FEDERAL COURT OF AUSTRALIA

Zhang v Minister for Immigration and Border Protection [2016] FCA 921

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent’s costs, including the costs thrown away by the adjournment granted on 5 July 2016 arising from the late production of the amended notice of appeal, as agreed or assessed.

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

REASONS FOR JUDGMENT

GRIFFITHS J:

1    This appeal is from a judgment and orders of the Federal Circuit Court of Australia (FCCA) handed down on 10 February 2016 (see Zhang v Minister for Immigration and Border Protection [2016] FCCA 183).

2    The issue is whether the primary judge fell into appealable error in dismissing the appellant’s application under s 476 of the Migration Act 1958 (Cth) (Migration Act), which challenged a decision of the then Migration Review Tribunal (the Tribunal). The Tribunal dismissed the appellant’s application for review of a decision dated 12 August 2013 by the Minister’s delegate who refused to grant him a Skilled (Residence) (Class VB) subclass 885 visa (the visa). The basis of the refusal was that the appellant did not meet Public Interest Criterion 4020 (PIC 4020) and, therefore, did not satisfy cl 885.224 of Sch 2 to the Migration Regulations 1994 (Cth) (Migration Regulations).

Summary of background facts

3    The following summary of the background facts draws heavily on the primary judge’s reasons for judgment in relation to matters which are uncontroversial.

4    On 2 July 2012, the appellant, who is a Chinese citizen, applied for the visa. It was stated that he had undertaken an International English Language Testing System test (IELTS test) on 16 June 2012 and that his English language ability was “proficient”. An IELTS test report dated 27 June 2012 was provided to the Department of Immigration and Border Protection (the Department), which stated that the appellant had achieved scores of 8.5 for listening, 8.0 for reading, 8.0 for writing and 7.5 for speaking.

5    On 4 July 2013, the Minister’s delegate wrote to the appellant seeking his comments on information that the IELTS test report form was a bogus document. The Department had sought to verify the appellant’s test report form on the IELTS online verification system and found that the photograph on the IELTS online verification system of the person who sat the test did not match the photograph on the test report form ostensibly provided by the appellant. In an email response sent to the Department on 25 July 2013 the appellant claimed that:

(a)    in February 2012 he met a man named “Kevin” who claimed to be a senior migration agent and offered to assist him with his visa application;

(b)    Kevin advised him to sit an IELTS test and he did so in April 2012. He provided the results to Kevin. He also gave Kevin his work experience and study documents. In July 2012 Kevin gave him a letter from the Department acknowledging his visa application and that was the last occasion they had contact with each other; and

(c)    he was shocked to receive the delegate's letter stating that his IELTS results were bogus. He concluded that Kevin had forged his IELTS test results and submitted them to the Department. He had tried contacting Kevin but had been unable to reach him.

6    The delegate found that the appellant’s response did not refute the findings concerning the verification of the IELTS test report form. Accordingly, the delegate was not satisfied that the applicant met PIC 4020 with the consequence that he did not satisfy cl 885.224 of Sch 2 to the Migration Regulations. Accordingly, the visa was refused.

The proceeding in the Tribunal

7    The appellant sought a review of the delegate's decision in the Tribunal. He provided to the Tribunal a statement dated 3 December 2013 in which he claimed that Kevin had told him that he needed to obtain a test score of 6 for each individual component of the IELTS test. He claimed that he had sat an IELTS test in April 2012 and obtained the requisite scores as advised by Kevin. The appellant claimed that, after realising that Kevin had submitted a fake IELTS test report form to the Department, he consulted another migration agent and became aware that he required a score of 7.0 for each individual component of the IELTS test. At the Tribunal hearing on 3 December 2013 the appellant stated that he had not sat an IELTS test on 16 June 2012.

8    As noted above, the Tribunal rejected the appellant’s application and affirmed the delegate’s decision to refuse him the visa. It found that the appellant did not satisfy PIC 4020 for the purposes of cl 885.224 and that, accordingly, he was unable to meet the requirements for the visa.

9    Before summarising the Tribunal’s reasons, it is convenient to set out some relevant provisions in the Migration Regulations as in force at the relevant times. One of the visa criteria which the appellant had to satisfy at the relevant time was cl 885.224(a) which, relevantly, required him to satisfy PIC 4020. At the relevant times, PIC 4020 (which is located in Sch 4 to the Migration Regulations) relevantly provided (emphasis in original):

(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; …

…

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

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

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

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

justify the granting of the visa.

(5)    In this clause:

information that is false or misleading in a material particular means information that is:

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

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

Note: Regulation 1.03 defines bogus document as having the same meaning as in section 97 of the Act.

10    Section 97 of the Migration Act provided (emphasis in original):

bogus document, in relation to a person, means a document that the Minister reasonably suspects is a document that:

(a)    purports to have been, but was not, issued in respect of the person; or

(b)    is counterfeit or has been altered by a person who does not have authority to do so; or

(c)    was obtained because of a false or misleading statement, whether or not made knowingly.

11    In its statement of decision and reasons dated 23 January 2014, the Tribunal described the steps taken to verify the IELTS test, which confirmed that the photograph of the person who undertook the test on 16 June 2012 did not match the photograph in the IELTS test report form dated 27 June 2012 and that, when this information was put to the appellant, he responded that it was not him.

12    The Tribunal also summarised the written statement which the appellant had provided. In that statement, the appellant claimed that he had consulted a migration agent in relation to immigrating to Australia and was advised that he was unable to do so because his work experience was insufficient. He was referred by a friend to Kevin and he said that he paid Kevin $10,000 in cash to “deal with his case”. He said that he was required to pay a further $2,000 once he was granted permanent residence. He claimed that he was advised by Kevin to sit an IELTS test and needed to obtain a score of 6.0 in each component. The appellant stated that, in response to Kevin’s request, he provided him with his email address and password so that his visa application documents could be sent to the Department. He said that in July 2013 he learned through his education agent that his application for permanent residence had been refused because he did not satisfy PIC 4020. He said that he then realised that Kevin had used fake IELTS test results instead of his real results. He said that Kevin did not respond to an email he sent to him and that, after consulting another migration agent, he became aware that his work experience satisfied relevant requirements for the visa but that he needed a score of 7.0 in each component of the IELTS test.

13    The Tribunal noted the appellant’s claims that he was a “victim”, that he was not aware of what Kevin did and that he did not authorise him to act as he did. The Tribunal also noted the appellant’s evidence at the hearing that the last IELTS test he sat was on 14 April 2012 and that he did not undertake any test on 16 June 2012.

14    It is desirable to now set out [16]-[19] of the Tribunal’s statement of decision and reasons because of their relevance to the appellant’s case:

16.    In his visa application, the applicant stated that he did not receive any assistance in completing the application form. There are no details of his migration agent provided in the visa application. At the hearing, the applicant stated that his migration agent “Kevin” prepared his visa application on his instructions. He stated that he paid “Kevin” for his services. The applicant has not provided the Department or the Tribunal with any evidence that a migration agent acted on his behalf in relation to his visa application. However, giving the applicant the benefit of the doubt, the Tribunal is satisfied on the evidence before it that the migration agent referred to as “Kevin” acted on behalf of the applicant in relation to his visa application and provided documents to the Department on behalf of the applicant.

17.    The Tribunal considers the records of the IELTS Administration to be probative and persuasive. The Tribunal accepts that the photograph on the IELTS Online Verification System is the photograph of the person who undertook the IELTS test on 16 June 2012 and that it is not the same photograph as on the IELTS Test Report Form dated 27 June 2012 (12KR003328ZHAX001A) provided to the Department. The Tribunal also accepts the evidence of the applicant that he did not undertake the IELTS test on 16 June 2012.

18.    Accordingly, the Tribunal finds that the applicant did not undertake the IELTS test on 16 June 2012 and that it was undertaken by an imposter. The Tribunal also finds that the IELTS Test Report Form dated 27 June 2012 (12KR003328ZHAX001A) was altered by substituting the photograph of the applicant for the photograph of the person who undertook the test prior to it being provided to the Department.

19.    The applicant gave evidence that he was unaware that a fraudulent IELTS Test Report Form had been provided to the Department in relation to his visa application. The requirements in PIC 4020 apply whether or not the document is provided by or on behalf of the applicant knowingly or unwittingly. The Court in Vyas v MIAC [2012] FMCA 92 held that the words ‘given, or caused to be given’ in PIC 4020(1) should not be construed as importing a mental element.

15    The Tribunal concluded in [20] that, in view of the matters above, the appellant had given, or caused to be given, a bogus document because the IELTS test form dated 27 June 2012 purported to have been, but was not, issued in respect of the appellant. Accordingly, the Tribunal found this form to be a “bogus document” within the definition in s 97 of the Migration Act.

16    In [22] the Tribunal stated that it was not satisfied that there was no evidence that the appellant had given, or caused to be given, a bogus document, with a consequence that the appellant did not meet the requirements of PIC 4020(1).

17    The Tribunal then addressed whether the requirements of PIC 4020 should be waived, but concluded that the circumstances relied upon by the appellant did not meet the requirements for waiver.

Proceedings in the FCCA

18    The appellant’s judicial review application below raised the following two grounds (without alteration):

1.    The Second Respondent erred in jurisdictional error by concluding that the “Bogus Document” had been given, or caused to be given, to the Minister (or) an officer.

Particulars

(i)    Public Interest Criterion 4020 (“PIC 4020”) requires the applicant has given or caused to be given, to the Minister or an officer a bogus document or information that is false or misleading in the material particular.

(ii)    The Bogus Document was lodged online and had not been given or caused to be given to an officer as per PIC 4020.

(iii)    There was no evidence before the Second Respondent that the relevant online system had been authorised in writing as required by the definition of authorised system in section 5 of the Migration Act 1958 (Cth).

(iv)    There was no evidence before the Second Respondent that the Bogus Document had been given or caused to an officer accordingly the Applicant did not fail to satisfy PIC 4020.

2.    The Second Respondent erred in jurisdictional error by refusing the Applicant’s request (“Request”) during the hearing to provide a substitute for the Bogus Document.

(i)    The Second Respondent concluded that the migration agent referred to as “Kevin” acted on behalf of the Applicant and provided documents to the Department on behalf of the Applicant, at [16].

(ii)    Having concluded as per Particular 2(i), the Second Respondent should have acceded to the Request.

Definitions

“Bogus Document” means IELTS test Report Form dated 27 June 2012 (12KR003328ZHAX001A) as set out the Decision Record of the Second Respondent.

19    The primary judge rejected both grounds of judicial review. As to the first, the primary judge noted that the Tribunal had found that Kevin had acted for the appellant in his dealings with the Department. His Honour stated that this Tribunal finding was open to it on the evidence and was not reviewable in the FCCA. The primary judge affirmed the correctness of the Tribunal’s interpretation of PIC 4020, namely that a visa applicant is responsible for bogus documents submitted on his or her behalf even if he or she was unaware that they were bogus, citing Trivedi v Minister for Immigration and Border Protection [2014] FCAFC 42; 220 FCR 169 (Trivedi) and Patel v Minister for Immigration and Border Protection [2015] FCAFC 22; 145 ALD 566 (Patel).

20    The primary judge then noted at [15] of his reasons for judgment that the substance of the appellant’s contention was that Kevin had acted fraudulently and that the Tribunal’s decision had been induced or affected by that fraud. The primary judge noted that, “although ‘fraud unravels everything’” (citing SZFDE v Minister for Immigration and Citizenship [2007] HCA 35; 232 CLR 189 (SZFDE)), the appellant had not explained why such concepts had any relevance to PIC 4020, which the primary judge described as being:

… concerned with an applicant being responsible for the veracity of the information and documents supplied to support a visa application and whose operation does not require knowing complicity by the visa applicant in the provision of material which is purposely untrue.

The primary judge cited Trivedi at [43] and [49] in support of that reasoning.

21    In observations which are obiter dicta, the primary judge added in [16] of his reasons for judgment that, in any event, to succeed in his case, the appellant had to prove that Kevin had acted fraudulently. The primary judge noted that the only material before the FCCA concerning whether Kevin was acting for the appellant in his dealings with the Department and did so otherwise than in accordance with his authority and without the appellant’s knowledge, was “no more than the applicant’s assertions”. The primary judge noted that the appellant did not give evidence in the FCCA and these assertions were not tested in cross-examination. The primary judge added that the appellant also did not seek to identify why Kevin might have acted fraudulently. In the light of the seriousness of the allegations of misconduct made by the appellant against Kevin and taking into account s 140 of the Evidence Act 1995 (Cth), the primary judge concluded that he was not persuaded that Kevin had represented the appellant without his authority or knowledge including, in particular, in providing the Department with an IELTS test report which was bogus within the meaning of s 97 of the Migration Act.

22    For those reasons, the primary judge found that the appellant had not established his claim that the Tribunal’s decision was affected by jurisdictional error because the Tribunal concluded that he had caused a bogus document to be provided notwithstanding that, on the appellant’s case, Kevin had acted without his authority or knowledge in providing that document.

23    The second ground of judicial review below raised, in substance, a claim of procedural unfairness arising from the appellant’s complaint that the Tribunal did not grant him further hearing time as allegedly requested by him. This ground was dismissed on the basis that the appellant had not requested further hearing time as alleged. This finding by the primary judge is not appealed and nothing more needs to be said about it.

The appeal to this Court

24    The appeal was originally listed for hearing on 18 May 2016. It was adjourned by consent to accommodate the fact that the appellant returned to China shortly before the hearing to attend to his ailing parents. The hearing was then further adjourned by consent on 5 July 2016 in circumstances where the Minister was provided with a proposed amended notice of appeal only shortly before the deferred hearing that was to take place the following day. By consent the appellant was given leave to file the proposed amended notice of appeal.

25    The grounds of appeal raised in the amended notice of appeal are as follows (without alteration):

Grounds of appeal

1.    The Federal Circuit Court erred in failing to distinguish the facts of this case from the authorities of Trivedi v Minister for Immigration & Border Protection (2014) 220 FCR 169 and Patel v Minister for Immigration & Border Protection (2015) 145 ALD 566, as the Appellant in this case was a victim of fraud and the Migration Review Tribunal (Tribunal) ought to have found that he was therefore not responsible for the bogus document.

Particulars

a.    It was not argued in Trivedi and Patel that fraud had been perpetrated upon the Appellant and through him the Department of Immigration and Border Protection ("Department").

b.    In the present case, and in contrast to Trivedi and Patel, the Tribunal appeared to accept that the Appellant was unaware that his so-called migration agent submitted a fraudulent IELTS Test Report Form to the Department and that he did not authorise him to do so.

2.    The Federal Circuit Court ought to have found that the Tribunal had erred in failing to find that the Appellant's agent had acted outside the scope of his agency in submitting a fraudulent form to the Department without his knowledge or consent, and therefore no agency relationship existed between him and the agent.

3.    Further or in the alternative to Ground 1, the Federal Circuit Court erred in failing to find that the authorities of Trivedi and Patel do not apply in circumstances where a fraud had been perpetrated on the Appellant and through him the Department, and it therefore erred in the construction of PIC 4020*.

*Please note, by Ground 3, the Appellant may in effect be inviting this Court to depart from the Full Court authorities of Trivedi and Patel

Appellant’s submissions summarised

26    The appellant submitted that the primary judge’s application of the decisions in Trivedi and Patel was erroneous because those cases are distinguishable on the following grounds:

(a)    there was no purported migration agent in Trivedi and the person who perpetrated the fraud introduced himself as an IELTS agent;

(b)    the appellant argued in Trivedi that, for PIC 4020 to apply, she had to be knowingly involved in the giving of false information, whereas the Minister argued that no element of knowledge on the part of the visa applicant was necessary;

(c)    it was not argued in Trivedi that the visa applicant had herself been a victim of fraud by the IELTS agent and there was no claim that a fraud had been perpetrated on her, rather, that she had no involvement in perpetrating any fraud;

(d)    in contrast, the appellant here claims to be a victim and assumed that Kevin would forward the IELTS results which Kevin gave to him. The appellant did not authorise Kevin to arrange for an imposter to sit the exams and to provide the imposter’s results and falsely attribute them to him;

(e)    in Trivedi there was an inference of reckless blindness on the part of the visa applicant as to how the IELTS agent would “fix it up” for her;

(f)    in contrast, here Kevin completely deceived the appellant and the appellant had no hint of any fraud on Kevin’s part;

(g)    accordingly there was a different factual context in this case and, unlike Trivedi, here there was a fraud perpetrated on the visa applicant;

(h)    Patel is also distinguishable because there the visa applicant did not fully address the central question of the reliability of the IELTS report and was unable to provide any explanation concerning the disconformity between the test forms provided by her and the report on the on-line verification system;

(i)    in Patel, the appellant argued that the test results were not deliberately falsified and may have been the product of an honest mistake, but the Full Court found that it was open to the Tribunal to conclude that the written document provided by the appellant had been deliberately changed; and

(j)    in both Trivedi and Patel there was no contention, as there is here, that there was a fraud perpetrated on the visa applicant by a third party.

27    The primary judge’s finding that he was not persuaded that Kevin had acted without the appellant’s authority involved error because that issue was not in dispute before the Tribunal, citing Prodduturi v Minister for Immigration and Border Protection [2015] FCAFC 5; 144 ALD 243 (Prodduturi) at [21]-[23]. The appellant contended that the primary judge made a finding which was contrary to the uncontested position without affording the appellant procedural fairness.

28    As to ground 2, while accepting that at common law a principal is responsible to third parties for the acts of an agent acting within the scope of their actual or ostensible authority even if the acts are fraudulent, there is an exception whereby the principal is not imputed with the knowledge of facts known to the agent where the agent has committed a fraud upon the principal.

29    The appellant contended that Trivedi was distinguishable because there is no evidence and no finding by the Tribunal that the appellant here had any knowledge or gave any authority to Kevin to arrange for the fraudulent acts to occur. Kevin acted well beyond the scope of his actual or ostensible authority and in circumstances where there was no indifference or recklessness on the part of the appellant.

30    As to ground 3, and potentially in the alternative to the previous grounds, the appellant submitted that Trivedi should be limited in its application and does not apply in a case where a fraud has been perpetrated on the visa applicant and vicariously on the Department because the policy reasoning underpinning the result in Trivedi as explained by Buchanan J at [49] does not apply.

The Minister’s submissions summarised

31    The Minister submitted that the grounds of appeal differed from the judicial review grounds which were pressed below and that the appellant required leave to raise the fresh grounds. The Minister submitted that leave should be refused for grounds 2 and 3 as they rely on factual questions that were not agitated in the FCCA (citing Water Board v Moustakas [1988] HCA 12; 180 CLR 491 (Moustakas)), namely the claim that a fraud was committed on the appellant and the Department.

32    The Minister contended that the appellant’s contention concerning ground 1 that Trivedi and Patel are distinguishable is based upon a wrong premise, namely that the Tribunal appeared to accept that the appellant was unaware that Kevin had submitted a fraudulent document in circumstances where the Tribunal made no such finding.

33    The Minister submitted that, in any event, this contention had been made and rejected in Trivedi at [12] and [43] and thus did not provide a basis for distinguishing that case.

34    As to ground 2, the Minister submitted that, if it were permitted to be raised Prodduturi did not assist the appellant. In that case, there was an uncontested starting point that there was no dispute before the FCCA that the migration agent had made a false statement, whereas the decision is different here because it was not agreed in the FCCA that Kevin was the fraudster and no finding was made by the Tribunal to that effect. Accordingly, it was open to the primary judge to conclude that he was not satisfied on the evidence that Kevin had perpetrated the fraud. This is not surprising in circumstances where the appellant did not raise the issue of Kevin’s fraud in his pleadings and the appellant did not give evidence.

35    As to ground 3, the Minister contended that, if the appellant was permitted to rely on this ground, there was no finding by the Tribunal that a fraud was perpetrated on the appellant and, through him, on the Department. The delegate was aware of the fraud and identified the appellant as the responsible person. The Minister submitted that there is no proper basis for the Court to be satisfied that either Trivedi or Patel was plainly wrong.

Disposition of the appeal

Summary of some relevant legal principles

36    The starting point for any discussion of the topic of fraud in a case such as the present is the High Court’s decision in SZFDE. In SZFDE, a person (who was described as a “rogue” and falsely claimed to be entitled to practice as a solicitor and migration agent), advised a family not to attend a hearing by the Refugee Review Tribunal concerning their review application. The High Court held that the rogue’s dealings with the family were fraudulent and had the effect of stultifying the operation of the legislative scheme established by provisions such as s 425 of the Migration Act (which related to hearings by the Tribunal).

37    As the Full Court stated in SZSXT v Minister for Immigration and Border Protection [2014] FCAFC 40; 222 FCR 73 (SZSXT) at [51], SZFDE establishes the following principles (omitting case references):

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

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

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

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

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

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

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

38    It is also to be noted that the operation of PIC 4020 did not arise in SZFDE.

39    There have been numerous subsequent cases involving claims of fraud on the part of an agent. A sample of those cases, as discussed below, illustrates the diversity of factual circumstances in which the issue of fraud can arise in a migration law context. When that issue does arise, it can arise in the context of different migration legislative provisions, including but by no means limited to PIC 4020 and careful consideration needs to be given to the interaction between the terms of the relevant provision and any findings of fraudulent conduct and complicity.

40    In Trivedi, the issue was whether the appellant failed to satisfy PIC 4020 in circumstances where she unintentionally or unknowingly gave false information. The leading judgment was given by Buchanan J (with whom Allsop CJ and Rangiah J agreed).

41    In support of her application for a skilled-sponsored (subclass 886) visa, the appellant in Trivedi told the Department that both she and her husband had each recently taken an IELTS test. She provided reference numbers in respect of her test as well as a copy of what purported to be the test report form. She later told the Tribunal that she had sat the test while on a visit to India. The Department checked the test results by an online verification service and learned that the appellant had not achieved the scores she alleged and that the scores she had achieved did not meet the relevant requirements for the visa.

42    The Tribunal found in Trivedi that, when the appellant sat the test in India, she was worried that she had not previously been able to achieve the requisite scores and a supervisor at the test centre in India spoke to her and told her that he would “fix it up for her”. It further found that the appellant thought that the supervisor was an official IELTS agent, his assurance caused her to relax and she proceeded to sit the test. After finishing the test, she gave the supervisor a copy of her previous IELTS report.

43    Justice Buchanan noted at [13] that there was no contest before the Tribunal that the second IELTS test result was deceptive and that the appellant’s case proceeded on the basis that she sought to excuse her involvement “as an innocent and unknowing one”. His Honour made reference to the Tribunal’s findings that the PIC 4020 requirements apply whether or not a document is provided by a visa applicant knowingly or unwittingly and also to the fact that the visa applicant did not claim that she had in fact achieved the scores in the second IELTS test.

44    Justice Buchanan held at [43] that, for PIC 4020 to apply, it was not necessary to show complicity by a visa applicant. His Honour made the following observations at [43]:

In my view, it is not necessary (for reasons yet to be further developed) to show knowing complicity by a visa applicant. That would impose an impossible task on those administering the visa system. But it is necessary that the information or document have the necessary quality of purposeful falsity, whether or not the visa applicant can be shown to have knowledge of that fact.

45    Justice Buchanan concluded at [49] that PIC 4020 is directed to information or documents which are “purposely untrue” but that the purpose was to render visa applicants ultimately responsible for the veracity of the information and documents supplied to support their application. His Honour said that it would be an “intolerable burden” on the Department to inquire not only whether information or documents are false but also whether the visa applicant knew this to be the case. His Honour observed at [50]:

There was no doubt in the present case (and in Vyas) that the IELTS test result form provided by the first appellant contained false information. It was clearly open to the MRT, on the other facts found by it, to conclude that it was bogus. It was a counterfeit. It was not the real thing. The fact that a formal declaration to that effect was not made in the present case does not alter the character of the document, or the information it contained. It was also open to the MRT to find, as it did, that the information thereby given by the first appellant was false or misleading in a material particular. It was not necessary to prove that the first appellant knew the contents of the document were false or misleading when she proffered it.

46    In Patel, the visa applicant was also required to meet PIC 4020. She provided an IELTS report with her visa application, but the online verification system revealed that she had received different results. The Tribunal concluded that the test report form provided by the visa application was a bogus document. The visa applicant contended that she was not responsible for any alteration to or forgery of the document. The visa applicant was unable to explain the differences between the two documents other than to assert that she was not responsible for disconformity between them. The Tribunal concluded that there was evidence that the visa applicant had given, or caused to be given, to a Departmental officer a bogus document with the consequence that she did not meet PIC 4020.

47    Justice Buchanan (with whom Justice Edmonds agreed) held that there was no obligation on the Tribunal to pursue further relevant inquiries. Both his Honour and Flick J (with whom Edmonds J also agreed) referred to Trivedi and the principle established therein, i.e. that for the purposes of PIC 4020, it is not necessary to establish that a visa applicant knew that a document provided in support of his or her visa application was bogus.

48    The Full Court’s decision in Prodduturi was cited by the appellant here. Prodduturi was an appeal from the FCCA, which had dismissed the visa applicant’s judicial review application. The Tribunal had affirmed the delegate’s decision to refuse the appellant a Skilled (Provisional) Class VC subclause 485 visa (subclass 485 visa) on the basis that the visa applicant did not satisfy PIC 4020.

49    In the subclass 485 visa application Mr Prodduturi’s trade was identified as that of a “cook”. It was further stated that he had been assessed in that trade by Trades Recognition Australia (TRA). Both the delegate and the Tribunal found this information to be untrue because Mr Prodduturi had never been certified as a cook by TRA or any other assessing authority. Accordingly, he could not satisfy cl 485.221(1), which required that a visa applicant had to be assessed by a relevant assessing authority as suitable for his nominated skilled application. Mr Prodduturi did not contest that he was never qualified for a subclass 485 visa. He explained that he sought judicial review of the Tribunal’s decision because of its implications for the operation of PIC 4020 in Sch 4 of the Migration Regulations. Relevantly, if the Minister was satisfied that the applicant had been refused a visa because false or misleading information had been given, the person was prevented by PIC 4020(2), subject to Ministerial dispensation, from obtaining a visa to which PIC 4020 applied for a period of three years from the date of refusal of the person’s earlier visa application.

50    As Perram and Perry JJ observed in Prodduturi at [8], Mr Prodduturi’s motive in challenging the Tribunal’s decision in the FCCA and then in bringing his appeal was not because he believed that he was entitled to a subclass 485 visa, but rather was because he wished to be relieved of the consequence for him of the operation of PIC 4020 (namely that without dispensation, any fresh application by him for a visa within a period of three years from the date of the delegate’s decision would be refused).

51    In the FCCA, Mr Prodduturi argued that he should not be held responsible for the misstatements in his subclass 485 visa application because it was his migration agent who had made up the false TRA reference and he claimed that had told his agent not to apply for a visa if he was not entitled to it. He said that his migration agent had acted fraudulently.

52    The Tribunal found that Mr Prodduturi did not know of the false statement in the visa application concerning the TRA assessment, but this was because Mr Prodduturi was indifferent to the contents of the application. In those circumstances, the Tribunal found that he was responsible for the agent’s misleading statement even if he lacked actual knowledge of it.

53    The issue of whether the migration agent had acted fraudulently was reconsidered by the FCCA in the light of the evidence placed before it. It concluded that Mr Prodduturi had not proved that his agent had acted fraudulently. Moreover, it found that Mr Prodduturi was responsible for the misleading statement because he was aware that the agent was lodging his visa application even if he did not know precisely what was in it. In other words, the FCCA found that Mr Prodduturi was complicit in the false statement made by his agent.

54    On appeal, the Full Court held that the FCCA erred in concluding both that Mr Prodduturi had not proved that his agent had acted fraudulently and that he bore the onus of proof on that matter. The Full Court noted that there was no dispute that the agent had acted fraudulently, hence no issue of onus of proof arose. The Full Court found that this finding tainted the FCCA’s conclusion that Mr Prodduturi was complicit in his agent’s fraud.

55    Notwithstanding these errors, the Full Court dismissed the appeal on the ground of lack of utility. The Full Court emphasised that, in his amended notice of appeal in that Court, Mr Prodduturi sought for the first time to have set aside not only the Tribunal’s decision, but also the delegate’s decision. This was because, unless the delegate’s decision was also set aside, PIC 4020 would operate to prevent Mr Prodduturi from obtaining a visa to which PIC 4020 applied for three years from the date of the delegate’s decision (which was made on 27 April 2012).

56    Another relevant Full Court decision is Singh v Minister for Immigration and Border Protection [2015] FCAFC 151 (Singh). The appellant there was seeking to avoid the operation of s 48(1) on the basis that no valid visa application had been made by him. While accepting that an application for a skilled visa had been made in his name, the appellant contended that the application was made fraudulently by his migration agent. The FCCA rejected that argument on the basis that it found that the migration agent had applied for a skilled visa by mistake and was not an act of fraud.

57    In the FCCA, the Minister sought to demonstrate that, even if the migration agent had lodged the application fraudulently, the visa applicant had participated in the process and that it was not open to find that a fraud had been perpetrated on him. In response to that contention, the FCCA found that the visa applicant was not complicit in the actions of his migration agent.

58    On appeal, the visa applicant sought to overturn the FCCA’s factual finding that the migration agent had not acted fraudulently and only by mistake. The basis for this contention was that:

(a)    the migration agent received substantial amounts by way of commission;

(b)    the Department was investigating the migration agent for having facilitated other fraudulent applications;

(c)    associates of the migration agent had fled Australia after search warrants had been executed; and

(d)    the agent had in fact submitted false information to the Department.

59    The Full Court found that the proceedings were not vitiated by fraud and that the visa applicant was bound by the acts of his migration agent. In not interfering with the FCCA’s conclusion that the migration agent did not act fraudulently, the Full Court emphasised at [48] the absence of any motive for the agent to do so and that the visa applicant’s case did not make sense. Moreover, if there was no fraud on the agent’s part, the Full Court stated that s 98 of the Migration Act applied, which deemed a non-citizen to fill in his or her application form or passenger card if he or she causes it to be filled in or it is otherwise filled in on his or her behalf. Accordingly, the absence of fraud was critical to the Full Court’s decision.

The grounds of appeal

60    As noted above, the Minister opposed the appellant being permitted to rely on grounds 2 and 3. The Minister’s position on this matter should be upheld. That is because, as the Minister pointed out, these grounds raise a case which the Minister was not required to meet below and the Minister did not have an opportunity to adduce relevant evidence at that stage (see Moustakas at 498 per Mason CJ, Wilson, Brennan and Dawson JJ; Suttor v Gundowda Pty Ltd [1950] HCA 35; 81 CLR 418 at 438 and University of Wollongong v Metwally [1985] HCA 28; 60 ALR 68 at 71).

61    The two grounds which were raised in the judicial review application in the FCCA are set out in [18] above. Neither of those grounds allege that Kevin had committed a fraud on both the appellant and the Department. The first ground focuses on whether the Tribunal erred in its construction and application of PIC 4020 in concluding that a bogus document had been given, or caused to be given, to the Minister (or) an officer. The second ground of judicial review relates to the applicant’s complaint that he had not been permitted to provide a substitute document for the bogus document.

62    As noted above, in his statutory declaration dated 3 December 2013 in the Tribunal, the appellant stated that he was a victim in the matter and did not know what Kevin had done behind the scene until he was told by the Department. He said that he would not have allowed Kevin to use any fake documents in support of his application if he had known of Kevin’s intention. The appellant had made similar (but not entirely consistent) statements in his email dated 25 July 2013 in which he responded to the Department’s letter dated 4 July 2013 which invited his comments on the Department’s view that the test result provided on 25 June 2013 was a bogus document. These matters were summarised by the Tribunal in [10], [14] and [19] of its statement of decision and reasons. The Tribunal found it unnecessary to make any findings in relation to the appellant’s claims in this regard because it found that the requirements of PIC 4020 apply whether or not a document is provided by or on behalf of an applicant knowingly or willingly.

63    Neither of the judicial review grounds in the FCCA challenged this aspect of the Tribunal’s decision. Moreover, the appellant’s affidavit which was filed in support of his judicial review application was silent on the question of his knowledge of or complicity in Kevin’s conduct (noting that the Tribunal found that, giving the appellant the benefit of the doubt, it was satisfied on the evidence before it that Kevin acted on his behalf and provided documents to the Department on his behalf). Perhaps unsurprisingly, the appellant was not cross-examined on his affidavit in the FCCA (which did little more than attach a copy of the Tribunal’s statement of decision and reasons) and the Minister adduced no evidence on the issue of the appellant’s knowledge or involvement in Kevin’s conduct, presumably because of the fact that this issue was not raised in either of the two judicial review grounds.

64    Ground 1 of the judicial review application below was dismissed by the primary judge on the basis that, in the light of [43] and [49] of Trivedi, the Tribunal correctly understood that PIC 4020 did not require knowing complicity by a visa applicant in the provision of material which is purposely untrue.

65    The FCCA then proceeded to add in [16] of the reasons for judgment, in observations which are plainly obiter dicta, that the appellant would need to prove that Kevin had acted fraudulently and without his authority and knowledge and that these matters would have to be proved in the FCCA proceeding. The only evidence on these matters was that which was contained in the appellant’s email dated 25 July 2013 and his statement dated 3 December 2013. The FCCA emphasised that the appellant did not personally give evidence in the FCCA proceeding and his claims were not tested in cross-examination. In the light of these and other matters, the FCCA concluded at [16] that it was not persuaded that Kevin had acted without the appellant’s authority and knowledge.

66    It might be added that, in any event, even if the appellant was permitted to raise grounds 2 and 3 neither of those grounds would succeed on the present evidence. As the Minister pointed out, there was no finding by the Tribunal that Kevin was the fraudster and, having regard to the evidence before the primary judge, it was reasonably open to his Honour to conclude that he was not satisfied that Kevin had perpetrated the fraud. No finding was made by the Tribunal or the primary judge that the appellant was the victim of fraud or that, through him, so had the Department. Indeed, as noted above, it was the Department itself who raised with the appellant for comment its view that the test result was a bogus document, thus it could scarcely be claimed that it was a victim of fraud.

67    As to ground 1 of the appeal, I accept the Minister’s submission that the appellant’s attempt to distinguish Trivedi and Patel is predicated on a false premise, namely that the Tribunal accepted that the appellant was unaware that Kevin had submitted a fraudulent document. No such finding was made by the Tribunal. Nor do I accept the appellant’s submission that an inference should be drawn that the primary judge accepted the appellant’s claim on this matter.

68    Moreover, and in any event, as the Minister also pointed out, Trivedi is not distinguishable on the suggested basis because the visa applicant’s knowledge of the fraudulent conduct on the part of an agent is not material to the operation of PIC 4020, as was held by the Full Court in both Trivedi and Patel (see also Huang v Minister for Immigration and Border Protection [2015] FCA 792 at [34] per Farrell J). It should also be noted that in Trivedi, as here, the visa applicant claimed to be shocked and surprised when told about the bogus document. I reject the appellant’s contention that either Trivedi or Patel are distinguishable.

69    Finally, and for completeness, it should be noted that neither below nor in the appeal was any issue raised by the appellant concerning s 48 of the Migration Act. In particular, unlike cases such as Prodduturi and Singh, there was no claim that the visa application itself was a nullity because of fraud. On the contrary, the relief sought in this Court was to have the orders of the FCCA set aside and a direction made that his visa application be determined according to law (either by the Tribunal or the Minister). Necessarily, therefore, the appellant relied on his visa application being a valid application.

Conclusion

70    For these reasons, the appeal should be dismissed and the appellant ordered to pay the Minister’s costs, as agreed or assessed. The Minister is also entitled to the costs thrown away in relation to the amended notice of appeal.

Associate:

Dated:    9 August 2016