FEDERAL COURT OF AUSTRALIA

Kaur v Minister for Immigration and Border Protection [2019] FCAFC 53

ORDERS

THE COURT DIRECTS THAT:

1.    By 4 pm on 17 April 2019, the parties file and serve minutes of proposed consent orders reflecting the Court’s reasons, including:

(a)    whether the matter should be remitted to the Federal Circuit Court, or decided by this Court; and

(b)    appropriate orders as to costs.

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

REASONS FOR JUDGMENT

THE COURT:

1    This appeal concerns the continuing consequences of the fraudulent conduct of those migration agents working in the business known as S & S Migration. The question on the appeal is whether there is an appealable error in the approach taken by the Federal Circuit Court to rejecting the first appellant’s claims that the fraudulent conduct of her migration agent should be found to have invalidated her visa application.

2    The orders and reasons of the Federal Circuit Court are reported as Kaur & Ors v Minister for Immigration & Anor [2018] FCCA 166.

3    For the reasons set out below, the appeal should be allowed.

BACKGROUND

4    The appellants are husband and wife. The first appellant was the primary visa applicant. They also have a child. The visa status of the second appellant and the child is dependent on that of the first appellant.

5    The first appellant entered Australia on a student visa, granted for the purposes of enabling her to study hairdressing. Although she commenced a hairdressing course in February 2009, she then deferred because she became pregnant and had a child. Her student visa was due to expire in April 2011. A month or so prior to its expiry, the first appellant attended the offices of S & S Migration to engage them to assist her in a further visa application, having been referred there by a friend.

6    While it subsequently made some adverse findings against the first appellant about her conduct from about early 2012 onwards, the Federal Circuit Court appeared to accept the first appellant’s evidence as to what occurred when she went to see S & S Migration in March 2011 and how she later discovered her agent had fled Australia (at [19]-[21] of its reasons):

In March 2011, when her visa only had one month left before it expired, the applicant said she was told about S & S Migration by a girlfriend. The applicant visited S & S Migration and took with her passports, certificates, qualifications and her English language assessment. The applicant explained that she went to the reception and she was shown in to see a person who told her that he was a migration agent.

The applicant said she told the agent that she wanted to renew her student visa and he explained to her that she did not have to “fight for a student visa” as he could help her obtain a work visa for two to three years and then apply for residency. The applicant said she agreed and asked which documents she would need. The agent only required her passport at that stage (and that of her husband and child) which he photocopied and returned. The applicant said that she had to pay $1,500 which she paid to him.

The applicant said that the agent did not mention anything to her about how he would obtain the visa, but that she thought that as he was a regarded agent, he would do things lawfully. However, the applicant said that she had no contact with him after that until she eventually went back to see him and found that his office was locked. The applicant said she called a friend to ask about the situation and her friend told her that the agent had been engaged in fraud and that he had left Australia.

7    The visa application lodged (purportedly) by the first appellant was for a Skilled (Provisional) (class VC) subclass 485 (Skilled - Graduate) visa. In other words, it was a work visa, not a student visa. We refer to that visa as the “work visa” in these reasons. The application was lodged on 8 March 2011.

8    The following factual propositions were not in dispute before the Federal Circuit Court, and are not in dispute in this appeal:

(a)    S & S Migration did not file the visa application as agents on behalf of the first appellant; rather, the visa application was filled out and filed by them using the first appellant’s personal details, as if she had no migration agent;

(b)    The first appellant did not have the requisite qualifications for the class and sub-class of work visa she had applied for;

(c)    In the visa application, a reference number was provided for a skills assessment by Trades Recognition Australia;

(d)    Trades Recognition Australia confirmed to the Department that they had no record of providing the first appellant with that skills assessment;

(e)    The Department located records of the first appellant’s visa application at the premises of S & S Migration (after their widespread fraud had been uncovered), and the Department operated on the correct assumption that S & S Migration had assisted the first appellant to lodge the visa application.

9    The visa application also included what appeared to be a personal email address of the first appellant as the mode of communication in relation to the application. At the Federal Circuit Court hearing, the first appellant gave evidence it was not in fact her email address.

The decision-making on the visa application

10    The first appellant’s application for a work visa was refused by a delegate of the first respondent on 11 May 2012.

11    In the reasons for that decision, the delegate relied on the last fact referred to in [8(e)] above to find that the operation of s 98 of the Migration Act 1958 (Cth) meant, “in line with policy advice … that you are still legally taken to have completed the form even if it is completed on your behalf”. Section 98 of the Migration Act provides:

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.

12    On this basis, the delegate found that the first appellant did not satisfy Public Interest Criterion (PIC) 4020(1), as defined in Sch 4 of the Migration Regulations 1994 (Cth). The delegate set out the relevant sections of PIC 4020 as follows:

PIC4020(1) states:

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

the application for the visa .....

and PIC4020(5) provides the following definition:

(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.

13    Relevantly to the appeal, the delegate found that the Trades Recognition Australia reference number that was provided in the first appellant’s application form had been provided to indicate the first appellant had a valid skills assessment, which was a requirement for the grant of that class of visa, and that the statement that the first appellant had such a skills assessment was “both false and misleading at the time it was given”.

14    The delegate also found that, as the first appellant had not provided any information to the Department in response to its invitation to comment on adverse information in relation to the first appellant’s visa application, there was no basis to waive the requirements of PIC 4020(1) (which the delegate had power to do under PIC 4020(4), in compassionate or compelling circumstances).

15    The invitation to comment had been sent by the Department on 20 February 2012, in the form of a letter contained in an email. The email was sent to the first appellant at the email address which had been provided on her visa application. We note that email address ends in “in”, which we infer may refer to “India”, and which we infer is not an Australian-based email address as it does not end in “au”. We will refer to this letter in our reasons as the “February 2012 correspondence”.

16    However, as the first appellant stated in evidence to the Federal Circuit Court, which was not directly addressed by the Federal Circuit Court in its findings, the email address used in the February 2012 correspondence (and included in her visa application) was not the first appellant’s correct email address. The first appellant, when asked about this issue in the Federal Circuit Court, said:

MR MENG: Did you see this email at that time?

THE INTERPRETER: No. I don’t know this email because it’s not even my email ID.

MR MENG: Where is the – which email ID is not yours?

THE WITNESS: That’s [REDACTED].

THE INTERPRETER: Just [REDACTED]. It’s not my ID.

17    The February 2012 correspondence relevantly stated:

It is alleged that your 485 application, currently under consideration by the Department, was lodged with the assistance of a business known as S & S Migration, who have been found to have lodged applications to the Department containing false and misleading information. Whilst you have no agent declared in your application, the Department has identified a file with your personal details and the application reference numbers in the office of S & S Migration.

In addition, as part of your application you answered ‘yes’ to the question ‘have you applied to a relevant assessing authority for an assessment of your skills for your nominated occupation?’ Further, in your application you provided the following reference indicating a successful skills assessment TRA10/283118204. This reference was referred to TRA for verification. TRA have no record of providing you this skills assessment. TRA also have no record of ever providing you with any skills assessment. It is therefore alleged that you provided false and misleading information to the Department in relation to your application for a 485 visa.

You may provide comment on the information that is considered to be non-genuine, and specify if you believe there are any compelling circumstances affecting the interests of Australia, or compassionate or compelling circumstances affecting the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen, to justify the waiver of PIC 4020 and the grant of the visa.

18    Under a subsequent heading titled “Withdrawing your application”, the February 2012 correspondence also provided the following information:

You can withdraw your application at any stage during processing. If any applicant wishes to withdraw their application, they must advise the department in writing. This advice can include any number of applicants but must be signed by each person aged 18 years and over

19    The circumstances in which the February 2012 correspondence came to the attention of the first appellant, and her state of knowledge about its contents, became an important part of the evidence before the Federal Circuit Court, and was central to its decision that she was, at least, “indifferent” to the fraud of S & S Migration.

20    The delegate’s reasons for refusing the first appellant’s visa application referred to, and relied on, the allegations put to the first appellant in the February 2012 correspondence. A copy of the delegate’s decision was sent to both the first appellant at the same private email as appeared on her visa application (which, as we have noted above, the first appellant testified was incorrect), and to Miss Ada Falcon, a migration agent the first appellant retained after she discovered S & S Migration had closed down. We note here, and it may be of some significance, that in November 2011, Miss Falcon had notified the Department, together with the appropriate form, that she had been appointed as the first appellant’s migration agent. That evidence was uncontradicted and unchallenged, and appears from the Department’s own records. On that basis, the fact that the copy of the February 2012 correspondence in evidence was only sent to the first appellant’s email gives rise to a factual issue that the Federal Circuit Court’s reasoning, again, did not directly address. Did the Department make a mistake and omit to send the February 2012 correspondence to Miss Falcon? Or did the Department send it to Miss Falcon separately? Or did Miss Falcon obtain it herself from the Department, by asking for copies of documents on the first appellant’s file (as a responsible agent might well have done)?

21    On 28 May 2012, the first appellant applied for review of the delegate’s decision by the Migration Review Tribunal. When that application was lodged, it contained information to the effect that she was represented by a registered migration agent. Miss Falcon was recorded as the “representative” of the first appellant and her family, and as the “authorised recipient” of communications from the Tribunal in relation to the review application.

22    The evidence reveals that the Tribunal treated reviews such as the appellants’ as part of a group of cases where applicants were affected by the conduct of S & S Migration. The Tribunal made the following request for information from the Department in relation to that group of cases:

The tribunal requests that you provide - separately for each case - a copy of the evidence that the delegate relied on to conclude that the applicant did not satisfy PIC 4020 - for instance (a) confirmation from TRA* that the applicant does not have the skills assessment referred to in the visa application and (b) material obtained from the premises of S & S Migration linking the applicant to that agent.

23    The Court does not appear to have before it the evidence provided to the Tribunal as a result of this request, although there is some correspondence between the Department and the Tribunal which appears to show that the source documents were never provided to the Tribunal officer who initially requested that information.

24    On 3 April 2014 (that is, almost two years after lodging an application for review of the delegate’s decision), the Tribunal sent a letter to Miss Falcon, enclosing a separate letter to the first appellant and her family, inviting them to comment on or respond to the following two categories of “information”:

The particulars of the information are:

•    TRA (Trades Recognition Australia) has no record of providing the skills assessment referred to in the visa application

•    Documents or information relating to you was located in the office of S & S Migration which entity has been found to have lodged applications to the Department that contained false or misleading information

25    The letter appears to have been sent to the first appellant and her family pursuant to the Tribunal’s obligation under s 359A of the Migration Act.

26    On 12 May 2014, Miss Falcon sent a handwritten fax to the Tribunal stating that “due to financial reasons” she was unable to continue to act for the first appellant. She asked for her name to be taken off the file.

27    That communication may explain why the first appellant replied personally to the Tribunal’s invitation to comment by email on 28 April 2014, attaching a statement dated 26 April 2014. There is no evidence to indicate whether Miss Falcon assisted the first appellant to prepare this statement, or not. In that reply, the first appellant set out her own explanation of how she had come to use the services of S & S Migration. Relevantly, she said:

5. I came to know that [Jeetinder Singh of S & S Migration] has ruined the careers of so many students. Later, I got a letter that my application has Adverse Information and DIBP requested me to comment on that, As I wasn't aware of anything about what has happened with my application so I couldn't replied to DIBP.

6. After few days I got an E-mail stating that my GSM visa has been refused. Then I applied for MRT.

28    These statements assumed some significance before the Federal Circuit Court and in this appeal, relevantly to the first appellant’s state of knowledge during the delegate’s decision-making process on her visa application.

29    On 5 August 2014, the Tribunal contacted the first appellant and her family again, this time to inform them that the Tribunal had been advised that Miss Falcon had passed away. The Tribunal appeared to believe that Miss Falcon was still acting for the first appellant, although the Tribunal had been informed (on 12 May 2014) that that was not the case. After offering condolences, the Tribunal asked the first appellant to either appoint a new representative and authorised recipient for correspondence, or provide her own contact details. The Tribunal followed this up with a phone call to the first appellant on 29 August 2014. There is a note of that phone call in evidence:

I called the RA in relation to the letter of 5 Aug 14 advising of the death of her rep. The RA stated that Ada Falcon had not been her rep for sometime and that she had notified immigration of this. I advised the RA that we were not immigration and that if there was a change in circumstances, then she needed to contact the MRT. The RA said she understood. I asked the RA if she had a new lawyer and she said she did. I asked the RA who that was and she responded that Ada Falcon was not her lawyer and that she was representing herself (it was unclear if the RA understood what I meant). I asked the RA again if she had appointed anyone else to be her lawyer and she replied that she told immigration. I then asked the RA if I could the details on our system to send all letters to her until she advised us otherwise of her new rep. The RA said this was ok. The RA asked if we could send her letters by email and I advised we did not have an email address on file. The RA said she had sent emails to immigration. I again advised we were separate to immigration and that if she wanted me to send her an email I could, provided she gave me the details. The email address she gave was: [REDACTED]. I repeated this email address back to the RA and she confirmed it was correct. I advised the RA that I would send her a hearing invite to her email address. I thanked the RA for her assistance and she thanked me for calling her.

30    We note the email address given by the first appellant during this conversation with a Tribunal officer was not the same email address as the one given to the Department by S & S Migration at the time of lodging her visa application, nor the same as the one to which the February 2012 correspondence was sent. This is consistent with the first appellant's evidence to the Federal Circuit Court, which we have extracted above.

31    Following that phone call, the Tribunal issued a hearing invitation to the first appellant and sent it to the email address she had given the Tribunal officer. The hearing was scheduled for 28 October 2014.

32    On 18 September 2014, a new migration agent notified the Tribunal he was acting for the first appellant. The agent did not accompany the first appellant and her family to the Tribunal hearing.

33    The Tribunal made its decision two days after the hearing, on 30 October 2014. It decided to affirm the delegate’s refusal to grant the first appellant a work visa, on the basis that the first appellant did not satisfy the criterion in PIC 4020. It relevantly found (at [12]-[17] of its reasons):

12.    The applicant submits that she did not actually give this false or misleading information to the Department. Instead ‘Jeetender’ from S & S Migration gave the false or misleading information to the Department.

13.    On this point the Tribunal notes that s.98 of the Act provides that a visa applicant who does not fill in his or her own application form will be taken to have done so if he or she causes it to be filled in or if it is otherwise filled in on his or her behalf. The failure of an applicant to personally fill in or sign an approved form (or any associated declarations) has been found not to invalidate the application if it is otherwise filled in, signed and lodged with the applicant’s knowledge and consent: NAWZ v MIMIA [2004] FCAFC 199.

14.    Further, relevant case law in this area indicates that visa applications may be lodged on an applicant’s behalf so that, even where the applicant claims not to be familiar with its precise contents, he or she will be legally responsible for that application where he or she knows that the application has been made: see, e.g., Spurr v MIAC [2010] FMCA 996; SZHVJ v MIAC [2009] FMCA 320; SZJJM v MIAC [2010] FMCA 465; SZMME v MIAC [2009] FMCA 323.

15.    In the applicant’s case, she stated at the hearing that she engaged the services of S& S Migration on in March 2011, initially to seek advice about extending her student visa. However she was advised by ‘Jeetender’ at S & S Migration that she could not get her student visa and instead that he would get her a two or three year work permit and later on she would be eligible for permanent residency. The applicant gave him a copy of her (and her husband and daughter’s) passports and paid him $1500. A few days later he gave her notice of a bridging visa being granted. The applicant said a few months later she went to see him and his offices were closed. She then called her friend, who had recommended S & S Migration to her in the first place, and her friend told her that they had defrauded many other students. When asked at the hearing if she contacted the Department at this time, the applicant replied that she did not know what to do, so she did not.

16.    The Tribunal is therefore of the view that the applicant did engage S & S Migration for the purposes of obtaining a visa and that they acted on her behalf. Although she states that she was not aware that Jeetender had applied for a subclass 485 visa on her behalf, she was aware that he was not applying for a further student visa, but for a ‘work permit’, and paid him money to do so. The applicant did not check the visa application form and made no enquiries with the Department about her visa application, including after she found out the offices of S & S Migration had closed (in mid-2011). Given these circumstances, the Tribunal finds that the applicant caused the application form to be filled in within the meaning of s.98 and that the application was completed and lodged with the applicant’s knowledge and consent. Further, the Tribunal finds that, in preparing and submitting the present visa application, the applicant’s agent was acting within the scope of his authority. In these circumstances, the Tribunal further finds that the applicant is legally responsible for the contents of her application.

17.    Therefore, on the evidence before it the Tribunal finds that the applicant has ‘given or caused to be given’ this false or misleading information to the Minister or a relevant officer by causing a visa application to be lodged in her name in which this information was included.

34    The Tribunal did not consider whether the first appellant had been the innocent victim of fraudulent conduct perpetrated by S & S Migration. In fairness to the Tribunal, it is unclear whether any such argument was put to the Tribunal, and its decision was given well before the Full Court’s decisions in Singh v Minister for Immigration and Border Protection [2016] FCAFC 141; 247 FCR 554 and Gill v Minister for Immigration and Border Protection [2016] FCAFC 142; 248 FCR 398, although we note that SZFDE v Minister for Immigration and Citizenship [2007] HCA 35; 232 CLR 189 was decided in 2007.

The applications for judicial review in the Federal Circuit Court

35    On 25 November 2014, the first appellant sought judicial review of the Tribunal decision. Some two years later, on 11 October 2016, the Federal Circuit Court made orders, supported by an ex tempore judgment, dismissing her judicial review application. The first appellant appealed to this Court on 31 October 2016. Orders were made by consent on 16 May 2017 setting aside the decision of the Federal Circuit Court, following the judgments of the Full Court of this Court in Singh and Gill. The matter was remitted to the Federal Circuit Court.

36    The same Federal Circuit Court Judge heard the judicial review application on remitter.

37    The first appellant was given pro bono representation before the Federal Circuit Court on the second judicial review application. With leave, and without opposition from the Minister, the first appellant amended the relief sought from the Federal Circuit Court to the following:

1. A declaration that no valid visa application had been made by the Applicants to the Minister For Immigration and Border Protection for a Skilled Graduate (Class VC, Subclass 485) Visa on 8 March 2011 within the meaning of sections 46 and 47 of the Migration Act 1958 (Cth) (Act).

2. An order that the decision of the Migration Review Tribunal made on 30 October 2014 be set aside.

38    At [13] of the primary judge’s reasons, his Honour described the approach he considered was required by the authorities (including Singh and Gill):

In cases where the relevant conduct involves the engagement of a statutory provision, such as a visa application, there is no question of reliance by the department upon the conduct of the agent, as would be the case if an agent was entering into a transaction with a third party in a civil case. The key question in administrative law is whether or not the statutory provision is properly engaged. If the agent’s conduct is fraudulent, unbeknownst to the applicant (and the applicant is not indifferent to that conduct), then the provision is not validly engaged as there has been a fraud upon the department by the agent.

39    At [14], the primary judge relevantly added:

When an application is lodged on behalf of an applicant by a migration agent, it is appropriate to start from an assumption that, in the absence of any other evidence, the agent’s authority is to go no further than to conduct themselves lawfully and lawfully pursue an application for a visa of the type or general category sought by their client: see Gill v Minister for Immigration and Border Protection.

40    The first appellant gave evidence before the Federal Circuit Court, and was cross-examined. The primary judge made the following findings about her evidence.

41    At [23], the primary judge noted the February 2012 correspondence “clearly explained” to the first appellant that the Trades Recognition Australia skills assessment was being questioned, and indicated she could withdraw her visa application at any time during processing.

42    At [24], the primary judge noted the first appellant’s explanation that she “had not seen this letter until her lawyer gave it to her”. That was a reference to Miss Falcon.

43    At [26], the primary judge found the February 2012 correspondence to be “of central relevance” because it gave the first appellant an opportunity to withdraw her visa application. The primary judge then set out (between [26] and [32]) various aspects of the first appellant’s evidence about this correspondence, whether and when she received it, her state of knowledge about the information it provided concerning withdrawal, why she did not withdraw the visa application, and the role played by Miss Falcon. The primary judge referred to various parts of the transcript of the first appellant’s evidence in these passages.

44    At [32] to [37], the primary judge concluded:

32.    When asked to explain this evidence, the applicant said, “I – because I didn’t know that I have tell that exactly that my lawyer – my migration agent got a – got a email.”

33.    After being confronted with this evidence, the applicant then became emotional but was able to continue. The applicant explained later that she had told Ms Falcon that she had not completed any study here and did not have any documents to provide to the department as requested in the letter. It was clear that the applicant was well aware of the application at this point. It is also clear that the applicant did nothing at this time, which she explained on the basis that Ms Falcon had told her, “You cannot do anything” (T45). Towards the end of her evidence, when I asked about whether she was hoping that she would simply get a good decision from the department, the applicant became evasive.

34.    I have reflected upon the evidence of the applicant, in particular, that English is not her first language, and that these must be very stressful proceedings for her. Nonetheless, the variation in her account, particularly once her attention was drawn to the part of the letter advising that she could withdraw her application, was telling.

35.    I do not accept that the applicant is a witness of truth in these proceedings. Whether the applicant was aware that the application was fraudulent from the outset is unclear, although given the difference in the documents that she had to provide for her student visa application, and the minimal documents sought by the agent in this case, it is difficult to conclude that she would not have been on notice that it was unlikely to be a proper application.

36.    The fact that she later gave various versions to the Tribunal and the Court as to whether or not she received the letter from the department by email requesting her comment on the TRA assessment claim is particularly damaging to her credibility. It is clear that by the time the applicant was attending upon Ms Falcon she was aware that there was a fraudulent claim that had been lodged.

37.    On the balance of probabilities, I am persuaded that the applicant did receive a copy of the relevant letter, and was aware of its contents. The applicant was therefore aware that she could withdraw the application at any time. On the state of the applicant’s evidence, I am persuaded that she chose not to withdraw the application, but rather to take the course of waiting to see whether or not she was lucky enough to obtain a visa. At this point, at the very least, the applicant was indifferent to the fraud that had been committed upon the department.

45    The primary judge then found he was not much assisted by the evidence of the second appellant, and went on to find at [39]:

39.    As a result, I am not persuaded to accept the applicant’s evidence. I do not accept that she is a witness of truth. I am therefore not persuaded that the applicant has established the threshold requirements that she had no knowledge of and was not indifferent to fraud on the part of the agent. In any event, it is apparent from the evidence that the applicant and her husband did not choose to withdraw the visa application once they were aware that the fraudulent application had been lodged. In these circumstances, they must be taken to be indifferent to the fraud as they were content for the application to continue and hoped to obtain any relevant benefit from it.

THE APPEAL TO THIS COURT

46    The appellants filed a notice of appeal on 19 February 2018. By leave granted at the hearing of the appeal, the appellants relied on an amended notice of appeal which contained the following grounds:

1.    The primary judge erred in holding (at [37], [39]) that the first and second appellant were indifferent to the fraud that was committed by S & S Migration because that holding was based on factual findings and conclusions that were not reasonably open in the sense that they were not based on, or supported by, rationally probative evidence or logical grounds.

2.    Alternatively to the first ground of appeal, the primary judge erred in holding (at [37], [39]) that the appellants’ failure to withdraw their visa application was sufficient to amount to indifference to fraud.

3.    The primary judge’s reasons for judgment are inadequate in that they fail adequately to identify the evidential basis for or to provide an intelligible explanation of:

a.    the primary judge’s finding that he was persuaded on the balance of probabilities that (at [37]):

i.    the first appellant was aware of the contents of the letter sent by the Department and was aware that she could withdraw the visa application at any time; and

ii.    the first appellant chose not to withdraw the visa application but rather took the course to see whether or not she was lucky enough to obtain a visa; and

b    the primary judge’s finding that the first appellant was not a witness of truth (at [37], [39]).

47    The third ground was new, and leave was sought to raise it only during the hearing of the appeal.

48    The appellants thus challenge the Federal Circuit Court’s finding about the first and second appellants’ “indifference” to the fraud of S & S Migration on two bases:

(a)    First, an irrationality or illogicality basis, by reference to some of the factual findings made by the Federal Circuit Court along the way to its conclusion on indifference; and

(b)    Second, a contention that the Federal Circuit Court erred in holding that the first appellant’s failure to withdraw the visa application amounted to indifference. We take this to be a contention that the fact of the first appellant’s failure to withdraw the application, when put on notice of the fraud, was not in the circumstances capable of being characterised as “indifference” to a fraud, as that term is properly understood in the context of fraud in public law.

49    There is then a separate challenge to the adequacy of the Federal Circuit Court’s reasons, the inadequacy being contended to be at a sufficient level to justify, on the applicable authorities, an error of the kind which should result in the setting aside of the orders of the Federal Circuit Court.

50    In addition to written submissions filed ahead of the hearing of the appeal, given the application for leave to amend the notice of appeal which was made by counsel for the appellants at the hearing, the parties were given an opportunity to file supplementary submissions after the hearing addressing the new ground 3. Both parties filed supplementary written submissions.

51    We have considered all of the submissions filed by the parties, and the oral submissions. Where necessary, we refer to them in resolving the grounds of appeal.

RESOLUTION

52    Unlike many appeals from the Federal Circuit Court, while this appeal involves judicial review of the decision of a tribunal, the real area of controversy lies not in the content of the Tribunal’s decision, but in the terms of the declaratory relief sought by the appellants, as a consequence of the alleged fraud of S & S Migration.

53    The asserted invalidity of the first appellant’s visa application depended on whether it was affected by third party fraud, one that was not only a fraud on the appellants, but which also stultified one or more aspects of the visa application and determination process: see the High Court decision in SZFDE at [11], [28]-[37] and [47]-[55], Singh at [51]-[52] and Gill at [46]-[47] and [50]. Further, the availability of declaratory relief of the kind sought depended on the appellants (especially the first appellant) proving they were not “involved” in the fraud.

54    This fell to be decided, as the Full Court decisions disclose, by a trial on evidence about the nature of the first and/or second appellants’ involvement, if any, in the fraud of their migration agent. The focus at trial was properly on the conduct of the first appellant, as the primary applicant, the person with more functional English and, on the evidence, the person who was primarily involved in retaining and consulting three successive migration agents, and in communicating with the Department and the Tribunal.

55    In the exercise of its appellate jurisdiction, this Court does not look for jurisdictional error in the decision-making process of the Federal Circuit Court: rather, it looks for appealable error, in terms of the approach taken on the law by the Federal Circuit Court, and in its fact-finding.

The applicable principles on public law fraud

56    The principles applicable to the determination of whether fraudulent conduct vitiates a visa application are helpfully set out in the Minister’s written submissions at [6]-[9], and were not disputed by the appellants. They arise from the High Court’s decision in SZFDE, and four decisions of the Full Court of this Court, and there is no challenge to the correctness of those authorities:

First, the Act does not constitute an exhaustive statement as to when an application for a visa is valid; it “leaves … room for relevant fraudulent conduct on the parties of a migration agent or third party to invalidate an application” (Singh at [45]). A purported visa application prepared with the assistance of an agent may be invalidated by fraud in accordance with the principles discussed by the High Court in SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189 (Singh at [52]).

Secondly, whether a visa application prepared by a migration agent which includes fraudulent information will be invalidated depends on the role of the applicant. “[I]t is critical to establish whether the visa applicant colluded in the fraud or was, as the Full Court put it in Gill, ‘indifferent as to whether the agent used unlawful or dishonest means to obtain a visa’” (Marharjan at [53], citing Gill at [50]).

Thirdly, whether a purported visa application is valid is a “jurisdictional fact” that the Court must determine for itself (where the issues arises) (Marharjan at [35], [44], [122]).

Fourthly, the applicant has the onus of proving that “she or he has been the (innocent) victim of such a fraud” (Marharjan at [78]). An applicant must satisfy the court to the requisite standard that she or he was “neither complicit in the fraud not ‘indifferent’ to it, in the limited and particular sense explained in Gill and Singh”. “That is, as the Chief Justice observed in SZRUR v Minister for Immigration and Border Protection [2013] FCAFC 146; 216 FCR 445 at [51], a heavy burden”.

(Original emphasis and footnotes omitted.)

57    To this summary should be added the following propositions articulated by the High Court in SZFDE:

(a)    There are important differences between fraud in public and private law, in particular the need in the context of public law for a fraud to have an effect on the processes of the exercise of public power in order for it to vitiate those processes, and be capable of “unravelling” decisions or conduct: see SZFDE at [14], [24]-[27], [29], [42] (by reference to the reasons of French J (in dissent, and as his Honour then was) in the Full Court: Minister for Immigration and Multicultural Affairs v SZFDE [2006] FCAFC 142; 154 FCR 365), [47]-[49]. One way of expressing this is to ask whether the repository of the public power was “disabled” from performing its statutory functions by reason of the fraud (at [51]).

(b)    Often the only effective remedy for victims of fraud in public law is for the tainted decision-making process to be set aside and a “fresh untainted hearing conducted” (at [22]).

(c)    Circumstances where an applicant for judicial review has “colluded” in the fraud are excluded from these principles (at [28]).

(d)    A finding of fraud should specify “what was said that was fraudulent, how it was fraudulent, and how it was acted upon” (in the words of French J in SZFDE in the Full Court, quoted with approval by the High Court at [41]).

58    Relevantly for the resolution of the grounds of appeal in this case, the following matters should be emphasised:

(a)    The appellants, but in reality the first appellant, bore the onus of proving that she was the “innocent victim” of the undoubted and accepted fraud committed by S & S Migration: see Maharjan v Minister for Immigration and Border Protection [2017] FCAFC 213; 161 ALD 203 at [78].

(b)    While the High Court in SZFDE spoke only of “collusion” by a visa applicant as avoiding the otherwise unravelling effect of fraud in the public law context, authorities in this Court have held that, where a visa applicant is found to be “indifferent” to a fraud perpetrated by a third party as part of the decision-making process, this will also avoid the unravelling effect. We deal at [133]-[140] below with what we consider “indifferent” actually means in this context.

(c)    Relevantly to circumstances such as those the subject of this appeal, in order to deny the unravelling effect of a proven fraud, a Court must be satisfied on the balance of probabilities that a visa applicant was (recklessly) indifferent to whether her or his migration agent used unlawful means, or fraudulent information, to attempt to secure the applicant a visa: see Gill at [48]-[49]; SZFDE at [25].

(d)    Recalling the point made by French J in the Full Court in SZFDE, it is necessary for the Court to identify with precision what the fraud was, how it was perpetrated, and what effect it had.

Applicable principles on an appeal from the Federal Circuit Court

59    The appellants’ submissions on the principles applicable to whether or not a factual finding was “open” to the Federal Circuit Court referred principally to authorities dealing with the reasoning processes of administrative decision-makers. These included authorities such as Minister for Immigration and Ethnic Affairs v Pochi [1980] FCA 85; 31 ALR 666, Australian Broadcasting Tribunal v Bond [1990] HCA 33; 170 CLR 321 and Minister for Immigration and Multicultural Affairs v Rajamanikkam [2002] HCA 32; 210 CLR 222.

60    That approach is not necessary where there is a right of appeal, by way of rehearing, to this Court. This Court is able to correct errors of law, and of fact, made by the Federal Circuit Court and, if appropriate, substitute its own decision on the appeal for that of the Federal Circuit Court. That is frequently what occurs in the migration jurisdiction: there is no remitter.

61    However, unlike most migration appeals, the real question here is not whether the Federal Circuit Court was correct to find the Tribunal’s decision was not affected by jurisdictional error, but whether the declaratory relief sought by the appellants should be granted. If granted, that relief is likely to make the decisions of the delegate and the Tribunal susceptible to being set aside, because they were made in respect of an invalid application.

62    Therefore, on appeal, the question for this Court is whether the Federal Circuit Court was correct in fact and in law to refuse to grant the relief sought by the appellants. That in turn takes the Court to a well-established line of authority, not without its difficulties, about the role of appellate courts when reviewing a primary judge’s findings of fact, in particular where that fact-finding turned in part on issues of credibility.

63    The general statement of principle, in terms of approach, appears in Warren v Coombes [1979] HCA 9; 142 CLR 531 at 551 and 552-3 (Gibbs ACJ, Jacobs and Murphy JJ):

Shortly expressed, the established principles are, we think, that in general an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge. In deciding what is the proper inference to be drawn, the appellate court will give respect and weight to the conclusion of the trial judge, but, once having reached its own conclusion, will not shrink from giving effect to it.

…

Again with the greatest respect, we can see no justification for holding that an appellate court, which, after having carefully considered the judgment of the trial judge, has decided that he was wrong in drawing inferences from established facts, should nevertheless uphold his erroneous decision. To perpetuate error which has been demonstrated would seem to us a complete denial of the purpose of the appellate process. The duty of the appellate court is to decide the case — the facts as well as the law — for itself. In so doing it must recognize the advantages enjoyed by the judge who conducted the trial. But if the judges of appeal consider that in the circumstances the trial judge was in no better position to decide the particular question than they are themselves, or if, after giving full weight to his decision, they consider that it was wrong, they must discharge their duty and give effect to their own judgment. Further there is, in our opinion, no reason in logic or policy to regard the question whether the facts found do or do not give rise to the inference that a party was negligent as one which should be treated as peculiarly within the province of the trial judge. On the contrary we should have thought that the trial judge can enjoy no significant advantage in deciding such a question. The only arguments that can be advanced in favour of the view that an appellate court should defer to the decision of the trial judge on such a question are that opinions on these matters very frequently differ, and that it is in the public interest that there should be finality in litigation. The fact that judges differ often and markedly as to what would in particular circumstances be expected of a reasonable man seems to us in itself to be a reason why no narrow view should be taken of the appellate function. The resolution of these questions by courts of appeal should lead ultimately not to uncertainty but to consistency and predictability, besides being more likely to result in the attainment of justice in individual cases. The interest of the community in the speedy termination of litigation might, no doubt, be an argument in favour of the complete abolition of appeals, although that would be far too high a price to pay merely for finality. However, if the law confers a right of appeal, the appeal should be a reality, not an illusion; if the judges of an appellate court hold the decision of the trial judge to be wrong, they should correct it.

64    In the recent case of Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; 357 ALR 408, Gageler J considered the nature of an appeal by way of rehearing, and relevantly stated at [30]-[34]:

Like an appeal in the strict sense, of which an appeal to the High Court under s 73 of the Constitution is the prime example, an appeal by way of rehearing is a procedure under which the appellate court is permitted and, unless the appellate court dismisses the appeal or remits the matter for rehearing, required to “give the judgment which in its opinion ought to have been given in the first instance”. And like an appeal in the strict sense, an appeal by way of rehearing is a procedure for the correction of error. “[T]he existence of an error, whether of law or fact, on the part of the court at first instance is an indispensable condition of a successful appeal.”

For practical purposes, the difference between correction of error on an appeal in the strict sense and correction of error on an appeal by way of rehearing lies in the temporal perspective that the appellate court is required to adopt in examining the correctness of the judgment under appeal. An appellate court determining an appeal in the strict sense is required to determine the correctness of the judgment under appeal at the time that judgment was given: in an appeal from a final judgment of a judge sitting without a jury, the correctness of the judgment is to be determined on the evidence adduced at the trial and on the law as it then stood. An appellate court determining an appeal by way of rehearing, in contrast, is required to determine the correctness of the judgment under appeal in retrospect: in an appeal from a final judgment of a judge sitting without a jury, the correctness of the judgment is to be determined on the evidence adduced at the trial supplemented by any further evidence that the appellate court may allow to be adduced on the appeal, and on the law as it stands when the appellate court gives judgment on the appeal.

To the extent necessary to address the ground or grounds on which an appellant claims that a judgment under appeal is erroneous, an appellate court in an appeal (whether in the strict sense or by way of rehearing) from a final judgment of a judge sitting without a jury “is obliged to conduct a real review of the trial and … of [the] judge’s reasons”. The appellate court “cannot excuse itself from the task of weighing conflicting evidence and drawing its own inferences and conclusions”.

Performing its obligation to conduct a “real review”, the appellate court “must, of necessity, observe the ‘natural limitations’ that exist in the case of any appellate court proceeding wholly or substantially on the record”. Limitations of that nature can include: “those occasioned by the resolution of any conflicts at trial about witness credibility based on factors such as the demeanour or impression of witnesses; any disadvantages that may derive from considerations not adequately reflected in the recorded transcript of the trial; and matters arising from the advantages that a primary judge may enjoy in the opportunity to consider, and reflect upon, the entirety of the evidence as it is received at trial and to draw conclusions from that evidence, viewed as a whole”. The appellate court needs to be conscious that “[n]o judicial reasons can ever state all of the pertinent factors; nor can they express every feature of the evidence that causes a decision-maker to prefer one factual conclusion over another”. The more prominently limitations of that nature feature in a particular appeal, the more difficult it will be for the appellate court to be satisfied that the primary judge was in error.

Natural limitations on an appellate court’s ability to be satisfied of error on the part of a primary judge inhering in the need for the appellate court to proceed on the record play no part in this appeal. They have little impact in practice on the determination of an appeal from a judgment given in a proceeding for judicial review of administrative action. Ordinarily, as here, the trial of a judicial review proceeding will have been conducted wholly or substantially by reference to documentary and affidavit evidence which an appellate court is in as good a position to evaluate as was the primary judge.

(Footnotes omitted.)

65    Clearly, the last paragraph of Gageler J’s reasons applies with qualifications in the present appeal, because of the different nature of the issue before the Federal Circuit Court, and the fact that the first appellant’s evidence was critical to the determination of that issue.

66    The Minister submits (at [11] of his written submissions) that the outcome of the authorities dealing with an appeal from findings of fact based on credibility is the proposition from the High Court’s decision in Robinson Helicopter Company Incorporated v McDermott [2016] HCA 22; 331 ALR 550, that appellate courts:

… “should not interfere with a judge’s findings of fact unless they are demonstrated to be wrong by ‘incontrovertible facts or uncontested testimony’, or they are ‘glaringly improbable’ or ‘contrary to compelling inferences’”.

(Footnotes omitted.)

67    As a starting observation, care needs to be taken with the context in which some of the cautionary statements about appellate interference have been made. The relevant trial in Dincel Construction System Pty Ltd v AFS Systems Pty Ltd [2018] FCAFC 157; 360 ALR 273, for example, was a three day patents case, and involved expert evidence. The trial in Robinson Helicopter lasted for five weeks, with close to 20 witnesses, and also involved expert evidence.

68    How the plurality in Robinson Helicopter at [43] explained the correct approach should be recalled:

The fact that the judge and the majority of the Court of Appeal came to different conclusions is in itself unremarkable. A court of appeal conducting an appeal by way of rehearing is bound to conduct a “real review” of the evidence given at first instance and of the judge’s reasons for judgment to determine whether the judge has erred in fact or law. If the court of appeal concludes that the judge has erred in fact, it is required to make its own findings of fact and to formulate its own reasoning based on those findings. But a court of appeal should not interfere with a judge’s findings of fact unless they are demonstrated to be wrong by “incontrovertible facts or uncontested testimony”, or they are “glaringly improbable” or “contrary to compelling inferences”. In this case, they were not. The judge’s findings of fact accorded to the weight of lay and expert evidence and to the range of permissible inferences. The majority of the Court of Appeal should not have overturned them.

(Footnotes omitted.)

69    The part of this passage which is of most relevance to this appeal is the reference to a “range of permissible inferences”. Any inferences must be “permissible” – that is, within a reasonable and fair range on the evidence. For reasons we explain below, the Federal Circuit Court’s impugned findings, which are almost all inferential in nature, do not fall into that category. There was an insufficient evidentiary basis upon which to draw them, and the primary judge did not address a range of uncontradicted evidence in drawing the inferences he did.

70    Moreover, as Besanko and McKerracher JJ pointed out in Dincel at [46] (Kenny J agreeing), the following expression of principle from the plurality in Fox v Percy [2003] HCA 22; 214 CLR 118 at [29] remains the law:

Litigation beyond a trial is costly and usually upsetting. But in every appeal by way of rehearing, a judgment of the appellate court is required both on the facts and the law. It is not forbidden (nor in the face of the statutory requirement could it be) by ritual incantation about witness credibility, nor by judicial reference to the desirability of finality in litigation or reminders of the general advantages of the trial over the appellate process.

71    As Besanko and McKerracher JJ went on to explain at [47]-[50], there are many other decisions which have considered these principles, and in particular those principles as expounded in the decisions of the High Court in Robinson Helicopter, Warren v Coombes and Fox v Percy, including Aldi Foods Pty Ltd v Moroccanoil Israel Ltd [2018] FCAFC 93; 358 ALR 683.

72    In Aldi Foods, Allsop CJ made clear that (i) the proposition in Robinson Helicopter set out at [66] of our reasons above, upon which the Minister relied, must be read with regard to the cases cited in the relevant footnotes and to the balance of the judgment; and (ii) it is plain that the High Court intended no departure from long-standing principle. As the Chief Justice said (Markovic J agreeing) at [3] and [9]:

[3] The footnotes to the paragraph and the balance of the judgment (see especially at [56]) make it plain that no departure from long-standing principle discussed in Warren v Coombes (1979) 142 CLR 531; 23 ALR 405, Fox v Percy (2003) 214 CLR 118; 197 ALR 201; 38 MVR 1; [2003] HCA 22 (Fox v Percy) and State Rail Authority (NSW) v Earthline Constructions Pty Ltd (in liq) (1999) 73 ALJR 306; 160 ALR 588; [1999] HCA 3 (SRA v Earthline) was intended. The references by the Court that “a court of appeal should not interfere with a judge’s finding of fact unless they are demonstrated to be wrong by ‘incontrovertible facts or uncontested testimony’ or they are ‘glaringly improbable’ or ‘contrary to compelling inferences’” should be understood by reference to the footnotes. The references to Fox v Percy at [28]–[29] are plainly to findings of fact reached after assessing competing witnesses for their reliability and credibility. The reference to Miller & Associates Insurance Broking Pty Ltd v BMW Australia Finance Ltd (2010) 241 CLR 357; 270 ALR 204; [2010] HCA 31 at [76] is an indirect reference, in the context of fact-finding involving witnesses, to Fox v Percy at [23]–[29]. These latter references to Fox v Percy are important because they recognise the importance of the advantages of the trial process discussed by Kirby J in SRA v Earthline at [89]–[91] and adopted by Gleeson CJ, Gummow J and Kirby J in Fox v Percy at [23]. The whole of [20]–[31] of Fox v Percy is important and I do not read the Court in Robinson Helicopter as saying at [43] that any finding of fact made by a trial judge can only be interfered with if the expressions referred to above and derived from Fox v Percy are satisfied. The findings of fact of the trial judge in Robinson Helicopter were made after a trial of five weeks in which close to 20 witnesses gave oral evidence, whose evidence had to be assessed, balanced and evaluated as the case unfolded. The trial judge had the advantages of seeing lay and expert witnesses in assessing their credit and reliability, and he also had the advantages of the kind discussed in SRA v Earthline including “the unique benefit of viewing two helicopters of the kind which crashed … [and] … the opportunity to consider all of the evidence in its totality and to reflect upon its interaction”: Robinson Helicopter at [57].

…

[9] A test of “plainly and obviously wrong” (whatever its precise content) is blunt and lacks nuance. It invites the setting of a standard of appellate review higher than it should be, by its formulaic false simplicity and false clarity.

(Original emphasis.)

73    Those passages, and the other paragraphs from the judgment of the Chief Justice in that case on the same topic (viz, [4]-[10]) have been cited with approval on numerous occasions, including in Nichia Corporation v Arrow Electronics Australia Pty Ltd [2019] FCAFC 2 at [109]; Australian Meat Group Pty Ltd v JBS Australia Pty Limited [2018] FCAFC 207; 363 ALR 113 at [44]; Generic Health Pty Ltd v Bayer Pharma Aktiengesellschaft [2018] FCAFC 183; 361 ALR 248 at [18]; Aussiegolfa Pty Ltd (Trustee) v Commissioner of Taxation [2018] FCAFC 122; 130 ACSR 1 at [163]; Lowbeer v De Varda [2018] FCAFC 115 at [61]; and Homart Pharmaceuticals Pty Ltd v Careline Australia Pty Ltd [2018] FCAFC 105 at [37].

74    In this appeal, the primary judge’s reasoning is principally inferential, drawn from the documentary evidence and the evidence of the first and second appellants.

75    There were few, if any, “subtle effects of demeanour” at work here, such that the restrained approach set out by the Full Court in Forster v Minister for Immigration and Border Protection [2018] FCAFC 125 at [43] might be invoked. The primary judge did not explain his findings by reference to the first appellant’s demeanour other than by the use of the single descriptor of “evasive” and (perhaps) by the statement that the first appellant “became emotional”, at [33] of his reasons. We deal with both these aspects of the primary judge’s reasoning in more detail below, because they form part of the challenge in ground 1.

76    Indeed, a number of “subtleties” were not taken into account by the primary judge. The first appellant gave some evidence in English, which is clearly not her first language, but gave most of her critical evidence through an interpreter. His Honour did not take into account whether the first appellant’s use of different terms in English (through an interpreter) from time to time such as “give” and “read” and “told” might not be as significant to the narrative as he apparently considered they were (see [103] below). His Honour did not take into account the significance of the absence of evidence from Miss Falcon, the appellants’ migration agent, other than to acknowledge, at [24] of his reasons, that Miss Falcon was “not able to be called to give evidence”, due to having passed away, and that “[n]one of her files were available”. His Honour was also not an impartial observer of the first appellant’s demeanour: he was, as we describe later in these reasons, an active participant in the adversarial process. He intervened to effectively cross-examine the first appellant himself. He interrupted her evidence. He interrupted her counsel. In terms of how his Honour approached his credibility findings, we do not consider this was a trial about the “subtle effects of demeanour”.

Findings on the circumstances of the fraud

77    One of the difficulties with the reasons of the Federal Circuit Court is that the primary judge does not clearly set out his findings of fact about the circumstances of the fraud. It is necessary to do that, in order to explain the conclusions we have reached on this appeal, and to explain why we have found the orders of the Federal Circuit Court are affected by error.

78    The first appellant retained S & S Migration to act for her in her visa application and paid them $1,500.00 for their services. She accepted their advice about the kind of visa she should apply for. S & S Migration filed the work visa application for the first appellant. The first appellant did not complete the visa application form, or see it, or sign it, before it was submitted. It was submitted through an entirely “online” process. S & S Migration did not identify themselves on the application form as her migration agents: instead, they completed the form so as to represent it was filed by the first appellant personally, and indicated in the form that communications regarding the application should be with her personally, through an email address set out in the form which was, on the first appellant's uncontested evidence, incorrect.

79    The visa application form contained a number of statements, purporting to have been made by the first appellant, which were false. For example:

(a)    Under the heading “Skills Assessment”, in answer to the question “Have you applied to a relevant assessing authority for an assessment of your skills for your nominated skilled occupation?” the answer “Yes” is typed.

(b)    In answer to the later question “Is all the information above correct?” the answer “Yes” is typed. This question and answer appear at several points on the visa application form.

(c)    In answer to the question “Did you receive assistance in completing this form?” the answer “No” is typed, and therefore the consequential questions dealing with assistance (including whether the person providing assistance to complete the form was a migration agent) are said to be unnecessary to answer.

(d)    Under the heading “Applicant skills assessment”, the nominated occupation is listed as “Hairdresser”, and the name of the assessing authority is listed as “Trades Recognition Australia”, with a date of skills assessment entered as “19 Jan 2010” and the reference/receipt number given as “TRA10/283118204”.

80    Aside from the nominated occupation being listed as “Hairdresser”, the rest of the answers provided under the “Applicant skills assessment” section of the form were not only false, in terms of being untrue, but also misleading because there had been no such skills assessment conducted by Trades Recognition Australia in respect of the first appellant.

81    There is then a section titled “Declaration for all applicants” which contains the following information:

Warning: Under the Migration Act 1958, there are penalties for deliberately giving false or misleading information.

I declare that the information I have supplied in this application is complete, correct and up-to-date in every detail.

I understand that if I give false or misleading information, my application may be refused, or any visa granted may be cancelled.

I understand that if this application is approved, any person not included in this application will not have automatic right of entry to Australia by way of this application.

I will inform the department of any changes to my personal circumstances (including change of address) while my application is being considered.

(Original emphasis.)

The word “Yes” is typed in answer to this declaration.

82    The fraud can be described in the following terms: the false and deliberate representation by S & S Migration to the Minister, through the lodgement of this visa application form, that the first appellant had, at the time of lodging the visa application, a positive skills assessment from Trades Recognition Australia in respect of her nominated occupation as a hairdresser, when in fact she did not, and that she was in this respect able to satisfy the criteria for the grant of the work visa, when in fact she could not. The intention of S & S Migration, it can be inferred (and there was no real debate about this matter) was to secure the grant of a visa to the first appellant on a false basis.

83    The evidence then shows that on 20 December 2011, after Miss Falcon’s appointment, the Department was advised by Trades Recognition Australia that it held no record for the first appellant, and that the reference for a skills assessment provided in her visa application could not be verified because it did not exist on the Trades Recognition Australia systems.

84    It was two months later, on 20 February 2012, that the Department informed the first appellant (and possibly Miss Falcon) of this situation, as we have described at [15]-[18] above.

Our findings on the approach of the Federal Circuit Court

85    We consider the key factual findings of the Federal Circuit Court, relevant to the grounds of appeal, to be the following:

(a)    The February 2012 correspondence was a “key document”, in particular because it advised the first appellant that she could withdraw her visa application at any time during processing ([23], [26]);

(b)    The February 2012 correspondence was sent to the first appellant at the personal email address S & S Migration had provided to the Department in the visa application form ([23]);

(c)    The first appellant “did nothing” after receipt of the February 2012 correspondence ([33]);

(d)    The applicant was evasive in response to a question from the primary judge about whether “she was hoping she would simply get a good decision from the department” and also “became emotional” when responding to key questions ([33]);

(e)    There was variation in the first appellant’s accounts of whether she received the February 2012 correspondence personally, especially after her attention was drawn to the part of that correspondence in which she was advised that she could withdraw her application ([34], [36]);

(f)    The first appellant was not a “witness of truth” ([35], [39]);

(g)    “… given the difference in the documents that [the first appellant] had to provide for her student visa application, and the minimal documents sought by the agent in this case, it is difficult to conclude that she would not have been on notice that it was unlikely to be a proper application” ([35]);

(h)    At the time the first appellant was “attending upon” Miss Falcon (and before the delegate’s decision), she was aware a fraudulent claim had been lodged by S & S Migration ([36]);

(i)    The first appellant did receive a copy of the February 2012 correspondence and was aware of its contents ([37]);

(j)    The first appellant was therefore aware she could withdraw her visa application at any time, and chose not to, instead taking the course to see if she was “lucky enough to obtain a visa” ([37], [39]);

(k)    At that point, the first appellant (and the second appellant) were indifferent to the fraud committed by S & S Migration ([37], [39]); and

(l)    The first appellant had not established “the threshold requirements that she had no knowledge of and was not indifferent to [the] fraud on the part of [S & S Migration]” ([39]).

86    We turn now to consider the grounds of appeal.

Ground 1: Primary judge’s findings “not open”

87    The appellants impugn a number of the primary judge’s findings under this ground, as set out in the amended notice of appeal and the appellants’ written submissions. The impugned findings fall into two categories: first, that it was not open to the primary judge to find the first appellant was aware that she could withdraw the work visa application. Second, that it was not open to the primary judge to make credibility findings about the first appellant on the basis of “variation” in her account or that she became “evasive” when giving evidence. Submissions were also made that these findings were illogical, or irrational, which in our opinion is simply another way of characterising the asserted error by the primary judge.

Not open to find the first appellant was aware she could withdraw the visa application

88    The appellants submit, and we accept, that it was not open to the primary judge to find, on the evidence before him and as a positive fact, that the first appellant was aware she could withdraw her visa application. The time period relevant to this finding is from the receipt of the February 2012 correspondence until the delegate’s decision on 11 May 2012.

89    This finding was, in our view, the critical finding which led the primary judge to conclude that the first appellant was “indifferent” to the fraud perpetrated by S & S Migration. It was from this fact that his Honour reasoned the appellants (but especially the first appellant) “chose” not to withdraw the visa application, and instead decided to “see whether or not [they were] lucky enough” for the visa application to succeed, notwithstanding the fraudulent information it contained.

90    For the purpose of this line of reasoning, and assuming the alternative argument advanced in ground 2 of the appeal fails, the question for the primary judge, if he was to rely on the first appellant’s knowledge of her ability to withdraw the visa application as an indicator of “indifference” to the fraud, was what was the first appellant’s state of knowledge between around 20 February 2012 and 11 May 2012 about her ability to withdraw her visa application? After that period of time, any knowledge held by the first appellant about an ability to withdraw the application could not be relevant, because the time to withdraw had passed. The primary judge’s reasoning – that the first appellant made a positive decision to take her chances with the existing (fraudulent) visa application – could only apply up until 11 May 2012.

91    It is an accepted fact that neither the first appellant, nor Miss Falcon on her behalf (who had been acting as her migration agent since around November 2011) responded to the February 2012 correspondence.

92    In support of his finding that the first appellant was aware she could withdraw her visa application at any time, the primary judge referred to passages of the transcript of evidence of the first appellant before the Federal Circuit Court, three paragraphs of her written statement to the Tribunal and a passage of her oral evidence before the Tribunal.

93    Turning first to the first appellant’s written statement to the Tribunal, it is true, as the primary judge sets out at [30] of his reasons, that in her written statement the first appellant described what happened by stating that she “got” a letter from the Department requesting comment. The primary judge appears to have interpreted her use of the word “got” as meaning that she personally received the correspondence by email. This interpretation of “got” takes no account of the first appellant’s evidence about her incorrect email being used on the visa application and in the February 2012 correspondence.

94    Turning next to the Tribunal evidence, it is correct, as the primary judge sets out at [31] of his reasons, that the account given by the first appellant to the Tribunal regarding the February 2012 correspondence used different language. Her description about how she came to know about the correspondence was as follows:

Then I conclude that he – he had done a fraud with many other students also and I received nearly one year – nearly one – one year later I received an email from Immigration Department and in that they said that a TRA assessment that I lodged, that is refused and – and they asked me to comment upon that.

(Emphasis added.)

95    The primary judge appears to have relied on the use by the first appellant of the word “received” to, again, interpret what she said as meaning she personally received the February 2012 correspondence by email. Again, that is contrary to her unchallenged evidence about the incorrect email address.

96    At [32], the primary judge notes that the first appellant explained the language she used:

When asked to explain this evidence, the applicant said, “I – because I didn’t know that I have tell that exactly that my lawyer – my migration agent got a – got a email.”

97    It would appear from his Honour’s later findings about the first appellant not being a “witness of truth”, that the primary judge did not accept this explanation, although his Honour does not say so expressly. In fact, when the context of this evidence from the first appellant is considered, especially given it was being taken through an interpreter, it is difficult to see what was unreliable, or not credible, or incompatible, about what the first appellant said:

MR BROWN: Ms Kaur, I just want to go back to this document at court book 21. Your lawyer, Mr Meng, took you to it this morning. He showed it to you, and he said – he asked you this question, and my solicitor has recorded a note here, which accords in my memory:

So did this email ever come to your attention?

And you said:

My lawyer sent this to me.

THE INTERPRETER: When I check my email I didn’t find it, and I know that – when I checked my email there were only email was sent to me.

MR BROWN: That’s not my question.

THE WITNESS: Yes.

MR BROWN: This morning you told Mr Meng that your lawyer had sent you that document. Is that the truth?

THE WITNESS: That – that document?

THE INTERPRETER: This document?

MR BROWN: Yes. Court book 21.

THE INTERPRETER: I’ve seen it only in this. My lawyer didn’t – lawyer didn’t send me.

MR BROWN: Sorry. Could you repeat that.

THE INTERPRETER: I saw in this book. My lawyer didn’t send me.

MR BROWN: Moments ago I asked you. I said, “You said this morning that Ada Falcon showed that letter to you,” and then I said, “Did you read it?” and you said, “Yes.”

THE INTERPRETER: I just didn’t read the whole. Just went through, and she is the one who explain it to me wholly.

MR BROWN: I want to be clear about this. Did Ada Falcon send you that document?

THE WITNESS: No. No.

THE INTERPRETER: No.

MR BROWN: Did you read that document?

THE INTERPRETER: I did read it, but she made – she explained to me about this, and she is the one who explained to me this, and it’s a long time ago. I’ve forgotten many things now.

MR BROWN: All right. If you could turn to court book page 64. Sorry. I should say court book page 63. Do you recognise that document?

THE WITNESS: Yes, sir.

MR BROWN: Yes. That’s a document you sent to the tribunal when the tribunal was reviewing the department’s decision?

THE WITNESS: Yes.

MR BROWN: Yes.

THE WITNESS: Yes, sir.

MR BROWN: Yes. If you go to page 64. What you told the tribunal was – and if you look at the number 5:

I came to know that he has ruined the careers of so many students. Later I got a letter that my application has adverse information and DIBP requested me to comment on that.

And so you’re telling - - -

THE INTERPRETER: She said she understand, your Honour.

MR BROWN: Yes. And so you’re telling the tribunal that you got a letter asking you to comment on information from the department. That’s right. And that’s the letter we’ve been talking about, the one that Ada Falcon showed you or gave to you. Is that right?

THE WITNESS: Yes.

MR BROWN: Yes. And you – so you told the tribunal you got that letter, and then you say:

As I wasn’t aware of anything about what has happened with my application, so I couldn’t reply to DIBP.

THE WITNESS: Yes, sir.

MR BROWN: So it’s clear from that, isn’t it, you were given a copy of the letter when it came to Ms Falcon, weren’t you?

THE WITNESS: No. I got a letter means – that’s why I wrote that I got a letter, and I didn’t explain that my lawyer got a – my migration agent got a letter. Okay.

MR BROWN: Sorry. Could you repeat that, please.

THE WITNESS: Okay.

THE INTERPRETER: I didn’t understand your answer.

THE WITNESS: Okay.

THE INTERPRETER: I didn’t know that I have to explain about the lawyer.

THE WITNESS: That my lawyer got a letter. I – I didn’t know that I have to explain here that my lawyer got a letter. Like I explain here just I got a letter that – that’s what your question is, sir?

98    The third and final aspect of the evidence on which the primary judge relied for his finding that the first appellant was aware she could withdraw her visa application and deliberately chose not to was the first appellant’s evidence before the Federal Circuit Court. It is correct, as the primary judge found, that initially in her evidence-in-chief to the Federal Circuit Court the first appellant stated Miss Falcon had “given” her the February 2012 correspondence. It is also true that she subsequently denied during cross-examination that Miss Falcon had sent the correspondence to her, and said instead that Miss Falcon had read it out in a meeting with her.

99    The transcript references given in the Federal Circuit Court decision do not match the transcript references in the copy of the transcript before this Court on appeal. Thus, it is unclear whether the primary judge took account of the first appellant’s later evidence, in answer to his own question:

HIS HONOUR: And then the second time you saw Ms Falcon what happened?

THE INTERPRETER: The second time she send me message or call that – about your matter. She has received an email.

HIS HONOUR: And so what did she tell you when you went to see her?

THE INTERPRETER: She said that whatever your agent had applied she has been asked to comment on that.

HIS HONOUR: And what did she have to comment on? What was she asked about?

THE INTERPRETER: The visa your agent has applied they ask her comment on that one.

100    In context, this is clearly a reference to the February 2012 correspondence from the Department. This may be the evidence to which the primary judge refers at [27] of his reasons, or it may not.

101    At [33], the primary judge describes the first appellant as having been “confronted” with the passage from her oral evidence before the Tribunal and that she “then became emotional”. It is unclear whether the primary judge is thereby suggesting there was some consciousness of wrongdoing in the first appellant becoming upset, which in turn reflected poorly on her credibility. Certainly, his Honour does not make a finding to that effect. As counsel for the appellants submitted, it is not possible from the primary judge’s reasons to understand what use was made of the observation that the first appellant “became emotional” and whether it was a use adverse to the first appellant. Indeed, in the very next paragraph (at [34]) the primary judge acknowledges the proceedings must be “very stressful” for the first appellant. Nevertheless, below is the extract from the transcript where the first appellant “became emotional”, occurring after the first appellant had been cross-examined about her evidence to the Tribunal:

MR BROWN: Now, if you go to page 16 of that document, and if you look at the second last line you will see that it has got an interpreter – it has recorded what an interpreter has said, and it says:

After a few days he gave me a visa A form. After a few months, I went to seek some other advice to his office and his office has closed. Then I conclude that he has done a fraud with many other students also, and I receive nearly one year – one year later I received an email from immigration department and in that they said that a TRA assessment 5 that I lodged that is refused, and they asked me to comment upon that.

So you’ve told the tribunal that you received an email asking you to comment on information. That’s correct, isn’t it?

THE WITNESS: Yes.

MR BROWN: That’s what you told the tribunal and that’s because it’s correct, isn’t it?

THE WITNESS: Yes, that’s correct, but I – I didn’t have any email. My – my – Ada Falcon, my migration agent, got a – a letter, because I was – from last month, I was trying to check my all emails, because I used to have one email ID. I’m trying to check – there’s not – I don’t have any email.

MR BROWN: Well, that’s not what you told the tribunal. You told the tribunal that you received an email.

THE WITNESS: Yes. I – because I didn’t know that I have tell that exactly that my lawyer – my migration agent got a – got a email.

MR BROWN: Did you take an oath to tell the truth and the whole truth?

THE WITNESS: Yes.

MR BROWN: So the whole truth would have been that your agent got an email, wouldn’t it?

THE WITNESS: Yes. But I think that time I was nervous. That’s why I didn’t explain that thing. I thought that means that I – I received that email that – because I saw that email. I know that – I know that letter. I know that – I know about that letter. That’s why I said that. I didn’t know that I have to tell that my migration agent got it.

MR BROWN: So when you said to me that you had read the letter is that true or not?

THE WITNESS: Sorry?

MR BROWN: When you said to me earlier that you had read the letter is that true or not?

MR MENG: Your Honour, I think the witness might need a short break.

HIS HONOUR: There’s tissues and there’s water there, Mr Meng. Thanks.

THE WITNESS: Sorry about - - -

HIS HONOUR: It’s cross-examination. It’s not quite as gentile as TV. She can say if she’s unable to continue. Continue on.

MR BROWN: When you answered my question about whether you had read that letter from the department asking you to comment was that the truth or not?

THE INTERPRETER: I might have read it and there – it’s a long time ago. I might have forgotten many things out of that.

MR BROWN: So - - -

THE WITNESS: Okay. If like next time I – I’m not sure about that, and I would say that I’m not sure. I’ve forgot or I’m not sure.

MR BROWN: Okay. At the time you were very worried about your visa. You had found out that S and S were involved in fraud, and you get a letter from the department. You would have read it, wouldn’t you?

THE INTERPRETER: My lawyer explained to me.

MR BROWN: Yes. I understand your lawyer explained things to you, but did you, yourself, read it?

THE WITNESS: I’m not sure.

THE INTERPRETER: Perhaps, maybe I have read it. I’m not sure.

MR BROWN: Okay. I’ve no further questions, your Honour.

(Emphasis added.)

102    It was at this point that the primary judge decided to take over the questioning of the first appellant.

103    At [34], the primary judge found that there was “variation” in the first appellant's account. That finding was strictly or technically open to his Honour, in terms at least of finding that there were variations in the language used by the interpreter as the first appellant’s evidence was interpreted, and in her own language when she gave evidence in English. Her evidence was interpreted so that she said she was “given” the February 2012 correspondence, or “sent” it, or had it “read” to her. She also used different verbs herself. She gave explanations for these variations but we accept that it may have been open to the primary judge, having the opportunity to observe her, not to accept these explanations. However, other than the global “not a witness of truth” finding, his Honour’s reasons do not say whether he did or did not accept her explanations, and if he did not, why he did not. The first appellant’s explanations were plausible, and consistently given, on several occasions during her evidence. The variations in the verb used, for a non-English speaker, often through an interpreter, may not have been as significant as the primary judge appeared to consider they were. To rest central findings on the use of particular language in such circumstances would have required more analysis, and more explanation in his Honour’s reasons.

104    Even if it may have been open not to accept the first appellant’s explanations (despite the absence of any reasoning whether the primary judge did or did not), we do not consider it was open to the primary judge, at least on the reasons as they are expressed, to find that the first appellant was aware she could withdraw her work visa application. This finding was distinct from any finding about whether or not the first appellant “received” the February 2012 correspondence, and we find it was erroneous.

105    The first appellant stated very clearly that she did not remember the “withdrawal” part of the February 2012 correspondence:

MR BROWN: Yes. If you turn to page 21, and you said, this morning, that you received that letter from Ms Falcon. She showed it to you?

THE INTERPRETER: Yes.

MR BROWN: Did you read it at the time?

THE INTERPRETER: Yes, I did.

MR BROWN: Did Ms Falcon explain it to you?

THE INTERPRETER: Yes.

MR BROWN: What do you remember about it? What was the letter saying?

THE INTERPRETER: Then she applied for 485 visa for us. Whatever comments they asked to make it we didn’t comment on that.

MR BROWN: Yes. So if you look at the bottom of the page – and the interpreter can read it for you – that the last paragraph says:

As there is evidence suggesting you have provided or caused to be provided a bogus document or false or misleading information in relation to this visa application…

THE INTERPRETER: Yes.

THE WITNESS: Yes.

MR BROWN: And then it warned you that the visa application may be refused.

THE WITNESS: Okay.

MR BROWN: So do you remember that? Do you remember this letter telling you that the department thought that you had provided some false information, and so that they might then refuse the visa?

THE INTERPRETER: Yes, I remember.

MR BROWN: So, at that point, very clearly you knew that the visa application was fraudulent. Is that right?

THE INTERPRETER: Yes.

MR BROWN: Yes. And Ms Falcon explained that to you?

THE WITNESS: Yes, she did.

MR BROWN: Turn the page to page 22. At the bottom of the page you will see it says Withdrawing Your Application, and it says:

You can withdraw your application at any stage during processing.

Do you remember reading that?

THE WITNESS: I didn’t remember, and I didn’t know that I can do – I can withdraw the application.

MR BROWN: So when you said before you read the document did you not read everything?

THE INTERPRETER: This I received from Ms Falcon.

MR BROWN: Yes.

THE INTERPRETER: Whatever she explained I listened to her. She asked to come to her, and we went to see her. Whatever she said I thought that that’s what – we could do what she told us, because she’s a lawyer. Then I asked what else we can do now. She said nothing else can be done. We can apply for MRT.

MR BROWN: Did she explain to you that you could withdraw your application?

THE WITNESS: No.

HIS HONOUR: Ma’am, you can read English, can’t you?

THE WITNESS: Yes. Yes, your Honour.

106    At the end of this extract is the start of another interruption by the primary judge, and some questioning of the first appellant by his Honour about her English language skills, her interactions with Miss Falcon, whether she had seen a copy of the February 2012 correspondence before, and how she paid Miss Falcon. The questioning extends over around three pages of transcript. In the middle of the questioning by his Honour, the following exchange took place:

HIS HONOUR: Yes. Ms Falcon gave you a copy of this email that’s at page 21 of the book, did she?

THE WITNESS: No, your Honour.

HIS HONOUR: So did you ever get this document?

THE WITNESS: Sorry, your Honour?

HIS HONOUR: Did you ever get this document that’s at page 21?

THE WITNESS: No, your Honour. No, your Honour. It like – it – it was not my email ID and like Ada Falcon received - - -

HIS HONOUR: I know that you didn’t get it to [REDACTED].

THE WITNESS: Yes. That’s not mine.

HIS HONOUR: Yes. Have you ever seen it before today?

THE WITNESS: This email ID?

HIS HONOUR: No, the email itself. Have you seen it before today?

THE INTERPRETER: Never saw it before.

HIS HONOUR: So today is the first time you’ve seen this document?

THE INTERPRETER: I saw – I saw in this book before.

HIS HONOUR: And did you ever see it because Ms Falcon showed it to you or sent it to you?

THE INTERPRETER: Because it was in my green book that’s why I saw it.

HIS HONOUR: So you never saw it when you were talking to Ms Falcon?

THE INTERPRETER: She read it from her email, and she told me at the time.

107    Again, in the above passages, the first appellant was being consistent about not knowing she was able to withdraw her application. Further, in this evidence and elsewhere she consistently emphasised that she sought and took the advice of Miss Falcon to, in effect, “wait and see”, and that there was nothing which could be done immediately.

108    This was the first appellant’s evidence in re-examination:

MR MENG: Did she explain to you you can withdraw your application? Did she mention that?

THE INTERPRETER: If we knew – if we knew we could have withdrawn it, and we knew that we didn’t have this qualification what has been required in this.

MR MENG: So did she – did she tell you about this ability to withdraw?

THE INTERPRETER: No.

MR MENG: Did you know about this ability to withdraw?

THE INTERPRETER: If we knew we could have withdrawn it.

MR MENG: When did the ability to withdraw come to your attention?

THE INTERPRETER: When I saw in the green book.

109    It is clear on the evidence, as the primary judge found at [36], that the first appellant knew by the time she was being advised by Miss Falcon that the work visa application submitted by S & S Migration had false information in it. There is no evidence that Miss Falcon advised her to withdraw the application at this time, and there is ample evidence to support a finding that Miss Falcon advised her the application had to be seen through to its conclusion with a decision by the delegate. Why Miss Falcon did not advise the first appellant to withdraw the application is unknown, and was unknown by the Federal Circuit Court. Similarly, why Miss Falcon did not assist the first appellant to respond to the February 2012 correspondence is a matter on which there is no evidence.

110    The earlier evidence to which we have referred means the only explanation before the Federal Circuit Court by way of evidence for there being no withdrawal was that the first appellant did not know she could withdraw the visa application, and that Miss Falcon had advised her she needed to see the application through, even though both Miss Falcon and the first appellant knew it had false claims in it.

111    There is no evidentiary basis for the primary judge’s finding at [37] that between 20 February 2012 and 11 May 2012, the first appellant knew she could withdraw the work visa application. This is, as the appellants submit, a positive finding of fact. There was no cross-examination of the first appellant to the effect that she was lying and that on and shortly after 20 February 2012 she knew full well she could withdraw the visa application. She maintained steadily, through cross-examination by counsel for the Minister and questioning by the primary judge, that she was not aware of that part of the February 2012 correspondence and (in any event) followed the advice she was given by the registered migration agent to whom she was paying fees to provide such advice. If the primary judge was determined to disbelieve her evidence about her state of knowledge, and disbelieve her explanation about following Miss Falcon’s advice, his Honour needed to explain in his reasons how he could reach those conclusions on the evidence, especially without these matters having been put squarely to the first appellant, and in the absence of any evidence from Miss Falcon. On the reasons as they stand, the primary judge’s positive finding regarding the first appellant’s awareness is no more than speculation.

112    It is also important to recall the use to which the primary judge put the finding that the first appellant knew, from around 20 February 2012, that she could withdraw the work visa application. The primary judge used that finding as the principal basis for his other critical positive finding (at [37]) that she refrained from acting on this knowledge because she chose “to take the course of waiting to see whether or not she was lucky enough to obtain a visa”. That is, the primary judge has attributed a conscious strategy to the first appellant in not withdrawing her visa application. There was not a skerrick of evidence to support a finding that the first appellant adopted a strategy of “trying her luck”. During his questioning of the first appellant, the primary judge raised the possibility that the first appellant thought there “was a chance she might just get the visa”:

HIS HONOUR: And what did she have to comment on? What was she asked about?

THE INTERPRETER: The visa your agent has applied they ask her comment on that one.

THE WITNESS: Sorry. Just – just a minute, your Honour.

HIS HONOUR: Yes. But what were meant to comment on? Did they ask you whether you wanted a pink one or a blue one, or did they ask you something more meaningful?

THE INTERPRETER: I tell about the visa, what 5 documents, and I do not remember much now.

HIS HONOUR: So you don’t remember what the department wanted to know about your visa application?

THE WITNESS: Okay. Just a moment.

THE INTERPRETER: Whatever application you have lodged they’ve asked for the qualification.

THE WITNESS: Papers. Actually, I’m not sure.

HIS HONOUR: So they asked you for the qualifications that you needed for the visa you applied for. Is that right?

THE WITNESS: Yes, sir. Yes, your Honour.

HIS HONOUR: And what did you tell Ms Falcon?

THE INTERPRETER: What I told her? I told her that I have not completed any study here. I do not have any document to provide to immigration. She said nothing can be done now once it has been applied for you.

HIS HONOUR: And so what did you understand to be the situation then?

THE INTERPRETER: The time we thought that our future is ruined, and we cannot do much now.

HIS HONOUR: So did you understand then that it was a fraudulent application, because it relied upon qualifications that you didn’t have and couldn’t give to the department?

THE WITNESS: Yes, your Honour.

HIS HONOUR: So did you ring up the department and tell them?

THE INTERPRETER: No. We didn’t, because Ms Falcon told that you cannot do anything now.

HIS HONOUR: And so did you just wait to see whether the visa was given to you or refused?

THE INTERPRETER: We didn’t know what to happen in future. Didn’t know that whether we can ring immigration and call them and check that. We were very much stressed. That’s why we couldn’t do anything.

HIS HONOUR: So you didn’t do anything?

THE INTERPRETER: We got advice from Ms Falcon, and she said, “You cannot do anything.”

HIS HONOUR: And so you just waited for the decision, did you?

THE WITNESS: Yes.

THE INTERPRETER: Yes, your Honour.

THE WITNESS: Yes, your Honour.

HIS HONOUR: Did you pray that you would get a good decision?

THE INTERPRETER: Because I was not qualified for that, and I was not expecting a good result.

HIS HONOUR: But you waited just in case?

THE INTERPRETER: Ms Falcon said, “You cannot do anything else. You have to wait.”

HIS HONOUR: And did she think there was a chance she might just get the visa?

THE INTERPRETER: She didn’t say that.

HIS HONOUR: What did you think?

THE INTERPRETER: We are very much tense. We didn’t know what to do.

HIS HONOUR: Yes. Anything arising out of that?

113    His Honour did not use the term “luck” with the first appellant, but did subsequently with the second appellant when he asked him the following question:

HIS HONOUR: So do you mean you might be lucky and get the visa anyway?

THE INTERPRETER: Yes, that’s what she said.

114    The “she” in the second appellant’s answer is Miss Falcon. In other words, the second appellant’s evidence attributed this statement to Miss Falcon. An earlier part of his evidence, which also used “luck”, attributed that statement to Miss Falcon.

115    Despite the first appellant not agreeing with the leading questions put to her by the primary judge, and despite the second appellant attributing the comment about “luck” to Miss Falcon, this was the case theory onto which his Honour fastened.

116    The unchallenged and uncontradicted evidence was that the first appellant acted on the advice of her migration agent, who did not recommend withdrawing the application, and told her she had to “wait and see”, and that there was nothing the first appellant could do. The unchallenged and uncontradicted evidence was that Miss Falcon did not advise the first appellant to even respond to the February 2012 correspondence, nor did Miss Falcon put in any submissions on the appellants’ behalf to the delegate. The highest the evidence goes is that Miss Falcon may have made a comment, on the second appellant’s evidence, about there being “chances” and the outcome depending on their “luck”. In context, one possible inference is that Miss Falcon was referring to the waiver power in PIC 4020(4) (see [14] above) and the appellants’ “chances” that waiver power might be exercised. However, these kinds of matters were not considered by the primary judge, a matter in itself which supports the view we have taken that his findings were not ones made on any proper consideration of the evidence, but rather on his own speculation, adverse to the appellants.

117    There was no evidence capable of supporting a finding of some kind of deliberate strategy, or conscious choice, by the first appellant to see if the false information in the visa application might nonetheless be relied on by the delegate to grant her a visa.

Not open to make the credibility findings

118    The primary judge’s adverse findings were also based on his opinion that the first appellant “became evasive”. This, as we have noted earlier, is the closest his Honour’s reasons came to explaining why he did not find the first appellant to be a “witness of truth”. As we have explained above, his Honour’s reference in his reasons to the first appellant “becoming emotional” does not appear to be an adverse finding.

119    It was not open to the primary judge to characterise the first appellant’s actual answers in cross-examination as “evasive”. The point in time that the primary judge applies this description to her evidence is said to be towards the end of her evidence (see reasons at [33]), when “[the Judge] asked about whether [the first appellant] was hoping that she would simply get a good decision from the department”. That is, during the questioning of the first appellant by the primary judge himself. We have already set out this extract above, but to demonstrate the lack of evasiveness, it should be set out again:

HIS HONOUR: And what did you tell Ms Falcon?

THE INTERPRETER: What I told her? I told her that I have not completed any study here. I do not have any document to provide to immigration. She said nothing can be done now once it has been applied for you.

HIS HONOUR: And so what did you understand to be the situation then?

THE INTERPRETER: The time we thought that our future is ruined, and we cannot do much now.

HIS HONOUR: So did you understand then that it was a fraudulent application, because it relied upon qualifications that you didn’t have and couldn’t give to the department?

THE WITNESS: Yes, your Honour.

HIS HONOUR: So did you ring up the department and tell them?

THE INTERPRETER: No. We didn’t, because Ms Falcon told that you cannot do anything now.

HIS HONOUR: And so did you just wait to see whether the visa was given to you or refused?

THE INTERPRETER: We didn’t know what to happen in future. Didn’t know that whether we can ring immigration and call them and check that. We were very much stressed. That’s why we couldn’t do anything.

HIS HONOUR: So you didn’t do anything?

THE INTERPRETER: We got advice from Ms Falcon, and she said, “You cannot do anything.”

HIS HONOUR: And so you just waited for the decision, did you?

THE WITNESS: Yes.

THE INTERPRETER: Yes, your Honour.

THE WITNESS: Yes, your Honour.

HIS HONOUR: Did you pray that you would get a good decision?

THE INTERPRETER: Because I was not qualified for that, and I was not expecting a good result.

HIS HONOUR: But you waited just in case?

THE INTERPRETER: Ms Falcon said, “You cannot do anything else. You have to wait.”

HIS HONOUR: And did she think there was a chance she might just get the visa?

THE INTERPRETER: She didn’t say that.

HIS HONOUR: What did you think?

THE INTERPRETER: We are very much tense. We didn’t know what to do.

HIS HONOUR: Yes. Anything arising out of that?

120    The first appellant answered every question put to her by the primary judge, as submitted at [59] of the appellants’ written submissions. There is nothing evasive about the first appellant’s answers. She should not, of course, have been placed in a position where she was required to answer such a series of forceful leading questions from the Judge hearing her case, adverse to her narrative, where both parties were ably represented. Nevertheless, she answered them directly. The finding of “evasiveness” cannot be supported by reference to the evidence the first appellant gave, in the terms she gave it.

121    Recognising the well-established difficulties in relying on witness demeanour, but also recognising it has a role to play in a system dependent on oral evidence, if there was something “evasive” in the first appellant’s demeanour (rather than her actual answers) which contributed to the primary judge’s conclusion, then this should have been set out in the reasons. Its absence means this Court cannot conclude that the primary judge based his “evasiveness” finding on anything he observed about the demeanour of the first appellant in the way she gave her answers to his questions.

Can ground 1 be rejected because of the primary judge’s findings at [35]?

122    The Minister makes a submission at [20]-[22] of his written submissions that the primary judge was not persuaded the first appellant was not aware her visa application was fraudulent “from the outset”. This is a reference to the primary judge’s finding at [35] of his reasons, in which his Honour stated:

I do not accept that the applicant is a witness of truth in these proceedings. Whether the applicant was aware that the application was fraudulent from the outset is unclear, although given the difference in the documents that she had to provide for her student visa application, and the minimal documents sought by the agent in this case, it is difficult to conclude that she would not have been on notice that it was unlikely to be a proper application.

123    The Minister relies in this submission on the appellants’ burden of proof to prove a negative: that is, to prove the appellants were “neither complicit in the fraud [nor] ‘indifferent’ to it”. The Minister contends the Federal Circuit Court’s reasons at [35] make it clear the appellants had not discharged that burden.

124    The appellants submit the finding at [35] is not a positive finding. We agree. The language is so equivocal, it is not possible to read it as a positive finding, especially given the subject-matter of the finding – which is, in effect, a finding that the first appellant was complicit in the fraud from the outset of the filing of the visa application and that, as a result, her entire narrative is to be disbelieved.

125    If we are wrong about our view of [35], and it should be read as a positive finding (even read, as the Minister submitted, with [39] of his Honour’s reasons), the only matter relied on by the primary judge for this finding in his reasons is the difference in the documents the first appellant was aware she needed to provide for her student visa application and the minimal documents she gave to S & S Migration for the work visa application. That factual finding, even if it be accepted as open, falls far short of providing a sufficient probative basis to find the first appellant was, in effect, complicit in or indifferent to the fraud. That is especially so where there is no evidence the first appellant knew about the existence of Trades Recognition Australia, its role in assessing skills and providing reports to the Department, nor about the inclusion of such references in her work visa application, which on the evidence she never saw. Again, the transcript reveals the many times the first appellant explained why she and her husband initially trusted S & S Migration, and accepted what they were told by S & S Migration at face value. These explanations were not inherently improbable:

THE INTERPRETER: We found his advice good for us because it – he said that he can get us work permit visa, so we listen to him.

MR BROWN: Did he tell you what you needed to do to qualify for a work visa?

THE INTERPRETER: He told me you don’t have to worry about it, you don’t need anything.

MR BROWN: Well, that must have been a bit too good to be true; do you think?

THE INTERPRETER: We thought he’s a well-known migration agent, and he knows all the laws, and if he’s saying something, must be correct.

126    And a further example:

MR BROWN: And then you go to see Mr Jeetender, and he says you can get a work visa, but you don’t need to demonstrate anything.

THE INTERPRETER: Yes.

THE WITNESS: That’s correct.

MR BROWN: You can’t have believed him.

THE INTERPRETER: So, normally for us, we don’t know the laws. We don’t know – he was a well-known migration agent. He knew the law. He was telling you don’t need anything, and we thought that he knows better than us, he has learned a lot, and if he is saying, then it must be correct, so we just blindly trusted him.

MR BROWN: What questions did you ask him?

THE INTERPRETER: So when we went to see him, we asked him, look, we want to apply for a student visa and what all documents you need from us for student visa. And when he suggested that for work permit visa, he said don’t worry about any document, you don’t need any document to submit, I can get it for you.

MR BROWN: But you must have thought there were things you need to prove.

THE INTERPRETER: We thought that if he – at the time of filing the application, if he needs any document, he will ask us.

127    And a further example:

THE INTERPRETER: Yes. That’s what he told us.

MR BROWN: Thinking back, putting yourself back at that time, what did you think – in your mind, what did you think were the sorts of things you might need to prove to be entitled to a work visa?

THE INTERPRETER: Nothing came in my mind like that, at that time.

MR BROWN: You didn’t think about it at all?

THE INTERPRETER: No.

MR BROWN: You didn’t care?

THE INTERPRETER: So we went to him, just trusting him that whatever he is advising is good because he knows the laws. And, secondly, how do we – we just thought that in Australia nobody does the fraud, so we thought that how he’s going to do the fraud with us? So it did not even come in our mind, we just simply trusted him what he said.

MR BROWN: You thought that there’s no fraud in Australia.

THE INTERPRETER: It’s not like that. It was like that he is a lawyer and how a lawyer can do a fraud with us? So that was the trust, that he’s a lawyer and he’s a migration agent, so we can trust him.

THE WITNESS: And it was our bad luck that we went to him.

MR BROWN: Did you care how he got the visa for you?

THE INTERPRETER: We never thought that we will come in this situation what we are sitting today after meeting him. We never thought that it’s going to happen in this way. We did not have any idea that what he’s going to do for us.

MR BROWN: No, that wasn’t my question. My question is: did you care how he got the visa for you?

THE INTERPRETER: We thought that he’s doing legally whatever he’s doing it, as per the laws.

HIS HONOUR: And if the only way he could get the visa was to pay somebody off or do something illegal, did that matter to you?

THE INTERPRETER: So if we knew beforehand that he is going to use the wrong means of doing it, then definitely it affect us. We care about it. But if he does not know what he is going to do it, we can’t.

128    Again, it may well have been open to a court to reject the first appellant’s explanations, once the proposition that she had been complicit in the fraud from the outset was put to her, but if that was to occur, there needed to be some reasoning and justification for such a finding. There was none. The global finding at [39] that the first appellant was not a “witness of truth” adds little. It plainly does not mean what it says, as the primary judge accepted and relied on aspects of the first appellant’s narrative in her evidence. Whatever it does mean was not explained. The finding in [35] does not save the reasoning of the Federal Circuit Court, or ameliorate the errors in its fact-finding.

Ground 2: Primary judge’s findings incapable of establishing indifference

129    The premise of this ground must be, as the Minister submits, that the appellants have been unsuccessful on ground 1 and the factual findings made by the Federal Circuit Court stand, and were open to it. We approach this ground on that basis, contrary to the conclusions we have reached on ground 1.

130    The resolution of this ground depends to some extent on what is meant by “indifference” in the context of indifference to the commission of a fraud, as opposed to collusion in it. It is the latter concept to which the High Court refers in SZFDE: there is nothing said about “indifference” in SZFDE.

131    As the appellants submit (and aside from [35] of the Federal Circuit Court’s reasons), the balance of the Federal Circuit Court’s findings appear to locate the finding about indifference at a point in time after the February 2012 correspondence. That is because the knowledge of the first appellant that she could withdraw her work visa application, and her deliberate decision not to, were central to the Federal Circuit Court’s conclusion (see [37] and [39] of the reasons) that the appellants were indifferent to the fraud committed by S & S Migration. In that sense, to invoke indifference in this situation is quite different to the situation in a case like Gill: see Gill at [51].

132    One of the points made by the Full Court in Gill at [49] is that there is a 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.

133    Although the Full Court in Gill and Singh made several observations about the concept of “indifference”, its origins in relation to fraud generally, and fraud in public law more specifically, were not traced in those decisions. It is necessary to do that now, in order to determine ground 2 of the appeal.

134    What is meant by indifference in this context approximates to what has been called “reckless indifference” at common law. That is because reckless indifference has been held to be sufficient in terms of a state of mind, to be treated along with intention, as transforming a false representation (for example) into a fraudulent one. In their written submissions, the appellants referred to the following statement by Hayne JA (as his Honour then was) in Pyramid Building Society v Scorpion Hotels Pty Ltd [1998] 1 VR 188 at 194 (Brooking and Tadgell JJA agreeing):

The expressions “reckless indifference” and “wilful blindness” are useful shorthand expressions to describe some kinds of cases of fraud. As the classical exposition by Lord Herschell in Derry v. Peek (1889) 14 App. Cas. 337 at 374 shows, fraud can be proved by showing that a false statement has been made without belief in its truth or, “recklessly, careless whether it be true or false”. But as was said in the Assets Co., Ltd. case, the mere fact that a person might have found out fraud if further enquiries had been made does not of itself prove fraud. The enquiry is an enquiry for actual dishonesty not for want of due care.

135    Justice Finkelstein invoked the concept of “reckless indifference” in a 2008 decision concerning an allegation of fraud by a migration agent which resulted in the appellant not attending a hearing. In SZIVK v Minister for Immigration and Citizenship [2008] FCA 334 at [34], his Honour stated:

As to false information, it will be fraudulent if it is made by a person who does not believe in its truth or is recklessly indifferent to its truth: Commercial Banking Company of Sydney Ltd v R H Brown & Co (1972) 126 CLR 337, 343. If the appellant’s evidence is accepted, the only findings that are open are that the agent was deliberately fraudulent or, at the least, recklessly indifferent as to what he told the tribunal. The agent’s conduct is particularly grievous because it is likely he knew that the appellant’s non-attendance would be fatal to his application.

136    When placed in its proper context, in the proof of fraud, it is apparent that the requisite state of mind for “reckless indifference” is close to intention. Or at the least, it is a state of mind where the indifference or wilful blindness to the truth of what is being said or done is at such a level that a court considers it appropriate to fix a person or conduct with the same consequences as those fixed for an intentionally fraudulent act.

137    What these authorities make clear is that the reckless indifference (or wilful blindness) must be as to the truth of the representation, which is said to be deliberately false. The state of mind is thus found to be close to deliberate dishonesty. Once this is understood, the need for a careful finding, based on probative evidence, becomes apparent.

138    Other states of mind will not suffice. Helplessness, or a sense of helplessness, is not the same as reckless indifference. Fear of authority is not the same as reckless indifference. Nor is naivety. Nor is ignorance. Nor is want of due care: see SZFDE at [53], and Pyramid Building Society at 194. All of these states of mind need to be carefully distinguished.

139    Dependence or reliance is also not the same as reckless indifference. As the Full Court noted in Gill at [50]:

… 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.

140    So too, dependence or reliance on the advice of a migration agent such as Miss Falcon is quite different to being recklessly indifferent to the truth of the claims and material put forward to the Department by S & S Migration as the basis on which a visa should be granted, and is thereby insufficient to be treated as tantamount to deliberate dishonesty.

141    The factual findings made by the Federal Circuit Court did not rise to a level which could justify a description of the first appellant, between 20 February 2012 and 11 May 2012, as being recklessly indifferent to the truth of the claims and material put forward by S & S Migration in her work visa application. To the contrary, the evidence demonstrates the first appellant was distraught about the false statements purporting to have been made by her to the Department, and sought advice about what to do. She went to another, qualified, migration agent, and paid money for her services. Miss Falcon discussed the February 2012 correspondence with the first appellant in person. Miss Falcon did not advise the first appellant to respond to the letter. Instead, she advised her to “wait and see” what decision the Department made regarding the application lodged on the first appellant’s behalf by S & S Migration.

142    The first appellant accepted that advice, although her evidence made it clear she remained distressed about what had happened, and felt helpless about what to do next. She might be criticised for being naïve, or not proactive enough in the protection of her own interests. Perhaps even lacking due care for her own interests. However, she was from a non-English speaking background, a migrant to this country, with a young child, who had just discovered she had been caught up in a fraudulent scheme of considerable size, which had jeopardised her migration status in Australia. It was reasonable for her to seek honest and qualified advice from a new migration agent, to rely on it, and to act consistently with it.

143    To find, in effect, with the benefit of many years of hindsight, in the cool light of a courtroom, that unless the first appellant took the step of withdrawing her application during processing, going against the professional advice she had received and had paid for, she should be taken to be wilfully blind to the undoubted fraud of a third party, was unjustifiable and erroneous.

The Minister’s answer to this ground

144    The Minister’s principal answer to this ground was that in the circumstances, if the primary judge’s factual findings are correct, whether or not it was open to describe the first appellant’s state of mind as “indifference” did not matter, because there was no “fraud on the appellant” and the Department’s decision-making processes were not “stultified”.

145    The Full Court in Singh at [52] made it clear, consistently with SZFDE, that these factors constitute a precondition to declaratory relief being granted in relation to the validity of a visa application:

… we accept the Minister’s contention that, having regard to authorities such as SZFDE and Minister for Immigration and Citizenship v SZLIX (2008) 245 ALR 501 at [33] it will be necessary to find that the agent’s conduct is not only a fraud on the visa applicant but must also stultify one or more aspects of the relevant statutory decision-making processes under the Migration Act.

See also Maharjan at [78], [90] and [102]-[103].

146    The Minister submitted that the primary judge found the first appellant knew, from 20 February 2012 onwards, that her work visa application included false information, and knew further that she could withdraw the application. She chose not to withdraw the application, and, as the primary judge found, deliberately so, in order to see if she would “get lucky”. In those circumstances, there was no fraud on the first appellant, and neither did the fraud stultify the processes of the delegate’s decision-making, as the first appellant already knew of the fraud and was content to let the fraudulent application proceed. Whether or not it was correct to describe this as indifference did not matter, the Minister submitted: at a factual level, the preconditions for declaratory relief could not be made out, on the facts as found by the primary judge. The Minister referred to the Full Court decision of SZLHP v Minister for Immigration and Citizenship [2008] FCAFC 152; 172 FCR 170.

147    The relevant circumstances in SZLHP are sufficiently described at [20] of the judgment of Branson J:

The appellant was not fraudulently deceived by the migration agent as to the true reason why the migration agent did not want him to attend the Tribunal hearing. The reason why the migration agent advised the appellant not to attend the Tribunal hearing was that his attendance would make plain the falsity of the grounds on which he sought review of the decision of the Minister’s delegate. The appellant understood this and cooperated with the migration agent by obtaining the medical certificate in attempted explanation of his failure to attend. There was no relevant fraud “on” the Tribunal in the sense discussed by the High Court in SZFDE 232 CLR 189.

148    This is, in effect, a finding of complicity. See also Graham J at [51]:

In the present case there are a number of distinct matters which work against a conclusion that, by reason of fraud on the part of SZLHP’s migration agent, the Tribunal was “disabled from the due discharge of its imperative statutory functions with respect to the conduct of the review”. The relevant state of affairs in this case did not merit the description of the practice of fraud “on” the Tribunal. There was no “effective subversion of the operation of s 425” of the Act nor was there any subversion of “the observance by the Tribunal of its obligation to accord procedural fairness to the applicant for review” (cf SZFDE 232 CLR 189 at [32], [51]).

149    In other words, even if the Court were to find that ground 2 should be upheld on the basis that what the primary judge found the first appellant had done could not amount to “indifference”, on the facts as found by the primary judge, the preconditions set out in SZFDE were not made out.

150    In SZFDE, the High Court did not only use the verb “stultify”, but also the verb “disable”, to refer to the effect of the fraud on the exercise of public power, or the processes adopted for the purposes of the exercise of public power. In that case, it was the Tribunal’s duty to “review” a delegate’s decision and, as part of that process, to conduct a hearing. In the line of cases of which Singh, Gill and Maharjan form part, the disabling effect was on the proper consideration of a person’s visa application, by reference to material which the visa applicant intended to put before the repository of the power. A fraud of the kind in which S & S Migration engaged, on many occasions, by submitting completely false Trades Recognition Australia references and by representing that a visa applicant had had her or his qualifications successfully assessed by Trades Recognition Australia, is capable of disabling the repository of the power (here, the delegate) from considering the visa application on the basis the individual visa applicant intended her or his application to be considered.

151    The Minister is correct in submitting there will be no such “disabling” effect if the visa applicant is complicit in the fraud. Similarly, there will be no such effect if the visa applicant is recklessly indifferent or wilfully blind to the fraud, which is what in our opinion “indifference” means in this context. With both states of mind, or conduct, the exercise of power has miscarried with the participation of the visa applicant and no relief can flow: the visa applicant is fixed with the consequences of her or his conduct, which has been found to be dishonest, alongside the third party fraudster.

152    With respect, the Minister’s argument is circular. The presence or absence of the SZFDE preconditions of whether there is a fraud on the visa applicant, and whether the administrative power or process is disabled, will turn in a case such as the present on the factual findings of complicity or reckless indifference. If, on a correct understanding of those concepts, the Court finds complicity or reckless indifference, then the SZFDE preconditions will not be fulfilled. However, if the Court’s fact-finding proceeds on a misunderstanding of what can constitute complicity or reckless indifference, then the application of the principles in SZFDE will miscarry. Until fact-finding uninfected by legal error has occurred, it is not possible to determine if the SZFDE preconditions are met, or if they are not. Ground 2 takes the primary judge’s fact-finding as it was, and contends for a misunderstanding of what can constitute “indifference”. For the reasons we have explained, that contention should be accepted.

The second appellant’s evidence

153    The primary judge found the second appellant’s evidence to be of little assistance. Yet in relation to the meeting between the first appellant, himself and Miss Falcon after 20 February 2012, the second appellant’s evidence was:

THE INTERPRETER: Yes, I was there.

MR MENG: What was said at that meeting?

THE INTERPRETER: We spoke about the case, about our case.

MR MENG: In particular, what was said?

THE INTERPRETER: That agent has disappeared after doing this fraud and now the matter is with the immigration.

MR MENG: Who said that?

THE INTERPRETER: The lady.

MR MENG: Is the lady the agent?

THE WITNESS: Yes.

MR MENG: What did – did the agent tell you do anything about this situation?

THE INTERPRETER: She said, “Wait for the outcome of the decision of immigration and then I will talk to you.”

MR MENG: Did she tell you about any concerns in relation to the visa application?

THE INTERPRETER: She said there are chance – there are chances.

MR MENG: There are chances?

THE INTERPRETER: Yes.

MR MENG: What does that – chances for what?

THE INTERPRETER: Their case can return. It depends on your luck.

MR MENG: The case can return.

THE INTERPRETER: That’s what - - -

MR MENG: What does - - -

THE WITNESS: The man – like she told me when he – the manager, Immigration Department, maybe - - -

THE INTERPRETER: Maybe if they think this is a fraud case, they might return it.

MR MENG: Without – okay.

HIS HONOUR: So do you mean you might be lucky and get the visa anyway?

THE INTERPRETER: Yes, that’s what she said.

MR MENG: Did she tell you to do anything about the visa application?

THE INTERPRETER: She said, “I will speak.”

MR MENG: To whom?

THE INTERPRETER: With the immigration.

154    On the second appellant’s evidence, it was Miss Falcon who advised them to “take their chances” with the application. It is impossible to know what this might have meant – whether Miss Falcon had in mind the waiver provisions for PIC 4020, or something else. The reasons of the Federal Circuit Court do not indicate why this evidence was not helpful.

155    It is true, as the primary judge finds in his reasons, that the second appellant accepted during cross-examination that Miss Falcon had told him and his wife that their visa application was “fake”. However, that also does not justify the inference the primary judge drew that the second appellant and his wife were “indifferent” to the fraud perpetrated by S & S Migration. The whole context of this evidence given by the second appellant should be set out:

THE INTERPRETER: She said that, “The visa who has lodged for you, it is all fake.”

MR BROWN: Yes. And did you consider telling the department that the visa was fake?

THE INTERPRETER: Ms Falcon?

MR BROWN: No, the Immigration Department?

THE INTERPRETER: We didn’t know that much.

MR BROWN: No, but Ms Falcon told you it was fake, so you’ve made a fake visa application which means if the visa application is approved, it’s a fake that has been approved.

THE INTERPRETER: As I told you before, she said, “I will – I’m going to handle everything, not you.”

    …

MR BROWN: But you must have been worried about your visa application at this point?

THE INTERPRETER: Yes, obviously.

MR BROWN: Because you knew it was a fake.

THE INTERPRETER: Yes.

MR BROWN: Okay. No further questions, your Honour.

HIS HONOUR: Yes, any re-examination?

MR MENG: No, your Honour.

156    Read fairly, the second appellant was, like the first appellant, telling the Court he had relied on the new migration agent they had retained and paid to advise them, and to do what needed to be done. This is precisely what the Full Court in Gill pointed out that individuals in the positon of the first and second appellants were entitled to do. Without any evidence at all from Miss Falcon, it was not open to the primary judge to draw the adverse conclusions he did against the first and second appellants, and find they knew about their entitlement to withdraw the application and deliberately elected not to do so.

Interruptions and questioning by the primary judge

157    We have examined carefully the transcript of the hearing conducted before the primary judge in the course of our consideration of the grounds of appeal.

158    In our view, there is much to be said for the view that the judge’s interventions, in particular those by way of cross-examination of the first appellant, were inappropriate, and were far more than they should have been.

159    As Lord Denning said in Jones v National Coal Board [1957] 2 QB 55 at 63-64:

Nevertheless, we are quite clear that the interventions, taken together, were far more than they should have been. In the system of trial which we have evolved in this country, the judge sits to hear and determine the issues raised by the parties, not to conduct an investigation or examination on behalf of society at large, as happens, we believe, in some foreign countries. Even in England, however, a judge is not a mere umpire to answer the question “How’s that?” His object, above all, is to find out the truth, and to do justice according to law; and in the daily pursuit of it the advocate plays an honourable and necessary role. Was it not Lord Eldon L.C. who said in a notable passage that “truth is best discovered by powerful “statements on both sides of the question”?: see Ex parte Lloyd. And Lord Greene M.R. who explained that justice is best done by a judge who holds the balance between the contending parties without himself taking part in their disputations? If a judge, said Lord Greene, should himself conduct the examination of witnesses, “he, so to speak, descends into the arena and is liable to have his vision clouded by the dust of conflict”: see Yuill v. Yuill.

…

The judge’s part in all this is to hearken to the evidence, only himself asking questions of witnesses when it is necessary to clear up any point that has been overlooked or left obscure; to see that the advocates behave themselves seemly and keep to the rules laid down by law; to exclude irrelevancies and discourage repetition; to make sure by wise intervention that he follows the points that the advocates are making and can assess their worth; and at the end to make up his mind where the truth lies. If he goes beyond this, he drops the mantle of a judge and assumes the robe of an advocate; and the change does not become him well.

(Footnotes omitted).

160    Further, as Dawson J said in Whitehorn v The Queen [1983] HCA 42; 152 CLR 657 at 682, in a passage later endorsed unanimously by the High Court in R v Apostilides [1984] HCA 38; 154 CLR 563 at 576 “[a] trial does not involve the pursuit of truth by any means”. His Honour continued:

The adversary system is the means adopted and the trial judge’s role in that system is to hold the balance between the contending parties without himself taking part in their disputations. It is not an inquisitorial role in which he seeks himself to remedy the deficiencies in the case on either side. When a party’s case is deficient the ordinary consequence is that it does not succeed.

161    There are several long episodes of questioning of the first appellant by the primary judge which we have not extracted in these reasons. There is also the questioning set out at [99], [105], [106], [112], [113], and [127] above. It seems to us, when read together, these episodes of questioning transgressed the boundaries described by Lord Denning and Dawson J set out above.

162    As regrettable a state of affairs as that is, the appellant did not seek to advance a ground of appeal founded on the conduct of the judge at the hearing, and in those circumstances it is unnecessary, and perhaps undesirable, to say any further about the matter.

Ground 3: Inadequate reasons

163    To recap, this new ground contends that the Federal Circuit Court’s reasons for judgment are inadequate. The appellants contend the reasons “fail adequately to identify the evidential basis for or to provide an intelligible explanation of” three core findings made by the Federal Circuit Court:

(a)    The primary judge’s finding that he was persuaded on the balance of probabilities that:

(i)    the first appellant was aware of the contents of the February 2012 correspondence and therefore aware that she could withdraw the visa application at any time; and

(ii)    the first appellant chose not to withdraw her visa application and instead waited to see if she would be “ lucky enough” to be granted the visa; and

(b)    The primary judge’s finding that the first appellant was not a “witness of truth”.

164    On that basis, the appellants contend the failure constitutes an error of law vitiating the primary judge’s orders.

165    To find that a person is not “a witness of truth” is, in substance, to find the person to be a liar. In the circumstances of a court hearing, with evidence given on oath or affirmation, it is also in substance a finding of perjury. It is not a trifle. Of course, it is important that judges are free to make such findings where they are required and where they are justifiable. However, the finding must not only be justifiable, it must be justified. And the place it must be justified is in the court’s reasons.

166    The parties referred to a number of cases about the obligation of a judge to give reasons. Some of the appellants’ references sought to emphasise passages from previous authorities which describe the content of the obligation in very detailed and prescriptive terms. An example of such a passage relied on by the appellants is from the judgment of Nettle J in DL v The Queen [2018] HCA 26; 356 ALR 197 at [131]:

Since parties must be able to see the extent to which their cases have been understood and accepted, a trial judge will ordinarily be expected to expose his or her reasoning on points critical to the contest between the parties. This applies both to evidence and to argument. If a party relies on relevant and cogent evidence which the judge rejects, the judge should provide a reasoned explanation for the rejection of that evidence. If the parties advance conflicting evidence on a matter significant to the outcome, both sets of evidence should be referred to and reasons provided for why the judge prefers one set of evidence to the other. Similarly, while a judge is not required to deal with every argument and issue that might arise in the course of a trial, if a party raises a substantial argument which the judge rejects, the judge should refer to it and assign reasons for its rejection. And in providing reasons, the judge is required to make apparent the steps he or she has taken in reaching the conclusion expressed, for reasons are not intelligible if they leave the reader to speculate as to which of a number of possible paths of reasoning the judge may have taken to that conclusion. Failure sufficiently to expose the path of reasoning is therefore an error of law.

(Footnotes omitted.)

167    These remarks were made by his Honour in the context of an appeal from the orders of a judge sitting alone in a criminal trial, where the accused was convicted of sexual offences, and sentenced to 10 years’ imprisonment. Justice Nettle, along with Bell J, was in dissent. The majority (Kiefel CJ, Keane and Edelman JJ) held that the trial judge’s reasons were not inadequate and dismissed the appeal. It is instructive to look at what the majority judgment says about this issue, as well as the other dissenting judgment of Bell J, all the while recalling the context of this particular appeal.

168    The plurality said, at [32], citing Wainohu v New South Wales [2011] HCA 24; 243 CLR 181 at [56]:

The content and detail of reasons “will vary according to the nature of the jurisdiction which the court is exercising and the particular matter the subject of the decision”.

169    At [33], the plurality said:

The appellant submitted that the inadequacy of the reasons to identify two or more acts of sexual exploitation and the basis upon which they were found to be proved lay in the trial judge’s failure to resolve a number of factual and evidential contests at trial. Not every failure to resolve a dispute will render reasons for decision inadequate to justify a verdict. At one extreme, reasons for decision will not be inadequate merely because they fail to address an irrelevant dispute or one which is peripheral to the real issues. Nor will they be inadequate merely because they fail to undertake “a minute explanation of every step in the reasoning process that leads to the judge’s conclusion”. At the other extreme, reasons will often be inadequate if the trial judge fails to explain his or her conclusion on a significant factual or evidential dispute that is a necessary step to the final conclusion. In between these extremes, the adequacy of reasons will depend upon an assessment of the issues in the case, including the extent to which they were relied upon by counsel, their bearing upon the elements of the offence, and their significance to the course of the trial. In particular:

“Ordinarily it would be necessary for a trial judge to summarise the crucial arguments of the parties, to formulate the issues for decision, to resolve any issues of law and fact which needed to be determined before the verdict could be arrived at, in the course of that resolution to explain how competing arguments of the parties were to be dealt with and why the resolution arrived at was arrived at, to apply the law found to the facts found, and to explain how the verdict followed.”

(Footnotes omitted.)

170    Even though her Honour found the trial judge’s reasons to be inadequate, Bell J described the obligation to give reasons in short terms at [82]:

The trial judge was required to identify the principles of law to be applied in determining whether guilt had been proved, to resolve material disputed factual questions, to address the parties’ submissions and to explain (albeit not necessarily at any length) the process of reasoning by which his Honour arrived at the verdict.

(Footnotes omitted).

171    It can be seen, even simply by reflecting on these three different descriptions, that the description of the obligation to give reasons by Nettle J is more onerous in terms of its content. His Honour does not confine his description of the content of the obligation to trials of indictable offences by judge alone, but expresses the principles more generally.

172    In contrast, the Minister relied on some authorities of this Court, the New South Wales Court of Appeal and the Victorian Court of Appeal, where descriptions of the content of the obligation to give reasons are narrower, or more general. In directing attention to these authorities, the Minister emphasised the particular approach taken to reasons concerning credibility, which we accept is relevant to this appeal.

173    The Minister relies on the following statement made by a five member Full Court of this Court in Fry v McGufficke [1998] FCA 1499:

The extent of the obligation to give reasons based on particular findings of fact will depend upon the circumstances of each case. It is, however, only the critical or crucial reasoning that must be exposed … It is in that sense that what is sufficient will depend upon all the circumstances of the particular case.

174    The Minister then contrasts the judgment of Mahoney JA and McHugh JA (as his Honour then was) in the New South Wales Court of Appeal in Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247, with the dissenting judgment of Kirby P (as his Honour then was) in that case, on which the appellants rely. In particular, the Minister emphasises what their Honours said about the need for a judge to expose her or his reasoning where the resolution of a case, or an issue in a case, turns on credibility. For example, the Minister relied on the following passages from the judgment of Mahoney JA at 273-274:

The weight to which a judge will give to the evidence of a witness will often not be capable of rationalisation beyond the statement: having heard him, I am not satisfied that I should accept what he says. The weight which a judge gives to a particular fact may be affected by, as it has frequently been put, his experience and, in particular, his experience of that fact in the order of things. It was this to which reference was made in Morgan v Babcock and Wilcox Ltd (1929) 43 CLR 163 at 173 and Martin v Osborne (1936) 55 CLR 367 at 375, in referring to “general human experience” and the like … [The judge’s] reasons, in the particular case, may partake as much of intuition based on experience as formal and deductive reasoning.

That leads to, as I have described, the subjective element in the fact finding process. A fact is found in a particular case if the judge is satisfied that it is so. In many matters – and the weight to be given a to a fact in the process of assessing facts is one of these – whether a judge is so satisfied in the sense required by Briginshaw v Briginshaw (1938) 60 CLR 336, may depend upon matters subjective to him as well as upon matters common to judges. I do not mean by this that decisions are, or are to be, made upon the basis of matters essentially idiosyncratic to the particular judge. The determination of facts is assumed to be objective. But it would be to misunderstand the basis of a decision, and in particular decisions in matters of assessment, weight and the like, to assume that decisions can always, or perhaps ordinarily, be justified by objective rather than subjective considerations. And, if such be true of the reasoning process, it is, in my opinion, a mistake to conclude that a judge should or can set forth the reasoning process he has followed from one fact to another.

175    In a similar vein, the Minister refers to the decision of the Victorian Court of Appeal in Ta v Thompson [2013] VSCA 344; 46 VR 10, where the approach of Mahoney and McHugh JJA was applied with approval by Osborn JA. This was a prosecution in relation to the possession of prohibited drugs, where the legislation imposed a reverse onus on the accused. In those circumstances, the Minister relies on what Osborn JA held at [55]-[56]:

The present case turned fundamentally upon an assessment of the credit of the appellant. He could not discharge the onus upon him unless his denial of knowledge of presence of the drug was accepted as truthful and reliable. The case was put to the judge expressly on this basis.

It follows Whelan J was correct to find:

…

Her Honour did not accept Mr Ta’s evidence. In the circumstances here, she did not need to say more. The only issue was, as Mr Ta’s counsel submitted, whether she accepted his assertion that he was ignorant of the presence of the heroin. She did not, and said so. She could have said more, and perhaps it would have been better if she had, but what she said was enough in the context. It is not suggested that her Honour did not address the relevant legal issue. It is clear that she did.

(Footnotes omitted.)

176    However, we consider what is more relevant is the proposition set out by Osborn JA at [57], which his Honour appeared to accept and which is supported, as his Honour identified, by ample authority:

It was further submitted on behalf of the appellant that if a judge disbelieves evidence which is uncontradicted and is reasonable and inherently probable, he or she is required to give his or her reasons for disbelieving that evidence.

(Footnotes omitted.)

177    All of these statements constitute little more than general guidelines. What is adequate, or inadequate, in any given case will depend on the nature of the proceeding, the evidence and arguments put forward, and the nature of the issues to be determined. However, the following relevant propositions emerge from the authorities:

(a)    The more serious the consequences of a proceeding, or the more serious a finding, the more a judge may need to explain why she or he reached a conclusion or finding;

(b)    In some circumstances, it may not be necessary for a judge to explain in great detail a finding of adverse credibility, where it is based on demeanour; and

(c)    If a judge disbelieves evidence which is uncontradicted, reasonable and inherently probable, he or she may be required to give more detailed reasons for disbelieving that evidence.

178    We accept the Minister’s submission that the appellants bore the onus of proving a negative fact: namely, that they were neither complicit in, nor (recklessly) indifferent to, the fraudulent conduct of S & S Migration. However, as the appellants submit, the way the primary judge chose to decide this question involved making several positive findings of fact, adverse to the first appellant. The primary judge did not decide this proceeding on the basis of onus. In substance, his Honour found the first appellant to be a liar. His Honour also found, as positive facts, that the first appellant received the February 2012 correspondence and was aware of its contents, including that she was able to withdraw her visa application at any time during processing, and that rather than withdrawing her application, she deliberately chose to “wai[t] to see whether or not she was lucky enough to obtain a visa” (see the Federal Circuit Court’s reasons at [39]). We accept the appellants’ submissions that once the primary judge elected to make positive findings of fact, his Honour was obliged to explain, by reference to the evidence, how he reached those conclusions. His Honour was also obliged to explain why he did not accept the first appellant’s apparently consistent, uncontradicted and inherently probable explanations in relation to certain aspects of her evidence. For reasons we have set out in relation to the other two grounds, his Honour did not do so.

179    We accept the Minister’s submission that this was a situation where the first appellant’s credibility was important to the question the Federal Circuit Court had to resolve. It was not the only determinative factor, and in the end the primary judge did not explain how or why he reached his conclusion that the first appellant was not a “witness of truth”. There was some contemporaneous evidence about what had happened. The documents in evidence supported, for example, the first appellant’s narrative that Miss Falcon had essentially advised her to do nothing in relation to the visa application lodged by S & S Migration, because the Department’s records were devoid of anything sent to the Department by Miss Falcon on behalf of the first appellant in the period between 3 November 2011 (when Miss Falcon advised the Department that she had been appointed as the first appellant’s migration agent), and 11 May 2012, when the delegate made the decision to refuse the visa application. There was corroborative evidence from the second appellant which, as we have found, the primary judge failed to deal with adequately, in terms of explaining why he formed the view that “there [was] little in his evidence that was helpful to the [first appellant] or the Minister” (see the Federal Circuit Court’s reasons at [38]).

180    There were variations in the language used in the first appellant’s evidence (between her written statement to the Tribunal, her evidence before the Tribunal and her evidence before the Federal Circuit Court) about whether or not she received the February 2012 correspondence: that must be accepted. What is missing in the primary judge’s reasoning is why those variations were, as his Honour described them (at [36]), “particularly damaging to her credibility”. The Full Court has recently explained why inconsistencies in an applicant’s account, on their own, may or may not be significant: see AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133; 361 ALR 227 at [23]-[28] and ASB17 v Minister for Home Affairs [2019] FCAFC 38 at [39]-[45]. What the Federal Circuit Court does in its reasons is set out the variations in the first appellant’s account, and then set out its conclusion about how damaging they are, without explaining why.

181    The same is true of the primary judge’s ultimate finding that the first appellant was not a “witness of truth”. That meant in substance, as we have said, that his Honour found her to be a liar. During the cross-examination by the Minister, and the questioning by the primary judge, that proposition was never put to the first appellant. There were no findings made about the first appellant’s demeanour. The primary judge did not refer in his findings to demeanour, other than the single use of the word “evasive” and the statement that the first appellant “became emotional” when giving evidence (at [33] of his Honour’s reasons). As we have explained above, there was nothing evasive about the first appellant’s responses in the evidence itself, and the primary judge does not explain what, other than the evidence itself, was “evasive” about the first appellant’s demeanour. As we have also explained above, it is unclear, from the face of the Federal Circuit Court’s reasons, what use was made of the observation that the first appellant “became emotional”.

182    The Minister also referred the Court to the decision of J Forrest J in Hettiarachci v RACV [2016] VSC 97. This case provides a useful contrast to some of the other authorities relied on by the parties, and in our opinion is helpful in understanding how the principles about adequate reasons might be applied to a court such as the Federal Circuit Court. One of the issues raised by the appellant in that case concerned the adequacy of the reasons provided by a Magistrate after a six day trial. The claim advanced by the appellant in the Victorian Magistrates’ Court was a claim for compensation for an injury alleged to have been suffered by the appellant arising out of his employment.

183    At [37] of his reasons, J Forrest J described the Magistrate’s reasons as “sparse”, especially after a six day trial where there was considerable medical evidence tendered and evidence given by the plaintiff. His Honour noted that the Magistrate’s reasons did not refer to any of the medical evidence. At [38], his Honour said:

I accept, as urged by counsel for RACV, that mere brevity of reasons does not, in and of itself, mean that the issues canvassed at trial have not been appropriately addressed. I also accept that the Magistrates’ Court is an extraordinarily busy court and that magistrates have little, if any, time to reflect ‘at leisure’ on their reasons for reaching a particular conclusion. However, a litigant (and, as a secondary but also important consideration, any reviewing court) is entitled to know the underlying basis for the disposition of the claim.

(Footnotes omitted.)

184    Justice J Forrest dismissed comparison with the case of Ta, on which the Minister has relied heavily in his submissions before this Court. In Ta, the judge’s reasons were given ex tempore immediately after the conclusion of counsel’s submissions. At [54], J Forrest J said:

I see Ta as being light years distant from this case: the County Court judge only had to consider whether she accepted the evidence of the appellant on a narrow point – possession of the bag of heroin in the bedroom. Her Honour said in terms that she did not accept Mr Ta’s evidence. By contrast, in this case, it was not just the evidence of Mr Hettiarachci (which was lengthy) which needed to be considered and pronounced upon (even if only in a cursory fashion), but also that of a number of medical practitioners, who had histories consistent with his account and had, based on that history, formed a diagnosis supportive of his claim.

185    We consider the same can be said about a comparison between Ta and the present appeal. In this proceeding before the Federal Circuit Court, it was necessary to reconstruct events over a period of several years, to consider documentary evidence, and to consider the evidence of the first and second appellants.

186    As we have noted above, we consider at least part of the explanation for the compressed reasoning of the primary judge is that there was an (inappropriate) focus on those parts of the hearing where the primary judge was himself questioning the appellants. Those were the parts of the evidence the primary judge then mostly took into account. His Honour paid scant attention to the rest.

187    The final passage from Hettiarachci which should be reproduced is at [60] of his Honour’s reasons:

Further, this is a case in which a court has, after a lengthy trial, rejected a claim of real significance to a worker. As I mentioned earlier, a reviewing court (and of course the affected parties) is entitled, as a matter of law, to know the basic rationale of the judge which underpins the result. It is not sufficient to read the tea leaves and endeavour to divine what her Honour meant by plucking pieces here and there from the reasons. In this case, the acceptance (or otherwise) of the evidence of the claimant and the medical practitioners was of critical importance and should have been addressed squarely – not left to inferences and the reading in to the reasons of words in an attempt to decipher the basis for the Magistrate’s decision. It was, in my opinion, incumbent upon her Honour to state, in terms (and not by implication), her conclusion as to acceptance or otherwise of the evidence of Mr Hettiarachci and the medical practitioners.

(Footnotes omitted.)

188    Aspects of this passage are applicable to this appeal, in particular in the following respects:

(a)    The serious nature of the claim being made (fraudulent conduct by a migration agent depriving the appellants of access to proper consideration of a visa application, which is therefore likely to affect their ability to remain in Australia).

(b)    The primary judge did not disclose his “basic rationale” for the findings that the first appellant was, in substance, a liar and had consciously decided to try her “luck” with the outcome of the work visa application process: rather, this Court, on appeal, is forced to “read the tea leaves” and endeavour to “pluck pieces here and there” from the primary judge’s reasons.

189    Against those matters, however, should be set the kinds of considerations to which J Forrest J adverted in Hettiarachci about the nature of the Magistrates’ Court jurisdiction. The Federal Circuit Court is also an extremely busy Court. Although the primary judge heard the proceeding on 24 November 2017 and delivered judgment on 31 January 2018 (and so gave himself some time to consider his decision), in our view this Court can properly take judicial notice of the very large number of cases Federal Circuit Court judges are expected to hear and determine each year.

190    By way of final observation, we note that the judicial obligation to give reasons in the context of a judicial review application was recently considered by Griffiths J in COZ16 v Minister for Immigration and Border Protection [2018] FCA 46; 159 ALD 120. One of the issues raised for his Honour’s consideration was whether the “brevity and content” of the Federal Circuit Court judge’s reasons amounted to a constructive failure to exercise jurisdiction. His Honour made the following statements when addressing that ground, which we also consider to be of relevance to ground 3 of this appeal:

[32] The Minister accepted that a failure by a judge to give adequate reasons may amount to an error of law, citing authorities such as Pettitt v Dunkley [1971] NSWLR 376; Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378 at 386 per Mahoney JA; Mifsud v Campbell (1991) 21 NSWLR 725; 13 MVR 243 and SZKLO v Minister for Immigration and Citizenship (2008) 247 ALR 582; 102 ALD 115; [2008] FCA 735 (SZKLO) at [26] per Flick J). In SZKLO, Flick J identified the following reasons for requiring judges to provide adequate reasons for their decisions:

(a) the obligation arises as a matter of judicial duty and enables an appeal court to determine whether or not the primary judge’s decision was or was not affected by error of law or an appealable error (at [19]);

(b) the failure to provide adequate reasons may lead to a real sense of grievance by the unsuccessful party who does not know or understand why the decision was made (at [19]); and

(c) the need to maintain public confidence, respect and faith in the judicial system, recognising that lower courts play an important role as they have to deal with so much work and usually come into contact with more litigants than do higher courts (at [20]).

[33] In SZKLO Flick J said the following at [26] with respect to the requirements of the reasons of a primary judge in exercising a judicial review jurisdiction:

26 Whatever the ground of review, however, the reasons of the Federal Magistrates Court must be sufficient to explain to both the litigant and others the basis upon which that Court proceeded and the reasons why the application to review the decision of the Tribunal is either to be dismissed or why the decision is said to be wrong in law. Reasons do not adequately address the grounds of review sought to be resolved if the litigant — or this Court — is left to speculate as to what it was that the Federal Magistrate had in mind when he reached the conclusions that formed the final decision.

…

[36] On the issue of the adequacy of a judge’s reasons in a judicial review context, reference should now also be made to the very recent decision of the Full Court in DAO16 v Minister for Immigration and Border Protection (2018) 353 ALR 641; [2018] FCAFC 2 (DAO16) at [46]–[48] per Kenny, Kerr and Perry JJ. At [47]–[48] their Honours made the following obiter observations on the obligation of a judge to provide adequate reasons for his or her decision:

47 The requirement to give reasons is an incident of the judicial process and reasons ought to be given in any case in which an appeal lies from the decision in order to allow that right of appeal to be exercised: Public Service Board of New South Wales v Osmond (1986) 159 CLR 656 at 667; 63 ALR 559 at 566 (Gibbs CJ). As Mahoney JA stated in Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 273:

Where, in the decision of an ordinary dispute, reasons are necessary, they are necessary because of the expectation that, being a judicial decision, a sufficient explanation will be given of why the order was made. And, in my opinion, it will ordinarily be sufficient if … by his [or her] reasons the judge apprises the parties of the broad outline and constituent facts of the reasoning on which he [or she] has acted.

48 However, the reasoning on the basis of which the primary judge reached his decision in this case is not revealed by his reasons. The primary judge addressed the grounds of judicial review by stating his conclusion for rejecting each ground at such a high level of generality that the basis for the conclusion is not exposed; nor do the reasons disclose that the primary judge considered fundamental aspects of the appellant’s case such as, for example, the challenge to the dismissal by the AAT of the evidence of the 16 witnesses. To find, for example, that adverse findings were open and cannot be said to lack an evident and intelligible justification is merely to assert a conclusion: see above at [25].

[37] In DAO16, the Full Court considered that the primary judge had not only failed to provide adequate reasons for his decision, but also that the reasons which were provided did not reveal that fundamental aspects of the appellant’s case had been considered.

…

[55] … Reasons for judgment should speak for themselves. They are directed not only to the parties but to the community at large who will not have easy access to the transcript.

[56] It is proper to acknowledge that the FCCA’s migration jurisdiction is a high volume and challenging jurisdiction. Equally, however, it must be recognised that that Court is exercising an important judicial review jurisdiction and litigants are entitled to expect that the well-established features of the judicial process will be provided. Those features include not only the requirements of procedural fairness, but also that the Court will provide adequate reasons for its decision and properly address fundamental aspects of the parties’ respective cases. Depending on the circumstances of any case, including the detail and complexity of the submissions which are made, it may be appropriate to provide relatively brief reasons for rejecting a party’s case. It may also be appropriate in some cases for the Court to deliver ex tempore reasons for decision, but this does not mean that the Court is somehow excused by that method of decision-making from adequately disclosing the Court’s reasoning processes, having regard to the general principles and considerations outlined in [32]–[46] above.

191    The observations of Griffiths J in COZ16, with which we respectfully agree, illustrate that a conclusion about inadequacy of reasons involves the balancing of a number of factors, and close consideration of the specific circumstances of the case before the trial court.

192    This ground is a difficult one to determine. There are inadequacies in the Federal Circuit Court’s reasons, and those we have identified go to the two errors in ground 1 and ground 2. That is sufficient to dispose of the appeal. Although we have been critical of the primary judge’s reasoning, we are reluctant to determine, as an independent ground of appeal, that these reasons do not meet an adequate standard for the Federal Circuit Court in a judicial review application of a claim that a visa application has been vitiated by third party fraud. The reasons do set out some applicable legal principles, and the factual background. The reasons do not set out the parties’ arguments at all, nor really consider those arguments in the course of reaching conclusions. That may explain, at least in part, how the errors identified in grounds 1 and 2 arose. The reasons do contain some findings of fact, although most are conclusory, and reasoning between the initial findings and the conclusions is absent on critical matters. However, judges in the Federal Circuit Court have extraordinary workloads, and must determine the cases before them under more pressure and with more expedition than judges of this Court (cf COZ16 at [56]). We are also conscious it is easy for an appellate court to be critical, in hindsight, and spend much time poring over a set of reasons, and that is not the context in which the reasons were written.

193    After careful reflection, we have concluded that, despite their inadequacies, we are not prepared to find that the Federal Circuit Court’s reasons are so inadequate that they do not constitute a lawful discharge of the judicial obligation to give reasons. We are not persuaded the reasons are so inadequate as to, independently of any other error, vitiate the orders made. Ground 3 should not succeed. However, the flaws in the reasons are important to our conclusions on grounds 1 and 2.

DISPOSITION

194    For these reasons, we would allow the appeal on the basis of the errors identified by the appellants in grounds 1 and 2 of the amended notice of appeal.

195    Despite the fact that the resolution of the appellants’ judicial review application depends principally on proof they (and especially the first appellant) were neither complicit in nor recklessly indifferent to the fraud of S & S Migration, there is a question whether it is in the interests of the administration of justice for this matter to be remitted, for the second time, to the Federal Circuit Court for further trial of that issue. The Federal Circuit Court has heard this judicial review application, based on the agreed fraud of S & S Migration, on two occasions now. Each time, it has made a decision found by this Court to be erroneous.

196    This Court now has a transcript of the appellants’ evidence before the Federal Circuit Court, and the benefit of well-developed arguments about it. The appellants’ visa application was made almost eight years ago.

197    It may be appropriate for this Court to decide the question of final relief for itself, on the evidence before it. The parties should be given an opportunity to make short submissions on that matter, and also time to see if an agreed position on final orders might be reached, taking into account the Court’s reasons for judgment. That position should include what orders, if any, should be made about the decisions of the delegate and the Tribunal: if declaratory relief is granted, that may have the effect of rendering the decisions of the delegate and the Tribunal susceptible to, at the least, being set aside because they were made in respect of an invalid application. The question of costs should also be addressed.

Associate:

Dated:    3 April 2019