Federal Court. Does the Briginshaw principle favour a conclusion that a person's onus of proving that they were not recklessly indifferent to fraud is low? Is there anything untoward about a client attending the office of a practitioner for the purpose of procuring their services and making an upfront payment? Can it be said that, "whether a person is or is not indifferent to another’s fraud is to be assessed subjectively, although the objective facts may permit an inference to be drawn about a person’s state of mind"?
Some of the questions to the Federal Court (FCA) were as follows:
Question 1: In determining whether a visa applicant was indifferent to a practitioner's fraud "on" the decision-maker, can it be said that "it must be shown that the applicant was not indifferent to the [practitioner] acting unlawfully or dishonestly, not merely indifferent as to how the [practitioner] might procure a visa acting lawfully and properly"?
Question 2: Can it be said as follows: "Indifference is a state of mind close to intention or deliberate dishonesty. That is a high bar. It requires a finding, close to dishonesty, based on probative evidence as to the subjective state of mind of the person affected by the fraud of a third party"?
Question 3: Dixon J propounded the following principle in Briginshaw v Briginshaw (1938) 60 CLR 336 at 362 (Dixon J): "[t]he seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal". Can it be said that the Briginshaw principle favours a conclusion that a person who claims to be affected by fraud committed by a practitioner has a "heavy onus" to prove such a claim, but that the same principle favours the conclusion that that person's onus of proving that they were not recklessly indifferent to the fraud is low?
Question 4: Should it be presumed that "an applicant for a visa is entitled to believe that a person acting in a professional capacity as a migration agent, including a lawyer who is a migration agent, will act lawfully"?
Question 5: Is there anything unusual or untoward about a client attending "the offices of a lawyer or a migration agent for the purpose of procuring their services" and making an upfront payment?
Question 6: Can it be said that, "whether a person is or is not indifferent to another’s fraud is to be assessed subjectively, although the objective facts may permit an inference to be drawn about a person’s state of mind"?
Question 7: Can it be said that, "a particular outcome may be recognised by a person as being ‘too good to be true’ and thus demonstrative of a likelihood that the outcome will be illegitimately achieved"?
Question 8: Can it be said that, although the Appellant took no steps to notify the Department that she realised that her previous practitioner had provided false information as part of her visa application, that did not suggest that she was indifferent to the fraud, as "she attended no less than three migration agents, each of whom advised her that what [the previous practitioner] had done should be addressed before the Tribunal"?
Question 9: If the Appellant satisfied the FCA that the Federal Circuit Court (FCCA) made the errors identified in the above questions, should it remit the case to the FCCA for reconsideration according to law, despite the fact that the Appellant's appeal was brought under s 24 of the Federal Court of Australia Act 1976 (Cth) by way of rehearing?
The FCA answered those questions as follows: