Kassem & Ors v Minister for Immigration & Anor (No.2)
[2020] FCCA 1834
•10 July 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| KASSEM & ORS v MINISTER FOR IMMIGRATION & ANOR (No.2) | [2020] FCCA 1834 |
| Catchwords: MIGRATION – Application for remedies under s.476 of the Migration Act 1958 (Cth) in relation to decision of Administrative Appeals Tribunal (Tribunal) affirming decision not to grant a 457 visa – whether a person or persons who purported to act in relation to applicants’ application for a 457 visa engaged in any fraud such as to stultify Tribunal’s exercise of jurisdiction to review delegate’s decision – fraud not established – all but one of the alleged frauds, if established, incapable of stultifying exercise of Tribunal’s jurisdiction – application dismissed. |
| Legislation: Australian Constitution, s.75(v) Evidence Act 1995 (Cth), ss.59, 135 Legal Profession Uniform Conduct (Barristers) Rules 2015 (NSW), r.65 Legal Profession Uniform Law (NSW) Migration Act 1958 (Cth), ss.140, 276, 280, 281, 359C, 360(3), 476 Migration Regulations 1994 (Cth), reg.2.59(b), Schedule 2, cl.457.223 |
| Cases cited: Armagas Ltd v Mundogas SA (The Ocean Frost) [1985] 1 Lloyd’s Rep 1 Banque Commerciale S.A. v Akhil Holdings Limited (1990) 169 CLR 279 Blatch v Archer (1774) 1 Cowp. 63; 98 ER 969 Bradford Third Equitable Benefit Building Society v Borders [1941] 2 All ER 205 Briginshaw v Briginshaw (1938) 60 CLR 336 Carbo v United States [1963] USCA9 118; 314 F.2d 718 Crown Lands (Consolidation) Act and Western Lands Act v Tweed Byron Aboriginal Land Council (1990) 71 LGRA 201 Jonesco v Beard [1930] AC 298 Kassem & Ors v Minister for Immigration & Anor [2018] FCCA 250 Kassem v Minister for Home Affairs [2019] FCA 244 Lazarus Estates Ltd v Beasley [1956] 1 QB 702 Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66 Onassis and Calogeropoulos v Vergottis [1968] 2 Lloyd’s Rep 403 SZFDE v Minister for Immigration and Citizenship [2007] HCA 35 Three Rivers District Council v Bank of England (No 3) [2003] 2 AC 1 Wallingford v Mutual Society (1880) 5 App. Cas. 685 Wentworth v Rogers (No 5) (1986) 6 NSWLR 534 |
| First Applicant: | TANJA KASSEM |
| Second Applicant: | MAHMOUD KASSEM |
| Third Applicant: | AMRO KASSEM |
| Fourth Applicant: | YASMINE KASSEM |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 3344 of 2015 |
| Judgment of: | Judge Manousaridis |
| Hearing date: | 5 November 2019, 9 December 2019 & 2 June 2020 |
| Date of Last Submission: | 2 June 2020 |
| Delivered at: | Sydney |
| Delivered on: | 10 July 2020 |
REPRESENTATION
| Counsel for the Applicants: | Mr J F Gormly |
| Solicitors for the Applicants: | Labour Pains Legal |
| Counsel for the First Respondent: | Ms R Francois |
| Solicitors for the First Respondent: | Sparke Helmore Lawyers |
ORDERS
The first respondent’s objection to the tender of MFI5 is overruled.
The application for leave to file a further amended application in the form of the draft that is MFI6 is dismissed.
The application is dismissed.
Subject to order 5, the first and second applicants pay the first respondent’s costs, such costs to be agreed or assessed.
The parties have liberty to apply within 21 days for an order varying or discharging order 4.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 3344 of 2015
| TANJA KASSEM |
First Applicant
| MAHMOUD KASSEM |
Second Applicant
| AMRO KASSEM |
Third Applicant
| YASMINE KASSEM |
Fourth Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicants apply for remedies in relation to a decision made by the second respondent (Tribunal) affirming the decision of a delegate of the first respondent (Minister) made on 27 May 2015 not to grant the first applicant, Ms Kassem, a Temporary Business Entry (Class UC) Temporary Work (Skilled) (Subclass 457) visa (457 visa). The second applicant, Mr Kassem, is the husband of Ms Kassem, and the third and fourth applicants are their dependent children. They applied for the 457 visa as members of Ms Kassem’s family unit.
Background to (remitted) hearing
To have been entitled to a 457 visa Ms Kassem had to satisfy, at the time of decision, a number of criteria. These included either the criteria specified in cl.457.223(2) of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations), or the criteria specified in cl.457.223(4) of Schedule 2 to the Regulations. Ms Kassem elected to satisfy the criteria specified in cl.457.223(4). What was in issue before the Tribunal was whether Ms Kassem satisfied the criterion specified in cl.457.223(4)(da) to Schedule 2 to the Regulations. That required her to have the skills, qualifications, and employment background the Minister considers necessary to perform the tasks of the nominated occupation. Ms Kassem nominated “Accountant (General) 221111”.
A delegate of the Minister refused to grant Ms Kassem a 457 visa. The applicants applied to the Tribunal for review of the delegate’s decision. The form of application for review nominated a Mr Meher as the applicants’ migration agent.[1] In a letter dated 7 October 2015 addressed to Ms Kassem, but sent by email to Mr Meher (359 letter), the Tribunal informed Ms Kassem there was “no information before the Tribunal regarding your skills and qualifications apart from some information about your previous employment on the visa application”.[2] By the 359 letter the Tribunal invited the applicants to provide, by 21 October 2015, information to show the first applicant has the skills, qualifications, and employment background necessary to perform the tasks of the nominated occupation of accountant. Neither Mr Meher nor the applicants responded to the 359 letter.
[1] Exhibit B, page 97
[2] Exhibit B, page 118
On 4 November 2015 the Tribunal affirmed the delegate’s decision. The Tribunal referred to the 359 letter, and to the applicants’ failure to provide a response to that letter. The Tribunal found s.359C of the Act applied and noted that, pursuant to s.360(3) of the Act, the applicants were not entitled to appear before the Tribunal. The Tribunal, therefore, elected to make a decision without taking further steps to obtain the information it sought in the 359 letter.
The Tribunal noted the applicants’ visa application form indicated Ms Kassem worked as a bank manager and as a loans processing officer between 1999 and 2008. The Tribunal, however, found there was little information before it regarding Ms Kassem’s skills, employment background, and qualifications to perform the nominated occupation of accountant. The Tribunal said that registration or licensing might be required for the performance of some tasks, and that it would be necessary for Ms Kassem at least to hold a relevant qualification. The Tribunal found there was no evidence before it of Ms Kassem’s qualifications or skills necessary to perform the tasks of the nominated occupation.
The Tribunal accepted that Ms Kassem’s employment background in banking might be relevant employment experience but, in the absence of detail about the work she performed, the Tribunal concluded on the basis of the available information that it was not satisfied Ms Kassem has the qualifications, skills, and employment background necessary to perform the tasks of the nominated occupation of accountant and, therefore, did not satisfy the requirements of cl.457.223(4)(da) of the Regulations.
On 9 December 2015 the applicants applied to this Court for an order that the Tribunal’s decision be set aside. In their application the applicants claimed the Tribunal made a jurisdictional error because it restricted its review of the delegate’s decision by only relying on documents without proceeding to a hearing. Ms Kassem also filed an affidavit made on 8 December 2015 in which she deposed she had read the “Statement of Decision and Reasons” provided by the Tribunal and, referring to paragraph 5 of that decision, said she never received the 359 letter, and was informed by her migration agent that he did not receive it either.
The matter came before me for hearing on 24 February 2017. Mr and Ms Kassem, who represented themselves, relied on written submissions in which they referred to: the Tribunal’s refusing their application without a hearing as a result of there being no response to the 359 letter; to their agent’s writing to the Tribunal denying he received the 359 letter and requesting that the applicants be given a chance to respond with further information; and to the Tribunal’s reply that its decision could not be reopened. In those submissions Ms Kassem stated: “I am a victim and I hope that this Honourable Court can verify whether information and request were made by my lawyer/representative or not”.[3]
[3] Applicants’ Outline of Submissions 24.02.2017, [7]
As I noted in the reasons for judgment I delivered on 8 February 2018,[4] and as it should particularly be evident from the transcript of the hearing before me on 24 February 2017,[5] I explored with Ms Kassem and Mr Kassem their dealings with Mr Meher, being the person I understood Ms Kassem and Mr Kassem said was their migration agent in the Tribunal proceeding. The essence of what I had understood Ms Kassem and Mr Kassem said is that their migration agent did not communicate to them the 359 letter. I considered whether, assuming what Ms Kassem and Mr Kassem said to me at the hearing were true, there was a reasonably arguable case of fraud by their migration agent. I concluded there was no arguable case of fraud. I dismissed the application because I found that the migration agent, as the applicants’ representative, was taken to have received the 359 letter by email; and that is because I found that the 359 letter had been sent in the manner permitted by the Act.
[4] Kassem & Ors v Minister for Immigration & Anor [2018] FCCA 250
[5] Which is annexed to the affidavit of K L Evans 28.08.2019
On 27 February 2019 the Federal Court of Australia (Collier J), by consent, allowed an appeal from my orders “on the basis that while this was through no fault of the primary Judge in the circumstances of the case, the primary Judge nonetheless erred by not considering whether the Administrative Appeals Tribunal’s functions had been stultified by migration agent fraud”.[6] That, however, is not the true basis on which the appeal was allowed. As is apparent from my reasons for judgment of 8 February 2018, I did consider whether the matters Mr and Ms Kassem said to me at the hearing on 24 February 2017 (assuming them to be true), viewed against all the other material that was before me, raised an arguable case of fraud against Mr Meher, being the person I had understood Mr and Ms Kassem claimed had acted as their migration agent before the Tribunal. I found there was no reasonably arguable case of fraud. The applicants do not appear to have challenged that finding on appeal, and the Federal Court did not suggest my finding was incorrect or that I had made an error in so finding.
[6] Kassem v Minister for Home Affairs [2019] FCA 244
The true basis on which the appeal was allowed is that Mr and Ms Kassem filed in the Federal Court affidavits deposing to matters they did not put before me at the hearing on 24 February 2017, and which they claimed disclosed fraud by a third party that subverted the Tribunal’s exercise of its jurisdiction. It is apparent that the Minister consented to the appeal being allowed so that the claim of fraud the applicants raised before the Federal Court would be determined by this Court rather than by the Federal Court. The Federal Court granted the applicants leave to rely in the appeal on a claim of fraud they had not raised before me; and it did so without reading Mr and Ms Kassem’s affidavits; without considering whether the applicants “pleaded specifically and with particularity” [7] the fraud they intended to claim; without considering whether the fraud the applicants intended to claim, even if established, could arguably have subverted the Tribunal’s exercise of jurisdiction; and, apparently, without requiring Mr and Ms Kassem to explain why they had not raised at the hearing before me the claim of fraud they raised on appeal.[8]
[7] Forrest v Australian Securities and Investments Commission (2012) 247 CLR 486; [2012] HCA 39 at [26]
[8] Kassem & Ors v Minister for Immigration & Anor [2018] FCCA 250. At [10] Collier J referred to the Migration Agents Registration Authority (Authority) having determined a complaint against Mr Meher after I pronounced my orders, thus suggesting that her Honour might have considered this to be a matter that explained the applicants not having raised their claim of fraud until after they filed their appeal to the Federal Court. The Authority, however, did not make any finding of fraud against Mr Meher; and, in any event, as will be shown, the applicants’ claims of fraud are directed to a Ms Tabar, a name neither Ms Kassem nor Mr Kassem uttered at the hearing before me on 24 February 2017.
The matter, therefore, was remitted to me for the purpose of determining the claim of fraud the applicants raised for the first time in the Federal Court. That claim, as formulated in the amended application, which reflected the substance of the claim of fraud counsel for the applicants formulated before the Federal Court, is as follows:
The decision of the second respondent Administrative Appeals Tribunal was affected by jurisdictional error because the Tribunal’s processes were so subverted by the fraud of a third party that its jurisdiction remained constructively unexercised.
The third party whose conduct the applicants allege subverted the processes of the Tribunal is not Mr Meher, but a person by the name of Ms Guilda Tabar, who is or has also been known by the name of Ms Guilda Said. I will describe later in these reasons the conduct in which the applicants allege Ms Tabar engaged which the applicants submit constituted fraud and which, they allege, subverted the Tribunal’s processes.
Arrangement of reasons
Before I consider the applicants’ claims of fraud, it will be necessary to set out the course of the proceeding after the matter was remitted to me. That is necessary, first, because I permitted the applicants to reopen their case after the parties were notified of what I considered to be evidence that was potentially adverse to aspects of the evidence the applicants had given, but which had not been the subject of cross-examination, and it will be relevant to identify the time at which evidence was adduced in the course of the hearing; and, second, in the course of the hearing a number of issues arose about whether there would be any utility in the Court granting the applicants any relief, assuming they were to succeed on the claim based on fraud.
After I set out the course of the proceeding before me I will: first, identify the submissions the parties have made about the credibility of Mr and Ms Kassem, and set out the approach I propose to take in assessing credibility; second, describe in narrative form the evidence, and make findings along the way; third, consider whether on the evidence before me the applicants have established all or any of the frauds they allege and, if so, whether any fraud subverted the Tribunal’s processes; and, fourth, I will consider whether I should grant the applicants leave to further amend their application. That question arises because the applicants submit that the amendment they seek, if allowed, will be an answer to the Minister’s submission that even if the applicants were to succeed on their claims based on fraud, there would be no utility in granting relief.
Course of hearing on remittal
The hearing on remittal before me occurred over three days, namely, on 5 November 2019, 9 December 2019, and 2 June 2020. At the hearing on 5 November 2019 it was apparent the Minister’s case is that there was no fraud, or, if there was any fraud, the Tribunal’s processes were not subverted by the fraud. In large part the Minister’s case rests on the submission that Mr and Ms Kassem are not witnesses of credit, and their evidence should be accepted only to the extent there is independent evidence that corroborates it. Much of the hearing on 5 November 2019, therefore, was taken up by counsel for the Minister cross-examining, first, Ms Kassem, and then Mr Kassem. In addition, however, counsel for the Minister indicated the Minister intended to submit that even if the applicants were to establish the Tribunal’s processes were subverted by fraud, the amended application should nevertheless be dismissed because any relief that would be available would be futile. At the conclusion of the hearing on 5 November 2019 I directed the parties to file written submissions, including submissions on the question regarding the futility of relief, and adjourned the hearing for oral address to 9 December 2019.
After I adjourned the matter, there came to my attention an email sent by counsel for the applicants to my associate stating that the applicants intended to apply for leave to file a further amended application together with additional affidavits. The proposed amended application does not contain an additional ground. Instead, it seeks the following additional remedies:
2.An injunction restraining the Administrative Appeals Tribunal from acting upon the applicants’ application to it for review.
3.A declaration that the first applicant’s application for a Long-Stay Temporary Visa made on 16 June 2013 is invalid.
4.A declaration that from the time of the declaration of invalidity and for 28 days thereafter the applicants hold valid bridging visas A.
I instructed my associate to send to the parties an email which included the following:
His Honour suggests that the application for leave to amend be heard on 9 December 2019 with all other issues. The applicants should provide to the Minister a draft of the proposed further amended application.
If the applicants intend to rely on evidence they should provide that evidence to the Minister in advance of the hearing on 9 December 2019 to give the Minister sufficient time to prepare evidence in response, if any.
His Honour’s preference would be for all additional material to be filed in advance of the hearing on 9 December 2019, rather than the material only being served. The filing of material, including the proposed further amended application, would be without prejudice to any rights the parties may have had the material not been filed.
At the hearing on 9 December 2019 counsel for the Minister objected to the proposed amendment. Counsel submitted the proposed amendment should not be allowed because the applicants provided no explanation for not having claimed the relief earlier, the applicants would in any event have no reasonably arguable prospects of success in obtaining the remedies they seek and, further, to the extent the proposed amendment would have reasonable prospects of success the Minister would be prejudiced because the Minister would require time to put on evidence. Counsel for the Minister also submitted that the additional evidence on which the applicants intended to rely was an attempt to reopen their case and, for that reason, the applicants should not be permitted to rely on their additional evidence.
After some discussion, and at my suggestion, counsel for the applicants and for the Minister agreed that I should proceed to hear the application for amendment; that if I were to agree with the Minister’s submissions that the proposed amendment would be futile and I would otherwise not be satisfied that the applicants should be granted leave to file a further amended application, I would dismiss the application for amendment and consider the ground contained in the amended application as it currently stands. If, on the other hand, I were not to accept the Minister’s submission that the proposed amendment is not reasonably arguable, and would otherwise be satisfied that the amendment should be allowed, I would go no further than to record that conclusion, and provide the Minister an opportunity to consider filing further evidence and set down the matter for further hearing. The hearing proceeded on this basis and, at its conclusion, I reserved my judgment.
In the course of considering my judgment, however, I formed the view that a number of matters that appeared on the evidence before me raised questions that, without explanation, could potentially lead me to reason in a manner that would result in my making adverse findings against the applicants. I formed the view that, as a matter of fairness, it was not open to me to embark on a process of reasoning on those questions without my informing the parties what those questions are, and provide the applicants an opportunity to apply for leave to reopen their case, adduce evidence, and make submissions in relation to those questions. On 28 January 2020 I instructed my associate to send to the parties a detailed letter which I drafted which identified the questions which, if not explained, could lead to the making of adverse findings against the applicants (Associate’s Letter); and the letter invited the applicants to inform the Court whether they wanted an opportunity to apply for leave to reopen their case and put on evidence to address the questions the Associate’s Letter identified.
The matter came before me on 14 February 2020. Counsel for the applicants said the applicants wished to apply to reopen their case and, therefore, have the opportunity to file further affidavits to address the questions in the Associate’s Letter. I directed the applicants file and serve further evidence by 28 February 2020. I also ordered that the application for leave to reopen, and, if such leave is granted, the further hearing of the matter, be set down for hearing on a date to be determined. Pursuant to those orders Mr and Ms Kassem each filed an affidavit made on 27 February 2020.
The matter came before me again on 16 April 2020. On that day I set the matter down for a further directions hearing on 23 April 2020 and, on that day, I set the matter down for hearing on 2 June 2020. The matter, however, came before me a further three times. On two of those occasions, counsel for the applicants sought directions in relation to a number of matters, one of which was for Mr and Ms Kassem to give evidence through interpreters. I expressed reservations about Mr and Ms Kassem giving evidence through interpreters when they had not previously done so or requested that they do so. I indicated, however, that I would permit an interpreter to be present at the hearing to assist with any difficulty Mr or Ms Kassem might have when being cross-examined. The matter came before me on 28 May 2020 after Mr and Ms Kassem filed further affidavits which their counsel indicated to the Minister he intended to read at the hearing on 2 June 2020.
At the hearing on 2 June 2020, additional affidavits were read, Mr and Ms Kassem were both cross-examined, additional documents were admitted into evidence, and counsel made further submissions. An interpreter in the Arabic language was available by telephone through Microsoft Teams, but because the connection was severed twice at the beginning of the hearing, resulting in the connection of the Court’s transcription service being severed, I directed that the hearing proceed without the interpreter. No party submitted that this gave rise to any difficulty in the manner in which Mr Kassem gave his evidence; and I am satisfied that Mr Kassem understood the questions to which he provided answers.
Assessment of credibility of applicants’ evidence
Parties’ submissions
The Minister submits I should have no hesitation in concluding that the evidence of Mr and Ms Kassem should not be accepted unless it is independently corroborated.[9] The Minister relies on the following submissions:
(a)They were “both less than frank and attempted to fashion the evidence to the forensic exigency of painting themselves as trusting simpletons of understanding basic commercial transaction despite their clear and lengthy experience in business matters”.[10]
(b)The claims the applicants make are inconsistent with the claims they made at the hearing before me on 24 February 2017.[11]
(c)A failure to produce in answer to a notice to produce correspondence with a Mr Laba Sarkis, a person from whom the applicants say they received assistance.[12]
(d)Mr and Ms Kassem “were completely indifferent to the manner of the visa application process and, at best, were wilfully blind to obvious matters which called for enquiry”.[13]
(e)Mr Kassem gave evidence that he does not have a good memory.[14]
[9] First Respondent’s Closing Submissions, [48]
[10] First Respondent’s Closing Submissions, [48]
[11] First Respondent’s Closing Submissions, [49]
[12] First Respondent’s Closing Submissions, [53]
[13] First Respondent’s Closing Submissions, [58]
[14] First Respondent’s Closing Submissions, [59]
There is a tension between the Minister’s broad submission that I should not accept the evidence of Mr and Ms Kassem unless it is independently corroborated, and the Minister’s affirmative submission that Mr and Ms Kassem were indifferent and wilfully blind in relation to the process of Ms Kassem’s application for a 457 visa; and that is because the Minister’s affirmative submission implicitly accepts or assumes as true some of the critical elements of the evidence Mr and Ms Kassem have given which is not independently corroborated. That is apparent from the matters on which the Minister relies for submitting Mr and Ms Kassem were indifferent and wilfully blind. These include the submissions that Mr and Ms Kassem “both knew an apparent employee, Ms Tabar, had sought to undercut her employer, Mr Al Nakeeb and have money paid directly into her bank account . . . yet neither applicant queried Mr Al Nakeeb”;[15] they “both knew an employee, Ms Tabar, was asking to falsely using [sic] her employer’s name when she was doing the work at lower rates;[16] and they received emails from a person and organisation not apparently known to them.[17] As will appear later, I am not satisfied the factual premises of these submissions are correct.
[15] First Respondent’s Closing Submissions, [58(a)]
[16] First Respondent’s Closing Submissions, [58(b)]
[17] First Respondent’s Closing Submissions, [58(e)]
The applicants’ counsel’s submissions relating to the credibility of Mr and Ms Kassem’s evidence concentrate on two principal topics. The first is whether, assuming their evidence is accepted, Mr and Ms Kassem were complicit in what is submitted to be Ms Tabar’s fraud on the Department and Tribunal.[18] The second is whether the applicants, particularly Ms Kassem, gave an inconsistent account at the hearing before me on 24 February 2017 such that it could be inferred that they had manufactured their current claims for fraud.[19]
[18] Applicants’ Post Hearing Submissions, [25]-[33]
[19] Applicants’ Post Hearing Submissions, [34]-[59]
The parties’ submissions do not appeal to me as useful for determining what, if any, evidence Mr and Ms Kassem have given I should accept. That Mr and Ms Kassem might have attempted to downplay what the Minister submits is their ability to understand business affairs is not by itself a sufficiently cogent ground for rejecting their evidence; and that Mr and Ms Kassem may have given inconsistent evidence by itself does not compel the conclusion that none of their evidence should be accepted. Further, as I have already noted, some of the Minister’s submissions accept or assume as true some aspects of the evidence Mr and Ms Kassem have given which is not supported by corroborative evidence.
Principles for assessing credibility
I have on a number of occasions identified the principles for assessing the credibility of testimony; and it would be convenient to repeat here what I have said elsewhere. I begin with the notion of “credibility” itself. It denotes “the quality or power of inspiring belief”.[20] When applied to testimony (whether given orally before the court or recorded in a document), credibility refers to the capacity of the testimony to inspire belief in the existence or non-existence of the fact asserted by the testimony to exist or not exist. A finding by a court in a civil proceeding, therefore, that testimony is not credible is usually taken to be a finding that the testimony does not have the capacity to satisfy the court, at least on the balance of probabilities,[21] of the existence or non-existence of the fact asserted by the testimony to exist or not exist. But “credibility” has a broader meaning. It may be taken to refer to testimony that is capable of satisfying a fact finder that the fact asserted by the testimony to exist or not exist does exist or does not exist, but which, in the particular circumstances of the case, the fact finder is not so satisfied. In these reasons for judgment I use “credibility” in the broader sense.
[20] Indiana Metal Products v National Labor Relations Board [1971] USCA7 173; 442 F.2d 46 at 51 (1971) (Seventh Circuit), quoting Webster’s Third New International Dictionary 1966
[21] Section 140, Evidence Act 1995 (Cth)
Whether or not any given testimony will inspire satisfaction in the existence or non-existence of the fact the witness asserts exists or does not exist will depend on the fact finder’s assessment of the witness’s “powers of perception, memory and narration . . . and of his [or her] opportunity and desire to exercise them honestly and efficiently in the situation under examination”.[22] That means that assessing the credibility of testimony “involves wider problems than mere ‘demeanour’ which is mostly concerned with whether the witness appears to be telling the truth as he now believes it to be”.[23] Assessing evidence “apprehends the over-all evaluation of testimony in the light of its rationality or internal consistency and the manner in which it hangs together with other evidence”.[24] It has also been said that credible evidence is “that which meets the test of plausibility”.[25]
[22] Edmund M. Morgan, “The Relation Between Hearsay and Preserved Memory” (1927) 40 Harvard Law Review 712, 712.
[23] Onassis and Calogeropoulos v Vergottis [1968] 2 Lloyd’s Rep 403 at 431 (Lord Pearce)
[24] Carbo v United States [1963] USCA9 118; 314 F.2d 718 at 749 (1963) (Ninth Circuit)
[25] Indiana Metal Products v National Labor Relations Board [1971] USCA7 173; 442 F.2d 46
There have been a number of statements about how a court should assess testimony. For example in The Ocean Frost, Robert Goff LJ said:[26]
It is frequently very difficult to tell whether a witness is telling the truth or not; and where there is a conflict of evidence such as there was in the present case, reference to the objective facts and documents, to the witnesses’ motives, and to the overall probabilities, can be of very great assistance to a judge in ascertaining the truth.
[26] Armagas Ltd v Mundogas SA (The Ocean Frost) [1985] 1 Lloyd’s Rep 1 at page 57
And in EPI Environmental Technologies Inc v Symphony Plastic Technologies Peter Smith J said:[27]
(i) First, it is essential to evaluate a witness’s performance in the light of the entirety of his evidence. Witnesses can make mistakes, but those mistakes do not necessarily affect other parts of their evidence.
(ii) Second, witnesses can regularly lie. However . . . [that] does not mean necessarily that the entirety of that witnesses [sic] evidence is rejected. A witness may lie in a stupid attempt to bolster a case, but the actual case nevertheless remains good irrespective of the lie. A witness may lie because the case is a lie.
[27] EPI Environmental Technologies Inc v Symphony Plastic Technologies [2004] EWHC 2945 (Ch) at [74]
Finally, there is the approach to fact finding described by MacKenna J.[28]
This is how I go about the business of finding facts. I start from the undisputed facts which both sides accept. I add to them such other facts as seem very likely to be true, as, for example, those recorded in contemporary documents or spoken to by independent witnesses like the policeman giving evidence in a running-down case about the marks on the road. I judge a witness to be unreliable if his evidence is, in any serious respect, inconsistent with these undisputed or indisputable facts, or of course if he contradicts himself on important points. I rely as little as possible on such deceptive matters as his demeanour. When I have done my best to separate the true from the false by these more or less objective tests, I say which story seems to me the more probable, the plaintiff's or the defendant's, and if I cannot say which, I decide the case, as the law obliges me to do, in the defendant’s favour. The plaintiff has failed to discharge the burden of proof.
[28] MacKenna, B., “Discretion” (1974) 9 The Irish Jurist (new series), 1 at page 10. See also Bell, E., “An introduction to judicial fact-finding” (2013) 39 Commonwealth Law Bulleting 512
Other principles relevant to assessing evidence
There are two other principles or sets of principles that are relevant to assessing evidence in the circumstances of this case. One is what Lord Mansfield in Blatch v Archer described as the maxim “that all evidence is to be weighed according to the proof which it was in the power of one side to have produced, and in the power of the other to have contradicted”.[29] This principle is relevant to the assessment of the credibility of the evidence of Mr and Ms Kassem because, as I show later, there are reasons for not being satisfied that Mr and Ms Kassem have adduced documents in their possession which reveal communications between the applicants and Ms Tabar, the person the applicants allege engaged in fraud; or between the applicants and other persons which documents that are in evidence reveal performed work in relation to Ms Kassem’s application for a 457 visa; or between such persons and Ms Tabar. Where a fact finder is not satisfied that a party who gives evidence has put forward in his or her evidence all the documents that the party may hold that are or may be relevant to the matters about which the party gives evidence, that is a factor that may weigh against accepting the party’s evidence.
[29] Blatch v Archer (1774) 1 Cowp. 63; 98 ER 969, at page 970
The second set of relevant principles arises from the nature of the claims the applicants make in this proceeding. They claim fraud. It is a fundamental and long-established principle that, in all cases based on fraud, “particulars of the fraud claimed must be exactly given and the allegations must be established by the strict proof which such charge requires”;[30] and “if a case of fraud is to be mounted, it should be pleaded specifically and with particularity”.[31] The “mere labelling of an allegation as fraud amounts to little”,[32] because “[n]obody can be expected to meet a case . . . upon mere allegations of fraud without any definite character being given to those charges by stating the facts upon which they rest”.[33] These principles apply just as much to allegations of fraud made in applications for constitutional writs as they do to allegations of fraud made in ordinary civil actions. The High Court in SZFDE v Minister for Immigration and Citizenship quoted with approval a passage from the judgment of Denning LJ in Lazarus Estates Ltd v Beasley[34] which included the statement: “The court is careful not to find fraud unless it is distinctly pleaded and proved”.[35]
[30] Wentworth v Rogers (No 5) (1986) 6 NSWLR 534, at page 538 (Kirby P). The quote was made in the context of actions to set aside judgments for fraud, but it was prefaced by the words: “As in all actions based on fraud”.
[31] Forrest v Australian Securities and Investments Commission (2012) 247 CLR 486; [2012] HCA 39 at [26]
[32] Banque Commerciale S.A. v Akhil Holdings Limited (1990) 169 CLR 279, at pages 294-295 (Dawson J)
[33] Wallingford v Mutual Society (1880) 5 App. Cas. 685, at page 701, being part of the passage set out in the judgment of Dawson J in Banque Commerciale S.A. v Akhil Holdings Limited (1990) 169 CLR 279, at page 295
[34] Lazarus Estates Ltd v Beasley [1956] 1 QB 702, at pages 712-713
[35] SZFDE v Minister for Immigration and Citizenship [2007] HCA 35, at [15]. The requirement of clearly stating and proving allegations of fraud applies whether or not the allegation is made in a pleading. That point was made by the Lord Buckmaster in Jonesco v Beard [1930] AC 298, at page 301, where his Lordship said that where a judgment is sought to be set aside on the ground of fraud other than in an action “the necessity for stating the particulars of fraud and the burden of proof are no whit abated and all the strict rules of evidence apply.”
It would also be useful to refer to the following passage from the speech of Lord Millett in Three Rivers District Council v Bank of England (No 3):[36]
[A]n allegation of fraud or dishonesty must be sufficiently particularised, and that particulars of facts which are consistent with honesty are not sufficient. This is only partly a matter of pleading. It is also a matter of substance. As I have said, the defendant is entitled to know the case he has to meet. But since dishonesty is usually a matter of inference from primary facts, this involves knowledge not only that he is alleged to have acted dishonestly, but also the primary facts which will be relied upon at trial to justify the inference. At trial the court will not normally allow proof of primary facts which have not been pleaded, and will not do so in a case of fraud. It is not open to the court to infer dishonesty from facts which have not been pleaded, or from facts which have been pleaded but are consistent with honesty. There must be some fact which tilts the balance and justifies an inference of dishonesty, and this fact must be both pleaded and proved.
[36] Three Rivers District Council v Bank of England (No 3) [2003] 2 AC 1, at [186]
Approach
I propose to assess the credibility of the evidence of Mr and Ms Kassem, item by item, in chronological order, by reference to such contemporaneous documents as are before me which I assess to be authentic and credible, and also by reference to other findings I make; and make findings as I go about each item of evidence I consider. What will then be revealed is a narrative of the relevant events based on the findings I will make. I will consider the applicants’ claims of fraud by reference to this narrative of events.
This process might have the appearance of strict linearity; but that would be so only in appearance. Assessing the credibility of testimonial evidence in relation to matters that are in issue is recursive. The fact finder begins by considering the credibility of a particular item of testimonial evidence in relation to matters in issue, and he or she does so by reference to admitted facts and evidence that are not reasonably open to dispute. The fact finder will form a provisional belief, disbelief, or doubt, [37] of varying degrees of explicitness and intensity, about the existence or non-existence of the facts asserted by the testimonial evidence the fact finder first considers, and then move on to consider the second item of testimonial evidence. The fact finder will consider the second item of evidence in the same way as he or she has considered the first item of evidence; but now he or she may have in mind a provisional belief, disbelief, or doubt he or she has formed about the fact asserted by the first item of evidence. Such provisional belief will form part of the material with which the fact finder will consider the second item of testimonial evidence and, as with the fact finder’s consideration of the first item of evidence, he or she may form a belief, disbelief, or doubt about the existence or nonexistence of the fact asserted by the second item of evidence. But the provisional belief, disbelief, or doubt, in relation to the second item of testimonial evidence itself becomes material with which to revisit any provisional belief, disbelief, or doubt the fact finder formed in relation to the first item of evidence. This process continues with every new item of testimonial evidence the fact finder considers. At some point, the tentativeness of the fact finder’s beliefs, disbeliefs, and doubts about the existence or non-existence of facts asserted by the testimonial evidence begins to become less tentative until the beliefs, disbeliefs, and doubts become sufficiently firm in the mind of the fact finder to make his or her findings of fact in relation to the credibility of each item of testimonial evidence. That will occur after the fact finder brings to mind the beliefs, non-beliefs, and doubts he or she has formed in relation to the testimonial evidence as a whole with a view to considering whether they cohere not only with each other but also with other evidence that is not in dispute or which is not reasonably open to doubt; and, subject to any further adjustments, concluding that they do. This, at any rate, is the approach I have attempted to apply in assessing the evidence of Mr and Ms Kassem.
[37] “The true opposites of belief, psychologically considered, are doubt and inquiry, not disbelief.” (James, Principles of Psychology, quoted in C C Moore A Treatise on Facts, Vol.1 Edward Thompson Company 1908, at page 8)
Finally, I will approach these tasks having regard to s.140 of the Evidence Act 1995 (Cth) (Evidence Act). Subsection 140(1) provides that a court must find the case of the party proved if it is satisfied that the case has been proved on the balance of probabilities. Subsection 140(2) of the Evidence Act provides that in deciding whether it is satisfied a party has proved his or her case, the court may take into account the nature of the cause of action, the nature of the subject matter, and the gravity of the matters alleged. I propose to apply s.140 having regard to the well-known principles expressed by Dixon J in Briginshaw v Briginshaw (emphasis added):[38]
The truth is that, when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality. No doubt an opinion that a state of facts exists may be held according to indefinite gradations of certainty; and this has led to attempts to define exactly the certainty required by the law for various purposes. Fortunately, however, at common law no third statement of persuasion was definitely developed. Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters “reasonable satisfaction” should not be produced by inexact proofs, indefinite testimony, or indirect inferences. Everyone must feel that, when, for instance, the issue is on which of two dates an admitted occurrence took place, a satisfactory conclusion may be reached on materials of a kind that would not satisfy any sound and prudent judgment if the question was whether some act had been done involving grave moral delinquency.
[38] Briginshaw v Briginshaw (1938) 60 CLR 336, at pages 361-362
I now turn to the evidence.
Evidence and findings
The first applicant, Ms Kassem, and her husband, Mr Kassem, are citizens of Germany.
May 2013 – applicants meet Dr-Al Nakeeb and Ms Tabar
According to Ms Kassem, at around the end of May 2013 she and Mr Kassem visited the office of Al-Nakeeb Immigration Services at Liverpool. Ms Kassem was planning to apply for a 457 visa; and she wished to apply for such visa to enable her and her family to stay in Australia so that she could work as an accountant.[39]
[39] Affidavit of T Kassem 07.12.2018, [4]
According to Ms Kassem, Dr Al-Nakeeb introduced Mr and Ms Kassem to Ms Guilda Tabar as someone who worked with him, and who was very familiar with 457 visa applications. Mr and Ms Kassem “talked though our situation with Guilda and Mr Al-Nakeeb”.[40] Ms Tabar asked Ms Kassem what were her qualifications. After Ms Kassem said she had 10 years of working experience with banks, holding a qualification as a certified bank manager, and also “a certificate III in commercial cookery”, Ms Tabar recommended that Ms Kassem apply for a 457 visa as a sponsored cook, because Ms Tabar’s friend had a restaurant in Hurstville.[41] Ms Kassem insisted she wanted to work as an accountant because of her work experience, because “this area” interested Ms Kassem more, and because Ms Kassem says she had received a job offer from S & A Truck, a subsidiary of SWIFT Company.[42]
[40] Affidavit of T Kassem 07.12.2018, [5]
[41] Affidavit of T Kassem 07.12.2018, [6]
[42] Affidavit of T Kassem 07.12.2018, [7]
Mr Kassem in his affidavit refers to his and Ms Kassem’s attending a meeting with Dr Al-Nakeeb and Ms Tabar in around the end of May 2013. Mr Kassem says that Dr Al-Nakeeb introduced Ms Tabar as someone who worked for him, and who was very familiar with 457 visa applications.[43]
[43] Affidavit of M Kassem 07.12.2018, [4]-[6]
I find that a meeting to the effect deposed by Mr and Ms Kassem occurred in around May 2013. I base that finding on the documentary evidence to which I refer later in these reasons of communications between Mr Kassem and Ms Tabar in relation to the applicants’ migration matters, and also documents that suggest that Dr Al-Nakeeb knew that Ms Tabar was communicating with Mr Kassem in relation to the applicants’ migration matters.
Beginning of June 2013 – Ms Tabar meets applicants at their home
According to Ms Kassem, at the beginning of June 2013 Ms Tabar contacted Ms Kassem and said she wanted to meet Mr and Ms Kassem at their home because she wanted to “make us an offer”. Ms Tabar later met Mr and Ms Kassem at their home. Ms Tabar said that if Mr and Ms Kassem decided to have her application done by Dr Al-Nakeeb, they would have to pay his fees of $12,000, but that if they decided that Ms Tabar would do the work, she would only charge $4,000. Ms Tabar said she would use the name “Mohammad Al-Nakeeb” in correspondence with the Department of Immigration and Citizenship (as the Department of Home Affairs was then known) (Department). Ms Tabar said that Mr and Ms Kassem would have to pay her $2,000 upfront, and the remaining $2,000 when the 457 visa was issued.[44]
[44] Affidavit of T Kassem 07.12.2018, [10], [11], [12]
Ms Kassem says that she and Mr Kassem decided “to choose” Ms Tabar. Ms Tabar immediately started to fill out an online visa application on Mr and Ms Kassem’s laptop “because she didn’t bring her own”. Ms Kassem provided Ms Tabar her “original documents of [Ms Kassem’s] skills, qualifications and employment background”. Ms Tabar took these documents away with her because she intended to scan them, and send them with the visa application. The following are the documents Ms Kassem says she provided to Ms Tabar, and which Ms Tabar took away with her (Relevant Documents):[45]
(a)an International English Language Testing System Test Report Form;
(b)a Certificate II in Business issued by Bridge Business College (Certificate II);
(c)a Certificate III in Business issued by Bridge Business College (Certificate III);
(d)a certificate issued by the Chamber of Commerce Hamburg certifying Ms Kassem as a bank officer;
(e)a student transcript in relation to Ms Kassem issued by Bridge Business College (Student Transcript);
(f)a certificate issued by the Hamburg Chamber of Commerce certifying Ms Kassem as a specialised bank manager;
(g)a final certificate issued by the Chamber of Industry and Commerce Stade for the Elbe-Weser District; and
(h)two letters of reference.
[45] Affidavit of T Kassem 07.12.2018, [12]; exhibit B, pages 150-161
Mr Kassem, in his affidavit, also deposes that Ms Tabar attended his and Ms Kassem’s house in the beginning of June 2013, and he gives substantially the same account as Ms Kassem gives about that visit.[46] Mr Kassem deposes Ms Tabar said she would use the name of Dr Al-Nakeeb in correspondence with the Department because his name was well known in the Department.[47]
(a)I find that in early June 2013 Ms Tabar met the applicants after making an appointment by telephone to meet them; and when she met Mr and Ms Kassem, Ms Tabar began to complete an online application for a 457 visa in the manner deposed to by the applicants.
(b)I find Ms Tabar informed the applicants that the application would use the name of Dr Al-Nakeeb in communications with the Department. I base that finding on the evidence to which I refer later that shows communications were made to and from an email address where Dr Al-Nakeeb’s name was used; and on the evidence of the meeting of late May 2013, which I have accepted. The effect of that evidence is that Dr Al-Nakeeb introduced Ms Tabar as a person who worked with him, and who was very familiar with 457 applications. That implied that Ms Tabar would be doing work to assist Ms Kassem in applying for a 457 visa, and that she would be doing it with the knowledge of Dr Al-Nakeeb. Ms Tabar may have said that Dr Al-Nakeeb’s name was well known to the Department, but I do not accept Ms Tabar said words to that effect for the purpose of explaining why communications would be made with the Department in the name of Dr Al-Nakeeb, rather than in the name of Ms Tabar.
(c)I find that in the meeting of early June 2013 Ms Tabar discussed with the applicants the question of costs and fees in relation to Ms Kassem applying for a 457 visa. I base that finding on the evidence to which I refer below that Mr and Ms Kassem transferred money to Ms Tabar in early June 2013.
(d)Although it is conceivable that Ms Tabar said words to the effect Mr and Ms Kassem would have to pay her $2,000 upfront, and the remaining $2,000 when the 457 visa is granted, I am not prepared to accept the applicants’ evidence that Ms Tabar said words to that effect. Mr and Ms Kassem paid additional amounts to Ms Tabar in connection with Ms Kassem’s application for a 457 visa, yet they do not give any evidence that they asked Ms Tabar why they were being asked to pay money in circumstances where Ms Kassem had not been issued with 457 visa. It is reasonable to expect that Mr and Ms Kassem would have made such enquiries if, as they claim, Ms Tabar said that she would expect payment of half of the $4,000 she proposed to charge only when a 457 visa would be issued.
(e)I am not satisfied Ms Tabar said words to the effect that if Mr and Ms Kassem decided to have her application done by Dr Al-Nakeeb, they would have to pay his fees of $12,000, but that if they decided that Ms Tabar would do the work, she would only charge $4,000. First, there is nothing in the evidence I have accepted, or in the evidence of Mr and Ms Kassem, that suggests Mr Al-Nakeeb indicated he intended to do any work in relation to the application for a 457 visa. Dr Al-Nakeeb told the applicants Ms Tabar was very familiar with 457 visa applications; and it was Ms Tabar who asked Ms Kassem questions relevant to her application for a 457 visa. Second, evidence to which I refer later indicates that Dr Al-Nakeeb was aware Ms Tabar was doing work in relation to the applicants’ migration matters. That suggests either that Dr Al-Nakeeb did not concern himself about whether the applicants paid money to Ms Tabar, or he did and Ms Tabar explained the payment arrangements in a manner that satisfied Dr Al-Nakeeb. There is no evidence before me to suggest Ms Tabar mislead Dr Al-Nakeeb about the payment arrangements Ms Tabar made with the applicants.
(f)Given these findings, I also am not satisfied that in the telephone conversation by which Ms Tabar made the appointment to meet the applicants she said words to the effect of “I have an offer”. What is more likely to have occurred is that Ms Tabar made an appointment with Mr and Ms Kassem to attend their home for the purpose of assisting Mr and Ms Kassem to complete the online form of application for a 457 visa.
[46] Affidavit of M Kassem 07.12.2018, [7]-[9]
[47] Affidavit of M Kassem 07.12.2018, [8]
Mr and Ms Kassem in their affidavits appear to intend to convey they understood Ms Tabar said she would perform the work of a migration agent without Dr Al-Nakeeb having any knowledge of her performing the work with a view to Ms Tabar, but not Dr Al-Nakeeb, receiving payment for the work she would perform. That is the premise on which counsel for the Minister cross-examined both Ms Kassem and Mr Kassem. Whether or not that is what the Mr and Ms Kassem intended to convey, I am not satisfied Ms Tabar offered to Mr and Ms Kassem that she would perform work in the name of Dr Al-Nakeeb without his knowledge with a view to making an illicit gain for herself at the expense of her employer, or that Mr and Ms Kassem understood Ms Tabar to have made any such offer, or that they engaged Ms Tabar on the basis of any such offer. The evidence of Mr and Ms Kassem that Ms Tabar said she would use Dr Al-Nakeeb’s name in correspondence with the Department is consistent with what I have accepted occurred at the applicants’ meeting with Dr Al-Nakeeb and Ms Tabar in late May 2013, namely, that Dr Al-Nakeeb introduced Mr and Ms Kassem to Ms Tabar as someone who worked with him, and who was very familiar with 457 visa applications.
There is another matter to note. The evidence of Mr and Ms Kassem of their meeting with Ms Tabar in early June 2013 implicitly assumes the discussion was restricted to Ms Kassem’s application for a 457 visa. I do not accept that assumption. As will become apparent later in these reasons, in her application for a 457 visa Ms Kassem was required to nominate a sponsor, and she nominated “S & A Truck Centre” (SA Truck). At that time Mr Kassem’s brother was a director and shareholder of SA Truck. To have been entitled to the grant of a 457 visa Ms Kassem was required to be nominated by a standard business sponsor. There is evidence that on 11 June 2013 SA Truck applied for approval of a standard business sponsor, and that evidence is contained a letter dated 9 September 2013 from the Department to SA Truck, care of Dr Al-Nakeeb, which states that “an application for approval as a standard business sponsor for” SA Truck “was lodged electronically on 11/06/2013”. [48] The relevance of this is that, to the extent I am satisfied Ms Tabar discussed with the applicants fees and costs, I am not satisfied that such discussion was restricted to the fees and costs of Ms Kassem’s application for a 457 visa, and that the discussion did not also relate to SA Truck’s application for approval as a standard business sponsor.
[48] Affidavit of M Kassem 21.05.2020, [5], annexure “MK-1”
There is a final matter to consider in relation to this part of the evidence of Mr and Ms Kassem; and that concerns the Relevant Documents. There are a number of matters to note.
(a)Certificate II represents it was issued on 18 January 2010, and is given a certificate number – “AD901272-CERTII18012010”. The last eight numbers appear to record the date of issue – 18.01.2010. Certificate III, on the other hand, represents it was issued on 19 January 2010, but it has the same last eight numbers as Certificate II – “AD901272-CERTIII18012010”, the last eight numbers of which also appear to record the date of issue – 18.01.2010. Thus, Certificate III represents it was issued on 19 January 2010 but the certificate number assigned to it suggests it was issued on 18 January 2010.
(b)The Student Transcript, which is dated 19 January 2010, identifies the course to which the transcript relates, namely, “Diploma of Business (BSB50101)”, yet next to the words “AWARD ACHIEVED”, there is recorded “Certificate III in Business (BSB30101)”. In other words, the Student Transcript represents it was issued in relation to a particular course – “Diploma of Business (BSB50101)” – but records an award for what appears to be a different course – “Certificate III in Business (BSB30101)”.
(c)The Student Transcript represents the granting of the award of “Certificate III in Business (BSB30101)”, but it does not represent the granting of an award for Certificate II.
(d)The Student Transcript contains the words “DATE WITHDRAWN” next to which is typed “04/01/2010”. Thus, the document records Ms Kassem withdrew from the course, yet at the same time it represents Ms Kassem was awarded a Certificate III.
(e)In her evidence of the meeting she had with Dr Al-Nakeeb and Ms Tabar in May 2013, Ms Kassem says that she held “a certificate III in commercial cooking”. She does not say she held a Certificate II in Business issued by Bridge Business College, or a Certificate III in Business issued by Bridge Business College, certificates which Certificate II and Certificate III on their face represent were issued on 18 and 19 January 2010 respectively.
These matters were not the subject of any cross-examination of Mr and Ms Kassem. That, however, does not mean I am bound to accept the documents are what they purport to be. In the absence of any evidence from Mr and Ms Kassem about when, and about the circumstances Ms Kassem obtained Certificate II, Certificate III, or the Student Transcript, I am not prepared to accept that these documents are authentic; nor am I prepared to find the documents existed when Mr and Ms Kassem met Ms Tabar in June 2013, or to make any findings about when the documents came into existence, or whether the documents had been provided to Ms Tabar, or to any other person, at any time in connection with the applicants’ application for a 457 visa.
Source of Department’s document dated 9 September 2013
Before I leave this part of the evidence of Mr and Ms Kassem, I should identify the circumstances in which the letter from the Department dated 9 September 2013 came into evidence before me. The document (together with other documents) was annexed to an affidavit Mr Kassem made on 21 May 2020. The purpose of that affidavit appears to have been to clarify a part of the affidavit Mr Kassem made on 27 February 2020 which, in turn, he made to address questions raised in the Associate’s Letter. Relevant to what I say at this point is what Mr Kassem said about the source of the Department’s letter dated 9 September 2013 and the other documents he annexed to his affidavit of 21 May 2020:[49]
All documents attached to this affidavit were taken from the file of documents kept by Guilda Tabar which I obtained from her on 9 May 2016: see also my affidavit made 7 December 2018 at [37]; and at [44] of the affidavit my wife Tanja also made on 7 December 2018.
[49] Affidavit of M Kassem 21.05.2020, [3]
Mr Kassem gave further evidence in his affidavit of 29 May 2020 of the nature of the file Ms Tabar kept, and which he says he collected from Ms Tabar on 9 May 2016. Mr Kassem made this affidavit in response to an order I made on 28 May 2020 that the applicants provide an affidavit explaining why they did not, by 27 February 2020, file the affidavits Mr and Ms Kassem filed on 21 May 2020. Mr Kassem said as follows (emphasis added):[50]
Guilda’s file was a thick bundle of documents kept in a plastic folder marked “S&A Kassem”. The documents in the file were in no particular order. Most related to S&A Truck Centre Pty Limited and its attempts to obtain approval as a Standard Business Sponsor. Many of these documents were apparently collected in response to requests by the Department for further information, including the financial records of S & A Truck Centre which was a substantial enterprise. The file also included a number of communications from the Department which were already in the Court Book and documents which related to other entities, apparently included in the file in error.
[50] Affidavit of M Kassem 29.05.2020, [5]
These last two paragraphs from Mr Kassem’s evidence are important not only for identifying the documents Mr Kassem describes were contained in the folder of documents, but also what he omits to say about other documents that appear to have been contained in the file. In the first passage I have quoted, Mr Kassem states that the documents he annexed to his affidavit of 21 May 2020 were taken from the folder of documents he collected from Ms Tabar on 9 May 2016, thus implying there were other documents in that file. In the second passage I have quoted Mr Kassem deposes that many of the documents were apparently collected in response to the Department’s information requests, but Mr Kassem does not say whether documents that were not so provided constituted communications between Mr or Ms Kassem and Ms Tabar or which had been brought to the attention of Mr and Ms Kassem before 9 May 2016, or documents that related to Ms Kassem’s application for a 457 visa, or documents relating to the applications for review to the MRT and to the Tribunal. Mr Kassem also does not say who provided the information in relation to SA Truck. As I note later, there is evidence that on at least one occasion SA Truck provided information to Ms Tabar through Mr Kassem which leaves open the drawing of an inference that Mr Kassem was the person who provided to Ms Tabar information in relation to SA Truck, and received communications from Ms Tabar on that subject.
There is a final, but important, subject; and that is Ms Tabar. She is a person against whom the applicants, through their counsel, have made unrestrained allegations of fraud: the applicants, through their counsel, alleged Ms Tabar dishonestly directed work from her employer to herself to pocket fees that ought to have been paid to her employer; she fraudulently passed herself off to the Department as Dr Al-Nakeeb; she gave immigration assistance knowing she was doing so in contravention of s.280(1) and s.281(1) of the Act; she fraudulently misrepresented to Mr and Ms Kassem the nature and amount of fees payable in connection with their migration matters; she fraudulently failed to inform Mr and Ms Kassem that Ms Kassem had no prospect of being granted a 457 visa; she fraudulently withheld information of vital interest to Mr and Ms Kassem to hide a mistake she is said to have made; and Ms Tabar fraudulently withheld information to ensure that Mr and Ms Kassem did not discover Ms Kassem did not have any prospects of being granted a 457 visa.
Ms Tabar is not a party to the proceeding. The only protection, therefore, Ms Tabar had against unwarranted allegations of fraud being made against her was that the rules of practice, including the rules of professional practice,[192] that govern the circumstances in which fraud can properly be alleged, would be adhered to. The reasons for the necessity of such adherence was explained by the New South Wales Court of Appeal in Crown Lands (Consolidation) Act and Western Lands Act v Tweed Byron Aboriginal Land Council:[193]
In the pleading of fraud, some requirements of the law are clear beyond argument. These requirements are not only rules of pleading and practice established by decisions of the courts. They are rules of ethical conduct binding on members of the legal profession. It is a serious matter to allege fraud against a party in pleadings to which attach the privileges incidental to court proceedings. Reports of such allegations may be recounted in the community and through the public media. They may do great harm to a party before a word of evidence has been offered and submitted to the searching scrutiny of cross-examination or to rebuttal. It is for this reason, amongst others, that legal practitioners must take care to have specific instructions and an appropriate evidentiary foundation, direct or inferred, for alleging and pleading fraud. We say inferred, because it will sometimes be impossible to prove fraud by direct evidence. The tribunal of fact may be invited to draw an irresistible inference of fraud from the facts proved. Of its nature, fraud is often perpetrated covertly. The perpetrators of fraud will often take pains to cover their tracks.
[192] See r.65 of the Legal Profession Uniform Conduct (Barristers) Rules 2015 (NSW) made under the Legal Profession Uniform Law (NSW)
[193] Crown Lands (Consolidation) Act and Western Lands Act v Tweed Byron Aboriginal Land Council (1990) 71 LGRA 201, at pages 203 – 204 (NSW Court of Appeal)
These observations relate to a claim of fraud made against a person who is a party to a proceeding. They apply with greater force when allegations of fraud are made against a person who is not a party to the proceeding and who, for that reason, is not in a position to defend himself or herself against such allegations.
It might be open to find that these considerations ought to have led counsel for the applicants to give greater thought than it is apparent he did to whether the allegations for fraud he, on behalf of the applicants, made in relation to Ms Tabar could have been made at all and, if so, whether they ought to have been made or, at least, whether they ought to have been made without those allegations being properly particularised.
I propose to order that the application for leave to amend the application be dismissed, and that the application be dismissed. Given this result, the appropriate order as to costs would be that Mr and Ms Kassem pay the Minister’s costs as assessed or agreed. I will make such order, but I will reserve to the parties liberty to apply within 21 days to vary or discharge the order. I also propose to direct the Registrar of this Court to bring these reasons for judgment to the attention of Ms Tabar.
I certify that the preceding two hundred and forty-three (243) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis
Associate:
Date: 10 July 2020
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