Jiang v Minister for Immigration

FEDERAL CIRCUIT COURT OF AUSTRALIA

JIANG & ORS v MINISTER FOR IMMIGRATION & ANOR

[2018] FCCA 1685

Catchwords:
MIGRATION – Review of decision by Administrative Appeals Tribunal – whether Administrative Appeals Tribunal’s decision affected by jurisdictional error – whether the Administrative Appeals Tribunal erred in failing to give the applicant the information that may be the reason for affirming the decisions under review – whether the Administrative Appeals Tribunal erred in failing to find that the delegate’s decision was vitiated by third party fraud – no jurisdictional error – application dismissed.

Legislation:
Migration Act 1958 (Cth), ss.97, 359A, 359AA, 476
Migration Regulations 1994 (Cth), reg.1.11, sch. 2 cl.892.211, 892.223, sch. 4 cl.4020
Minister for Immigration and Border Protection (Cth), Procedural Advice Manual 3

Cases cited:
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
Khan v Minister for Immigration and Citizenship (2011) 192 FCR 173
Minister for Immigration and Citizenship v SZLFX (2009) 238 CLR 507
Trivediv Minister for Immigration and Border Protection [2014] FCAFC 42; 220 FCR 169
Maharjan v Minister for Immigration [2017] FCAFC 213
Singh v Minister for Immigration and Border Protection [2018] FCAFC 52

First Applicant:

QINGHUA JIANG

Second Applicant:

JIANPING JIANG

Third Applicant:

ZICHENG JIANG

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 1167 of 2016

Judgment of:

Judge Emmett

Hearing date:

14 May 2018

Date of Last Submission:

14 May 2018

Delivered at:

Sydney

Delivered on:

27 June 2018

REPRESENTATION

Counsel for the Applicant:

Mr Nicholas Poynder (Direct Access Counsel)

Counsel for the Respondents:

Mr Tim Reilly

Solicitors for the Respondents:

Mills Oakley

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1167 of 2016

QINGHUA JIANG

First Applicant

JIANPING JIANG

Second Applicant

ZICHENG JIANG

Third Applicant

And

DEPARTMENT OF IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Administrative Appeals Tribunal (“the Tribunal”) dated 11 April 2016, dismissing an application for review by the Tribunal of a decision of a delegate of the first respondent (“the Delegate”) made on 8 July 2014 refusing the applicants a Subclass 892 State/Territory Sponsored Business Owner (Residence) visa.
The first applicant is the primary applicant (“the Applicant”). The Applicant is the wife of the second applicant, and the mother of the third applicant. The second and third applicants are secondary applicants for the purposes of the visa application.
The issues in this case are whether there was information that enlivened the obligation of the Tribunal under s.359A of the Act to give that information to the applicant for comment and whether there existed third party fraud in respect of the Applicant’s visa application, such that the decision of the Delegate was vitiated.
Both parties agreed that the relevant facts, the decision of the Tribunal and the relevant legislative provisions, including relevant policy instructions, are accurately summarised in paragraphs 3 to 52 of the Applicant’s submissions (including footnotes), as follows:
“3.    On 26 September 2013 the applicant lodged an application for a subclass 892 State/Territory Sponsored Business Owner visa[1], nominating as her main business a company called Z.J. International Pty Ltd (Z.J. International).[2] Her agent for the purposes of the application was Austar Sydney Migration Service (Austar).[3]
[1]     The application documents are at pp 1-144 of the Court Book (CB 1-144).
[2]     CB 24.
[3]     CB 27.
4. Z.J. International was engaged in “the display and sales of artworks, as well as providing stretching and framing services of paintings”.[4] It had been operating since 15 April 2011 as an art gallery under the business name “Art Harbour and Crazy Fish Castle Hill”.[5]
[4]     CB 24.
[5]     CB 120-121.
5. Austar provided a large number of supporting documents with the application, including, under the heading, “Evidence of Daily Management & Decision Making”, some sample tax invoices addressed to the applicant.[6] At folio 289 of the first respondent’s file was Invoice # 49874 (the first version invoice) from a supplier, Shanghaied Pty Ltd (Shanghaied) to Z.J. International, identifying the relevant contact person as “Ryland Jiang” and purchaser’s the address as (emphasis added):
[6]     CB 126.
Qinghua Jiang
ZJ International
Shop 83 – Home Hub Hills
16 Victoria Avenue
CASTLE HILL NSW 2164.[7]
[7]     CB 132.
6. On 19 December 2013 a woman who introduced herself as the applicant’s business partner, Lijun (“Chris”) Zhang, sent an email to Business Skills Adelaide[8], stating that “For the truth to public, I have to inform your department that some documents Ms Jiang sent to you in her application are not correctly stated”. Ms Zhang claimed that the applicant had falsely represented the sales figures for Z.J. International, that she had “amended some documents to her name and address”, that it was Ms Zhang - not the applicant - who carried out much of the daily financial transactions at the company, and that the applicant had been pretending that she had been using a business mobile telephone which was actually used by Ms Zhang. Ms Zhang concluded her letter by saying:
[8]     Applicant’s Bundle at pp. 1-2 (AB 1-2).
If you have more questions, I am happy to support your investigation. But please keep this as anonymous, as I don't want get in any troubles.
7. On 14 January 2014 the delegate obtained a copy of Invoice # 49874 directly from the supplier, Shanghaied.[9] However this version of the invoice (the second version invoice) differed from the first version invoice previously supplied by Austar, in that it identified the relevant contact person at Z.J. International as “Christine Zhang” and the purchaser’s address as (emphasis added):
[9]     CB 160-162.
Crazy Fish Castle Hill
Shop 83 – Home Hub Hills
16 Victoria Avenue
CASTLE HILL NSW 2164.[10]
[10]    CB 163.
8. On 2 January 2014 Austar sent a letter to the delegate[11] enclosing further documents, including a third version of Invoice #49874 which showed Ms Zhang as the contact person and Z.J. International as the addressee.[12]
[11]    CB 117ff.
[12]    CB 202.
9. On or about 6 January 2014 an “Immigration Dob-in report supporting document” was created and placed on the first respondent’s file referring to Ms Zhang’s allegations and listing a number of supporting documents, including false sales invoices and transactions in bank statements from 2012-2013, false addresses in bank statements, requests made by Ms Zhang to falsify sales revenue, and the false identification of mobile telephone number.[13]
[13]    AB 3-5.
10.    On 27 January 2014 a message was left by Ms Zhang on the first respondent’s “dob-in” website[14] which, on 6 February 2014, was passed on to Business Skills Adelaide and copied to the delegate. The “dob-in” stated:
[14]    AB 6-7.
HI there. I want to report that Qinghua Jiang ask me to make false purchase from her painting shop to help her getting her sales requirement for her immigration. In February 2013. Qinghua gave me cash 5916 to make a false purchase from her shop. She issued me a tax invoice and stock list and ask me to transfer the cash to her business account as a purchase payment. She didn’t explain the purpose clearly to me. And I am not a close friend of her. So I don't know why she want to do this until 1st Jan 2014, she call me again and ask me if any immigration officer ask me about this sales I should tell them this is a real sale, not a false one.
I am really shocked by what she said. That's why I am writing this email to tell the truth to your office And sorry about what I did to help her
11.    By 7 February 2014 Ms Zhang was in direct contact with the delegate (who she addressed as “Judith”) and in an email sent that day she provided the delegate with a copy of the false tax invoice for $5,916.00 referred to in the message to the “dob-in” website.[15]
[15]    AB 8-9
12.    On 26 February 2014 the delegate wrote to Austral[16] inviting the applicant to comment on “adverse information received”, pointing out the discrepancy between the three versions of Invoice # 49874.[17] The delegate went on:
[16]    CB 213-219.
[17]    The letter raised other concerns which are not presently relevant.
It is my opinion that the original document has been deliberately altered to embellish your involvement with the business. I find this document folio 289 to be false or misleading in a material particular for assessing the requirements of Regulation 892.211.
13.    On 6 March 2014 Ms Zhang sent another email to the delegate[18], noting that the following day “we will start all legal process to claim my loan from the company. And this company might be in liquidation process”. Ms Zhang also claimed that the applicant had instructed her accountant to place the company’s loan figure in her own name, despite evidence that part of the loan had been made by Ms Zhang. Ms Zhang concluded:
[18]    AB 10.
Sorry to bother you again, but I want to clarify any false information Ms Jiang provided. I didn't realise she did so many things behind me.
14.    On 2 April 2014 the applicant’s new representative, Elson Pow, provided a letter in response to the invitation to comment.[19] Mr Pow stated that the first version invoice had been provided to the applicant by “a third party”[20], subsequently identified as Jason Yang, who was the husband of Ms Zhang, identified by Mr Pow as the applicant’s fellow shareholder in Z.J. International.[21] Mr Pow provided a copy of an email dated 19 February 2013 from Mr Yang the applicant attaching the first version invoice.[22]
[19]    CB 232ff.
[20]    CB 233 [1.2].
[21]    CB 234 [1.6].
[22]    CB 234 [1.7]; CB 244-245.
15.    Mr Pow said that Ms Zhang had been in charge of all accounting and tax matters for Z.J. International when it acquired Crazy Fish Castle Hill[23], and that most of the accounting source documents submitted in support of the applicant’s visa application, including the first version invoice, had been provided by Ms Zhang.[24]
[23]    CB 234 [1.12].
[24]    CB 235 [1.17]-[1.18] (note duplication of paragraph numbers in CB 234 and 235).
16.    Mr Pow said that the applicant had simply included the first version invoice as part of her visa application, and that she was not even aware that it had been altered.[25]
[25]    CB 234 [1.17]-[1.18].
17.    Mr Pow suggested:
…the alteration of the invoice was either a misguided attempt to assist Ryland's application or calculated to sabotage or at least damage Ryland's visa application….In either event, Ryland was not responsible for the alteration.
18.    Mr Pow referred to two occasions in which the applicant had “fallen out” with Ms Zhang and her husband. On the first occasion, in 2013 when the applicant had been in China, the applicant’s husband (who is the second applicant in these proceedings) had had an affair with Ms Zhang.[26] On the second occasion, in 2014, the applicant and Ms Zhang had become embroiled in civil litigation over Ms Zhang’s attempts to recover her shareholder loan of $125,000 from Z.J. International[27], and Ms Zhang had withdrawn large amounts from the company’s bank without notice to the applicant.[28]
[26]    CB 241 [3.2]-[3.6].
[27]    CB 241-242 [3.7]-[3.13].
[28]    CB 242-243 [3.14]-[3.18].
19.    On 9 April 2014 Mr Pow provided a further letter to the delegate with additional documents[29], including text messages with English translations sent by Ms Zhang to the applicant’s husband[30], showing “vitriol” and “cruelty” and “malice” by Ms Zhang to the applicant which, contended Mr Pow, made it “…even more convincing that this invoice was deliberately altered by the applicant's business partner to sabotage or at least damage the applicant's visa application”.[31]
[29]    CB 263ff.
[30]    CB 284-285.
[31]    CB 267 [2.2].
20.    On 10 May 2014 Ms Zhang sent an email to the delegate attaching an affidavit made by Ms Zhang and filed in the Supreme Court of New South Wales on 20 March 2014.[32] The affidavit contained various allegations against the applicant, including that she had appointed Ms Zhang as a director of Z.J. International without her knowledge[33], that the applicant had fabricated minutes of the meetings of Z.J. International for the purposes of her visa application[34], that the applicant intended to sell the business as soon as her visa had been approved[35], that the applicant “made up around $82,489.5 false sales”[36], that there had been “suspicious” transfers of funds from the company’s accounts to the applicant’s personal account[37], and that Ms Zhang had been removed from the directorship of the company without her knowledge.[38]
[32]    AB 11-19.
[33]    Pars. 23-26.
[34]    Pars 27.
[35]    Par 31.
[36]    Par. 32.
[37]    Par. 40.
[38]    Pars. 43-44.
21.    On 14 May 2014 Ms Zhang sent another email to the delegate[39], noting that her solicitor had just asked her to prepare “more detailed supporting document for these false sales”, which she had scanned to the delegate, “hope this can be something useful for you”. Ms Zhang went on:
[39]    AB 20.
I am very sorry for all these transactions but this is very popular in most Chinese business immigration case. As Ryland said I have to help her to get her PR visa otherwise she won't sell the business and I can't get my money back. And she said what she did is common in all immigration case and the immigration agent said it has never been found out.
…
I hope all these things can be sort out. The new federal budget just released today, and the government is try to save costs. While these people try to use 2 years little tax contribution to get free health and education for the rest of life. This is not the purpose of business immigration. If these kind of case not prevented, it's really a damage to Australia's economic.
22.    Among the documents provided by Ms Zhang was a five page table entitled “Z.J. International - Qinghua Jiang’s false sale details (Nov 2012 - Jun 2013)”.[40]
[40]    AB 21-25.
23.    On 8 July 2015 the delegate refused the application for the subclass 892 visa.[41] The delegate did not accept that the first version invoice was not material or significant in assessing the applicant’s involvement in the business, and found that the applicant had submitted, for the purpose of assessing clause 892.211, an altered document which was false or misleading in a material particular, and that the applicant did not therefore satisfy PIC 4020 or clause 892.223(a).
[41]    CB 304-309.
24.    On review, on 17 September 2015 a woman who was subsequently disclosed by the Tribunal to be Ms Zhang[42] telephoned “to give the Tribunal information”. She explained that she was a 39% stakeholder in the applicant’s business, but that she now does not have any contact with the applicant except through her lawyers. She said that the business was due to close down soon and she wished to let the Tribunal know that there was no point in pursuing this application. She said that she may send an email to the Tribunal.[43]
[42] Decision at [16].
[43]    CB 339.
25.    On 20 September 2015 Ms Zhang sent an email to the Tribunal.[44] Ms Zhang again indicated that the applicant was intending to close down her business, and she said that the applicant had refused to respond to letters from Ms Zhang’s lawyer. Ms Zhang said:
[44]    CB 340.
Obviously, it approves that she doesn't have the ability to run the business by herself. Only one year, she made the business went closing down, I can't believe that. And the way she closed the business without discussion with shareholder is regardless our agreement. I won't sue her this time, because last year I spent 15k for lawyer fee, just get that agreement signed. And she even didn't follow that agreement. I don't want to waste my money on lawyer fee again, as I already lost all my 39% investment in the business ($125k).
26.    Ms Zhang also enclosed two photographs of the shop with a “closing down” sign[45] and two letters from her lawyers to the applicant threatening legal proceedings.[46]
[45]    CB 341-342.
[46]    CB 343-344.
27.    On 22 September 2015 the Tribunal sent a letter to the applicant’s new representative, Lewis & Bollard solicitors[47], inviting the applicant to a hearing on and requesting any further information relevant to clause 892.211(1), including “Information to demonstrate how you have maintained direct and continuous involvement in management of the business from day to day and in making decisions affecting the overall direction and performance of the business in the 2 years before the-date of application to the current time”. The Tribunal also requested any further information relevant to PIC 4020.
[47]    CB 346-352.
28.    On 21 October 2015 Lewis & Bollard sent a response to the Tribunal[48] which:
[48]    CB 357-361.
(a) Conceded that Invoice # 49874 fell within the definition of “bogus document” in s 97 of the Act and PIC 4020.[49]
[49] CB 357 [2].
(b)     Noted that “the Tribunal would be aware from the Department’s file that a bitter dispute broke out between the applicant and Ms Zhang culminating in Supreme Court proceedings initiated by Ms Zhang”.[50]
[50] CB 357 [5].
(c) Claimed that Ms Zhang had “embarked on a ‘campaign’ to have the applicant's visa application refused by sending numerous emails to the Department making allegations about the applicant”.[51]
[51] CB 358 [6].
(d)     Thereafter made detailed submissions, supported by character references[52] and medical/psychological reports[53] to the effect that PIC 4020 ought in the circumstances to be waived.
[52]    CB 362-396.
[53]    CB 397-402.
29.    The submissions and evidence in favour of the waiver included:
(a)     Evidence that a waiver was justified because of compelling circumstances that affect the interests of Australia, including:
·A letter dated 13 October 2015 from an accountant, David Niu, who said that the closure of Z.J. International would be a great loss for local business[54];
[54]    CB 368.
·An undated letter from the Secretary-General of the 163 Entrepreneurship Association in Australia, Jun Li, who said that the applicant was a founding member of the Association and due to be appointed as the business leader in charge of the Sydney branch, that the business plan of the Association would be greatly affected by her departure from Australia, and that the grant of her visa “will benefit and facilitate the bilateral business trading between China and Australia”.[55]
[55]    CB 369-370.
·   A letter dated 14 October 2015 from Maoxian Peng, the leader of the Blackeyes Society, a large Chinese community in Sydney committed to narrow the gap between Chinese and Australian culture to help new immigrants to integrate and become involved in the local community.[56] Mr Peng said that the applicant was a “key contributor” to the Society and a sponsor of a cruise which was one of their major events in 2015. This was supported by a letter dated 15 October 23015 from Dominic Sin, the Deputy Mayor of Hurstville.[57]
[56]    CB 371.
[57]    CB 391.
·   An undated letter from the General Manager of New World Gifts, noting that if the applicant were to leave Australia “it would be a great loss not to our business but to our local business and community as well”.[58]
[58]    CB 378-379.
·   A letter dated 14 October 2015 from James Gock, stating that the applicant had “contributed a lot to the country apart from taking care and contributing to the neighbourhood and the community”.[59]
[59]    CB 380-381.
(b)     Evidence that the waiver was justified by compassionate or compelling circumstances that affect the interests of Australian citizens and permanent residents, including an employee of Z.J. International, Wei Zhang[60] and close friends and neighbours (Alfred Christopher Bennell[61], Siew and Ming Luu[62], Jennifer Margaret Hammer[63], Min Zhu[64], and Susan Stevens[65]).
[60]    CB 366-367.
[61]    CB 362-363.
[62]    CB 373-374.
[63]    CB 375-376.
[64]    CB 377.
[65]    CB 390.
30.    The Tribunal hearing took place on 8 January 2016. Shortly after the commencement of the hearing the following exchange took place:
MEMBER:…Now, I’m also aware that you will have been very stressed by the circumstances you’re going through with an ex-business partner. We’ve received allegations at the Tribunal that – you’re probably aware that she’s been saying – saying that you weren’t managing the business. Since – since you’ve made applications, I think with another migration agent, for access to the documents there’s been another allegation made.
REPRESENTATIVE: It was [0:06:13] to the Tribunal, Member?
MEMBER: Sorry?
REPRESENTATIVE: It was direct to the Tribunal.
MEMBER: Direct to the Tribunal. Yeah.
REPRESENTATIVE: It doesn’t surprise me.
MEMBER: I – look, she’s asked for – for it not to be disclosed and she’s – she called anonymously, but it’s quite clear who it is because she said, “I’m an ex-business partner of the visa applicant.” So – and, you know, I – I know that she doesn’t want me to say who it is, but I think we all know who it is.
REPRESENTATIVE: So, Member, it was a phone call, was it, rather than a - - -
MEMBER: She called, and then she was asked to put it in writing - - -
REPRESENTATIVE: Okay.
MEMBER: - - - which she did. So, it’s a bit hard to be anonymous when you’ve got to send it from your own email address.
REPRESENTATIVE: I understand.
MEMBER: But, I’m just telling you that just so you know I’m aware of how active she’s been in putting on claims that you’re not meeting –you didn’t meet the requirements. But, it seems to me – I know that you’re in litigation with her and it seems to me that she’s – she has an investment in undermining you, it seems. And, that’s probably on a both a personal and a commercial basis that she’s undermining you, it seems.[66]
[66]    Transcript, 2:26-3:23.
31.    The hearing then proceeded as follows:
(a)     The Tribunal referred to the differing versions of Invoice # 49874[67], and noted that the relevance of the invoice was the requirement in reg 1.11(1)(b) that the applicant demonstrate that she has had a direct and continuous involvement in the business in the two years before making the visa application.[68]
[67]    Transcript, 3:33-6:3.
[68]    Transcript, 6:3-6:6.
(b)     The Tribunal said that the first thing it had to do was to consider whether the invoice was a bogus document.
(c) The Tribunal then obtained background information from the applicant about the business[70], noting that “…part of the allegation that we’ve received at the Tribunal recently is that the business was in the process of closing down in September 2015 and there is no longer – the business isn’t operating anymore. And, she sent photos of the closing down sale”.[71] The applicant confirmed that the business stopped operating at the end of September because the shopping mall didn’t renew the lease[72], and that she was now operating an import/export business online.
[70]    Transcript, 7:15ff.
[71]    Transcript, 11:5-7.
[72]    Transcript, 11:36-12:10.
(d)     The Tribunal indicated that it may have to find that the invoice was a bogus document[74], and the applicant gave her explanation of what had occurred.[75] The applicant agreed with the Tribunal that either Ms Zhang or her husband had changed the invoice[76] and, when it was suggested that the invoice appears to have been changed to assist her application, she said:
[74]    Transcript, 13:38.
[75]    Transcript, 14:4ff.
[76]    Transcript, 18:21-24.
No, actually, she just wanted to have a loophole or something with her so that she can accuse me.[77]
[77]    Transcript, 18:35-36.
(e) The Tribunal then moved on to evidence relating to the waiver of PIC 4020[78], and the balance of the hearing dealt mainly with this evidence.
[78]    Transcript, 20:22.
32.    Towards the end of the hearing the following exchange took place[79]:
[79]    Transcript, 28:18-33.
REPRESENTATIVE: Member, what I can say, if a waive is granted she’s still got to go back to the Department and they’ve got to be satisfied she meets the 892 requirements.
MEMBER: Mm.
REPRESENTATIVE: So, if she’s going to get a waive of the 4020 issue - - -
MEMBER: Yeah.
REPRESENTATIVE: - - - she’s still going to have to meet the other requirements.
MEMBER: Yeah. So – because – so, I also have to look to see if those circumstances justify the granting of the 892.
33.    Following the hearing, on 21 January 2016 Lewis & Bollard sent a letter to the Tribunal addressing the waiver issue and enclosing numerous further documents.[80]
[80]    CB 422-473.
34.    On 10 February 2016 Ms Zhang sent another email to the Tribunal[81] attaching her previous email of 20 September 2015, and updating her previous information. Ms Zhang noted that the applicant had continued to refuse to contact her. Ms Zhang also said:
[81]    CB 474-475.
I don't want to spend any more on this case. The lawyer letters in September cost me few hundred dollars again. And I didn't get any reply from her. I don't want to waste my time and money to deal with this case anymore. And I know the business is completely destroyed by Qinghua, I won't get anything valuable from the wind up. Therefore, I won't take any action for this wind up process and just leave the whole piece of story finished
THE DECISION OF THE TRIBUNAL[82]
[82]    CB 470-492.
35.    Under the heading, “Consideration of Claims and Evidence”, the Tribunal at [16] referred to Ms Zhang’s contact with the Tribunal on 17 September 2015 and noted that the applicant’s relationship with Ms Zhang had deteriorated to the extent that they were now involved in litigation. The Tribunal said:
Accordingly the Tribunal is of the view there is a significant risk that Ms Zhang’s allegations may be vexatious and not be reliable. In these circumstances the Tribunal gives no weight to the allegations and does not rely on any of the particulars from the allegations to make its findings.
36.    Under the heading, “Assessment of the evidence”, the Tribunal from [35] first considered the question, “Has the applicant given, or caused to be given a bogus document, or information that is false or misleading in material particular?”.
37.    The Tribunal at [39] found that the first version invoice:
…had been altered for the purpose of leading the reader to believe the applicant was the contact person for the business in relation to its dealings with Shanghaied. It is of the view this alteration was intended to demonstrate the applicant’s involvement in dealing with Shanghaied.
38.    The Tribunal at [40] considered the Macquarie Dictionary and Oxford Dictionary definitions of “counterfeit”, then went on, at [41]:
The Tribunal accepts that the applicant did not herself alter the invoice. It accepts that the invoice in its altered state was emailed to her by Jason Yang, Ms Zhang’s husband. However it finds, having been altered, the document is no longer a genuine invoice issued by Shanghaied but an imitation of the invoice issued, designed to pass as the original. The Tribunal finds therefore that the invoice referring to the applicant as the business contact person is counterfeit. The Tribunal is of the view the alteration was intended to deceive the Department in relation to the applicant’s involvement in dealing with Shanghaied. The Tribunal accepts that the applicant may not have been aware the information was purposely untrue. However, it is satisfied there an element of fraud or deception, probably by Jason Yang or Ms Zhang, employed to mislead lead the Department with respect to the applicant’s dealings, in this case, with Shanghaied.
39. The Tribunal found, at [42], that the first version invoice was a “bogus document” within the meaning of s 5(b) of the Act, and that the applicant did not therefore meet PIC 4020(1).
40.    On the issue of waiver, the Tribunal at [45] said:
While the Tribunal does not need to make findings in relation to whether the definition of main business (r.1.11(1)(b)) is met it has considered the material on the file in relation to the applicant’s involvement. These include financial documents, correspondence, written statements, referees from customers, photographic evidence, and her oral evidence. Overall the Tribunal is satisfied the applicant was involved in the day to day management of Crazy Fish Castle Hill. The Tribunal is of the view the invoice was probably altered to embellish the applicant’s involvement but it is inclined to agree with the applicant that this was not necessary because there was already ample evidence of her involvement in the day to day management of the business. The unfortunate outcome for the applicant is that, because of the finding that a bogus document was provided to the Department, she does not meet cl.4020(1). The Tribunal is of the view however that the particular circumstances in which she fails to meet cl.4020(1) do not allow the Tribunal to lower it assessment in relation to whether there are compelling circumstances that affect the interests of Australia, or compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident, or an eligible New Zealand citizen, that justify the granting of the visa.
41.    The Tribunal then proceeded to consider the applicant’s evidence in support of the request for the waiver before concluding, at [59]:
The Tribunal has also considered all of the evidence in relation to waiver cumulatively. It accepts the applicants have settled into the Australian community and make positive contributions in a range of ways. It accepts they have close ties in Australia, to both individuals and organisations. However, while it accepts there are Australian citizens and permanent residents who value their relationships with the applicants, and that the applicants will be missed by those parties, even considering the circumstances cumulatively it is not persuaded these are compelling circumstances that affect the interests of Australia, or compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen.
42.    The Tribunal concluded, at [62], by suggesting that an approach to the Minister might be appropriate in the circumstances, in particular because of the effect that a visa refusal would have on the applicant’s son.
RELEVANT LEGISLATIVE PROVISIONS
PIC 4020
43.    The criteria for a subclass 892 visa are set out in Schedule 2, Part 892 of the regulations.
44.    Relevantly to the present case:
(a)     Clause 892.211 requires that an applicant must have had, and continue to have, an ownership interest in 1 or more actively operating “main businesses” in Australia for at least 2 years immediately before the application is made.
(b)     Regulation 1.11(1)(b) provides that a business is a “main business” the applicant maintains, or has maintained, direct and continuous involvement in management of the business from day to day and in making decisions affecting the overall direction and performance of the business in the 2 years immediately preceding the application.
(c) Clause 892.223(a) requires the applicant to satisfy PIC 4020.
45.    PIC 4020 relevantly provides as follows (emphasis added):
(1)     There is no evidence before the Minister that the applicant has given, or caused to be given, to the Minister, an officer, the Migration Review Tribunal, a relevant assessing authority or a Medical Officer of the Commonwealth, a bogus document or information that is false or misleading in a material particular in relation to:
(a)     the application for the visa;
…
(3)     To avoid doubt, subclauses (1) and (2) apply whether or not the Minister became aware of the bogus document or information that is false or misleading in a material particular because of information given by the applicant.
(4)     The Minister may waive the requirements of any or all of paragraphs (1)(a) or (b) and subclause (2) if satisfied that:
(a)     compelling circumstances that affect the interests of Australia; or
(b)     compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen;
justify the granting of the visa.
46. Section 97 of the Act provides:
"bogus document",
in relation to a person, means a document that the Minister reasonably suspects is a document that:
(a)     purports to have been, but was not, issued in respect of the person; or
(b)     is counterfeit or has been altered by a person who does not have authority to do so; or
(c)     was obtained because of a false or misleading statement, whether or not made knowingly
Provision of unfavourable information
47. Section 359A of the Act relevantly provides:
(1)     Subject to subsections (2) and (3), the Tribunal must:
(a)     give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b)     ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and
(c)     invite the applicant to comment on or respond to it
(2)     The information and invitation must be given to the applicant:
(a)     …by one of the methods specified in section 379A[83];…
[83]    Section 379A provides various methods for documents to be provided to an applicant in writing.
(3) The Tribunal is not obliged under this section to give particulars of information to an applicant, nor invite the applicant to comment on or respond to the information, if the Tribunal gives clear particulars of the information to the applicant, and invites the applicant to comment on or respond to the information, under section 359AA.
(4)    This section does not apply to information:
(a)    that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or
(b)    that the applicant gave for the purpose of the application for review; or
(ba) that the applicant gave during the process that led to the decision that is under review, other than such information that was provided orally by the applicant to the Department; or
(c)    that is non-disclosable information.
48. Section 359AA of the Act, which is an alternative to s 359A, provides that the Tribunal may give an applicant the information referred to in s 359A orally during a hearing; however if it does so it must, in accordance with s 359AA(1)(b):
(i)     ensure, as far as is reasonably practicable, that the applicant understands why the information is relevant to the review, and the consequences of the information being relied on in affirming the decision that is under review; and
(ii) orally invite the applicant to comment on or respond to the information; and
(iii) advise the applicant that he or she may seek additional time to comment on or respond to the information; and
(iv) if the applicant seeks additional time to comment on or respond to the information--adjourn the review, if the Tribunal considers that the applicant reasonably needs additional time to comment on or respond to the information.
RELEVANT POLICY INSTRUCTIONS
49. The policy guidelines for decision-makers under the Act and regulations are set out in the first respondent’s Procedures Advice Manual (PAM).
50.    At the time of the Tribunal’s decision[84], the PAM guideline relating to the waiver provision relevantly provided:
[84]    The current PAM guideline is worded somewhat differently,
Whether there are compelling or compassionate circumstances will depend on the circumstances of the individual case. Under policy, compelling and/or compassionate circumstances should:
already be in existence and
be a situation that is out of the control of the applicant.
…
When considering the compelling and/or compassionate circumstances presented by the applicant, delegates need to weigh the severity of the fraud committed by the applicant against the circumstances presented. Circumstances, when considered alone, may well be considered compelling or compassionate, delegates may well have sympathy for the applicant, however when weighed against the fraud committed by the applicant these reasons may not be sufficient to dismiss the fraud and grant the visa.
For instance, an applicant cites their compelling or compassionate circumstances as being separated from their sponsor/spouse would cause the sponsor/spouse (an Australian Citizen) to be unsupported emotionally, mentally, and financially. However the applicant has consistently and deliberately defrauded the department by providing false or misleading information and bogus documents in every application made to the department. The compelling and compassionate circumstances, when considered alone may meet the requirements of compelling and compassionate, however may not be considered sufficient, when weighed against the applicant’s fraudulent history, to waive the requirements of PIC 4020(1) and/or (2).
51.    Under the heading, “Compelling circumstances affecting the interests of Australia…PIC 4020(4)(a)”, the PAM guideline relevantly stated:
There may be compelling circumstances affecting the interests of Australia if:
·   Australia’s trade or business opportunities would be adversely affected were the person not granted the visa (Note: under policy, gaining employer sponsorship is not considered sufficient grounds for a waiver)
·   Australia’s relationship with a foreign government would be damaged if the person is not granted the visa or
·   Australia would miss out on a significant benefit that the person could contribute to Australia’s business, economic, cultural or other development (for example, a special skill that is highly sought after in Australia) if the person was not granted the visa.
52.    Under the heading, “Compassionate or compelling circumstances…PIC 4020(4)(b)”, the PAM guideline relevantly stated:
Factors for considering a waiver of any or all of PIC 4020(1) and/or (2), would include, but are not limited to, the following four:
the nature and extent of the fraud. Factors to consider include:
·the extent of false or misleading information or documents (for example, multiple falsities or misleading information)
·a past history of attempting fraud against Australia’s migration program.”

The proceeding before this Court

The Applicant was represented before this Court by Mr Nicholas Poynder, of counsel.
At the outset of the hearing, Mr Poynder confirmed reliance on the grounds contained in the Further Amended Application, filed on 20 February 2018, as follows:
“Grounds of application
1. The second respondent (the Tribunal) failed to comply with its obligation under s 359A of the Act in relation to information provided to the first respondent and to the Tribunal by Lijun (Christine) Zhang.
2. The Tribunal erred in its construction and application of Public Interest Criterion 4020 in Schedule 4 to the Migration Regulations 1994 by failing to consider the effect that fraudulent conduct had on the applicant's application for a visa.
Particulars
(a) The Tribunal, at [41]-[42], found that the applicant had been a victim of a third party fraud when an altered version of Invoice #49874 had been provided to the Department on 8 March 2012 by Jason Yang or Lijun (Christine) Zhang with the intention of deceiving the first respondent, in circumstances where the applicant had not colluded in the fraud and had not been aware of the fraudulent conduct at the time.
(b) In the above circumstances, the Tribunal was bound to consider whether the applicant's application for a visa had been vitiated by the fraud.”

Ground 1

Ground 1 asserts that the Tribunal failed to comply with its obligation under s.359A of the Act in relation to information provided to the first respondent and to the Tribunal by Ms Zhang.
The Applicant asserted that the relevant information was contained in the following allegations made by Ms Zhang (together, the “Dishonesty Allegations”):
“First allegation (in the email to Business Skills Adelaide of 19 December 2013 to Business Skills Adelaide): That documents sent by the applicant in her application made false representations, including about the sales figures for Z.J. International, that the applicant had carried out many of the daily financial transactions at the company, and that the applicant had been pretending that she had been using a business mobile telephone which was in fact used by Ms Zhang.
Second allegation (in the "Immigration Dob-in report supporting document" created on or about 6 January 2014): Summarising information in the first allegation and referring to support documents, including false sales invoices and transactions in bank statements from 2012-2013, false addresses in bank statements, requests made by Ms Zhang to falsify sales revenue, and false identification of a mobile telephone number.
Third allegation (in the message dated 27 January 2014 left by Ms Zhang on the Tribunal's "dob-in" website): That in February 2013 the applicant had asked Ms Zhang to "make false purchase" from her shop to help her get her sales requirement for her application, using cash of $5,916, and issuing a false tax invoice and stock list, with a subsequent direction to Ms Zhang that if asked about this by Immigration, she should tell them this was a real sale. The email of 7 February 2014 provided the delegate with a copy of the false tax invoice for $5,916.00).
Fourth allegation (in the email to delegate of 6 March 2014): That the applicant had instructed her accountant to place the company's loan figure in her own name, despite evidence that part of the loan had been made by Ms Zhang.
Fifth allegation (in the email of 10 May 2014 to delegate attaching affidavit made by Ms Zhang in the Supreme Court proceedings): That the applicant had appointed and removed Ms Zhang as a director of Z.J. International without her knowledge, that the applicant had fabricated minutes of the meetings of Z.J. International for the purposes of her visa application, that the applicant intended to sell the business as soon as her visa had been approved, that the applicant "made up around $82,489.5 false sales”: and that there had been "suspicious" transfers of funds from the company's accounts to the applicant's personal account.
Sixth allegation (in the email to the delegate of 14 May 2014) : That the applicant had threatened Ms Zhang that if she didn't help her get her permanent residence visa the applicant would not sell the business and Ms Zhang would not get her money back.
Seventh allegation (in the table entitled ''Z.J. International - Qinghua Jiang's false sale details (Nov 2012 - Jun 2013)"): containing sales alleged by Ms Zhang to be false.
Eighth allegation (in the email of 20 September 2015 to the Tribunal): That the applicant doesn't have the ability to run her business by herself.”
It is common ground that none of the Dishonesty Allegations was mentioned in any detail by the Tribunal in its reasons. It is also common ground that the allegations were made by Ms Zhang.
The Tribunal found as follows in relation to all Ms Zhang’s allegations, including the Dishonesty Allegations:
“Accordingly the Tribunal is of the view that there is a significant risk that Ms Zhang’s allegations may be vexatious and may not be reliable. In these circumstances the Tribunal gives no weight to the allegations and does not rely on any part of the particulars from the allegations to make its findings.”
The first respondent contends that in the light of those findings, it is apparent that the Tribunal did not regard Ms Zhang as reliable and did not have regard to the Dishonesty Allegations in making its decision. Therefore, none of the Dishonesty Allegations are the reason, or part of the reason for affirming the decision under review.
The Applicant submits that the Dishonesty Allegations were highly relevant to the question of waiver in respect of Public Interest Criterion (“PIC”) 4020(4).
The Applicant referred to the letter of the migration agent, dated 21 October 2015, which claimed that PIC 4020 should be waived because there were compelling circumstances that affect the interests of Australia. Those circumstances included the Applicant’s contributions to local businesses and the community, bilateral business trading between China and Australia, and the integration of new Chinese immigrants into the local community. The Applicant provided several letters of support in that respect to the Tribunal for its consideration in relation to whether PIC 4020(1) should be waived. The Applicant’s migration agent also submitted that there were compassionate or compelling circumstances affecting a number of named Australian citizens and permanent residents.
The Applicant also referred to policy instructions set out in the Department’s Procedures Advice Manual which directs decision makers, when assessing a waiver application, to take into account matters such as “the severity of the fraud committed by the applicant”, whether the applicant has “consistently and deliberately defrauded the Department by providing false and misleading information and bogus documents in every application made to the Department”, and to weigh this up against the considerations in favour of the applicant.
The Applicant submitted that the mere fact that the Dishonesty Allegations were not expressly referred to in the decision does not mean that they were not information that the Tribunal considered would be the reason or part of the reason for affirming the decision under review.
In support, counsel for the applicants, Mr Poynder, referred the Court to Khan v Minister for Immigration and Citizenship (2011) 192 FCR 173 (“Khan”). In Khan, it was unknown to the applicant, and not mentioned in either the primary or review decision, that the applicant’s employer had written a letter to the Department alleging that the applicant had fraudulently included his sister in his visa application as his wife. This information was not disclosed to the applicant by the Delegate or the Tribunal. The Full Federal Court (Buchanan, Flick and Yates JJ) found that the information in the employer’s letter was of such significance that despite the Tribunal’s failure to advert to it in the reasons, it was necessarily something which had to be part of the Tribunal’s reasons for affirming the decision under review. Buchanan J stated at [45] as follows:
“It is very difficult to see how credible information of that kind could be excluded at the outset from the class of information that would be part of a reason for affirming a decision to cancel a visa. As the obligation arises during the course of the review it is not sufficient, in order to exclude it, merely to point to the reasoning disclosed in the decision after the review has been conducted and completed.”
It was relevant to the Court in Khan that the Tribunal had not mentioned the allegations made against the applicant at all.
However, in the case before this Court, the Tribunal made mention of Ms Zhang’s allegations, including the Dishonesty Allegations, and explains why it gave them no weight. Moreover, the Tribunal stated that the Dishonesty Allegations may be “vexatious” and may not be reliable.
Khan speaks of “credible information”. On no view could it be found that the Tribunal accepted the Dishonesty Allegations as “credible”. Indeed the transcript of the hearing reveals that the Tribunal Member stated the following to the applicant in the course of the hearing in respect of Ms Zhang:
“But I’m just telling you that just so you know I’m aware of how active she’s been in putting on claims that you’re not meeting – you didn’t meet the requirements. But it seems to me – I know that you’re in litigation with her and it seems to me that she’s – she has an investment in undermining you, it seems. And that’s probably on a both a personal and commercial basis that she’s undermining you, it seems.”
In considering the effect of s.424A of the Act (which is in identical terms to s.359A of the Act), the High Court of Australia made clear in Minister for Immigration and Citizenship v SZLFX (2009) 238 CLR 507 at 514, [24]-[26], that the Tribunal’s reasons are relevant in assessing whether certain information was the reason or part of the reason for its decision. I accept the first respondent’s submission that the proper inference to be drawn in the case before this Court is that none of the Dishonesty Allegations were the reason or part of the reason for the Tribunal’s decision because they were explicitly given no weight and were not relied upon.
As stated above, in the case before this Court, the Tribunal stated that it gave the allegations no weight on the basis that they may be vexatious and not reliable. In the circumstances, I find that the overwhelming inference, and the inference I draw, is that the Tribunal did not regard the Dishonesty Allegations as credible evidence worthy of its consideration. The transcript referred to above only bolsters that inference.
In the circumstances, I do not accept that the Dishonesty Allegations were part of the reason for affirming the decision under review. The Dishonesty Allegations do not constitute information that enlivened any obligation under s.359A of the Act to be put to the Applicant for comment either in writing or in accordance with s.359AA of the Act.
Accordingly, Ground 1 is not made out.

Ground 2

Ground 2 asserts that the Tribunal erred in construing and applying PIC 4020 by failing to consider the effect that fraudulent conduct had on the Applicant’s visa application. The particulars in support of Ground 2 assert that the Tribunal found that the Applicant had been a victim of third party fraud by the provision of a false invoice document to the Department in support of the visa application, in circumstances where the Applicant had not colluded in the fraud and had not been aware of the fraudulent conduct at the time.
The Tribunal found that the fake invoice document was provided to mislead the Department with respect to the Applicant’s dealings with another company and that an element of fraud or deception was probably engaged in by the Applicant’s husband or Ms Zhang.
The Applicant submitted that the Tribunal accepted that the Applicant herself did not alter the invoice and may not have been aware that the information was purposely untrue. The Applicant submitted that those findings established the Applicant was neither complicit in the fraud, nor indifferent to it.
The Tribunal accepted that the Applicant did not herself alter the invoice and accepted that the Applicant may not have been aware the information was purposely untrue. The Tribunal noted that the Applicant had emphatically asserted that she did not know that a bogus document had been provided to the Department.
However, I accept the submission of the first respondent that the Tribunal did not make a finding that the Applicant was a “victim” of third party fraud, as pleaded, and noted that the invoice had been altered to assist the Applicant to gain the visa.
In any event, it is well accepted that it is not necessary for the Minister or the Tribunal on review to conclude that the Applicant was aware the information was purposely untrue in order for PIC 4020 to be engaged (see Trivediv Minister for Immigration and Border Protection [2014] FCAFC 42; 220 FCR 169 at [49]-[50] per Buchanan J).
Having found that a bogus document had been provided to the Department, the Tribunal found that the Applicant did not meet PIC 4020(1).
The Tribunal then considered in detail whether PIC 4020(1) should be waived under PIC 4020(4).
The Tribunal referred comprehensively to all the references and information and material provided by the Applicant in support of her waiver application. The Tribunal noted that it considered all the evidence in relation to waiver cumulatively and accepted that the applicants have settled into the Australian community and make positive contributions in a range of ways. The Tribunal also noted that it was mindful that the third applicant had no role to play in the provision of the bogus document and yet the consequences of not waiving PIC 4020(1) are significant for him, where he is well settled and thriving in Australia’s education system.
The Tribunal was aware that the Applicant was asserting that she had no part in the preparation or the provision of the fake document. As stated above, the Tribunal accepted that the applicant did not herself alter the invoice and accepted that she may not have been aware that the information in the fake document was purposely untrue. The Tribunal found that there was “an element of fraud or deception”, probably by the Applicant’s husband or Ms Zhang, intended to mislead the Department with respect to the Applicant’s dealings with a client of the main business. The Tribunal found that the fake invoice was probably altered to embellish the Applicant’s involvement but was inclined to agree with the Applicant that an embellishment was not necessary because there was ample evidence of the Applicant’s involvement in the day to day management of the business.
The Tribunal made a clear finding that the third applicant, the Applicant’s son, had no role to play in the giving to the Department of the bogus document. However, the Tribunal made no such finding in respect of the Applicant. As stated above, the Tribunal did not make a finding that the Applicant was a “victim” of third party fraud as pleaded in the grounds and noted that the invoice had been altered to assist the Applicant to gain a visa. The Tribunal found that the alteration was intended to deceive the Department in relation to the Applicant’s involvement in dealing with clients of the main business.
In Maharjan v Minister for Immigration [2017] FCAFC 213 (“Maharjan”), the majority of the Court (Gilmour and Mortimer JJ) found that for third party fraud to vitiate the visa application process, the applicant must prove the fraud and satisfy the Court that the applicant was neither complicit in the fraud, nor indifferent to it (see [102]). If the applicant is successful in proving the fraud, the Court must consider the effect, if any, of the fraud on the processes by which the visa application was to be considered. At [103] Gilmour and Mortimer JJ stated as follows:
“If the appellants establish those matters, the second question for the Federal Circuit Court will be how, if at all, the fraud which is proven to have occurred, affected the processes by which the appellants’ visa applications were to be considered: see Minister for Immigration and Citizenship v SZLIX [2008] FCAFC 17; 245 ALR 501 at [33]. That is because, as the High Court said in SZFDE and Full Courts of this Court have reiterated, there must also be a fraud “on” the administrative decision-maker, in the sense of the fraud affecting that decision-maker’s statutory functions and obligations, or adversely affecting, disabling or stultifying the processes which the Act prescribes. In SZFDE the effect was on the Tribunal’s hearing function. It may well be that an applicant cannot establish this requirement on the facts: see for example Minister for Immigration and Citizenship v Lu [2010] FCAFC 147; 189 FCR 525 at [38] and SZLHP v Minister for Immigration and Citizenship [2008] FCAFC 152; 172 FCR 170 at [13]-[18] (Branson J), [27] (Lindgren J), [51] (Graham J).”
At [113] Gilmore and Mortimer JJ stated as follows:
“…Before the Federal Circuit Court, the appellants will bear the onus of proving that the fraud alleged was a fraud perpetrated on the first appellant: that is, that she was neither complicit in it nor “indifferent” to it, in the limited sense explained in Singh and Gill. The appellants will also need to prove that the submission of those fraudulent documents provided by the Nepalese agent to their migration agent and then to the Minister’s delegate “stultified” the visa application and determination processes for which the Migration Act provides. The Minister will be able to both adduce any evidence he considers appropriate, and to test (whether by way of evidence or by way of cross-examination) the appellants’ case. There is in those circumstances no relevant prejudice to the Minister. Whether the Federal Circuit Court is satisfied of the matters alleged, and whether the Court considers declaratory relief as sought to be appropriate, will be matters for it.”
In Singh v Minister for Immigration and Border Protection [2018] FCAFC 52 (“Singh”) at [144] Griffiths and Moshinsky JJ stated as follows:
“Where there is some evidence to indicate that a visa applicant may not satisfy PIC 4020(1) and the visa applicant claims that his or her migration agent or a third party engaged in fraudulent conduct and provided in support of the person’s visa application a bogus document, or information that is false or misleading in a material particular, and the visa applicant claims that his or her visa application is therefore a nullity, the visa applicant in a judicial review case carries the onus of establishing that:
(a) the migration agent or third party was responsible for the fraudulent conduct;
(b) at the relevant times, the visa applicant had no knowledge of and was not complicit in the fraudulent conduct carried out by the migration agent or third party;
(c) the visa applicant was not indifferent as to whether the migration agent or third party engaged in the fraudulent conduct in the visa application process; and
(d) the fraud affected decision-making under the Act.”
I accept the first respondent’s submission that there is nothing in Maharjan to suggest that a tribunal’s finding is itself sufficient to discharge the applicant’s burden of proof of establishing fraud. The majority in Maharjan considered that proof of the fraud could only be achieved by an applicant leading evidence before the Court to establish the fraud, such evidence being subject to cross examination and possibly evidence in reply by the Minister.
I raised with counsel for the Applicant on 20 February 2018 that if leave was granted to further amend the application to seek a declaration that the decision of the Tribunal was of no effect because the Delegate’s decision was vitiated by jurisdictional error because of non-complicitous fraud on the part of the Applicant, that it seemed to me that the Applicant would need to file evidence of her lack of involvement, complicity or collusion in the fraud. However, Mr Poynder submitted that the Court could accept that the third party fraud was proved by the findings of the Tribunal.

As stated above, the Tribunal’s findings are essentially that it accepted that the Applicant did not herself alter the invoice, that she may not have been aware that information provided in support of her visa application was purposely untrue, and noted that the Applicant emphatically asserted that she did not know that a bogus document had been provided. However, I do not accept that the Tribunal has made a finding as to the extent of the Applicant’s involvement, complicity or collusion in the provision of the bogus document. The Tribunal did not turn its mind as to whether the Applicant was indifferent to the fraud.
Before this Court, the Applicant did not lead any evidence whatsoever that she would not have relied on a bogus document, that is, she was not indifferent to the fact the document was counterfeit. The Applicant must persuade the Court that she would not have given the document to the Department had she known it was counterfeit. In other words, the extent to which an applicant may have been involved, despite not creating the fake document or being unaware of its provision to the Department, must be a matter for evidence for the Applicant to prove that she was a victim of third party fraud.
Moreover, and in any event, it is for the Applicant to show how the fraud stultified the Delegate’s decision. In the case before this Court, the Delegate wrote to the Applicant identifying the allegation of the fake document and the Applicant agreed that it was fake. The Delegate invited the Applicant to withdraw her application. The Applicant declined. When the Delegate identified the fake document for the Applicant and offered the Applicant the opportunity to withdraw, the Applicant could have done so and commenced a fresh application without the fake document. However, in relation to the fake invoice, the Applicant asserted through her migration agent, that she was not complicit in altering the invoice and that it did not have the quality of “purposeful falsity” and was an unintended and innocent error on the part of the Applicant. The migration agent submitted that the information was not false or misleading in a material particular.
At its highest, the Tribunal accepted that the Applicant did not herself alter the invoice and may not have been aware that the information was purposely untrue. Those findings are not sufficient to divorce the Applicant from any involvement in the provision of the bogus document to the Department. The Tribunal did not find that the Applicant was not the victim of fraud and, as stated above, no further evidence was provided to this Court on that issue.
Ultimately, the Tribunal was not satisfied that there was no evidence that the Applicant had given, or caused to be given to the Minister or the Tribunal on review, a bogus document or information that was false or misleading in a material particular in relation to the application for the visa. The Tribunal found that the particular circumstances in which the Applicant failed to meet PIC 4020(1) did not allow the Tribunal to lower its assessment in relation to whether there were compelling circumstances that affected the interests of Australia or compassionate or compelling circumstances that affected the interests of an Australian citizen.
In the circumstances, there was no stultifying of the Delegate’s decision and the visa application was valid.
Accordingly, Ground 2 is not made out.
Otherwise, the Tribunal’s findings and conclusions were open to it on the evidence and material before it and for the reasons it gave.
The Tribunal’s decision is not affected by jurisdictional error and the proceeding before this Court should be dismissed with costs.

I certify that the preceding forty-eight (48) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Associate:

Date: 27 June 2018

[69] Transcript, 6.13-14.

[73] Transcript, 12:22-35.

[2018] FCCA 1685

27 June 2018

Key Legal Topics

Areas of Law

Administrative Law

Immigration

Legal Concepts

Judicial Review

Natural Justice

Procedural Fairness

Jurisdiction