Federal Court of Australia

Kaur v Minister for Immigration and Border Protection [2021] FCA 1026

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is allowed.

2.    The orders of the Federal Circuit Court made on 15 November 2018 are set aside.

3.    The matter be remitted to the Federal Circuit Court for reconsideration according to law.

4.    The first respondent pay the appellants’ costs of the appeal and of the application to the Federal Circuit Court.

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

REASONS FOR JUDGMENT

BROMBERG J:

1    This is another unfortunate case in a long series before this Court dealing with the aftermath of visa-related fraud perpetrated by migration agents at S & S Migration. It is an appeal from a judgment of the Federal Circuit Court of Australia (FCCA) published as Kaur & Anor v Minister for Immigration & Anor [2018] FCCA 3272. In that judgment, the primary judge dismissed the appellants’ application for judicial review of a decision of the Migration Review Tribunal (Tribunal) made on 4 March 2014 to affirm a decision by a delegate of the first respondent (Minister) to refuse to grant the first appellant (Ms Kaur) a Skilled (Provisional) (Class VC) subclass 485 visa (working visa). In doing so, the primary judge refused the declaration sought by the appellants that the visa application was invalid.

2    Although not apparent from the reasons of the primary judge, I would understand that the appellants’ purpose in seeking that the application for the working visa be declared invalid and that the decision of the Tribunal that treated that application as valid be set aside is to avoid being excluded from applying for visas by reason of the operation of reg 485.224 of the Migration Regulations 1994 (Cth) and Public Interest Criterion 4020(1) (PIC 4020(1)). As the delegate concluded, by reason of the information provided by Mr Ajjan, Ms Kaur had provided false or misleading information in respect of her application for the working visa, and PIC 4020(1) would therefore operate to impose an exclusion period upon Ms Kaur and members of her family, precluding them from making visa applications. That prejudicial consequence explains why the second, third and fourth appellants, each of whom are members of Ms Kaur’s family, are appellants to the appeal. It does not explain why the primary judge seems to have treated the second appellant as an applicant for the working visa. Counsel for the appellants explained that that was not so and that the application for the working visa was only purportedly made on behalf of Ms Kaur.

3    It was not in dispute that Mr Ajjan acted fraudulently in attempting to procure a visa for Ms Kaur. Mr Ajjan lodged a falsified document purporting to be a skills assessment by Trades Recognition Australia in support of the visa application. Although it was not found that Ms Kaur was complicit in the fraud perpetrated by Mr Ajjan, the primary judge considered that it was necessary for Ms Kaur to establish that she was not indifferent to the fraud of Mr Ajjan: as to ‘indifference’ see the discussion below. The primary judge was not persuaded that Ms Kaur was not indifferent to the fraud of Mr Ajjan. It followed that the fraud of Mr Ajjan was held not to vitiate the visa application or the decision of the Tribunal, and the primary judge did not grant the declaration sought by the appellants that the visa application was invalid.

4    The appellants advanced two grounds of appeal, but two further grounds (buried in the particulars given to the grounds of appeal) were also pressed. I need only determine two of those grounds. The appellants said that the primary judge failed to give adequate reasons. The appellants also contended that the primary judge erroneously concluded that Ms Kaur was indifferent to Mr Ajjan’s fraud. The second ground engaged closely with the findings of fact made by the primary judge and it is convenient to deal with it first.

5    The principal question on that ground of appeal is whether the primary judge erred by finding that Ms Kaur had not established that she was indifferent to the fraud of Mr Ajjan. For the reasons that follow I find that the primary judge erred on that issue.

6    Before I set out my reasons for that conclusion, it is convenient to record the other two challenges and explain why I need not determine them. The primary judge found that the appellants had not established that the fraud of Mr Ajjan had stultified the statutory task conferred on the Tribunal. The parties accepted that the reasons of the primary judge on this point were inadequate and that error was therefore demonstrated. I will refer to that error as the “stultification error”.

7    The appellants also contended that the primary judge failed to rule on whether tendency evidence before the FCCA was inadmissible. The evidence in question was not relied upon below, so it is immaterial whether the primary judge ruled on it. It would only be necessary to determine the issue of tendency evidence if I were to rehear the application for judicial review. The parties agree, and I accept, that where I have found error in the primary judge’s finding that Ms Kaur was indifferent to the fraud of Mr Ajjan, the stultification error would best be addressed by the matter being remitted to the FCCA. It follows that the issue of tendency evidence will not arise in this Court and accordingly it is not necessary for me to address it.

Procedural Background

8    On 12 January 2011, Mr Ajjan applied for the working visa purportedly on behalf of Ms Kaur. On 28 March 2012, a delegate of the Minister refused to grant the visa. The reasons for the decision include reference to the application being prepared by S & S Migration, which had by that time been previously found to have provided false or misleading information to the Department of Immigration and Citizenship (Department) in other applications, and the application itself containing false or misleading information.

9    On 10 April 2012, the first and second appellant applied to the Tribunal for review of the decision of the delegate. Ms Kaur maintained that she was the victim of fraud by Mr Ajjan. On 4 March 2014, the Tribunal affirmed the decision of the delegate.

10    On 27 March 2014, the appellants applied to the FCCA for judicial review, which was dismissed on 18 April 2016 (first hearing). On appeal, Mortimer J ordered by consent that the order of the FCCA dismissing the application be set aside and remitted the matter to the FCCA.

11    On 15 November 2018, the primary judge found that Ms Kaur had not established that she had not been indifferent to the fraud of Mr Ajjan. The primary judge made orders dismissing the application and that the appellants pay the Minister’s costs.

The Concept of “Indifference” in Public Law Fraud

12    The leading authority on public law fraud is the High Court’s decision in SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189. In SZFDE, the High Court observed the importance in public law fraud of paying close attention to “the nature, scope and purpose of the particular system of review by the Tribunal which the Act establishes and the place in that system of registered migration agents”: at [29]. The High Court made no reference in SZFDE to the concept of “indifference”, but alluded to the necessity of an applicant for judicial review establishing that he or she did not “collude” in the fraud of a third party: at [28].

13    The concept of “indifference” arose in the context of public law fraud by a migration agent in Gill v Minister for Immigration and Border Protection (2016) 248 FCR 398 (Kenny, Griffiths and Mortimer JJ). At the outset, it should be observed that the explanation of “indifference” in Gill occurred in the context of the following comments at [47] (Kenny, Griffiths and Mortimer JJ), referring to SZFDE:

Recognition that fraud can arise in a wide range of factual circumstances, such that it is apt to describe the range as “infinite in variety”, highlights the undesirability of prescribing in generally applicable terms the scope for judicial review where there is third party fraud.

14    The concept of “indifference” should therefore be approached with due care in recognition of the breadth and infinite variety of fraud and how it might intersect with the relevant statutory provisions in question. The Full Court in Gill proceeded to identify the character of the indifference necessary to be proved in cases of third-party fraud by migration agents. At [49] their Honours drew:

…[a] distinction between an indifference as to how the migration agent acting lawfully and properly can achieve a visa applicant’s desired outcome, as opposed to an indifference as to whether or not that outcome is achieved by the agent acting unlawfully or dishonestly.

Accordingly, it must be shown that the applicant was not indifferent to the migration agent acting unlawfully or dishonestly, not merely indifferent as to how the migration agent might procure a visa acting lawfully and properly.

15    In Kaur v Minister for Immigration and Border Protection (2019) 269 FCR 464, Murphy, Mortimer and O’Callaghan JJ traced the origin of “indifference” in the authorities: at [130]-[140]. Their Honours found that the concept of indifference is closely allied to “reckless indifference” at common law, a state of mind which, along with intention, is capable of tainting a false statement with fraud: at [134]-[135], quoting Pyramid Building Society (in liq) v Scorpion Hotels Pty Ltd [1998] 1 VR 188 at 194 (Hayne JA, with Brooking and Tadgell JJA agreeing) and SZIVK v Minister for Immigration and Citizenship [2008] FCA 334 at [34] (Finkelstein J).

16    Their Honours then made the following comments clarifying the scope of “indifference” in the context of public law fraud at [136]-[140]:

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

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

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

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

… the Minister ultimately did not contest that s 98 would not apply to a visa applicant who has relied upon a migration agent to fill out a visa application form and the agent perpetrates a fraud on the visa applicant. In our view, that acknowledgment was properly given.

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

17    It is critical that the findings of the primary judge be assessed in light of the proper understanding of what is required to establish indifference to fraud. Indifference is a state of mind close to intention or deliberate dishonesty. That is a high bar. It requires a finding, close to dishonesty, based on probative evidence as to the subjective state of mind of the person affected by the fraud of a third party.

The Onus of Proof in Respect of Indifference

18    The primary judge considered that the appellants bore a “heavy burden” in discharging their onus of proof that Ms Kaur was not indifferent to the fraud of Mr Ajjan. His Honour appears to have relied on an observation made by Allsop CJ in SZRUR v Minister for Immigration and Border Protection (2013) 216 FCR 445 at [51]. Whilst the appellants correctly accepted that they bore the onus of proof (see Maharjan v Minister for Immigration and Border Protection (2017) 258 FCR 1 at [78] (Gilmour, Logan and Mortimer JJ)), they contended that his Honour erred in proceeding on the basis that the burden to be discharged was “heavy”.

19    The approach adopted by the primary judge seems to be well supported by the authorities and, if it had been necessary for me to determine the issue, I would not have found error. Free of authority, I would have taken a contrary view. In deference to the submissions made on the issue, I make the following observations as to the onus of proof in cases involving fraudulent conduct by a migration agent. The discussion suggests that a review of the authorities by a Full Court may be appropriate.

20    In SZRUR at [51], Allsop CJ explained:

There is a heavy burden of proving fraud on an applicant who seeks to set aside an otherwise blameless decision of the Tribunal by reason of the fraud of some third party. The heaviness of that burden is identified in SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189 and Minister for Immigration and Citizenship v SZLIX (2008) 245 ALR 501.

21    Those comments are orthodox and accord with the well-established principle in Briginshaw v Briginshaw (1938) 60 CLR 336 at 362 (Dixon J) that “[t]he seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal”: see also Minister for Immigration and Citizenship v SZLIX [2008] FCAFC 17; 245 ALR 501 at [33] (Tamberlin, Finn and Dowsett JJ). That principle does not derogate from the standard of proof applied in civil matters under s 140 of the Evidence Act 2008 (Cth), but the unlikelihood and seriousness of wrongful conduct such as fraud must weigh in an assessment of the balance of probabilities.

22    Of the cases referred to by Allsop CJ at [51] of SZRUR, SZFDE is the leading authority on the consequences of fraud of migration agents and SZLIX concerned whether the fraud of a migration agent had been established. Neither case refers to indifference or the nature of the onus in respect of indifference. Nor did any of the judges in SZRUR refer to the concept of indifference. The Full Court in SZLIX found at [33], with reference to the principle in Briginshaw, that the fraud of the migration agent had not been made out. In light of the references, it is evident that Allsop CJ was not referring to the onus of proof in respect of indifference to fraud when he spoke of a “heavy burden” at [51] of SZRUR but instead was addressing the onus of establishing fraud itself.

23    In Maharjan Gilmour, Logan and Mortimer JJ said the following at [102]:

The appellants will be required to prove the fraud (see SZSJA v Minister for Immigration and Border Protection (2013) 308 ALR 266 at [38] and the authorities there cited), and satisfy the Federal Circuit Court that the first appellant was neither complicit in the fraud nor “indifferent” to it, in the limited and particular sense explained in Gill and Singh. That is, as the Chief Justice observed in SZRUR v Minister for Immigration and Border Protection (2013) 216 FCR 445 at [51], a heavy burden.

24    Those observations made in Maharjan were referred to by me with Griffiths and Moshinsky JJ in Singh v Minister for Immigration and Border Protection (2018) 261 FCR 556 at [141]. The observations of the Full Court in Maharjan and Singh need not be taken as endorsing the proposition that the “heavy burden” that ought to be applied to the onus of proving fraud should be applied with equal force to proving that an applicant was not indifferent to fraud. The observation of Allsop CJ referred to the difficulty of discharging the onus of proof in respect of fraud, which, as noted above, is uncontroversial. In Maharjan and Singh, the observations of the Full Court recognise that the task of proving fraud, and proving indifference to fraud, collectively constitute a heavy burden.

25    In my view, to the extent that the principle of Briginshaw is applicable to a finding of indifference, it should apply in favour of the applicant. That is because a court or a tribunal is making a finding that an applicant, to use the words of the Full Court in Kaur at [140], was involved in conduct which is “tantamount to deliberate dishonesty”. In those circumstances the inherent unlikelihood of that person’s participation in such conduct should weigh in the applicant’s favour.

26    Nevertheless, in Kaur the Full Court adopted the following submission of the Minister at [56] (Murphy, Mortimer and O’Callaghan JJ):

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

27    The submission of the Minister was accepted by the Full Court in circumstances where there had been no challenge to the correctness of the principles. The submission adopts the references in Maharjan to contend that the “heavy burden” to which Allsop CJ referred to in SZRUR separately applies to indifference alone. As noted above, Allsop CJ comments were entirely removed from any discussion of indifference and referred solely to the difficulty of proving fraud.

28    Although the submission of the Minister was accepted by the Full Court in Kaur, their Honour’s did say at [137] that a finding that the applicant was indifferent to the fraud of a migration agent required “a careful finding, based on probative evidence”.

29    Furthermore, in Katragadda v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 143 at [55]-[56], Mortimer and Charlesworth JJ quoted the submission that was accepted in Kaur and explained that:

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

The Nature of the Appeal

30    The appeal is brought under s 24 of the Federal Court of Australia Act 1976 (Cth) by way of rehearing. The correct approach to an appeal by way of rehearing in the present context was considered in depth by the Full Court in Kaur at [59]-[76] (Murphy, Mortimer and O’Callaghan JJ). For present purposes it is convenient to set out the following well-established propositions from Kaur:

(1)    The Court is able to correct errors of law and fact and, if appropriate, substitute its own decision on appeal: at [60];

(2)    The Court is generally in a position equal to the trial judge in determining the proper inferences from undisputed facts or facts established by the findings of the trial judge: at [63];

(3)    The Court is obliged to conduct a “real review” of the trial and the primary judge’s reasons and give the judgment which it considers should have been given at first instance: at [64]; and

(4)    In accordance with Fox v Percy (2003) 214 CLR 118, in matters of credit and reliability, the Court should not interfere with the primary judge’s findings of fact unless they are demonstrated to be wrong by “incontrovertible facts or uncontested testimony”, or are “glaringly improbable” or “contrary to compelling inferences” at [66]-[73]. Further, the findings of the primary judge must fall within “the range of permissible inferences”: at [68]-[69].

31    I do not consider that the primary judge enjoyed advantages not enjoyed by this Court in making the findings which are in contest on this appeal. I will return to that issue later when addressing the particular findings in contest. However, it is convenient to note here that the primary judge did not regard the applicant’s demeanour as being determinative on any issue of importance. At [33], his Honour said this:

In some respects, although not all, issues relating to the first applicant’s demeanour played a role in my overall assessment of her veracity. That said, her demeanour in the witness box was not determinative of the issues of importance in this case. In assessing the matters in issue in this case, I have considered not only what the first applicant said and how she said it but also the likelihood of her version of events transpiring in the manner she said they transpired, whether other objective evidence contradicted her version of events and whether contemporaneous documentary evidence corroborated or contradicted her version of events.

The Critical Evidence Given by Ms Kaur

32    Ms Kaur’s evidence is not entirely free of ambiguity. However, the primary judge did not find her to be untruthful. Nor, on this appeal, did the Minister suggest that there were aspects of the evidence given by Ms Kaur which ought not to have been accepted as truthful. To the extent that aspects of Ms Kaur’s evidence are less than clear, that may well be a consequence of her capacity with the English language. English is not her first language. At the first hearing before the FCCA, Ms Kaur gave evidence through an interpreter. She agreed that she spoke English fluently but wanted an interpreter to avoid “misunderstanding something”. At the hearing before the primary judge, she gave evidence unassisted by an interpreter. Despite Ms Kaur’s own view, the transcript reveals her not to be a fluent speaker of the English language although her spoken English, though somewhat broken, was largely comprehensible.

33    With those observations in mind, Ms Kaur’s evidence must be fairly read and read as a whole. The whole of the evidence of Ms Kaur that the parties sought to draw my attention to comprised an affidavit made by Ms Kaur on 19 February 2016 which was tendered at the first and second hearings before the FCCA, a section of Ms Kaur’s cross-examination at the first hearing, and most of her evidence in cross-examination before the primary judge. The transcript of Ms Kaur’s evidence given at the first hearing was before the primary judge.

34    Having carefully read the evidence given by Ms Kaur, alert to the apparent infelicities in expression, my understanding of the import of that evidence or, more particularly, those aspects of the evidence most relevant to the appeal is as follows.

35    Ms Kaur attended the offices of S & S Migration at least twice, and possibly three times, in early 2011. She first attended in early January 2011. That attendance occurred on a day prior to 12 January 2011, being the date upon which S & S Migration lodged the fraudulent application for the working visa with the Department, purportedly on her behalf.

36    Prior to that attendance, Ms Kaur had been studying in Australia on a student visa. She had studied at Imperial College from 2008 to 2010. Her course had finished by February 2010.

37    Ms Kaur’s student visa permitting her to stay in Australia was due to expire on 2 April 2011. A friend recommended that she see Mr Ajjan of S & S Migration about extending her visa. That recommendation was made to her after she had finished her course and when she was “looking [for] some agent to get their advice [as to] what I’m going to do next”.

38    On her first visit to the offices of S & S Migration she met Mr Ajjan for the first and only time. She deposed that she “understood Mr Ajjan to be a lawyer and trusted him”. She stated that she went to see Mr Ajjan because “I was looking to a lawyer to take advice”.

39    The content of Ms Kaur’s only conversation with Mr Ajjan is important. She gave evidence of it in her affidavit and was questioned about it several times in cross-examination. As a result, the evidence is somewhat disjointed. However, taking into account the whole of the evidence given of that conversation, it would appear that Ms Kaur came to meet Mr Ajjan with the intention of obtaining assistance to extend her visa. Ms Kaur explained to Mr Ajjan that her studies had finished. She said to him that she wanted to extend her visa, know what she could do next, and understand the process. Ms Kaur asked Mr Ajjan how she could extend her student visa to which he responded that she could extend her student visa or apply for a sub-class 485 working visa.

40    In her affidavit (but not her oral evidence), Ms Kaur deposed that Mr Ajjan told her that on a working visa she would work for a year or two and that he would then apply for a temporary residence visa on her behalf.

41    Ms Kaur accepted that she agreed with Mr Ajjan that she should apply for a working visa. She said, however, that she had no idea that Mr Ajjan would then complete the application form and send it off to the Department. Her evidence was that Mr Ajjan told her that she would have to complete the application form herself. He said that “[y]ou will fill all the forms, and you will complete the requirements”. She said that the “requirements” about further information were explained to her as including her study, study documents and work done (or to be done) in her field. In relation to the mention of her work, the specific phrasing Ms Kaur used was:

‘I need’ – ‘You have to do work in your field. You have to complete that, all things’

42    Although she was asked to provide passports for herself and her husband, Mr Ajjan told her he would call her and seek the other information required later and that “then you will complete all the documents”. Mr Ajjan told her that he would send the passports to the Department and “just an application that this person want to apply [for] the 485 visa … then the department will ask all the requirements complete these all. Then I will ask you the documents that time”.

43    Counsel for the Minister suggested to Ms Kaur that when she returned to the office of S & S Migration on the second occasion and was told that she had been granted a bridging visa, she must have appreciated that the application for the working visa must have been made for her. Ms Kaur responded to the effect that her understanding was that the bridging visa had been granted because the Department had been informed that she wanted to apply for the working visa.

44    Ms Kaur completed an information sheet at the request of S & S Migration. She was also asked to pay $2,500 as Mr Ajjan’s fee. That sum was provided by her in cash on the second occasion she visited the office of S & S Migration.

45    Ms Kaur deposed that Mr Ajjan never called her to ask her to provide the information or documents he told her would be required for the working visa. Ms Kaur said she was waiting for that and that she called to speak with Mr Ajjan from time to time to ask him when he needed to see her and when did he want all of the documents. Despite her calling to speak with Mr Ajjan, she never got to speak to him and was told by the “lady” that “we will call you”. At about that point in her cross-examination the following exchange (to which I will return) occurred:

Yes. And do you recall that when you applied for the student visa, you had to provide documents in support of the application relating to your intended studies and the like? ---Yes.

Yes. Did you not think it was odd that you might have to – you weren’t asked to provide information about your intended work in respect of a work visa?---I ask him.

But he didn’t ask you to provide anything in that regard, did he?---No.

Surely, it seemed too good to be true?---Yes.

46    Ms Kaur deposed that from early November 2011 she knew that S & S Migration were the subject of allegations relating to fraudulent visa applications. In November 2011 Ms Kaur used the transaction reference number on her bridging visa to access information about the status of her application for a visa and learnt that an application for a visa had been made for her by Mr Ajjan and that it had been made without her having provided the “information on the requirements”.

47    She accepted that from that time (early November 2011) she knew that her visa application may well contain false information. Ms Kaur further accepted that she held a real concern that Mr Ajjan had made a visa application on her behalf which contained false information.

48    Despite that concern, Ms Kaur did not contact the Department to inform it of her concern. On about 7 November 2011 she returned home from hospital after giving birth to her child. Three or four days later, Ms Kaur consulted a migration agent and was advised that she should explain the situation to the Tribunal. She consulted with a second migration agent who also advised her that she had “to put [her explanation] to the [Tribunal]”. In January 2012, she contacted a third migration agent and received the same advice.

49    Ms Kaur accepted that in November 2011 a delegate of the Minister had not yet made a decision on the visa application and that the decision was made in late March 2012. She agreed that in the four to five month period between when she formed her concern and the delegate’s decision she did not contact the Department and did not seek to withdraw her visa application. She explained that she did not do so because of the advice she had received from the migration agents. She said, referring to the third migration agent with whom she had consulted, that he had advised her that the matter had to be put to the Tribunal and that he would make submissions on her behalf. She said that she did whatever the agent suggested.

The Reasoning of the Primary Judge

50    The primary judge refused the declarations sought by the appellants and dismissed the proceeding with costs. His Honour found that Ms Kaur had not expressly authorised Mr Ajjan to engage in fraudulent activities in connection with the visa application. The basis for the primary judge’s dismissal of the application and refusal to make the declaration sought by the appellants was not Ms Kaur’s failure to establish that she was not complicit in the fraud, but her failure to establish that she was not indifferent to it. In fact, the primary judge found, unnecessarily, that Ms Kaur was indifferent to the fraudulent conduct of Mr Ajjan.

51    In arriving at the conclusion that Ms Kaur was indifferent to the fraud (or had not established that she was not indifferent), the primary judge relied on various considerations including three findings which appear to be critical to his Honour’s conclusion and which are challenged on this appeal.

52    Although those findings are, to some extent, dealt with elsewhere in his Honour’s reasoning, they are principally addressed at [38] as follows:

It must not be overlooked that the first applicant had, on her own version of events, not previously met Mr Ajjan and she had been referred to him by a friend called Hardeep Kaur. The first applicant knew next to nothing about Mr Ajjan. On the evidence she gave, she said nothing that could legitimately support her contention that she trusted Mr Ajjan [first finding]. She as a total stranger to him. She did not explain why she gave Mr Ajjan a significant sum ($2 500) at her first meeting, nor did she explain why she did not correct Mr Ajjan when he mentioned applying for a subclass 485 visa in view of the fact that she said she had held several different previous visas, namely student visas. She gave no evidence that she baulked at his suggestion that he would seek a subclass 485 visa. She gave no evidence that she baulked at his request, at the first meeting, to hand over $2 500. Yet she did give evidence that she complied with Mr Ajjan’s request and that she did in fact hand over $2 500. She gave no evidence that she made her own investigations about the bona fides of Mr Ajjan or about his business. On the first applicant’s version of events, a friend put her in touch with a stranger (Mr Ajjan) who spoke of applying for a visa that she had not previously held and who asked her for $2 500, which she paid without further inquiry. When the first applicant said in cross-examination that “it seemed too good to be true”, I agree [second finding]. In addition, the first applicant admitted she knew from November 2011 that her visa application contained false information and she took no steps to notify the department about any concern she had [third finding].

53    The first finding relied upon by the primary judge was his Honour’s rejection of Ms Kaur’s reliance on Mr Ajjan being a lawyer and a person who she trusted as a basis for demonstrating that she was not indifferent to the fraud which Mr Ajjan ultimately committed. In this respect, his Honour reasoned that Ms Kaur’s preparedness to pay $2,500 to a person she had no basis to trust was demonstrative of her indifference to whether a genuine rather than a fraudulent application for a visa would be made on her behalf.

54    Second, the primary judge concluded that Ms Kaur’s indifference to the fraud of Mr Ajjan was supported by her awareness that “it seemed too good to be true”. The “it” or what it was that seemed to be too good to be true was, inferentially, that she could legitimately obtain a working visa in the circumstances of her particular interactions with Mr Ajjan which the primary judge described at [38].

55    Third, the primary judge regarded Ms Kaur as having admitted that she knew from November 2011 that her visa application contained false information and that her failure to take any steps to notify the Department about any concern she had was indicative of her indifference to the fraud.

56    The first finding relied on by the primary judge involved a finding about Ms Kaur’s state of mind. The primary judge did not accept Ms Kaur’s evidence that she trusted Mr Ajjan. There is nothing in the reasons of the primary judge to suggest he regarded that evidence as not truthfully given and, as earlier stated, any reliance made by his Honour on Ms Kaur’s demeanour was not regarded by him as critical. The primary judge rejected what he called Ms Kaur’s “contention” that she trusted Mr Ajjan because “[o]n the evidence she gave, she said nothing that could legitimately support” that contention (at [38]). As his Honour set out at [38], he relied on both the evidence given by Ms Kaur and the absence of matters in her evidence that he considered significant. As to the former, the primary judge relied on the fact that Ms Kaur did “handover” $2,500 to Mr Ajjan. As to the latter, his Honour relied on Ms Kaur not having made her own investigation of the bone fides of Mr Ajjan. In these circumstances, this Court is in a position equal to that of the primary judge in determining the proper inferences to be drawn from the relevant undisputed facts.

57    Contrary to the primary judge’s finding, there was clear and uncontradicted evidence in support of Ms Kaur’s evidence that she trusted Mr Ajjan. In her affidavit of 19 February 2016 Ms Kaur explained that she trusted Mr Ajjan because she understood that he was a lawyer.

58    Although the primary judge recorded that evidence earlier in his Honour’s reasons, those reasons do not suggest that his Honour took that evidence into account when evaluating whether the trust in Mr Ajjan which Ms Kaur asserted she held should be accepted. His Honour’s apparent failure to address the very basis asserted by Ms Kaur for trusting Mr Ajjan was, with respect, an error in his Honour’s reasoning. The basis relied on by Ms Kaur could not be ignored, particularly as Ms Kaur’s evidence was not only plausible but completely unchallenged.

59    In this context, it is salutary to observe the following comments of the Full Court in Gill at [41] and [42] (Kenny, Griffiths and Mortimer JJ):

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

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

60    The observations of the Full Court may be described as supporting a factual presumption that an applicant for a visa is entitled to believe that a person acting in a professional capacity as a migration agent, including a lawyer who is a migration agent, will act lawfully. Ms Kaur was entitled to the benefit of that presumption as well as the more general presumption that a person engaging a lawyer is entitled to a legitimate expectation that because the person engaged is a lawyer the person will act lawfully.

61    The primary judge did not apply the comments of the Full Court in Gill. Nor did his Honour properly take into account the evidence of Ms Kaur. To the contrary, the primary judge found, remarkably, that the fact that Ms Kaur would pay a person she had not previously met $2,500 was a reason going against her contention that she trusted Mr Ajjan. In my view, that finding was not the correct inference to be drawn in the circumstances. It is entirely unremarkable that a person who attends the offices of a lawyer or a migration agent for the purpose of procuring their services would make an upfront payment. There is nothing unusual or untoward about that course. That is how many services, including legal services, are commonly procured. A preparedness to make an upfront payment for legal services is not suggestive of an inference which the primary judge seems to have improperly drawn, that the making of that payment without further inquiry was an acknowledgment or recognition by Ms Kaur that the services being acquired may involve illegitimate conduct. Nor is there anything implausible about a lawyer being engaged by a client who had not previously met the lawyer nor investigated the lawyer’s bone fides.

62    With respect, the primary judge erred in ignoring Ms Kaur’s evidence that she trusted Mr Ajjan because he was a lawyer. If, contrary to the view I hold, his Honour did not ignore that evidence, then his Honour was wrong to reject it. The evidence was plausible and was unchallenged. It was not undermined by the circumstances in which Ms Kaur engaged Mr Ajjan to provide legal services.

63    The primary judge should have found that Ms Kaur trusted Mr Ajjan. That finding should have been taken into account by his Honour in determining whether Ms Kaur’s onus of demonstrating that she had not been indifferent to the fraud of Mr Ajjan was discharged.

64    I turn then to the second finding relied upon by the primary judge. I do so on the basis that indifference is a state of mind. Whether a person is or is not indifferent to another’s fraud is to be assessed subjectively, although the objective facts may permit an inference to be drawn about a person’s state of mind. A particular outcome may be recognised by a person as being ‘too good to be true’ and thus demonstrative of a likelihood that the outcome will be illegitimately achieved. In assessing whether a person is indifferent in such circumstances it is necessary to focus on that person’s subjective understanding as to whether a particular outcome is or seems ‘too good to be true’.

65    The primary judge at [38] referred to Ms Kaur as having said in cross-examination that “it seemed too good to be true”. In fact, Ms Kaur agreed to the cross-examiner’s statement that “surely, it seemed too good to be true”. Putting aside that inaccuracy which is of little moment, the primary judge then said “I agree”. That expression of agreement can only reflect his Honour’s objective assessment of the circumstances and is of no relevance to the question of Ms Kaur’s state of mind unless the objective assessment made by the primary judge was connected to Ms Kaur’s state of mind by the drawing of an inference. No such inference appears to have been drawn in his Honour’s reasons and whether the primary judge was right or wrong in relation to his objective assessment that it was “too good to be true” is beside the point. The debate about that on appeal need not be canvassed here because, in my view, regardless of whether the primary judge’s objective assessment was or was not correct, the primary judge was wrong to take it into account in an exercise which should have been only concerned with the subjective state of mind of Ms Kaur.

66    In this respect, the primary judge erred in giving weight to a finding which was not capable of being probative of the question his Honour needed to determine.

67    Although it is not my preferred characterisation of what his Honour did, it is possible to characterise his Honour’s finding as a concession made by Ms Kaur about her own state of mind with which his Honour unnecessarily expressed agreement. The concession would be to the effect that in the circumstances of her interaction with Mr Ajjan, Ms Kaur recognised that obtaining a working visa legitimately was an outcome seemingly too good to be true. If that is what the primary judge did, in my respectful view, it was unsound because Ms Kaur made no such concession.

68    This Court is in as good a position as was the primary judge to assess what the undisputed evidence given by Ms Kaur revealed about her subjective understanding. In my view, all that Ms Kaur may be said to have conceded in agreeing to the proposition put by the cross-examiner was that it was odd that Mr Ajjan had not followed up with her and not provided her an opportunity to provide him with particular information that, at their meeting in early November 2011, he had told her would be required to be included with her application for a working visa.

69    The exchange in which Ms Kaur agreed that “[s]urely, it seemed too good to be true” is set out above at [45] but is conveniently repeated here:

Yes. And do you recall that when you applied for the student visa, you had to provide documents in support of the application relating to your intended studies and the like? ---Yes.

Yes. Did you not think it was odd that you might have to – you weren’t asked to provide information about your intended work in respect of a work visa?---I ask him.

But he didn’t ask you to provide anything in that regard, did he?---No.

Surely, it seemed too good to be true?---Yes.

70    That exchange must be read in context. The second and third questions were, it seems to me, answered in the context of the prior questioning and prior evidence given by Ms Kaur in cross-examination that she was told by Mr Ajjan that he would seek further documents and information from her for inclusion in her application for a working visa, that he did not do that and that Ms Kaur sought to address that failure by contacting Mr Ajjan’s office from time to time after their first meeting. In responding “I ask him” to the second question, I understand Ms Kaur to have meant she had attempted to chase up Mr Ajjan about the provision of further information. Her answer to the third question is also addressing the same subject as that raised by her answer to the second question.

71    Ms Kaur used the phrase “he did not ask me” in a response to a question asked of her very shortly before the exchange here in question. That exchange followed her evidence that she was told she would need to provide further information to accompany her application for a working visa. To that effect, Ms Kaur said (emphasis added):

You never received a response about the information that you could provide in relation to those visa requirements?---Yes.

You agree with that proposition?---Yes.

Yes?---But he did not ask me. I mean, he did not said, “Okay, you come in my office and now you complete the forms, and give me all details and fulfil the requirements.” I – I was calling him.

72    In the latter exchange, Ms Kaur was doing no more than essentially repeating her evidence given in this exchange. In both exchanges the word “ask” was directed to whether Mr Ajjan had given Ms Kaur an opportunity to provide the information sought.

73    On that analysis nothing of significance may be taken from Ms Kaur’s agreement that “[s]urely, it seemed too good to be true”. That answer may well reveal Ms Kaur’s misunderstanding of a colloquialism employed by the cross-examiner. Beyond that, it only reveals her possible acknowledgment that it was odd that Mr Ajjan had not followed up with her to give her an opportunity to provide him the information that she understood was necessary to accompany her application for the visa. If that is a concession, it was not a concession that Ms Kaur appreciated that any visa obtained for her may be obtained illegitimately.

74    In arriving at those conclusions I have not been persuaded by the submission made by the Minister. The Minister in essence contended that what drove the primary judge to the conclusion that Ms Kaur was indifferent to Mr Ajjan’s fraud was the fact that she came to see Mr Ajjan to extend her student visa but he suggested and she agreed that she should apply for a working visa in circumstances where she was not asked to provide information about the work she proposed to do. That, so the Minister contended, was what his Honour regarded as “too good to be true”.

75    The difficulty with that submission is that the deliberative section of his Honour’s reasons does not refer to those facts nor suggest that any reliance was placed upon them in the primary judge arriving at the conclusions that he did.

76    Furthermore, the evidence does not support a finding that Ms Kaur understood that Mr Ajjan would apply for a work visa on her behalf without providing any information about her work. No such finding was made by the primary judge and no such finding should have been made in the face of Ms Kaur’s evidence of her expectation that she would be required to provide information that would accompany her application for a visa including information about work done (or to be done) in her field.

77    I turn then to the third finding in question that, from November 2011, Ms Kaur knew that her visa application contained false information but did not take steps to notify the Department. Again, with respect to the primary judge, his Honour was wrong to attribute indifference to Ms Kaur by reason of her failure to notify the Department. The finding of the primary judge did not take into account Ms Kaur’s evidence that, after learning of the fraudulent activities of S & S Migration, she attended no less than three migration agents, each of whom advised her that what Mr Ajjan had done should be addressed before the Tribunal.

78    In Kaur, the Full Court considered a similar factual scenario in which the applicant had acted on the advice of a migration agent not to withdraw an application tainted by fraud. The Full Court concluded that there was no evidence capable of supporting an inference that the failure to do so was part of some “deliberate strategy” which indicated that the applicant was indifferent to the fraud of migration agent: at [116]-[117] (Murphy, Mortimer and O’Callaghan JJ). In the present case, the available inference is that Ms Kaur did not notify the Department because she was acting on the advice of the three migration agents. That Ms Kaur received and acted upon that advice was not contradicted or challenged. Whether or not the advice was cogent, Ms Kaur’s reliance upon it should have been accepted by the primary judge as explaining why she did not notify the Department. With respect to the primary judge, his Honour wrongly concluded that Ms Kaur’s failure to notify the Department was indicative of her indifference to the fraud.

79    Each of the findings in question either constituted an erroneous factual finding or led to a flaw in the primary judge’s reasoning that Ms Kaur had not discharged her onus of demonstrating that she was not indifferent to the fraud perpetuated by Mr Ajjan. As the primary judge relied upon those findings in combination, the error made in relation to any one of the findings in question is sufficient to undermine the primary judge’s conclusion that the appellants’ onus was not discharged.

Adequacy of the Primary Judge’s Reasons

80    Put shortly, I am not satisfied that the reasons of the primary judge were flawed to a degree that would justify the appellants’ second ground of appeal. In Kaur at [166]-[191], the Full Court provided a detailed summary of the principles pertaining to the ground of inadequate reasons. It is not necessary to recount those authorities or embark on a lengthy exposition of principles. Adopting the authorities referred to in Kaur, I consider that the primary judge’s reasons sufficiently explained the basis for his Honour’s conclusion that Ms Kaur had not discharged the onus of proving she was not indifferent to the fraud of Mr Ajjan. Although I have found that the primary judge erred in several important respects, and at times, with respect, the reasons could have been expressed more cogently, I consider that the rationale of the primary judge was sufficiently exposed. Accordingly, I am not persuaded that the reasons of the primary judge were so inadequate that they constituted a failure to lawfully discharge the judicial obligation to give reasons.

Conclusion

81    It follows that his Honour’s dismissal of the appellants’ application for judicial review and a declaration should be set aside. All parties submitted that in that circumstance, the matter should be remitted to the FCCA for redetermination. I will make those orders and also orders that the Minister pay the appellants’ costs on the appeal and those before the FCCA.

Associate:

Dated:    27 August 2021

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