FEDERAL COURT OF AUSTRALIA

Mohammed v Minister for Immigration and Border Protection [2018] FCA 767

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

2.    The appellant pay to the first respondent the costs of and in connection with the appeal fixed in the sum of $6,439.00.

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

REASONS FOR JUDGMENT

MIDDLETON J:

INTRODUCTION

1    This is an appeal from a judgment of the Federal Circuit Court given on 10 November 2017. The primary judge dismissed an application for judicial review of a decision of the second respondent (the ‘Tribunal’) made on 27 October 2014, to affirm a decision by a delegate of the first respondent (the ‘Minister’) to refuse to grant the appellant a Skilled (Provisional) (Class VC) visa (a ‘skilled visa’).

2    On 24 November 2017, the appellant filed a notice of appeal with the following grounds that the Federal Circuit Court:-

(1)    Erred in dismissing the case unfairly without any evidence.

(2)    Ignored the fact that the appellant had not “colluded” in the fraud of his migration agent (‘S & S Migration’).

(3)    Erred in finding that the appellant was “indifferent” to the fraudulent actions of his migration agent in a manner that amounted to a general authority to his agent.

(4)    Erred in considering that in its finding that the appellant “was indifferent” to his agent’s fraud, having regard to the nature of that indifference, was a sufficient basis to deny the appellant the relief he sought given that the Federal Circuit Court found that there was fraud by the migration agent and no evidence that the appellant was positively complicit in that fraud.

3    One of the main contentions of the appellant was that the primary judge should have found that his visa application was invalid, on the basis that the purported application was vitiated by fraud perpetrated by his migration agent.

4    The written submissions of the appellant filed in this Court included the following grounds:

1.    The Honour Judge ought to have seen that the standard of proof applied should be the criminal standard of beyond reasonable doubt is not applicable in the present case to the applicant. Neither the Honour Judge in his reasoning in the impugned judgment nor the respondent in his arguments dealt with the question squarely. Though the Honour Judge categorically recorded at Paragraph 25 that strictly speaking, it was not correct to conclude there was no evidence about the matters about which the applicant spoke as the applicant filed affidavit setting out certain issues. That said, I invited the applicant to tell me all he wanted to tell me about the visa application in this case and of the role of S&S had in the process.

2.    The Honour Judge should not have confined to evidence tested by cross- examination or oral evidence as it cannot have been easy for the appellant to face lengthy questioning from experienced counsel before the court of High level.

3.    The Honour Judge should have found that the respondent's decision was not in accordance with the law since the judge failed to point out the insufficient evidence provided to allege that the applicant was indifferent to his agent's fraud. The letter of Tribunal 28 April 2014 stating that information relating to the applicant was located in the S&S and the S&S had been found to have lodged applications to the then Department of Immigration and Citizenship that contained false or misleading Information. On the other hand evidence given by the applicant by filing document under the heading "Affidavit for Federal Circuit Court of Australia and the statement made by the applicant before the Honour Judge from the bar table are consistent and candid.

4.    The Honour Judge ought to have held that the appellant is not bound by the strict rules of evidence and is entitled to have regard to discharging the burden of proving the fraud on the balance of probabilities and the evidence on record duly affirming by both the parties that S&S migration has committed the fraud.

5.    The Honour judge grossly erred to infer from the appellant choosing the option not to enter the witness box in order to give evidence that no such evidence of fraud committed on the appellant exist.

6.    The Honour Judge erred in law by failing to consider that the Tribunal has not given a fair chance to the applicant to appear and give evidence on oath before its authority when alleging that the applicant was indifferent to his agent's fraud and wrongly held at Paragraph 15 that “the Tribunal was entitled to proceed to make a decision without taking any further action to obtain the applicants view on the information once the applicant failed to provide the information the Tribunal sought in its 28 April 2014 letter.

7.    The Honour Judge does not make any findings on the evidence and submissions made by the applicant that he was the victim of fraud and arrived to a wrong conclusion that the applicant failed to discharge the burden of proving the fraud having been given an opportunity.

8.    It is unclear on what basis and evidence the Honour judge finds that the Tribunal was correct in reaching the conclusion given that the Honour Judge found there was a fraud committed by the migration agent and no evidence that the appellant was positively complicit in that fraud.

9.    The Honour Judge provides in adequate reasons for arriving at the conclusion set out.

10.    It is submitted that the determination of the Federal Circuit Court is unsafe and unlawful and materially erred in law and that an order allowing this appeal by setting aside the orders of the Federal Circuit Court made on 10 November 2017 and remitting the matter either to the FCCA or Tribunal for rehearing according to law may be granted.

LEGAL FRAMEWORK

5    The visa application was made on 19 March 2011. Three criteria are relevant. The first required that at the time of application that the Minister be satisfied that an applicant had applied for a skills assessment for her or his nominated skilled occupation (cl 485.214 of Sch 2 to the Migration Regulations 1994 (the ‘Regulations’)). The second required that an applicant’s skills for the applicant’s nominated skilled occupation have been assessed by the relevant assessing authority as suitable for that occupation (cl 485.221). The third required an applicant to satisfy Public Interest Criterion 4020 (‘PIC 4020’) (cl 485.224). PIC 4020 relevantly required that there be no evidence before the Minister that the applicant has given, or caused to be given, to the Minister, a bogus document or information that is false or misleading in a material particular.

6    The Full Court has recently given detailed consideration in three cases to the circumstances in which fraud by a migration agent may have the effect of invalidating a visa application purportedly made under the Migration Act 1958 (Cth) (the ‘Act’). The cases are: Singh v Minister for Immigration and Border Protection (2016) 247 FCR 554 (‘Singh’), Gill v Minister for Immigration and Border Protection (2016) 248 FCR 398 (‘Gill’), and Maharjan v Minister for Immigration and Border Protection [2017] FCAFC 213 (‘Maharjan’).

7    The following propositions seem clear.

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

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

10    Whether a purported visa application is valid is a “jurisdictional fact” that the Court must determine for itself (where the issue arises) (Maharjan at [35], [44], [122]).

11    Finally, the applicant has the onus of proving that “she or he has been the (innocent) victim of such a fraud” (Maharjan at [78]). An applicant must satisfy the court to the requisite standard that she or he was neither complicit in the fraud nor ‘indifferent’ to it, in the limited and particular sense explained in Gill and Singh. As Chief Justice Allsop observed in SZRUR v Minister for Immigration and Border Protection [2013] FCAFC 146; 216 FCR 445 at [51], a heavy burden is upon the appellant to demonstrate fraud and its impact. This is not a criminal standard of proof, but the civil standard based on the seriousness of the allegations.

RELEVANT BACKGROUND

12    The visa application indicated that the appellant had applied to Trades Recognition Australia (‘TRA’) (the “relevant assessing authority”) for an assessment of his skills as a “graphic pre-press trades worker”, and that TRA had assessed his skills on 23 July 2009. The visa application included a reference number “TRA09/193222857”.

13    Following receipt of the visa application, the Department advised the appellant that it had identified a file with his details in the office of S & S Migration “who have been found to have lodged applications to the Department containing false or misleading information”. Further, the Department advised the appellant that TRA have no record of ever providing the appellant with a skills assessment. The Department invited the appellant to comment on this information, as relevant to whether he satisfied PIC 4020. The appellant did not respond.

14    On 29 March 2012, a delegate of the Minister refuse to grant the appellant a skilled visa, on the basis that the appellant failed to meet PIC 4020. On 13 April 2012, the appellant applied to the Tribunal for review of the delegate’s decision.

15    On 28 April 2014, the Tribunal invited the appellant to comment on or respond to certain adverse information (under s 359A of the Act), and to give certain information (under s 359 of the Act), relevant to whether the appellant satisfied PIC 4020. On 12 May 2014, the appellant (by his agent) commented on or responded to the adverse information. The appellant never gave the information requested, and the content of the 12 May 2014 letter was not responsive to the request for information.

16    With respect to the appellant’s interactions with S & S Migration, the appellant’s agent’s letter of 12 May 2014 indicated that “[t]he prospect of getting a work permit was enticing for [the appellant]”; the appellant was unfamiliar with immigration law; the appellant was “only informed that a working visa application had been lodged” and that he was on a bridging visa; and that he only came to know later that information included in his visa application regarding a skills assessment was incorrect. The appellant claimed that he had been “completely misguided”, “duped” and “cheated”.

17    On 27 October 2014, the Tribunal affirmed the delegate’s decision, on the basis that the appellant failed to meet the criterion in cl 485.221.

FEDERAL CIRCUIT COURT PROCEEDINGS

18    On 19 November 2014, the appellant applied to the Federal Circuit Court for judicial review of the decision of the Tribunal on certain grounds of jurisdictional error. Relevantly, one of those grounds was to the effect that he had been a “victim of immigration fraud by S & S Migration”.

19    Also on 19 November 2014, the appellant filed an affidavit, which attached a “statement”. The attached statement stated, inter alia:

[I]n March 2011 I approach the S&S Migration regarding visa options after coming across their advertisement of providing work permits. Unfortunately, I was conned by the said S&S Migration like many others who made an application on my behalf in subclass 485 without my knowledge to the content of Visa application and also without my specific consent.

20    On 25 August 2017, the Minister filed an affidavit, which annexed Departmental records regarding the appellant’s visa history in Australia, and his interactions with the Department regarding various visa applications over time.

21    On 31 August 2017, the primary judge heard the matter. At the hearing, at which the appellant was unrepresented, the primary judge cautioned the appellant about his evidence, and the implications of electing not to be cross-examined. In his reasons for judgment, the primary judge summarised what occurred as follows at [4]:

Before me, Mr Smyth of counsel for the Minister invited me to hear viva voce evidence from the applicant in relation to his allegations of fraud. Mr Smyth urged me to caution the applicant about his evidence, especially the desirability of the applicant entering the witness box and, if necessary, subjecting himself to cross-examination about whatever evidence he gave in respect of the alleged fraud. I duly cautioned the applicant in accordance with Mr Smyth’s request. The applicant elected not to enter the witness box. The Minister was therefore unable to test the applicant’s assertions of fraud.

22    The appellant, although declining to enter the witness box and be cross-examined, gave a “version of events” from the bar table. His Honour “distilled” the information thereby given by the appellant in his reasons for judgment at [31]. Elements of that version of events included that “S & S told the applicant it would obtain the necessary material from TRA”, and that subsequently S & S Migration “told the applicant that S & S had applied for certification from TRA and for the visa”.

23    The primary judge identified the relevant question as being (at [45]):

… whether the totality of the information given by the applicant from the bar table together with the evidence given by the applicant in his affidavit showed that the applicant had been the victim of S & S’s fraud.

24    The primary judge acknowledged (at [47]) that it was “common ground that S & S acted fraudulently”. The issue was whether the appellant had been “indifferent” as to whether or not S & S Migration acted lawfully, in the sense explained in Gill.

25    The primary judge observed as follows at [49]:

The applicant did not subject himself to cross-examination as he elected not to give evidence. As a result, the Minister was not given an opportunity to test the applicant’s assertions. They remained just that – assertions – except in so far as they were the subject of evidence in the form of the attachment to the applicant’s 19 November 2014 affidavit. That attachment disclosed little more than the applicant approaching S & S in March 2011 and that he was (to use his words) “conned”. In other words, the applicant’s evidence, as opposed to his assertions from the bar table, about the involvement of S & S was extremely limited.

26    The primary judge stated at [51]:

I attach no weight to the applicant’s comments from the bar table, whether about the role of S & S or other aspects of the visa application that would not otherwise be borne out by the documents in this case.

27    The primary judge also stated at [54]:

The applicant came to this court with unparticularised assertions that he was the victim of S & S’s fraud. He gave evidence of an extremely general and imprecise nature. The information he gave from the bar table was not helpful. He knew from the date of the letter given under s.359A of the Act that the Tribunal was particularly interested in such information as he could offer about the TRA assessment. At no stage did the applicant give that information to the Tribunal in response to its request. At no stage did he tell me anything about the TRA assessment.

28    The primary judge concluded as follows:

55.    To state the obvious, the TRA reference number appeared on the applicant’s visa application lodged by or on behalf of the applicant. The applicant sought to distance himself from it. Yet he gave no account of how the TRA reference could have appeared on his application beyond asserting S & S must have done it. Was he –

a)    indifferent as to how S & S, acting lawfully and properly, could have achieved his desired outcome (as was postulated in Gill at [49]); or

b)    indifferent as to whether or not the agent could achieve a visa by the agent acting unlawfully and dishonestly (also, as postulated in Gill at [49])?

56.    There was no evidence on either proposition. The applicant was alleging fraud. He had the burden of showing it. He failed to do so, despite having been given an opportunity to –

a)    respond to the s.359A letter dated 28 April 2014; and

b)    enter the witness box before me to say whatever he wished to say on point.

CONSIDERATION

29    The various complaints of the appellant cannot be sustained.

30    The primary judge’s approach to the issue of burden and standard of proof was correct. An applicant has the onus of discharging his or her burden of satisfying the court to the requisite standard, that he or she was neither complicit in the fraud nor ‘indifferent’ to the agent’s fraud, in the limited and particular sense explained in Gill and Singh.

31    In circumstances where there was no sworn evidence before the Court about the circumstances of the appellant’s interactions with S & S Migration, and the appellant elected (after being cautioned by the judge) not to enter the witness box and be exposed to cross-examination, it was appropriate for the primary judge to form the conclusion that he did. A court may appropriately give no weight to evidence where the witness has refused to submit himself to cross-examination. If the appellant had submitted himself to cross-examination, the Minister may have tested the veracity of the notion that the appellant was truly naïve as to migration law and practice. That, indeed, was the express purpose of the affidavit read by the Minister, which demonstrated that the appellant had in fact had significant experience with visa applications, and interactions with the Department. This might suggest that it was implausible that the appellant really had no understanding throughout the visa application and review process as to what S & S Migration were doing or did with his application and whether it was unlawful (see the primary judge’s reasons at [33]).

32    It is also to be recalled that, the primary judge accepted that there was some “extremely limited” evidence (unsworn and untested) in support of the appellant’s case (see [25], [45], [49]), but that this evidence was to be given little weight and did not discharge the appellant’s burden of proof. As the primary judge said at [54], the evidence of fraud was of an extremely general and imprecise nature.

33    I do not read the primary judge’s reasons as concluding that there was no evidence at all, despite the comment in [56]. His Honour’s reference that there was no evidence is simply a summary that there was no evidence by reference to the two propositions stated in [55]. However, as the primary judge recognised elsewhere in his reasons, there was simply no evidence of any weight. The only evidence was unsworn, unable to be tested, and was too general and imprecise, and thus not sufficient to discharge the appellant’s heavy burden of proof.

34    As to the other grounds raised by the appellant which do not relate to the issue of evidence and the fraud of the S & S Migration agent, I make the following observations.

35    The Federal Circuit Court did consider that the Tribunal gave the appellant a fair chance to appear and give evidence at [15]-[16]. The fact remains that as the appellant did not respond to whether he had in fact met the requirements of cl 485.221, the Tribunal was entitled to come to the decision it did without conducting a hearing. The Federal Circuit Court gave adequate reasons for arriving at its decision. It proceeded logically and by according procedural fairness to the appellant in reaching its ultimate decision. The Federal Circuit Court gave the appellant full opportunity to give evidence, and in the circumstances was under no obligation to tell the appellant that the evidence so far before the Court may have not been adequate to prove the fraud. The appellant, even though unrepresented, had ample opportunity to prove the fraud and its impact.

CONCLUSION

36    Each of the grounds of appeal raised by the appellant is without merit. The Court makes the following order:

(1)    The appeal is dismissed.

(2)    The appellant pay to the first respondent the costs of and in connection with the appeal fixed in the sum of $6,439.00.

Associate:

Dated:    28 May 2018