FEDERAL COURT OF AUSTRALIA

Katragadda v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 143

ORDERS

THE COURT ORDERS THAT:

1.    Leave be granted to the appellant to rely on an amended notice of appeal in the form filed on 29 July 2020.

2.    The appeal be dismissed.

3.    The appellant pay the first respondent’s costs of the appeal, to be fixed by way of a lump sum.

4.    On or before 4 pm on 3 September 2020, the parties file any agreed proposed minute of orders fixing a lump sum in relation to the costs referred to above.

5.    In the absence of any agreement in accordance with Order 4, the matter of an appropriate lump sum figure for the first respondent’s costs be referred to a Registrar for determination.

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

REASONS FOR JUDGMENT

MORTIMER AND CHARLESWORTH JJ:

Introduction

1    Although we have concluded this appeal must be dismissed, it is important to note that this is yet another case arising from the carnage left by the fraudulent conduct of S & S Migration. As the evidence on this appeal demonstrates, this firm held itself out to visa applicants as able to secure work visas for them, while charging them considerable sums of money for visa applications completed online by those persons operating S & S Migration, and based on deliberately false information. The conduct of S & S Migration involved several stages of dishonesty, as we will explain.

2    The appellant is a citizen of India who first arrived in Australia in 2008. Between 2009 and 2011, the appellant completed a course in automotive engineering. Having completed that course, he saw a flyer from S & S Migration that stated:

ATTENTION INTERNATIONAL STUDENTS!

SECURE YOUR FUTURE! WE ARE HERE TO ASSIST!

DON’T WANT TO STUDY!! DON’T HAVE 6 EACH IN IELTS!!

APPLY FOR WORK PERMIT FOR UP TO 4 YEARS AND WORK

FULL TIME**

3    It is common ground that the appellant attended the offices of S & S Migration and saw one Mr Ajjan, who was a migration agent at the firm. Before the Federal Circuit Court there was some debate about the circumstances in which the appellant saw this person, how many times, and how much money he paid S & S Migration. In the end, the Federal Circuit Court found the appellant paid the firm $3068.75. While some of the factual narrative about how the visa application came to be made, and what happened afterwards, was contested, certain aspects were not and it is those uncontested aspects we set out here.

4    On 9 March 2011, a visa application for a Skilled (Provisional) (Class VC) subclass 485 (Temporary Graduate) visa was lodged in the appellant’s name. S & S Migration lodged the application. There was no dispute on the evidence about the following features of the visa application.

(a)    The appellant did not sign it. The application was an online application.

(b)    The form did not reveal that S & S Migration had completed the form, nor that they had been appointed by the appellant to act for him. The parts of the visa application intended to make these disclosures were not completed.

(c)    Instead the form represented that the appellant had completed the form, and had made the factual representations therein.

(d)    The form gave an email for contact purposes which was the appellant’s email, not that of S & S Migration.

(e)    As the Federal Circuit Court set out at [106] of its reasons, the form made a number of statements which were false:

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) Under the heading “Critical data confirmation”, in answer to the later question “Is all the information above correct?”, the answer “Yes” is typed.

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 “Automotive Electrician”, and the name of the assessing authority is listed as “Trades Recognition Australia”, with a date of skills assessment entered as “15 FEB 2010” and the reference/receipt number given as “TRA10/284672183”.

(f)    All the answers under the “skills assessment” section were false, except for the nominated occupation of “automotive electrician” (see Federal Circuit Court reasons at [107]).

5    The Federal Circuit Court described the fraud in the following way at [109] of its reasons:

The fraud may be described as follows: the false and deliberate representation by S & S Migration, through the lodgement of the Skilled Visa Application, that the Applicant had, at the time of lodging the Skilled Visa Application, a positive skills assessment from TRA in respect of his nominated occupation as an automotive electrician, when in fact he did not, and that he was in this respect able to satisfy the criteria for the grant of the Skilled Visa, when in fact he could not. The intention of S & S Migration, it can be inferred, was to secure the grant of a Skilled Visa to the Applicant on a false basis.

6    This finding appears to be modelled quite closely on the passage in Kaur v Minister for Immigration and Border Protection [2019] FCAFC 53; 269 FCR 464 at [82].

7    The relevant chronology is as follows, and is dealt with more fully by the Federal Circuit Court at [4]-[38] of its reasons. The appellant’s visa application was refused by a delegate of the Minister on 20 April 2012 on the basis that he had provided information that was false or misleading and therefore did not satisfy public interest criteria 4020(1) as defined in Sch 4 to the Migration Regulations 1994 (Cth). PIC 4020 (at the time of the delegate’s decision) provided:

Public Interest Criterion 4020

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

(a)     the application for the visa; or

(b)     a visa that the applicant held in the period of 12 months before the application was made.

(2)     the Minister is satisfied that during the period:

(a)     starting 3 years before the application was made; and

(b)     ending when the Minister makes a decision to grant or refuse the application;

the applicant and each member of a family unit of the applicant has not been refused a visa because of a failure to satisfy the criteria in subclause (1).

(3)     To avoid doubt, subclauses (1) and (2) apply whether or not the Minister became aware of the bogus document or information that is false or misleading in a material particular because of information given by the applicant.

(4)     The Minister may waive the requirements of any or all of paragraphs (1) (a) or (b) and subclause (2) if satisfied that:

(a)    compelling circumstances that affect the interests of Australia; or

(b)    compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen;

justify the granting of the visa.

(5)     In this clause: information that is false or misleading in a material particular means information that is:

(a)     false or misleading at the time it is given; and

(b)     relevant to any of the criteria the Minister may consider when making a decision on an application, whether or not the decision is made because of that information.

8    On 9 May 2012, the appellant applied to the Migration Review Tribunal for review of the delegate’s decision. He sought review on the basis that he was a victim of the fraud of S & S Migration, and that therefore he should not be found to have failed to satisfy PIC 4020, or the Tribunal should find that there were exceptional circumstances to waive the requirement. The Tribunal did not accept his contentions, and on 12 June 2014, it affirmed the decision under review.

9    On 30 June 2014, the appellant commenced proceedings for judicial review in the Federal Circuit Court. Those proceedings were determined by orders on 11 September 2015 dismissing the application for judicial review. The Federal Circuit Court’s orders were subsequently set aside by consent in this Court on 31 July 2017, and the matter remitted back to the Federal Circuit Court for further hearing.

10    The further hearing occurred on 19 March 2019. Both the appellant and the Minister were represented by experienced counsel. There had been discovery by both parties. There were a number of affidavits read, and documents tendered. The matter is properly characterised as having been a fully contested trial in the Federal Circuit Court.

11    In his outline of submissions, the appellant contended:

1. In this case, the applicant alleges that his one-time migration agent, S & S Migration, wrongly, and fraudulently, advised the applicant that he was eligible for the grant of a subclass 485 visa and attended to the making of a visa application in the applicant's name that contained substantial fraudulent content. In truth, the applicant was not eligible for the grant of the 485 visa, and has been the victim of a fraud.

2. The applicant submits that the fraudulent action of his one-time migration agent stultified the operation of the Migration Act 1958 (Cth) (the Act), and seeks relief from the effects of this fraud. In particular, the applicant seeks relief from the effect of s 48 of the Act, which precludes the applicant from making an onshore visa application.

12    On the question of the burden of proof borne by the (then) applicant, the Minister contended:

Moreover, in relation to:

(a) any claimed lack of indifference to dishonest conduct of S & S Migration; and

(b) any claimed stultification, as a result of any proven fraud of S & S Migration, of a statutory process under the Act;

the applicant bears the onus of proving, on the balance of probabilities, the material facts relevant to those matters.

In this regard, in Maharjan v Minister for Immigration and Border Protection [2017] FCAFC 213 at [113], a majority of the Full Federal Court (Gilmour and Mortimer JJ; Logan J dissenting) relevantly stated that, on remittal of a similar matter to the Federal Circuit Court:

... Before the Federal Circuit Court, the appellants will bear the onus of proving that the fraud alleged was a fraud perpetrated on the first appellant: that is, that she was neither complicit in it nor “indifferent” to it, in the limited sense explained in Singh and Gill. The appellants will also need to prove that the submission of those fraudulent documents provided by the Nepalese agent to their migration agent and then to the Minister's delegate “stultified” the visa application and determination processes for which the Migration Act provides. The Minister will be able to both adduce any evidence he considers appropriate, and to test (whether by way of evidence or by way of cross-examination) the appellants' case. There is in those circumstances no relevant prejudice to the Minister. Whether the Federal Circuit Court is satisfied of the matters alleged, and whether the Court considers declaratory relief as sought to be appropriate, will be matters for it.

On the available evidence before the Court in this proceeding, the applicant has not discharged the onus of proving those matters. On that evidence, the Court should not be satisfied that the skilled visa application was invalid.

13    On 1 April 2020, the Federal Circuit Court dismissed the appellant’s application. We return to the Court’s reasons in more detail below.

14    On 24 April 2020, the appellant filed a notice of appeal in this Court without the assistance of legal representation. On 25 May 2020 the Court made a referral to pro bono counsel, which was accepted by counsel for the appellant. The Court expresses its gratitude to counsel for taking the referral.

15    On 29 July 2020, pursuant to orders of the Court, the appellant filed an amended notice of appeal. The application relies on two grounds of appeal:

4. The primary judge erred in finding at [129(b)] of the primary judge’s reasons that the Applicant was recklessly indifferent as to whether or not S & S Migration acted unlawfully or dishonestly to obtain the grant of a visa for him on grounds that none of the 3 intermediate findings of fact in paragraph [127] of the primary judge’s reasons, individually or together, support a finding that the Applicant possessed the requisite mental state at the time he provided S & S Migration with general authority to act on his behalf.

Particulars

The requisite mental state to disentitle the Applicant to relief is that the Applicant was recklessly indifferent or wilfully blind as to the possibility that a professional advisor would act fraudulently or dishonestly.

5. The primary judge erred in finding at [128] of the primary judge’s reasons that the Applicant had not discharged the onus that he was the innocent victim of fraud on grounds.

Particulars

Absent a finding that the Applicant was indifferent to whether or not S & S migration acted unlawfully or dishonestly to obtain the grant of a visa for him, the weight of the evidence supports a finding that the Applicant was an innocent victim of fraud.

16    At the hearing of the appeal, the Court indicated it would grant leave to the appellant to rely on the amended notice of appeal.

The Federal Circuit Court’s decision

17    Having set out the background, including the material before the Federal Circuit Court (which was considerable), from [44]-[86] the Federal Circuit Court set out a number of aspects of the appellant’s evidence. We take it that these are the parts of the appellant’s evidence the Federal Circuit Court considered material to its fact finding, which occurs a little later in its reasons. After setting out some further evidence, at [92] the Court turned to consider the grounds of review. The grounds of review were more numerous than the grounds pursued on the appeal, and it is necessary for the purposes of the appeal to focus only on Ground 4, which is the ground concerning the alleged fraud. The Federal Circuit Court summarised ground 4 at [97]-[98] of its reasons:

The Applicant submitted that the Skilled Visa Application was not a “valid” visa application within the meaning of s.46 of the Migration Act, by reason of the stultifying effect of the fraudulent conduct of S & S Migration. It was further submitted that it was therefore open to the Tribunal to set aside the Delegate’s Decision on the ground that there was no valid visa application, on the basis that if there was not a valid visa application, the Delegate was precluded from considering the Skilled Visa Application and precluded from making any decision in respect of the Skilled Visa Application (ss.47 and 65 Migration Act).

In relation to ground 4, the Applicant alleges that the absence of the Applicant’s knowledge of the fraud and/or the lodging of the Skilled Visa Application with the false TRA reference, gave rise to there being an invalid application.

18    Having set out the authorities, the Federal Circuit Court identified the issues for it to determine at [101]-[102]:

Therefore in relation to any claim that the Skilled Visa Application made by or on behalf of the Applicant was not valid and as a consequence, the Applicant is entitled to declaratory relief, it is necessary for the Court to consider:

a) Whether or not the conduct of S & S Migration constituted a fraud “on the Applicant”; and if so,

b) How, if at all, any fraud stultified a statutory process under the Migration Act (Singh [52]).

In determining whether or not the conduct of S & S Migration constituted a fraud “on the Applicant”, it is necessary for the Court to consider the nature of the authority given by the Applicant to S & S Migration to make the Skilled Visa Application on his behalf. The Court accepts the submission of the Minister that there is no fraud on the Applicant if he authorised or countenanced the fraud. The Court accepts that there is no fraud on the Applicant if:

a) He gave imputed authority to S & S Migration to engage in unlawful or dishonest conduct in connection with the making of the skilled visa application; or

b) He was otherwise “indifferent” to S & S Migration engaging in such conduct (Gill [48]-[49] and [51]).

19    At [103], the Federal Circuit Court extracted a long passage from Kaur about the meaning of “reckless indifference”. We take that to indicate a consciousness of the necessary basis for its fact finding.

20    The Federal Circuit Court’s fact finding about the circumstances of the fraud commences at [104] and ends at [111] of its reasons. Some of those passages are extracted at [4] and [5] above. From [112], the Federal Circuit Court deals with its findings in answer to the question it posed for itself in the heading “Was the Applicant “Indifferent?”. We understand “indifferent” in the heading to be a shorthand for “recklessly indifferent”.

21    At [114], the Federal Circuit Court found:

The Applicant was an unimpressive witness and gave inconsistent evidence in relation to number of matters.

22    From [115]-[118], the Federal Circuit Court made findings about a series of discrepancies in the appellant’s evidence, as to:

(a)    The number of occasions he visited the offices of S & S Migration;

(b)    What documents he provided to them and when;

(c)    When fee payments were made to S & S Migration and in what tranches; and

(d)    When the appellant was provided with the departmental reference number for his visa application.

23    At [120], on the basis of those findings, the Federal Circuit Court concluded:

From this inconsistent and conflicting evidence I conclude that the Applicant is indifferent about truthfulness and accuracy in documents, including affidavits filed in this Court.

24    Then at [121]-[125], the Federal Circuit Court set out further findings, this time based on the appellant’s evidence, but which the Federal Circuit Court appeared to consider were generally adverse to his claims not to have been recklessly indifferent to the fraudulent conduct of his migration agent. At [126], in a more global finding, the Federal Circuit Court concluded:

The Court would ordinarily expect some inconsistency in a witness’ evidence, particularly where events occurred a number of years previously. In this case however, there have been numerous opportunities where the Applicant has been required to consider quite carefully what happened and to present evidence. In such circumstances, the Court would have expected a much better degree of consistency in the Applicant's account. The cumulative effect of the Applicant’s very inconstant evidence goes to the reliability of the Applicant as a witness. As a result of the significant number of inconsistencies in the Applicant’s evidence, I am unable to accept the Applicant as a witness of truth.

25    The last sentence, while expressed globally, cannot be read literally. As we have noted, the Federal Circuit Court had already made positive findings of fact based on the appellant’s evidence. However we accept the finding does emphatically illustrate the Federal Circuit Court’s disbelief of the key aspects of the appellant’s narrative.

26    At [127]-[129], the Federal Circuit Court then made the finding which pulled together its previous factual findings and applied them to the framework it had identified at [101] and [102] of its reasons:

In my opinion the Applicant’s behaviour was sufficiently indifferent to constitute “reckless indifference” or “wilful blindness” as explained in Kaur ([134], [136]-[137]). The Applicant did not provide a critical response to the conduct of S & S Migration providing him with limited information. The Applicant was blithe about the process of the Skilled Visa Application. He made no inquiries about the application for a period of 12 months.

The Applicant has not discharged the onus that he was the innocent victim of fraud (Maharjan [113]).

I therefore find:

a) The Applicant gave S & S Migration general authority to act as his agent and to make the Skilled Visa Application.

b) The Applicant was indifferent as to whether or not S & S Migration acted unlawfully or dishonestly to obtain the grant of a Skilled Visa for him.

c) The conduct of S & S Migration did not constitute a fraud on the Applicant.

27    From [130]-[151], the Federal Circuit Court then embarked on further findings under the heading “Was there a valid visa application?”. In this section, the Federal Circuit Court examined whether it was satisfied the fraud of the migration agent had “stultified” any decision making process under the Act. It is not necessary to examine that part of the Federal Circuit Court’s reasons, given the way the challenge is framed in this Court. Both parties accepted that was the case.

The appellant’s submissions in summary

28    The appellant submits that the “critical issue” on appeal should be expressed as:

Did the primary judge err by dismissing the appellant’s application in circumstances where her Honour failed to find that (i) the appellant was recklessly indifferent as to whether or not his migration agent acted unlawfully or dishonestly in the course of making his migration application (ii) at the time he gave his migration agent general authority to act on his behalf?

29    On the appellant’s case, the primary judge’s findings rose no higher than

character findings that the appellant had a propensity to recklessness as to truth and accuracy.

30    That, the appellant contends, does not satisfy the standard described in Kaur, which must be a state of mind with regards to the specific fraud perpetrated, and which is the subject of a clear finding by the decision-maker, based on probative evidence. The appellant contends that no such finding has been made in the decision under review.

31    As to the Federal Circuit Court’s fact finding, the appellant contends:

The primary judge’s findings fall short for two reasons:

(a) it failed to make a finding as to the appellant’s state of mind at the relevant time;

(b) it failed to make a finding as to what the appellant was reckless about.

32    The appellant contends the findings made in the Federal Circuit Court should instead be characterised as findings that the appellant “possesses a character of habitual carelessness amounting to indifference about truthfulness and accuracy in documents”. On the appellant’s submission, this finding does not address the subjective mental state of the appellant, which is, on the authorities, what it needed to address.

33    The appellant submits, relying on Maharjan v Minister for Immigration and Border Protection [2017] FCAFC 213; 258 FCR 1, that he had no burden to prove he was “innocent” of the fraud perpetrated by his migration agent, only to prove that he was not “complicit” in it.

34    The appellant sought that the orders of the Federal Circuit Court be set aside, and the matter remitted for re-hearing.

The Minister’s Submissions in Summary

35    The Minister submits that the appeal should be dismissed because:

(a) The Court below understood that the correct test was whether the Appellant had been recklessly indifferent to the potential of fraudulent conduct by S&S Migration.

(b) Based on the evidence before the Court, it was a permissible inference to find that the Appellant had been indifferent in the requisite sense.

36    The Minister submits that, unlike a more typical judicial review concentrating on jurisdictional error, the “real question” before the Federal Circuit Court was whether the appellant’s visa application was invalid and whether the appellant is entitled to a declaration to that effect. The argument on appeal must therefore engage with whether the findings of the Federal Circuit Court were open on the evidence before it.

37    The Minister accepts that the relevant legal framework is set down in Kaur, and that this framework requires a consideration of whether the appellant held the requisite mental state of reckless indifference to the fraudulent conduct of his migration agent.

38    The Minister submits that the Federal Circuit Court was required to, and did, examine the whole period between the appellant’s engaging of S & S Migration to the delegate’s refusal decision. The Minister submits the Federal Circuit Court identified a series of discrepancies and inconsistencies in the appellant’s evidence, and the finding that the appellant was not a “witness of truth” also went to the ultimate finding of reckless indifference as to the fraud.

39    In this context, the Federal Circuit Court’s finding (at [120]) that the appellant was “indifferent about truthfulness and accuracy in documents” was not simply abstract or objective finding, disconnected from the appellant’s mental state, but a relevant factor in its ultimate finding that the appellant was sufficiently indifferent to the fraud perpetrated by his migration agent. The Minister submitted the Federal Circuit Court made a series of findings about the appellant’s attitude towards S & S Migration’s authority and the truthfulness and progress of his visa application, all of which went to his state of mind during the relevant period, and included findings about the appellant:

(a)    only meeting with his migration agent once for a brief period, and being aware that he himself had not provided documents that would meet the criteria for the skilled visa;

(b)    not signing any documents and not knowing (or apparently, seeking to know) what information would be included in the visa application;

(c)    not following up about the progress of his application after he briefly left Australia to return to India; and

(d)    not contacting the Department regarding his visa application until March 2012.

40    Read together with this series of findings of fact, the finding at [129] of the Federal Circuit Court’s decision that the appellant had been “indifferent as to whether or not S & S Migration acted unlawfully or dishonestly to obtain the grant of a Skilled Visa for him” may be understood as a complete answer to the appellant’s argument that the primary judge failed to make a finding of fact as to the appellant’s state of mind at the relevant time, with regards to the specific fraud perpetrated.

41    The Minister submits that it follows from this that the appellant did not discharge the burden of demonstrating an absence of complicity in the fraud perpetrated by S & S Migration, such that he could be characterised an innocent victim of it.

Resolution

42    The appellant did not seek to challenge the Federal Circuit Court’s articulation of the applicable legal principles; rather the error was said to lie in their application.

43    Within the framework of the applicable principles, we are not persuaded the appellant has established error in the fact finding of the Federal Circuit Court.

Applicable principles

44    The applicable principles to the contentions confronting the Federal Circuit Court are now well established, and can be found in SZFDE v Minister for Immigration and Multicultural Affairs [2007] HCA 35; 232 CLR 189; SZSXT v Minister for Immigration and Border Protection [2014] FCAFC 40; 222 FCR 73; Gill v Minister for Immigration and Border Protection [2016] FCAFC 142; 248 FCR 398; Maharjan; and most recently in Kaur.

45    As the High Court in SZFDE at [47] made clear, by reference to the dissenting reasons of French J in SZFDE in the Full Court of this Court, the ultimate issue in cases such as this is the effect of the third party fraud on the administrative decision making process. At [49], the Court described the effect in the case before it as “stultifying the operation of the legislative scheme to afford natural justice to the appellants”. The facts of SZFDE concerned the appellants’ failure to appear before the Tribunal because the fraudulent conduct of the third party migration agent caused the Tribunal to infer the appellants had consciously elected not to appear before the Tribunal, which was in fact not the case. In SZFDE there was no allegation the appellants had any knowledge or notice of what their migration agent had done. The development of the law about the involvement, if any, of the visa applicant in a third party fraud, has occurred in the Full Court cases in this Court.

46    As that law has developed, it has been accepted that a visa application may itself be rendered invalid by reason of the fraudulent conduct of a third party migration agent, and the Federal Circuit Court, as the Court with original jurisdiction over “migration decisions” as that phrase is defined in s 5(1) of the Migration Act 1958 (Cth), has become the trial Court for such allegations. How this comes about is explained in Gill at [14] and [50]:

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

….

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

47    In Singh v Minister for Immigration and Border Protection [2016] FCAFC 141; 247 FCR 554, heard together with Gill, the Full Court said this (at [39(b)]) of the Federal Circuit Court’s jurisdiction:

The FCCA plainly did have jurisdiction here to review the Tribunal’s decision and, in an appropriate case, to set aside that decision on the grounds of non-complicitous fraud on the part of the visa applicant and to declare that the original visa application was invalid.

48    In Singh, from [41]-[51], the Full Court settled some of the previous disputes between the Minister and visa applicants about how a fraud of a migration agent might affect the validity of a visa application, and confirmed the availability of declaratory relief in the Federal Circuit Court in an appropriate case. When declaratory relief will be appropriate was addressed by the Full Court at [52] (with our emphasis added):

Naturally, whether or not a Court exercising judicial review determines ultimately to grant appropriate declaratory relief will depend upon a range of matters. They include whether the evidence justifies the making of relevant and necessary findings of facts relating to such matters as the validity of the visa application, whether the visa applicant has been the victim of fraud and whether that fraud has also stultified some relevant aspect of the decision-making process in relation to the consideration of the visa application. None of these matters was addressed or determined by the FCCA below because of the erroneous finding that the Court lacked jurisdiction. For completeness, 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.

49    The further clarification in Kaur concerned what state of mind would be sufficient for a Court to find that a visa applicant could properly be characterised as “complicit” in the fraud, or to find there was no fraud “on” the visa applicant. In Kaur at [136]-[140], the Full Court described the requisite state of mind:

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.

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.

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.

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.

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.

50    However it is also important to note what the Full Court said in Gill about the responsibility of accredited migration agents – and the view that their clients are entitled to take of that responsibility - to properly conduct visa applications on behalf of their clients:

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

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

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

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

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

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

51    From this, the Full Court also observed at [48]:

In our view, it is one thing to conclude, on the basis of relevant evidence, that a visa applicant, having retained the assistance of a migration agent, gives his or her general authority to that agent to do whatever is lawful and proper to achieve the visa applicant’s objective of obtaining a particular visa, as opposed to a visa applicant placing such matters in the hands of a migration agent and being indifferent to whether the migration agent uses lawful or unlawful means to achieve the visa applicant’s objective of obtaining a visa.

52    And then at [49], the Full Court observed 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.

53    In Gill at [47], the Full Court emphasized the factual particularity in which the applicable principles fall to be considered. That is why, as we explain below, the onus of proof which must be discharged on the evidence as adduced before the trial court assumes some prominence.

54    In Kaur at [53], the task facing the Federal Circuit Court was summarised in this way:

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.

55    In Kaur at [56], the Full Court accepted the following submissions made by the Minister in that appeal as accurately reflecting what must be proven for the “jurisdictional fact” of an invalid visa application to be established:

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’.

56    It is therefore well established that it is the visa applicant who bears the burden of proving, to the standard set out in s 140 of the Evidence Act 1995 (Cth), that she or he was nether complicit in the third party agent’s fraud, nor “recklessly indifferent” to it, as that concept is explained in Kaur.

Our reasoning

57    The appellant had to prove he was entitled to the declaratory relief he sought, in relation to the invalidity of his skilled visa application. To discharge that burden he was required to prove that the third party fraud (the existence of which was not disputed by the Minister) stultified the decision making process required by the Act about the skilled visa application. That aspect of his burden is not in issue on this appeal.

58    There might be several ways to describe the burden of proof that was in issue. The appellant was required to prove, consistently with s 140 of the Evidence Act, that he was not “involved in” the fraud, or was not “complicit” in it. The appellant needed to prove he had no actual knowledge of the fraud being perpetrated by the third party and that he was not recklessly indifferent to it: the fraud here being lodging of a skilled visa application with numerous false statements and representations in it, including that the appellant was capable of satisfying the key visa criteria for a skilled visa.

59    The Federal Circuit Court concluded that the appellant had not discharged that burden of proof. That conclusion would be a sufficient basis for dismissing the application for judicial review. And, if there be no error in the conclusion, that would be a sufficient basis to dismiss this appeal.

60    However, the Federal Circuit Court went further, and made positive findings that the appellant was, in fact, recklessly indifferent to the fraud of S & S Migration. As the Full Court observed in Gill, the finding must be one of reckless indifference to whether a migration agent may use dishonest and false means to obtain a visa.

61    With respect, the findings at [127]-[129] could have been more squarely directed to the level of dishonesty required by the authorities in order for such a serious finding to be made. It is a finding tantamount to deliberate dishonesty: see Kaur at [136]-[140].

62    Nevertheless, we are persuaded that the Federal Circuit Court’s reasons, when read fairly and as a whole, disclose that the Federal Circuit Court did consider the appellant was being dishonest concerning his level of awareness about the contents of the skilled visa application, and dishonest about his belief at the relevant time that his visa application was a truthful and accurate representation to the Minister of his capacity to satisfy the visa criteria.

63    Although the statements in Gill about the entitlement of persons in the position of the appellant to rely on the skills and professional duties of migration agents are the starting point in terms of principle, it is apparent from the Federal Circuit Court’s reasons that it simply did not accept that this appellant had done no more than rely in good faith on his migration agent’s assurances and qualifications. That was the positive case put forward on the evidence by the appellant, but it was not accepted.

64    The findings at [122]-[124] of the Federal Circuit Court reasons make this clear:

The Applicant met with Mr Ajjan for only 10 to 15 minutes on the first visit and some documents were given to the migration agent. On the Applicant’s own admission, none of the documents that he gave to S & S Migration met any of the criteria for the Skilled Visa. The Applicant said that he knew that he had to demonstrate some skills for the Skilled Visa and he agreed that he did not give the migration agent any evidence of skills (T28 L:17-24). The Applicant gave to Mr Ajjan a copy of his IELTS certificate and he conceded that the certificate did not have a sufficient score to satisfy the relevant language requirements for the Skilled Visa (T29 L:1-7).

The Applicant said that he did not sign any documents. The Applicant had no idea what information was going to be included in the Skilled Visa Application (T29 L:27-45). The Applicant never sought a copy of the Skilled Visa Application from Mr Ajjan (T42 L:19-20). The Applicant did not recall ever getting a receipt or record from Mr Ajjan in relation to his services (T42 L:22-23). The Applicant was unable to recall whether he asked Mr Ajjan for a copy of his Skilled Visa Application lodged with the Department or for a receipt for Mr Ajjan’s services (T42 L:25-26).

After the Applicant returned to Australia in June 2011, the Applicant did not recall having any telephone conversation with Mr Ajjan (T42 L:14-17). Neither did the Applicant recall sending any emails to Mr Ajjan or receiving any emails from Mr Ajjan (T41 L:37-T42 L:9).

65    As the appellant contended, these are at least in part findings about behaviour, but it is behaviour which is capable of being probative of the appellant’s state of mind throughout the period leading up to the delegate’s refusal decision. That is what is meant, we consider, when the Federal Circuit Court uses the word “behaviour” in its conclusion at [127]. We accept the Minister’s submission on this point.

66    The discrepancies in the evidence which the Federal Circuit Court identified at [115]-[118] would not, of themselves, have been sufficient to provide a probative basis for a finding about the appellant’s state of mind during the relevant period. That is because they largely concerned peripheral factual issues – for example how much the appellant paid the migration agents, and when.

67    What was more important, and what we accept the Federal Circuit Court did use these discrepancies for, was the finding at [120] that the appellant was “indifferent about truthfulness and accuracy in documents, including affidavits filed in this Court”. The skilled visa application was, of course, a document of a not dissimilar nature: it contained a declaration by the visa applicant as to the truth of its contents. This was not the appellant’s first visa application: he had been a student visa holder for several years. There was no suggestion he did not understand the visa process itself: indeed as the Federal Circuit Court recorded at [69], the appellant’s evidence was that after S & S Migration had lodged his skilled visa application, he used the TRN given to him by Mr Ajjan to check the status of the Skilled Visa Application “regularly”.

68    Finally, the Federal Circuit Court also had the advantage of hearing and seeing the appellant, including under cross examination. While this advantage is not to be overstated, and is not a substitute for the need for a probative evidentiary basis for what are very serious findings against an individual, the advantage of a trial Judge is also not to be set at nought. To discharge his burden of proof of the negative fact, key parts of the appellant’s account needed to be accepted.

Conclusion

69    The appellant has not established any appealable error in the approach taken by the Federal Circuit Court. The appeal must be dismissed. It was not suggested anything but the usual order as to costs should be made. Consistently with the Court’s now preferred practice (see the Court’s Costs Practice Note (GPN-COSTS) at [4.1]-[4.22]), there will be an order for costs to be paid by way of a lump sum, and the parties will be given an opportunity to agree on an appropriate sum.

70    The Court re-iterates its gratitude to counsel for taking a referral pursuant to r 4.12 of the Federal Court Rules 2011 (Cth) to act on behalf of the appellant.

Associate:

Dated:    20 August 2020

REASONS FOR JUDGMENT

LEE J:

71    Although I have had the benefit of reading in draft the reasons of Mortimer and Charlesworth JJ and I agree with the orders proposed by their Honours, I would like to state my reasons for reaching that conclusion shortly.

72    The primary judge found that: (a) Mr Katragadda gave S & S Migration general authority to act as his agent and to make the visa application; (b) Mr Katragadda was recklessly indifferent as to whether his agent acted unlawfully or dishonestly to obtain the visa for him; and (c) as a consequence of this factual finding as to the state of mind of Mr Katragadda, the conduct of his agent (S & S Migration) did not constitute a fraud perpetrated on the principal (Mr Katragadda): see Katragadda v Minister for Immigration [2020] FCCA 723 (Primary Judgment) (at [127]–[129]).   

73    As I will explain, these findings were not necessary to dispose of the claim made by Mr Katragadda, but the reason why the primary judge addressed the matter in this way is evident from the Primary Judgment, when her Honour (at [102]):

... accept[ed] the submission of the Minister that there is no fraud on [Mr Katragadda] if he authorised or countenanced the fraud. The Court accepts that there is no fraud on [Mr Katragadda] if:

a)    He gave imputed authority to S & S Migration to engage in unlawful or dishonest conduct in connection with the making of the skilled visa application; or

b)    He was otherwise “indifferent” to S & S Migration engaging in such conduct (Gill [48]-[49] and [51]).

74    Perhaps unsurprisingly in this circumstance, the relevant section of the reasons recording the primary judge’s findings was headed: “Was the Applicant ‘Indifferent’?” But although that was the way in which the inquiry was framed below, it is important to ensure that the nature of the legal and evidentiary contest below is not obscured.

75    To obtain declaratory relief, Mr Katragadda had the burden of proving fraud stultified the relevant decision-making process. This was uncontroversial in the present case. But although such proof of stultification was necessary, it was not sufficient: he was also required to establish his agent’s conduct constituted a fraud on him.

76    In Kennedy v De Trafford [1897] AC 180 (at 188), Lord Herschell observed that “[n]o word is more commonly and constantly abused than the word “agent”.”  The way the term “agent” is best understood in a commercial context, is an authority in one person (A) to create legal relations between a person occupying the position of principal (B) and a third party (C): Scott v Davis [2000] HCA 52; (2000) 204 CLR 333 (at 408 [227] per Gummow J); International Harvester Co of Australia Pty Ltd v Carrigan’s Hazeldene Pastoral Co (1958) 100 CLR 644 (at 652 per Dixon CJ, McTiernan, Williams, Fullagar and Taylor JJ). In the present context, with the particular role of the migration agent operating within, and regulated by, the Migration Act 1958 (Cth), private law analogies drawn from the common law of agency can be pushed too far; but when one remembers that fundamental to the concept of agency is the arming of an agent to act or speak on behalf of the principal in dealing with a third party, the notion that it is for the principal to prove that the principal was not complicit in the agent’s wrongdoing in making representations to a third party makes perfect sense. This is the case, notwithstanding that issues of fraud in a public law context are sui generis.

77    Hence, it was always for Mr Katragadda to discharge the evidentiary and persuasive burden of proving that he was the innocent victim of fraud in the sense that he did not have a state of mind which meant that he was complicit. This required proof of a fact: as Bowen LJ famously said, “the state of a man’s mind is as much a fact as the state of his digestion”: Edgington v Fitzmaurice [1885] 29 Ch D 459 (at 483). Further, as Sir Owen Dixon emphasised in a number of cases: when the law requires proof of any fact, the tribunal of fact “must feel an actual persuasion of its occurrence or existence before it can be found” (Briginshaw v Briginshaw (1938) 60 CLR 336 (at 361 with emphasis added); a party bearing the onus will not succeed unless the whole of the evidence establishes a “reasonable satisfaction” on the preponderance of probabilities such as to sustain the relevant issue (Axon v Axon (1937) 59 CLR 395 (at 403)); and the “facts proved must form a reasonable basis for a definite conclusion affirmatively drawn of the truth of which the tribunal of fact may reasonably be satisfied” (Jones v Dunkel (1959) 101 CLR 298 (at 305)). 

78    When this is understood, it might be thought that it was distracting for the primary judge to approach the issue on the basis of making a finding as to whether Mr Katragadda was indifferent, rather than the addressing the question, which properly reflects the reality of the forensic contest, as to whether, in accordance with s 140(1) of the Evidence Act 1995 (Cth), Mr Katragadda adduced sufficient material to persuade the Court, on the balance of probabilities, of the fact that he had not been complicit.

79    Of course, in doing so it was necessary to establish that not only was he not complicit in the sense of being cognitively aware of the fraud, but also that he did not have a state of mind, short of actual knowledge, that the law would regard as being sufficient so as to be treated as if he did have actual knowledge, that is, it was necessary to prove that he was not recklessly indifferent.

80    Although it has been said that reckless indifference amounts to a state of mind “close to deliberate dishonesty” (Kaur v Minister for Immigration and Border Protection [2019] FCAFC 53; (2019) 269 FCR 464 (at 501 [137] per Murphy, Mortimer and O’Callaghan JJ)), it is important to bear in mind that reckless indifference is not to be equated with deliberate dishonesty, in that it does not amount to actual knowledge; rather, the law attaches to recklessness the same consequences as knowing conduct.

81    It is trite that any party alleging fraud (in the sense of deliberate falsehood or reckless indifference to the truth) must be specific and particular. Hence, a pleading of fraud must make plain that it is alleged a person who made a fraudulent representation knew it to be false or was careless as to its truth or falsity: Forrest v Australian Securities and Investments Commission [2012] HCA 39; (2012) 247 CLR 486 (at 502–3 [16] per French CJ, Gummow, Hayne and Kiefel JJ). But what is being dealt with in the present circumstances is different. The fraud of the agent was not in contest. Mr Katragadda had to persuade the tribunal of fact that his state of mind was such that he was not content (or, to use the primary judge’s phrase, “blithe”) with his agent, in making the visa application, saying anything in the visa application irrespective of whether the statement was true or false. This is the essence of the state of mind of reckless indifference to which the law attaches the same consequences as knowing, deceitful conduct.

82    In Gill v Minister for Immigration and Border Protection [2016] FCAFC 142; (2016) 248 FCR 398 (at 409 [48]), the Full Court (Kenny, Griffiths and Mortimer JJ) identified that it is one thing to conclude that a visa applicant gave general authority to a migration agent to do whatever is licit, as opposed to a visa applicant being indifferent to whether the migration agent uses lawful or unlawful means to obtain a visa. That is undoubtedly correct, but does not mean, of course, in resisting any claim for declaratory relief, the evidentiary or persuasive burden somehow shifts to require the respondent to contend that any positive finding of indifference is available on the evidence (although in some cases, resistance to the visa applicant’s case may, depending on the evidence and the forensic exigencies, involve suggesting that a positive finding is open to be made by the tribunal of fact). As explained above, it always remains for the moving party, the visa applicant, to adduce sufficient material to persuade the Court, on the balance of probabilities, of the fact that the visa applicant’s state of mind was not one which was complicit in the relevant sense.

83    In the present circumstances, the primary judge made a finding that Mr Katragadda was not a man whose evidence could be believed (see [126]); the forensic consequence of this and related findings led to a rejection of the specific evidence of Mr Katragadda as to the fact of his state of mind at the material time. Although the primary judge went further than necessary, no relevant error has been demonstrated in the reasoning which led to the conclusion (expressed at [128]) that Mr Katragadda had “not discharged the onus that he was the innocent victim of fraud”. It follows axiomatically that the appeal must be dismissed and the orders proposed by Mortimer and Charlesworth JJ must be made.

Associate:

Dated:    20 August 2020