FEDERAL COURT OF AUSTRALIA

Prodduturi v Minister for Immigration and Border Protection [2015] FCAFC 5

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent’s costs.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

PERRAM AND PERRY JJ:

Introduction

1    This is an appeal from the Federal Circuit Court. It dismissed the appellant’s application for constitutional writs directed to the Migration Review Tribunal. That Tribunal, in turn, had affirmed an earlier decision of a delegate of the Minister administering the Migration Act 1958 (Cth) (‘the Act’) to refuse the appellant a visa known as a Skilled (Provisional) (Class VC) subclass 485 visa. The subclass 485 visa is a class of temporary visa granted to international students who have recently completed their education in Australia permitting them to work for a period in Australia. It is available not only to those who have studied for a degree but also to those who have studied for a trade. There are many requirements which must be satisfied in order to be entitled to the grant of such a visa. These are set out in Pt 485 of Sch 2 to the Migration Regulations 1994 (Cth) (‘the Regulations’). An applicant is obliged to satisfy these requirements because of the combined operation of s 31(3) of the Act (which allows the Regulations to ‘prescribe criteria’ for the grant of classes of visas) and reg 2.03 of the Regulations which provides that the criteria set out in Schedule 2 are the ‘prescribed criteria’ which must be satisfied.

2    For the purpose of this appeal only two of these ‘prescribed criteria’ are relevant, cls 485.221(1) and 485.224. At the time of the visa application and the delegate’s decision these criteria were:

‘485.221(1)    The skills of the applicant for the applicant’s nominated skilled occupation have been assessed by the relevant assessing authority as suitable for that occupation.

….

485.224    The applicant:

(a)    satisfies public interest criteria 4001, 4002, 4003, 4004, 4005, 4010 and 4020; and

(b)    if the applicant had turned 18 at the time of application – satisfies public interest criterion 4019.’

3    We deal with cl 485.224 in more detail below at [6] but for present purposes the relevant public interest criterion for this appeal was public interest criterion 4020 (‘PIC 4020’) and it required the delegate to be satisfied that there was no evidence that the appellant had caused to be given to the Minister (or his delegate) information which was misleading. As for cl 485.221(1), the appellant was a cook so that it required him to demonstrate that he had been assessed as a cook by an assessing authority in the 3 years preceding his application for the visa. That application was lodged on 8 September 2011 so the assessment was required to have occurred after 8 September 2008.

4    The visa application which was submitted to the Department identified the appellant’s trade as that of a ‘cook’ and asserted that an entity called Trades Recognition Australia (‘TRA’) had assessed him as such on 24 October 2010 and had issued an assessment to that effect identified by the serial number ‘TRA10/547924987’. The delegate ascertained that this was not true and that TRA had neither assessed the appellant nor issued him with that or any other serial number. Indeed, it was not in dispute on this appeal (or at any other stage of the litigation) that the appellant had never been certified as a cook by any assessing authority. The immediate consequence of this is that the appellant was never able to satisfy the requirements of cl 485.221(1) and was not entitled, either at the time of the visa application or even now on this appeal, to the grant of a subclass 485 visa.

5    Indeed, it is the appellant’s affirmative contention on this appeal that he was never qualified for this visa and has never been entitled to it. Since this Court is hearing an appeal from a court which declined to interfere with a decision of the Tribunal refusing to grant the appellant a subclass 485 visa and since the appellant submits, and the Minister agrees, that he is not entitled to that visa it might well be asked what the point of this appeal is. The Minister not only asks that question but submits that the appeal lacks utility because the Tribunal is bound not to grant the appellant a visa even if its decision is set aside for some reason and it is required to conduct its review again.

6    The appellant’s answer to that contention is that the delegate’s conclusion that he did not meet the requirements of cl 485.224 had consequences ranging beyond the mere refusal of his subclass 485 visa. This is because the Regulations also prevent (subject to Ministerial dispensation) a person who has failed to satisfy PIC 4020 from obtaining a visa to which PIC 4020 applies for 3 years from the date of refusal of the person’s visa application. This prohibition emerges from the language of PIC 4020. PIC 4020 is located in Schedule 4 to the Regulations and was in these terms:

‘(1)    There is no evidence before the Minister that the applicant has given, or caused to be given, to the Minister, an officer, the Migration Review Tribunal, a relevant assessing authority or a Medical Officer of the Commonwealth, a bogus document or information that is false or misleading in a material particular in relation to:

(a)    the application for the visa; 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 the application;

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).

(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: Regulation 1.03 defines “bogus document” as having the same meaning as in section 97 of the Act.’

7    There are a number of features of PIC 4020 which should be observed. First, sub-cl (1) erects the substantive requirement that the visa applicant should not have provided information to the Department which was misleading. Secondly, sub-cl (4) provides for a dispensing power so that the Minister can grant a visa even though an application contains misleading information if he or she chooses to do so. Thirdly, and this lies at the heart of the appeal, sub-cl (2) effectively makes any person who fails to satisfy sub-cl (1) ineligible for any visa which has PIC 4020 as one of its eligibility criteria (there are, it should be noted, very many such visas). Thus where a visa applicant fails to satisfy PIC 4020 because an application contains a misleading statement the consequence, in substance, (and subject to the Ministerial power of dispensation in sub-cl (4)) is to prevent the visa applicant from applying for most classes of visa for a period of 3 years.

8    The appellant seeks, therefore, the setting aside of the Tribunal’s decision not because he believes himself to be entitled to a subclass 485 visa but because he wishes to be relieved of the consequence that PIC 4020 has for him in any other visa application he might make: that is, that any fresh application by the appellant for a visa before 27 April 2015 is liable to be refused by reason of PIC 4020(2).

9    The appellant’s primary submission was that he had not failed to satisfy PIC 4020 and that the delegate and the Tribunal had erred in reaching the contrary conclusion. In the Court below the appellant argued that he was not to be held responsible for the misstatement in the visa application because he had told his migration agent (who lodged the application) not to apply for the visa if he was not entitled to it and that it was his migration agent who had made up the false TRA reference and not him. In short, it was a case of fraud by the migration agent. Both before the Tribunal and the Court below some substance was given to that case, at least as a matter of impression, by the fact that the migration agent in question had been investigated by the Department in relation to the making of false statements in visa applications.

10    The Tribunal found that the appellant knew that the migration agent was going to make the application. Whilst it accepted that the appellant did not know of the false statement about the TRA reference it thought that this was because the appellant was indifferent to the contents of the application. On those factual findings it concluded that the appellant was responsible for the misleading statement even if he lacked actual knowledge of it.

11    The Court below, on the other hand, concluded that the appellant had not proved that the migration agent had acted fraudulently and, since he bore the onus of proof, concluded that his case was not made out. It also concluded that the appellant was responsible for the misleading statement because he was aware that the visa application was being made even if he did not know precisely what was in it. There is an uneasy tension between these two factual findings which leave unidentified who, in fact, made the misleading statement. The Court also explicitly invoked the idea that the allegation was a serious one involving, as it did, the conclusion that the migration agent would have breached both the Act and the Migration Agents Regulations 1998 (Cth). His Honour therefore applied s 140 of the Evidence Act 1995 (Cth) which requires a court when considering whether a fact has been proven on the balance of probabilities to take into account ‘the gravity of the matters alleged’.

12    Although the appellant had given evidence before the Tribunal he did not give evidence in the Court below. The transcript of his evidence before the Tribunal was nevertheless before the Court. In addition to its conclusions based upon s 140, the Court indicated that it was disinclined to give too much weight to the appellant’s version of events as contained in that transcript when he had not made himself available for cross-examination before it.

The Issues on the Appeal

13    The foregoing is sufficient to identify the four basic issues which arise on the appeal:

1.    Did the Court below err in taking into account the seriousness of the allegation against the migration agent in finding that the appellant had not discharged his onus of proof? Here the appellant contended that the fact that the migration agent had behaved fraudulently was not in issue before the Court below and was accepted on both sides. The actual issue was whether the appellant was either complicit in that fraud (in the sense of having instructed the migration agent to commit it) or, if not complicit in it, at least legally responsible for it (by reasons of agency and the like). In either case, the serious misconduct by the migration agent was assumed by both parties and the debate before the Court below took as its point of departure the existence of the fraud as a fact not in dispute. For the Minister, it was submitted that the question to be determined by the Court below was whether the appellant was himself a victim of the fraud and this involved serious conclusions to which s 140 might attach. This issue was raised by Ground 9 of the amended notice of appeal.

2.    Did the Court below err because it did not conclude that the visa application was vitiated by fraud? Here the appellant took issue with the Tribunal’s conclusion that the visa application had been lodged with his knowledge and that he was indifferent to its contents. He sought the upholding of the evidence he had given to the Tribunal that he had told the agent not to apply for the visa unless he met the qualifying criteria for it. If that fact were accepted it then formed the basis for a contention that the agent had acted outside the scope of his authority. By and large this ground involved multiple challenges to the facts as found by the Court below. A particular aspect of the challenge related to the reasoning of the Court below on the fraud issue which used the appellant’s failure to testify before it as a reason for discounting the value of his evidence contained in the transcript of the hearing before the Tribunal. The appellant contended that he had given evidence on oath before the Tribunal and this was in evidence before the Court below. It was not the case, therefore, that he had not given evidence in circumstances where he might ordinarily have been expected to because he had, in fact, given that evidence by means of the transcript. The Court was therefore said erroneously to have drawn a Jones v Dunkel (1959) 101 CLR 298 inference against him in circumstances where he had given evidence. For the Minister it was said that the Court below had not drawn a Jones v Dunkel inference but merely made the correct observation that the evidence had not been tested by cross-examination and might therefore legitimately be given less weight on account of its untested nature. These various issues related to Grounds 1 and 3 in the amended notice of appeal.

3.    Was the appellant responsible for the misleading statement in the visa application? The appellant submitted that on the facts he contended for he was not to be held liable for the migration agent’s misstatement. This relates to Grounds 1 and 3.

4.    Was there any utility in the appeal? The appellant submitted that the fraud of the migration agent had meant that the application which had been lodged on his behalf had not been a valid application. Consequently, the delegate had had no power to consider it, whether by acceding to it or by refusing it; more pertinently, she had had no power to find that PIC 4020 had not been satisfied. It followed that the delegate’s original decision was also invalid. That invalidity then had a consequential effect in relation to the review proceedings before the Tribunal which could not have been valid either if there had been no valid application for a visa. Consequently, the decision of the Tribunal was to be set aside. In this Court, but not in the Court below, an order was also sought setting aside the delegate’s decision.

First issue: the seriousness of the allegation of fraud against the migration agent and s 140 of the Evidence Act 1995 (Cth) – Ground 9

14    It does not appear to have been in dispute that the false statement contained in the visa application had been made by the appellant’s migration agent without his actual knowledge. The visa application which was lodged did not declare the existence of a migration agent but it has been accepted at every level of this litigation that the appellant was assisted by a firm of migration agents known as S & S Migration. There was nothing on the face of the visa application suggesting the existence of that migration agent. It is clear, however, that the delegate knew that the appellant’s personal details and his visa application number had been found amongst files held by S & S Migration, and that that firm had been found (by whom is not entirely clear) to have lodged applications with the Department which contained false and misleading information. This is clear because the Department’s Graduate Processing Centre wrote to the appellant drawing these matters to his attention and pointing out that the statement in the visa application that he had been assessed by TRA as a cook was false and that they had no record of him. It was this information which motivated the Department to give the appellant an opportunity to make submissions as to why the application did not contain misleading information and hence why it was he could satisfy PIC 4020. This email was sent on 17 February 2012. There is some debate as to whether this email was received by the appellant but nothing turns upon this for present purposes.

15    The delegate considered this information when making her decision. Although the events described above did not inevitably mean that it was the migration agent who had made the misleading statement about TRA, it certainly was capable of supporting a conclusion to that effect. The delegate did not make an explicit finding about who committed the fraud, but this was no doubt because the appellant had not responded to the email of 17 February 2012 (he says because he did not receive it) and she therefore proceeded on the basis that the misstatement was one for which the appellant was responsible without any detailed analysis of why that was so. This was an unsurprising response in the apparent absence of any submission from the appellant.

16    On the other hand, the Tribunal did make a finding about what had occurred. It said:

‘…The applicant instructed S&S Migration to lodge an application for the subclass 485 visa on his behalf. The applicant paid a fee to the agent to do so. The applicant left the details of the application to the agent. He appeared to have been indifferent as to the content or the nature of his application. The Tribunal is satisfied, having regard to the applicant’s circumstances, that having instructed an agent to file an application on his behalf and having paid a fee to do so, the agency agreement was established and the agent acted on the applicant’s behalf by lodging the application for the subclass 485 visa. The Tribunal finds that the application for the subclass 485 visa was validly made.’

17    This is only consistent with the proposition that the false statement about TRA must have come from S & S Migration: the Tribunal’s finding was that the appellant had left the details to the agent and was ‘indifferent as to the content or the nature of his application’.

18    When the matter proceeded to the Federal Circuit Court these then were the facts which had been found by the Tribunal. The contention which the appellant was advancing at first instance in that Court was that the Tribunal had lacked jurisdiction to entertain the matter because of the fraud of the migration agent. This had the procedural consequence, contrary to the Federal Circuit Court’s conclusion at [41], that on the issue of whether there had been fraud, the Court below was entitled to come to its own view on the facts as to the alleged fraud because they were jurisdictional in nature: Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135 at 155 [48], 158 [60]. Thus the fact that the Tribunal had itself accepted that the agent was at least the origin of the misleading statement did not bind the Federal Circuit Court necessarily to the same conclusion.

19    In this case, however, it is apparent that the Tribunal’s conclusions on this issue did form the background against which the hearing before the Court below was then conducted. The Minister’s written submissions before the Court below did not cavil with the proposition that S & S Migration was the source of the false statement but contended instead (at [6]) that the appellant had failed to prove that he was not himself complicit in that fraud. And, in the Minister’s counsel’s oral submissions below, the submission which was made at T19 was in these terms (the plural is used because the hearing in the Court below involved two similar applications being heard together):

‘There’s certainly what one could say is an attempted fraud by S and S Migration on the delegate that failed, but there’s an open issue about the extent to which the applicants were complicit or reckless in the making of that application as well. Certainly, they gave some instructions to S and S Migration to lodge an application on their behalf. Now, as far as I’m aware, there’s no case where fraud has been proved just on the basis of evidence that was given to the tribunal without an opportunity for the court to make findings on that evidence given to the court, and there’s a reason for that. It’s because the court isn’t bound by the finding of the tribunal, and the fact that the applicants said certain things to the tribunal about their lack of involvement with the fraud doesn’t mean that that’s true.

The Minister must be entitled to cross-examine an applicant if there is an inference that they might be complicit or reckless in what occurred, and my friend’s failure to call evidence from both applicants in this case, in my submission, runs squarely into Jones v Dunkel. There is an available inference as to their complicity or recklessness. They haven’t called evidence. They have the onus. Your Honour shouldn’t be satisfied that there was not some degree of recklessness or complicity by the applicants in the absence of them calling evidence and being cross-examined. In paragraph 6 of my written submissions in Kaur I’ve referred to two Full Federal Court cases which show that fraud relevantly can’t be established if there is some degree of complicity by an applicant in it.’

(emphasis added)

20    There was, therefore, no dispute before the Federal Circuit Court that S & S Migration had made a false statement. The critical question was a different one, namely, whether the appellant was in some way complicit in that statement. The reasoning of the Court was as follows (at [29]-[31]):

‘29.    Whether the migration agent acted fraudulently such that the applicants ought not to have responsibility as principals for his actions, was an issue on which the applicants bore the onus of proof. Significantly, and as the applicants’ written submissions made clear, it was an allegation which imputed conduct amounting to a breach of the Act and contravention of the Migration Agents Regulations 1998. Proof of matters of such seriousness is to be approached having regard to s.140 of the Evidence Act 1995 and relevant antecedent authorities such as Briginshaw v Briginshaw (1938) 60 CLR 336, Helton v Allen (1940) 63 CLR 691, Rejfek v McElroy (1965) 112 CLR 517 and Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449.

30.    Apart from transcripts of the hearings before the Tribunal, to which no particular reference was made, the applicants adduced no evidence supportive of their allegations that a fraud had been practised on them or on the Minister’s department. The only other material which was arguably before the Court were the Court Books of which one was filed in each proceeding. Significantly, the applicants did not give evidence in these proceedings and did not expose themselves to having their accounts tested in cross examination. In such circumstances, the versions of events they advanced, which were derived from their evidence to the Tribunal, must be accorded little weight.

31.    Given the slight weight to be attached to the applicants’ versions of events and noting the absence of other evidence on the issue, I am not satisfied that the applicants have proved their allegations that their agent acted fraudulently in the preparation and lodgement of their visa applications.’

21    Paragraph 31 involved a finding that the appellant had failed to prove something which was not in dispute. Indeed, not only was the falsity of the agent’s actions not in dispute it was the subject of uncontradicted evidence. The only evidence on the issue before the Court consisted of the delegate’s decision (which was neutral on the issue), the appellant’s evidence before the Tribunal which asserted the fraud of the migration agent and his ignorance of that fraud, the decision of the Tribunal likewise accepting that the agent had acted dishonestly and the Tribunal’s finding as to the appellant’s indifference to the manner in which his visa application was dealt with. That the Minister did not seek to suggest that the migration agent had not made the false statement was simply a recognition that any other finding would have lacked an evidential basis.

22    It was erroneous in those circumstances for the Court below to find that the appellant had failed to prove a matter which was not in dispute and for which the evidence was one way. The error relied upon by the appellant before this Court was that the Court below erred by applying the standard in s 140 of the Evidence Act 1995 to the issue. That section provides:

‘140 Civil proceedings: standard of proof

(1)    In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.

(2)    Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:

(a)     the nature of the cause of action or defence; and

(b)     the nature of the subject‑matter of the proceeding; and

(c)     the gravity of the matters alleged.’

23    The application of s 140(2)(c) to undisputed facts was erroneous essentially for the same reason. It was not necessary for the Court to have regard to the seriousness of a finding when that fact was not in dispute. It is true that a court is not bound to find facts which are agreed between the parties, but it will not depart from such agreements ‘where there is no reason to doubt their correctness’: see Damberg v Damberg (2001) 52 NSWLR 492 at 522 [160] (CA). The Court below did not suggest it was departing from the position adopted by the parties because it believed there to be some reason to doubt it so we do not read [31] as an invocation of the Damberg principle. Indeed, the only conclusion one can draw from [31] is that the Court below misunderstood what the issue for resolution was. Even if it had invoked Damberg, the Court would then have denied the appellant procedural fairness by making a finding contrary to an uncontested position, without first giving the party having the benefit of that uncontested position the opportunity to be heard on why such a departure ought not to be undertaken. Had such an opportunity been here afforded to the appellant it is likely that the submission made would have included the proposition that the evidence on this issue was entirely one way.

24    The Minister submitted that the reasoning of the Court below could be supported on the basis that the question of whether the applicant had been a victim of the fraud was a serious matter to which s 140 could attach. We reject that argument. There is no relevant conduct involved in being a victim.

25    In those circumstances, the appellant has demonstrated error in [31] and Ground 9 is made out.

Second issue: did the Court err in its findings about whether the appellant was complicit in the fraud – Grounds 1 and 3

26    As a result of our conclusions about the first issue it is apparent that the treatment by the Court below of the issue of whether the migration agent had been shown to have engaged in fraud was erroneous. We do not think it feasible to disentangle the Court’s conclusion that the appellant had not demonstrated fraud by the migration agent from its conclusions about what the appellant did or did not know about the application. This is because the reasoning of the Court below on these two topics is difficult, with respect, to reconcile. There was no dispute that the application falsely stated that the appellant had had his skills assessed. The finding that the appellant had not demonstrated the migration agent’s fraud seems to imply that the appellant was aware of that falsity. Yet, in another part of its reasoning the Court below appeared to accept the Tribunal’s conclusion that the appellant himself did not know of the contents of the application. At [33] the Court said this:

‘33.    ... In Mr Prodduturi’s case, he was aware that a visa application was being made on his behalf even if he did not know exactly what it contained.’

27    These findings therefore commit the Court below to a factual scenario in which the statement about the TRA skills assessment was false, in which the appellant did not know this and in which the migration agent was not shown to have known it either. This scenario is internally inconsistent. Thus it is inevitable that the factual error arising from Ground 9 takes with it the fact finding caught up in Grounds 1 and 3.

28    We do not think it necessary in that event to address all of the various complaints made in Ground 1 about the manner in which the Court below found the facts on the fraud issue. It is convenient, however, to indicate briefly that we would have rejected the appellant’s contention that [30] (set out above) involved an inappropriate application of Jones v Dunkel reasoning. We need not decide whether Jones v Dunkel in fact applies to the situation at hand. This is because we would read [30] simply as a legitimate statement that the Court thought less weight should be given to evidence which had not been tested by cross-examination. Such reasoning does not involve, as Jones v Dunkel reasoning does, the drawing of an inference that any evidence given would not have assisted the party who did not give it. Rather, it is just a common sense observation on the quality of a given type of evidence.

Third Issue: was the appellant responsible for the misleading statement by the migration agent – Grounds 1 and 3

29    Much of the appeal was taken up with this issue. There were two aspects to it: what were the facts and what were the relevant legal principles. The Court below concluded that the appellant was aware that a visa application was being made on his behalf even if he did not know exactly what it contained. The appellant contends this involved error and that the Court below should have found that he had instructed the migration agent not to lodge the application unless he met the qualifying criteria. We are satisfied that the Court below’s treatment of the facts is flawed and, subject to issue four, there would need to be a retrial on this issue. That means this Court does not know what the facts are. In those circumstances, it would be inappropriate to express any views on the law which would, at best, be hypothetical observations.

Fourth Issue: utility

30    The appellant’s case in the Federal Circuit Court could not have succeeded in its avowed purpose of bringing to an end the effect that non-compliance with PIC 4020 had on the appellant’s future capacity to apply for visas. The reasons for this are technical but irresistible. The original decision that the appellant had failed to satisfy PIC 4020 was made on 27 April 2012 by the delegate. If the appellant had succeeded in the Court below in setting aside the decision by the Tribunal to affirm that decision on the basis that the Tribunal had no jurisdiction over the matter, this would have left the delegate’s decision in place and, despite his success, the appellant would have remained unable to apply for a visa for three years.

31    That problem underscored the necessity from the appellant’s perspective to set aside the delegate’s decision of 27 April 2012. The appellant’s amended notice of appeal seeks such an order and does so on the basis that the visa application which had been made was itself invalid.

32    There are four obstacles for the appellant in taking this course. First, this was not how the case was run at first instance. Secondly, the delegate who made the decision is a necessary party to any application to set aside her decision. Thirdly, the Federal Circuit Court had no jurisdiction to entertain an application to set aside the delegate’s decision. Fourthly, this Court has no such jurisdiction on appeal.

33    As to the first point, it is clear from the originating process in the Court below and from the Court’s reasons that no attack was made on the delegate’s decision. Fresh counsel appearing pro bono in this Court has brought forth this new point but generally a party is bound by the manner in which the trial was run: Metwally v University of Wollongong (1985) 60 ALR 68 at 71; Coulton v Holcombe (1986) 162 CLR 1 at 7. This is particularly so where, as here, the appellant was represented by solicitors and counsel in the Court below.

34    However, assuming in the appellant’s favour that he should be permitted to seek this additional relief, there remains the second procedural hurdle that the person who would need to be the respondent to any writ of certiorari, the delegate, is not named as a party. Thirdly, again assuming in the appellant’s favour that the first and second point could somehow be surmounted, there is the short fact that the Federal Circuit Court lacks jurisdiction to entertain such a suit. This is the effect of s 476(2) of the Act:

‘476 Jurisdiction of the Federal Circuit Court

1.    Subject to this section, the Federal Circuit Court has the same original jurisdiction in relation to migration decisions as the High Court has under paragraph 75(v) of the Constitution.

1.    The Federal Circuit Court has no jurisdiction in relation to the following decisions:

(a)    a primary decision;

(b)    a privative clause decision, or purported privative clause decision, of the Administrative Appeals Tribunal on review under section 500;

(c)    a privative clause decision, or purported privative clause decision, made personally by the Minister under section 501, 501A, 501B or 501C;

(d)    a privative clause decision or purported privative clause decision mentioned in subsection 474(7).

2.    Nothing in this section affects any jurisdiction the Federal Circuit Court may have in relation to non-privative clause decisions under section 8 of the Administrative Decisions (Judicial Review) Act 1977 or section 44AA of the Administrative Appeals Tribunal Act 1975.

3.    In this section:

“primary decision” means a privative clause decision or purported privative clause decision:

(a)     that is reviewable under Part 5 or 7 or section 500 (whether or not it has been reviewed); or

(b)     that would have been so reviewable if an application for such review had been made within a specified period.’

35    The decision by the delegate was a decision which was reviewable under Part 5 by the Tribunal hence it was a ‘primary decision’ under subs (4). Section 476(2)(a) means that the Federal Circuit Court would have no jurisdiction to entertain such a suit. Consequently, this Court cannot make an order in its appellate jurisdiction quashing the delegate’s decision even if all the other problems were resolved. For completeness, it is to be noted that this Court could not have made such an order in its original jurisdiction either: s 476A. The only court with jurisdiction to entertain the present argument as to the validity of the visa application is the High Court under s 75(v) of the Constitution.

36    It follows that there are no means by which the decision of the delegate may be set aside in any court but the High Court. That being so, it is apparent that the Minister’s contention that these proceedings lack utility must be accepted. Even assuming the appeal were allowed and this Court set aside the decision of the Tribunal this would leave the appellant still saddled with the decision of the delegate with which this Court simply cannot interfere.

37    In such a situation:

(a)    the Tribunal would remain bound to refuse to grant the visa; and

(b)    the appellant would still be unable to apply for a visa for 3 years from 27 April 2012 because of the delegate’s decision.

38    Consequently, there could be no utility in granting constitutional relief even if the applicant had shown the existence of jurisdictional error. The appropriate course in that circumstance is to refuse relief: SZBYR v Minister for Immigration and Citizenship (2007) 96 ALD 1 at 10 [28]-[29] and 23 [87].

Disposition

39    Although we are satisfied that the Court below erred in its fact finding, the appropriate order in the Court below was nevertheless that the application should be dismissed with costs. Since that is the order which was made, we are satisfied that the correct result was arrived at although for different reasons to those expressed at trial. In that circumstance, the appropriate order is that the appeal be dismissed with costs.

Ruling on Evidence

40    At the hearing of the appeal the appellant sought to rely upon an affidavit of the appellant sworn 21 May 2014. This affidavit explained in detail the circumstances by which he came to deal with S & S Migration. In effect it remedied the criticism of the Court below that he had not made himself available for cross-examination. He sought to place responsibility for the decision not to call him at trial on his solicitors. Assuming without deciding that this is so, it nevertheless does not provide a proper basis for receiving the evidence. It was available at trial and a decision was made on the appellant’s behalf not to use it. The appellant must abide the consequences of that choice. For that reason the Court (by majority), during the hearing, rejected the appellant’s attempts to read the affidavit.

Associate:

Dated:    29 January 2015

REASONS FOR JUDGMENT

GLEESON J:

41    I agree with the orders proposed by Perram and Perry JJ and their reasons with the following qualification.

42    Concerning the first issue on the appeal, I am not convinced that [31] of the Federal Circuit Court judge’s reasons reveals a misunderstanding of the issue for resolution. The question identified by the Federal Circuit Court judge at [29] was whether the migration agent acted fraudulently “such that the applicants ought not to have responsibility as principals for his actions”. This question reflected the submission made on behalf of the Minister that “fraud cannot be made out if the applicant was complicit in it”.

43    At [39] of the Federal Circuit Court judge’s reasons, his Honour referred to the “untruthful nature of the contents of the visa applications”. Paragraph 30 of his Honour’s reasons is directed to the question whether a fraud “had been practised on [the applicants] or on the Minister’s department” which, in my view, can be read as a question about whether the applicants or the Department was aware of the untruthful nature of the contents of the visa application as distinct from a question about whether the migration agent was aware of the untruthful nature of those contents.

44    In the context of the question posed at [29], in my view, [31] can be interpreted as a finding that the appellant did not prove his allegation that the migration agent’s actions in the preparation and lodgement of his visa application occurred without his knowledge or complicity. If so, the Federal Circuit Court judge did not misunderstand the issue for resolution.

Associate:

Dated:    29 January 2015