Kaur v Minister for Immigration and Border Protection

• Jurisdiction: Australia Federal only
• Court: Federal Court (Australia)
• Judgment Date: 03 April 2019
• Neutral Citation: [2019] FCAFC 53
• Date: 03 April 2019

FEDERAL COURT OF AUSTRALIA

Kaur v Minister for Immigration and Border Protection [2019] FCAFC 53

Appeal from:	Kaur & Ors v Minister for Immigration & Anor [2018] FCCA 166
File number:	VID 167 of 2018
Judges:	MURPHY, MORTIMER AND O’CALLAGHAN JJ
Date of judgment:	3 April 2019
Catchwords:	MIGRATION – alleged fraud committed on a visa applicant during the visa application process – whether certain factual findings open to Federal Circuit Court – consideration of principles relevant to review of factual findings by appellate court – whether visa applicant was indifferent to fraud of migration agent – consideration of meaning of indifference in context of fraud in public law – whether reasons of Federal Circuit Court inadequate – appeal allowed
Legislation:	Migration Act 1958 (Cth) ss 98, 359A Migration Regulations 1994 (Cth) Sch 4
Cases cited:	Aldi Foods Pty Ltd v Moroccanoil Israel Ltd [2018] FCAFC 93; 358 ALR 683 ASB17 v Minister for Home Affairs [2019] FCAFC 38 Aussiegolfa Pty Ltd (Trustee) v Commissioner of Taxation [2018] FCAFC 122; 130 ACSR 1 Australian Broadcasting Tribunal v Bond [1990] HCA 33; 170 CLR 321 Australian Meat Group Pty Ltd v JBS Australia Pty Limited [2018] FCAFC 207; 363 ALR 113 AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133; 361 ALR 227 COZ16 v Minister for Immigration and Border Protection [2018] FCA 46; 159 ALD 120 Dincel Construction System Pty Ltd v AFS Systems Pty Ltd [2018] FCAFC 157; 360 ALR 273 DL v The Queen [2018] HCA 26; 356 ALR 197 Forster v Minister for Immigration and Border Protection [2018] FCAFC 125 Fox v Percy [2003] HCA 22; 214 CLR 118 Fry v McGufficke [1998] FCA 1499 Generic Health Pty Ltd v Bayer Pharma Aktiengesellschaft [2018] FCAFC 183; 361 ALR 248 Gill v Minister for Immigration and Border Protection [2016] FCAFC 142; 248 FCR 398 Hettiarachci v RACV [2016] VSC 97 Homart Pharmaceuticals Pty Ltd v Careline Australia Pty Ltd [2018] FCAFC 105 Jones v National Coal Board [1957] 2 QB 55 Kaur & Ors v Minister for Immigration & Anor [2018] FCCA 166 Lowbeer v De Varda [2018] FCAFC 115 Maharjan v Minister for Immigration and Border Protection [2017] FCAFC 213; 161 ALD 203 Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; 357 ALR 408 Minister for Immigration and Ethnic Affairs v Pochi [1980] FCA 85; 31 ALR 666 Minister for Immigration and Multicultural Affairs v Rajamanikkam [2002] HCA 32; 210 CLR 222 Minister for Immigration and Multicultural Affairs v SZFDE [2006] FCAFC 142; 154 FCR 365 Nichia Corporation v Arrow Electronics Australia Pty Ltd [2019] FCAFC 2 Pyramid Building Society v Scorpion Hotels Pty Ltd [1998] 1 VR 188 R v Apostilides [1984] HCA 38; 154 CLR 563 Robinson Helicopter Company Incorporated v McDermott [2016] HCA 22; 331 ALR 550 Singh v Minister for Immigration and Border Protection [2016] FCAFC 141; 247 FCR 554 Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 SZFDE v Minister for Immigration and Citizenship [2007] HCA 35; 232 CLR 189 SZIVK v Minister for Immigration and Citizenship [2008] FCA 334 SZLHP v Minister for Immigration and Citizenship [2008] FCAFC 152; 172 FCR 170 Ta v Thompson [2013] VSCA 344; 46 VR 10 Wainohu v New South Wales [2011] HCA 24; 243 CLR 181 Warren v Coombes [1979] HCA 9; 142 CLR 531 Whitehorn v The Queen [1983] HCA 42; 152 CLR 657
Date of hearing:	22 November 2018
Date of last submissions:	20 December 2018
Registry:	Victoria
Division:	General Division
National Practice Area:	Administrative and Constitutional Law and Human Rights
Category:	Catchwords
Number of paragraphs:	197
Counsel for the Appellants:	Mr R Chaile (Pro Bono)
Counsel for the First Respondent:	Mr N M Wood
Solicitor for the First Respondent:	DLA Piper
Counsel for the Second Respondent:	The second respondent filed a submitting notice, save as to costs

ORDERS

		VID 167 of 2018
BETWEEN:	HARPREET KAUR First Appellant ; ARWINDER SINGH Second Appellant ; ANGEL PREET KAUR Third Appellant
AND:	MINISTER FOR IMMIGRATION AND BORDER PROTECTION First Respondent ; ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent

JUDGES:	MURPHY, MORTIMER AND O’CALLAGHAN JJ
DATE OF ORDER:	3 April 2019

THE COURT DIRECTS THAT:

1. By 4 pm on 17 April 2019, the parties file and serve minutes of proposed consent orders reflecting the Court’s reasons, including:

(a) whether the matter should be remitted to the Federal Circuit Court, or decided by this Court; and

(b) appropriate orders as to costs.

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

REASONS FOR JUDGMENT

THE COURT:

1 This appeal concerns the continuing consequences of the fraudulent conduct of those migration agents working in the business known as S & S Migration. The question on the appeal is whether there is an appealable error in the approach taken by the Federal Circuit Court to rejecting the first appellant’s claims that the fraudulent conduct of her migration agent should be found to have invalidated her visa application.

2 The orders and reasons of the Federal Circuit Court are reported as Kaur & Ors v Minister for Immigration & Anor [2018] FCCA 166.

3 For the reasons set out below, the appeal should be allowed.

BACKGROUND

4 The appellants are husband and wife. The first appellant was the primary visa applicant. They also have a child. The visa status of the second appellant and the child is dependent on that of the first appellant.

5 The first appellant entered Australia on a student visa, granted for the purposes of enabling her to study hairdressing. Although she commenced a hairdressing course in February 2009, she then deferred because she became pregnant and had a child. Her student visa was due to expire in April 2011. A month or so prior to its expiry, the first appellant attended the offices of S & S Migration to engage them to assist her in a further visa application, having been referred there by a friend.

6 While it subsequently made some adverse findings against the first appellant about her conduct from about early 2012 onwards, the Federal Circuit Court appeared to accept the first appellant’s evidence as to what occurred when she went to see S & S Migration in March 2011 and how she later discovered her agent had fled Australia (at [19]-[21] of its reasons):

In March 2011, when her visa only had one month left before it expired, the applicant said she was told about S & S Migration by a girlfriend. The...