Singh v Minister for Immigration
[2017] FCCA 160
•2 February 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SINGH v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 160 |
| Catchwords: BOGUS DOCUMENT – False or misleading information on a material particular. PRIVATIVE CLAUSE DECISIONS – When reviewable – review of authorities at appellate level – not valid if infected with jurisdictional error. JURISDICTIONAL ERROR – Indicia of – review of authorities. INQUISITORIAL NATURE OF TRIBUNAL – Obligation on Tribunal to establish relevant facts – no duty on Tribunal to investigate matters. STATE OF SATISFACTION OF MATTERS – “satisfied” – legal elements of being satisfied. FALSE STATEMENT – Constituent of the mental element – relevant cases considered – purposeful falsity. FRAUD – Extensive review of authority. |
| Legislation: Commonwealth of Australia Constitution Act, s.75 Migration Act 1958 (Cth), ss.5(1), 359A, 359C, 360(3), 363A, 414, 474, 476 Migration Regulations 1994 (Cth), cls.485.221, 485.224 |
| Cases cited: Angelides v James Stedman Henderson’s Sweets Ltd (1927) 40 CLR 43 Clancy v Butchers’ Shop Employees Union (1904) 1 CLR 181 Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 Kirk v Industrial Relations Commission (NSW) (2010) 239 CLR 531 Krakowski v Eurolynx Properties Ltd (1995) 183 CLR 563 M v Minister for Immigration and Multicultural Affairs (2006) 155 FCR 333 Macleod v R [2003] HCA 24 Minister for Aboriginal Affairs v Peko-WallsendLtd (1986) 162 CLR 24 Minister for Immigration and Citizenship v Li and Anor (2013) 249 CLR 332 Minister for Immigration and Citizenship v SZIAI (2009) 83 ALJR 1123 Minister for Immigration and Ethnic Affairs v GuoWei Rong (1997) 191 CLR 559 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 NBMZ v Minister for Immigration and Border Protection (2014) 220 FCR 1 Patel v Minister for Immigration and Border Protection [2015] FCAFC 22 Plaintiff S157/2002 v Commonwealthof Australia (2003) 211 CLR 476 Polyaire Pty Ltd v K-Aire Pty Ltd (2005) 221 CLR 287 Singh v Minister for Immigration and Border Protection [2016] FCAFC 141 Sons of Gwalia Ltd v Margaretic; ING Investment Management LLC v Margaretic (2007) 231 CLR 160 SZLHP v Minister for Immigration and Citizenship (2008) 172 FCR 170 SZLVZ v Minister for Immigration and Citizenship [2008] FCA 1816 |
| Applicant: | KARANPREET SINGH |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 1873 of 2014 |
| Judgment of: | Judge Wilson |
| Hearing date: | 9 March 2016 |
| Date of Last Submission: | 16 March 2016 |
| Delivered at: | Melbourne |
| Delivered on: | 2 February 2017 |
REPRESENTATION
| Applicant in person |
| Solicitors for the First Respondent: | Ms M. Gangemi of Australian Government Solicitor |
ORDERS
The name of the second respondent is amended to “Administrative Appeals Tribunal”.
The application filed on 15 September 2014 is dismissed.
The applicant pay the costs of the first respondent.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1873 of 2014
| KARANPREET SINGH |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
General introduction
An unusually long time has lapsed between the date on which this application for judicial review was heard and the date on which these reasons for judgment were published. That lag is accounted for by the length of time it took for the Full Court of the Federal Court of Australia to deliver its reasons in a case directly on point, heard while I had reserved my decision in this case.
The Full Court decided Singh v Minister for Immigration and Border Protection[1] (“Singh”) on 17 October 2016. I have prepared these reasons taking into account the reasons in that case of the Full Court.
[1] [2016] FCAFC 141.
Introduction of procedural matters
By application filed 15 September 2014, the applicant sought an order calling upon the first respondent (“the Minister”) to show cause why a remedy should not be granted under s.476 of the Migration Act 1958 (Cth) (“the Act”).
The applicant commenced this proceeding in relation to a decision of the Migration Review Tribunal (“MRT”) (now the Administrative Appeals Tribunal) (“the Tribunal”) dated 15 August 2014.[2]
The Tribunal affirmed the decision of the Minister’s delegate
(“the delegate”) dated 12 June 2012 by which the delegate refused to grant the applicant a Skilled (Provisional) (Class VC) visa (“the visa”).[3]
[2] Court book filed 13 January 2015 at pp.61-65.
[3] Court book filed 13 January 2015 at pp.28-33.
The applicant sought judicial review of the Tribunal’s decision, contending that the Tribunal fell into jurisdictional error. While two grounds of the application for review were advanced, only one was capable of being construed as a ground, the other being a recital of the Tribunal’s decision not to grant the visa. The ground of review was in the following terms, those being transcribed word-perfectly from the application document itself –
The MRT erred in not giving consideration to the evidence that the Applicant being myself did not instruct S & S Migration to lodge any TRA application. The MRT also erred in that not considering the Applicant being myself never instructed the Migration Agent S & S Migration to provide any fraudulent document to the First Respondent. Accordingly MRT failed to give consideration to the evidence as a matter of law.[4]
[4] Application filed 15 September 2014 at p.3.
In support of the application, the applicant affirmed an affidavit made 15 September 2014 in which the applicant reproduced the grounds of review that were recorded in his initiating application.
Synopsis
For the reasons that follow, in my judgment the Tribunal did not fall into jurisdictional error, with the consequence that the applicant’s application to this Court has failed.
Understanding the application made in this Court
The applicant did not challenge any aspect of the hearing before the Tribunal.
When properly understood, in his application to this Court the applicant contended that the Tribunal failed to consider the applicant’s evidence that the applicant did not instruct S & S Migration (“S & S”) to –
a)lodge the relevant visa application document; or
b)provide any fraudulent documentation to the Minister.
The applicant was not legally represented before me. By reason of the fact that the applicant was not legally represented, the Minister was legally represented and was at all relevant times a model litigant,
it seemed to me appropriate to require the Minister’s legal representative to go first thereby outlining the legal and factual issues that fell for my determination. I adopted that course because it was the most time efficient, it exposed the real issues of fact and of law and it enabled me to better understand the points the applicant wanted to highlight had he the benefit of legal representation. At the outset
I record my gratitude to Ms Gangemi who appeared for the Minister for her thoroughly professional and even-handed presentation of the case.
The real issue in this case was whether the Tribunal fell into jurisdictional error by concluding that the applicant had provided a bogus document or information that was false and misleading in a material particular.
In my view, the Tribunal did not fall into jurisdictional error.
Factual setting of this application
On 7 December 2010 the applicant completed a General Skilled Migration Application Form for a Skilled Graduate (Temporary)
(Class VC, subclass 485) visa.[5] After including formal particulars,
the applicant set out an email address and on page seven the applicant recorded his skills assessment. He stated at that point on his visa application that Trades Recognition Australia (“TRA”) had considered the evidence the applicant submitted of a suitable skills assessment and that on 8 March 2010, TRA assessed the applicant’s nominated occupation as a ‘cook’.
[5] Court book filed 13 January 2015 at pp.1-10.
By letter dated 20 December 2011[6] the Department of Immigration and Citizenship (“the Department”) wrote to the applicant telling him he had 28 days within which to provide the documents set out in an attachment to that letter.[7] The Department sought an array of documentation including an extract from the applicant’s passport,
his birth certificate details, his skills assessment details, evidence of the fact that the applicant had 900 hours of work experience and evidence of the applicant’s International English Language Testing System language test report.
[6] Court book filed 13 January 2015 at pp.12-15.
[7] Court book filed 13 January 2015 at pp.16-18.
Within the Department, on or about the day of the applicant lodging his visa application, an investigation called “Operation Danube” was under way looking at migration fraud. The Department investigated the link between applicants for s.485 visas and S & S as well as the link between false and misleading information on applications for those s.485 visas to S & S.
The applicant recorded on the visa application that he prepared the application himself. He did not disclose the existence of any involvement with S & S.
On 17 February 2012 an officer of the Department sent an email to the applicant in relation to the applicant’s visa application. The relevant portions of the email were as follows –
It is a requirement for the grant of a subclass 485 visa that the applicant satisfies Public Interest Criterion (PIC) 4020.
Clause 4020(1) requires that 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:
the application for the visa; or
a visa that the applicant held in the period of 12 months before the application was made.
…
It is alleged that your 485 application, currently under consideration by the Department, was lodged with the assistance of a business known as S & S Migration, who have been found to have lodged applications to the Department containing false and misleading information. Whilst you have no agent declared in your application, the Department has identified a file with your personal details and the application reference numbers in the office of S & S Migration.[8]
[8] Court book filed 13 January 2015 at p.20.
The Department allowed the applicant 28 days within which to respond.
The applicant did not respond.
On 12 June 2012 the delegate refused the applicant’s visa application.
By letter dated 23 April 2014[9] the Tribunal invited the applicant to comment or respond to –
a)the fact that TRA had no record of providing the skills assessment referred to in the applicant’s visa application;
b)the fact that documents or information relating to the applicant had been located at S & S’s offices; and
c)an invitation to provide written evidence as at the date of the applicant’s visa application that the applicant had applied for an assessment of his skills for his nominated occupation by a relevant assessing authority and that his skills for that occupation had been assessed by the relevant assessing authority as being suitable for that occupation.
[9] Court book filed 13 January 2015 at pp.48-49.
In the letter dated 23 April 2014 the Tribunal gave the applicant until 19 May 2014 to either provide the additional information it requested or for the applicant to seek an extension of time. The letter expressly stated that the applicant lost his right to appear before the Tribunal if he did not comply with the request for information by 19 May 2014.
The applicant neither provided the additional information that the Tribunal sought nor applied for an extension of time by 19 May 2014.
By letter dated 18 August 2014[10] the Tribunal informed the applicant that it had decided to affirm the decision of the delegate.
[10] Court book filed 13 January 2015 at p.60.
How the Tribunal approached the issue
The Tribunal provided written reasons on 15 August 2014 for its decision to affirm the decision of the delegate. The Tribunal identified the issue for determination as being whether the applicant met
Public Interest Criterion 4020 (“PIC 4020”) as required by cl.485.224 of the Migration Regulations 1994 (Cth) (“the regulations”). In my judgment, the Tribunal was correct in expressing the issue for determination in those terms.
The Tribunal paraphrased the requirements of PIC 4020 in the following terms –
- there is no evidence that the applicant has given, or caused to be given, to the Minister, an officer, the tribunal, a relevant assessing authority, or Medical officer of the Commonwealth, a bogus document or information that is false or misleading in a material particular in relation to the application for the visa or a visa that the applicant held in the 12 months before the application was made: PIC 4020(1); and
- the applicant and each member of the family unit has not been refused a visa because of a failure to satisfy PIC 4020(1) during the period starting 3 years before the application was made and ending when the application is granted or refused: PIC 4020(2); and
- the applicant satisfies the Minister as to his or her identity: PIC 4020(2A); and
- neither the applicant nor any family unit member has been refused a visa because of a failure to satisfy PIC 4020(2A) during the period starting 10 years before the application was made and ending when the application is granted or refused: PIC 4020(2B).[11]
[11] Court book filed 13 January 2015 at pp.62-63.
Thereafter, the Tribunal addressed whether the applicant had given, or caused to be given, a bogus document or information that was false or misleading in a material particular. The Tribunal focused on the portion of the applicant’s visa application in which the applicant stated that his nominated occupation was a cook and that the applicant provided a TRA reference and receipt as evidence of a skills assessment.
The Tribunal recorded at paragraph 10 of its reasons that TRA had no record of having provided the skills assessment referred to in the visa application. The Tribunal recorded at paragraph 11 of its reasons that the Tribunal wrote to the applicant on 23 April 2014 to which the applicant did not respond. The Tribunal found that the applicant did not have a skills assessment from TRA. The Tribunal further found that the reference or receipt number the applicant provided on his visa application was not a TRA reference number.
The Tribunal found that the information on the applicant’s visa application (that he gave or caused to be given to the Department stating that he had a skills assessment from TRA) was false or misleading in a material particular. The Tribunal further found that such false or misleading information was relevant to cl.485.221 of the regulations. The Tribunal held that the applicant had not met PIC 4020 for the purposes of cl.485.224 and also for cl.485.221 of the regulations.
Before analysing the applicant’s complaints about the way the Tribunal conducted itself, it is as well to record the statutory regime established by the Act and what the applicant needed to show in order to successfully review the Tribunal’s findings.
Jurisdictional error
Under the Act, the power to make decisions about matters concerning visas is given to the delegate of the Minister. The Act, and the regulations made under it, specify the things the delegate is required to take into account when an applicant seeks a visa. Different considerations apply depending on the type of visa the applicant seeks. The underlying intention of this field of the Act is to render decisions made by the delegate impervious to review by courts. That is the import and effect of s.474 of the Act. However, s.474 of the Act is subject to s.75 of the Commonwealth of Australia Constitution Act and must be construed in conformity with established principles of constitutional law. Hence, even though s.474 of the Act purports to mean that a privative clause decision cannot be reviewed, that statutory stipulation will be effective only if the relevant decision is not infected with jurisdictional error. On 27 July 2016, the High Court made observations on privative clauses in Minister for Immigration and Border Protection v SZSSJ.[12]
[12] [2016] HCA 29.
In the passages below I set out (although not exhaustively) the lengths and breadths of administrative decisions that can be reviewed (because they are adversely affected by jurisdictional error) and the administrative decisions that cannot be reviewed (because they are not adversely affected by jurisdictional error).
Judicial review under s.474 of the Act
Section 474 of the Act creates a statutory scheme providing for the finality of a privative clause decision. In essence, s.474(1) of the Act provides that a privative clause decision is final and conclusive and that it cannot be challenged or appealed against, nor can it be reviewed, quashed or called into question in any court. Further, under s.474, a privative clause decision is not subject to administrative law remedies of prohibition, mandamus, injunction, declaration or certiorari in any court on any account.
Under s.474(2) of the Act, a “privative clause decision” is a decision of an administrative character made, proposed to be made or required to be made under the Act.
Privative clauses are strictly construed, as was held by the majority (Gaudron, McHugh, Gummow, Kirby and Hayne JJ) in the High Court of Australia in Plaintiff S157/2002 v Commonwealthof Australia[13] (“Plaintiff S157/2002”).
[13] (2003) 211 CLR 476 at [72].
That is because it is fundamental to the rule of law that persons affected by administrative decisions should have access to the courts to challenge those decisions. Gleeson CJ made that point in Minister for Immigration and Multicultural Affairs v Bhardwaj[14] (“Bhardwaj”).
But the point is of considerable veneration as is revealed by Clancy v Butchers’ Shop Employees Union,[15] Hockey v Yelland,[16] Public Service Association (SA) v Federated Clerks Union South Australian Branch and Anor [17] (“Public Service Association (SA)”) and Darling Casino Ltd v NSW Casino Control Authority.[18]
[14] (2002) 209 CLR 597.
[15] (1904) 1 CLR 181, 204.
[16] (1984) 157 CLR 124, 130.
[17] (1991) 173 CLR 132, 160.
[18] (1997) 191 CLR 602, 653.
An administrative decision will not be a valid privative clause decision if the relevant decision is infected with jurisdictional error. That is for the simple reason that an administrative decision which involves jurisdictional error is regarded in law as being no decision at all.
So much was held by the High Court in Bhardwaj.[19]
[19] (2002) 209 CLR 597, 614-615 at [51], 618 at [63] and 614-615 at [152].
The majority in Plaintiff S157/2002[20] held to like effect. Accordingly, an administrative decision made under the Act may be amenable to judicial review if the applicant seeking judicial review can establish that the administrative decision is tainted by jurisdictional error.
[20] (2003) 211 CLR 476 at [76].
The circumstances exhibiting jurisdictional error have been described in a variety of ways. In Craig v State of South Australia[21] (“Craig”) the majority of the High Court (Brennan, Deane, Toohey, Gaudron and McHugh JJ) held that jurisdictional error is at its most obvious when the inferior tribunal purports to act wholly or partly outside of the general area of its jurisdiction in the sense of entertaining a matter or making a decision or order of a kind which wholly or partly lies outside the theoretical limits of its functions and powers.[22] In the same case,
it was held that an inferior tribunal can, while acting wholly within the general area of its jurisdiction, fall into jurisdictional error by doing something it lacks authority to do.[23]
[21] (1995) 184 CLR 163.
[22] (1995) 184 CLR 163 at 177.
[23] Craig v State of South Australia (1995) 184 CLR 163 at 177.
Similarly, jurisdictional error will occur where an inferior tribunal disregards or takes into account some matter in circumstances where the statute establishing the tribunal and conferring its power requires that a particular matter be taken into account or ignored as a precondition of the exercise of any authority to make an order or decision in the circumstances of the particular case.[24]
[24] Ibid.
Further, an administrative tribunal will exceed its authority and fall into jurisdictional error if it misconstrues the statute pursuant to which it was created and thereby misconceives the nature of the function which it is performing or the extent of its powers in the circumstances of a particular case.[25]
[25] Ibid.
An administrative tribunal falls into error of law amounting to jurisdictional error with the effect of invalidating any order or decision of the tribunal if the tribunal –
a)identifies a wrong issue;
b)asks itself a wrong question;
c)ignores relevant material;
d)relies on irrelevant material; or
e)in some instances, makes an erroneous finding or reaches a mistaken conclusion.[26]
The majority (McHugh Gummow and Hayne JJ) applied that test in the decision of the High Court in Minister for Immigration and Multicultural Affairs v Yusuf.[27] That form of jurisdictional error is to be contrasted with the wrongful failure or refusal to exercise jurisdiction, of which Brennan J spoke in Public Service Association (SA) where Brennan J held that an administrative body misconceives its jurisdiction (and thereby engages in jurisdictional error) where it fails to consider the true question it has to decide.
[26] Craig v State of South Australia (1995) 184 CLR 163.
[27] (2001) 206 CLR 323, 351 at [82].
These are illustrations only of the ambit of jurisdictional error.[28] As the High Court in Kirk v Industrial Relations Commission (NSW)[29] held,
it was neither necessary nor possible to attempt to mark the metes and bounds of jurisdictional error as the reasoning in Craig does not provide a rigid taxonomy of jurisdictional error. For that matter, as the High Court held in Minister for Immigration and Citizenship v Li and Anor[30] every statutory discretion is confined by the subject matter, scope and purpose of the legislation under which it is conferred.[31]
That concept was recently applied by the Full Court of the Federal Court of Australia in NBMZ v Minister for Immigration and Border Protection[32] (“NBMZ”).[28] See MZABP v Minister for Immigration and Border Protection [2015] FCA 1391 at [33].
[29] (2010) 239 CLR 531 at [71] and [73].
[30] (2013) 249 CLR 332.
[31] (2013) 249 CLR 332, 348 at [23].
[32] (2014) 220 FCR 1, 33 at [149].
So far as the onus of proving jurisdictional error is concerned,
an applicant seeking judicial review must show that the approach adopted by the Tribunal manifested a legally erroneous view as to what it was about which it needed to be satisfied. The High Court made that observation in Minister for Immigration and Multicultural Affairs v Eshetu.[33]
[33] (1999) 197 CLR 611, 629 at [55].
It has been held that judicial review is concerned with whether the relevant decision was one authorised rather than it providing an appellate procedure enabling either a general review of the relevant decision or a substitution of the decision the court thinks should have been made. In December 2015, the High Court so held in Plaintiff M64/2015 v Minister for Immigration and Border Protection[34] (“Plaintiff M64/2015”). In that case, the High Court approved earlier statements to similar effect in Minister for Aboriginal Affairs v Peko-WallsendLtd[35] and Attorney-General (NSW) v Quin.[36]
[34] [2015] HCA 50 at [23].
[35] (1986) 162 CLR 24 at 41-42.
[36] (1990) 170 CLR 1 at 45-46.
In the context of administrative decision-making, the High Court instructs that courts are not astute to discerning error where an administrative officer makes a statement in the form of a broad administrative evaluation that was not, and was not intended to be, a statement of reasons in the nature of a judicial decision. Authority for that proposition is Minister for Immigration and Ethnic Affairs v Wu Shan Liang[37] as well as Plaintiff M64/2015.
[37] (1996) 185 CLR 259.
The Full Court of the Federal Court of Australia held in Collector of Customs v Pozzolanic Enterprises Pty Ltd[38] that the reasons of the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error.
[38] (1993) 43 FCR 280 at 287.
More recently, in Minister for Immigration and Citizenshipv SZMDS[39] the High Court of Australia affirmed the observations of Brennan J in Quin when it held that the merits of administrative action, as distinct from the legality of administrative action, are matters for the holder of the relevant power and for that holder alone.
[39] (2010) 240 CLR 611, 619 at [19].
Time and again the courts have held that judicial review on the ground of jurisdictional error does not mean undertaking a merits review and that a court, when undertaking judicial review for the demonstration of jurisdictional error is not permitted simply to substitute a different conclusion because the court regards that decision as preferable on the facts.[40] That said, relatively recently the Full Court of the Federal Court of Australia (Allsop CJ, Buchanan and Katzman JJ) in NBMZ[41] held that courts exercising jurisdiction under the Act need to give proper attention to the merits of the application under consideration.
That means the court must “give proper, genuine and realistic consideration to the merits of the case” according to the observations of the High Court in Minister for Immigration and Citizenship v SZJSS.[42] It seems to me that a court such as this Court can give “proper, genuine and realistic consideration to the merits of the case”[43] without thereby engaging in a merits review.
[40] See Minister for Immigration and Ethnic Affairs v GouWei Rong (1997) 191 CLR 559 at 585; Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 35-36;[41] (2014) 220 FCR 1, 33 at [151].
[42] (2010) 243 CLR 164, 174 at [26].
[43] Ibid.
Bearing in mind that this Court must not construe the Tribunal’s reasons minutely or finely with an eye keenly attuned to the perception of error[44] and also bearing in mind that this Court must give “proper, genuine and realistic consideration to the merits of the case”[45] and having regard to what I have called the proper encapsulation of the applicant’s grounds of review in this case, it seems to me I must examine the sufficiency of the Tribunal’s treatment of the applicant’s claim to persecution.
[44] Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280.
[45] Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164, 174 at [26].
The applicant’s contentions
As mentioned above the applicant’s grounds of review were properly distilled into two propositions. It is necessary to separately consider each.
The first ground
The applicant contended that the Tribunal failed to consider the applicant’s evidence that the applicant did not instruct S & S to lodge his visa application.
The chronological sequence of events revealed that on 23 April 2014 the Tribunal wrote to the applicant inviting him to comment on or to respond to the matters recorded in that letter. Relevantly condensed, the letter stated as follows –
The particulars of the information are:
- TRA (Trades Recognition Australia) has no record of providing the skills assessment referred to in the visa application
- Documents or information relating to you was located in the office of S & S Migration which entity has been found to have lodged applications to the Department that contained false or misleading information.[46]
[46] Court book filed 13 January 2015 at p.48.
Self-evidently, the Tribunal was investigating the fact that TRA had no record of providing the skills assessment that the applicant referred to in his visa application. The Tribunal was, by that letter, inviting the applicant to put to the Tribunal his version, if one existed, about the TRA skills assessment referred to in the applicant’s visa application.
In the 23 April 2014 letter, the Tribunal set out the consequences of the applicant failing to comply with its request for information, one of which was that the Tribunal might make a decision without taking further action to obtain the applicant’s information and, more importantly, (this was in bold letters) the applicant would lose any entitlement to appear before the Tribunal so as to give evidence and present argument.
The applicant did not respond to the Tribunal’s letter dated
23 April 2014. He did not appear before the Tribunal nor did he ask to be heard.
The applicant’s failure to respond to the 23 April 2014 letter inaugurated a series of consequences adverse to the applicant.
Those were explained by the Tribunal at paragraph 4 of its reasons. There, the Tribunal said that by reason of the applicant’s failure to reply to the 23 April 2014 letter, s.359C of the Act operated and that pursuant to s.360(3) of the Act, the applicant was not entitled to appear before the Tribunal. The Tribunal further said that s.363A of the Act provided that “if an applicant has no entitlement to a hearing, the tribunal has no power to permit him or her to appear”.[47]
[47] Court book filed 13 January 2015, p.62 at [4].
In support of that proposition the Tribunal cited the decision of the
Full Court of the Federal Court of Australia in Hasran v Minister for Immigration and Citizenship[48] (“Hasran”) (Jacobson, Gilmour and Foster JJ). The Tribunal’s reference to Hasran was undoubtedly correct. Had the Tribunal chosen to go beyond reference to Hasran, other authorities at single judge and at Full Court level contained holdings to like effect such as Minister for Immigration and Multicultural and Indigenous Affairs v Sun[49] and M v Minister for Immigration and Multicultural Affairs[50] (“M”). The proper construction and application of s.363A and other related provisions of Pt.5 of the Act were examined by the Full Court in Hasran.[51] In Hasran, as in this case, the applicant did not respond to the Tribunal’s letter given under s.359A of the Act.
[48] [2010] FCAFC 40.
[49] (2005) 146 FCR 498.
[50] (2006) 155 FCR 333.
[51] [2010] FCAFC 40 at [25]-[32].
Returning to the applicant’s first ground of review, the applicant asserted that the Tribunal failed to consider his evidence that the applicant did not instruct S & S to lodge the visa application documentation. That is a misstatement of the events before the Tribunal in this case. The applicant did not adduce any evidence before the Tribunal despite having been invited to do so. The Tribunal examined the applicant’s visa application and the details in it. The Tribunal said in paragraph 10 of its reasons that –
[T]
he available information indicates that the applicant had lodged his application with the assistance of a business called
S & S Migration. Documents or information relating to the applicant were located in the office of S&S Migration.[52]
[52] Court book filed 13 January 2015 at p.63.
In this proceeding, the applicant did not complain about those two sentences. Instead, he complained that the Tribunal did not consider his response to those two sentences. As has been stated above,
the applicant did not give a response to the propositions in those two sentences for the simple reason that he did not reply to the
23 April 2014 letter. That had the consequences described above.
Among the documents in the court book prepared on behalf of the Minister was a collection of emails, some redacted, to and from the Tribunal between October 2012 and July 2014. That communication related to information concerning S & S. The applicant did not complain about that documentation appearing the court book.
In reviewing the delegate’s decision, the Tribunal reviewed two passages written by the delegate, one of which was as follows –
In your application form you provided TRA reference TRA10/038563842. TRA have confirmed that they did not provide this reference to you and at the time, had never provided you with a skills assessment. This statement is relevant to the consideration of your 485 visa as you provided this to indicate that you did have a valid skills assessment, which is a requirement for the grant of a 485. This statement was both false and misleading at the time it was given. No evidence has been provided to suggest that you have subsequently been provided with a skills assessment, or that any error has been made by TRA.[53]
[53] Court book filed 13 January 2015 at p.31.
The second passage reviewed by the Tribunal was as follows –
Whilst S and S Migration are not declared as agents in relation to your 485 application, given records of this application were found on their premises I consider that they assisted you in the lodgment of this application. The operation of s98, in line with policy advice, is that you are still legally taken to have completed the form even if it is completed on your behalf.
You did not respond to the invitation and you have not raised any compassionate or compelling circumstances for the purpose of PIC4020(4) above. Therefore the requirements of PIC4020(1) have not been waived.[54]
[54] Court book filed 13 January 2015 at pp.31-32.
The Tribunal’s proceedings were inquisitorial rather than adversarial in their general character.[55] Yet “inquisitorial” in that context does not equate to a body that has the function of an inquisitor, that is to say, “one whose official duty is to enquire, examine or investigate”.[56]
The phrase “inquisitorial” as applied to the Tribunal merely delimited the nature of the Tribunal’s functions, the core function being found in s.414 of the Act that is to say, to “review the decision”, relevantly here, of the delegate.
[55] See SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at [40]; Minister for Immigration and Citizenship v SZKTI (2009) 83 ALJR 1017 at [27]; and Minister for Immigration and Citizenship v SZIAI (2009) 83 ALJR 1123 at [18].
[56] Minister for Immigration and Citizenship v SZIAI (2009) 83 ALJR 1123 at [18].
[57] [2016] FCAFC 52 at [64].
As a general proposition, administrative decision-making and
decision-making by administrative tribunals is not adversarial and past attempts to blur the distinction between adversarial and administrative decision-making have been vigorously rejected, as was observed in
Sun v Minister for Immigration and Border Protection[57](“Sun”),
a decision of Logan, Flick and Rangiah JJ, judgment in which was handed down on 5 April 2016.
Generally, there is no onus of proof in administrative enquiries and decision-making as was held in Yao-Jing v Minister for Immigration and Multicultural Affairs.[58] That said, it is for an applicant to
provide evidence and arguments in sufficient detail to enable the decision-maker to establish the relevant facts, as was held in
Minister for Immigration and Multicultural Affairs v Lay Lat.[59]
The decision-maker is not required to make out the applicant’s case for him or her.[60] More recently, Middleton J of the Federal Court of Australia endorsed those observations in SZLVZ v Minister for Immigration and Citizenship.[61]
[58] (1997) 74 FCR 275, 288.
[59] (2006) 151 FCR 214.
[60] Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155, 170.
[61] [2008] FCA 1816.
It has been said many times that the power of the Tribunal to make enquiries does not impose upon it a duty or obligation to do so.[62]
That point went to the propriety of the Tribunal reviewing the delegate’s findings about S & S. Such a review was not only permitted, it was necessary, in keeping with the Tribunal’s core function as was observed in Minister for Immigration and Citizenship v SZIAI.[63]
[62] See Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 78 ALJR 992 and Minister for Immigration and Citizenship v SZIAI (2009) 83 ALJR 1123 at [10] and [36].
[63] (2009) 83 ALJR 1123.
On the facts of this case, the applicant did not adduce evidence in relation to S & S, whether as to the lodging of his visa application or at all. Being entitled so to do, the Tribunal made its own enquiries in its inquisitorial capacity and in conformity with its core functions under s.414 of the Act, in reviewing the decision of the delegate. The decision of the delegate contained references to S & S. It was open to the Tribunal, indeed it was proper for it to do so, to review those references when undertaking its core functions. In my judgment, the Tribunal made no jurisdictional error in the manner contended for by the applicant by failing to consider the applicant’s evidence that he did not instruct S & S to lodge his visa application documentation.
The first of the applicant’s grounds of review failed.
The second ground
As his second ground of review, the applicant contended that the Tribunal failed to consider the applicant’s evidence that he did not instruct S & S to provide any fraudulent documentation to the Minister. It is worth recording that nowhere in the Tribunal’s reasons was the word “fraudulent” used. The applicant appears to have chosen the exaggerated adjective “fraudulent” when in reality he was endeavouring to address the definition in the Act of
“bogus document”, being a “document that was obtained because of a false or misleading statement, whether or not made knowingly”.[64]
[64] Migration Act 1958 (Cth), s.5(1).
The Tribunal recited that the delegate’s refusal to grant the visa lay in the applicant’s failure to satisfy the requirements of cl.485.224 of the regulations, especially PIC 4020. The Tribunal recorded that the delegate found that the applicant had given or caused to be given information that was false or misleading in a material particular.
After paraphrasing the individual elements of PIC 4020, the Tribunal said that the false or misleading nature of the information given by the applicant related to the applicant having stated that TRA provided the requisite skills assessment referred to in the applicant’s visa application. Expressed slightly more colloquially, the applicant stated in his visa application that TRA had provided the applicant’s skills assessment when TRA had not in fact provided any such skills assessment. Once the visa application document was found to have contained information that was false or misleading in a material particular, the Tribunal was entitled to conclude, as it did, that the applicant did not satisfy the elements of PIC 4020 for the purposes of cl.485.224 and also for the purposes of cl.485.221 of the regulations.
As recently as 5 April 2016, the Full Court of the Federal Court of Australia in Sun explained in detail the operation of the statutory scheme of which PIC 4020 is a part. Those portions of the majority judgment (Flick and Rangiah JJ) commencing at [31] recorded the definition of “information that is false or misleading in a material particular” as well as the definition of the term “bogus document”.
At paragraph [34] the Full Court held that in unravelling the relevant statutory provisions, it was necessary to give content to the statutorily imposed requirements that a decision maker –
a)be “satisfied” that the applicable criteria had been satisfied; and
b)had before him, her or it “no evidence” that a “bogus document” had been given to the Minister.
For the purpose of being “satisfied” about a particular state of affairs, in Sun the majority referred to the observations of the High Court of Australia in Buck v Bavone[65] where Gibbs CJ held that a discretionary power that is conferred on an administrative decision-maker to reach a state of satisfaction does not confer an arbitrary power or a power that is unexaminable. Gageler J in Plaintiff M64/2015 put the matter in the following terms –
A statutory requirement that a decision-maker arrive at a state of satisfaction as a precondition to an exercise of a statutory power, like a requirement that a decision-maker hold a belief as a precondition to an exercise of a statutory power, necessitates that the decision-maker “feel an actual persuasion”— “an inclination of the mind towards assenting to, rather than rejecting, a proposition”.[66]
[65] (1976) 9 ALR 481.
[66] [2015] HCA 50 at [64].
The Tribunal found that the applicant did not have a skills assessment from TRA and that the reference number provided on the visa application was not a TRA reference number. According to the test propounded by Gageler J in Plaintiff M64/2015, such a finding by the Tribunal was made on the basis that the Tribunal had “an inclination of the mind towards assenting to, rather than rejecting” the proposition that the applicant’s visa application contained an erroneous inclusion of a false TRA reference. While not stating so in terms, it may fairly be taken by that finding that the Tribunal was “satisfied” that the necessary constituent elements of PIC 4020 were not met.
The facts of this case were a little different to those in Batra v Minister for Immigration and Citizenship[67] (“Batra”) even though the decision of Murphy J in Batra was cited in the Tribunal’s reasons at paragraph 7. In Batra, the Court found that the applicant had submitted a skills assessment to the delegate even though he knew the skills assessment had been obtained through a false work reference. In this case,
the Tribunal found that the applicant submitted a visa application which falsely stated that the applicant had previously obtained a TRA skills assessment when he had not and that the TRA reference number on the visa application was not a TRA reference number.
[67] [2013] FCA 274.
The facts of this case more closely approximate those with which the Full Court of the Federal Court was concerned in Prodduturi v Minister for Immigration and Border Protection[68] (“Prodduturi”) (Perram, Perry and Gleeson JJ). Prodduturi was recently distinguished by a differently constituted Full Court in Singh. In certain key aspects, the decision in Prodduturi has since been held to have been clearly wrong, for example, at [37]. However other aspects of Prodduturi were not held to have been clearly wrong. In Prodduturi, the applicant submitted a visa application in which he specified that his occupation was that of a cook and he asserted that TRA had assessed him as such then issued an assessment to that effect identified by the serial number
“TRA 10/547924987”. In that case the delegate ascertained (as is the situation in this case) that the TRA assessment and identifying serial number were not true. The Full Court held that the applicant was never able to satisfy the requirements of cl.485.221 of the regulations and the applicant was not entitled to the grant of a visa.
[68] [2015] FCAFC 5.
The decision in Prodduturi is also factually paralleled because in that case as with this case, the relevant migration agent was S & S. In that case, nothing on the face of the visa application suggested the existence or involvement of S & S. The fact that the Tribunal in that case accepted the fact of the agent being at least the origin of the misleading statement did not necessarily bind the Federal Circuit Court of Australia to the same conclusion. That case then turned on the Court’s treatment of the applicant’s complicity in the fraud of S & S. Ultimately, the Full Court of the Federal Court of Australia held that the judge of the Federal Circuit Court of Australia erred by finding that the applicant had failed to prove a matter then not in dispute and for which the evidence was one way. In Singh at [35], the Full Court pointed out that the question of the validity of a visa was a matter to be determined objectively by the Court, citing Minister for Immigration and Border Protection v Kim.[69]
[69] [2014] FCAFC 47.
In this case, the role of S & S was not the subject of direct evidence yet the activities attributed to S & S were significant. Specifically,
the Tribunal found that –
[T]
he available information indicates that the applicant had lodged his application with the assistance of a business called
S & S Migration. Documents or information relating to the applicant were located in the office of S&S Migration.[70]
[70] Court book filed 13 January 2015 at p.63.
That was almost the precise set of circumstances that concerned the Court in Prodduturi. There, the delegate did not make an explicit finding about who committed the fraud (as is the case here) because the applicant in that case did not respond to the request to provide information, a phenomenon paralleled in this case. In Prodduturi the Court held that the delegate proceeded on the basis that the applicant was responsible for the misstatement but gave the question no detailed consideration. The Court said that was unsurprising given the absence of submissions by the applicant.
In this case, the delegate’s analysis of the role of S & S was perfunctory. It was limited to the following –
Whilst S and S Migration are not declared as agents in relation to your 485 application, given records of this application were found on their premises I consider that they assisted you in the lodgment of this application.[71]
[71] Court book filed 13 January 2015 at p.31.
The Tribunal’s findings were largely consistent with those of the delegate in that regard.
In the Tribunal, the applicant did not give evidence nor make submissions by reason of the fact that he was not permitted to do so, having failed to respond to the Tribunal’s letter dated 23 April 2014.
In Prodduturi, the Full Court held that a judge of this Court erred by making a finding, when the applicant did not appear before the Tribunal nor give evidence nor make submissions, that the applicant had failed to prove something not then in dispute. In this case I do not make any such finding. To do otherwise would fly in the face of Singh. In Prodduturi the Court held that the Federal Circuit Court of Australia erred in concluding that the applicant was aware that a visa application was being made on his behalf even if the applicant did not know what that application contained.
Prior to the decision in Prodduturi, the subject of the mental element required to be shown on the part of the visa applicant alleged to have made a false or misleading statement had been determined in
April 2014 in Trivedi v Minister for Immigration and Border Protection[72] (“Trivedi”) by a differently constituted Full Court. Curiously, the decision in Trivedi was not the subject of comment in Prodduturi. In Trivedi, Buchanan J with whom Allsop CJ and Rangiah J agreed, held that a distinction must be drawn between an innocent, unintended or accidental mistake in a document or information provided by the visa applicant, as opposed to information or documents revealed to be false in the purposely untrue sense of that term. Buchanan J held that an element of fraud or deception is necessary to attract the operation of PIC 4020. His Honour held that it was necessary that the information or document have the necessary quality of purposeful falsity, whether or not the visa applicant can be shown to have knowledge of that fact.
[72] [2014] FCAFC 42.
It is a fair distillation of the facts in this case that the applicant consulted S & S. The applicant told me in the hearing in this Court –
S & S Migration had frauded more than 1000 student. I am one of them … He said if I pay his fees he can help me to get the work permit. He misled me.[73]
It is also a fair distillation of the applicant’s version of events that the applicant paid S & S with an expectation that S & S would obtain a “work permit”[74] for the applicant, although it seems he meant to convey ‘work visa’.
[73] Transcript of Proceedings, 9 March 2016 at p.31.
[74] Transcript of Proceedings, 9 March 2016 at p.31.
On his own statement, the applicant was defrauded by S & S.
No specific evidence was adduced to show in what precise way S & S defrauded the applicant. Nor was there evidence of the way in which the applicant perpetrated any aspect of the fraud upon the Department, beyond lodging a visa application. That probably does not matter, however. That is because PIC 4020 is directed at the overall integrity of the visa system as a bulwark against any deception and fraud from any quarter associated with the visa application. As Buchanan J held in Trivedi, as a matter of policy a visa applicant is ultimately responsible for purposely untrue material provided with a visa application.
Those observations have been applied by a differently constituted
Full Court of the Federal Court of Australia in Patel v Minister for Immigration and Border Protection.[75]
[75] [2015] FCAFC 22 at [32].
After being granted permission to do so, Ms Gangemi relied on short further written submissions[76] to elaborate upon or explain paragraph 19 of the Tribunal’s reasons. She submitted that on 7 December 2010,
the applicant applied for a subclass 485 visa. Ms Gangemi submitted that the applicant was therefore subject to cl.3(e) as well as cl.4 of the relevant instrument, namely IMMI 12/068. She submitted that occupations listed in part B of schedule 2 of the instrument as referred to in cl.3(e) include the skilled occupation of cook. In relation to the skilled occupation of cook, the relevant assessing authority was TRA. Ms Gangemi submitted that the Tribunal’s finding that TRA was a relevant skills assessing authority was open.
[76] First Respondent’s Supplementary Written Submissions filed 16 March 2016.
I agree. The Tribunal made a correct finding in that regard.
In this case, the applicant’s allegations in respect of fraud were limited to his contention that he did not instruct S & S to provide fraudulent documentation to the Minister. The details of any fraud, properly so called, were not given by the applicant.
That said, recognising (as I have) that the applicant was a litigant in person who did not possess the wherewithal to properly articulate his claim, I decided it was desirable to address whatever the applicant said, or was intending to say about fraud, in case hereafter it may be said that the point was not addressed or was not adequately addressed by me.
The starting point in any examination of fraud in the context of the Act is the decision of the High Court in SZFDE v Minister for Immigration and Citizenship[77] (“SZFDE”), judgment in which was handed down on 2 August 2007. It remains the authoritative pronouncement on point and has been the foundation on which a litany of decisions of the
Full Court of the Federal Court has proceeded. Those include Minister for Immigration and Citizenship v SZLIX[78] (“SZLIX”) (Tamberlin, Finn and Dowsett JJ), SZQBN v Minister for Immigration and Citizenship[79] (“SZQBN”) (Jacobson, Edmonds and Logan JJ), SZRUR v Minister for Immigration and Border Protection[80] (“SZRUR”) (Allsop CJ, Robertson and Mortimer JJ), SZSJA v Minister for Immigration and Border Protection[81] (“SZSJA”) (Allsop CJ, Robertson and Mortimer JJ) and SZSXT v Minister for Immigration and Border Protection[82] (“SZSXT”) (Perram, Robertson and Griffiths JJ).
[77] [2007] HCA 35.
[78] [2008] FCAFC 17.
[79] [2013] FCAFC 94.
[80] [2013] FCAFC 146.
[81] [2013] FCAFC 158.
[82] [2014] FCAFC 40.
[88] (2007) 229 CLR 519.
[83] [1896] AC 199, 221.
Over many decades, judicial pronouncements have been made
about the infinitely variable guises in which fraud may become manifest, as Lord Macnaghten pointed out in his celebrated speech in
Reddaway v Banham[83](“Reddaway”). It has been said that the fertility of man’s invention in devising new schemes of fraud is so great that courts have declined to define it. In SZFDE, the High Court catalogued the concept of fraud in various fields of law. Those have included the criminal law in Macleod v R,[84] in the tort of deceit in Krakowski
v Eurolynx Properties Ltd,[85] in the law relating to registered designsin Polyaire Pty Ltd v K-Aire Pty Ltd,[86] in the law of agency in
Sons of Gwalia Ltd v Margaretic; ING Investment Management LLC v Margaretic,[87] in the context of limitations of actions in
Commonwealth of Australia v Cornwell[88]and in the context of registrations of interests in land governed by the system of Torrens registration in Farah Constructions Pty Ltd v Say-Dee Pty Ltd[89] (“Farah Constructions”).
[89] (2007) 230 CLR 89.
[84] [2003] HCA 24.
[85] (1995) 183 CLR 563.
[86] (2005) 221 CLR 287.
[87] (2007) 231 CLR 160.
Once fraud has been proved, its impact is profound and its consequences far-reaching. That may explain why in the 1956 decision in Lazarus Estates Ltd v Beasley,[90] Denning LJ (as Lord Denning then was) wrote in such felicitous terms that “fraud unravels everything”.[91]
[90] [1956] 1 All ER 341.
[91] [1956] 1 All ER 341, 345.
It is no new concept that as a matter of private law, fraud must be pleaded specifically and with particulars as Lord Hatherley held in Wallingford v Mutual Society.[92] And while fraud must be pleaded with some particularity, the word “fraud” itself need not be used if the conduct relied on and its fraudulent nature is otherwise sufficiently apparent, a point held in authorities such as Davy v Garrett,[93] Reddaway and Angelides v James Stedman Henderson’s Sweets Ltd.[94] Many of those authorities were considered by the High Court in Banque Commerciale SA, in Liquidation v Akhil Holdings Ltd.[95]
[92] (1880) 5 App Cas 685.
[93] (1877) 7 Ch D 473, 489.
[94] (1927) 40 CLR 43, 82.
[95] (1990) 169 CLR 279.
In SZFDE, the Full Court pointed out that fraud in the context of public law stands apart from fraud in relation to civil suits in general.
That is often for the reason that a victim of fraud in a public
law context will have no useful remedy except to have the fraudulently-affected conduct set aside. In that case, the Full Court said that the only remedy that would be of real utility to the visa applicants was an order providing them with the opportunity to press their claims to a protection visa with a fair hearing conducted according to law.
Fraud of the sort considered in SZFDE had the consequence of stultifying the operation of the critically important natural justice provisions in Pt.7 of the Act. The fraud of the relevant migration
agent –
[D]
isabled [the Tribunal] from the due discharge of its imperative statutory functions with respect to the conduct of the review.
That state of affairs [merited] of the description of the practice of fraud “on” the Tribunal.[96]
[96] [2007] HCA 35 at [51].
The acts which will suffice to constitute fraud “on” the Tribunal are not always easy to distil. It was pointed out by the Full Court of the Federal Court of Australia in SZLIX that the simple fact of a failure to inform or bare negligence or inadvertence will not necessarily be sufficient to give rise to fraud on the Tribunal.
Bad faith is within the contemplation of the notion of fraud, as was held in SZDFE.
In a public law context, the conduct constituting the fraud is not limited to the decision-maker, a party or a party’s representative.[97]
[97] SZFDE v Minister for Immigration and Citizenship [2007] HCA 35.
Let me now turn to the evidence in support of an assertion of fraud when used in a public law sense in the context of a case brought under the Act.
The rule expressed by Denning LJ in R v Northumberland Compensation Tribunal; Ex parte Shaw[98] has been qualified. There,
his Lordship held that when certiorari is granted on the ground of want of jurisdiction or bias or fraud, affidavit evidence is not only admissible but it is, as a rule, necessary.
[98] [1952] 1 KB 338, 352.
Since SZFDE, the position pronounced by the High Court is that in a case of alleged fraud, the court exercising judicial review may take account of any relevant material placed before it. That aspect of the High Court’s decision in SZFDE was recently expressly addressed by the Full Court of the Federal Court of Australia in SZSXT.[99]
[99] [2014] FCAFC 40 at [7].
In some instances, the documentary material (affidavits, statutory declarations, correspondence, emails and the like) will illustrate the manner in which the alleged fraud is asserted. In other cases, especially those where the applicant is not legally represented, ascertaining precisely how the allegation of fraud is asserted is not an easy task.
In the context of private civil litigation, an allegation of fraud will be raised on the pleadings, usually fully particularised. That is rarely the situation in a public law case where the court is invited to consider allegations of fraud in the course of its exercising judicial review, especially under the Act.
It seems to me that a court exercising judicial review faces a particularly complex set of circumstances where a litigant in person only faintly presses an unparticularised allegation of fraud.
That complexity is heightened in circumstances when the applicant could have but failed to participate in proceedings at the Tribunal level, then later appears before the Federal Circuit Court wishing to agitate a point not advanced before the delegate or before the Tribunal.
In those circumstances, the Federal Circuit Court must balance two equally important but seemingly contradictory concepts –
a)on the one hand, when undertaking judicial review for the detection of jurisdictional error, the body engaged in the judicial review must be assiduous in avoiding engaging in a merits review; and
b)on the other hand, as a matter of procedural fairness, a litigant-in-person such as an unrepresented litigant in a migration case (especially one for whom English may not be the applicant’s first language) is unlikely to be sufficiently adept in court procedure to know how to meaningfully advance his or her case.
In SZRUR the Full Court of the Federal Court of Australia was concerned with an unrepresented litigant in a migration case where the applicant wanted to make a statement from the bar table to the effect that he did not authorise the migration agent to sign documents on his behalf. In that case, the judge of the Federal Circuit Court failed to explain to the applicant that the judge would not act on a statement made by the applicant from the bar table and that the applicant’s allegation of fraud against his migration agent would fail in the absence of evidence. The Federal Circuit Court judge held against the visa applicant saying that the visa applicant provided no evidence about his complaints in respect of the migration agent but instead read a statement from the bar table.
The Full Court of the Federal Court of Australia was critical of the Federal Circuit Court judge for adopting the course he did.
Robertson J held that there was no difficulty, as a matter of fairness,
in the Federal Circuit Court judge telling the applicant that if the applicant wanted the judge to rely on his statement from the bar table then it was necessary for the applicant to go into the witness box and to make those statements formally after having been sworn. Robertson J further held that the Federal Circuit Court judge’s failure to explain the procedure to the applicant was not fair and it could have affected the outcome. Robertson J took into account that the applicant was not legally represented and also could not read or write in English.
In the same case, Allsop CJ said –
[B]efore the Federal Circuit Court the matter was hopelessly confused, and lacking in any presentable form.[100]
[100] [2013] FCAFC 146 at [52].
In SZRUR, Allsop CJ held that –
There is a heavy burden of proving fraud on an applicant who seeks to set aside an otherwise blameless decision of the Tribunal by reason of the fraud of some third party.[101]
The Chief Justice held that the applicant was not put in the witness box, nor told that in making out a case of fraud the applicant had to deal with fundamentally important issues displayed in SZFDE and SZLIX including the possibility of obtaining the presence of the migration agent for evidence in the court. Allsop CJ held that it was not appropriate to simply hear from the applicant from the bar table and dismiss his claim.
[101] [2013] FCAFC 146 at [51].
Allsop CJ recognised that dealing with litigants in person is difficult. The Chief Justice held that procedural fairness required at least that the applicant be given the opportunity of going into the witness box to give evidence with the knowledge of the issues he had to address, including the exploration of the role of the migration agent. The Chief Justice said the applicant was not afforded that fairness.
In separate reasons Mortimer J held that the Federal Circuit Court judge was required to put an unrepresented litigant in a position to make an effective choice about how to conduct his case. Her Honour held that the applicant needed information about the evidence required to make out the very serious allegations of fraud he proposed.
Her Honour held that the applicant was not informed about the need for sworn evidence nor was the applicant informed, even in outline, about the kinds of issues he needed to address.
As a result, in SZRUR the Full Court overturned the decision of the Federal Circuit Court[102] and remitted the manner for rehearing.
[102] SZRUR v Minister for Immigration and Citizenship [2013] FCCA 915.
On 18 December 2013, that is to say a little over a month after judgment was handed down in SZRUR, the Full Court of the
Federal Court of Australia, in an identically constituted court
(Allsop CJ, Robertson and Mortimer JJ) dealt with an allegation of fraud in a migration context in SZSJA. The Full Court held there was no evidence to support any proposition that a particular document was signed fraudulently. Citing the decision of the High Court in Farah Constructions the Full Court held that it is a question for the
Federal Circuit Court whether the person who signed the response to hearing invitation form should, in terms of dishonesty or fraud,
be judged by the standards of ordinary decent migration agents.
The Full Court went on to observe that once the Federal Circuit Court found the necessary facts, the Court must then apply the ratio of the High Court in SZFDE and the ratio of the Full Court of the
Federal Court of Australia in SZLIX.
In SZSXT the Full Court of the Federal Court of Australia addressed the necessity of showing that an agent’s fraud in dealing with a visa application resulted directly in a fraud on the Tribunal in discharging its decision-making functions. The Full Court in SZSXT relied on the decision of the Full Court in SZLIX. Self-evidently, in SZSXT, the
Full Court focused on the direct connection between the agent’s fraud in the agent’s dealing with the visa application and the result of a fraud on the Tribunal. Once that connection was made, an array of authorities of Full Courts of the Federal Court of Australia have held that a person will not be allowed to maintain an advantage that was obtained by that person’s own wrong. Those authorities include SZLHP v Minister for Immigration and Citizenship,[103] Minister for Immigration and Citizenship v Lu[104] and SZQBN. In the latter case, the Full Court held (Jacobson, Edmonds and Logan JJ) that the court needs
“to demonstrate the necessary transactional connection between the[visa applicant’s] untruths and the relief which he claimed in the proceeding”.[105]
[103] (2008) 172 FCR 170.
[104] (2010) 189 FCR 525.
[105] [2013] FCAFC 94 at [68].
Those authorities reveal the pitfalls that confront an unrepresented litigant when advancing an application to review the decision of the Tribunal under the Act. Those pitfalls are enhanced in circumstances where the unrepresented litigant has failed to participate in the proceeding before the Tribunal and then later, on the applicant’s review application in the Federal Circuit Court, wishes to advance
unparticularised allegations of fraud while making a statement that faintly hints at impropriety by an unidentified migration agent.
The pitfalls become enhanced all the more when the unrepresented litigant has led no evidence (in the Tribunal or in the Federal Circuit Court) whether as to the factual basis of the fraud assertion and moreover the applicant has not demonstrated the necessary transactional connection between the nefarious conduct and conduct of the migration agent, the applicant and the relief claimed in the proceeding.
Application of the facts to the law
In this case, in order to succeed in this Court the applicant was required to demonstrate that the Tribunal fell into jurisdictional error. In my judgment, the Tribunal did not fall into jurisdictional error. In essence, after being invited to respond to issues of concern to the Tribunal as were recorded in the Tribunal’s 23 April 2014 letter, the applicant remained silent. By adopting that approach, the applicant by his own conduct foreclosed on his ability to appear at, give evidence before or make submissions to the Tribunal. The Tribunal made no error in proceeding to deal with the applicant’s application to review the delegate’s decision without hearing from the applicant.
The Tribunal identified the correct issue for determination, namely, whether the applicant met the elements of PIC 4020. The Tribunal correctly considered whether the applicant’s responses on his visa application were correct, especially whether TRA had properly assessed the applicant for his stated occupation as a cook. The Tribunal found that the reference in the applicant’s visa application to the applicant having been regularly and properly assessed by TRA was erroneous. That finding was open. The Tribunal’s finding that the applicant had erroneously stated that TRA had allocated the applicant a TRA identification number was also open. No jurisdictional error was thereby exhibited by the Tribunal.
The applicant’s first ground of review proceeded on a basic misconstruction of Pt.5 of the Act. Having failed to respond to the Tribunal’s invitation to provide information to it, the Tribunal determined the applicant’s case without hearing from the applicant.
The Tribunal was entitled to do that. Contrary to the assertions of the applicant, in proceeding in that fashion the Tribunal made no jurisdictional error. To the contrary, such an approach has been sanctioned by several authorities including Hasran, Minister for Immigration and Multicultural and Indigenous Affairs v Sun and M.
Of course, the applicant’s assertions in relation to ground one were predicated on there being evidence from him. He adduced none.
The applicant raised a veiled complaint about the treatment given by the Tribunal to the involvement of S & S in the applicant’s application. The applicant’s criticisms were not at all developed. Based on what he told me during the hearing of his review before me, he was keen to distance himself from whatever S & S did for him, especially from any nefarious dealings in which S & S had been involved.
Several things must be said about the applicant’s position in relation
S & S’s involvement in this case. First, the applicant failed to avail himself of the opportunity to adduce evidence about his involvement with S & S. He could have done so but chose not to. He should not now be heard to complain about that. Second, as authority of considerable veneration has held, the proceeding before the Tribunal in which the applicant’s review of the delegate’s decision was undertaken was inquisitorial in nature. The Tribunal at all relevant times possessed the requisite powers that it exercised in making the inquiries it made about S & S. The Tribunal’s extremely contained reference to S & S was the product of its own authorised enquiries. The involvement of
S & S in visa applications is well-known in this Court, a very recent illustration of which is the case of Kaur v Minister for Immigration and Border Protection,[106] judgment in which was handed down on
18 April 2016. In my view, no jurisdictional error was exposed in the Tribunal’s reasoning in relation to S & S.
[106] [2016] FCCA 736.
The applicant failed in relation to his first ground of review.
So far as his second ground of review was concerned, it, like the first ground, proceeded on the erroneous presupposition that the applicant was entitled to be heard in relation to his instructing S & S. As has been pointed out above, by reason of the applicant’s failure to respond to the Tribunal’s letter of 23 April 2014, the applicant lost any opportunity he may have enjoyed to appear at, give evidence to and make submissions before the Tribunal. His choice in adopting that course was wholly his own, erroneous as it turned out to be. Nevertheless, he adduced no evidence on point. The applicant cannot now be heard to complain that the Tribunal erred in not considering his evidence. He gave none.
The Tribunal proceeded entirely properly, in my judgment, in finding that TRA had no record of having assessed the applicant as a cook.
No jurisdictional error arose on that basis.
Conclusion
The applicant failed to make out either ground of review in this case. His application before this Court failed.
I order this proceeding is dismissed and that the applicant pay the Minister’s costs.
I certify that the preceding one hundred and twenty-five (125) paragraphs are a true copy of the reasons for judgment of Judge Wilson
Date: 2 February 2017
Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 and 291; Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323, 372 at [153]; Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 286-287; Minister for Immigration and Multicultural Affairs v Rajamanikkam (2002) 210 CLR 222, 254 at [105]; SGLB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 176 at [20]; Minister for Immigration and Multicultural and Indigenous Affairsv SGLB (2004) 78 ALJR 992, 1005 at [73].
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