Prodduturi v Minister for Immigration and Border Protection

Amendment to the notice of appeal 2 The current notice of appeal on the Court file discloses these two grounds: '1. Federal Circuit court of Australia decision need to be reviewed 2. I am looking for the justice at Federal court of Australia' 3 The amendment application arises this way: the appellant applied for a visa on 8 September 2011 known as a Skilled (Provisional) (Class VC) visa. There are a number of requirements of which the Minister must be satisfied prior to granting such a visa. One of these is that the visa applicant has been assessed by the relevant assessing authority as suitable for the nominated skilled occupation; another is that the visa applicant satisfies Public Interest Criterion 4020 ('PIC 4020'). PIC 4020 relevantly requires there to be no evidence before the Minister that the visa applicant has provided information that is false or misleading in a material particular in relation to the application for the visa. Both of these requirements are significant for present purposes. 4 The occupation the appellant nominated was that of a cook. In his application it was suggested that the appellant had applied for the necessary skills assessment from a body known as Trades Recognition Australia ('TRA') and obtained a successful skills assessment. Indeed, his visa application provided a receipt/reference number from TRA. 5 In fact, the appellant, as he freely admitted in both the Court and the Tribunal below, had not obtained such a skills assessment from TRA and this was confirmed by the records of TRA. The receipt/reference number was false and TRA had no record of him. The appellant therefore appeared to have two problems: he was not eligible because he had not been assessed as to his skills as a cook by TRA; and he was also not eligible because his application had contained false information about his having applied to and as having been assessed by TRA as a cook. 6 The delegate of the Minister who made the initial decision refused the appellant's application on the basis that he had provided information in the course of making his visa application which was false and misleading, that is to say, that he had been assessed by TRA as a cook when he had not. 7 The appellant applied for a review of this decision in the Migration Review Tribunal. In the Tribunal he argued that his original visa application had been fraudulently completed on his behalf by his migration agent, S&S Migration; he had not wished to apply for a visa for which he was not qualified and he was not responsible for the reference to TRA having assessed him as a cook which had been done without his permission by the migration agent. In the course of the hearing he accepted that he had not been assessed by TRA as a cook. This concession inevitably meant that his visa application had to be refused by the Tribunal since an assessment to that effect was an essential prerequisite for the grant of the visa. 8 The appellant's efforts to persuade the Tribunal that his application had been fraudulently prepared by the migration agent were not, however, pointless. The effect of the delegate's decision to refuse the visa on the basis that the appellant had made a misleading statement in the course of making his visa application was to prevent the appellant from applying for another visa for three years: see Migration Regulations 1994 (Cth) Sch 2 cl 485.224 and PIC 4020. 9 The proceeding before the Tribunal was, therefore, not really in substance about whether the appellant should receive a Skilled (Provisional) (Class VC) visa. He could not even on his own case. His case rather was that he had not wished to apply for that visa if he was not eligible and that he should not be held responsible for the actions of S&S Migration in falsely filling out his application. If that case had succeeded his application for the visa would still have failed but he would not now be prevented, as he currently is, from applying for another visa for a period of three years. 10 This then was a case in which the appellant's case in the Tribunal was that he had been the victim of a fraud. It was not a case in which it was said that the proceeding before the Tribunal had itself been affected by a fraud such as SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189. It was, perhaps unusually, a case where the central question to be decided by the Tribunal was whether the false statement in the visa application, namely that he had been assessed as a cook by TRA, was a statement for which he was to be held responsible. 11 The Tribunal reasoned that the appellant knew that the migration agent was going to apply for the visa. It did not determine whether the appellant was aware of the false statement by S&S Migration, holding instead that there was no mental element required for the making of a false or misleading statement. It did not matter, therefore, whether the appellant did or did not know about what the migration agent had done. For this conclusion the Tribunal cited the obiter dicta of Driver FM in Vyas v Minister for Immigration and Citizenship (2012) 263 FLR 131 at [57]-[68]. The consequence of that reasoning is that any incorrect statement in a visa application can result (if the Minister does not exercise a dispensing power) in a visa application being refused and the unsuccessful applicant being barred from making any further applications for three years. The decision in Vyas needs to be read with the Full Federal Court's decision in Trivedi v Minister for Immigration and Border Protection [2014] FCAFC 42 at [54] per Buchanan J (with whom Allsop CJ and Rangiah J agreed). That decision establishes that for a statement to be false within the meaning of PIC 4020 it must have been made on a deliberately false basis by somebody, although that somebody need not be the visa applicant. The decision's practical effect is that a visa applicant will fall foul of PIC 4020 if a migration agent makes a deliberately false statement in the application even if the visa applicant has no knowledge of this. 12 The appellant then sought judicial review of the Tribunal's decision in the Federal Circuit Court on three grounds: (a) the making of the application had been without his authority so that he had not made an application for a visa. Consequently, neither the Minister nor the Tribunal had jurisdiction to entertain the application; (b) the Tribunal had erred in concluding that S&S Migration was the agent of the appellant; and (c) the Tribunal had erred because there was no evidence that the appellant himself had given or provided the false or misleading information. 13 The presence or otherwise of a valid application for the visa was a jurisdictional fact for the Tribunal. Whilst it was bound to consider whether it had jurisdiction and hence to form a view on whether the application was vitiated by the alleged fraud of S&S Migration, it could not answer that question authoritatively. The Federal Circuit Court, on an application for constitutional writs, was therefore entitled to come to its own view on that factual issue. This is important because it means that evidence was admissible before the Federal Circuit Court on the question of whether the appellant's application for a visa was valid. This is in contrast to the situation which exists where a challenge is made to some non-jurisdictional fact found by a decision-maker. In that category of case the Court hearing the judicial review action will not be able to receive additional evidence about that fact. 14 Before the Federal Circuit Court the appellant led evidence of what was said before the Tribunal by annexing a copy of the transcript of the hearing to an affidavit sworn by his solicitor. A copy of the Tribunal's reasons for decision was also in evidence. Significantly, whilst it was possible that the appellant could have given admissible evidence going to the jurisdictional fact he did not do so. 15 The appellant's absence from the trial led the Minister's counsel to make a submission that an inference should be drawn against him since he had elected not to give evidence. The learned trial judge accepted this submission. His Honour concluded that the making of an allegation of fraud was an allegation of serious misconduct to which he applied the principle in s 140 of the Evidence Act 1995 (Cth), i.e., the principle in Briginshaw v Briginshaw (1938) 60 CLR 336 that one needs to bear in mind in assessing whether the civil standard of proof has been discharged the seriousness of the allegation made. This reasoning is not challenged in the appeal. 16 In any event, the learned trial judge declined to find that the appellant had proved that S&S Migration had exceeded its instructions. Consequently, the fraud case failed. 17 The two other grounds pursued in the Federal Circuit Court were closely related to the fraud ground. The first was that the application had not been made on his behalf; the second was that there was no evidence before the Tribunal that he had caused to be given or given misleading information to the Minster in the course of making the application. The trial judge rejected both arguments for similar reasons. In light of those conclusions, the trial judge dismissed the application with costs. 18 The appellant then appealed to this Court. In the ordinary course of events such an appeal would be heard by a single judge, but a Judge of the Court directed that it should be heard by a Full Court: Federal Court of Australia Act 1976 (Cth) s 25(1AA). 19 I have set the original notice of appeal out above. It was clearly drafted at a time when the appellant did not have legal representation. Subsequently, the appellant has been represented by counsel acting pro bono publico. Counsel then formulated the current proposed amended notice of appeal. 20 It is conceded that proposed ground 2 and grounds 4-8 raise arguments which were not advanced at trial. 21 Ground 2 seeks to raise an argument that the Tribunal failed to consider the integers of the appellant's claim, presumably in reliance upon Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244 at 259 [42] per Allsop J. In substance the point is that the Tribunal is alleged to have ignored key aspects of his testimony before it, viz a statement that he told the migration agent not to apply for the visa if he was not qualified to obtain it and a statement that he did not know that the migration agent was applying for a sub-class 485 visa. 22 The Minister did not submit that he was unable to meet such a case on appeal. Further, it is plain that the factual foundation for the argument is established on the evidence led at trial. That being so this is not a case where the amendment application must be refused: cf. Water Board v Moustakas (1988) 180 CLR 491 at 497. But neither does this mean that it must be allowed. The Minister submitted that there were at least two good reasons not to permit the amendment. 23 The first was that the ground was futile in that there was no doubt that the appellant was not entitled to a visa so the Court could decline relief on a discretionary basis even if the ground was successful. The appellant's answer to this was that if it was shown that the visa application had been made without his authority it would follow that he had made no application for a visa at all. The consequence would be that the delegate (and thereafter the Tribunal on review) would be required to dismiss the application not because the visa criteria were not met but because their own jurisdiction to entertain the application had not been enlivened by a valid application. The Minister disputed this view of affairs pointing to the fact that s 98 of the Migration Act 1958 (Cth) ('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') had the consequence that the appellant was taken to have completed the application himself even if he did not complete it. I would not be willing to say that the Minister is inevitably correct about this. It may well be that a consideration of the structure of the Act (including s 69) would reveal that it evinces a clear view that the responsibility for what goes in a visa application is always, and in every case, to be sheeted home to the visa applicant. But that kind of survey was not undertaken on the present application. I conclude therefore that this issue is sufficiently arguable from the appellant's perspective to warrant a grant of leave if the other requirements can be met. 24 The Minister's second point was that the appellant had been represented by solicitors and counsel in the Court below and that it was elementary that a party was bound by the way his case had been run at trial: see Metwally (No 2) v University of Wollongong (1985) 60 ALR 68 at 71; Coulton v Holcombe (1986) 162 CLR 1 at 7. 25 This principle was said to have particular resonance in immigration cases because the Migration Act expressly abolished much of this Court's original jurisdiction in cases under it. It would detract from the efficacy of that excision if this Court, in the exercise of its appellate jurisdiction, could entertain arguments in respect of which it had no original jurisdiction: see, for e.g., SZKMS v Minister for Immigration and Citizenship [2003] FCA 499; SZMRD v Minister for Immigration and Citizenship [2009] FCA 598 at [11]; SZNSC v Minister for Immigration and Citizenship (2009) 112 ALD 490. 26 I do not read those authorities as saying there is a different standard to be imposed in amendment applications in migration appeals than that which is applied in ordinary appeals. For myself, I am unpersuaded that the fact that this Court lacks original jurisdiction in some migration cases has any legal consequences for its undoubted appellate jurisdiction in the same cases. Generally courts exercising appellate jurisdiction are not exercising original jurisdiction. The exercise by them of a power on appeal to entertain arguments not raised below is not a manifestation of original jurisdiction. Hence, it is unclear to me what the relevance of a limitation on the Court's original jurisdiction is to the debate. 27 More relevant for the disposition of the present application is the Full Court's decision in NAJT v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 147 FCR 51. This was a refugee case. Madgwick J (with whom Conti J agreed) listed the following matters as being relevant to the decision as to whether to grant leave to amend (at 85 [166]): '166 Thus, relevant questions include: 1) Do the new legal arguments have a reasonable prospect of success? 2) Is there an acceptable explanation of why they were not raised below? 3) How much dislocation to the Court and efficient use of judicial sitting time is really involved? 4) What is at stake in the case for the appellant? 5) Will the resolution of the issues raised have any importance beyond the case at hand? 6) Is there any actual prejudice, not viewing the notion of prejudice narrowly, to the respondent? 7) If so, can it be justly and practicably cured? 8) If not, where, in all the circumstances, do the interests of justice lie?' 28 The difficulty for the appellant is item 2 in this list. He was represented at trial by solicitors and counsel. Although the appellant criticised what he said was his lawyers' decision at trial not to call him, he did not criticise them for the legal arguments which were run on his behalf or otherwise suggest that they were derelict in not running the arguments now sought to be raised in this Court for the first time. Consequently, there is no explanation before this Court as to why the arguments were not put. In the absence of an actual explanation I infer that they were not run below because no-one thought of them. I would not necessarily think that an explanation is in every case required. These kinds of applications cannot be approached on the basis, as the Full Court put it in a slightly different context, that one size fits all: Cement Australia Pty Ltd v Australian Competition and Consumer Commission (2010) 187 FCR 261 at [51]. In this case, however, the absence of an explanation combined with the fact that the appellant was represented at trial, means that if leave were now to be granted the difference between a trial and an appeal would effectively be elided. Thus, whilst I am willing to assume each of the other matters mentioned by Madgwick J in favour of the appellant, this issue leads me to conclude that leave should be refused. 29 The same conclusion should be reached in relation to grounds 4 to 8 which were also conceded by the appellant to be fresh grounds not raised below. They were as follows: '4. The Court below erred by failing to find that the Migration Review Tribunal misconstrued the state of satisfaction it was obliged to reach under s 65 of the Migration Act 1953 in the following respects: a. The Tribunal found that there was evidence that the Appellant had given, or caused to be given, to the Minister or an officer, information that was false or misleading in a material particular in relation to the application for the visa without considering what that evidence was. b. The Tribunal determined that an application was valid by reference to findings of facts made in previous matters before the Federal Magistrates Court of Australia and thereby did not reach a state of satisfaction as to the integers of the claims made by the Appellant. 5. The Court below erred by failing to find that the Migration Review Tribunal failed to make a decision under the Migration Act when it made the following findings for which there was no evidence or which, in the circumstances, were so unreasonable that no reasonable decision maker would make those findings: a. There was evidence that the Appellant had given, or caused to be given to the Minister or an officer, information that was false or misleading in a material particular in relation to the application for visa. b. The Tribunal did not consider the Appellant to be an innocent victim of fraud. c. The Tribunal found that the Appellant was not entirely ignorant of the requirement for a skills assessment as a condition for a subclass 485 visa. 6. By reason of the Tribunal's failure to consider the Integers, the making of findings referred to in 5a, 5b and 5c, the failure of the Tribunal to inquire into the Department report into S & S Migration, the failure to draw a Jones v Dunkel inference in that respect, the brevity of the hearing in the context of an allegation of fraud and the fact that the decision on an allegation of fraud was made on the same day as the hearing a hypothetical fair-minded lay person, properly informed as to the nature of the proceedings, the matters in issue and the above conduct might reasonably apprehend that the Tribunal member might not have brought an impartial mind to the resolution of the question as to whether the Appellant, the delegate and the Tribunal had been defrauded by the conduct of a registered migration agent. 7. The Court below erred by failing to find that the Tribunal failed to invite the Appellant to give evidence and present arguments on whether the document titled "General Skilled Migration Applicant Form" and its contents (appearing at AB1-11) was the application under review and or whether that document was the Appellant's application for a sub class 485 visa, matters that were determinative of the Appellant's claims. 8. The Court below erred by failing to find that the Tribunal failed to inquire whether the Appellant was aware of the document titled "General Skilled Migration Applicant Form" and its contents and failed to inquire of the Appellant, in the context of its questioning at the hearing, as to whether that document was his application for visa.' 30 That leaves proposed grounds 1, 3 and 9-11. 31 Grounds 1 and 3 were not opposed and I will grant the appellant leave to amend to raise them. Proposed grounds 9-11 were as follows: '9. The Court below erred by misconstruing the standard of proof under s 140 of the Evidence Act 1995 and or misapplied that standard of proof. 10. By reason of the matters raised in one or more of grounds 1 to 8 the decision of the Migration Review Tribunal was a decision made under the Migration Act 1958. 11. By reason of the matters raised in grounds 1 and or 3 the decision of the delegate was not a decision made under the Migration Act 1958 and the application for visa was not valid.' 32 Ground 9 was opposed. However, since it is essentially about the manner in which the trial judge approached his fact findings it is appropriate to grant leave. It is not something which could have been raised below. I would not grant leave for ground 10 in its current form but would if it were amended only to refer to the substantive grounds which have been permitted. I would take the same course with ground 11.

(1938) 60 CLR 336

(2010) 187 FCR 261

(1986) 162 CLR 1

(2001) 194 ALR 244

(1985) 60 ALR 68

(2005) 147 FCR 51

(2007) 232 CLR 189

(2012) 263 FLR 131

(1988) 180 CLR 491

[2003] FCA 499

[2009] FCA 598