Summary of some relevant legal principles
36 The starting point for any discussion of the topic of fraud in a case such as the present is the High Court's decision in SZFDE. In SZFDE, a person (who was described as a "rogue" and falsely claimed to be entitled to practice as a solicitor and migration agent), advised a family not to attend a hearing by the Refugee Review Tribunal concerning their review application. The High Court held that the rogue's dealings with the family were fraudulent and had the effect of stultifying the operation of the legislative scheme established by provisions such as s 425 of the Migration Act (which related to hearings by the Tribunal).
37 As the Full Court stated in SZSXT v Minister for Immigration and Border Protection [2014] FCAFC 40; 222 FCR 73 (SZSXT) at [51], SZFDE establishes the following principles (omitting case references):
(a) in the framework of general legal principle, fraud can come in various guises and is 'infinite in variety';
(b) different considerations may arise when fraud is alleged in the context of a public law case, which involves the due administration of Commonwealth laws and has an important constitutional underpinning in Ch III of the Constitution;
(c) 'fraud' can attract different meanings in private and public law and in the latter context has been used in a broad sense which encompasses 'bad faith';
(d) in a case seeking certiorari based on the fraud of a third party, there is no requirement that one of the parties to the litigation be privy to the fraud;
(e) another practical aspect of fraud in public law which may set it apart from fraud in civil law is that 'often a victim of it will have no useful remedy except to have the fraudulently affected result set aside and a fresh untainted hearing conducted';
(f) in a public law case, fraud is not limited to that of a decision-maker, a party or a party's representative; and
(g) there was no necessity in SZFDE to determine at large and in generally applicable terms the scope for judicial review for 'third party fraud' of an earlier administrative decision where the judicial review applicant did not collude in the fraud and was not aware of it at the time. But in the particular circumstances in SZFDE the rogue's fraudulent dealings with the family had the effect of disabling the Tribunal from duly discharging its imperative statutory functions in conducting a review, such that there had also been a fraud 'on' the Tribunal which meant that the Tribunal's jurisdiction remained constructively unexercised.
38 It is also to be noted that the operation of PIC 4020 did not arise in SZFDE.
39 There have been numerous subsequent cases involving claims of fraud on the part of an agent. A sample of those cases, as discussed below, illustrates the diversity of factual circumstances in which the issue of fraud can arise in a migration law context. When that issue does arise, it can arise in the context of different migration legislative provisions, including but by no means limited to PIC 4020 and careful consideration needs to be given to the interaction between the terms of the relevant provision and any findings of fraudulent conduct and complicity.
40 In Trivedi, the issue was whether the appellant failed to satisfy PIC 4020 in circumstances where she unintentionally or unknowingly gave false information. The leading judgment was given by Buchanan J (with whom Allsop CJ and Rangiah J agreed).
41 In support of her application for a skilled-sponsored (subclass 886) visa, the appellant in Trivedi told the Department that both she and her husband had each recently taken an IELTS test. She provided reference numbers in respect of her test as well as a copy of what purported to be the test report form. She later told the Tribunal that she had sat the test while on a visit to India. The Department checked the test results by an online verification service and learned that the appellant had not achieved the scores she alleged and that the scores she had achieved did not meet the relevant requirements for the visa.
42 The Tribunal found in Trivedi that, when the appellant sat the test in India, she was worried that she had not previously been able to achieve the requisite scores and a supervisor at the test centre in India spoke to her and told her that he would "fix it up for her". It further found that the appellant thought that the supervisor was an official IELTS agent, his assurance caused her to relax and she proceeded to sit the test. After finishing the test, she gave the supervisor a copy of her previous IELTS report.
43 Justice Buchanan noted at [13] that there was no contest before the Tribunal that the second IELTS test result was deceptive and that the appellant's case proceeded on the basis that she sought to excuse her involvement "as an innocent and unknowing one". His Honour made reference to the Tribunal's findings that the PIC 4020 requirements apply whether or not a document is provided by a visa applicant knowingly or unwittingly and also to the fact that the visa applicant did not claim that she had in fact achieved the scores in the second IELTS test.
44 Justice Buchanan held at [43] that, for PIC 4020 to apply, it was not necessary to show complicity by a visa applicant. His Honour made the following observations at [43]:
In my view, it is not necessary (for reasons yet to be further developed) to show knowing complicity by a visa applicant. That would impose an impossible task on those administering the visa system. But it is necessary that the information or document have the necessary quality of purposeful falsity, whether or not the visa applicant can be shown to have knowledge of that fact.
45 Justice Buchanan concluded at [49] that PIC 4020 is directed to information or documents which are "purposely untrue" but that the purpose was to render visa applicants ultimately responsible for the veracity of the information and documents supplied to support their application. His Honour said that it would be an "intolerable burden" on the Department to inquire not only whether information or documents are false but also whether the visa applicant knew this to be the case. His Honour observed at [50]:
There was no doubt in the present case (and in Vyas) that the IELTS test result form provided by the first appellant contained false information. It was clearly open to the MRT, on the other facts found by it, to conclude that it was bogus. It was a counterfeit. It was not the real thing. The fact that a formal declaration to that effect was not made in the present case does not alter the character of the document, or the information it contained. It was also open to the MRT to find, as it did, that the information thereby given by the first appellant was false or misleading in a material particular. It was not necessary to prove that the first appellant knew the contents of the document were false or misleading when she proffered it.
46 In Patel, the visa applicant was also required to meet PIC 4020. She provided an IELTS report with her visa application, but the online verification system revealed that she had received different results. The Tribunal concluded that the test report form provided by the visa application was a bogus document. The visa applicant contended that she was not responsible for any alteration to or forgery of the document. The visa applicant was unable to explain the differences between the two documents other than to assert that she was not responsible for disconformity between them. The Tribunal concluded that there was evidence that the visa applicant had given, or caused to be given, to a Departmental officer a bogus document with the consequence that she did not meet PIC 4020.
47 Justice Buchanan (with whom Justice Edmonds agreed) held that there was no obligation on the Tribunal to pursue further relevant inquiries. Both his Honour and Flick J (with whom Edmonds J also agreed) referred to Trivedi and the principle established therein, i.e. that for the purposes of PIC 4020, it is not necessary to establish that a visa applicant knew that a document provided in support of his or her visa application was bogus.
48 The Full Court's decision in Prodduturi was cited by the appellant here. Prodduturi was an appeal from the FCCA, which had dismissed the visa applicant's judicial review application. The Tribunal had affirmed the delegate's decision to refuse the appellant a Skilled (Provisional) Class VC subclause 485 visa (subclass 485 visa) on the basis that the visa applicant did not satisfy PIC 4020.
49 In the subclass 485 visa application Mr Prodduturi's trade was identified as that of a "cook". It was further stated that he had been assessed in that trade by Trades Recognition Australia (TRA). Both the delegate and the Tribunal found this information to be untrue because Mr Prodduturi had never been certified as a cook by TRA or any other assessing authority. Accordingly, he could not satisfy cl 485.221(1), which required that a visa applicant had to be assessed by a relevant assessing authority as suitable for his nominated skilled application. Mr Prodduturi did not contest that he was never qualified for a subclass 485 visa. He explained that he sought judicial review of the Tribunal's decision because of its implications for the operation of PIC 4020 in Sch 4 of the Migration Regulations. Relevantly, if the Minister was satisfied that the applicant had been refused a visa because false or misleading information had been given, the person was prevented by PIC 4020(2), subject to Ministerial dispensation, from obtaining a visa to which PIC 4020 applied for a period of three years from the date of refusal of the person's earlier visa application.
50 As Perram and Perry JJ observed in Prodduturi at [8], Mr Prodduturi's motive in challenging the Tribunal's decision in the FCCA and then in bringing his appeal was not because he believed that he was entitled to a subclass 485 visa, but rather was because he wished to be relieved of the consequence for him of the operation of PIC 4020 (namely that without dispensation, any fresh application by him for a visa within a period of three years from the date of the delegate's decision would be refused).
51 In the FCCA, Mr Prodduturi argued that he should not be held responsible for the misstatements in his subclass 485 visa application because it was his migration agent who had made up the false TRA reference and he claimed that had told his agent not to apply for a visa if he was not entitled to it. He said that his migration agent had acted fraudulently.
52 The Tribunal found that Mr Prodduturi did not know of the false statement in the visa application concerning the TRA assessment, but this was because Mr Prodduturi was indifferent to the contents of the application. In those circumstances, the Tribunal found that he was responsible for the agent's misleading statement even if he lacked actual knowledge of it.
53 The issue of whether the migration agent had acted fraudulently was reconsidered by the FCCA in the light of the evidence placed before it. It concluded that Mr Prodduturi had not proved that his agent had acted fraudulently. Moreover, it found that Mr Prodduturi was responsible for the misleading statement because he was aware that the agent was lodging his visa application even if he did not know precisely what was in it. In other words, the FCCA found that Mr Prodduturi was complicit in the false statement made by his agent.
54 On appeal, the Full Court held that the FCCA erred in concluding both that Mr Prodduturi had not proved that his agent had acted fraudulently and that he bore the onus of proof on that matter. The Full Court noted that there was no dispute that the agent had acted fraudulently, hence no issue of onus of proof arose. The Full Court found that this finding tainted the FCCA's conclusion that Mr Prodduturi was complicit in his agent's fraud.
55 Notwithstanding these errors, the Full Court dismissed the appeal on the ground of lack of utility. The Full Court emphasised that, in his amended notice of appeal in that Court, Mr Prodduturi sought for the first time to have set aside not only the Tribunal's decision, but also the delegate's decision. This was because, unless the delegate's decision was also set aside, PIC 4020 would operate to prevent Mr Prodduturi from obtaining a visa to which PIC 4020 applied for three years from the date of the delegate's decision (which was made on 27 April 2012).
56 Another relevant Full Court decision is Singh v Minister for Immigration and Border Protection [2015] FCAFC 151 (Singh). The appellant there was seeking to avoid the operation of s 48(1) on the basis that no valid visa application had been made by him. While accepting that an application for a skilled visa had been made in his name, the appellant contended that the application was made fraudulently by his migration agent. The FCCA rejected that argument on the basis that it found that the migration agent had applied for a skilled visa by mistake and was not an act of fraud.
57 In the FCCA, the Minister sought to demonstrate that, even if the migration agent had lodged the application fraudulently, the visa applicant had participated in the process and that it was not open to find that a fraud had been perpetrated on him. In response to that contention, the FCCA found that the visa applicant was not complicit in the actions of his migration agent.
58 On appeal, the visa applicant sought to overturn the FCCA's factual finding that the migration agent had not acted fraudulently and only by mistake. The basis for this contention was that:
(a) the migration agent received substantial amounts by way of commission;
(b) the Department was investigating the migration agent for having facilitated other fraudulent applications;
(c) associates of the migration agent had fled Australia after search warrants had been executed; and
(d) the agent had in fact submitted false information to the Department.
59 The Full Court found that the proceedings were not vitiated by fraud and that the visa applicant was bound by the acts of his migration agent. In not interfering with the FCCA's conclusion that the migration agent did not act fraudulently, the Full Court emphasised at [48] the absence of any motive for the agent to do so and that the visa applicant's case did not make sense. Moreover, if there was no fraud on the agent's part, the Full Court stated that s 98 of the Migration Act applied, which deemed a non-citizen to fill in his or her application form or passenger card if he or she causes it to be filled in or it is otherwise filled in on his or her behalf. Accordingly, the absence of fraud was critical to the Full Court's decision.