FEDERAL COURT OF AUSTRALIA

Singh v Minister for Immigration and Border Protection [2019] FCA 781

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be allowed.

2.    The matter be remitted to the Federal Circuit Court for determination according to law.

3.    The first respondent pay the appellant’s costs of the appeal, such costs to be taxed in default of agreement.

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

REASONS FOR JUDGMENT

DAVIES J:

Introduction

1    The appellant has appealed the decision of the Federal Circuit Court of Australia (“FCC”) dismissing the appellant’s application for judicial review of a decision of the Administrative Appeals Tribunal (“Tribunal”). The Tribunal had affirmed the decision of a delegate of the first respondent (“Minister”) not to grant the appellant a Skilled (Provisional) (Class VC) visa.

2    Before the Tribunal, the appellant claimed that he was the victim of fraud by his migration agent. The Tribunal found that, notwithstanding the allegation of fraud, the appellant had made a valid application for a visa for which he was ineligible. That decision was reviewed by the FCC which dismissed the application for judicial review without considering the appellant’s claim that he was the victim of fraudulent conduct by his migration agent. The FCC concluded that it lacked jurisdiction to review the Tribunal’s decision because, even if it was satisfied that the appellant was an innocent victim of fraud by his migration agent, the appellant did not, and could not, satisfy the criteria for the visa and therefore the Tribunal was correct in affirming the delegate’s decision not to grant the visa. The appellant appealed that decision to this Court which, by consent, allowed the appeal on the basis of Singh v Minister for Immigration and Border Protection (2016) 247 FCR 554; [2016] FCAFC 141 at [50] (Kenny, Griffiths and Mortimer JJ), namely that there was appealable error in the decision of the FCC that it did not have the jurisdiction to assess the validity of the appellant’s visa application. The matter was remitted to the FCC for determination according to law.

3    Before the FCC the appellant sought a declaration that the visa application was not valid. For the purposes of the further hearing, both parties filed additional evidence by way of affidavit and the appellant gave evidence and was cross-examined. The FCC found that the migration agent had acted fraudulently with respect to the visa application lodged on behalf of the appellant but did not accept the appellant’s evidence as to the circumstances of his dealings with the agent and dismissed the application. The FCC reasoned as follows:

20.    Mr Singh presented as a forthright witness in the witness box who had a reasonable grasp of English, sometimes answering in English, and sometimes needing the assistance of the interpreter. His demeanour and use of the interpreter demonstrated a desire to fully engage with the Court and best facilitate the exchange of information required. There was no sense that the use of the interpreter was in some way a ruse, protective device, or obstruction to the proper hearing of the case.

21.    The tenor of the evidence given by the applicant was often not as responsive as one may hope, with the applicant regularly wishing to reiterate to the Court that he did not authorise the agent to undertake a fraud on his behalf. He was certainly aware that this was the central question in the case.

22.    I turn then to consider the evidence given, both at the hearing of this matter and on previous occasions. A number of points of critique were raised by the counsel for the Minister that must be considered:

a)     The applicant’s evidence with respect to the timing of his first visit to engage S & S Migration differed over time. Importantly, there was a variation between what the applicant said in his affidavit and other evidence;

b)     The method by which the applicant was introduced to S & S Migration was at one point said to be the recommendation of a friend and at another point the result of receiving promotional material;

c)     The applicant was inconsistent as to the number of times that he visited S & S Migration, on some occasions stating twice, on another occasion stating three times, and ultimately being unsure whether it was twice or three times. However, the significant events that occurred at S & S Migration, were always said to have occurred in the first two visits;

d)     The applicant was inconsistent as to how he gave a copy of his passport to S & S Migration. The applicant had not previously mentioned that he had a copy of it on his phone and may have provided it in that method, which is what he stated on the last day he gave evidence. The applicant was inconsistent as to whether he gave his passport on the first or second occasion;

e)     The applicant’s evidence as to the amount that he had paid varied between $3,000 and $5,000. The applicant remained unsure as to the exact amount that he had paid the agent. He was clear that on his understanding the agent would retain only around $500 of the amount paid, with the balance being required to pay government and/or education provider’s fees;

f)     The applicant appeared inconsistent as to the extent of contact that he had with S & S: by way of telephone calls and emails, rather than simply attendances in person;

g)     There were some inconsistencies in how the applicant came to know of the decision to reject his visa, and the steps that he took; and

h)     There are some inconsistencies with respect to the steps that the applicant took when he found out that there was a problem with his visa, such as whether he rushed to the offices of S & S Migration to find them closed, or immediately found an alternative agent when he heard that they had closed and left the country.

23.    Counsel for the Minister also relies upon four matters that are said to be implausible in the evidence of the applicant:

a)     That the agent would take the steps required to obtain a visa (so as to be in a position to show the applicant electronic information on his computer screen confirming that the visa had been sought or obtained) prior to receiving payment from the applicant. The applicant was firm that his payment was made on the second occasion, when a computer screen was shown to him to prove that the application for the visa had been lodged;

b)     That it was implausible for the applicant to believe that a genuine visa application could be made without more documents than simply a passport (varying from the version given by his advisors to the Tribunal at CB 53 where it is alleged many documents were provided to the agent) particularly in light of the large amount of information needed for a student visa application (and that his evidence about when he provided his passport varied between providing it on the first or second visit to the agent);

c)     That the applicant would obtain no receipt for the cash payment (which was significant) that he made to the agent and in particular, that in such circumstances this was a genuine and lawful visa application; and

d)     That the applicant would be unaware of what was put in the application on his behalf.

24.     There are other arguments that can be made for the applicant’s position that should also be considered (although not specifically put by the applicant who was unrepresented), for example (and by no means by way of an exclusive list):

a)     In many communities, cash payments are common, and it is well known that often cash payments are sought and that a greater fee would be charged if non-cash payments were made (as to facilitate tax evasion). Whilst implicit in such arrangements is a conspiracy to avoid taxation, the arrangements are common, and do not necessarily taint the evidence with respect to the transaction. However, payments of sums of $3,000 - $5,000 in cash and without a receipt would be a significant risk for a low income earner such as a student.

b)     For an applicant with limited English, it may not be uncommon for them not to know the contents of the visa application form. The Department had established a system which did not require any signatures or other form of attestation by the applicant of the contents of the application. It is arguably ironic that the respondent would establish a system that requires no form of verification by the applicant for a visa (the agent simply entering the details online), and then complain that it would be implausible that an applicant would not know the contents of the application form.

c)     Arguments that a person had shown a general disregard for the accuracy and content of documents prepared by a professional agent, at least on a simplistic level, would effectively undermine the proposition set out in Gill’s Case. Most people engage professional agents to draw forms or documents needed as they do not have the necessary skills to engage with the materials: for example, few people actually check tax returns prepared by an accountant.

25.    Some of the inconsistencies or lack of clear recollection must also be seen in light of the fact that the particular answer would make little difference. For example, the precise amount paid may take the case nowhere: clearly, a payment would have to have been made as S & S Migration were acting fraudulently in order to generate an income. The amount of that payment, unless unrealistically low or obscenely large, would not be a factor for or against accepting the applicant’s version of events. That is, whether he was charged $3,000 or $10,000 (even though the latter figure would objectively appear to be excessive) would not be so unusual a figure as to lead to an inference on his part that the agent was acting fraudulently or that the applicant was not providing a truthful account. However a small figure (such as $1,500 may give rise to real suspicions): the inability to nominate a figure precisely could be a result of not wishing to provide the true figure, rather than simply frailty of memory.

26.     The evidence as to how the applicant came to know of the adverse decision and the steps he took thereafter (whatever version of those that is actually accurate, at least in the context of the versions given in this case) does seem to tell against the applicant’s version of events. The adverse decision must have been one of the most significant events in the applicant’s life at that time as it resulted in him being unable to remain in Australia. One would also expect that he would have been quite upset that such an outcome flowed despite having paid a significant sum for professional assistance, unless he was aware of or indifferent to the application being made fraudulently.

27.    I accept that it is quite implausible that an agent would lodge applications, which involved significant fees, prior to receiving payment from an applicant.

28.    The nature and extent of the documents that the applicant provided would have put a reasonable person on notice that the agent was proposing to take a course that could not have been or was unlikely to have been legitimate as a result of the lack of information being provided to obtain a visa. In the context of this case, however the applicant gave evidence that he queried this aspect of the application process with the agent and was convinced not only to seek a work visa, but that no further documentation was required.

29.    I have reflected upon the evidence as a whole and had the opportunity of seeing the applicant give that evidence in the witness box. I have considered the inconsistencies alleged and identified above. I have had regard to the time that has passed since the events and the language difficulties that confronted the applicant both at the relevant time and at trial. I also have regard to the fact that many of the points made by counsel for the Minister, at least in isolation, appear relatively minor.

4    The amended notice of appeal raises five grounds of appeal. Ground 1 alleges that the FCC provided insufficient reasons for its decision not to accept the appellant’s evidence. Grounds 2 and 5 challenge the rejection of the appellant’s evidence. Ground 3 alleges that the FCC’s decision was illogical, irrational and/or legally unreasonable and Ground 4 alleges that the FCC erred in failing to address and make findings concerning whether the appellant’s alleged “indifference” or imputed authority to his agent included unlawful or dishonest conduct.

5    As this is an appeal by way of rehearing, this Court does not look for jurisdictional error in the decision making process of the FCC. Rather, the Court examines whether the FCC was correct in fact and law in refusing the declaratory relief sought by the appellant: Kaur v Minister for Immigration & Border Protection [2019] FCAFC 53 at [62]-[73] (Murphy, Mortimer and O’Callaghan JJ) (“Kaur”).

6    Counsel for the appellant argued that there were three appealable errors disclosed by the reasons of the FCC. The first appealable error was said to appear in [26]. The second appealable error was said to appear in [27] and the third appealable error was said to appear in the conclusion in [30].

7    Paragraph 26 must be read with [22(g)] and [22 (h)]. Paragraphs 22(g) and 22(h) set out “points of critique” raised by the counsel for the Minister. Those “points of critique” included that:

(g)    there were some inconsistencies in how the applicant came to know of the decision to reject his visa, and the steps that he took; and

(h)    there are some inconsistencies with respect to the steps that the applicant took when he found out there was a problem with his visa, such as whether he rushed to the offices of S & S Migration to find them closed, or immediately found an alternative agent when he heard that they had closed and left the country.

8    Paragraph 26 records that:

The evidence as to how the applicant came to know of the adverse decision and the steps he took thereafter (whatever version of those that is actually accurate, at least in the context of the versions given in this case) does seem to tell against the applicant’s version of events.

9    The reasons, however, did not identify the actual evidence which the appellant gave concerning how he came to know that his visa application had been refused or as to the steps he took thereafter. It appeared from the evidence that the competing versions were as follows.

10    In one of his affidavits in support the appellant deposed that after his migration agent had applied for the visa, he called at the office a number of times to get some sort of acknowledgement of the application and also a copy of the documents for his reference and “all they could answer me that the visa is applied and a new visa will be sent in post”. He deposed that:

Then I got the news from the Department of Immigration that my visa application has been refused for the visa subclass 485. I was shocked and unable to understand what this means, on doing some research I found out the subclass 485 is not a skill visa but a graduate visa. Now my situation was more haunting and stressful, I had broken marriage and a visa refusal. I rushed to the [migration agent] office only to find out that they have been permanently closed and also through friends found out how they have scammed many people in such ways and completely destroyed their future life. …

11    In cross-examination he gave different evidence. He said it was through CECA, the new migration agent he appointed, that he learnt that his visa had been refused. The following exchange occurred:

COUNSEL: Mr Singh, what I’m saying is, in your most recent affidavit you’ve said that:

I got the news from the Department of Immigration that my visa application has been refused for the visa subclass 485.

THE INTERPRETER: No. He’s asking – he said which are you asking about? About the one that I applied through the CECA or the one – the one that I applied through S&S?    

COUNSEL: I’m talking about the one – the visa application that you made through S&S.

THE INTERPRETER: He said when I came to knew that he had ran away, when the I went to the CECA, then I came to knew that my – that visa has been refused. The other, I have no information.

COUNSEL: So you say that you went to CECA before you found out that your visa had been refused?

THE INTERPRETER: He said I went there – he said I said this thing, that I went to the CECA after I came to knew that he went – he ran away after doing the fraud, but at that time I was not knowing this thing, my visa was refused or not. When I went to CECA, only after going that, they told him that his visa was refused.

THE APPELLANT: And, “You have this only option, to apply MRT, and you have – no have any other option.”

COUNSEL: Your affidavit, as I say, just refers to you getting the news from the Department of Immigration that your visa application had been refused. Doesn’t refer to CECA at all.

THE APPELLANT: Maybe it in – they didn’t – I didn’t like get any information from Immigration. If I get information from ---

COUNSEL: Well, that’s just inconsistent with what you have said in your affidavit a bit over a month ago.

THE APPELLANT: Maybe – but maybe ---

THE INTERPRETER: He said you can check with the Immigration that I haven’t received any information from them.

COUNSEL: Well, all I am putting to you is that what you’re saying now is inconsistent with what you said a month ago.

THE INTERPRETER: He said I can – might be I – I did some mistake. By mistake I did that right that thing.

THE APPELLANT: And you – you pick that word, yes, but maybe I did mistake to write because me and my wife write this one, me and my wife, whatever, in – happen with – with us, yes. Like with me, I tell the story and my wife write whatever like she can. And maybe only just you pick that word, only just maybe little mistake, but if I get information from Immigration, then why I go to CECA and ask them what is my visa – visa status. This is the question. If I known – if I knew why I have to go and pay them and ask about my visa, which visa condition I have?

COUNSEL: Mr Singh, do you say that by the time you found out that your visa had been refused ---

THE APPELLANT: They told me. I ---

COUNSEL: Well ---

THE APPELLANT: I don’t know. Yes.

COUNSEL: So who told you? CECA?

THE APPELLANT: Well, CECA. They – they ---

COUNSEL: CECA told you?

THE APPELLANT: Yes, the refusal.

12    From that evidence, the primary judge drew the adverse conclusion that either version told against the appellant. The primary judge reasoned at [26] that the refusal of his visa application must have been one of the significant events in his life and it would be expected that the appellant would have been quite upset that his visa had been refused, despite having paid a significant sum for professional assistance, “unless he was aware of or indifferent to the application being made fraudulently”. However, there was no factual finding linking either version of events with the reasoning process nor is it apparent from the reasons what the evidentiary basis was supporting the adverse conclusion drawn. To the contrary, the appellant’s unchallenged affidavit evidence was that he was “shocked and unable to understand” when he learned that his visa application had been refused. Furthermore, the appellant did not give contrary or inconsistent oral evidence as to his reaction on either version of the circumstances in which he learnt of the refusal.

13    The failure to give adequate reasons is appealable error. The relevant principles are set out in Sklavos v Australasian College of Dermatologists (2017) 256 FCR 247; [2017] FCAFC 128 at [124]-[128] (Bromberg J) as follows:

The relevant principles were not in dispute. The primary judge was under an obligation to give sufficient reasons for her decision.

In Carlisle Homes Pty Ltd v Barrett Property Group Pty Ltd [2009] FCAFC 31 at [40]-[41], the Full Court (Tamberlin, Sundberg and Besanko JJ) said this:

[40] Clearly, a trial judge is under an obligation to give reasons for his or her decision. The rationale for the obligation has been discussed in a number of cases. It is sufficient to refer to two cases. In Pettitt v Dunkley [1971] 1 NSWLR 376 (“Pettitt v Dunkley”), Moffitt JA said (at 388) that a court or judge, including an intermediate court of appeal, is under an obligation to give reasons “so far as it is necessary to enable the case properly and sufficiently to be laid before the higher appellate court”. In Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 (“Soulemezis v Dudley (Holdings) Pty Ltd”), McHugh JA (as his Honour then was) said (at 279) that the giving of reasons for a judicial decision served at least three purposes: first, “it enables the parties to see the extent to which their arguments have been understood and accepted as well as the basis of the judge’s decision”; secondly, “the giving of reasons furthers judicial accountability”; and, thirdly, the giving of reasons enables practitioners, legislators and members of the public to ascertain “the basis upon which like cases will probably be decided in the future”. McHugh JA went on to say (at 280-281) that the extent of the duty to give reasons was related to the function to be served by the giving of reasons, and he gave as an example of that proposition the need to give more elaborate reasons where legislation gives a right of appeal against a decision than where no appeal lies.

[41] The nature and content of the duty to give reasons has been discussed in a number of cases. In Sun Alliance Insurance Ltd v Massoud [1989] VR 8, Gray J (with whom Fullagar and Tadgell JJ agreed) said (at 18) that the adequacy of reasons will depend on the circumstances of the case. The reasons of a trial judge will be inadequate if the appeal court is unable to ascertain the reasoning upon which the decision is based, or justice is not seen to have been done. In that case, Gray J said that the trial judge’s reasons were inadequate because his reasoning process was not revealed to the appeal court, such that a judgment could be made as to whether he had fallen into error. His Honour also said that the insufficiency of the reasons had the consequence that justice was not seen to be done.

Those observations were adopted by Ryan, Mansfield and McKerracher JJ in Devers v Kindilan Society [2010] FCAFC 72 at [59] and Jacobson, Foster and Katzmann JJ in New Zealand v Johnston [2011] FCAFC 2 at [104].

At [43] of Carlisle Homes, the Full Court identified three fundamental elements in the obligation to give reasons as follows:

First, the court or judge should refer to relevant evidence and if there is conflicting evidence, reference should be made to both sets of evidence. Secondly, the court or judge should set out the material findings of fact and identify his or her ultimate factual conclusions. Thirdly, the court or judge should provide reasons for making his or her findings of fact and conclusions, and reasons in applying the law to the facts found.

It is necessary, however, to bear in mind the following observation made in Devers at [58] and followed by Gray, Marshall and Bromberg JJ in Haros v Linfox Australia Pty Ltd [2012] FCAFC 42 at [31]:

...a judge’s duty to give reasons is not one which requires him or her to examine in detail every issue raised in the proceedings or to record in minute detail the reasons which led to any particular conclusion. It is enough if the judge outlines the facts found and the process of reasoning which led to the ultimate conclusion...

Applying this principles in the present case, the reasons of the primary judge were inadequate as the primary judge did not deal with the evidence and did not provide an intelligible explanation of the process of reasoning that led the primary judge to the conclusion reached or expose why the evidence supported the conclusion reached.

14    Paragraph 27 must be read with [23(a)]. In [23(a)], the primary judge referred to the submission by counsel for the Minister that it was “implausible” in the evidence of the appellant that the migration agent would take the steps required to obtain a visa (so as to be in a position to show the appellant electronic information on his computer screen confirming that the visa had been sought or obtained) prior to receiving payment from the appellant. At [27], the primary judge accepted that it was “quite implausible” that an agent would lodge applications, which involved significant fees, prior to receiving payment from an applicant. But not only was no finding made that the visa application had been lodged before the migration agent received payment from the appellant, there was no consideration of the evidence about when the payment was made.

15    The evidence was that the appellant paid the fee in cash at his second meeting with the migration agent which lasted no more than five to 10 minutes. Asked by the primary judge whether he talked about anything else with the migration agent apart from giving him the money, the appellant replied:

No. Only just – only just – no more than even five minute, 10 minute, like this, and he say, “All right. No worries. And everything is good. You can – like, your visa – everything is all right now, and I apply everything for you, so you no worry about that. Even your wife no here. Doesn’t matter. But you get your own visa.”

16    Later in cross-examination the appellant said that:

He just showed me something on the screen that there is the visa. That’s it. On that time he showed me something on the screen, or he put some numbers on computer and showed me something on the screen. “That is your visa status and everything”. That’s it.

17    When asked whether he ever saw the application that was submitted to the Department, the appellant replied that he did not know. Later in the cross-examination he said what he had been shown by the migration agent was that he had got a bridging visa. He repeated his evidence that when he was there and paid his fees the migration agent showed him something on the screen and said that “here is your bridging visa”.

18    To accept the Minister’s submission first required a consideration of this evidence and a finding made that the visa application was lodged before the appellant paid his fees. But no such was finding was made and the evidence to which the Court was taken on appeal was somewhat vague and equivocal as to what the appellant was actually shown at the second meeting. There was no consideration of that evidence and the reasons do not expose the basis of the “finding” in [27].

19    Finally, it was submitted that the decision below does not disclose a logical explanation as to why the Court should not have accepted the appellant’s evidence. I agree with that submission. Paragraphs 29 and 30 contain broad generalised statements merely asserting a conclusion without exposing a logical, rational or probative basis for the conclusion reached.

20    It is unnecessary to say anything separate about the reasons for decision. The reasons do not contain any findings of fact other than that the migration agent engaged in fraud and the reasoning process is conclusionary without setting out the evidence and making the findings of fact necessary in order to support the conclusion reached.

21    For these reasons I find that appealable error has been established. In the circumstances, this Court is able to consider the evidence for itself and to substitute its own decision on the appeal for that of the FCC (Kaur at [60]) and the appellant submitted that the Court is in the position to make the appropriate findings and to grant the declaratory relief sought. In some cases it may be appropriate for the Court to take that course of action but I do not consider that it is appropriate in this case given the absence of pertinent findings that would enable the Court to reach a view. For example, the primary judge referred to the appellant’s demeanour as a matter which he took into account. However the reasoning does not expose what it was about the appellant’s “demeanour” that bore upon the reasons expressed. Another example is that the primary judge referred to some of the evidence of the appellant as non-responsive to the question asked but without identifying what answers the primary judge found non-responsive and how this bore probatively upon the conclusion reached. Accordingly, the preferable course is to remit the matter to the FCC for redetermination.

Associate:    

Dated:    30 May 2019