Federal Court of Australia
Chen v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1305
ORDERS
DATE OF ORDER: |
THE COURT ORDERS THAT:
1. The first appellant is appointed as the litigation representative of the third and fourth appellants pursuant to r 9.63 of the Federal Court Rules 2011 (Cth) (2011 FCRs).
2. The requirements of rr 9.63 and 9.64 be dispensed with pursuant to r 1.34 of the 2011 FCRs.
3. The appeal be dismissed.
4. The first and second appellants pay the first respondent’s costs, as agreed or taxed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
GRIFFITHS J:
1 This appeal is from a judgment and orders dated 7 May 2021 by the Federal Circuit Court of Australia (FCCA).
2 The grounds of appeal include claims of apprehended bias on the part of the primary judge, misconstruction and misapplication of s 98 of the Migration Act 1958 (Cth), failure to take into account relevant information, considering extraneous information and procedural unfairness. A claim of Wednesbury unreasonableness was not pressed.
3 For the following reasons, the appeal will be dismissed.
Summary of background facts
4 On 11 May 2017, the Minister’s delegate cancelled the first appellant’s Subclass 457 (Temporary Work (Skilled)) visa under s 109(1) of the Act. The cancellation decision was based upon a finding that the International English Language Testing System (IELTS) test report relied upon by the first appellant in applying for the visa had been sat not by him but by an imposter. Particulars of the alleged non-compliance with provisions concerning the supply of incorrect information and bogus documents (ss 101(b) and 103 respectively) were provided to the first appellant on 31 March 2017. His representative sent a response to the notice in the form of written submissions dated 24 April 2017.
5 The first appellant (and three members of his family) sought a review of the delegate’s decision in the Administrative Appeals Tribunal (AAT). The first appellant consented to be the litigation representative for his children, the third and fourth appellants.
6 The AAT affirmed the visa cancellation decision. Its essential reasons for doing so may be summarised as follows. After noting that the visa cancellation power under s 109 is conditional on the Minister issuing a valid notice to the visa-holder under s 107 of the Act, which contains particulars of the alleged non-compliance, the AAT explained why it considered that the notice provided to the first appellant met the requirements of s 107.
7 The AAT then addressed the question whether the particulars of the alleged non-compliance as set out in the notice were in fact established. The AAT said that it had had regard to relevant evidence before it, which it described at [22] of its reasons for decision. It is desirable to set out that paragraph:
In the written response to the notice, the representative stated that the applicant applied for the Subclass 457visa through an agent to whom he paid RMB400,000. It was stated that all the applicant was asked to provide was his passport and residential information, and that the applicant had no knowledge of the information provided on his behalf in the application form. It was stated that the applicant has never seen the copy of the IELTS test report provided to the Department in support of the 457 visa and that the applicant only came to realise what the agent had done after receiving the Department’s notice. The representative submitted that s.99 of the Act should not apply to the applicant as he could not be deemed to have given, or caused to be given, the information and/or documents in relation to his 457 and other visa applications. It was submitted that the applicant is a victim of crime who has been cheated and misled by the agent who organised to provide incorrect information and a bogus document. It was noted that the applicant is considering legal action against the agent in Australia.
8 The AAT noted the first appellant’s evidence that he did not make any inquiries of his agent and relied upon the agent’s statement that he would take care of everything. At [24] the AAT said:
The Tribunal expressed to the applicant that RMB400,000 was a large sum of money, to which he agreed, and asked the applicant whether he had made enquiries about the requirements of the work visa and whether he would qualify for such a visa before agreeing to pay such as large sum. In response, the applicant stated that he was informed by the agent that if he paid, he could get a visa to work overseas. He stated that he did not make enquiries of the agent about the requirements or check the application that was being lodged on his behalf because the agent informed him that everything would be taken care of. The applicant stated that the same agent had assisted other friends to obtain visas, so he trusted the agent.
9 The AAT noted at [26] that, when it put to the first appellant that it appeared that incorrect information had been given in his visa application about who sat the IELTS test, the first appellant said that he was in China at the time and was not aware of Australia’s laws. The AAT noted at [27] that the first appellant did not dispute that an imposter, and not himself, had sat the test.
10 Paragraphs 28 and 29 of the AAT’s reasons for decision should be set out in full as they are relevant to the issue whether the AAT misconstrued and misapplied s 98 of the Act:
28. The Tribunal has considered the representative’s submission that s.99 should not apply to the applicant as he had no knowledge of the information or documents that were provided with the Subclass 457 visa application and that he cannot be deemed to have given, or caused to be given, as it was the former agent who provided the incorrect information and/or bogus document. The Tribunal notes however that it is not necessary to establish that the applicant had knowledge that incorrect information or a bogus document had been provided by the agent for s.109 to be engaged. Section 98 of the Act states that if the applicant did not fill in his application form, he is taken to do so if he causes it to be filled in or if it is otherwise filled in on his behalf. In this case, the applicant engaged an agent, to whom he paid a large sum of money, to lodge on his behalf a work visa to Australia. Section 99 of the Act relevantly provides that any information that is given on an applicant’s behalf in relation to an application for a visa, as was done in this case, is taken, for the purposes of s.100 and s.101(b) to be in answer to a question. Section 100 provides that an answer to a question is incorrect even though the person who gave or provided the answer, or caused the answer to be given or provided, did not know that it was incorrect. Furthermore, s.111 of the Act states that cancellation provisions apply whether or not the non-compliance was deliberate. Accordingly, the applicant’s claim to have had no knowledge of the information or documents provided, and that he would not have authorised the agent to do this had he known it was unlawful, does not assist the applicant in this case.
29. On the evidence before it, the Tribunal finds that the information given in the visa application form about the applicant having sat an IELTS test is incorrect. Accordingly, the applicant has not complied with s.101(b) as described in the notice. The Tribunal further finds that the IELTS test report provided with the application is a bogus document, as defined in s.5(a) of the Act, because the Tribunal reasonably suspects, on the evidence before it, that the document purports to have been, but was not, issued in respect of the applicant. Accordingly, the applicant has not complied with s.103 as described in the notice.
11 After explaining why it rejected the first appellant’s submission that s 99 did not apply to his circumstances and why the first appellant’s lack of knowledge of the unlawful conduct was not relevant having regard to s 100, the AAT concluded that the information regarding who sat the IELTS test was incorrect and that the first appellant had not complied with s 101(b). Furthermore, the AAT found that the test report was a bogus document, as defined in s 5(a) of the Act, and found that s 103 applied. The AAT concluded that there had been non-compliance with both ss 101 and 103 in the way particularised in the s 107 notice.
12 Having found that the particulars of the alleged non-compliance as set out in the s 107 notice were in fact established, the AAT then addressed the question whether the visa should be cancelled, acknowledging that that was a discretionary matter and was guided by a requirement to have regard to the considerations specified in reg 2.41 of the Migration Regulations 1994 (Cth). The AAT gave extensive reasons for concluding that the visa should be cancelled, which reasons extend from [31] to [71] of its reasons for decision.
13 Relevantly, at [44], the AAT said that it considered it “plausible” that the first appellant was not aware that incorrect information and a bogus document had been provided by the agent in applying for the Subclass 457 visas. The AAT added at [44], however, that it considered that the first appellant “himself made limited efforts to query the agent about the requirements for a work visa and merely handed over a large sum of money for the agent to take care of things and obtain the work visa as he had done for the applicant’s friends”. This then informed the AAT’s conclusion at [45] that, while the first appellant may not have been aware of the non-compliance at the time it occurred, the AAT did “not consider the applicant’s conduct at the time of the non-compliance to be entirely blameless”. Accordingly, the AAT stated that it gave “limited weight” to this consideration in determining whether or not to cancel the visa in its discretion.
14 The issue of whether or not the first applicant had knowledge of the agent’s alleged fraudulent conduct was revisited by the AAT at [69]-[71] of its reasons for decision, which all relate to the issue whether the AAT should determine in its discretion not to cancel the visas despite the incorrect information having been provided. Those paragraphs are as follows:
69. At the hearing, the Tribunal noted that the applicant has been on notice, at least since the issuing of the notice in March 2017, a period of some three years, that incorrect information and a bogus document had been provided with his Subclass 457 visa application. The Tribunal further noted in the response to the Department, in April 2017, it was claimed that the applicant was a victim of crime and is considering taking legal action, but there is no evidence before the Tribunal which indicates that the applicant has taken any civil or other action against the agent, or that the agent's conduct has been reported to the police or the OPP. The Tribunal expressed its doubt that the applicant would take any action against the agent given he has not done so in the last three years. The Tribunal expressed its concern that, if the applicant genuinely believed that he had been defrauded and is a victim of crime then he would have taken some action against the agent and/or agency since finding out about the fraud, which he claims to have only become aware of in March 2017. In response, the applicant stated that he did not have much evidence on his own and that he and another person assisted by the same agent could combine their cases together. Neither the applicant nor the representative could inform the Tribunal whether the agent was a registered migration agent.
70. Whether the applicant decides to pursue an action or file a complaint against the former agent is a matter for the applicant. The Tribunal has limited evidence before it to make any conclusive findings on the conduct of the former agent and the applicant's knowledge, or otherwise, of the agent's alleged fraudulent conduct. As explained to the applicant at the hearing, his decision to pursue an action against the agent does not mean that the visa cannot be cancelled. The Act provides for cancellation of a visa where non-compliance has occurred, even if he had no knowledge of, or was not complicit in, the non-compliance.
71. In the exercise of its discretion, the Tribunal gives limited favourable weight to the claim that the applicant is a victim of crime.
FCCA proceedings summarised
15 The hearing in the FCCA took place by video link on 7 May 2021. The appellants were represented by the same solicitor who appeared for them in the appeal. Both the appellants and the Minister filed outlines of written submissions in advance of the FCCA hearing.
16 The key relevant features of the hearing, as revealed by the transcript (a copy of which was in evidence) may be summarised as follows.
17 First, the appellants’ representative attempted to rely upon an affidavit dated 4 December 2020 by the first appellant. The first appellant deposed that he met a representative of the migration agent in China in the second half of 2013 and was told that they could help him get a visa to go to Australia. He further deposed that the migration agent’s representative never explained to him the content of the visa application nor did she mention the English requirement as being essential. He added that, after being granted the visa in mid-2014 he came to Australia and then almost a year later applied for his wife and two children to come here. In the second half of 2015, the first appellant’s migration agent informed him that he could apply for a permanent visa, and he paid $8,000 to the migration agent for this purpose. Subsequently, he was told by his migration agent that his permanent residence visa application had been refused. He later received a notice of cancellation of the Subclass 457 visas. The first appellant deposed that he had tried to have his migration agent explain why the visas had been cancelled and that he was concerned that he was a victim of the agent’s “criminal conduct”.
18 The appellants’ legal representative was asked several times by the primary judge to show how the affidavit was relevant in establishing jurisdictional error, having regard to the nature of the judicial review proceeding. There were several exchanges between the representative and the primary judge on the question whether the affidavit was inadmissible because it went to the merits, as opposed to jurisdictional error. As best can be understood, the legal representative appeared to believe that the affidavit was admissible because case management orders had been made which directed the applicants to file and serve any affidavit containing any additional evidence upon which they relied.
19 The primary judge ruled that the affidavit was inadmissible on the ground that it was “clearly irrelevant”. The appellants challenge that ruling under ground 2 of the notice of appeal.
20 The transcript then reveals that the primary judge invited the appellants’ legal representative to address each of the six grounds in the amended originating application, with a particular focus on why the Court should find that the appellants had an arguable case of jurisdictional error in respect of each of the grounds. In brief, the six grounds were as follows:
(a) The AAT erred in finding that s 98 of the Act applied in circumstances where the first appellant was a victim of a criminal offence committed by his agent contrary to s 6 of the Crimes Act 1914 (Cth) (which was later corrected by the appellants’ legal representative to be a reference to s 409 of the Criminal Code (WA)).
(b) The AAT erred in finding that the first appellant’s knowledge of the incorrect information or bogus document was unnecessary for s 109 to be engaged because the first appellant was a victim of the agent’s crime.
(c) The AAT misconstrued s 99, together with ss 101 and 103, and failed to take into account the agent’s offence under s 6 of the Crimes Act (sic).
(d) The AAT failed to consider that the first appellant did not speak English and that the agent had not informed him of his conduct, such that it was wrong to find that the first appellant had caused the bogus document to be provided to the Department.
(e) The AAT failed to take into account relevant parts of the Code of Conduct applying to migration agents (Sch 2 of the Migration Agents Regulations 1998 (Cth)) and the requirement that the agent had to enter into a contract with the first appellant before providing him with migration assistance. If there was a contract, it was void in the light of the decision in Commercial Bank of Australia Ltd v Amadio [1983] HCA 14; 151 CLR 477.
(f) The AAT committed so many jurisdictional errors that it “disenfranchised” the first appellant’s legitimate expectation.
21 Ground 1 of the amended originating application made express reference to s 98 of the Act having been misapplied by the AAT. This ground was the subject of detailed written submissions in the appellants’ outline of written submissions. The appellants submitted that the AAT had misconstrued s 98 in finding that the first appellant had caused the bogus document to be provided.
22 The Minister’s outline of submissions below was written on the assumption that the appellants sought to avoid the application of s 98 by reference to the conduct of their migration agent. The Minister submitted at [43] of his outline of written submissions that the relevant conduct was that of the representative of the migration agent whom the first appellant had met in China in 2013. Significantly, at [43] of his submissions, in response to the appellants’ case concerning the misconstruction and misapplication of s 98, the Minister acknowledged that there was “some support in the cases for such an approach”. The Minister made express reference to Gill v Minister for Immigration and Border Protection [2016] FCAFC 142; 248 FCR 398 and Maharjan v Minister for Immigration and Border Protection [2017] FCAFC 213; 258 FCR 1. The Minister submitted that the evidence before the AAT was insufficient to establish fraud on the part of the representative of the migration agent in China so as to deflect the operation of s 98.
23 The Minister’s case before the FCCA was that, even assuming that the migration agent’s representative had acted fraudulently, this would only invalidate the Subclass 457 visa application, with the consequence that provisions such as s 48 of the Act would not apply to the appellants. It was submitted that absent a valid application for a Subclass 457 visa, there was no visa to cancel, citing Maharjan at [103]-[104]. Accordingly, the Minister submitted that if the appellants wished to rely on the Subclass 457 visa application, they were “stuck” with the impact of s 98. As will be developed further below, there is considerable force in these submissions.
24 There were multiple exchanges between the primary judge and the appellants’ representative on each of the judicial review grounds, with many interruptions from both sides. It is fair to say that the primary judge queried, in relatively strong terms, many of the submissions and statements advanced by the appellants’ representative. It is equally fair to say that this was hardly surprising given that many of the submissions and statements seem incomprehensible or unrelated to the particular ground under discussion. To illustrate the robust language used sometimes by the primary judge, it may be noted that, at one point, he described the representative’s explanation as to why he said ground 3 raised a jurisdictional fact as “just gobbledygook”, was “plain nonsense” and had no reference or bearing on ground 3. In the appeal, the Minister’s counsel described the primary judge’s style as “punchy”.
25 It is well to set out the entirety of the primary judge’s reasons for rejecting grounds 1 to 4 of the amended originating application.
GROUND 1
21 In relation to Ground 1, the Court raised with Mr Wong why it disclosed an arguable or any jurisdictional error. There was no finding by the Tribunal that the applicant had been the victim of a criminal offence, let alone offence under a particular provision and Mr Wong indicated he wanted to refer it to a different provision of the Criminal Code.
22 On no view did Ground 1 comply with Order 2 made by the registrar on 3 December 2020, nor does Ground 2 identify any arguable case of relevant error. S 98 of the Act clearly had application to the applicant. That provision refers to the consequences of steps taken by a person acting on behalf of the applicant. There can be no issue that the applicant had an agent who applied on his behalf for a visa that he took the benefit of the steps taken by the agent. There is no basis to find that the applicant was the victim of a crime and the proposition advanced does not identify any error in the conduct of the review by the Tribunal. This is not a case where there was any operative fraud upon the Tribunal by the agent. Ground 1 fails to identify any jurisdictional error.
23 No jurisdictional error is made out by Ground 1.
GROUND 2
24 In relation to Ground 2, whether or not this complies with Order 2 made by the registrar, it clearly does not identify any jurisdictional error. The Tribunal was clearly correct in identifying the consequences of s 100 of the Act. As summarised above, the Tribunal took into account the applicant’s assertions as to the absence of knowledge concerning the incorrect information and bogus document in their discretion to cancel. The tribunal correctly identified that the limited knowledge of the applicant did not mean that there was no non-compliance as alleged in the notice, because of the statutory provisions referred to by the Tribunal summarised above. The Tribunal clearly took into account the evidence advanced by the applicant in respect of his state of knowledge as well as the applicant’s assertion of ignorance in respect of the bogus document and the false answer. The victim of a crime proposition is unsupported by any such finding by the Tribunal and the bare assertion in the submission does not make out any excess of statutory power by the Tribunal in the conduct of the review or in its reasons. The Tribunal provided an evident and intelligible justification for the adverse exercise of the power to cancel, relevantly being not entirely blameless and the conduct of the applicant in relation to withdrawal of another visa application. It was not necessary for the Tribunal to find that the applicant knew that a bogus document and false answer were given to the Tribunal. The contention that this was crucial is incorrect. It was a relevant factor in the exercise of the Tribunal’s discretion that the Tribunal took into account. The adverse exercise of the discretion was open for the reasons given by the Tribunal.
25 Nothing in Ground 2 makes out any jurisdictional error.
GROUND 3
26 In relation to Ground 3, Mr Wong was asked to take the Court to where in the Tribunal’s reasons it was apparent that there had been some misconstruction or wrong interpretation of the provisions. Mr Wong was unable do so. It is apparent the Tribunal correctly identified s 99 and s 100 of the Act. There is no proper basis to find that the Tribunal misapplied the statutory provisions. The extraneous reference to an alleged offence, which is not supported by any finding, does not make out any jurisdictional error as alleged in Ground 3.
27 The proposition in the last sentence of this ground appears to advance an argument that the applicant might have been able to meet the English test requirement. That does not mean there was no non-compliance as alleged in the notice. Further, it is apparent that the applicant had limited English, which the Tribunal took into account in considering the exercise of its discretion to cancel. The Tribunal also took into account and made express reference to the applicant’s contention that he would not have permitted his agent to take forward an illegal step if he had been aware of that. Ground 3 does not identify any jurisdictional error.
GROUND 4
28 In relation to Ground 4, Mr Wong sought to develop an argument about the taking into account of an irrelevant consideration. Ground 4 does not reflect any such Ground. Insofar as Ground 4 refers to a failure to take into account the applicant’s limited English, it is apparent from the Tribunal’s reasons, as referred to above, that the Tribunal did do so. Mr Wong appears to have developed an argument said to somehow arise in relation to Ground 4 in respect of the agent’s obligations under the Migration Code, none of which are particularised and none of which are an issue raised by Ground 4. Any non-compliance with the Migration Code by the agent does not give rise to any jurisdictional error by the Tribunal. Nor, as earlier identified, is there any basis to find there was any operative fraud upon the Tribunal.
26 Shortly before the primary judge delivered his ex tempore judgment which explained why he dismissed the amended application, he asked the appellants’ representative whether there was anything he wanted to say as to why the Court should not find that there had been non-compliance with order 2 dated 3 December 2020 (which required him to file and serve an amended application with particulars). The representative said he had difficulty understanding why the amended application was non-compliant. The primary judge responded by saying that the representative had not given complete particulars in support of the arguments which were presented to the Court.
27 The primary judge delivered ex tempore reasons without calling on the Minister’s representative. After delivering his reasons for judgment, the primary judge asked the appellants’ representative whether he wanted an opportunity to put on evidence and/or obtain representation on the question whether a costs order should be made against him personally on the basis that despite the certification by the representative that there was a reasonably arguable case, the primary judge found that none of the grounds were arguable.
28 In the events that occurred, including the Minister’s representative saying that he had no instructions to seek a personal costs order, the primary judge made a standard costs order against the first appellant and his wife (the second appellant).
Grounds of appeal
29 It is desirable to set out in full the grounds of appeal as stated in the notice of appeal (which was drafted by the same legal representative, and omitting ground 4 which was not pressed):
1. Apprehended bias - elements that support the claim:
• It is biased and unreasonable for the Judge to reject Mr Chen’s Affidavit in that the additional evidence contained in Mr Chen’s affidavit was not to adduce evidence to seek merits rather it is to adduce additional evidence in accordance with the Consent Orders to demonstrate that my client is the victim of the agent’s criminal conduct as per s 409 of the Criminal Code WA and the agent’s unconscionable conduct as per the Migration Agent’s Code of Conduct that are strongly relevant to the grounds of review upon which my client propose to rely at the final Court hearing.
• It is biased and unreasonable for the Judge to not accept the evidence that my client has been defrauded by the agent which can be logically inferred from the statements provided to the AAT at the AAT hearing by my client and in his affidavit in addition to the letter I sent to the Immigration Department in 2017. The Judge’s refusal or reluctance to acknowledge the evidence can be inferred that the Judge was prejudiced with predilections even before the start of the hearing that occurred on 7 May 2021.
• Once the agent’s unconscionable conduct has been provided to the AAT, it can be deemed that the invitation to request the AAT to consider the code of conduct against the agent’s unconscionable and fraudulent conduct has been triggered, failing which has contributed to a jurisdictional error made by the AAT. Consequently, the Judge’s reluctance to acknowledge my argument that the AAT has the obligation to consider the code of conduct against the Agent is another evidence indicating that the Judge has not been impartial.
2. Failing to consider relevant information while considering extraneous information:
• The late filing of the amended application was agreed by the Consent Orders entered into between my client and the respondent on 3 December 2020. The Judge’s view that the amended application did not comply with the orders was extraneous and wrong.
• The Judge has failed to consider relevant information that the AAT was obliged to consider the agent’s conduct by referring to the code of conduct due to the reason that invitation to request the AAT to consider the code of conduct against Relevant statutory provisions the agent’s unconscionable and fraudulent conduct has been triggered once the agent’s unconscionable conduct has been provided to the AAT.
• The Judge has failed to consider my argument that the code of conduct falls within the scope of mandatory consideration as can be implied from the subject matter and purpose of the Migration Agents Regulations 1998 Schedule 2 Code of Conduct.
• The Judge has failed to consider whether the AAT has used the right rule to interpret s 98 of the Migration Act 1958 which is the main issue of the matter. As such, s 100 to a certain degree is an extraneous consideration.
• The Judge has failed to consider the well-established principle raised by me during the hearing that the Minister acknowledged in Gill that s 98 would not attach to a visa applicant in circumstances there has been fraud perpetrated on the visa applicant.
3. Unfair hearing which resulted in the failure of the Judge to follow the procedural fairness rules:
• I have been deprived of the right to present my arguments sufficiently;
• I have been deprived of the right to challenge the respondent’s positions raised in the respondent’s written submissions; and
• The Judge never questioned the respondent’s submissions or even required the respondent’s lawyer to speak during the entire hearing which can be inferred that the Judge has accepted the respondent’s written submissions even before the hearing and the Judge’s decision was made based on his predilections of the respondent's counsel rather than his impartial views on the matter.
…
The appellants’ submissions in the appeal summarised
30 Before summarising the appellants’ submissions on the three grounds of appeal, it is first appropriate to set out [9] of the appellants’ outline of submissions in full, which captures the primary thrust of the appellants’ arguments with respect to the alleged legal errors in the Tribunal’s decision (without alteration):
There is reasonable ground to believe that the Tribunal had erred in its decision due to jurisdictional error on the grounds that it used incorrect rules to interpret ss 98 and 99, that it failed to consider relevant information such as the code of conduct, the absence of a contract which can be inferred from my client’s written and oral evidence, the agent’s misconduct and its impact on the preceding provisions, the letter to the Immigration Department reporting the misconduct and the fact that my client was not required to make any inquiries as he was entitled to rely on the agent’s representations, irrespective of the amount of money that was paid for the agent’s service.
31 With respect to ground 1, the appellants submitted that the test for apprehended bias is “whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the matter”. They cited Gill in support of that test. The central test, as quoted immediately above, is undoubtedly correct (see, for example, Ebner v Official Trustee in Bankruptcy [2000] HCA 63; 205 CLR 337 and Charisteas v Charisteas [2021] HCA 29), but Gill is not an authority for that proposition. Nor is that test exhaustive (see [44] ff below).
32 The appellants correctly accepted that allegations of bias must be firmly established and “distinctly made and clearly proved”. They submitted that this high standard was satisfied in this case having regard to the primary judge’s conduct including by:
(a) ruling the first appellant’s affidavit to be inadmissible;
(b) not calling on the Minister’s legal representative;
(c) frequently interrupting the submissions of the appellants’ legal representative;
(d) the speed with which reasons for judgment were delivered; and
(e) the threat to make a personal costs order against the appellants’ legal representative and the primary judge’s criticisms of the representative’s competency.
33 The appellants contended that the affidavit which was ruled to be inadmissible was relevant and did not adduce any fresh evidence. They denied that it related to the matters of merit but was merely reinforcing previously stated facts of the fraud perpetrated on the first appellant.
34 The appellants acknowledged that the affidavit did refer to a “contract”, which had not been previously raised before the AAT. They defended the admissibility of the affidavit, however, on the basis that the orders dated 3 December 2020 specifically allowed for the filing of any additional evidence relating to a ground of review. They said that the contract met this description because it was relevant to a claim that the AAT had failed to take into account the Code of Conduct in assessing the agent’s fraudulent conduct, of which the absence of a contract was relevant.
35 The appellants contended that the primary judge’s refusal to admit the affidavit indicated that his mind was not open to persuasion and was committed to a conclusion that the first appellant was not subject to fraud and had to be held responsible for the conduct of his agent.
36 Significantly, the appellants emphasised that they did not suggest that any fraud had been perpetrated on the AAT and that it was wrong of the primary judge to say that a ground of review for fraud had been raised. Their complaint (as raised by ground 2 of the notice of appeal) was the AAT’s failure to consider that the first appellant had been subjected to fraud by the agent’s unconscionable conduct, where there was no collusion by the first appellant and, indeed, he had alerted authorities to the agent’s fraud. They submitted that although s 98 of the Act applies to “deem bogus documents supplied by the agent as authorised by the client”, this provision did not apply because of the agent’s fraud, citing the Full Court’s decision in Gill.
37 Although the FCCA transcript does not record the appellants’ representative citing Gill to the primary judge, I see no reason to doubt Mr Wong’s (the appellants’ solicitor) claim that he did mention that decision before the primary judge. This may not have been recorded in the transcript because of Mr Wong’s strong foreign accent. In any event, the Minister explicitly drew the primary judge’s attention to Gill.
38 The appellants submitted that the primary judge erred in not viewing s 98 of the Act as the focus of the matter and instead concentrated on the AAT’s application of s 100.
39 It is appropriate to set out in full [34] of the appellants’ outline of submissions, not the least to demonstrate its lack of clarity (emphasis in original):
This assertion that my client did not dispute the notice of the Tribunal’s decision should not be considered as it is extraneous information. See AB 152 [27]. My client had informed the Department as raised in my oral and written submission. Thus, the Judge’s reasons for his judgement in paragraph 29 further indicates that he failed to consider the relevant information that this issue had been promptly disputed. See AB 83 [29].
40 In support of the claim in ground 3 that the primary judge failed to provide a fair hearing, the appellants repeated and relied upon many of the matters underpinning their claim of apprehended bias. In addition they complained that their representative was not given sufficient time to put their case and that the primary judge took more than 80 days to provide a final copy of his reasons for judgment.
The Minister’s submissions summarised
41 To avoid adding unduly to the length of these reasons for judgment, I will not summarise the Minister’s submissions. They are substantially reflected in my reasons for rejecting all the grounds of appeal.
Consideration and determination
(a) Relevant legislative provisions
42 It is desirable to set out ss 48, 98, 99, 101, 103, 107, 109 and 111 of the Act, which are relevant to the exercise of the power in s 109 to cancel a visa because of the provision of a bogus document (as defined in s 5(a)).
48 Non-citizen refused a visa or whose visa cancelled may only apply for particular visas
(1) A non-citizen in the migration zone who:
(a) does not hold a substantive visa; and
(b) after last entering Australia:
(i) was refused a visa, other than a refusal of a bridging visa or a refusal under section 501, 501A or 501B, for which the non-citizen had applied (whether or not the application has been finally determined); or
(ii) held a visa that was cancelled under section 109 (incorrect information), 116 (general power to cancel), 133A (Minister’s personal powers to cancel visas on section 109 grounds), 133C (Minister’s personal powers to cancel visas on section 116 grounds), 134 (business visas), 137J (student visas) or 137Q (regional sponsored employment visas);
may, subject to the regulations, apply for a visa of a class prescribed for the purposes of this section or have an application for such a visa made on his or her behalf, but not for a visa of any other class.
(1A) A non-citizen in the migration zone who:
(a) does not hold a substantive visa; and
(b) after last entering Australia, was refused a visa (other than a refusal of a bridging visa or a refusal under section 501, 501A or 501B) for which an application had been made on the non-citizen’s behalf, whether or not:
(i) the application has been finally determined; or
(ii) the non-citizen knew about, or understood the nature of, the application due to any mental impairment; or
(iii) the non-citizen knew about, or understood the nature of, the application due to the fact that the non-citizen was, at the time the application was made, a minor;
may, subject to the regulations, apply for a visa of a class prescribed for the purposes of this section or have an application for such a visa made on his or her behalf, but not for a visa of any other class.
(1B) If:
(a) an attempt was made to remove a non-citizen from the migration zone under section 198 but the removal was not completed; and
(b) the non-citizen is again in the migration zone as a result of travel to Australia that is covered by paragraph 42(2A)(d);
then, for the purposes of this section (which applies only in respect of applications made while a non-citizen is in the migration zone), the non-citizen is taken to have been continuously in the migration zone despite the attempted removal.
Note: Paragraph 42(2A)(d) relates to the travel of a non-citizen to Australia after an attempt to remove the non-citizen has been made under section 198.
(2) For the purposes of this section (which applies only in respect of applications made while a non-citizen is in the migration zone), a non-citizen who:
(a) has been removed from the migration zone under section 198; and
(b) is again in the migration zone as a result of travel to Australia that is covered by paragraph 42(2A)(da) or (e);
is taken to have been continuously in the migration zone despite the removal referred to in paragraph (a).
Note: Paragraphs 42(2A)(da) and (e) relate to the travel of a non-citizen to Australia after the non-citizen has been removed from Australia under section 198.
(3) For the purposes of this section (which applies only in respect of applications made while a non-citizen is in the migration zone), a non-citizen who, while holding a bridging visa, leaves and re enters the migration zone is taken to have been continuously in the migration zone despite that travel.
(4) In paragraphs (1)(b) and (1A)(b):
(a) a reference to an application for a visa made by or on behalf of a non-citizen includes a reference to an application for a visa that is taken to have been made by the non-citizen by the operation of this Act or a regulation; and
(b) a reference to the cancellation of a visa includes a reference to the cancellation of a visa for which an application is taken to have been made by the operation of this Act or a regulation.
98 Completion of visa application
A non-citizen who does not fill in his or her application form or passenger card is taken to do so if he or she causes it to be filled in or if it is otherwise filled in on his or her behalf.
99 Information is answer
Any information that a non-citizen gives or provides, causes to be given or provided, or that is given or provided on his or her behalf, to the Minister, an officer, an authorised system, a person or the Tribunal, or the Immigration Assessment Authority, reviewing a decision under this Act in relation to the non-citizen’s application for a visa is taken for the purposes of section 100, paragraphs 101(b) and 102(b) and sections 104 and 105 to be an answer to a question in the non-citizen’s application form, whether the information is given or provided orally or in writing and whether at an interview or otherwise.
…
101 Visa applications to be correct
A non-citizen must fill in or complete his or her application form in such a way that:
(a) all questions on it are answered; and
(b) no incorrect answers are given or provided.
…
103 Bogus documents not to be given etc.
A non-citizen must not give, present, produce or provide to an officer, an authorised system, the Minister, the Immigration Assessment Authority, or the Tribunal performing a function or purpose under this Act, a bogus document or cause such a document to be so given, presented, produced or provided.
…
107 Notice of incorrect applications
(1) If the Minister considers that the holder of a visa who has been immigration cleared (whether or not because of that visa) did not comply with section 101, 102, 103, 104 or 105 or with subsection (2) in a response to a notice under this section, the Minister may give the holder a notice:
(a) giving particulars of the possible non-compliance; and
(b) stating that, within a period stated in the notice as mentioned in subsection (1A), the holder may give the Minister a written response to the notice that:
(i) if the holder disputes that there was non-compliance:
(A) shows that there was compliance; and
(B) in case the Minister decides under section 108 that, in spite of the statement under sub subparagraph (A), there was non-compliance – shows cause why the visa should not be cancelled; or
(ii) if the holder accepts that there was non-compliance:
(A) give reasons for the non-compliance; and
(B) shows cause why the visa should not be cancelled; and
(c) stating that the Minister will consider cancelling the visa:
(i) if the holder gives the Minister oral or written notice, within the period stated as mentioned in subsection (1A), that he or she will not give a written response—when that notice is given; or
(ii) if the holder gives the Minister a written response within that period—when the response is given; or
(iii) otherwise—at the end of that period; and
(d) setting out the effect of sections 108, 109, 111 and 112; and
(e) informing the holder that the holder’s obligations under section 104 or 105 are not affected by the notice under this section; and
(f) requiring the holder:
(i) to tell the Minister the address at which the holder is living; and
(ii) if the holder changes that address before the Minister notifies the holder of the Minister’s decision on whether there was non-compliance by the holder—to tell the Minister the changed address.
(1A) The period to be stated in the notice under subsection (1) must be:
(a) in respect of the holder of a temporary visa—the period prescribed by the regulations or, if no period is prescribed, a reasonable period; or
(b) otherwise—14 days.
(1B) Regulations prescribing a period for the purposes of paragraph (1A)(a) may prescribe different periods and state when a particular period is to apply, which, without limiting the generality of the power, may be to:
(a) visas of a stated class; or
(b) visa holders in stated circumstances; or
(c) visa holders in a stated class of people (who may be visa holders in a particular place); or
(d) visa holders in a stated class of people (who may be visa holders in a particular place) in stated circumstances.
(2) If the visa holder responds to the notice, he or she must do so without making any incorrect statement.
…
109 Cancellation of visa if information incorrect
(1) The Minister, after:
(a) deciding under section 108 that there was non-compliance by the holder of a visa; and
(b) considering any response to the notice about the non-compliance given in a way required by paragraph 107(1)(b); and
(c) having regard to any prescribed circumstances;
may cancel the visa.
(2) If the Minister may cancel a visa under subsection (1), the Minister must do so if there exist circumstances declared by the regulations to be circumstances in which a visa must be cancelled.
…
111 Cancellation provisions apply whether or not non-compliance deliberate
To avoid doubt, sections 107, 108 and 109 apply whether the non-compliance was deliberate or inadvertent.
(b) Determination of the grounds of appeal
43 It is convenient to address the grounds of appeal with reference to the three broad categories of claimed error.
(i) Ground 1 – Apprehended bias
44 As the Minister pointed out, where there is an allegation of apprehended bias it is necessary for an appeal court to determine that matter first because, if the claim is made out, the appeal court should order a retrial without considering the merits of any other grounds (see Concrete Pty Ltd v Parramatta Design and Developments Pty Ltd [2006] HCA 55; 229 CLR 577 at [116]-[117] per Kirby and Crennan JJ).
45 The test for apprehended bias on the part of a judicial officer is well settled: it is whether a fair-minded lay observer with knowledge of relevant matters might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to determine (see Ebner and ALA15 v Minister for Immigration and Border Protection [2016] FCAFC 30). In ALA15, the Full Court (Allsop CJ, Kenny and Griffiths JJ) set out some of the relevant principles at [35]-[36] (emphasis in original and denotes defined expression):
35 Although the application of the apprehended bias test can give rise to difficulties, the parties were in substantial agreement as to the primary elements of the test. That is hardly surprising because the test is relatively well settled. It is whether a fair-minded and appropriately informed lay observer might reasonably apprehend that the Court might not bring a fair, impartial and independent mind to the determination of the matter on its merits (see, for example, R v Watson; Ex parte Armstrong [1976] HCA 39; (1976) 136 CLR 248; Livesey v New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288; Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 (Ebner); Concrete Pty Limited v Parramatta Design and Developments Pty Ltd [2006] HCA 55; (2006) 229 CLR 577 and British American Tobacco Australia Services Limited v Laurie [2011] HCA 2; (2011) 242 CLR 283 (British American Tobacco)).
36 Other relevant principles are:
(a) at least the following two steps are involved in a case involving an allegation of apprehended bias:
(i) there must be an identification of what it has said might lead a judge to decide a case other than on its legal and factual merits; and
(ii) there must be an articulation of the logical connection between the matter and the feared deviation from a course of deciding a case on its merits (Ebner at [8] per Gleeson CJ, McHugh, Gummow and Hayne JJ);
(b) an allegation of bias against a judge on the basis of prejudgment is a serious matter not the least because it carries with it the suggestion that the judge has failed to honour his or her judicial oath as such might be questioned by the fair-minded observer. As is also the case where such an allegation is made against an administrative officer, the allegation must be “distinctly made and clearly proved” (Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507 (Jia Legeng) at [69] per Gleeson CJ and Gummow J); and
(c) as noted above, the test assumes that the hypothetical fair-minded lay observer is to be attributed with appropriate knowledge of relevant matters so as to be in a position to make a reasonably informed assessment of the likelihood of apprehended bias (see, for example, Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 at [13] per Gleeson CJ, Gaudron, McHugh and Gummow and Hayne JJ and at [53] per Kirby J; British American Tobacco at [47]-[48] per French CJ and at [144] per Heydon, Kiefel and Bell JJ and Isbester v Knox City Council [2015] HCA 20 at [23] per Kiefel, Bell, Keane and Nettle JJ and at [57] per Gageler J).
46 ALA15 has been applied in many subsequent Full Court decisions, including AXQ15 v Minister for Immigration and Broder Protection [2016] FCAFC 73; Zaburoni v Minister for Immigration and Border Protection [2017] FCAFC 205; 256 FCR 197 and MZAOL v Minister for Immigration and Border Protection [2019] FCAFC 68. The principles identified in ALA15 are consistent with the following recent observations of the High Court in Charisteas at [11] and [12] regarding the test for apprehended bias in relation to a judicial officer (footnotes omitted):
11 Where, as here, a question arises as to the independence or impartiality of a judge, the applicable principles are well established, and they were not in dispute. The apprehension of bias principle is that “a judge is disqualified if a fair‑minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide”. The principle gives effect to the requirement that justice should both be done and be seen to be done, reflecting a requirement fundamental to the common law system of adversarial trial – that it is conducted by an independent and impartial tribunal. Its application requires two steps: first, “it requires the identification of what it is said might lead a judge ... to decide a case other than on its legal and factual merits”; and, second, there must be articulated a “logical connection” between that matter and the feared departure from the judge deciding the case on its merits. Once those two steps are taken, the reasonableness of the asserted apprehension of bias can then ultimately be assessed.
12 As five judges of this Court said in Johnson v Johnson, while the fair‑minded lay observer “is not to be assumed to have a detailed knowledge of the law, or of the character or ability of a particular judge, the reasonableness of any suggested apprehension of bias is to be considered in the context of ordinary judicial practice”.
47 It is equally well established there is no requirement that a judge have an empty mind, rather the question is whether the judge is open to persuasion. It is also well settled that excessive intervention by a judge, including making unreasonable comments about counsel’s capacity, may give rise to apprehended bias. On the other hand robust questioning of counsel is generally acceptable unless it is excessive in the particular circumstances (see CDD15 v Minister for Immigration and Border Protection [2017] FCAFC 65; 250 FCR 587 at [82] per Perram, Robertson and Wigney JJ and CMU16 v Minister for Immigration and Border Protection [2020] FCAFC 104; 277 FCR 201 at [49]-[55] per Jagot, Yates and Stewart JJ).
48 In the particular circumstances here, the appellants must demonstrate that the reasonably informed bystander might reasonably apprehend that the primary judge might have been so committed to a particular conclusion as to be incapable of alteration, whatever evidence or arguments were presented.
49 Applying those principles to the present proceeding, it is plain from the transcript that there were several blunt exchanges and many interruptions on the part of both the primary judge and the appellants’ legal representative. The primary judge’s remarks were not, however, excessive or unwarranted, even if some people might regard some of them as insensitive, “punchy” and poorly expressed. The reasonable bystander is unlikely to view those matters as manifesting prejudgment or a closed mind on the part of the primary judge.
50 It is important to bear in mind that the primary judge did not conduct the hearing with an empty mind. He had had the opportunity to review all the documents filed in the Court, including the parties’ outlines of written submissions. A reasonable bystander would appreciate that, having regard to the terms of the amended originating application and the outlines of written submissions, it was open to the primary judge to have formed a preliminary view at the outset of the hearing that it was not a strong judicial review challenge. Indeed, parts of it were barely arguable. Nevertheless, the appellants’ legal representative had the opportunity to make oral submissions in respect of each of the grounds of judicial review with the object of persuading the primary judge to the contrary.
51 Similarly, I do not consider that the reasonable bystander would view the primary judge to have manifested apprehended bias merely because his Honour did not call on the Minister’s counsel and proceeded to deliver an ex tempore judgment. As previously mentioned, the primary judge had had the opportunity to read the Minister’s written outline of submissions which were filed in advance of the hearing and he plainly regarded them as persuasive. Conversely, the appellants’ outline of submissions provided the platform for the primary judge’s interrogation of the appellants’ legal representative so as either to expose the weakness of aspects of the appellants’ case or provide an opportunity to the representative to elaborate upon and defend his submissions. It was open to the primary judge to determine whether anything had been put by the appellants’ legal representative in oral argument to warrant the primary judge providing an opportunity for the Minister’s counsel to supplement his written submissions with oral submissions.
52 As to the fact that the primary judge delivered an ex tempore judgment, while it is desirable to take a cautious view when adopting that course, a reasonable bystander would appreciate that it was open to the primary judge in the circumstances of this matter to adopt that course (see Bryant v United Voice NSW Branch [2019] FCA 460 at [20] per Bromwich J).
53 The so-called “threat” to make a personal costs order against the appellants’ legal representative takes the matter no further. A reasonable bystander would appreciate that the primary judge was entitled to raise that possibility, having regard to the weakness of the appellants’ case. There are two additional important considerations which a reasonable bystander would take into account. First, the primary judge raised with the legal representative whether he wished an opportunity to put on evidence and/or submissions relating to that possibility. Secondly, and perhaps most significantly, the primary judge did not proceed to make such an order, particularly when the Minister’s counsel made clear that he had no instructions to seek such an order.
54 Finally, it is important in a case such as the present to maintain a clear distinction between a legitimate claim of apprehended bias as opposed to a litigant’s perhaps understandable dissatisfaction with an adverse outcome. A litigant’s dissatisfaction with the merits of the outcome of litigation can misguidedly be translated into a tenuous claim of apprehended bias on the part of the decision-maker. As was made clear in ALA15, an allegation of bias against a judge on the basis of prejudgment is a serious allegation and it needs to be “clearly proved” (at [36](b)). That requirement has not been satisfied here.
(ii) Ground 2 – Relevant and irrelevant considerations and the meaning and effect of s 98 of the Act
55 This ground appears to raise four separate complaints. It is convenient to address each of them in turn.
56 The first complaint relates to the primary judge’s rejection of the admissibility of the first appellant’s affidavit. For the following reasons, this complaint is rejected. First, and importantly, given that the proceeding below was in the nature of a judicial review challenge and the affidavit had not been put into evidence before the AAT, it is difficult to see why it was admissible evidence in the FCCA proceeding. Ordinarily, in a judicial review case, the evidence is confined to that which was before the decision-maker whose decision is the subject of judicial review challenge. As the AAT noted at [70] of its reasons for decision here, it had only limited evidence before it regarding the claim of fraud and the first appellant’s knowledge of any such fraud. The position might be different if the affidavit was relied upon in the FCCA to make good a claim, for example, of procedural unfairness in the AAT, in which case the judicial review Court is not confined to the material which was before the AAT. But no such ground was raised in the amended originating application below which rendered admissible evidence which was not before the AAT.
57 Secondly, as is evident from my summary of that affidavit at [17] above, parts of it were relevant to the issue of the extent of any complicity by the first appellant in the agent’s fraud. The evidence may have been relevant and admissible if the appellants had claimed that the agent’s conduct not only affected the appellants, but constituted a fraud on the delegate or the AAT, with the consequence that the whole visa process should be undone (see further below my discussion of Gill and related cases which address that issue). In the circumstances, however, where the appellants’ legal representative in the FCCA expressly disavowed any claim of fraud on the AAT and no relief was sought below to undo the whole visa process, the primary judge did not err in rejecting the affidavit as irrelevant.
58 The second complaint is that the primary judge failed to take into account the Code of Conduct in assessing the agent’s conduct. That complaint cannot be sustained having regard to the primary judge’s explicit reference to the Code of Conduct in his reasons for judgment concerning ground 4 of the amended originating application (see [25] above). It might also be noted that the relevance of the Code of Conduct was not raised by any party in the AAT.
59 The third complaint, which the appellants describe as “the main issue of the matter”, relates to the proper construction of ss 98 and 99 of the Act. It overlaps with the fourth complaint raised under ground 2, namely whether the primary judge failed to apply Gill. As noted above, it may be accepted that the appellants’ representative raised Gill and the Minister also drew the primary judge’s attention to the possible relevance of Gill and Maharjan and sought to distinguish those cases. It is appropriate to say something more about Gill and some of the subsequent cases in which it has been applied.
Gill
60 The central issue in Gill was whether the public interest criterion in cl 4020(1) of Sch 4 to the Regulations applied so as to justify the refusal to grant a visa where a migration agent had provided false information to the Department concerning the visa applicant’s skills. The issue arose in the context of determining whether the visa application which had been lodged was a “valid” application (within the meaning of s 46 of the Act) so as to attract the bar imposed by s 48 on the making of another visa application. That is a very different context to the present proceeding, where the appellants do not seek any relief regarding the validity of their visa applications. On the contrary, their judicial review challenge to the AAT’s decision affirming the delegate’s decision to cancel their visas was necessarily predicated on the basis that their Subclass 457 visa applications were valid and that the decisions to grant them such visas were also valid.
61 In Gill, the Minister explicitly acknowledged that s 98 would not attach to a visa applicant in circumstances where fraud had been perpetrated on that person (see at [35]).
62 The essence of the Full Court’s reasoning in allowing the appeal in Gill is reflected at [49] to [51] (emphasis added):
49 As emphasised above, the primary judge found that it was not possible for him to make a positive finding that the appellant was complicitous or colluded in the agent’s fraud. Rather, the primary judge proceeded on the basis that his lesser findings relating to the appellant’s “indifference” and the general authority he gave to his agent meant that the appellant had to bear responsibility for the agent’s fraudulent conduct. In our respectful view, this approach fails to recognise and give effect to the relevant 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. This distinction is equally important in the context of considering the legal significance of any general authority given to a migration agent by a visa applicant. In our respectful view, the primary judge erred in failing to recognise and give effect to the significance of this distinction.
50 We accept the appellant’s submission that the operation of provisions such as ss 45 to 48 and 98 of the Migration Act and PIC 4020 can be affected by the fraudulent conduct of a migration agent in circumstances where the visa applicant has not colluded in that fraud and there is no evidence to support a finding that the visa applicant was indifferent as to whether the agent used unlawful or dishonest means to obtain a visa. As noted above, the Minister ultimately did not contest that s 98 would not apply to a visa applicant who has relied upon a migration agent to fill out a visa application form and the agent perpetrates a fraud on the visa applicant. In our view, that acknowledgment was properly given.
51 It is entirely understandable that a person in the position of the appellant, who did not speak good English and who had no knowledge of the Australian legal or migration systems, which are technical and complex, would retain a registered migration agent to assist him in obtaining a visa and to rely upon the agent taking reasonable and proper steps in seeking to obtain the grant of a visa. Significantly, there was no finding by the primary judge that the appellant’s “indifference” as to how his agent carried out his retainer to assist the appellant in obtaining a visa extended so far as to countenance or authorise the agent engaging in fraud or dishonesty. The position would be different if there was such a finding and that finding was one which was reasonably open. Whether or not there should be such a finding in this case will be a matter to be determined on the remittal and in the light of all the relevant evidence.
63 It is important to note that these extracts from Gill are directed to the central issue in that case, namely whether a valid visa application had been lodged. Unlike the position here, there was no issue in Gill regarding the operation of ss 107 and 109, provisions which are at the heart of the proceeding here. There are additional distinguishing features between Gill and the present proceeding, which I will explain at [70] ff below.
Maharjan
64 Maharjan is another case where the appellants sought to avoid the operation of s 48 by arguing that the effect of their migration agent’s conduct was to vitiate their visa application. The Full Court emphasised that, for that argument to succeed, the appellants had to demonstrate that there was a fraud on the administrative decision-maker. At [102] and [103] the Full Court said (emphasis added):
102 … The appellants will be required to prove the fraud (see SZSJA v Minister for Immigration and Border Protection [2013] FCAFC 158; 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] FCAFC 146; 216 FCR 445 at [51], a heavy burden.
103 If the appellants establish those matters, the second question for the Federal Circuit Court will be how, if at all, the fraud which is proven to have occurred, affected the processes by which the appellants’ visa applications were to be considered: see Minister for Immigration and Citizenship v SZLIX [2008] FCAFC 17; 245 ALR 501 at [33]. That is because, as the High Court said in SZFDE and Full Courts of this Court have reiterated, there must also be a fraud “on” the administrative decision-maker, in the sense of the fraud affecting that decision-maker’s statutory functions and obligations, or adversely affecting, disabling or stultifying the processes which the Act prescribes. In SZFDE the effect was on the Tribunal’s hearing function. It may well be that an applicant cannot establish this requirement on the facts: see for example Minister for Immigration and Citizenship v Lu [2010] FCAFC 147; 189 FCR 525 at [38] and SZLHP v Minister for Immigration and Citizenship [2008] FCAFC 152; 172 FCR 170 at [13]-[18] (Branson J), [27] (Lindgren J), [51] (Graham J).
65 In Maharjan, the Full Court further pointed out at [104] that the scheme of Pt 2 of the Act is premised upon the existence of a valid visa application.
Kaur
66 In Kaur v Minister for Immigration and Border Protection [2019] FCAFC 53; 269 FCR 464 the Full Court (Murphy, Mortimer and O’Callaghan JJ) made the following apposite observations regarding a claim that a visa applicant is the innocent victim of fraudulent conduct by a third party, emphasising the importance of the terms of the declaratory relief sought in the particular case:
52 Unlike many appeals from the Federal Circuit Court, while this appeal involves judicial review of the decision of a tribunal, the real area of controversy lies not in the content of the Tribunal’s decision, but in the terms of the declaratory relief sought by the appellants, as a consequence of the alleged fraud of S & S Migration.
53 The asserted invalidity of the first appellant’s visa application depended on whether it was affected by third party fraud, one that was not only a fraud on the appellants, but which also stultified one or more aspects of the visa application and determination process: see the High Court decision in SZFDE at [11], [28]-[37] and [47]-[55], Singh at [51]-[52] and Gill at [46]-[47] and [50]. Further, the availability of declaratory relief of the kind sought depended on the appellants (especially the first appellant) proving they were not “involved” in the fraud.
54 This fell to be decided, as the Full Court decisions disclose, by a trial on evidence about the nature of the first and/or second appellants’ involvement, if any, in the fraud of their migration agent. The focus at trial was properly on the conduct of the first appellant, as the primary applicant, the person with more functional English and, on the evidence, the person who was primarily involved in retaining and consulting three successive migration agents, and in communicating with the Department and the Tribunal.
67 The Full Court’s statements are directed to a proceeding, unlike the present, where declaratory relief is sought with a view to declaring that fraudulent conduct by a third party has vitiated a visa application.
68 The primary judge made no explicit reference to either Gill or Maharjan, notwithstanding that these authorities were brought to his attention. As previously mentioned, the Minister was not called upon by the primary judge and therefore made no oral submissions. It might also be noted that Gill has been applied not only in Maharjan and Kaur, but also in Katragadda v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 143. Similar principles were also applied by the Full Court in Singh v Minister for Immigration and Border Protection [2016] FCAFC 141; 247 FCR 554 which was heard at the same time as Gill. Like Gill, Singh involved a claim for declaratory relief to the effect that a third party’s fraud vitiated a visa application, with the consequence that the bar in s 48 did not apply.
69 Turning now to the present appeal, in the light of the parties’ submissions concerning Gill made in the FCCA, it is difficult to understand why the primary judge did not address the potential relevance of Gill. The answer may well lie in the fact that the primary judge emphasised that there was no allegation of fraud on the AAT. In other words, the appellants were not seeking a ruling that their Subclass 457 visa applications were invalid. In any event, the appellants raise no claim that the primary judge’s reasons for judgment are legally deficient in their own right (as opposed to relying upon the speed with which they were delivered as supporting the claim of apprehended bias).
70 For reasons which I will now develop, there is no appealable error relating to Gill. One difficulty which confronts the appellants is the concession made by their legal representative in the FCCA that there was no allegation that the migration agent’s fraud had affected the delegate or the AAT, as opposed to the appellants. This serves to underline the fact that, unlike Gill, the appellants did not seek to establish that their Subclass 457 visa applications were invalid. At no point have the appellants sought relief with a view to avoiding the bar imposed by s 48 of the Act (the terms of which are set out at [42] above), which applies where a visa has been cancelled. The orders sought by them in their amended originating application in the FCCA were confined to an order that the AAT’s decision be quashed and a writ of mandamus directed to the AAT requiring it to determine their application according to law. No declaration was sought to the effect that their Subclass 457 visa applications were invalid because one or more of them was the innocent victim of fraudulent conduct by their migration agent.
71 In oral address, Mr Wong sought to clarify the appellants’ argument with respect to s 98 and Gill as follows (emphasis added):
MR WONG: Your Honour, to my knowledge – to my knowledge you are correct. Okay? I mean, that – the reason they did not mention section 98 and 99, they only say there’s noncompliance occurred; “there’s a ground to cancel your visa”. All right. That’s – that’s what ..... is about. Right. So therefore the Department has to cancel my client’s visa and the secondary visa based on section 109.
HIS HONOUR: How can then – if there’s no reliance upon section 98, and you appear to accept that now, in the delegate’s reasons for decision, there’s no reliance upon it, how can any error in relation to 98 be material?
MR WONG: Yes, that’s my understanding, because the reason they cancel my client’s visa is based on the noncompliance – the noncompliance, because they deemed it is my client who has provided the bogus document. This is cause for the Department to cancel my client’s visa, right, so therefore if we can undo the section 98 and 99, so therefore they won’t – there will be no ground for the Department to invoke section 109 to cancel.
72 The logic of this argument appears to be as follows. Applying Gill, if the deeming provisions in s 98 and 99 do not apply to the first appellant because he is an innocent victim of fraud perpetrated on him by his migration agent, then he cannot be said to have provided the bogus IELTS test report to the Department. This document, and the incorrect information in the first appellant’s application form relating to the IELTS test, were filled out and provided by the migration agent to the Department directly. The appellants argue it therefore follows that there was no ground for the Department to cancel his visa in accordance with ss 107 and 109, as the first appellant himself had not provided incorrect information to the Department in breach of ss 101(b) and 103, which were the grounds for cancellation in the Department’s cancellation decision dated 11 May 2017.
73 To make good this argument, the appellants place great emphasis on the final two sentences of [50] in Gill (see [62] above). However, the Full Court’s statements need to be read in context. As is made clear by what the Full Court said at [51], where a visa applicant seeks a ruling that a visa application is vitiated by an agent’s fraud, it is necessary to determine the nature and extent of the visa applicant’s complicity in, or indifference to, how the agent carried out his or her instructions concerning the visa application. In Gill, the evidence on that matter was left unclear and this was one of the matters which the Full Court identified as having to be addressed on the remittal and in the light of all the relevant evidence (see at [51]).
74 The position is different here. Assuming, contrary to the above, that Gill applied, it is notable that at [70] of its reasons for decision, the AAT explicitly stated that there was “limited evidence” to make any conclusive findings on the conduct of the agent and the first appellant’s knowledge, or otherwise, of the agent’s alleged fraudulent conduct. To the extent that there was some such evidence, although the AAT acknowledged at [45] that the first appellant may not have been aware of the non-compliance at the time it occurred, the AAT did not consider the first appellant’s conduct at the time of non-compliance “to be entirely blameless”. It is evident that, in expressing these findings, the AAT was referring to what it had said at [34] of its reasons for decision. There, the AAT said that although it was plausible that the first appellant was not aware of the incorrect information having been provided regarding the IELTS test in the visa application form, only limited weight was given to this factor in the first appellant’s favour in considering exercise of the discretion whether or not to cancel the visa. This was because the AAT found “the applicant appears to have made limited efforts to check or verify the information being provided on his behalf”. This was in circumstances where the first appellant had paid a substantial sum of money to the agent, which caused the AAT to state that it expected “that the applicant would have made more of an effort to check what information was being provided on his behalf”.
75 I also accept the Minister’s submission that ss 98 and 99 of the Act applied in circumstances where the appellants were relying upon the Subclass 457 visa applications. This reliance was essential in circumstances where the subject of their challenges related to the cancellation of those visas. True it is that Gill is authority for the proposition that s 98 does not extend to a visa applicant who has relied on a migration agent to complete a visa application form where the agent perpetrates a fraud on the visa applicant and the applicant wishes to establish that the visa application itself was consequently vitiated. But the position is different in a case such as the present, where the appellants challenge the AAT’s visa cancellation decision in the context of the operation of provisions such as ss 107 and 109 of the Act. As Mortimer J stated in SZVBN v Minister for Immigration and Border Protection [2017] FCAFC 90 at [215]:
The operation of s 98 does not extend to a visa applicant who had relied on a migration agent to complete a visa application form on her or his behalf where the migration agent perpetrates a fraud on the visa applicant: see Gill v Minister for Immigration and Border Protection [2016] FCAFC 142 at [50]. However s 98 does operate to fix a non-citizen with the consequences of a migration agent filling out a form with incorrect or incomplete information that may result in visa cancellation, or conversely, consideration and refusal of a visa application a non-citizen did not, in fact, authorise: see SZGJO v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 393 at [16], (Bennett J), referring to the Full Court decision in NAWZ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 199.
Although Mortimer J was in dissent in that decision, her Honour’s views on s 98 are not inconsistent with anything said by the majority in that case.
76 The operation of ss 98 and 99 might have been mitigated in this case if the discretion under s 109(1) not to cancel the visas had been exercised in the appellants’ favour by the AAT. The AAT concluded, however, that the discretion should not be so exercised and it gave extensive reasons for that conclusion. As the Minister correctly pointed out in the appeal, the appellants did not seek to challenge in the FCCA the AAT’s unfavourable exercise of that discretion.
77 Finally, a fundamental difficulty confronting this aspect of the appellants’ case, as pointed out by the Minister, is that acceptance of their claims regarding fraudulent conduct of the migration agent would result in the invalidation of the Subclass 457 visa applications and thereby remove an essential plank to the decisions of both the delegate and the AAT, as well as the FCCA. As Mr Hannan, the Minister’s counsel, pointed out in oral address, the transcript of the hearing before the FCCA demonstrates the primary judge’s awareness of this issue:
MR WONG: Yes, because, I mean, my client – my client has been defrauded by the..... agent.
HIS HONOUR: But that’s utterly a submission of assertion. Your client asked the agent to get a visa. He got that visa. You can’t approbate and reprobate. Your client received the visa. This was not some mission where the agent went off on his own and lodged an application for a visa that your client didn’t want. So you haven’t got some fraud on the tribunal. Is there anything else you can say in support of ground 1?
78 For these reasons, Gill and cases such as Singh, Maharjan, Kaur and Katragadda do not assist the appellants’ case.
(iii) Ground 3 – Unfair hearing in FCCA?
79 The Minister contended that grounds 1 and 3 of the notice of appeal overlapped in the sense that both were directed to an allegation of apprehended bias. I do not accept that contention. While there is some minor overlap, it is appropriate to address ground 3 of the notice of appeal as raising the limb of procedural fairness concerning the provision of a fair hearing, as opposed to the other limb, namely apprehended bias, which is squarely raised in ground 1.
80 The essential requirement of the other limb of procedural fairness is that an aggrieved litigant be given a fair opportunity to be heard. None of the matters raised by the appellants demonstrates that the primary judge did not afford them a fair hearing. In particular:
(a) I do not accept the claim that the appellants’ legal representative was deprived of a right to present his arguments sufficiently. While accepting that there were numerous interruptions by the primary judge in the course of the legal representative’s oral address, it is also notable that the primary judge repeatedly asked the representative whether there was anything else he wished to say. The claim that the representative was denied the right to present the appellants’ case sufficiently cannot be sustained when the transcript of the hearing is read as a whole.
(b) For similar reasons, there is no substance in the complaint that the appellants’ legal representative was deprived of the right to challenge the Minister’s position raised in his outline of written submissions. A copy of that outline was served on the appellants and their legal representative had an opportunity to review those submissions before the hearing. It was open to the legal representative in his oral address to say whatever he wished in response to those submissions. Procedural fairness required the primary judge to provide an opportunity for the appellants to put their case. That opportunity was afforded here. It is not unusual in litigation where the Court comes to a firm view after reading outlines of written submissions and hearing oral address from the moving party to not call upon the opposing party. That is what happened here.
(c) As to the third particular of ground 3, which relates to the allegation that the primary judge favoured the case presented by the Minister, it was open to the primary judge to form a tentative view based upon the parties’ outlines of written submissions filed in advance of the hearing. Likewise, as already explained, it was a matter for the Court to decide whether the case was an appropriate one in which the Court could proceed to deliver an ex tempore judgment without calling on the Minister’s counsel. In making that decision, there is no reason to believe that the primary judge here did not take into account the appellants’ oral arguments. It is equally plain that the primary judge was not persuaded by those arguments. To the extent that this particular complaint overlaps with the allegation of apprehended bias, I repeat and adopt what is said above on that matter.
Conclusion
81 For these reasons, the appeal will be dismissed, with costs.
I certify that the preceding eighty-one (81) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Griffiths. |
Associate:
