visa application was invalid to avoid being excluded from applying for visas.

Although it was not found that Ms Kaur was complicit in the fraud perpetrated by Mr Ajjan, the primary judge considered that it was necessary for Ms Kaur to establish that she was not indifferent to the fraud of Mr Ajjan. The appellant said that the primary judge failed to give adequate reasons and erroneously concluded that Ms Kaur was indifferent to Mr Ajjan’s fraud.

Ms Kaur deposed that Mr Ajjan told her that on a working visa she would work for a year or two and that he would then apply for a temporary residence visa on her behalf. However, she had no idea that Mr Ajjan would then complete the application form and send it off to the Department. Her evidence was that Mr Ajjan told her that she would have to complete the application form herself. Ms Kaur deposed that Mr Ajjan never called her to ask her to provide the information or documents he told her would be required for the working visa.

Ms Kaur said she called to speak with Mr Ajjan from time to time to ask him when he needed to see her and when he wanted all of the documents. Despite her calling to speak with Mr Ajjan, she never got to speak to him.

Issues:

I. Whether an applicant has a “heavy burden” in respect of discharging the onus of proof that he or she was not indifferent to fraud.

II. Whether the primary judge erred by finding that Ms Kaur had not established that she was indifferent to the fraud of Mr Ajjan.

Applicable law:

Evidence Act 2008 (Cth) s 140 - provides for the standard of proof applied in civil matters.

Federal Court of Australia Act 1976 (Cth), s 24 - enumerates the appellate jurisdiction of the Federal Court o Australia.

Briginshaw v Briginshaw (1938) 60 CLR 336 at 362 - where it was held that "the seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal."

Gill v Minister for Immigration and Border Protection [2016] FCAFC 142; (2016) 248 FCR 398 - where the concept of “indifference” arose in the context of public law fraud by a migration agent.

Katragadda v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 143 - provided that it is well established that it is the visa applicant who bears the burden of proving, to the standard set out in s 140 of the Evidence Act 1995 (Cth), that she or he was nether complicit in the third party agent’s fraud nor “recklessly indifferent” to it.

Kaur & Anor v Minister for Immigration & Anor [2018] FCCA 3272 - the primary judge dismissed the appellants’ application for judicial review of a decision of the Migration Review Tribunal (Tribunal) made on 4 March 2014 to affirm a decision by a delegate of the first respondent (Minister) to refuse to grant the first appellant (Ms Kaur) a Skilled (Provisional) (Class VC) subclass 485 visa (working visa).

Kaur v Minister for Immigration and Border Protection [2019] FCAFC 53; (2019) 269 FCR 464 - their Honours found that the concept of indifference is closely allied to “reckless indifference” at common law, a state of mind which, along with intention, is capable of tainting a false statement with fraud.

Maharjan v Minister for Immigration and Border Protection [2017] FCAFC 213; (2017) 258 FCR 1 at [78] - the appellants correctly accepted that they bore the onus of proof in respect of indifference.

SZFDE v Minister for Immigration and Citizenship [2007] HCA 35; (2007) 232 CLR 189 - the High Court observed the importance in public law fraud of paying close attention to “the nature, scope and purpose of the particular system of review by the Tribunal which the Act establishes and the place in that system of registered migration agents”: at [29].

SZRUR v Minister for Immigration and Border Protection [2013] FCAFC 146; (2013) 216 FCR 445 - where the appellants bore a “heavy burden” in discharging their onus of proof in respect of indifference.

Analysis:

The first finding relied upon by the primary judge was his Honour’s rejection of Ms Kaur’s reliance on Mr Ajjan being a lawyer and a person who she trusted. Second, the primary judge concluded that Ms Kaur’s indifference to the fraud of Mr Ajjan was supported by her awareness that “it seemed too good to be true”. Third, the primary judge regarded Ms Kaur as having admitted that she knew from November 2011 that her visa application contained false information and that her failure to take any steps to notify the Department about any concern she had was indicative of her indifference to the fraud. However, Ms Kaur, as an applicant for a visa, is entitled to believe that a person acting in a professional capacity as a migration agent, including a lawyer who is a migration agent, will act lawfully.

As to Ms Kaur "it seemed to good to be true" comment, it only reveals her acknowledgment that it was odd that Mr Ajjan had not followed up with her regarding information necessary to accompany her application for the visa. It was not a concession that Ms Kaur appreciated that any visa obtained for her may be obtained illegitimately. Contrary to the conclusion that due to her failure to notify the Department was indicative of indifference, after learning of the fraudulent activities of S & S Migration, she attended no less than three migration agents, each of whom advised her that what Mr Ajjan had done should be addressed before the Tribunal. While the primary judge erred in several important respects, and at times, with respect, the reasons could have been expressed more cogently, the rationale of the primary judge was sufficiently exposed.

Conclusion:

The Court allowed the appeal and set aside the orders of the Federal Circuit Court made on 15 November 2018. The matter is to be remitted to the Federal Circuit Court for reconsideration according to law. The first respondent is ordered to pay the appellants’ costs of the appeal and of the application to the Federal Circuit Court.

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