Kaur & Anor v Minister for Immigration and Border Protection & Anor [2019] HCATrans 229 (15 November 2019)

Last Updated: 19 November 2019

[2019] HCATrans 229

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S69 of 2019

B e t w e e n -

KULDIP KAUR

First Applicant

DALBIR SINGH

Second Applicant

and

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

Application for special leave to appeal

KIEFEL CJ
GORDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 15 NOVEMBER 2019, AT 11.30 AM

Copyright in the High Court of Australia

____________________

MR A.M. PICKLES, SC: May it please the Court, I appear with my learned friend, MR M.D. SEYMOUR for the applicants. (instructed by the applicants)

MR T. REILLY: If the Court pleases, I appear for the first respondent. (instructed by Sparke Helmore)

KIEFEL CJ: Yes, Mr Pickles.

MR PICKLES: Your Honours, the special leave questions, which we seek to advance can perhaps be, in the light of my learned friend’s response, referring to Kaur v Minister for Immigration ‑ not this Kaur, but a different case of Kaur v Minister ‑ raises perhaps a way in which we can distil the first question in this way. In the absence of actual knowledge of fraudulent conduct of a migration agent, what state of mind of the visa applicant demonstrates complicity in that conduct?

And we say this is a question of general importance because in Gill v Minister, which was cited by her Honour at first instance in the Federal Circuit Court and again by Justice Bromwich below, the test was set for complicity in the absence of knowledge as being indifference to whether the migration agent acted fraudulently or dishonestly. The primary judge applied that test and Justice Bromwich, on appeal, applied that test, and said that the decision was open to her Honour on that test.

There are still recent decisions on which that standard has been applied, but since the decision in Kaur v Minister (2019) FCAFC 53, the Full Court has concluded, albeit in obiter, that the concept of indifference must be more akin to reckless indifference before complicity could be established. That requires, the Court said, careful findings on probative evidence of a state of mind close to dishonesty. Now, in this particular case, this was not the standard ‑ ‑ ‑

KIEFEL CJ: Well, that is acceptance that the migration agent would do whatever is necessary, including by dishonest means.

MR PICKLES: Indeed.

KIEFEL CJ: Did not the primary judge make findings to that effect?

MR PICKLES: She did, in this sense, your Honour, and that is that she said ‑ ‑ ‑

GORDON J: It is set out, I think ‑ ‑ ‑

MR PICKLES: ‑ ‑ ‑ at 57.

KIEFEL CJ: 57, 59.

GORDON J: 57, 58.

MR PICKLES: 57, 58, 59.

GORDON J: Yes.

MR PICKLES: And what we take issue with, principally, is that she finds:

the Applicant’s complete lack of interest, involvement or engagement in the visa application; and having regard to her education and intelligence . . . demonstrated wilful blindness –

GORDON J: It is the next paragraph too that I think follows which is the kicker.

MR PICKLES: 58 is perhaps more troubling, though, with respect, your Honours, and that is this. What she finds at 58 is:

I am satisfied that the Applicant would have authorised ‑

that seems to be a hypothetical, if she had known, she goes on to say:

I do not accept that had she known about the false TRA assessment, the Applicant would have declined to authorise the application containing that false TRA assessment.

Now, that is a hypothetical rather than a finding of fact. What we say, on the facts, and paying close attention to what the facts were ‑ ‑ ‑

KIEFEL CJ: It is an inference drawn from facts, is it not, about a complete lack of interest shown in what the migration agent was doing. I mean, if there had been some evidence that there was some interest in what the migration agent was saying, and that one occasionally checked to see what they were doing, such an inference would not be open. But if you leave it entirely to a migration agent to do whatever they want because you tell them, this is the result that I wish to achieve, why is that inference not fairly open?

MR PICKLES: Because, what we say is, on the principles that were really established by this Court in SZFDE, the proposition that comes from Division 4 of Part 7 of the Act is that one is entitled to assume that a system of licensing of migration agents, that a migration agent tasked with the responsibility of submitting an application will do so lawfully. And without more, without something, some fact which one can suggest gives rise to an inference, or a state of mind on the part of the applicant, that the migration agent might not act lawfully, then there is nothing on which one could conclude, as her Honour concluded, that she took no interest in the application.

It is one thing to lodge an application and leave it with your agent, it would be quite another thing, of course, for the agent to say, I am going to lodge whatever documents I like on your behalf, and for the applicant to be conscious of that fact. But there is a complete absence of fact‑finding, we say, by the primary judge, that goes so far as to say that that would be, as the Full Court of the Federal Court has said in Kaur, reckless indifference to what the agent did. All she ‑ ‑ ‑

KIEFEL CJ: The test her Honour ‑ even if you are right about whether there was sufficient evidence, that would only make this a question as to fact, not principle.

MR PICKLES: Certainly that question would.

KIEFEL CJ: But the question you have identified ‑ identified about reckless indifference, the point is, is it not, that the primary judge applied such a test in her attempt to discern whether the indifference went so far as to not care whether dishonest means were used?

MR PICKLES: Well, there are a couple of nuances, may I say, in answer to that, your Honour. The first is that the test that her Honour was actually applying was that in Gill, rather than the test in Kaur, where the Full Federal Court said, well, no, it needs to be more than a lack of ‑ an indifference, or a lack of involvement, it has to be reckless, it has to be something akin to a full ‑ that is, on a probative evidence that there was a state of mind close to dishonesty. And that has to be supported, we say, by probative facts.

The second thing we say is that her Honour’s findings in this respect are, at the end of the day, essentially borne out only out of the demeanour of the witness in the witness box, rather than any probative fact or evidence. And there was, in this particular case, unlike some of the others that have troubled the courts below, there was no fact that this person had any other contact with the migration agent other than the single contact of sending the application, or rather, transferring the money and having a single contact, which set up the agency relationship.

There was nothing else that could give rise to an inference that there was some idea that this person might have, that the agent would undertake to lodge the application, unsigned by this applicant, the contents of which were, as the primary judge found, unknown to her, and then simply lodge that application on her behalf with no further contact, and thus no further factual matrix from which one could conclude that this person had done anything other than trust her agent to make an application.

GORDON J: Really what her Honour is saying, it is that indifference to the entire process, so in a sense it comes back and bites you. It is the very thing upon which she hangs her hat.

MR PICKLES: Yes.

GORDON J: Here is a woman who, having regard to her education and intelligence, you would expect to be involved.

MR PICKLES: Yes.

GORDON J: You would expect to show some interest.

MR PICKLES: Potentially, your Honour, that is one avenue, but what we say is that that is not enough because ‑ because of the system that is in place, one would be entitled to expect, in the ordinary course, simply by making a phone call and making ‑ setting up an agency relationship with an agent, perhaps the agent might even contact the client to ask for documents, or to confirm that the application is correct, or ask for it to be signed, which were the facts in Gill. That is not the facts here, no suggestion that it was ever referred or remitted back to the client to ask her whether or not she was happy with the application in its form.

KIEFEL CJ: If the primary judge had, on your argument, about the extension of the test of Gill in Kaur, in the later decision, if the primary judge had adopted a test of mere indifference, there might be something in what you say, but reading paragraphs 57 to 59, speaking for myself, I think her Honour has pitched it at a much higher level than that.

MR PICKLES: I accept on the words, your Honour, that she has, but the proposition we put is that the facts are not there to support that conclusion, because the conclusion ultimately of fact is that which is found in 57, it is a:

lack of interest, involvement or engagement ‑

and no more. And that is the proposition we put, that that is the fact‑finding. The remainder in 58 and 59 are inferences that she has drawn from that fact‑finding to elevate that to a level of “wilful blindness”, but we say that does not meet the standard of wilful blindness, albeit that that is how her Honour couched it and concluded it. And at 59 in particular, her Honour says:

As stated above I find the Applicant was indifferent as to whether her migration agent used unlawful and dishonest means ‑

That is not a suggestion of reckless indifference, but rather mere indifference, of the kind which the Full Court referred to in Gill, and not of the kind that the Court was referring to in Kaur. May it please, those are my submissions.

KIEFEL CJ: Thank you. Mr Reilly, we do not need to trouble you.

In our view there is no reason to doubt the correctness of the decision below. The primary judge did not err in the standard which her Honour applied. Special leave is refused.

MR REILLY: Your Honours, I seek costs.

KIEFEL CJ: Is there anything you can say?

MR PICKLES: No, there is nothing.

KIEFEL CJ: Special leave is refused with costs.

The Court will adjourn to reconstitute.

AT 11.41 AM THE MATTER WAS CONCLUDED