Ground 3: Inadequate reasons
163 To recap, this new ground contends that the Federal Circuit Court's reasons for judgment are inadequate. The appellants contend the reasons "fail adequately to identify the evidential basis for or to provide an intelligible explanation of" three core findings made by the Federal Circuit Court:
(a) The primary judge's finding that he was persuaded on the balance of probabilities that:
(i) the first appellant was aware of the contents of the February 2012 correspondence and therefore aware that she could withdraw the visa application at any time; and
(ii) the first appellant chose not to withdraw her visa application and instead waited to see if she would be " lucky enough" to be granted the visa; and
(b) The primary judge's finding that the first appellant was not a "witness of truth".
164 On that basis, the appellants contend the failure constitutes an error of law vitiating the primary judge's orders.
165 To find that a person is not "a witness of truth" is, in substance, to find the person to be a liar. In the circumstances of a court hearing, with evidence given on oath or affirmation, it is also in substance a finding of perjury. It is not a trifle. Of course, it is important that judges are free to make such findings where they are required and where they are justifiable. However, the finding must not only be justifiable, it must be justified. And the place it must be justified is in the court's reasons.
166 The parties referred to a number of cases about the obligation of a judge to give reasons. Some of the appellants' references sought to emphasise passages from previous authorities which describe the content of the obligation in very detailed and prescriptive terms. An example of such a passage relied on by the appellants is from the judgment of Nettle J in DL v The Queen [2018] HCA 26; 356 ALR 197 at [131]:
Since parties must be able to see the extent to which their cases have been understood and accepted, a trial judge will ordinarily be expected to expose his or her reasoning on points critical to the contest between the parties. This applies both to evidence and to argument. If a party relies on relevant and cogent evidence which the judge rejects, the judge should provide a reasoned explanation for the rejection of that evidence. If the parties advance conflicting evidence on a matter significant to the outcome, both sets of evidence should be referred to and reasons provided for why the judge prefers one set of evidence to the other. Similarly, while a judge is not required to deal with every argument and issue that might arise in the course of a trial, if a party raises a substantial argument which the judge rejects, the judge should refer to it and assign reasons for its rejection. And in providing reasons, the judge is required to make apparent the steps he or she has taken in reaching the conclusion expressed, for reasons are not intelligible if they leave the reader to speculate as to which of a number of possible paths of reasoning the judge may have taken to that conclusion. Failure sufficiently to expose the path of reasoning is therefore an error of law.
(Footnotes omitted.)
167 These remarks were made by his Honour in the context of an appeal from the orders of a judge sitting alone in a criminal trial, where the accused was convicted of sexual offences, and sentenced to 10 years' imprisonment. Justice Nettle, along with Bell J, was in dissent. The majority (Kiefel CJ, Keane and Edelman JJ) held that the trial judge's reasons were not inadequate and dismissed the appeal. It is instructive to look at what the majority judgment says about this issue, as well as the other dissenting judgment of Bell J, all the while recalling the context of this particular appeal.
168 The plurality said, at [32], citing Wainohu v New South Wales [2011] HCA 24; 243 CLR 181 at [56]:
The content and detail of reasons "will vary according to the nature of the jurisdiction which the court is exercising and the particular matter the subject of the decision".
169 At [33], the plurality said:
The appellant submitted that the inadequacy of the reasons to identify two or more acts of sexual exploitation and the basis upon which they were found to be proved lay in the trial judge's failure to resolve a number of factual and evidential contests at trial. Not every failure to resolve a dispute will render reasons for decision inadequate to justify a verdict. At one extreme, reasons for decision will not be inadequate merely because they fail to address an irrelevant dispute or one which is peripheral to the real issues. Nor will they be inadequate merely because they fail to undertake "a minute explanation of every step in the reasoning process that leads to the judge's conclusion". At the other extreme, reasons will often be inadequate if the trial judge fails to explain his or her conclusion on a significant factual or evidential dispute that is a necessary step to the final conclusion. In between these extremes, the adequacy of reasons will depend upon an assessment of the issues in the case, including the extent to which they were relied upon by counsel, their bearing upon the elements of the offence, and their significance to the course of the trial. In particular:
"Ordinarily it would be necessary for a trial judge to summarise the crucial arguments of the parties, to formulate the issues for decision, to resolve any issues of law and fact which needed to be determined before the verdict could be arrived at, in the course of that resolution to explain how competing arguments of the parties were to be dealt with and why the resolution arrived at was arrived at, to apply the law found to the facts found, and to explain how the verdict followed."
(Footnotes omitted.)
170 Even though her Honour found the trial judge's reasons to be inadequate, Bell J described the obligation to give reasons in short terms at [82]:
The trial judge was required to identify the principles of law to be applied in determining whether guilt had been proved, to resolve material disputed factual questions, to address the parties' submissions and to explain (albeit not necessarily at any length) the process of reasoning by which his Honour arrived at the verdict.
(Footnotes omitted).
171 It can be seen, even simply by reflecting on these three different descriptions, that the description of the obligation to give reasons by Nettle J is more onerous in terms of its content. His Honour does not confine his description of the content of the obligation to trials of indictable offences by judge alone, but expresses the principles more generally.
172 In contrast, the Minister relied on some authorities of this Court, the New South Wales Court of Appeal and the Victorian Court of Appeal, where descriptions of the content of the obligation to give reasons are narrower, or more general. In directing attention to these authorities, the Minister emphasised the particular approach taken to reasons concerning credibility, which we accept is relevant to this appeal.
173 The Minister relies on the following statement made by a five member Full Court of this Court in Fry v McGufficke [1998] FCA 1499:
The extent of the obligation to give reasons based on particular findings of fact will depend upon the circumstances of each case. It is, however, only the critical or crucial reasoning that must be exposed … It is in that sense that what is sufficient will depend upon all the circumstances of the particular case.
174 The Minister then contrasts the judgment of Mahoney JA and McHugh JA (as his Honour then was) in the New South Wales Court of Appeal in Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247, with the dissenting judgment of Kirby P (as his Honour then was) in that case, on which the appellants rely. In particular, the Minister emphasises what their Honours said about the need for a judge to expose her or his reasoning where the resolution of a case, or an issue in a case, turns on credibility. For example, the Minister relied on the following passages from the judgment of Mahoney JA at 273-274:
The weight to which a judge will give to the evidence of a witness will often not be capable of rationalisation beyond the statement: having heard him, I am not satisfied that I should accept what he says. The weight which a judge gives to a particular fact may be affected by, as it has frequently been put, his experience and, in particular, his experience of that fact in the order of things. It was this to which reference was made in Morgan v Babcock and Wilcox Ltd (1929) 43 CLR 163 at 173 and Martin v Osborne (1936) 55 CLR 367 at 375, in referring to "general human experience" and the like … [The judge's] reasons, in the particular case, may partake as much of intuition based on experience as formal and deductive reasoning.
That leads to, as I have described, the subjective element in the fact finding process. A fact is found in a particular case if the judge is satisfied that it is so. In many matters - and the weight to be given a to a fact in the process of assessing facts is one of these - whether a judge is so satisfied in the sense required by Briginshaw v Briginshaw (1938) 60 CLR 336, may depend upon matters subjective to him as well as upon matters common to judges. I do not mean by this that decisions are, or are to be, made upon the basis of matters essentially idiosyncratic to the particular judge. The determination of facts is assumed to be objective. But it would be to misunderstand the basis of a decision, and in particular decisions in matters of assessment, weight and the like, to assume that decisions can always, or perhaps ordinarily, be justified by objective rather than subjective considerations. And, if such be true of the reasoning process, it is, in my opinion, a mistake to conclude that a judge should or can set forth the reasoning process he has followed from one fact to another.
175 In a similar vein, the Minister refers to the decision of the Victorian Court of Appeal in Ta v Thompson [2013] VSCA 344; 46 VR 10, where the approach of Mahoney and McHugh JJA was applied with approval by Osborn JA. This was a prosecution in relation to the possession of prohibited drugs, where the legislation imposed a reverse onus on the accused. In those circumstances, the Minister relies on what Osborn JA held at [55]-[56]:
The present case turned fundamentally upon an assessment of the credit of the appellant. He could not discharge the onus upon him unless his denial of knowledge of presence of the drug was accepted as truthful and reliable. The case was put to the judge expressly on this basis.
It follows Whelan J was correct to find:
…
Her Honour did not accept Mr Ta's evidence. In the circumstances here, she did not need to say more. The only issue was, as Mr Ta's counsel submitted, whether she accepted his assertion that he was ignorant of the presence of the heroin. She did not, and said so. She could have said more, and perhaps it would have been better if she had, but what she said was enough in the context. It is not suggested that her Honour did not address the relevant legal issue. It is clear that she did.
(Footnotes omitted.)
176 However, we consider what is more relevant is the proposition set out by Osborn JA at [57], which his Honour appeared to accept and which is supported, as his Honour identified, by ample authority:
It was further submitted on behalf of the appellant that if a judge disbelieves evidence which is uncontradicted and is reasonable and inherently probable, he or she is required to give his or her reasons for disbelieving that evidence.
(Footnotes omitted.)
177 All of these statements constitute little more than general guidelines. What is adequate, or inadequate, in any given case will depend on the nature of the proceeding, the evidence and arguments put forward, and the nature of the issues to be determined. However, the following relevant propositions emerge from the authorities:
(a) The more serious the consequences of a proceeding, or the more serious a finding, the more a judge may need to explain why she or he reached a conclusion or finding;
(b) In some circumstances, it may not be necessary for a judge to explain in great detail a finding of adverse credibility, where it is based on demeanour; and
(c) If a judge disbelieves evidence which is uncontradicted, reasonable and inherently probable, he or she may be required to give more detailed reasons for disbelieving that evidence.
178 We accept the Minister's submission that the appellants bore the onus of proving a negative fact: namely, that they were neither complicit in, nor (recklessly) indifferent to, the fraudulent conduct of S & S Migration. However, as the appellants submit, the way the primary judge chose to decide this question involved making several positive findings of fact, adverse to the first appellant. The primary judge did not decide this proceeding on the basis of onus. In substance, his Honour found the first appellant to be a liar. His Honour also found, as positive facts, that the first appellant received the February 2012 correspondence and was aware of its contents, including that she was able to withdraw her visa application at any time during processing, and that rather than withdrawing her application, she deliberately chose to "wai[t] to see whether or not she was lucky enough to obtain a visa" (see the Federal Circuit Court's reasons at [39]). We accept the appellants' submissions that once the primary judge elected to make positive findings of fact, his Honour was obliged to explain, by reference to the evidence, how he reached those conclusions. His Honour was also obliged to explain why he did not accept the first appellant's apparently consistent, uncontradicted and inherently probable explanations in relation to certain aspects of her evidence. For reasons we have set out in relation to the other two grounds, his Honour did not do so.
179 We accept the Minister's submission that this was a situation where the first appellant's credibility was important to the question the Federal Circuit Court had to resolve. It was not the only determinative factor, and in the end the primary judge did not explain how or why he reached his conclusion that the first appellant was not a "witness of truth". There was some contemporaneous evidence about what had happened. The documents in evidence supported, for example, the first appellant's narrative that Miss Falcon had essentially advised her to do nothing in relation to the visa application lodged by S & S Migration, because the Department's records were devoid of anything sent to the Department by Miss Falcon on behalf of the first appellant in the period between 3 November 2011 (when Miss Falcon advised the Department that she had been appointed as the first appellant's migration agent), and 11 May 2012, when the delegate made the decision to refuse the visa application. There was corroborative evidence from the second appellant which, as we have found, the primary judge failed to deal with adequately, in terms of explaining why he formed the view that "there [was] little in his evidence that was helpful to the [first appellant] or the Minister" (see the Federal Circuit Court's reasons at [38]).
180 There were variations in the language used in the first appellant's evidence (between her written statement to the Tribunal, her evidence before the Tribunal and her evidence before the Federal Circuit Court) about whether or not she received the February 2012 correspondence: that must be accepted. What is missing in the primary judge's reasoning is why those variations were, as his Honour described them (at [36]), "particularly damaging to her credibility". The Full Court has recently explained why inconsistencies in an applicant's account, on their own, may or may not be significant: see AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133; 361 ALR 227 at [23]-[28] and ASB17 v Minister for Home Affairs [2019] FCAFC 38 at [39]-[45]. What the Federal Circuit Court does in its reasons is set out the variations in the first appellant's account, and then set out its conclusion about how damaging they are, without explaining why.
181 The same is true of the primary judge's ultimate finding that the first appellant was not a "witness of truth". That meant in substance, as we have said, that his Honour found her to be a liar. During the cross-examination by the Minister, and the questioning by the primary judge, that proposition was never put to the first appellant. There were no findings made about the first appellant's demeanour. The primary judge did not refer in his findings to demeanour, other than the single use of the word "evasive" and the statement that the first appellant "became emotional" when giving evidence (at [33] of his Honour's reasons). As we have explained above, there was nothing evasive about the first appellant's responses in the evidence itself, and the primary judge does not explain what, other than the evidence itself, was "evasive" about the first appellant's demeanour. As we have also explained above, it is unclear, from the face of the Federal Circuit Court's reasons, what use was made of the observation that the first appellant "became emotional".
182 The Minister also referred the Court to the decision of J Forrest J in Hettiarachci v RACV [2016] VSC 97. This case provides a useful contrast to some of the other authorities relied on by the parties, and in our opinion is helpful in understanding how the principles about adequate reasons might be applied to a court such as the Federal Circuit Court. One of the issues raised by the appellant in that case concerned the adequacy of the reasons provided by a Magistrate after a six day trial. The claim advanced by the appellant in the Victorian Magistrates' Court was a claim for compensation for an injury alleged to have been suffered by the appellant arising out of his employment.
183 At [37] of his reasons, J Forrest J described the Magistrate's reasons as "sparse", especially after a six day trial where there was considerable medical evidence tendered and evidence given by the plaintiff. His Honour noted that the Magistrate's reasons did not refer to any of the medical evidence. At [38], his Honour said:
I accept, as urged by counsel for RACV, that mere brevity of reasons does not, in and of itself, mean that the issues canvassed at trial have not been appropriately addressed. I also accept that the Magistrates' Court is an extraordinarily busy court and that magistrates have little, if any, time to reflect 'at leisure' on their reasons for reaching a particular conclusion. However, a litigant (and, as a secondary but also important consideration, any reviewing court) is entitled to know the underlying basis for the disposition of the claim.
(Footnotes omitted.)
184 Justice J Forrest dismissed comparison with the case of Ta, on which the Minister has relied heavily in his submissions before this Court. In Ta, the judge's reasons were given ex tempore immediately after the conclusion of counsel's submissions. At [54], J Forrest J said:
I see Ta as being light years distant from this case: the County Court judge only had to consider whether she accepted the evidence of the appellant on a narrow point - possession of the bag of heroin in the bedroom. Her Honour said in terms that she did not accept Mr Ta's evidence. By contrast, in this case, it was not just the evidence of Mr Hettiarachci (which was lengthy) which needed to be considered and pronounced upon (even if only in a cursory fashion), but also that of a number of medical practitioners, who had histories consistent with his account and had, based on that history, formed a diagnosis supportive of his claim.
185 We consider the same can be said about a comparison between Ta and the present appeal. In this proceeding before the Federal Circuit Court, it was necessary to reconstruct events over a period of several years, to consider documentary evidence, and to consider the evidence of the first and second appellants.
186 As we have noted above, we consider at least part of the explanation for the compressed reasoning of the primary judge is that there was an (inappropriate) focus on those parts of the hearing where the primary judge was himself questioning the appellants. Those were the parts of the evidence the primary judge then mostly took into account. His Honour paid scant attention to the rest.
187 The final passage from Hettiarachci which should be reproduced is at [60] of his Honour's reasons:
Further, this is a case in which a court has, after a lengthy trial, rejected a claim of real significance to a worker. As I mentioned earlier, a reviewing court (and of course the affected parties) is entitled, as a matter of law, to know the basic rationale of the judge which underpins the result. It is not sufficient to read the tea leaves and endeavour to divine what her Honour meant by plucking pieces here and there from the reasons. In this case, the acceptance (or otherwise) of the evidence of the claimant and the medical practitioners was of critical importance and should have been addressed squarely - not left to inferences and the reading in to the reasons of words in an attempt to decipher the basis for the Magistrate's decision. It was, in my opinion, incumbent upon her Honour to state, in terms (and not by implication), her conclusion as to acceptance or otherwise of the evidence of Mr Hettiarachci and the medical practitioners.
(Footnotes omitted.)
188 Aspects of this passage are applicable to this appeal, in particular in the following respects:
(a) The serious nature of the claim being made (fraudulent conduct by a migration agent depriving the appellants of access to proper consideration of a visa application, which is therefore likely to affect their ability to remain in Australia).
(b) The primary judge did not disclose his "basic rationale" for the findings that the first appellant was, in substance, a liar and had consciously decided to try her "luck" with the outcome of the work visa application process: rather, this Court, on appeal, is forced to "read the tea leaves" and endeavour to "pluck pieces here and there" from the primary judge's reasons.
189 Against those matters, however, should be set the kinds of considerations to which J Forrest J adverted in Hettiarachci about the nature of the Magistrates' Court jurisdiction. The Federal Circuit Court is also an extremely busy Court. Although the primary judge heard the proceeding on 24 November 2017 and delivered judgment on 31 January 2018 (and so gave himself some time to consider his decision), in our view this Court can properly take judicial notice of the very large number of cases Federal Circuit Court judges are expected to hear and determine each year.
190 By way of final observation, we note that the judicial obligation to give reasons in the context of a judicial review application was recently considered by Griffiths J in COZ16 v Minister for Immigration and Border Protection [2018] FCA 46; 159 ALD 120. One of the issues raised for his Honour's consideration was whether the "brevity and content" of the Federal Circuit Court judge's reasons amounted to a constructive failure to exercise jurisdiction. His Honour made the following statements when addressing that ground, which we also consider to be of relevance to ground 3 of this appeal:
[32] The Minister accepted that a failure by a judge to give adequate reasons may amount to an error of law, citing authorities such as Pettitt v Dunkley [1971] NSWLR 376; Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378 at 386 per Mahoney JA; Mifsud v Campbell (1991) 21 NSWLR 725; 13 MVR 243 and SZKLO v Minister for Immigration and Citizenship (2008) 247 ALR 582; 102 ALD 115; [2008] FCA 735 (SZKLO) at [26] per Flick J). In SZKLO, Flick J identified the following reasons for requiring judges to provide adequate reasons for their decisions:
(a) the obligation arises as a matter of judicial duty and enables an appeal court to determine whether or not the primary judge's decision was or was not affected by error of law or an appealable error (at [19]);
(b) the failure to provide adequate reasons may lead to a real sense of grievance by the unsuccessful party who does not know or understand why the decision was made (at [19]); and
(c) the need to maintain public confidence, respect and faith in the judicial system, recognising that lower courts play an important role as they have to deal with so much work and usually come into contact with more litigants than do higher courts (at [20]).
[33] In SZKLO Flick J said the following at [26] with respect to the requirements of the reasons of a primary judge in exercising a judicial review jurisdiction:
26 Whatever the ground of review, however, the reasons of the Federal Magistrates Court must be sufficient to explain to both the litigant and others the basis upon which that Court proceeded and the reasons why the application to review the decision of the Tribunal is either to be dismissed or why the decision is said to be wrong in law. Reasons do not adequately address the grounds of review sought to be resolved if the litigant - or this Court - is left to speculate as to what it was that the Federal Magistrate had in mind when he reached the conclusions that formed the final decision.
…
[36] On the issue of the adequacy of a judge's reasons in a judicial review context, reference should now also be made to the very recent decision of the Full Court in DAO16 v Minister for Immigration and Border Protection (2018) 353 ALR 641; [2018] FCAFC 2 (DAO16) at [46]-[48] per Kenny, Kerr and Perry JJ. At [47]-[48] their Honours made the following obiter observations on the obligation of a judge to provide adequate reasons for his or her decision:
47 The requirement to give reasons is an incident of the judicial process and reasons ought to be given in any case in which an appeal lies from the decision in order to allow that right of appeal to be exercised: Public Service Board of New South Wales v Osmond (1986) 159 CLR 656 at 667; 63 ALR 559 at 566 (Gibbs CJ). As Mahoney JA stated in Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 273:
Where, in the decision of an ordinary dispute, reasons are necessary, they are necessary because of the expectation that, being a judicial decision, a sufficient explanation will be given of why the order was made. And, in my opinion, it will ordinarily be sufficient if … by his [or her] reasons the judge apprises the parties of the broad outline and constituent facts of the reasoning on which he [or she] has acted.
48 However, the reasoning on the basis of which the primary judge reached his decision in this case is not revealed by his reasons. The primary judge addressed the grounds of judicial review by stating his conclusion for rejecting each ground at such a high level of generality that the basis for the conclusion is not exposed; nor do the reasons disclose that the primary judge considered fundamental aspects of the appellant's case such as, for example, the challenge to the dismissal by the AAT of the evidence of the 16 witnesses. To find, for example, that adverse findings were open and cannot be said to lack an evident and intelligible justification is merely to assert a conclusion: see above at [25].
[37] In DAO16, the Full Court considered that the primary judge had not only failed to provide adequate reasons for his decision, but also that the reasons which were provided did not reveal that fundamental aspects of the appellant's case had been considered.
…
[55] … Reasons for judgment should speak for themselves. They are directed not only to the parties but to the community at large who will not have easy access to the transcript.
[56] It is proper to acknowledge that the FCCA's migration jurisdiction is a high volume and challenging jurisdiction. Equally, however, it must be recognised that that Court is exercising an important judicial review jurisdiction and litigants are entitled to expect that the well-established features of the judicial process will be provided. Those features include not only the requirements of procedural fairness, but also that the Court will provide adequate reasons for its decision and properly address fundamental aspects of the parties' respective cases. Depending on the circumstances of any case, including the detail and complexity of the submissions which are made, it may be appropriate to provide relatively brief reasons for rejecting a party's case. It may also be appropriate in some cases for the Court to deliver ex tempore reasons for decision, but this does not mean that the Court is somehow excused by that method of decision-making from adequately disclosing the Court's reasoning processes, having regard to the general principles and considerations outlined in [32]-[46] above.
191 The observations of Griffiths J in COZ16, with which we respectfully agree, illustrate that a conclusion about inadequacy of reasons involves the balancing of a number of factors, and close consideration of the specific circumstances of the case before the trial court.
192 This ground is a difficult one to determine. There are inadequacies in the Federal Circuit Court's reasons, and those we have identified go to the two errors in ground 1 and ground 2. That is sufficient to dispose of the appeal. Although we have been critical of the primary judge's reasoning, we are reluctant to determine, as an independent ground of appeal, that these reasons do not meet an adequate standard for the Federal Circuit Court in a judicial review application of a claim that a visa application has been vitiated by third party fraud. The reasons do set out some applicable legal principles, and the factual background. The reasons do not set out the parties' arguments at all, nor really consider those arguments in the course of reaching conclusions. That may explain, at least in part, how the errors identified in grounds 1 and 2 arose. The reasons do contain some findings of fact, although most are conclusory, and reasoning between the initial findings and the conclusions is absent on critical matters. However, judges in the Federal Circuit Court have extraordinary workloads, and must determine the cases before them under more pressure and with more expedition than judges of this Court (cf COZ16 at [56]). We are also conscious it is easy for an appellate court to be critical, in hindsight, and spend much time poring over a set of reasons, and that is not the context in which the reasons were written.
193 After careful reflection, we have concluded that, despite their inadequacies, we are not prepared to find that the Federal Circuit Court's reasons are so inadequate that they do not constitute a lawful discharge of the judicial obligation to give reasons. We are not persuaded the reasons are so inadequate as to, independently of any other error, vitiate the orders made. Ground 3 should not succeed. However, the flaws in the reasons are important to our conclusions on grounds 1 and 2.