FEDERAL COURT OF AUSTRALIA
Jiang v Minister for Home Affairs [2019] FCA 369
ORDERS
First Appellant JIANPING JIANG Second Appellant ZICHENG JIANG Third Appellant | ||
AND: | First Respondent ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent | |
DATE OF ORDER: |
THE COURT ORDERS THAT:
2. The first appellant pay the first respondent’s costs of and incidental to the appeal, as agreed or assessed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
BROMWICH J:
Introduction
1 This is an appeal from orders of a judge of the Federal Circuit Court of Australia by which a judicial review challenge to a decision of the Administrative Appeals Tribunal was dismissed. The Tribunal had affirmed a decision of a delegate of the Minister for Immigration and Border Protection, now the Minister for Home Affairs. The delegate had refused the grant of a State/Territory Sponsored Business Owner (Residence) Class DF Subclass 892 visa to the first appellant, Ms Quighua Jiang. The second and third appellants, Ms Jiang’s husband and son, were the secondary visa applicants, and therefore reliant on her visa application. It is convenient to refer to Ms Jiang as the appellant, as her husband and son had no independent role during the appeal in this Court.
2 The criteria for a Subclass 892 visa are set out in Part 892 of Schedule 2 to the Migration Regulations 1994 (Cth). The criteria to be satisfied at the time of the decision include those set out in cl 892.223, which in turn required the applicants to satisfy a number of public interest criteria set out in Part 1 of Schedule 4 to the Regulations, relevantly including public interest criterion 4020 (PIC 4020). In particular, PIC 4020(1) relevantly provides that the decision-maker must be satisfied that there was no evidence before the Minister (and thus his delegate) that a document given, or caused to be given, in relation to the application for the visa was “bogus” (as defined), or false or misleading in a material particular. If it is found that a document that was furnished fell within either category, that otherwise mandatory requirement may be waived under PIC 4020(4) if there are “compelling circumstances that affect the interests of Australia”, or “compassionate or compelling circumstances that affect the interests of” an Australian citizen, permanent resident or eligible New Zealand citizen.
3 The delegate refused the grant of the visa by reason of a finding that an invoice that the appellant provided was false or misleading in a material particular. The delegate did not consider the question of a waiver. The Tribunal affirmed the delegate’s decision upon the different basis of finding that the invoice was a bogus document, and determined that the requirements for a waiver were not met. It was common ground in the appeal that the invoice concerned was bogus by reason of alterations that had been made to it.
4 The challenge in the Federal Circuit Court and on appeal concerned the decision not to waive the requirement that no bogus document be given, or caused to be given, as part of the visa application process. The appellant contended both before the primary judge and maintained on appeal that the Tribunal’s decision was vitiated by either of two asserted jurisdictional errors.
5 The first alleged jurisdictional error was that the Tribunal failed to comply with the statutory procedural fairness requirements in s 359A of the Migration Act 1958 (Cth). The appellant asserts that she was entitled to be given particulars of serious allegations that had been made to the delegate about her and to be invited to comment on or respond to them. The Minister’s response is that s 359A was not engaged, because those allegations were not the reason, or any part of the reason, for affirming the delegate’s decision.
6 The second alleged jurisdictional error was that the Tribunal had failed to find that the delegate’s decision to refuse the visa had been vitiated by the fraudulent conduct of third parties in relation to the bogus document about which the appellant had no involvement or knowledge, with the consequence that the visa application itself was invalid. Such invalidity would preserve the appellant’s capacity to bring a fresh application because that would avoid a bar on making a further application for three years: see PIC 4020(2). The Minister’s response is that the appellant did not discharge her onus before the primary judge of proving that fraud had been perpetrated on her, in the sense of her either not being complicit or indifferent to that fraud taking place.
7 The substantive facts in this appeal are not in dispute. However there is a dispute as to what the Tribunal made of them, or should have made of them, and whether the primary judge correctly analysed the Tribunal’s assessment of those facts.
The applicable regulations
8 The particular regulations containing, or relating to, the visa criteria outlined briefly above need to be considered in their context, at least on the appellant’s argument. The Minister’s argument did not require such an approach.
9 Schedule 2 of the Migration Regulations prescribes a detailed set of numbered primary criteria that are required to be satisfied for a Subclass 892 visa, relevantly including (emphasis added as to terms referred to later in these reasons):
(1) at the time of the application:
(a) cl 892.11: that the visa applicant “has had, and continues to have, an ownership interest in 1 or more actively operating main businesses in Australia for at least 2 years immediately before the [visa] application is made”;
(b) cl 892.212: absent exceptional circumstances, two out of three requirements be met as to:
(i) full-time employment (or the equivalent across multiple employees) of at least one Australian citizen, permanent resident or New Zealand passport holder (excluding a member of the family unit);
(ii) business and personal assets with a net value of at least $250,000; or
(iii) assets in the main business of at least $75,000;
(c) cl 892.213: annual turnover of at least $200,000;
(d) cl 892.214: no history of involvement in business activities that are of a nature that is not generally acceptable in Australia;
(e) cll 892.215, 892.216, 892.216A and 892.217: certain existing visa requirements;
(2) at the time of the decision by the delegate, and on review by the Tribunal, the further criteria of:
(a) continuing to satisfy cl 892.211, cl 892.214, and if applicable, cl 892.212(b) – as noted above, business and personal assets with a net value of at least $250,000;
(b) cl 892.223: satisfying a number of public interest criteria, relevantly including PIC 4020;
(c) cl 892.224 and cl 892.225: the visa applicant and his or her family satisfying a number of public interest criteria.
(The secondary criteria do not need to be referred to.)
10 The requirement to actively operate a “main business” under cl 892.11(1), referred to above at [9(1)(a)], is to be considered by reference to the definition of that term in reg 1.11 to mean that the visa applicant “maintains or has maintained, direct and continuous involvement in management of the business from day to day and in making decisions affecting the overall direction and performance of the business”. This requirement was of some importance, and difficulty, because the appellant and her business partner, Ms Lijun (Christine) Zhang, had a bitter falling out. A by-product of that falling out was that Ms Zhang made allegations to both the delegate and to the Tribunal that information furnished by the appellant on meeting this requirement was false.
11 On the appellant’s case, the information provided by Ms Zhang was important because it may have been part of the reason for the Tribunal’s decision. If so, the terms of s 359A of the Migration Act (at that time referring to the then Migration Review Tribunal) meant that she was entitled to be given particulars of serious allegations that had been made to the delegate about her and to be invited to comment on or respond to them. If that information was not any part of the reason for the decision, then no such obligation arose. The influence on the decision does not necessarily have to be overt. It can be by way of demonstrating a realistic possibility of tainting or otherwise influencing the decision that was made in some way. Indirect influence of that kind may not be easily established, even at the level of being a live possibility. The real possibility of a taint of that kind is what is relied upon as an important aspect of the appellant’s case.
12 On the Minister’s case, this information was irrelevant because the decision of the delegate, and of the Tribunal on merits review, was based on the bare fact of the invoice being bogus and had nothing to do with those allegations. On the Minister’s case, those allegations were put to one side by both the delegate and, more importantly, by the Tribunal. The Minister’s stance was upheld by the primary judge.
13 The relevant portions of PIC 4020 in force at the time of the Tribunal’s decision (no relevant amendments having been made since the time of the visa application in relation to the issues in dispute) are as follows:
(1) There is no evidence before the Minister that the applicant has given, or caused to be given, to the Minister, an officer, the Tribunal during the review of a Part 5-reviewable decision, a relevant assessing authority or a Medical Officer of the Commonwealth, a bogus document or information that is false or misleading in a material particular in relation to:
(a) the application for the visa; or
(b) a visa that the applicant held in the period of 12 months before the application was made.
(2) The Minister is satisfied that during the period:
(a) starting 3 years before the application was made; and
(b) ending when the Minister makes a decision to grant or refuse to grant the visa;
the applicant and each member of the family unit of the applicant has not been refused a visa because of a failure to satisfy the criteria in subclause (1).
(2AA) However, subclause (2) does not apply to the applicant if, at the time the application for the refused visa was made, the applicant was under 18.
(2A) The applicant satisfies the Minister as to the applicant’s identity.
(2B) The Minister is satisfied that during the period:
(a) starting 10 years before the application was made; and
(b) ending when the Minister makes a decision to grant or refuse to grant the visa; neither the applicant, nor any member of the family unit of the applicant, has been refused a visa because of a failure to satisfy the criteria in subclause (2A).
(2BA) However, subclause (2B) does not apply to the applicant if, at the time the application for the refused visa was made, the applicant was under 18.
(3) To avoid doubt, subclauses (1) and (2) apply whether or not the Minister became aware of the bogus document or information that is false or misleading in a material particular because of information given by the applicant.
(4) The Minister may waive the requirements of any or all of paragraphs (1)(a) or (b) and subclause (2) if satisfied that:
(a) compelling circumstances that affect the interests of Australia; or
(b) compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen;
justify the granting of the visa.
(5) In this clause:
information that is false or misleading in a material particular means information that is:
(a) false or misleading at the time it is given; and
(b) relevant to any of the criteria the Minister may consider when making a decision on an application, whether or not the decision is made because of that information.
Note: For the definition of bogus document, see subsection 5(1) of the Act.
14 The term “bogus document” is defined in s 5 of the Migration Act (and, prior to 18 April 2015, in s 97 in the same terms) as follows:
bogus document, in relation to a person, means a document that the Minister reasonably suspects is a document that:
(a) purports to have been, but was not, issued in respect of the person; or
(b) is counterfeit or has been altered by a person who does not have authority to do so; or
(c) was obtained because of a false or misleading statement, whether or not made knowingly.
15 Section 359(1) of the Migration Act provides:
In conducting the review, the Tribunal may get any information that it considers relevant. However, if the Tribunal gets such information, the Tribunal must have regard to that information in making the decision on the review.
Before the delegate
16 The appellant had, at different points in time, furnished two versions of a single incoming invoice in support of her visa application to the Minister’s Department and thus to the delegate, to address different aspects of the visa criteria. There was a difference in the details as to who the invoice was addressed to, which arguably went to the requirement that the appellant demonstrate “direct and continuous involvement in management of the business from day to day and in making decisions affecting the overall direction and performance of the business” in accordance with the definition of “main business”.
17 The first version of the invoice, provided as evidence of the appellant’s daily management of the company upon which she based her visa application as part of meeting the “main business” requirement in cl 892.11, had her Anglicised name (Ryland) highlighted above her company name (ZJ International) and her name as the contact person above her email address (along with the same telephone number as the other versions). It was this version that mattered for the delegate’s decision and before the Tribunal. As will be seen, it is not in doubt that this document was altered and that it met the description of being a “bogus” document furnished to the Department. The live question is whether there was at least the possibility that the Tribunal attributed to the appellant any responsibility for that having taken place, in such a way that affected its ultimate decision to affirm the delegate’s refusal of the visa.
18 The second version of the invoice, provided as evidence of stock acquired by the company in Australia as part of meeting the turnover requirement in cl 892.213, had only the appellant’s company name highlighted, did not have her name above the company name, and had Ms Zhang’s name as the contact person above Ms Zhang’s email address. This document, although apparently also “bogus”, only features as context for what unfolded.
19 The initial significance of the difference between the two versions of the invoice is that they apparently alerted the delegate to the possibility that at least one of the two invoices was not genuine. Unless the issuer had furnished both versions, so that both might not be bogus but rather merely different, or perhaps reissued or corrected so as both to be genuine at the time of issue, one version, or the other version, or perhaps both versions, had to have been altered after they had been sent out. The altered document(s) would not, to that extent at least, be genuine. Such a document would readily fall within the definition of “bogus”. As it turned out, for the reasons that follow, the third possibility was the correct explanation: both invoices furnished by the appellant were in fact altered by someone other than the issuer. The delegate, and the Tribunal, focussed only on the first version, both finding it to be bogus.
20 The delegate contacted the issuer of the invoice and obtained a copy of the original invoice as had been furnished. The original invoice was different from either of the two versions provided by the appellant in that it had the business name of the store upon which she based her visa application (Crazy Fish – Castle Hill), rather than the company name, and Ms Zhang’s name as the contact person above Ms Zhang’s email address. As the appellant was not the contact person in the original invoice, but was the contact person in the bogus document that the appellant furnished to the Department in support of meeting the visa requirement of direct and continuous management of a main business, the bogus document could have had a material impact on the assessment of whether or not that requirement was met. That is because the original invoice is more consistent with Ms Zhang than the appellant being in direct and continuous management of a main business.
21 By a letter dated 26 February 2014, the delegate drew attention to the differences between the three invoices, and sought the appellant’s comments, stating:
It is my opinion that the original document has been deliberately altered to embellish your involvement with the business. I find this document folio 289 [being the first version of the invoice] to be false or misleading in a material particular for assessing the requirements of Regulation 892.211. Please provide comment.
22 Thus, the delegate focussed on the difference between the first version of the invoice and the original invoice, and did not make anything further of the second version of the invoice. The delegate also focused on the issue of whether the first version was false or misleading in a material particular, rather than on that document being bogus.
23 The appellant’s (by then new) solicitor wrote three letters in response to the delegate’s request for comment, dated 1, 2 and 9 April 2014, with only the second and third letters requiring consideration:
(1) The solicitor’s second letter (2 April 2014) acknowledged at two places that the first version of the invoice had been altered, but submitted that it should not be considered to be false or misleading in a material particular and that it had been provided to her in that form (necessarily post-issue by the supplier).
(2) The solicitor’s third letter (9 April 2014) submitted that there was no complicity on the part of the appellant in altering the first version of the invoice (necessarily post-issue by the supplier) and that it:
(a) did not have the quality of purposeful falsity and was an unintended and innocent error on the part of the appellant, citing Trivedi v Minister for Immigration and Border Protection [2014] FCAFC 42; 220 FCR 169; and
(b) did not contain information that was false or misleading in a material particular.
24 The solicitor’s third letter (9 April 2014) also asserted, after reviewing the evidence, that the first version of the invoice had been deliberately altered by the appellant’s business partner to “sabotage or at least damage” her visa application, citing and enclosing copies of text messages to establish “vitriol”, “cruelty” and “malice”. The third letter also went on to assert that the alterations were not such as to affect the meeting of the visa criteria, and to seek a waiver of compliance with the criterion that none of the documents furnished be bogus.
25 On 8 July 2014, the delegate refused the grant of the Subclass 892 visa. In doing so, she expressly focussed the decision “solely on the altered document issue”. In her reasons, the delegate acknowledged the appellant’s submissions as to the nature and provenance of the first version of the invoice, but declined to apportion blame as urged by the solicitor’s third letter (9 April 2014), noting that it was not necessary for an applicant to know that the information was bogus or false or misleading in order to fail to meet PIC 4020.
26 The delegate referred to the differences between the original invoice and the first and second versions of the invoice, and why those differences mattered in terms of detracting from the appellant’s claims concerning the visa criterion of direct and continuous management of a main business. The delegate concluded that as the appellant had submitted a document that was false or misleading in a material particular to assessing the visa criteria, she had not satisfied the public interest criterion. The delegate did not address the question of any waiver of that criterion.
Adverse material that was furnished to the Department
27 By the time of the judicial review application, the appellant had become aware of allegations made against her by her business partner to the Minister’s department. Those allegations did not feature in the delegate’s decision. Nor were they expressly referred to by the Tribunal. The Tribunal did, however, refer expressly at the hearing and in its decision to allegations made directly to the Tribunal by the appellant’s business partner. It will be necessary to return to that material in the context of considering the proceedings before the primary judge and her Honour’s reasons.
Before the Tribunal
28 Both the delegate and the Tribunal focussed on whether or not PIC 4020(1) was satisfied, paying close attention to its terms. But only the Tribunal took the additional step of considering waiver of that requirement under PIC 4020(4), again by reference to its terms. The opening two paragraphs of the Tribunal’s reasons reflect aspects of the practical realities referred to above, and the consequential focus on PIC 4020(1) (emphasis added):
This is an application for review of a decision made by a delegate of the Minister for Immigration on 8 July 2014 to refuse to grant the applicants[’] Business Skills (Residence) (Class DF) visas under s.65 of the Migration Act 1958 (the Act).
At the time the visa application was lodged, Class DF contained 4 subclasses … In this case, claims have only been made in respect of Subclass 892. The criteria for a Subclass 892 visa are set out in Part 892 of Schedule 2 to the Migration Regulations 1994 (the Regulations). One of the criteria to be satisfied at the time of decision is cl.892.223 which requires applicants to satisfy public interest criteria including public interest criterion 4020, a copy of which is attached to this decision record.
29 The Tribunal then set out the background to the delegate’s decision under review, referring to the breakdown in the relationship between the appellant and her business partner, but with a focus on the first version of the invoice, concluding on this background summary (at [11]) that:
The delegate observed that there were 3 different versions of the same invoice. She did not accept that the first version of the invoice provided, highlighting the applicant as the contact, was not material or significant in assessing the applicant’s involvement in the business. She noted that the applicant’s name was highlighted on that invoice, drawing the reader’s attention to that detail, emphasising that the applicant was the responsible person in charge of the business. She concluded it was relevant to cl.892.211(1). She formed the view the applicant had submitted, for the purpose of assessing cl.892.211, an altered document which was false or misleading in a material particular and she therefore did not satisfy Public Interest Criterion 4020. She found therefore that the applicant did not satisfy cl.892.223(a) and refused to grant the visas on the basis that the applicant did not satisfy the requirements of cl.892.223 of the Regulations.
30 The Tribunal (at [12]) stated that “[t]he issue in this review is whether the visa applicant meets Public Interest Criterion 4020 (PIC 4020) as required by cl.892.223 for the grant of the visa” and then summarised the terms of PIC 4020.
31 The Tribunal said the following (at [16], emphasis added):
In September 2015 the Tribunal received an anonymous allegation about the applicant’s involvement in the business however the person informed the Tribunal that she is a 39% stakeholder in the applicant’s business so it is apparent to the Tribunal that the allegations have been made by Ms Zhang. The allegation claimed that when the business was not going well the applicant gave the informant money (about $80,000) to ‘spend’ at the shop but nothing was ever actually purchased. The informant stated the shop was closing down. Ms Zhang subsequently provided to the Tribunal some of these particulars in her name. The Tribunal is aware that the applicant and Ms Zhang’s relationship has deteriorated to the extent that they are involved in litigation regarding the winding up of Z J International. Accordingly the Tribunal is of the view that there is a significant risk that Ms Zhang’s allegations may be vexatious and not be reliable. In these circumstances the Tribunal gives no weight to the allegations and does not rely on any of the particulars from the allegations to make its findings.
32 A failure to meet PIC 4020(1) did not turn on any awareness on the part of the appellant that a document was in fact bogus, or for that matter false or misleading in a material particular. The Tribunal was not therefore required to ascertain who was responsible for a document being bogus, although, as it happens, the Tribunal accepted that the first version of the invoice had been emailed to the appellant in its altered state and that she may not have been aware the information was “purposely untrue”. That is because PIC 4020(1) is a criterion addressing the objective status of the document in question, not any state of mind in relation to that status. Establishing complete innocence on the part of the appellant as to the first version of the invoice being bogus could not assist her in satisfying PIC 4020(1). However, as will be seen, the appellant contends that, given such innocence was in fact found by the Tribunal, this would have weighed in her favour on the question of waiver, but for the influence on the Tribunal of the adverse information about her that was provided to the delegate. The Tribunal’s conclusion on this topic was as follows (at [45]):
The applicant has emphatically asserted that she did not know that a bogus document had been provided to the Department and that she was not responsible for the alteration of the document. She has argued that there was no need for the document to be altered because there was already ample evidence of her involvement in the management of the business. While the Tribunal does not need to make findings in relation to whether the definition of main business (r.1.11(1)(b)) is met it has considered the material on the file in relation to the applicant’s involvement. These include financial documents, correspondence, written statements, referees from customers, photographic evidence, and her oral evidence. Overall the Tribunal is satisfied the applicant was involved in the day to day management of Crazy Fish Castle Hill. The Tribunal is of the view the invoice was probably altered to embellish the applicant’s involvement but it is inclined to agree with the applicant that this was not necessary because there was already ample evidence of her involvement in the day to day management of the business. The unfortunate outcome for the applicant is that, because of the finding that a bogus document was provided to the Department, she does not meet cl.4020(1). The Tribunal is of the view however that the particular circumstances in which she fails to meet cl.4020(1) do not allow the Tribunal to lower it[s] assessment in relation to whether there are compelling circumstances that affect the interests of Australia, or compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident, or an eligible New Zealand citizen, that justify the granting of the visa.
33 The Tribunal then considered the appellant’s case for waiver in some detail (at [43]-[58]), concluding (at [59]):
The Tribunal has also considered all of the evidence in relation to waiver cumulatively. It accepts the applicants have settled into the Australian community and make positive contributions in a range of ways. It accepts they have close ties in Australia, to both individuals and organisations. However, while it accepts there are Australian citizens and permanent residents who value their relationships with the applicants, and that the applicants will be missed by those parties, even considering the circumstances cumulatively it is not persuaded these are compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen.
34 The Tribunal also suggested (at [62]) that an approach to the Minister might be appropriate given the circumstances and the effect of the visa refusal on the appellant’s son.
Before the primary judge
35 The appellant unsuccessfully contended before the primary judge that the allegations made to the Minister’s Department about her was information which, it could be inferred, had been considered by the Tribunal to be part of the reason for affirming the delegate’s decision, and therefore were required to be brought to her attention pursuant to the statutory procedural fairness requirement in s 359A of the Migration Act. The primary judge rejected this upon the basis that the Tribunal had, at [16], reproduced above at [31], expressly rejected those allegations, such that they could not have been part of the reason for affirming the delegate’s decision. The appellant maintains that ground of review via ground 1 in her notice of appeal.
36 The appellant also unsuccessfully contended before the primary judge, and maintains via ground 2 on appeal, that the visa application process had been vitiated by fraud by Ms Zhang or alternatively her husband, in the provision of the bogus invoice, in circumstances in which she had no involvement in that conduct, relying upon, inter alia, Maharjan v Minister for Immigration and Border Protection [2017] FCAFC 213; 258 FCR 1. The primary judge rejected this (at [34]), noting that the Tribunal made a clear finding that the appellant’s son had no part to play in giving the document to the Department, but made no such finding in respect of her. Her Honour repeated an earlier conclusion that the Tribunal did not make the finding that the appellant was the victim of third party fraud as pleaded in the judicial review grounds, but rather that the bogus invoice had been altered to assist her and to deceive the Department.
37 The primary judge (at [38]) accepted the Minister’s submission that there was nothing in Maharjan to suggest that a Tribunal’s finding was, of itself, sufficient to discharge the burden of proof in the Federal Circuit Court proceeding to establish fraud. To the contrary, her Honour interpreted the majority in the Full Court to have considered that fraud could only be achieved by a judicial review applicant leading evidence to establish such fraud, which could be subject to cross-examination and evidence in reply. The primary judge noted (at [39]) that counsel appearing before her Honour for the appellant, who is the same counsel on appeal, maintained that fraud could be proved by the findings of the Tribunal alone. Her Honour found that fraud was not proven.
Ground 1 – asserted error in finding no failure to comply with s 359A
Competing submissions – ground 1
38 This ground of appeal relies upon the Tribunal’s reasons at [16], reproduced above at [31]. The appellant submits that disclaimers of consideration of information of this kind should not necessarily be accepted at face value, and that some information is so relevant to the issues that it cannot be said to have been ignored by the Tribunal, citing Applicant VEAL of 2002 v Minister for Immigration [2005] HCA 72; 225 CLR 88 at [26]-[27]; and Khan v Minister for Immigration and Citizenship [2011] FCAFC 21; 192 FCR 173.
39 In Khan, although the Tribunal did not refer to the undisclosed adverse information at all in its reasons, the Full Court found that it was of such significance that it could be inferred that it was necessarily something which had to be a part of the Tribunal’s reasons for affirming the delegate’s decision. Applying Khan, the appellant submits that, contrary to her Honour’s finding at [18] that the allegations had been referred to and given no weight, the Tribunal’s disclaimer at [16] was confined to the allegations made by Ms Zhang to the Tribunal in September 2015 and there was no reference to the earlier allegations made to the Department.
40 The appellant submits that the totality of the allegations made by Ms Zhang to the Department and to the Tribunal were “most relevant” to the issue of waiver in PIC 4020(4). The appellant’s argument on relevance is that:
(1) it was claimed in a letter sent on 21 October 2015 concerning waiver that there were compelling circumstances that affected the interests of Australia, including the appellant’s contribution to local businesses and the community, bilateral business trading between China and Australia, and the integration of new Chinese immigrants into the local community; and there were compassionate or compelling circumstances affecting the interests of a number of named Australian citizens and permanent residents;
(2) if accepted, Ms Zhang’s earlier allegations to the Department amounted to a deliberate and prolonged course of dishonesty by the appellant which could not possibly be in the interests of Australia or support a claim of compassionate and compelling circumstances; and
(3) that those allegations contained on their face a “rejection, denial or undermining” of her claim for a waiver, citing that phrase from Minister for Immigration v SZLFX [2009] HCA 31; 238 CLR 507 at [22]-[23].
41 The appellant also submits that there was policy guidance for the Tribunal, when assessing the waiver, to consider “the severity of the fraud committed by the appellant”, and whether the appellant had “consistently and deliberately defrauded the department by providing false or misleading information and bogus documents in every application made to the department”. Those guidelines are reproduced in the primary judge’s reasons at [50]. The appellant relies upon the observation by Flick J, as a member of the Full Court in Khan (at [82]), that the Department’s policy guidelines had made the information in that case “centrally relevant” to the Tribunal’s consideration. The appellant therefore submits that the primary judge erred in finding (at [20]), that “the proper inference to be drawn in the case before this Court is that none of the Dishonesty Allegations were the reason or part of the reason for the Tribunal’s decision because they were explicitly given no weight and were not relied upon”.
42 The Minister submits that it is important to have regard to the fact that the primary judge (at [19]) found that “[o]n no view could it be found that the Tribunal accepted the Dishonesty Allegations as ‘credible’”, referring to the totality of the allegations made by Ms Zhang and also quoting from the Tribunal hearing transcript where the reference was made to Ms Zhang having a personal and commercial basis to undermine the appellant. The Minister points out that the primary judge went on (at [21]) to record that the Tribunal’s reasons are relevant in assessing whether the information was the reason or part of the reason for its decision and concluded by finding that “the Tribunal stated that it gave the allegations no weight on the basis that they may be vexatious and not reliable” and that her Honour found that in all the circumstances the overwhelming inference was that “that the Tribunal did not regard the Dishonesty Allegations as credible evidence worthy of its consideration”.
43 The Minister submits that such findings addressed the potential trigger for the application of the s 359A requirement to provide information that “would be the reason, or part of the reason” for affirming the decision under review, effectively finding that no such trigger was present. In those circumstances, the Minister submits that excessive focus on the disclaimer in [16] of the Tribunal’s reasons was apt to misdirect attention away from the overall basis upon which the Tribunal in fact approached the issues for determination, in effect, irrespective of how that paragraph is read. The Minister submits that the real significance of [16] of the Tribunal’s reasons is what was said about whether any such adverse information, however described, was treated as credible by the Tribunal; and that there is no indication at any point that any such allegations were treated in that way. The Minister submits that the real question is whether it can positively be shown that Ms Zhang’s allegations could have formed the reason or part of the reason for affirming the delegate’s decision, which was the correct approach taken by the primary judge.
44 The Minister submits that VEAL needs to be approached with care. That cautionary approach should be accepted. In VEAL, the Tribunal stated that it could not make any finding about the matters in the letter the subject of the appeal because it had been unable to test the claims made in the letter. The contents of the letter went directly to the visa criterion of whether the protection visa applicant in that case had a well-founded fear of persecution, including by providing evidence of why he did not wish to return to his country of origin. The Court in VEAL therefore was focused not on the question of whether the Tribunal had disavowed reliance on the letter, but rather whether there was an obligation to provide the letter because of its contents and direct relevance to the decision to be made. The Minister submits that VEAL therefore materially differs from the present case where the primary judge found that the Tribunal had rejected both the evidence in the nature of adverse allegations and its source as forming any part of the Tribunal decision. The distinction identified by the Minister between VEAL and this case should be accepted. That decision does not afford the appellant the support she contends in a relevantly different factual and legal context.
45 The Minister similarly challenges the appellant’s reliance on Khan, a case in which a visa was cancelled upon the basis of fraud. In Khan, somewhat akin to this case, the Minister’s case was that s 359A(1) (introduced to address VEAL) did not apply to the decision made by the Tribunal in that case because there was no indication that the adverse material, by way of accusations made in a letter, were the reason or part of the reason for affirming the delegate’s decision: see Buchanan J at [44]. Buchanan J in Khan (at [45]) said that the Minister’s argument depended upon the reliability of an assumption that the Tribunal had definitely put the allegations out of its consideration at the outset and had other information permitting it to do so. His Honour characterised that assumption as being critical, because otherwise those allegations were clearly relevant to matters that the Tribunal had to consider, including whether the visa holder had breached his visa conditions or been untruthful to the Department. His Honour was of the view that it was very difficult to see how credible information of the kind comprised by the accusations could have been excluded at the outset, as the Minister’s assumption required. The Minister again distinguishes Khan upon the basis that this is not a case in which there is only an assumption that the Tribunal has disregarded otherwise credible information. Rather, the Tribunal made express findings casting doubt on the credibility of the adverse information and made a statement to the effect that no weight had been given to it. It must be accepted that Khan applies only if the characterisation of what happened in this case is apposite to what happened to the appellant, such that it is not open to conclude that the prior allegations were not in play.
46 The Minister submits that:
(1) the reasons of the Tribunal (at [3]-[42]) show that the Tribunal at both the hearing and decision stages prior to considering the question of waiver was solely concerned with the fact of there being a falsified invoice. As concluded by the primary judge, the proper inference to be drawn from the reasons for affirming the delegate’s decision was that the provision of the falsified invoice, and no more, meant that the appellants did not meet PIC 4020(1);
(2) the reasons of the Tribunal at ([43]-[62]), in dealing with the waiver under PIC 4020(4), dealt with the circumstances in which the falsified invoice was provided and whether the evidence provided by the appellant satisfied the Tribunal that there were compelling circumstances of the kind referred to in the criteria for waiver;
(3) the terms of the questioning during the Tribunal hearing and subsequent consideration of the waiver issue show that the Tribunal was concerned with how the appellant’s evidence could support a waiver of the finding about the bogus document, with it being apparent that the Tribunal (at [45]) weighed the fact of the provision of the falsified invoice against the appellants’ other circumstances;
(4) the aspect of the policy guidance in relation to waiver upon which the appellant relies is predicated upon consideration of a fraud found to have been committed by the visa applicant, along with any antecedent fraud by the visa applicant, whereas the Tribunal made no such finding of the appellant committing fraud, either in relation to this visa application, or in the past, so the policy in terms did not apply;
(5) the Tribunal’s disclaimer at [16] constituted a wholesale rejection of the provenance of the allegations and the allegations themselves, not just highlighting that the Tribunal had not had regard to such adverse material, but also confirming what is to be inferred from the transcript of the hearing and from the rest of the reasons, namely that the Tribunal did not consider the allegations or the source of the allegations credible and, in the particular statutory context of s 359A, those matters did not form the reason or part of the reason for affirming the delegate’s decision;
(6) the primary judge was therefore correct in rejecting the appellant’s argument, and in her Honour’s analysis (at [21]), which did not involve any error of principle, such that the inference her Honour drew from the Tribunal’s reasons was a proper one, giving rise to no appellable error.
Consideration – ground 1
47 Repeating the effect of the summary above at [15]-[18], the first version of the invoice provided by the appellant had the appellant’s name highlighted above the company name as the addressee and also had her name and details as the contact person. A check by the delegate with the issuer of the original invoice revealed that the first version had been altered, relevantly adding the appellant’s name and company name in place of the business name of the store (Crazy Fish – Castle Hill), and Ms Zhang’s name as the contact person above Ms Zhang’s email address. It was not in dispute that an invoice furnished by the appellant had been altered, nor that the alteration fell within the definition of being “bogus”. The Tribunal’s findings in that regard warrant reproduction (at [41]-[42]):
The Tribunal accepts that the applicant did not herself alter the invoice: It accepts that the invoice in its altered state was emailed to her by Jason Yang, Ms Zhang’s husband. However it finds, having been altered, the document is no longer a genuine invoice issued by Shanghaied but an imitation of the invoice issued, designed to pass as the original. The Tribunal finds therefore that the invoice referring to the applicant as the business contact person is counterfeit. The Tribunal is of the view the alteration was intended to deceive the Department in relation to the applicant’s involvement in dealing with Shanghaied. The Tribunal accepts that the applicant may not have been aware the information was purposely untrue. However, it is satisfied there [was] an element of fraud or deception, probably by Jason Yang or Ms Zhang, employed to mislead … the Department with respect to the applicant’s dealings, in this case, with Shanghaied.
Accordingly the Tribunal finds that the invoice provided to an officer of the Department dated 8 March 2012 purporting to be issued by Shanghaied (invoice 49874), addressed directly to the applicant and recording the business contact: ‘Ryland Jiang’ is a bogus document within the meaning of s.5(b) of the Act. The Tribunal therefore finds that there is evidence that the applicant has given or caused to be given, to the Minister, or an officer, a bogus document in relation to the application for the visa. The Tribunal finds, therefore, that the applicant does not meet PIC 4020(1).
48 A live dispute before the primary judge and in this Court was whether the Tribunal had made any determination as to the appellant not being sheeted with responsibility for that having happened. The question of whether the Tribunal went further and made any finding, or had sufficient material before it to make a finding, that someone else was responsible in a way that constituted a fraud, in effect, on the appellant, is the substance of appeal ground 2.
49 The primary judge had the benefit of detailed submissions from the appellant as to the facts and circumstances of her visa application and merits review process, which were not disputed by the Minister, and were therefore adopted by her Honour verbatim and at some length. It is only necessary to go into that degree of detail in the determination of this appeal to the extent that it is necessary to adjudicate upon the competing arguments.
50 It is important to keep steadily in mind a number of practical considerations that inform the approach to be taken by the Tribunal on review, and thus when reading Tribunal decisions beneficially as required. The Tribunal is not confined to the basis for the delegate’s decision because it is a merits review in the shoes of the original decision-maker, not an appeal. As a practical matter, however, the approach of a delegate, and the particular legal and factual issues identified in the delegate’s reasons, will frequently be of considerable importance in framing the issues to be determined in that merits review. The treatment of the material before the delegate may also have a material bearing upon procedural fairness obligations, and also upon the scope of claims required to be considered by the Tribunal. In migration matters, especially beyond the more open-ended considerations affecting the revocation of a mandatory visa cancellation on character grounds, the processes of the Tribunal may require the review applicant to identify the issues that require consideration as part of merits review.
51 The sheer volume and diversity of merits review of migration decisions will tend to encourage an approach of making decisions on the simplest and most straightforward basis available. It should not be too readily inferred that a convoluted or complex approach was taken by the Tribunal when a simple approach would suffice for the decision required to be made. If one particular consideration is fatal to reaching a different ultimate conclusion to that reached by the delegate, even if on entirely different grounds, it may not be necessary to consider all other issues to complete the jurisdictional task. Consideration of those issues could amount to a form of administrative decision-making obiter dicta, which cannot be required in the proper exercise of jurisdiction (except, perhaps, in the context of refugee claims, with the possible need in that context and in some circumstances for the decision-maker to consider the possibility that a fatal adverse factual conclusion or prediction was incorrect).
52 The competing arguments ultimately turn on the characterisation of [16] of the Tribunal’s reasons, in the context of the rest of those reasons, and the evidence of what took place at the Tribunal hearing. The effect of the appellant’s argument is that the prior allegations made to the Department, of which she only apparently became aware of later, remained in play or at least were not so clearly rejected as to know that they were not influential in the final waiver decision. The Minister’s contrary arguments are summarised above. It cannot be in doubt that the appellant made a wholesale attack on Ms Zhang’s credibility, and that the Tribunal was well aware, to put it colloquially, that Ms Zhang had an axe to grind.
53 It is helpful at this stage to reproduce [16] of the Tribunal’s reasons a second time:
In September 2015 the Tribunal received an anonymous allegation about the applicant’s involvement in the business however the person informed the Tribunal that she is a 39% stakeholder in the applicant’s business so it is apparent to the Tribunal that the allegations have been made by Ms Zhang. The allegation claimed that when the business was not going well the applicant gave the informant money (about $80,000) to ‘spend’ at the shop but nothing was ever actually purchased. The informant stated the shop was closing down. Ms Zhang subsequently provided to the Tribunal some of these particulars in her name. The Tribunal is aware that the applicant and Ms Zhang’s relationship has deteriorated to the extent that they are involved in litigation regarding the winding up of Z J International. Accordingly the Tribunal is of the view that there is a significant risk that Ms Zhang’s allegations may be vexatious and not be reliable. In these circumstances the Tribunal gives no weight to the allegations and does not rely on any of the particulars from the allegations to make its findings.
54 As noted above, the Minister argues that the Tribunal was at [16] referring to all of the allegations made by the appellant’s business partner, Ms Zhang, including those made to the delegate, and not confined to those made to the Tribunal. The appellant argues to the contrary that the Tribunal was referring only to the allegations made to the Tribunal, and that the parallel and earlier allegations made to the delegate remained in play. Even a beneficial reading of the Tribunal’s reasons at [16], if read in isolation, do not support the Minister’s interpretation; and the appellant’s literal interpretation of the words used appears to be correct. But those words are not to be read in isolation, but rather in context, and in a practical and realistic way, which can be, and in this case is, part of the substance of a beneficial reading.
55 An available inference is that the Tribunal was not aware of the allegations made to the Department; and no evidence was before the primary judge or this Court to show otherwise. But even if that was not correct, and the Tribunal was fully aware of the allegations made to the Department and thus to the delegate, the appellant was unable to explain why the Tribunal would have any regard to those allegations whilst putting to one side allegations made directly to it, let alone to do so without referring to that material in circumstances in which there had been a direct attack on Ms Zhang’s motives and thereby credibility. The literal inference relied upon by the appellant as to the allegations made to the delegate remaining in play does not make any sense, even in relation to the wavier issue. A contextual and logical beneficial reading does not support the appellant’s argument that the prior allegations by Mr Zhang that were before the delegate remained in play once similar allegations made directly to the Tribunal were overtly put to one side.
56 I am fortified in that conclusion by a number of features of this case, both implicit and overt, having read and carefully considered both the Tribunal reasons and the transcript of the Tribunal hearing.
57 As to the implicit features of this case, the Tribunal necessarily had a powerful and proper incentive to decide the case without determining the question of how, in fact, the bogus invoice had come into existence and who was responsible for that taking place. That was especially so when Ms Zhang did not have any opportunity to be heard. Such serious allegations are only going to be finally resolved in a non-adversarial Tribunal setting if that is truly necessary to the making of the decision. In relation to waiver, there was nothing to suggest that the Tribunal’s consideration of the express criteria would ordinarily be affected by credit reasoning of the kind that the appellant relies upon. This is quite unlike the situation in Khan in which it was difficult to accept that the material that was not mentioned would not have featured in the reasoning process. An inference that such reasoning was in play here is not rationally, let alone readily, drawn.
58 As to the overt features of this case, it is necessary to have regard to what took place at the Tribunal hearing, and what was said in the Tribunal’s reasons to determine if that establishes any proper basis to support the same inference in the absence of any reference to the prior allegations made by Ms Zhang to the Department. I accept the Minister’s submissions in that regard: the Tribunal’s reasons demonstrate a two stage process, concerned with whether the first version of the invoice was bogus; and then with the question of whether the requirement not to have a bogus document was waived. The waiver stage focussed on whether there were compelling circumstances of the kind referred to in the criteria for waiver, weighing the fact of the provision of the falsified invoice (there being no finding of fraud by the appellant) against the appellants’ other circumstances. In those circumstances, the Tribunal’s disclaimer at [16] could be read more broadly to constitute a wholesale rejection of reliance upon any allegations made by Ms Zhang, especially in the context of the transcript of the hearing. Thus, there is no realistic possibility that those allegations formed the reason or part of the reason for affirming the delegate’s decision.
59 Further support for the Minister’s submissions can be gleaned from the Tribunal hearing transcript. At the hearing, the Tribunal made reference to the dispute concerning the business, with the Tribunal member saying (at page 3, line 25) that she was “not looking at the sale of the business and who should get what and who owes that, but – too complicated for me to have to make findings about that”. The Tribunal then referred to being greatly assisted by submissions made on behalf of the appellant and referred to the original invoice and the first version of the invoice. The Tribunal member said (at page 19, line 38) that the focus as to the visa criteria had to be on whether the first version of the invoice was (in fact) a bogus document. The Tribunal member said at page 20, line 24 that she understood that the relationship between the appellant and Ms Zhang “went very bad”. On the topic of the waiver, the Tribunal member was focussing on waiver conditions, with no suggestion in the subsequent transcript hearing pages that there was any issue on the waiver question as to the appellant’s credibility, expressly saying (at page 28, line 43) that the member did not wish to go back to who was responsible for trying to show, via the changes to the invoice, that the appellant was involved in the day to day management of the business. The appellant’s representative expressly embraced that approach. Close to the end of the hearing, the Tribunal member said (page 29, line 5):
I have to think about it really carefully. I appreciate that you’ve been living here as a resident of Australia and your son came here as a young boy and he’s doing well at school. There’s a lot at stake.
60 The Tribunal’s reasons addressed the issue of the bogus document under the heading of waiver, a part of which warrants reproduction (from part of [45]):
The Tribunal is of the view the invoice was probably altered to embellish the applicant’s involvement but it is inclined to agree with the applicant that this was not necessary because there was already ample evidence of her involvement in the day to day management of the business. The unfortunate outcome for the applicant is that, because of the finding that a bogus document was provided to the Department, she does not meet cl.4020(1). The Tribunal is of the view however that the particular circumstances in which she fails to meet cl.4020(1) do not allow the Tribunal to lower it[s] assessment in relation to whether there are compelling circumstances that affect the interests of Australia, or compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident, or an eligible New Zealand citizen, that justify the granting of the visa.
61 The comments above indicate a somewhat sympathetic stance towards the appellant.
62 The Tribunal’s reasons then consider the waiver criteria (at [46]-[58]) concluding on this topic (at [59]):
The Tribunal has also considered all of the evidence in relation to waiver cumulatively. It accepts the applicants have settled into the Australian community and make positive contributions in a range of ways. It accepts they have close ties in Australia, to both individuals and organisations. However, while it accepts there are Australian citizens and permanent residents who value their relationships with the applicants, and that the applicants will be missed by those parties, even considering the circumstances cumulatively it is not persuaded these are compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen.
63 There is simply nothing to support the suggestion that the Tribunal made the decision on the waiver issue by reference to hidden adverse character considerations of the kind that the appellant relies upon. In context, it is impossible to accept that those prior allegations remained in play. In this case, the absence of a reference to the prior allegations, rather than supporting an inference that they remained in play and could have in some way tainted the Tribunal’s reasoning on waiver, supports the clearest of inferences in context that they were not referred to because they were not in any way taken into account by the Tribunal. The conclusion reached in Khan is therefore not available to be reached in this case.
Conclusion – ground 1
64 The above reasoning means that, while I differ to an extent from the primary judge’s reasoning as to how the Tribunal’s reasons at [16] are to be literally understood, I reach the same conclusion, in an appeal by way of rehearing, that the Tribunal did not have regard to the prior allegations by Mr Zhang to the Department that were before the delegate. The ultimate conclusion that her Honour reached that those allegations were not considered in making the waiver decision was correct. This ground of appeal must therefore fail.
Ground 2 – asserted error in failing to find third party fraudulent conduct
Competing submissions – ground 2
65 The appellant submits that the fraudulent conduct of Ms Zhang, and probably that of her husband, Jason Yang, vitiated the visa application process, relying upon Maharjan, Gill v Minister for Immigration and Border Protection [2016] FCAFC 142; 248 FCR 398 and Singh v Minister for Immigration and Border Protection [2016] FCAFC 141; (Singh 247 FCR 554) as authority for the proposition that “where an applicant has claimed that there has been fraud by a third party on the visa applicant in relation to the visa application process, thereby putting into issue the validity of the visa application, the question of whether the visa application is valid will involve consideration of the appellant’s knowledge of and involvement in the fraud”. The appellant cites the characterisation of the principles from those cases in Singh v Minister for Immigration and Border Protection [2018] FCA 1392 at [10] (a case unrelated to Singh 247 FCR 554).
66 The appellant accepts and endeavours to embrace the conclusion of the majority in Maharjan (at [78]), that where third party fraud is alleged she bears the onus of proving that “she or he has been the (innocent) victim of such a fraud” and that she must also satisfy the court to the requisite standard that she was neither complicit in the fraud nor “indifferent” to it as discussed in Gill at [48]-[50] and in Singh v Minister for Immigration and Border Protection [2018] FCAFC 52 at [144]. The appellant acknowledges that the primary judge (at [28] and [34]) did not accept her contention that the Tribunal had concluded that the appellant had been the innocent victim of the fraudulent conduct of Ms Zhang and her husband, and therefore found that Maharjan did not apply. However, the appellant submits that her Honour erred in stating (at [38]) that the majority in Maharjan considered that such proof of fraud had to be established by the calling of evidence that could be the subject of cross-examination or contrary evidence.
67 The appellant submits that while the majority in Maharjan did (at [33] and [113]) allude to viva voce evidence to establish absence of complicity or indifference, this is not always necessary and was not necessary in this case. The appellant submits that the correct principle is that a claim by a visa applicant to have been an innocent victim of third party fraud is a matter for the Court to determine for itself based on the evidence before it and that such fraud is capable of being established by the findings of the Tribunal below, citing Gill at [17].
68 The appellant seeks to distinguish the facts in Gill and Singh 247 FCR 554, because in those cases the alleged fraud came from the appellant’s migration agent, raising questions of agency and the possibility that each appellant had been complicit in the agent’s misconduct. By contrast, the appellant submits that her case involves no agency relationship between her and Ms Zhang or Ms Zhang’s husband. To the contrary:
(1) the appellant and Ms Zhang (and thereby Ms Zhang’s husband) were in conflict at the time that the first version of the invoice was provided to the Department; and
(2) the Tribunal:
(a) at [41] accepted that the appellant did not herself alter the invoice and may not have been aware that the information in the altered invoice was purposefully untrue;
(b) at [41] was also “satisfied that there [is] an element of fraud or deception, probably by Jason Yang or Ms Zhang, employed to mislead lead the Department with respect to the applicant’s dealings”;
(c) at [45] was “inclined to agree” with the appellant that there had been no need to provide the altered invoice as there was already ample evidence of her day-to-day involvement in the business; and
(d) expressed sympathy by describing the finding that there had been a bogus document as an “unfortunate outcome”, and taking a sympathetic and careful consideration of the appellant’s request for a waiver (at [46]-[58]) and (at [59]) accepting her as a person who had made “positive contributions” to the Australian community “in a range of ways”.
69 Each of the above points may be accepted, as far as they go.
70 The appellant also relies upon the Tribunal’s suggestion that she approach the Minister to request that he intervene to allow her and her child to remain in Australia. She submits that there is “no way that the Tribunal would have treated the appellant’s evidence in this way, had it considered that she was not an innocent victim of the third party fraud”. Thus, the appellant contends that it may be inferred from the evidence and findings by the Tribunal that the appellant was the innocent victim of third party fraud, and accordingly there was no need for the appellant to be called before the Court below to give oral evidence on this issue.
71 The appellant submits that the effect of the fraudulent conduct of Ms Zhang (and perhaps also her husband) established in this way vitiated her original visa application and that, applying Minister for Immigration v Bhardwaj [2002] HCA 11; 209 CLR 597 at [8] and [53], the Minister is required to “self-correct” or proceed to make a fresh decision with respect to the visa application.
72 The Minister urges a very different approach and thereby dismissal of this ground of appeal, submitting that:
(1) invalidity of a visa application is necessarily a jurisdictional fact to be determined by the Court conducting the judicial review, citing in particular Maharjan at [102]-[106], Gill at [17] and Singh 247 FCR 554 at [52];
(2) in Singh 247 FCR 554, the Full Court also confirmed (at [52]) that a Court exercising judicial review in cases of alleged fraud going to the jurisdiction of the administrative decision-maker would also need to consider whether that fraud “stultified” some relevant aspect of the decision-making process;
(3) in Maharjan, the Full Court stated (at [103]) that there must be a fraud “on” the administrative decision-maker, in the sense that it stultified or adversely affected the decision-making process;
(4) Maharjan is also authority (at [102]) for the proposition that an applicant would be required to prove the fraud and satisfy the Court that the applicant was neither complicit in the fraud nor indifferent to it;
(5) in the context of the authority referred to above, in this case it is not controversial that the facts raised the possibility that there had been a third party fraud on the appellant, with her evidence before the Tribunal at least implicitly advancing such an explanation by identifying Ms Zhang and Mr Yang as the people responsible for falsifying the first version of the invoice;
(6) this issue was squarely raised before the primary judge, and her Honour was therefore required to determine the issue of fraud, and whether the delegate’s processes had been stultified;
(7) Maharjan does not support the proposition that a reviewing court may rely on the findings of the Tribunal alone for the purposes of proving a jurisdictional fact.
73 The last point above concerning the scope of Maharjan may be so, especially given what took place in that case. However, it is not necessary to decide that, in all cases, fraud of the kind required, and lack of complicity, or involvement or indifference by the visa applicant, must be proven by reference to additional material to that which was before the Tribunal. However there would have to be very clear evidence before the Tribunal, or arising from findings of the Tribunal, especially in a case such as to this, to show the lack of requisite involvement or indifference on the part of the visa holder or applicant where fraud is found to have taken place, so as not to require additional evidence in a judicial review challenge upon such a basis. The absence of such additional evidence will be especially difficult to overcome when the issue is raised before the Tribunal, but no clear finding is made as to lack of responsibility on the part of the visa holder or applicant. The appellant had an onus to discharge on this issue.
74 The Minister submits that the appellant made a forensic choice to prove lack of knowledge on her part by reference to the Tribunal’s findings alone, as the primary judge noted at [39]. The appellant did not lead any evidence before the primary judge about her knowledge or demonstrate how the delegate’s decision was relevantly affected, in circumstances in which the delegate (and the Tribunal) was expressly dealing with the fact that the first version of the invoice was not genuine. Her Honour found that the Tribunal did not make a finding as to the appellant’s involvement and therefore rejected the appellant’s case that the Tribunal’s findings extended to a determination of her lack of involvement or complicity.
75 As the Minister acknowledges, the Tribunal accepted that the appellant did not herself alter the first version of the invoice. However, the Minister submits that neither that finding, nor any of the other findings or other material relied upon by the appellants, logically foreclosed the possibility that the first appellant had some degree of knowledge or “indifference” (per Gill), with a similar conclusion being reached by the primary judge (at [43]). The Minister submits that the Tribunal did not need to make any finding about the appellant’s involvement because that was not necessary in order to conclude that PIC 4020(1) had not been satisfied. Thus, the Minister submits, her Honour’s adverse conclusions at [40] and [43] were available on the evidence and correct. On the Minister’s argument, her Honour did no more than reject the appellant’s asserted evidentiary basis for her claim that the she was shown to be an innocent victim of the fraud, as underscored by her Honour’s observation at [41] as to the evidence that the appellant could have relied on had this opportunity been taken.
76 The Minister further submits that the primary judge was not persuaded that the delegate’s decision was stultified, a fact that the appellants were required to establish. Thus, the Minister submits, her Honour’s rejection was available on the evidence in circumstances in which the delegate was aware of the falsification of the first version of the invoice and invited the appellants to withdraw. There was nothing to prevent the appellants from pursuing a new application without the falsified invoice.
77 The Minister therefore submits that her Honour’s finding was correct on this issue, and that this should not be disturbed.
Consideration – ground 2
78 Each of the first six points made by the Minister summarised at [72] above should be accepted, as should the balance of the Minister’s submissions except as to [72(7)] for the reasons expressed at [73]. As to the submissions for the appellant described at [68] above to the effect that there was no way in which the Tribunal could have considered that she was not an innocent victim of third party fraud, the central problem for the appellant is not her sole reliance on what took place before the Tribunal as a concept, but rather the content of that material. As the consideration above in relation to ground 1 illustrates, the Tribunal avoided, both at the hearing, and in the reasons, reaching any concluded view about the appellant’s involvement in, or knowledge about, the change that had been made to the original invoice that, perhaps unnecessarily, was supportive of her application for the visa.
79 The nature of the PIC 4020 determination and the available grounds for waiver did not require the Tribunal to reach any concluded view about the appellant’s involvement. For the reasons expressed at [50]-[51] and [57]-[59] above, it was both open and reasonable for the Tribunal not to determine something so extraneous to what it had to decide. The Tribunal’s reasons, at most, gave the appellant the benefit of the doubt and expressed some sympathy for her predicament given that the bogus invoice was probably unnecessary in order to address the visa criterion to which it was directed. But the Tribunal cannot be said to have excluded the reasonable possibility of involvement or indifference on her part, because it was not required to do so. In those circumstances, the Tribunal’s reasons did not provide the appellant with sufficient material to adequately distance herself from what had happened, so as to discharge the necessary onus to establish so serious a matter as fraud amounting to the absence of a necessary jurisdictional fact, being a valid visa application, entitling the appellant to start again.
80 I accept the Minister’s submission that the primary judge was correct to reach the conclusion that the onus was not established, and that the Tribunal had not made the finding that the appellant needed. Thus her Honour was entitled not to be satisfied, on the balance of probabilities, that the appellant was neither complicit, nor indifferent, to the provision of a bogus document. I would have reached the same conclusion on the material that was before her Honour that the necessary onus was not discharged.
Conclusion – ground 2
81 Ground 2 must fail. The primary judge was correct to conclude that an invalid and vitiating visa application was not established.
Conclusion on the appeal
82 The appeal must be dismissed. There is no reason why the first appellant should not pay the Minister’s costs.
I certify that the preceding eighty-two (82) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bromwich. |
Associate:
