For the reasons outlined, no jurisdictional error is established. Accordingly, the application is dismissed.
[2]
I certify that the preceding eighty-six (86) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Coulthard.
Parties
Applicant/Plaintiff:
Singh
Respondent/Defendant:
Minister for Immigration and Citizenship [2025] FedCFamC2G 889
Legislation Cited (1)
Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021
Cases Cited (15)
The Tribunal summarised the evidence and submissions and made the following findings referring to the principles in Trivedi & Ors v Minister for Immigration and Border Protection & Anor(2014) 220 FCR 169; [2014] FCAFC 42 ("Trivedi") as to the engagement of PIC 4020(1):
In respect of the provision of the lease agreement, the applicant submitted that the visa application had been vitiated by the sponsor's fraud, that is, by fraud on the part of Mr Masum. The Tribunal accepted that the fraud associated with the preparation of the bogus lease agreement was attributed to the sponsor ([79]). The applicant's submission was that he should not be penalised by the exclusion period which would apply under PIC 4020(2) due to someone else's "unethical deeds" or "penalised" for the sponsor's actions ([79]; [81]).
The Tribunal identified the relevant principles applicable to a determination of whether a visa process is stultified by fraud by reference to the principles set out in the decision of the Full Court in Kaur v Minister for Immigration and Border Protection(2019) 269 FCR 464; [2019] FCAFC 53 ("Kaur") at [56] per Murphy, Mortimer and O'Callaghan JJ ([76]) which principles the Tribunal said include that the applicant satisfy the court to the requisite standard that they were neither complicit in the fraud nor "indifferent" to it. The Tribunal also referred to "indifference" as explained in Gill v Minister for Immigration and Border Protection(2016) 248 FCR 398; [2016] FCAFC 142 ("Gill").
The Tribunal then went on to make the following observations with respect to the provision of the bogus lease agreement to the Department:
The applicant has claimed that he should not be penalised for Mr Masum's actions. However, the Tribunal discussed with him at the hearing whether he thought that it was unusual that he should be paid wages for over two years when he was not required to work for the business paying those wages. He said that he thought that it was unusual, but that Mr Masum had told him that the business was receiving Government benefits and that is why the business continued to pay his wages. The applicant acknowledged that he sought alternative employment and received wages for that employment whilst receiving the wage payments from the nominator.
The Department notified the applicants on 20 December 2021 that it was concerned that the nominator may have ceased to trade at its nominated address. The applicant had previously been employed at the nominator's business as a Cook but had not been required to work there for over two years at the time when the Department issued its request for information. The applicants provided to the Department the documents supplied by Mr Masum and made no independent enquiries to provide a response to the Department's request for information. The Tribunal finds that the applicant was indifferent to the fraud associated with the provision of the bogus document.
Having made those observations, the Tribunal concluded that the applicant had not established that he was the innocent victim of fraud and that accordingly the visa application had not been invalidated by third party fraud ([83]).
The Tribunal then considered the further issue in the matter which was whether the nominated position was still available to the applicant ([98]).
The Tribunal stated that it explained to the applicant that even if the Tribunal found that PIC 4020 had been met, the visa application could still be refused because the position was, on the applicant's own evidence, no longer available ([102]-[103]). The Tribunal referred to the applicant's evidence that he would no longer work for the sponsor even if he was invited back to work ([103]). The applicant told the Tribunal that he was aware that the visa application could not be approved because he no longer had a nominator ([104]).
Having regard to the requirement of "position" in cl 187.233 and the authority of Singh v Minister for Immigration and Border Protection(2017) 253 FCR 267; [2017] FCAFC 105 ("Singh"), the Tribunal concluded that the applicant did not meet cl 187.233(5) in Schedule 2 of the Regulations because the nominated position was no longer available to him ([105]-[106]). The Tribunal referred to the applicant's evidence that he had been offered employment with an employer other than the nominator and stated that as the "position" referred to a particular job with a particular employer that exists at the time at which the employer nomination is submitted for approval, the recent offer of employment was not relevant ([105]).
As a result, the Tribunal found that the applicant did not meet cl 187.233(5) and that the second and third applicants did not meet cl 187.311 in Schedule 2 of the Regulations because they were not members of the family unit of a person who held a Subclass 187 visa ([106]-[109]).
Particulars
a) The Second Respondent ignored the general Australian Public Interest aspect of my application by overlooking, ignoring and not inquiring whether any compelling and compassionate reason exists in the application.
The Second Respondent made judicial error by failing to consider and taking a narrow approach rather than broadly, the concept of indifference allied to "reckless indifference" at Common law pursuant to paragraph 16 of Kaur v Minister for Immigration and Border Protection[2021] FCA 1026.
Particulars
a) The applicant was in a passive position when seeking an employment, or nomination from the Nominator and it is unusual for the applicant or any employee to conduct a company ASIC search to scrutinise the existence of the company, director and the shareholder of the company. Given the fact that the applicant worked at Mr Masum's Cinnamon Lane restaurant until December 2019 did not put the credibility of Mr Masum in doubt.
b) The fact that the Second Respondent found that the lease was a bogus document puts the credibility of the Nominator in doubt. The details of the lessor and premises are listed on the front page of the lease. Given the fact that the lessor of the lease is not the registered proprietor and was dis-registered, the nominator should be easily discovered during the due diligence period by the Immigration department at the very initial stage of approval. The Approval of the Nomination for the Department provides more confidence to the Applicant than doubting the Nominator.
(a) PIC 4020 is not directed to "innocent, unintended or accidental matters" (AS [15] referring to Trivedi at [32]) and so the Tribunal's finding that it did not need to consider the applicants' knowledge of the falsity of the lease agreement was contrary to the High Court's decision in SZFDE vMinister for Immigration and Citizenship (2007) 233 CLR 189; [2007] HCA 35 ("SZFDE") (AS [19] referring to SZFDE at [22] and Kaur at [56]);
(b) the lease agreement was not relevant to the assessment of the relevant visa criteria because whether such a lease existed is not, and cannot be, determinative of the question of employment (AS [17]).
The applicants further submitted in their written submissions that if the applicant can demonstrate that he was the innocent victim of a fraud perpetrated by a third party that will vitiate the first respondent's refusal of the visa application and will require determination afresh (AS [20]). It is not clear whether what was intended by this submission is that the applicants intended to seek a declaration that no valid visa application had been made within the meaning of ss 46 and 47 of the Act. No application to amend the relief sought in the application has been made. An application for such declaratory relief would have required a hearing to be held and evidence led which would have enabled this Court to make a finding with precision as to what the fraud was, how it was perpetrated, and what effect it had on the visa application having regard to the approach set out in Kaur at [56]-[58] (see also Elliah v Minister for Immigration and Citizenship[2025] FCA 459 at [77]- [81]).
The question before this Court is whether the Tribunal, in its consideration of whether the visa application was stultified by fraud, fell into jurisdictional error.
In summary, the Court understands the grounds of the application as now pressed in ground two of the application and articulated in the applicants' written submissions as to jurisdictional error are:
Whether the visa application was stultified by fraud is a separate issue to the application of PIC 4020(1). At the hearing before the Tribunal, the representative made a reference to the stultification of the visa application process in the applicants' submission to the Tribunal dated 22 August 2022 (CB 264-270).
The asserted invalidity of the visa application depended on whether it was affected by third party fraud on the applicants and which also stultified one or more aspects of the visa application and determination process (Kaur at [53]-58]; SZFED at [11], [28]-[37] and [47]-[55], Singh v Minister for Immigration and Border Protection (2016) 247 FCR 554; [2016] FCAFC 141 at [51]- [52] and Gill at [47]). That was the issue before the Tribunal based on the evidence before it.
The lease agreement was not provided with the visa application. It was provided by the applicant some five years later in response to the Department's request for information. Nevertheless, it is not in contention that the lease agreement must be considered as part of the visa application as it comprehends not only the form filled in by a visa applicant but also supporting documents which must be considered by the Minister under s 47 of the Act until a decision is made under s 65 of the Act (Maharjanv Minister for Immigration and Border Protection(2017) 258 FCR 1; [2017] FCAFC 213 at [108]. This was acknowledged by the Tribunal (at [80]).
The principles as to whether fraudulent conduct vitiates a visa application were set out by the Full Court of the Federal Court in Kaur at [56]-[58]. As to indifference in the context of public law fraud, the Full Court in Kaur set out the relevant principles at [134]-[140] noting that indifference approximates to what has been called "" at common law. Where a visa applicant is found to be indifferent to a fraud perpetrated by a third party as part of the decision-making process, this will avoid the unravelling effect of the fraud ( at [58](b)).
The first respondent submits that for the applicants to establish that the Tribunal's decision was affected by jurisdictional error, it is necessary to demonstrate each of the Tribunal's alternate findings were affected by legal error, that is, its finding with respect to PIC 4020 and the availability of the nominated position.
The first respondent submits that this is because either of those alternative findings would have been sufficient on its own to lead the Tribunal to affirm the decision under review (first respondent's further consolidated submissions ("FRFS") [41]). The Court agrees (Xiong v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs[2021] FCCA 1075 at [63]- [81]).
As discussed earlier, the applicant admitted at the Tribunal hearing that the nominated position is no longer available to him ([40]; [103]) and gave evidence that he would no longer work in the nominated position for the nominator and had been offered employment with another employer. The Court is prepared to infer that based on the offer of new employment (or any other new employment) the applicant will never be able to satisfy cl 187.233 because a new nomination in respect of the same position made by a new employer cannot be relied upon to meet the requirements of that clause (Singh at [88]-[89]). The Court accepts the first respondent's submission in that regard (FRFS [42]).
Accordingly, were the Court to have found jurisdictional error in respect of the Tribunal's consideration of PIC 4020, the Tribunal would have to affirm the delegate's decision on the basis that the nominated position is not available. That would be an exercise in futility.
The applicant, however, raised in submissions the three-year ban imposed by PIC 4020(2). The applicant told the Court that this was the only reason he was pursuing the application for judicial review. He submitted that he did not want to risk any future visa application not being granted because of the three-year ban.
PIC 4020(2) provided:
(2017) 258 FCR 1
(2017) 253 FCR 267
(2007) 233 CLR 189
(2014) 220 FCR 169
(2016) 247 FCR 554
(2016) 248 FCR 398
(2019) 269 FCR 464
reckless indifference
Kaur
Here, the alleged fraud associated with the preparation of the lease agreement was attributed by the applicant to Mr Masum. This was not a case in which it was suggested that the applicants' migration agent acted fraudulently. This was acknowledged by the Tribunal ([79]). Accordingly, the question for the Tribunal was whether the applicant was "indifferent" to the fraud associated with the preparation of the lease agreement by Mr Masum. There was no evidence that the applicant had colluded with Mr Masum and the Tribunal made no such finding.
The Tribunal referred to the relevant authorities as to what is meant by "indifference" in the context of public fraud. The Tribunal specifically referred to Kaur and what is meant "indifference" as explained in Gill (an authority referred to by the Full Court in Kaur in its discussion on indifference). The Tribunal then considered the applicant's evidence and submissions and made the following findings (at [81]-[82]):
The applicant has claimed that he should not be penalised for Mr Masum's actions. However, the Tribunal discussed with him at the hearing whether he thought that it was unusual that he should be paid wages for over two years when he was not required to work for the business paying those wages. He said that he thought that it was unusual, but that Mr Masum had told him that the business was receiving Government benefits and that is why the business continued to pay his wages. The applicant acknowledged that he sought alternative employment and received wages for that employment whilst receiving the wage payments from the nominator.
The Department notified the applicants on 20 December 2021 that it was concerned that the nominator may have ceased to trade at its nominated address. The applicant had previously been employed at the nominator's business as a Cook but had not been required to work there for over two years at the time when the Department issued its request for information. The applicants provided to the Department the documents supplied by Mr Masum and made no independent enquiries to provide a response to the Department's request for information. The Tribunal finds that the applicant was indifferent to the fraud associated with the provision of the bogus document.
The Tribunal concluded that it was not satisfied that the applicant had established that he was the innocent victim of a fraud and that accordingly, the visa application had not been vitiated by fraud ([83]).
The Court cannot discern any error in the approach taken by the Tribunal. The Tribunal identified the correct legal principles and applied those principles to the evidence before it. The Tribunal's conclusions on the evidence were neither illogical, irrational or unreasonable.
No jurisdictional error is established on ground two.