(d) Disposition of the appeal
144 The following general principles may be derived from the analysis of the above case law.
(1) Issues of fraud in migration cases can arise in a wide variety of factual circumstances and by reference to different legislative provisions. There is a danger of being too prescriptive in this area.
(2) Epithets such as that "fraud unravels all" are singularly unhelpful and obscure the need to approach any claim of fraud in a migration context by reference not only to the facts as found by the administrative body or tribunal whose decision is subject to judicial review, but also to the relevant legislative provisions which are said to be affected by such fraud.
(3) In both a judicial review case and any subsequent appeal, it is important to pay close attention to how the applicant/appellant presents his or her case. Different issues arise if the case simply relates to an alleged misconstruction or misapplication or PIC 4020, as opposed to a case which involves a jurisdictional fact concerning the validity of the visa application in which there is a claim that a person other than the visa applicant has engaged in fraudulent conduct without the knowledge or complicity of the visa applicant, resulting in the visa application being invalid.
(4) Where an issue of the proper construction or application of PIC 4020 is raised, Trivedi and Patel authoritatively state that where a visa applicant has given or caused to be given to a relevant decision-maker a document which is a "bogus document" as defined, or information that is false or misleading in a material particular as defined, to determine whether PIC 4020 is satisfied or not, it is not necessary to show knowing complicity by the visa applicant as long as the material is purposely untrue.
(5) The policy and purpose of PIC 4020 were clearly explained by Buchanan J in Trivedi (see [87] above). The construction of PIC 4020 which was adopted and applied in Trivedi, Patel, Arora and Zhang may produce what some may view as a harsh outcome for a visa applicant who claims to be the innocent victim of fraud perpetrated by a migration agent or third party. That harshness is ameliorated in large measure, however, by the option available to such a visa applicant to adopt the course which was taken in cases such as Gill, Singh 2016 and Maharjan. The appellant here made a considered forensic decision not to follow that course in the FCCA because of "the evidentiary issues" involved. It is one thing for a judicial review applicant in a jurisdictional fact case to raise a claim of fraud by another person of which the applicant claims to be an innocent victim, in which event the judicial review applicant has the legal onus of proof. It is quite another matter where such a claim is raised before an administrative decision-maker where, depending upon the terms of the relevant legislative provision to which the claim relates, it is generally inapposite to speak of there being a legal onus of proof (see, for example, McDonald v Director-General of Social Security (1984) 1 FCR 354 at 357-8 per Woodward J; at 365-6 per Northrop J and at 368-9 per Jenkinson J and SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; 228 CLR 152 per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ at [40] where, while noting that it is for a protection visa applicant to establish his or her claims, this did not mean that it was useful to speak in terms of onus of proof).
(6) Zhang illustrates the operation and application of the principles in Trivedi and Patel to the particular facts and circumstances of that case. Likewise, Arora illustrates the operation and application of Trivedi in the particular facts and circumstances there.
(7) In Trivedi, the visa applicant personally lodged her visa application and provided a copy of the bogus IELTS test results which, on her case, had been produced by third party agents in India and contained false and misleading information of which she claimed to be unaware. The Full Court took the view, however, that in those circumstances, the visa applicant had "given" the bogus document and false or misleading information to the Department.
(8) Where there is some evidence to indicate that a visa applicant may not satisfy PIC 4020(1) and the visa applicant claims that his or her migration agent or a third party engaged in fraudulent conduct and provided in support of the person's visa application a bogus document, or information that is false or misleading in a material particular, and the visa applicant claims that his or her visa application is therefore a nullity, the visa applicant in a judicial review case carries the onus of establishing that:
(a) the migration agent or third party was responsible for the fraudulent conduct;
(b) at the relevant times, the visa applicant had no knowledge of and was not complicit in the fraudulent conduct carried out by the migration agent or third party;
(c) the visa applicant was not indifferent as to whether the migration agent or third party engaged in the fraudulent conduct in the visa application process; and
(d) the fraud affected decision-making under the Act.
145 The primary judge's reasons for dismissing grounds 1 and 2 of the judicial review application are very brief. On one view, they do not engage directly with the appellant's central contention below that the AAT had misconstrued or misapplied PIC 4020 in his particular circumstances. The appellant has not argued on the appeal, however, that the primary judge's reasons for judgment are so inadequate or deficient as to constitute an error of law or a constructive failure to exercise jurisdiction.
146 Ground 1 of the appeal squarely raises the issue of whether the primary judge erred in not accepting the appellant's contention below that the AAT had misinterpreted PIC 4020. This ground broadly reflects ground 2 of the judicial review application below.
147 The following facts and circumstances are of particular significance in determining the present appeal.
(1) The central issue in the AAT was whether PIC 4020 was satisfied. No issue was raised there that the AAT lacked jurisdiction to review the delegate's decision because the visa application was invalid for fraud. Rather, the appellant contended before both the delegate and the AAT that he had not given or caused to be given the bogus document, because his brother-in-law had perpetrated a fraud which he did not know about and was not complicit in.
(2) The AAT found that "someone who did not have authority" altered the IELTS test results or that the document was a fraudulent document. Either way, the document was a "bogus document" within the relevant statutory definition.
(3) The AAT did not identify the person who was responsible for altering the IELTS results. Nor did it make any findings concerning the appellant's claim that he had no knowledge of, and was not complicit in, the fraud. The AAT found that it was unnecessary for it to make findings on this issue, relying on authorities such as Vyas, Trivedi and Sran.
(4) It was evident on the face of the visa application form which was submitted to the Department that it was submitted by a migration agent and not directly and personally by the appellant, in contrast with the circumstances in cases such as Trivedi and Patel.
(5) The AAT reasoned that, because the visa applicant "provided" the fraudulent document to the Department as part of his subclass 457 visa application, it could find that he had "given, or caused to be given" to the Department a bogus document or false and misleading information for the purposes of PIC 4020. This is evident from [21] of the AAT's reasons for decision.
148 In our view, the appellant has failed to establish that the primary judge erred in not finding that the AAT misinterpreted or misapplied PIC 4020. The AAT correctly observed in [22] of its reasons for decision (see [47] above) that, in light of cases such as Vyas, Trivedi and Sran, it was not necessary for it to determine whether the visa applicant knew that he was providing a bogus document. That statement was made in the context of the evidence before the AAT and the factual findings set out in [21] of the AAT's reasons for decision. The AAT's references to Vyas and Sran require some qualification having regard to what was said about those decisions in Trivedi and Gill respectively. But in light of the evidence before the AAT and its findings, the AAT's reference to, and application of, Trivedi was correct. Patel is also consistent with the AAT's approach.
149 In our view, neither Trivedi nor Patel can be distinguished on the basis that, unlike the position in both those cases, the appellant here does not rely only on an alleged absence of knowledge in contending that he did not give, or cause to be given, a bogus document to the Department. He also relies upon the alleged fraudulent conduct of his brother-in-law having occurred after the brother-in-law received the certified document from the appellant. We do not consider this feature of the appellant's case provides a basis for distinguishing Trivedi or Patel. In both those cases, the respective appellants maintained that documents were altered before they were supplied to the respective appellants, who then allegedly passed them on innocently to the Department. In both cases, however, it was held that the visa applicant had to bear responsibility for what was provided to the Department irrespective of them allegedly not knowing that the document they provided was a bogus document. We see no reason why that approach should not apply here. The appellant must bear responsibility for his brother-in-law's action in providing the bogus document, in circumstances where the appellant plainly contemplated that his brother-in-law would act as his intermediary in dealing with the Department and no issue as to the invalidity of the visa application has been raised.
150 The facts in Zhang are closer to the facts in the present proceedings in the sense that the alleged fraudulent conduct by the third party occurred after the visa applicant had allegedly provided a non-bogus document to the third party with a view to it being supplied to the Department. As noted in [95] above, the visa applicant in Zhang claimed that a third party, who told the visa applicant that he was a senior migration agent and could assist the visa applicant in his visa application, altered the IELTS test results which the visa applicant had provided to the agent for the purpose of lodgement with the Department. The visa applicant in Zhang claimed that he did not personally lodge his visa application documents with the Department and that this was done by the agent who subsequently provided him with a Departmental letter acknowledging receipt of his visa application. The visa applicant claimed to have no knowledge of, or any personal involvement in, the agent's fraudulent conduct in altering his IELTS test results. On appeal to this Court, it was held that the primary judge was correct to apply the principles in Trivedi and Patel to the circumstances in Zhang and that it was unnecessary for the MRT to make findings regarding Mr Zhang's claims that he was the innocent victim of his agent's fraudulent conduct.
151 The appellant in the present proceeding did not contend that Zhang had been incorrectly decided.
152 In the present proceeding, it was open to the AAT to find that the appellant had, at the very least, caused the bogus document (or false and misleading information) to be given to the Department because he was content to have his brother-in-law act as his intermediary. He said that he gave various certified documents to his brother-in-law for the purpose of lodging an application for the visa with the Department. The appellant gave no evidence that he sought in any way to control or limit what the brother-in-law did when acting in his capacity as intermediary. The legislative scheme, including PIC 4020, operates on the basis that the visa applicant bears responsibility for a bogus document, or information which is false or misleading in a material particular, if the visa applicant has given the document (or information) to the Department, or caused it to be given. As noted above, the policy underlying this scheme was described by Buchanan J in Trivedi. It is a policy which reflects the volume of administrative decision-making and the limited capacity of the Department to detect and determine who has engaged in fraudulent or dishonest conduct.
153 We do not consider that the legislative scheme, which vests responsibility on the visa applicant for what is provided to the Department in support of a visa application, differentiates between the facts and circumstances in Trivedi and Patel and those here (and in Zhang). It was open to the AAT to find that the appellant had given or caused to be given to the Department a bogus document or information that was false or misleading in a material particular. In the particular facts and circumstances here, the appellant bears responsibility for what he contends his brother-in-law subsequently did. Applying Trivedi and Patel, and having regard to the facts as found by the AAT, it was not necessary for the AAT to determine whether or not the appellant had knowledge of, or was complicit in, the brother-in-law's fraudulent conduct. No significance attaches to the fact that the brother-in-law subsequently retained a migration agent to lodge the documents, including the bogus document, with the Department.
154 In our view, the central principles established by cases such as Trivedi and Patel apply even where a visa applicant provides a non-bogus document to a migration agent or other intermediary, and the migration agent or intermediary alters the document in a way which renders it a bogus document for the purposes of the legislative scheme, and then provides that bogus document to the Department acting on behalf of the visa applicant. In such circumstances, it is not necessary to determine whether or not the visa applicant had knowledge of, or was complicit in, the fraudulent conduct of the migration agent or the intermediary. That is the approach which was taken in Zhang and that is the approach which we consider applies to the particular facts and circumstances here.
155 For these reasons, ground 1 of the appeal is rejected.
156 Taking into account Mr Arch's submissions in relation to ground 2 of the appeal, the appellant's complaint essentially is that the primary judge erred in not accepting the appellant's claim that the AAT fell into jurisdictional error by finding at [21] of its reasons for decision that the appellant had "given, or caused to be given to the Minister a bogus document". The appellant contended that this finding lacked a logical or probative basis. Fact finding by an administrative body is capable of being challenged in a judicial review proceeding on these grounds, but it is well settled that, for the grounds to apply, "extreme illogicality" must be established. As Crennan and Bell JJ said in Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611 at [130]-[131]:
130 In the context of the Tribunal's decision here, "illogicality" or "irrationality" sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came, in relation to the state of satisfaction required under s 65, is one at which no rational or logical decision maker could arrive on the same evidence. In other words, accepting, for the sake of argument, that an allegation of illogicality or irrationality provides some distinct basis for seeking judicial review of a decision as to a jurisdictional fact, it is nevertheless an allegation of the same order as a complaint that a decision is "clearly unjust" or "arbitrary" or "capricious" or "unreasonable" in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person. The same applies in the case of an opinion that a mandated state of satisfaction has not been reached. Not every lapse in logic will give rise to jurisdictional error. A court should be slow, although not unwilling, to interfere in an appropriate case.
131 What was involved here was an issue of jurisdictional fact upon which different minds might reach different conclusions. The complaint of illogicality or irrationality was said to lie in the process of reasoning. But, the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.
157 A recent example of the application of these principles is DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2. Each case will necessarily turn on its own particular facts and circumstances.
158 In our respectful view, the primary judge was correct to conclude that the adverse finding by the AAT, that the appellant had given or caused to be given to the Department the bogus document (or false or misleading information), was reasonably open and did not lack an evident and intelligible justification. At [14] of its reasons for decision, the AAT noted the appellant's evidence that he had provided the certified documents to his brother-in-law who made arrangements with the original migration agent, and the appellant said that he had had no direct contact with the migration agent. This does not mean, however, that it was not open to the AAT to find that the appellant had given or caused to be given the bogus document to the Department.
159 On the evidence before the AAT, the appellant was content to have his brother-in-law act as his intermediary and to provide documents to the Department in support of his visa application. In the events that occurred, the brother-in-law engaged a migration agent to take the final step of lodging the visa application and supporting documents with the Department, including the bogus IELTS test results allegedly manufactured by the brother-in-law. The appellant claimed that he was unaware of his brother-in-law's alleged intervening fraudulent conduct in altering the IELTS test results. The evidence before the AAT was to the effect that the appellant did not have any direct contact with the migration agent but it appears that the appellant did not claim that he was unaware of the fact that his brother-in-law had retained a migration agent. The appellant acknowledged that he had "submitted" his visa application (see [34] above). In these circumstances, it was reasonably open to the AAT to find that the appellant "provided" to the Department the documents in support of his visa application, including the bogus document. Similarly, it was reasonably open to the AAT to find that the appellant had given or caused to be given a bogus document to the Department, having regard to his knowledge and willingness for his brother-in-law to act as his intermediary. The position might be different if a visa applicant is totally unaware of the fact that a visa application has ostensibly been made on his or her behalf by a migration agent, whether or not an intermediary is also involved.
160 For these reasons ground 2 is rejected.