FEDERAL COURT OF AUSTRALIA

Gill v Minister for Immigration and Border Protection [2016] FCAFC 142

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be allowed.

2.    The orders dated 5 February 2015 of the Federal Circuit Court of Australia be set aside.

3.    The matter be remitted to the Federal Circuit Court of Australia for reconsideration according to law by a judge other than the primary judge.

4.    The first respondent pay the appellant’s costs of the appeal, as agreed or assessed.

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

REASONS FOR JUDGMENT

THE COURT:

Introduction

1    This appeal was heard together with that in Singh v Minister for Immigration and Border Protection [2016] FCAFC 141 (Singh). In both Singh and here, separate judges of the Federal Circuit Court of Australia (FCCA) made findings that the same migration agent had engaged in fraudulent conduct in the course of making separate visa applications for his two clients by providing false information to the Department concerning their skills. Both visa applications were refused on the basis of the public interest criterion in PIC 4020 and the provision of false or misleading information concerning the visa applicants’ respective skills. Both visa applicants were unsuccessful in their separate review applications to the then Migration Review Tribunal (now the Administrative Appeals Tribunal) (the Tribunal). Each then separately brought judicial review proceedings in the FCCA in relation to the Tribunal’s decisions. A central issue in both cases was whether the effect of the agent’s fraud meant that the visa applications were not valid visa applications. The judicial review applications were both dismissed. Unlike in Singh, however, the appellant’s judicial review application in this proceeding was dismissed not on the ground of lack of utility but on the basis that relief should be withheld because of the appellant’s “indifference and imputed authority in the agent”.

2    The central issue in this appeal is whether the primary judge erred in concluding that because of the appellant’s “indifference” to his agent’s fraudulent conduct and the “general authority” he had given to his agent, he had to bear responsibility for that conduct.

Summary of background facts

3    The appellant, who is a citizen of India, entered Australia in June 2009 as the holder of a student visa. On 3 May 2011, an application was made online in his name for a Skilled (Provisional) (Class VC) visa (the visa). It was stated on the visa application form that the appellant had obtained a skills assessment from Trades Recognition Australia (TRA) and a reference number for that assessment was provided.

4    On 14 April 2012, the Minister’s delegate refused to grant the appellant the visa. The delegate stated that TRA had confirmed that there was no skills assessment with the reference number stated in the visa application form. The delegate found that the public interest criterion in cl 4020(1) of Sch 4 to the Migration Regulations 1994 (Cth) (the Regulations) was not satisfied, which meant that the appellant could not satisfy the visa criterion in cl 485.224 of Sch 2 to the Regulations. The appellant’s application for the visa was thus rejected.

5    On 9 May 2012, the appellant sought a review of the delegate’s decision in the Tribunal. He claimed that he had been the victim of fraudulent conduct by his former migration agent and that the agent had, without his knowledge, provided false information in his visa application, with the consequence that his visa application was invalid.

6    PIC 4020 is a reference to the public interest criterion which, at the relevant time, provided relevantly 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 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).

…

(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    The Tribunal found that the visa application was valid in circumstances where:

(a)    the migration agent was engaged by the appellant to assist him “to regularise his immigration status in Australia” and “the payment of a fee for this service resulted in a retainer between the parties”;

(b)    the appellant knew of, and consented to, the agent lodging a visa application on his behalf for some kind of “work visa”;

(c)    despite some factually incorrect information being included in the visa application:

(i)    the appellant was aware that the agent had lodged the visa application with the Department so that he could remain in Australia; and

(ii)    the visa application was validly made by the agent on the appellant’s behalf; and

(d)    after noting that the appellant did not attend the Tribunal hearing to give oral evidence, which “compromised” the Tribunal’s ability to assess the appellant’s role in the fraud, the Tribunal was satisfied that the appellant’s “complicity was established by the fact that he retained a migration agent to act on his behalf whom he paid to lodge what he reasonably ought to have suspected was a dubious application”.

8    The Tribunal found that the agent had acted fraudulently in respect of the visa application by including information which was incorrect or misleading and which had been fabricated by the agent and not the appellant. The Tribunal found that the agent had fabricated claims in order to deceive both the appellant and the Department into believing that a valid visa application had been lodged. The Tribunal set out the following findings in [159] of its decision record:

Nevertheless, the Tribunal is satisfied that the applicant suspected that the means used by [the agent] to obtain a visa for him were not necessarily going to be “above board”. As a result, taking into account the claims and evidence as a whole, the Tribunal finds that, even though the applicant may not have suspected that his migration agent was about to perpetrate fraud in the “red blooded” sense, there is little in the evidence to suggest that the applicant particularly cared how it was that that [the agent] was able to apply on his behalf for a work visa, as opposed to a student visa, or that he cared about how the visa was to be obtained.

9    The Tribunal then addressed whether this amounted to complicity in the fraud. It concluded at [161] that it was open to find that the appellant was complicit in his agent’s fraud on the primary decision-maker, despite the appellant’s claims that he was not aware of the exact nature of the fraud and was himself a victim of it. While the Tribunal stated that it was not open to conclude that the appellant and his agent had a common purpose of misleading the Department by lodging a false and misleading application, the Tribunal concluded that the appellant was complicit in the fraud for reasons which it gave in [163] of its decision record (footnotes omitted):

… given the evidence before it, it is open for this Tribunal to find that the applicant wanted a visa that carried with it work rights and that he was “… not too particular how he got it”. The applicant’s instructions to [his agent] were general in so far as he retained and paid [the agent] to lodge an application for a visa on his behalf. He signed documents the contents of which he did not understand or enquire about, and he paid the agent’s fee when it fell due. Accordingly, given these findings, the Tribunal finds that the authority given by the applicant to [his agent] as his agent extended to lodging the visa application on-line on his behalf. As a result, having regard to the claims and evidence as a whole and the above findings, it is open for this Tribunal to conclude that the applicant was complicit in the fraud on the primary decision maker.

10    The Tribunal concluded that cl 4020(1) of Sch 4 to the Regulations was not satisfied, nor was there any basis for that requirement to be waived. Consequently, it found that the appellant did not meet the relevant visa criterion in cl 485.224 of Sch 2 to the Regulations.

The judicial review proceeding in the FCCA

11    On 23 December 2013, the appellant commenced a judicial review proceeding in the FCCA.

12    In an affidavit dated 26 November 2014 which was relied upon by the appellant below, the appellant deposed that:

(a)    he told his migration agent that he wanted to study English language or to study cooking;

(b)    based on his experiences in India and his expectations based on Indian culture, he expected the agent to enrol him in an appropriate college to study English and to enrol him in an appropriate college to study cookery;

(c)    based on those same experiences and expectations, he expected that it would take many months to obtain the student visa, that he would not need to see the migration agent again, and that it “was just a matter of time until I got my student visa”; and

(d)    the agent did not tell him that he would apply for a skilled visa.

13    On 5 May 2014, the appellant filed an amended judicial review application, in which he claimed that the Tribunal had erred because:

(a)    its findings and inferences concerning its conclusion that the appellant was complicit in his agent’s fraud were unsupported by the evidence;

(b)    it had misdirected itself as to the correct test in determining whether the appellant was complicit in that fraud;

(c)    its inference that the appellant’s non-attendance before the Tribunal meant that the appellant’s documentary material was not reliable; and

(d)    the Tribunal lacked jurisdiction because there was no valid visa application and, therefore, no “MRT-reviewable decision”, based upon the appellant’s lack of awareness and non-complicity in the agent’s fraud.

14    Only the fourth ground was pressed below. The appellant sought various relief below, including prohibition, certiorari and mandamus. It is significant that a declaration was also sought that there was no MRT-reviewable decision because there was no valid visa application. As was the case in Singh, the appellant’s primary objective in bringing the judicial review challenge was to avoid the operation of s 48 of the Migration Act 1958 (Cth) (the Migration Act) and PIC 4020(2) and the limitations those provisions placed on his ability to make a fresh visa application in Australia arising from the finding that the public interest criterion applied to the circumstances of his case. (The terms of s 48 are set out in [39] below and the terms of PIC 4020 are set out in [6] above.

15    The appellant was apparently cross-examined at some length. It should be noted that no copy of the transcript of the hearing below was in evidence in the appeal.

16    The appellant’s judicial review application was dismissed by the FCCA (see Gill v Minister for Immigration and Border Protection [2015] FCCA 1 (Gill)).

17    The primary judge noted that the appellant’s counsel acknowledged that the ground set out in [13(d)] above raised issues of fact which had been determined by the Tribunal and that such findings are not ordinarily capable of challenging in a judicial review proceeding. The primary judge accepted that the issue raised a jurisdictional fact which the FCCA had to determine for itself based on all the evidence before it.

18    The primary judge also noted that the appellant’s counsel accepted that, ordinarily, s 98 of the Migration Act would apply to the appellant and that this provision would operate such that the appellant would be taken to have filled in his visa application form. The appellant submitted, however, that the agent’s fraud was not avoided by s 98 – a distinction needed to be drawn between a visa applicant who was indifferent as to what an agent had done on the applicant’s behalf while assuming it was done lawfully, as opposed to a visa applicant who was indifferent as to whether the agent’s actions were lawful or unlawful. The primary judge did not accept that this distinction was relevant. The correctness of this view lies at the heart of the appeal.

19    The primary judge made the following relevant findings:

(a)    the visa application contained false information relating to such matters as the appellant’s email address, his parents’ dates of birth, his formal qualifications and his having obtained a satisfactory trade assessment;

(b)    whether or not there had been a valid visa application was a jurisdictional fact (citing a judgment of Perram J granting leave to appeal in Prodduturi v Minister for Immigration and Border Protection [2014] FCA 624; 142 ALD 550 at [13]);

(c)    the appellant engaged, provided instructions to, and entered into a retainer with his migration agent;

(d)    the appellant had given his agent “a form of general authority” in relation to making a visa application;

(e)    the appellant’s evidence in respect of the particular visa which was applied for was “vague and uncertain”, the appellant had “prevaricated in respect of the important evidence as to his instructions to the agent and/or his advice from the agent” and there were inconsistencies which emerged in his cross-examination;

(f)    the agent prepared the application for the visa on the appellant’s behalf and lodged it with the Department;

(g)    the appellant’s attempts at justification were “unsatisfactory with a tendency, at best, towards indifference such as his revelation of a propensity to sign documents without being aware of the contents”;

(h)    on the evidence, the Court was “unable to positively find complicity or collusion” by the appellant in the agent’s fraud;

(i)    however, there was “an indifference” by the appellant in his relationship with his agent “which amounted to a general authority to the agent”;

(j)    while there had been a fraud, it had not stultified the delegate’s procedure;

(k)    the appellant should not obtain relief due to his “indifference and imputed authority in the agent”; and

(l)    the visa application was valid.

20    The findings summarised in [19(h) and (i)] are of particular significance in the appeal.

The appeal to this Court

21    The notice of appeal raised the following four grounds of appeal.

22    First, the FCCA erred in finding that there was a valid visa application in circumstances where it was satisfied that there was fraud by the migration agent and the appellant was not positively complicit in that fraud (ground 1).

23    Secondly, the FCCA erred in finding that the appellant was “indifferent” to the fraudulent actions of his agent in a manner that amounted to a general authority to the agent (ground 2).

24    Thirdly, the FCCA erred in considering that its finding that the appellant “was indifferent” to his agent’s fraud, having regard to the nature of that indifference, was a sufficient basis to deny the appellant the relief he sought given that the FCCA found that there was fraud by the migration agent and no evidence that the appellant was positively complicit in that fraud (ground 3).

25    Fourthly, the FCCA misunderstood which “process” was stultified by his agent’s fraud because the procedures before the Minister’s delegate and the Tribunal were not the relevant processes, rather the relevant process was the legal consequences which attached only to valid visa applications for the purposes of ss 46, 47, 48, 49 and 98 of the Migration Act (ground 4).

26    The relief sought by the appellant in the appeal included an order quashing the Tribunal’s decision and a declaration that there was no “valid visa application” within the meaning of s 46 of the Migration Act. Alternatively, an order was sought remitting the matter to the FCCA for rehearing according to law.

Appellant’s submissions summarised

27    In the appeal, the appellant accepted that there was no point remitting the matter to the Tribunal as he could not satisfy the requirements for the grant of the visa. Accordingly, he did not press his claim for mandamus. He acknowledged that he did not allege any jurisdictional error by the Tribunal, nor did he press his claim in this Court for declaratory relief. The appellant contended, however, that the appeal should be allowed and the FCCA’s decision set aside. He asked that the matter be remitted to the FCCA for reconsideration according to law by a different FCCA judge and not the primary judge. The appellant sought his costs of the appeal but submitted that no costs order should be made in respect of the FCCA proceedings until after his application was reconsidered by the FCCA according to law.

28    It was submitted on behalf of the appellant that there was “an irreconcilable tension” in the FCCA’s decision. This was because although the primary judge found that there was fraud by the agent, he also found that he was unable positively to find complicity or collusion by the appellant in that fraud. Yet the primary judge denied relief because of his finding that the appellant was indifferent in his relationship with his agent and this amounted to the giving of a general authority to the agent. It was submitted that the FCCA’s error lay in the finding that the appellant’s indifference amounted to a general authority to his agent. The appellant submitted that the primary judge’s finding of “general indifference” was an insufficient basis upon which to visit the agent’s fraud on the appellant and that indifference as to honesty or dishonesty was required.

29    The appellant emphasised that it was one thing for a visa applicant to be indifferent as to the conduct of his or her agent in procuring a visa on the assumption that the agent would act lawfully and honestly, as opposed to an indifference as to whether the agent acted unlawfully or dishonestly. It was submitted that indifference of the former kind did not amount to authorising the agent to practice a fraud on the visa applicant’s behalf. Reliance was placed upon Minister for Immigration and Citizenship v Lu [2010] FCAFC 147; 189 FCR 525 (Lu) at [43] per Ryan, Rares and Katzmann JJ:

… It is one thing for a person to be tricked by a fraudster, such as the migration agent in SZFDE 232 CLR 189, not to pursue his or her entitlement to participate in the Tribunal's processes so that those processes will be stultified. It is another thing for a person to be tricked by a fraudster, such as Ms Zhao, not to participate in those processes, when an integral feature of the ruse is the person's knowing participation in separate criminal conduct, such as bribery of officials, to achieve the same end as participating in the processes of the Tribunal could have produced. In the latter category of case, the effect of the fraud is not to stultify the Tribunal's decision-making processes. Rather, the intended bribe was integral to the fraud. Like acting on bad advice, a person's conscious decision to act on an invitation to participate in a criminal enterprise, provides a sound reason in policy that negates that person's entitlement to complain that the fraud on him or her vitiated the Tribunal's decision: SZFDE 232 CLR 189 at [53].

30    The appellant also cited SZMGX v Minister for Immigration and Citizenship [2009] FCAFC 67 (SZMGX), where the appellant, having entered Australia on a business visa, then applied for a protection visa in Australia with the assistance of a migration agent. She signed documents placed before her by the migration agent which she did not understand. She was content to trust the agent to implement her instructions and to not make false statements in any of the documents. False information was included. The Full Court (Bennett, Reeves and Foster JJ) found that there was insufficient material to support a finding, one way or the other, as to whether the appellant was complicit in the provision of false information “or whether she was utterly indifferent as to whether the information supplied to the Tribunal was correct” (at [21]).

31    Finally, the appellant submitted that the primary judge misapprehended the nature of the statutory process which was stultified by the agent’s fraud. He submitted that the significant point was that the validity of the visa application itself was affected by that fraud, rendering it not a valid visa application so as to attract the operation and effect of s 48 of the Migration Act.

32    The appellant adopted the submissions which were made on behalf of the appellant in Singh in relation to Prodduturi v Minister for Immigration and Border Protection [2015] FCAFC 5; 144 ALD 243 (Prodduturi).

Minister’s submissions summarised

33    The Minister defended the FCCA’s conclusion that the visa application was valid and added that, even if it were not, there was no useful relief which this Court could grant.

34    The Minister submitted that the FCCA’s findings were open to it and supported its conclusion that the visa application was valid. The Minister emphasised that the FCCA had concerns about the appellant’s evidence and credibility, it having had the benefit of witnessing the appellant give evidence during cross-examination. It was submitted that, in these circumstances, it was well open to the Court to find that the appellant was indifferent to the nature and contents of his visa application and that he had given his agent general authority.

35    In support of his contention that the FCCA correctly concluded that the visa application was valid, the Minister relied on s 98 of the Migration Act, which operated to deem the appellant to have filled in the visa application for himself. It was clarified in oral address that the Minister’s position concerning s 98 was that it applied here in the light of the FCCA’s factual findings concerning the appellant’s complicity in his agent’s fraud, but it was acknowledged that s 98 would not attach to a visa applicant in circumstances there has been fraud perpetrated on the visa applicant.

36    Furthermore, relying upon common law principles of agency, the Minister submitted that the appellant was fixed with responsibility for his agent’s conduct and that, because he was indifferent to the nature and contents of the visa application, it is irrelevant whether or not he specifically authorised his agent to include false information in the application.

37    The Minister sought to distinguish SZFDE v Minister for Immigration and Citizenship [2007] HCA 35; 232 CLR 189 (SZFDE) on the basis that, in that case, it was found that there was a fraud on the visa applicant which also stultified the Tribunal processes under Pt 7 of the Migration Act and that the appellant had to demonstrate both these matters.

38    Finally, the Minister submitted that, relying on Prodduturi, the FCCA’s jurisdiction under s 476 of the Migration Act only permitted that Court to grant relief in relation to the Tribunal’s decision, which would leave unaffected the decision of the Minister’s delegate. Consequently, there would be no utility in the Court granting the relief sought by the appellant in relation to the Tribunal’s decision (and the Minister adopted the submissions made by him in the related appeal in Singh).

Relevant statutory provisions

39    It is desirable to set out the material terms of the following relevant statutory provisions as in force on 16 December 2013:

46    Valid visa application

(1)    Subject to subsections (1A), (2) and (2A), an application for a visa is valid if, and only if:

(a)    it is for a visa of a class specified in the application; and

(b)    it satisfies the criteria and requirements prescribed under this section; and

…

47    Consideration of valid visa application

(1)    The Minister is to consider a valid application for a visa.

(2)    The requirement to consider an application for a visa continues until:

(a)     the application is withdrawn; or

(b)    the Minister grants or refuses to grant the visa; or

(c)    the further consideration is prevented by section 39 (limiting number of visas) or 84 (suspension of consideration).

(3)    To avoid doubt, the Minister is not to consider an application that is not a valid application.

(4)    To avoid doubt, a decision by the Minister that an application is not valid and cannot be considered is not a decision to refuse to grant the visa.

48    Non‑citizen refused a visa or whose visa cancelled may only apply for particular visas

(1)    A non‑citizen in the migration zone who:

(a)    does not hold a substantive visa; and

(b)    either:

(i)    after last entering Australia, was refused a visa, other than a refusal of a bridging visa or a refusal under section 501, 501A or 501B, for which the non‑citizen had applied (whether or not the application has been finally determined); or

(ii)    held a visa that was cancelled under section 109 (incorrect information), 116 (general power to cancel), 134 (business visas), 137J (student visas) or 137Q (regional sponsored employment visas);

may, subject to the regulations, apply for a visa of a class prescribed for the purposes of this section, but not for a visa of any other class.

…

49    Withdrawal of visa application

(1)    An applicant for a visa may, by written notice given to the Minister, withdraw the application.

(2)    An application that is withdrawn is taken to have been disposed of.

(3)    For the purposes of sections 48 and 48A, the Minister is not taken to have refused to grant the visa if the application is withdrawn before the refusal.

(4)    Subject to the regulations, fees payable in respect of an application that is withdrawn are not refundable.

…

98    Completion of visa application

A non‑citizen who does not fill in his or her application form or passenger card is taken to do so if he or she causes it to be filled in or if it is otherwise filled in on his or her behalf.

40    It is convenient to summarise the primary provisions in the Migration Act concerning migration agents. They are primarily found in Pt 3 as in force at the relevant time. Relevantly, “immigration assistance” is defined in s 276 as including the circumstances where a person uses, or purports to use, knowledge of, or experience in, migration procedure to assist a visa applicant by preparing, or helping to prepare, a visa application. The effect of s 280 is to prohibit a person who is not a registered migration agent from giving immigration assistance. There are detailed provisions in Div 3 of Pt 3 relating to the registration of migration agents, including s 290 which prohibits the registration of a person as a registered migration agent if the Migration Agents Registration Authority is satisfied that the person is not a fit and proper person to give immigration assistance or is not a person of integrity. In considering whether a person is not a fit and proper person, the Migration Agents Registration Authority must take into account such matters as the extent of the applicant’s knowledge of migration procedure (s 290(2)(a)). By s 314 of the Migration Act a registered migration agent must conduct himself or herself in accordance with a Code of Conduct prescribed under the Migration Agents Regulations 1998 (Cth) (the Migration Agents Regulations). The Code of Conduct is contained in Sch 2 to the Migration Agents Regulations. It includes, as one would expect, a range of professional standards obligations, obligations to clients, financial duties and the like. As one would also expect, the attribute of honesty and fair dealing underlines many of the more detailed obligations imposed.

41    A person in the applicant’s position is entitled to expect that a registered migration agent to whom he pays the appropriate fee will perform his duties as a migration agent in accordance with the Migration Act, and the Code of Conduct.

42    Taking into account the detailed regulatory scheme established for migration agents under the Migration Act and the Migration Agents Regulations, including the Code of Conduct, in our opinion, it is not apt or correct to apply the description of “indifference” to a person who, having retained an agent to apply for a visa and having paid the appropriate fees to that agent, leaves the migration agent to perform his or her work. It is certainly not apt to describe a person in these circumstances as indifferent to the subsequent submission of a fraudulent visa application by the migration agent without further relevant findings concerning the nature and scope of that indifference.

43    In SZFDE at [29] the High Court emphasised the importance in a case involving fraud by a migration agent of paying close attention:

… to the nature, scope and purpose of the particular system of review by the Tribunal which the Act establishes and the place in that system of registered migration agents.

44    Similarly, where the issue of fraud arises in a case such as the present concerning the issue whether there was a valid visa application, it is necessary to pay close attention to provisions such as ss 46 to 49 and 98 of the Migration Act, as well as the role played by registered migration agents.

45    It is equally important to note that, in SZFDE, the High Court stressed the fact that different considerations arise in a case where a migration agent gives bad or negligent advice. Nothing we say here is intended to derogate from that fundamental proposition. This is not a case involving bad or negligent advice by a registered migration agent but rather is one where it is not in dispute that the appellant’s migration agent acted fraudulently.

Determination of the appeal

46    In SZSXT v Minister for Immigration and Border Protection [2014] FCAFC 40; 222 FCR 73 (SZSXT), Perram, Robertson and Griffiths JJ summarised some relevant principles established in SZFDE relating to fraud in a public law context, including a migration case. Those principles are set out in [51] of SZSXT (the paragraph references are to SZFDE):

(a)    in the framework of general legal principle, fraud can come in various guises and is ‘infinite in variety’ [8];

(b)    different considerations may arise when fraud is alleged in a public law case, which involves the due administration of Commonwealth laws and has an important constitutional underpinning in Ch III of the Constitution [11];

(c)    ‘fraud’ can attract different meanings in private and public law and in the latter context has been used in a broad sense which encompasses ‘bad faith’ [17];

(d)    in a case seeking certiorari based on the fraud of a third party, there is no requirement that one of the parties to the litigation be privy to the fraud [20];

(e)    another practical aspect of fraud in public law which may set it apart from fraud in civil law is that ‘often a victim of it will have no useful remedy except to have the fraudulently affected result set aside and a fresh untainted hearing conducted’ [22];

(f)    in a public law case, fraud is not limited to that of a decision-maker, a party or a party's representative [25]-[27]; and

(g)    there was no necessity in SZFDE to determine at large and in generally applicable terms the scope for judicial review for ‘third party fraud’ of an earlier administrative decision where the judicial review applicant did not collude in the fraud and was not aware of it at the time [28]. But in the particular circumstances in SZFDE the rogue's fraudulent dealings with the family had the effect of disabling the Tribunal from duly discharging its imperative statutory functions in conducting a review, such that there had also been a fraud ‘on’ the Tribunal which meant that the Tribunal's jurisdiction remained constructively unexercised [51]-[52].

47    The first and last of those principles from SZFDE have particular relevance in this appeal. Recognition that fraud can arise in a wide range of factual circumstances, such that it is apt to describe the range as “infinite in variety”, highlights the undesirability of prescribing in generally applicable terms the scope for judicial review where there is third party fraud. It is critical to pay close attention to both the particular facts and circumstances in which the issue of fraud arises and also to the terms of any specific legislative provision which may be affected by the fraudulent conduct of a third party, such as a migration agent.

48    In our view, the primary judge erred in failing to address a question which was of central significance in the particular circumstances here, namely whether the appellant’s “indifference” or imputed general authority to his agent extended to whether or not the agent’s conduct in assisting the appellant to make his visa application went so far as to include unlawful or dishonest conduct. In our view, it is one thing to conclude, on the basis of relevant evidence, that a visa applicant, having retained the assistance of a migration agent, gives his or her general authority to that agent to do whatever is lawful and proper to achieve the visa applicant’s objective of obtaining a particular visa, as opposed to a visa applicant placing such matters in the hands of a migration agent and being indifferent to whether the migration agent uses lawful or unlawful means to achieve the visa applicant’s objective of obtaining a visa.

49    As emphasised above, the primary judge found that it was not possible for him to make a positive finding that the appellant was complicitous or colluded in the agent’s fraud. Rather, the primary judge proceeded on the basis that his lesser findings relating to the appellant’s “indifference” and the general authority he gave to his agent meant that the appellant had to bear responsibility for the agent’s fraudulent conduct. In our respectful view, this approach fails to recognise and give effect to the relevant distinction between an indifference as to how the migration agent acting lawfully and properly can achieve a visa applicant’s desired outcome, as opposed to an indifference as to whether or not that outcome is achieved by the agent acting unlawfully or dishonestly. This distinction is equally important in the context of considering the legal significance of any general authority given to a migration agent by a visa applicant. In our respectful view, the primary judge erred in failing to recognise and give effect to the significance of this distinction.

50    We accept the appellant’s submission that the operation of provisions such as ss 45 to 48 and 98 of the Migration Act and PIC 4020 can be affected by the fraudulent conduct of a migration agent in circumstances where the visa applicant has not colluded in that fraud and there is no evidence to support a finding that the visa applicant was indifferent as to whether the agent used unlawful or dishonest means to obtain a visa. As noted above, the Minister ultimately did not contest that s 98 would not apply to a visa applicant who has relied upon a migration agent to fill out a visa application form and the agent perpetrates a fraud on the visa applicant. In our view, that acknowledgment was properly given.

51    It is entirely understandable that a person in the position of the appellant, who did not speak good English and who had no knowledge of the Australian legal or migration systems, which are technical and complex, would retain a registered migration agent to assist him in obtaining a visa and to rely upon the agent taking reasonable and proper steps in seeking to obtain the grant of a visa. Significantly, there was no finding by the primary judge that the appellant’s “indifference” as to how his agent carried out his retainer to assist the appellant in obtaining a visa extended so far as to countenance or authorise the agent engaging in fraud or dishonesty. The position would be different if there was such a finding and that finding was one which was reasonably open. Whether or not there should be such a finding in this case will be a matter to be determined on the remittal and in the light of all the relevant evidence.

52    We do not accept the Minister’s submission that the issue falls to be determined by the simple application of what the Minister described as “common law principles of agency” which, he contended, fixed the appellant with responsibility for the agent’s conduct in making the skilled visa application on his behalf. As noted above, in SZFDE the High Court highlighted the fact that issues of fraud in a public law context were sui generis and are not to be equated with cases involving the creation and protection of personal and property rights in inter partes litigation where common and/or equitable principles concerning fraud arise for determination. Those principles cannot blindly be applied in a public law context without regard to the terms and effect of relevant legislative provisions, including but not limited to the extensive provisions in Pt 3 of the Migration Act relating to registered migration agents.

53    Neither of the two authorities cited by the Minister in support of his contention that common law principles of agency applied are of assistance. In WABZ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 30; 134 FCR 271 (WABZ), the issue was whether the Refugee Review Tribunal denied procedural fairness in preventing a Legal Aid solicitor from appearing on behalf of the review applicant in proceedings before that Tribunal. The visa applicant was not highly educated and spoke little English, such that Hill J concluded that, without representation, she would have difficulty dealing with the issues in the review (at [110]).

54    The Full Court drew attention to various provisions in the then Migration Act concerning the provision of “immigration legal assistance” as defined in s 277 and the prohibition imposed by s 280 on a person who is not a registered migration agent giving immigration assistance. Justices French and Lee observed at [56] that, at common law, a person who has a right to appear before a statutory tribunal may appear by an agent and that that common law right may be removed, qualified or narrowed by statute expressly or by implication. Their Honours emphasised at [58] that the common law agency principle is conceptually distinct from that aspect of procedural fairness which may require that a person be given an opportunity to be represented by a lawyer or some other competent agent. Their Honours emphasised that, despite the restrictions in the Migration Act concerning who can give “immigration assistance”, there was no provision which generally excluded legal or other representation at hearings conducted by the Refugee Review Tribunal. Their Honours explained why the Legal Aid solicitor was not prevented by s 280 from representing the review applicant in the Tribunal proceedings.

55    Their Honours then addressed the question whether the Tribunal’s refusal to permit such representation trespassed upon the review applicant’s entitlement to representation. Their Honours noted at [62] that where a statute restricts rights of representation by limiting the persons who may appear, it may nevertheless be the case that the common law agency principle (to the effect that a person who has a right to appear before a statutory tribunal may also appear by an agent) operates within those statutory restrictions. After noting that s 425 conferred a right on an applicant for a review to be heard by the Tribunal orally or otherwise (subject to the exceptions in s 425(2)), French and Lee JJ concluded that the common law principle would operate to allow the review applicant to be represented by another person where there was no contrary statutory provision.

56    WABZ does not support the Minister’s contentions here. As is evident from the summary above, the facts and legal issues in WABZ were quite different from those here.

57    The other case relied upon by the Minister, which is a decision of the FCCA, takes the matter no further. In Sran v Minister for Immigration and Citizenship [2014] FCCA 37 (Sran), the same migration agent as in both Singh and here was found to have provided false or misleading information concerning a skills assessment in lodging another application for a visa, with the consequence that it was found that PIC 4020 applied. The appellant challenged the Tribunal’s finding that there was an agency relationship between him and the migration agent. He claimed that, even if there was some agency relationship, the agent’s fraud went beyond any authority which he had given to the agent. The applicant claimed that he had no knowledge of his agent’s fraudulent conduct. The primary judge emphasised that there was no allegation that there was a fraud perpetrated during the conduct of the Tribunal’s review. Rather, the allegation related to the process before the Minister’s delegate.

58    A central issue as seen by the primary judge was whether the Tribunal erred in finding on the basis of the evidence before it that there was an agency agreement under which the agent acted on the visa applicant’s behalf in making a sub-class 485 visa application. This finding was based on evidence which indicated that the visa applicant had instructed the migration agent to lodge the visa application and that a fee was discussed. This was found by the primary judge to be sufficient to ground the Tribunal’s finding that there was an agency agreement. The primary judge stated at [44] that the visa applicant “plainly knew, as his evidence indicates, that an application was to be submitted on his behalf” and that he “plainly said he sent the fee and documents as discussed”. The primary judge also found that it was open to the Tribunal to find that the visa applicant was “indifferent to the detail of the application” (at [45]).

59    But the matter did not stop there. Significantly, the primary judge rejected the visa applicant’s contention that he was simply an innocent or gullible person who had been “duped” by the agent. The primary judge observed at [48] that the Tribunal had expressly addressed this matter and that it was not persuaded by the visa applicant’s evidence having regard to his educational and migration circumstances over the preceding three years. The primary judge held that the Tribunal’s findings were reasonably open to it on the basis of the evidence before it and that it was immaterial that another Tribunal member may have taken a different view. Perhaps reflecting the way in which the case was presented in Sran, it is evident that the primary judge determined the appellant’s judicial review challenge on the basis of the appellant needing to establish jurisdictional error in the Tribunal’s fact finding and not on the basis that the question whether or not there was a valid visa application involved a jurisdictional fact.

60    It is evident from this summary of Sran that the findings of fact were quite different from those here. In particular, it is notable that the FCCA in Sran rejected the challenge to the Tribunal’s rejection of the visa applicant’s claims that he was simply an innocent, gullible person who had been duped by his agent. The primary judge emphasised (at [64]) the Tribunal’s finding that it did not accept that the visa applicant was “entirely unaware of the skills assessment requirement as part of a skilled visa application”. Moreover, as noted above, Sran was not decided on the basis of there being a jurisdictional fact which the Court had to decide for itself on the basis of all the evidence before it but rather on the basis of the need for the appellant to establish jurisdictional error in the Tribunal’s fact finding.

61    Sran is distinguishable in circumstances where, as noted above, the primary judge here expressly found that he was unable to make a positive conclusion that the appellant had colluded in his agent’s fraud, but then proceeded on the erroneous basis that it was sufficient to find that the appellant was “indifferent” to what his agent did, without confronting the issue whether that indifference extended to whether or not the agent acted fraudulently or dishonestly. At [80] of Sran, the primary judge emphasised that the Tribunal had found that the visa applicant Sran was not “an innocent victim of criminal behaviour or a scam”. That is to be contrasted with the more limited relevant findings made by the primary judge here. Those findings were insufficient to ground the dismissal of the appellant’s application for judicial review.

62    As to the Minister’s reliance upon Prodduturi, we consider that that decision is distinguishable for the reasons given in Singh. In particular, it is notable that the relief sought by the appellant below included a declaration that there was no MRT-reviewable decision because there was no valid visa application (see [14] above).

Conclusion

63    For these reasons, the appeal should be allowed. The orders dated 5 February 2015 of the FCCA should be set aside and the matter remitted to the FCCA for rehearing according to law by a judge other than the primary judge. This is a case where we consider it is appropriate to make such an order having regard to the adverse findings of fact made by the primary judge (see AMF15 v Minister for Immigration and Border Protection [2016] FCAFC 68 at [54] per Flick, Griffiths and Perry JJ and Hinton v Alpha Westmead Private Hospital [2016] FCAFC 107 at [25] per Collier, Jagot and Perry JJ). The Minister must pay the appellant’s costs of the appeal. As noted above, the appellant is content to have the issue of the costs of the proceedings below deferred until the outcome of the remittal is known.

64    Orders will be made accordingly.

Associate:

Dated:    17 October 2016