Australian Immigration Daily News

 There are times when you read a migration case and you just shake your head in amazement! 

Because, sometimes, a case is so bad, so hopeless, that you wonder what the case was ever doing in the Tribunal, let alone the Federal courts.  Even worse, when the words that spell doom for the visa holder’s case come straight out of his own mouth.  

A case that had this quality of appearing to be totally “dead on arrival” was just reported on Austlii this month, Singh v Minister for Immigration & Anor (2016) FCCA 1663 (7 July 2016). 

When you see a case like this, it makes you ponder whether the underlying purpose of the litigation was simply to prolong the person’s period of stay in Australia. 

It is impossible to know  for sure what the motives or strategy might have been in the Singh case. 

But what is apparent is that in this case the wheels of justice moved at a snail’s pace, or perhaps even more slowly (prizes given to anyone who can identify a creature that moves more slowly than a snail! A tortoise?) 

So the practical effect of this litigation was to prolong the visa holder’s ability to stay in Australia for a number of years. 

That’s right! 

The story here was that the litigant was originally granted a “Skilled – Independent Overseas Student Visa” – Subclass 880 in 2008. 

It appears from the Federal Circuit Court’s decision that the entire premise on which this visa was originally granted was flawed, faulty or dishonest, however you would like to characterize it: 

This was one of those stories where there was apparent fraud on the part of the visa holder’s migration agent. 

According to the visa holder’s account before the Tribunal, the visa holder had a conversation with this agent where the agent supposedly told him: “to pay him money and he would fix everything up for him”.  The visa holder understood this statement from the agent to mean that the agent would “fix the work experience” necessary for the visa holder to satisfy the criteria for the grant of the visa. 

Well, apparently what happened was the Department launched an investigation into the activities of certain “nefarious” migration agents in Victoria.  Through this investigation, the Department discovered that a letter had been provided to the Trades Recognition Authority which falsely stated that the visa holder had worked as a cook at a fish restaurant for more than 900 hours.  And that false work reference was apparently sufficient to get the TRA to issue a positive skills assessment, which led to the grant of the visa. 

We’ve heard that one a few times, haven’t we? 

It was not until 2012 that the Department’s Visa Cancellation Unit sent a notice to the visa holder under section 107 of the Act notifying him that the Department was considering cancelling his visa on the basis that he had given information in the visa application concerning his work experience that was not correct. 

In the event, the only response that the visa holder gave to the Department in reply to this notice was that he was “very concerned about his possible cancellation” and that he was “devastated that there was no paper trail” from which it could be established that he had gained experience, and lastly, that he had suffered “severe stress and anxiety and a lot of expenditure as a result of this matter”. 

Unsurprisingly, these submissions were not effective to persuade the Department’s officer not to proceed with cancellation of the visa! 

So what about the Tribunal, what happened there? 

The visa holder dug himself into a deeper hole! 

When the visa holder appeared at the hearing before the Tribunal with another migration agent,  the Tribunal was apparently informed that “they had no issue they wished to raise in respect of the validity of the section 107 notice”.  Further, when the visa holder was questioned by the Tribunal about the alleged falsity of the work reference that had been given to the TRA, he replied that he had never heard of the restaurant which had provided an employment reference for him to the TRA and that he had never been there.” 

In short, the visa holder had, by his own admission, had absolutely no meritorious case to put to the Tribunal.  In common parlance, he literally did not have a proverbial leg to stand on! So obviously, his case before the Tribunal “crashed and burned”. 

Nonetheless, the visa holder then took his case to the next step, and sought judicial review before the Federal Circuit Court. 

His case wasn’t any better there! 

At the hearing before the court, the visa holder frankly admitted when questioned by the presiding judge (Justice Wilson) that the work reference had been false. 

Case fried? 

You betcha! 

Justice Wilson observed that: “In certain circumstances, an unequivocal admission will support the entry of judgment against the party making the admission”. 

Here, the visa holder’s admission that his work reference was false was fatal! 

And did suggestions that others had allegedly participated in helping to obtain the false work reference save him? 

No.  They did him no good at all. 

Justice Wilson held that it made no difference at all that other persons may have been involved in providing the false work reference to the TRA that had ultimately led to the grant of the visa.  In the court’s view, the visa holder was ultimately responsible for the correctness of the information provided to the Department under section 98 of the Act.  And further, as per the holding in the Trivedi case, there is no requirement that a visa applicant have been “knowingly complicit in the provision of purposely untrue material”. 

Yet, even though the visa holder in Singh essentially had zero basis for contesting the visa cancellation, the trail of proceedings through the (then MRT) and then to the Federal Circuit effectively enabled him to remain in Australia for many years, on a visa that should never have been granted to him in the first place:  although the Department had originally sought to cancel his visa through the section 107 notice in August 2012, the hearing before the Tribunal did not take place until September 2013; the Tribunal’s decision affirming the cancellation was handed down in October 2013; the hearing on the judicial review application did not take place until March 2016; and the decision of the court was given in July 2016. 

So effectively the proceedings before the Tribunal extended the visa holder’s lawful right to remain in Australia for nearly 4 full years. 

Should the wheels of justice turn more quickly? The fact that they did not in this case clearly operated to the visa holder’s benefit! 

Concordia Pacific, Email: This email address is being protected from spambots. You need JavaScript enabled to view it.