Federal Court of Australia ANW18 v Minister for Immigration and Multicultural Affairs [2024] FCA 1008 Appeal from: ANW18 v Minister for Home Affairs & Anor (No 2) [2020] FCCA 2638 File number: SAD 147 of 2020 Judgment of: CHARLESWORTH J Date of judgment: 4 September 2024 Catchwords: MIGRATION – appeal from orders dismissing an application for judicial review of a migration decision – appellant alleging fraud on the part of his migration agent – migration agent alleged to have included false claims in a visa application form and supporting statutory declaration – appellant participating in interview with a delegate in which he made claims to the same effect as those drafted by the migration agent – appellant failing to discharge the onus of proving he was not complicit in any fraud committed by the migration agent – fraud by the migration agent not demonstrated in any event – whether for the purposes of s 473CB(1)(c) of the Migration Act 1958 (Cth) there was information in the possession of the Secretary capable of indicating fraud on the part of the migration agent giving rise to an obligation to refer the information to the Immigration Assessment Authority – material not indicative of fraud – whether appellant should be granted leave to advance new arguments on the appeal – relevance of appellant's status as a self-represented litigant at first instance Legislation: Evidence Act 1995 (Cth) s 140 Migration Act 1958 (Cth) ss 65, 473CB, 474 Cases cited: ANW18 v Minister for Home Affairs & Anor (No 2) [2020] FCCA 2638 CQR17 v Minister for Immigration and Border Protection (2019) 269 FCR 367 Craig v South Australia (1995) 184 CLR 163 Han v Minister for Home Affairs [2019] FCA 331 Katragadda v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 143 Kaur v Minister for Immigration and Border Protection (2019) 269 FCR 464 Minister for Immigration and Citizenship v SZLIX [2008] FCAFC 17; 245 ALR 501 Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 Singh v Minister for Immigration and Border Protection (2016) 247 FCR 554 SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189 SZLPH v Minister for Immigration and Border Protection (2018) FCR 105 SZRUR v Minister for Immigration and Border Protection (2013) 216 FCR 445 Division: General Division Registry: South Australia National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 82 Date of last submissions: Appellant: 15 September 2023 First Respondent: 26 September 2023 Date of hearing: 25 July 2023 Counsel for the Appellant: Mr P McCabe Solicitor for the Appellant: Johnston Withers Lawyers Counsel for the First Respondent: Mr G Johnson SC and Mr N Swan Solicitor for the First Respondent: Sparke Helmore Counsel for the Second Respondent: The Second Respondent filed a Submitting Notice ORDERS SAD 147 of 2020 BETWEEN: ANW18 Appellant AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS First Respondent IMMIGRATION ASSESSMENT AUTHORITY Second Respondent order made by: CHARLESWORTH J DATE OF ORDER: 4 SEPTEMBER 2024 THE COURT ORDERS THAT: 1. The appeal is dismissed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT CHARLESWORTH J 1 The appellant is a citizen of Iran. He arrived in Australia on 7 December 2012 as an unauthorised maritime arrival. On 2 May 2016, he applied for a Safe Haven Enterprise Visa under the Migration Act 1958 (Cth). 2 Under s 65 of the Act, the Minister must refuse a visa application if the Minister is not satisfied that all of the criteria for the visa are fulfilled. To answer one of those criteria, the appellant asserted that he had a well-founded fear of persecution if returned to his home country, initially on the basis of his political beliefs and activities and later on the basis of his religious beliefs. 3 The application was refused on 4 May 2017 by a delegate of the then-named Minister for Immigration and Border Protection. 4 The matter was automatically referred to the Immigration Assessment Authority (IAA) on 25 May 2017 for review of the delegate's decision. On 23 November 2017 the IAA affirmed the decision not to grant a visa to the appellant. 5 The formerly named Federal Circuit Court of Australia (FCCA) dismissed the appellant's application for judicial review of the IAA's decision: ANW18 v Minister for Home Affairs & Anor (No 2) [2020] FCCA 2638 (J). This is an appeal from that judgment. BACKGROUND 6 The appellant participated in an interview shortly after his arrival in Australia (arrival interview), at which he explained why he had left his home country in the following way: I was working for the City Council for 2 years before my departure, trying to get poor people and runaway girls off the streets. We had a contract with the City Council and they were corrupt and because I actually put my investment with them into that contract so I was an inspector to the campus where these people were accommodated. I found out there was a lot of bribery and the campus was not being kept very well. There were two guys [redacted] – I put 300 million Toman into their investment and they actually took my money and didn't do anything. [redacted] was working for SEPAH and was very powerful and they kept threatening me that if I report it to the City Council – they kept saying that they knew I had activities with the Green Movement during the election time because I had been working one of the election campaigns. They planted illegal drugs on my motorbike to try and get me arrested by the Police – if I had been arrested I could've faced death. They held this over me and threatened to cancel the whole contract which was worth 1300 million 7 In that passage, "SEPAH" is a reference to a part of the police service in Iran, and the Green Movement is a dissident political movement. In broad summary, the answer given by the appellant was twofold. He alleged that a business deal had gone wrong, leading to well-connected people threatening to get the police to take action against him, and that he feared persecution because of his dissident political activities. 8 When asked whether he or his family members had been associated with any political group or organisation, the appellant responded "yes" and referred to his involvement in the Green Movement. When asked whether he was a member of any particular social or religious group, he responded "no". When asked whether the police and security or intelligence organisations impacted on his day to day life in his home country, the appellant said: Yes. Always, every day - even when you are go outside with your wife – they pick on your clothes. 9 The appellant engaged the services of an accredited migration agent in February 2016. The appellant had by that time been detained at Inverbrackie in the Adelaide Hills and had attended a nearby Jehovah Witness Church. 10 The migration agent submitted a document titled "Statement of Claims" on his behalf. It took the form of written responses to numbered questions on an application form. Question 89 was "Why did you leave that country". This was the response authored by the migration agent (spelling errors retained). I will refer to it as Response 89: I came from Iran to Australia by boat via Indonesia and reached to Australia on the December 2012 to save my own and family's life. The main reason of my flee from Iran to Australia, goes back to when I became a part of Halgheh Erfan and learned Faradarmani or Halgheh Erfan up to a quite advanced level. While still studying Faradarmani, as I realised that what I have been following is extracted from the Christian faith, I became interested to learn about the Christian faith through an underground Churches with the help my college [redacted]. Few months after I had started Fardarmani classes, I also started learning about the Christianity concurrently. However following the arrests of number of my Christian and Fardarmani friends, and series of threat and intimidations to my life and liberty, I decided to come to Australia to end my fear of being persecuted, arrested or even executed. … Ever since we came here and found the freedom of following my desired religion, I became part of the Woodside congregation of Jehovah's witnesses and I found more and more Christian friends. (emphasis added) 11 I have emphasised some parts of Response 89 for reasons that will soon be explained. 12 Halgheh Erfan (also known as Faradarmani) is a new age movement based on faith healing. 13 The completed form also contained the following: Q.91 DID YOU EXPERIENCE HARM IN THAT COUNTRY? YES, I had experience of harm of that country, also they threatened me to kill because of my new faith and believe. I and my partner [redacted] which was a manger director of [redacted] camp had a contract with the city council he was best friend of [redacted], they were really corrupt people. Unfortunately I put my investment with them in to the contract so I was an inspector to the campus where these people were accommodated, I found out there was a lot of bribery and the campus was not being kept very well, those 2 guys [redacted], they got 300 million Tohman of me as investment to get some tender offer from government but thy actually took my money and didn't do anything, [redacted] was working for SEPAH and he was very powerful and they kept threatening me that if I report it to the city council they will arrest me as they knew I had activities with the Halgheh Erfan, also I was part of the green movement during election time because I had been working one of the election camping's. After a while they secretly put and embed some illegal drugs on my car and made plan to give report to police to arrest me. If I had been arrested I couldn't have faced death, they held this over me and threatened to cancel the whole contract. One of my friend told me about their plan and suggested me to leave this country as there was very serious plan on me if I would be caught I would hanged to death, finally after all this I decided to leave Iran to safe my life then I got migrated to Australia. After leaving my home my family left the country as well as they had to leave Iran because they threatened them a lot and they got many warnings even they said that would kidnapped my son. … Q.93 DID YOU MOVE, OR TRY TO MOVE, TO ANOTHER PART OF THAT COUNTRY TO SEEK SAFETY? No matter where I would go, Iranian government forces strict vigilantes could locate me and harm me. Iranian government forces could locate me and harm me when they wanted. On the other hand since Iranian people are mostly Muslims inside Iran and there are many of them working for the Iranian government like [redacted] members, I could never practice my Christian faith in Iran free from risk of my life and always had to live under the fear of being located and persecuted for renouncing Islam, not following the Iranian government's line of thoughts rather embracing Christina faith which they consider it as heresy. … Q.95 DO YOU THINK THE AUTHORITIES OF THAT COUNTRY CAN AND WILL PROTECT YOU IF YOU GO BACK? No, the authorities won't offer me protection. It is the authorities whom I fear harm from. They were not able to provide me with protection; People in my situation in Iran are harassed and. In Iran, all the laws are based on Islamic rules and against non-Muslims. Those exiting from Islam like me would be considered as infidel and subject to capital punishment. Therefore Iranian government authorities would have no reason to be lenient to us rather would punish us hard to threaten others. (original spelling and grammar retained, emphasis added) 14 In March 2017, the appellant repeated his claims in a statutory declaration, also prepared by the migration agent. He participated in an interview with the delegate on the same day. The delegate's decision 15 The delegate's decision contains this summary of what the appellant said at his interview: The applicant stated during his Protection visa interview that his participation with Halgheh Erfan was being held against him by his former business partner, [redacted], and used by the Security Police Chief [redacted] to threaten him (with apostac/blasphemy against the regime) into dropping the case regarding the return of his investment moneys. 16 The delegate continued: The applicant purported in his written statement of claims that he studied Faradarmani (Beyond Healing) which is part of Halgheh Erfan teachings '…up to a quite advanced level' and whilst doing this he claimed that he '…became interested to learn about the Christian faith through underground Churches with the help my college [sic] [redacted]'. Whilst researching Halgheh Erfan I could not locate any available country information that related the practice of Halgheh Erfan to Christian teachings. When I questioned the applicant at his Protection visa interview about Halgheh Erfan he stated that he was introduced to it by [redacted] and took a few of his charges from the rehabilitation camps to sessions with the organisation. I questioned the applicant as to what level of Faradarmani he studied or if he became a 'practitioner' and he stated '…I never became a practitioner but observed a few sessions'. I questioned him on what level of Faradarmani he studied and he responded 'I was a beginner but my friend [redacted] accomplished a lot and sort of became one of the leaders as a result of that he had to leave and was granted citizenship in Belgium now'. I questioned the applicant if participating in Fardarmani [sic] changed his views on Islam and he responded 'Yes because I was never a practising Muslim and if you are a Muslim you have to pray five times a day but it sort of opened my horizon and this is an ongoing thing that I have continued and that whilst being here. When you are in Iran you are in Iran you are in a dark hole…but when you come to a country like this you can see around and you can broaden your horizon and see that there are alternatives things you can follow. Like here you go to Jehovah's Witnesses and then you go somewhere else and they totally refute them.' 17 The delegate concluded that the appellant's written statement of claims concerning Halgheh Erfan and his training in Faradarmani leading to an interest in Christianity differed from the account he had put forward at his arrival interview. The delegate said that the appellant had not provided any evidence of the courses or training he had attended, and went on to reject his claims to have been involved with Halgheh Erfan and to have studied Faradarmani. The delegate said that the appellant had presented inconsistent details regarding key issues on which his claims relied, specifically in relation to his religious practices and beliefs and his claims to have avoided compulsory military service. The delegate said that the lack of information and inconsistences brought into question the credibility of the claims. The IAA's decision 18 As I have mentioned, the delegate's decision to refuse to grant the protection visa was automatically referred for review to the IAA under Pt 7AA of the Act. For the purposes of the review, the appellant was represented by a different migration agent who made submissions on his behalf. 19 The IAA considered the several aspects of the appellant's claims for protection, relating among other things to his prior business dealings, his involvement in the Green Movement and his involvement with Halgheh Erfan. On the latter topic, it said: 42 At his arrival interview the applicant stated he was a Shia Muslim when asked. At the beginning of his PV interview the applicant explained to the delegate that in relation to his arrival interview when he had stated he was a Shia Muslim when asked his religion he did so only because his parents were Muslim. I also note in his arrival interview there was no reference to Halgheh Erfan, his friend MK or Christianity. Asked whether he was a member of any particular social or religious group, the applicant stated 'no'. There are also discrepancies between what he provided in his PV application to his evidence given at his PV interview. In his claims the applicant stated he tried to promote his knowledge and faith in Halgheh Erfan to the people in the camp to help them in their current situation. It was the main reason he left Iran and he learned it up to 'quite an advanced level', Christianity was extracted from it and he became interested in Christianity through the underground Churches. However, at his PV interview the applicant stated he was only a beginner and provided no information about attending underground churches in Iran. He learned from the younger people by observing them who said it helped. He did not claim to pass on his knowledge. … 44 Whilst I consider it plausible that the applicant may have come into contact with Mohammad Ali Taheri's ideas whilst working with drug addicts and those fighting various addictions in the camps where he worked, I am not satisfied that he attended any specific groups, underground Churches or that it introduced him to the ideas of Christianity. There is nothing in the country information before me to indicate Erfan Halgheh is linked to Christianity. Given the Iranian authorities aversion to Christianity, had Erfan Halgheh been connected with Christianity the authorities would never have tolerated it. Furthermore other than making no mention of this fear in his arrival interview, the applicant has not been consistent in his claims about his level of involvement as discussed above. I am of the view the applicant has fabricated his involvement with Halgheh Erfan to strengthen his claims for protection. I am not satisfied he has a well-founded fear of persecution on the basis of his claimed connection to either Christianity or Halgheh Erfan (Faradarmani) I consider the applicant at the time he departed Iran was a non-practising Muslim. (emphasis added, footnote omitted) 20 The IAA referred to the appellant's practice as a Christian since his arrival in Australia. It said that it was apparent from the evidence he gave at his arrival interview that he was not engaged in Christianity whilst in Iran. It noted that the appellant had stated in his interview with the delegate that he had originally described himself as a Shia Muslim only because his parents were Muslim. 21 The IAA affirmed the delegate's decision principally because of the adverse findings it had made about the appellant's credibility. Some of those findings were based on the differences between the claims he had made in his arrival interview and the claims he had made after that time whilst represented by his former migration agent. The judicial review application 22 In the proceedings before the FCCA, the onus was on the appellant to show that the IAA's decision was affected by jurisdictional error: Act, s 474; Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476; Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82; Craig v South Australia (1995) 184 CLR 163. 23 The appellant was self-represented at the hearing of his application for judicial review, but he did have legal assistance in the preparation of grounds of review and supporting affidavit evidence. No written submissions were provided. The written materials asserted that the IAA's decision was affected by jurisdictional error in two respects. 24 First, the appellant alleged that the decision of the IAA was "vitiated by fraud, such that the jurisdiction of the [IAA] to review the delegate's decision was constructively unexercised". The particulars to that ground alleged that the application prepared by the migration agent contained "fraudulent information". The alleged fraudulent information was described as that set out in two affidavits of the appellant filed in the proceedings. I will summarise their content here, given their significance for the outcome of the appeal. 25 Among other things, the appellant deposed that he had not read the statutory declarations, that they had not been read to him and that he had been "told [by the migration agent] to sign them without having read them". He said that the "statements" included information that was not true, including the information about his connection to Halgheh Erfan. On that topic, the appellant deposed "[w]hile I did attend one meeting, I had no ongoing connection with it. This was not the main reason I fled Iran". He also said that it was not true that anyone had tried to kidnap his son. 26 In a later affidavit, the appellant said that at his first meeting with the migration agent he spoke about the reasons why he came to Australia. He continued: 10. … Some of what I told him, such as my interaction with Halgheh Erfan, I did not want to have included in my case. 11. [The migration agent] told me that with the things I told him, my case would be strong, and that he would elaborate on them. 27 The appellant said that the migration agent prepared documents and that the migration agent "explained the Statement of Claims to me briefly". He said: 16 … [The migration agent] told me that the statement was about my case, and that he had made a case for Christianity for me. He told me not to worry, and that I would be accepted by the Department. He did not read the electronic forms or my Statement of Claims to me. 17 [The migration agent] told me to go and get baptised. I had been going to the Jehovah's Witness church for around three years, but he said that this was not good, and that I should find a church to get baptised at instead. 28 The appellant said that he met the migration agent about an hour before his interview with the delegate. He said that the migration agent told him to talk about Halgheh Erfan, but he didn't want to. He said that during a break in the interview the migration agent had insisted that he raise the topic when the delegate returned. He said that the migration agent was (at [27]): … even kicking me with his foot under the table and poking me when the interview resumed to remind me. He pointed to his ring also, because the word ring in Persian is 'Halgheh'. 29 The appellant said that he had a different migration agent for the IAA review, but was not aware that his written statements contained information that was untrue until after IAA's decision. 30 The appellant was cross-examined on his affidavit but made no oral submissions in support of his grounds of review. 31 Under cross-examination, the appellant acknowledged that in his interview with the delegate he had claimed that his participation with Halgheh Erfan was being used against him by his former business partner and a police chief to threaten him into dropping his case about the return of investment monies, and that the threats related to apostasy and blasphemy against the Iranian regime. He acknowledged that what he had said on that topic was untrue. He accepted that neither his business partner nor the police chief had said anything to him about Halgheh Erfan. He went on to say that during the course of the interview with the delegate, the migration agent had secretly kicked him and signalled to him that he should mention Halgheh Erfan. He said that he was "pushed" by the migration agent to say what he had said about Halgheh Erfan. 32 The primary judge concluded that the evidence given by the appellant in cross-examination about his protection visa interview was "far from satisfactory": J, [17]. On the basis of that evidence his Honour said he was not satisfied that any of the written claims put forward by the migration agent were fraudulent. His Honour said (at J, [24]): … At most, if they do not precisely record what the applicant now says is the case, that would constitute exaggeration or, perhaps, misunderstanding of instructions. It falls well short of fraud. In relation to that ground, I am not satisfied that there had been a fraud committed on the applicant. I am not satisfied that there has been any stultification of the relevant statutory decision-making process. 33 The primary judge went on to say that as there had been no fraud, the question of whether the appellant had been complicit did not arise. However, his Honour said that if the claims in relation to Halgheh Erfan and the integrally related claims of threats following the business deal were false, then the appellant had been complicit in making the claims by raising them and elaborating on them in his interview before the delegate. 34 The second ground for judicial review included an allegation that the IAA's decision was affected by jurisdictional error because there had been a failure to comply with s 473CB(1) of the Act. It relevantly provides: (1) The Secretary must give to the Immigration Assessment Authority the following material (review material) in respect of each fast track reviewable decision referred to the Authority under section 473CA: … (c) any other material that is in the Secretary's possession or control and is considered by the Secretary (at the time the decision is referred to the Authority) to be relevant to the review; … 35 As the primary judge observed, the Secretary's obligation under s 473CB arose at the time that the delegate's decision was referred for review: CQR17 v Minister for Immigration and Border Protection (2019) 269 FCR 367 (at [39]). That occurred on 5 May 2017 (Referral Date). 36 In the particulars to his second ground for review, the appellant asserted that as at the Referral Date there was material in the possession of the Secretary that was relevant to the IAA's review of the delegate's decision, namely complaints that had been made to the Office of the Migration Agents Registration Authority (OMARA) about the appellant's migration agent "inter alia on 13 March 2017 and 6 July 2017". 37 The primary judge found (correctly) that the complaint made on 6 July 2017 post-dated the Referral Date and so should not be considered. 38 It was not disputed that the complaint made on 13 March 2017 was one that had been made by the Department administered by the Secretary and so contained information that was within the Secretary's possession as at the Referral Date. 39 The appellant relied on written reasons of OMARA for cancelling the registration of the migration agent and drew on those reasons to prove the subject matter of the Department's complaint. It included an allegation that the migration agent had falsified claims for two visa applicants (referred to as "MA" and "FS") using identical or "shared" wording. 40 The appellant said that the wording used by the migration agent in relation to those visa applicants was in some respects the same as that used in the statutory declaration utilised in his own case. The material was said to be relevant to the IAA's review because it explained why there were inconsistencies in the appellant's claims as identified by the delegate. Those circumstances, he alleged, gave rise to an obligation on the part of the Secretary to provide the complaints to the IAA because they indicated that the migration agent had committed fraud in the preparation of his visa application form and other documents. 41 The primary judge drew on the reasons of OMARA to the extent that they concerned the Department's complaint. His Honour considered four passages from the appellant's statement of claims that were said to be identical to claims drafted by the migration agent for the other visa applicants. His Honour said that whilst the content of the passages was the same, he did not consider the duplication to be significant because the passages were true of the appellant himself or otherwise lacked significance. Accordingly, his Honour said, there was nothing in the Secretary's possession as at the Referral Date that would indicate that the migration agent was conducting himself fraudulently or improperly in relation to the appellant. It followed, his Honour said, that the Secretary had not failed to comply with the obligation under s 473CB of the Act. GROUNDS OF APPEAL 42 There are two grounds of appeal. The first alleges that the primary judge erred in finding that the material conclusions supporting the IAA decision were not vitiated by fraud on the part of the appellant's migration agent. The second alleges that the primary judge erred in concluding that there was no material before the Secretary at the Referral Date to indicate that the appellant's migration agent was conducting himself fraudulently or improperly. 43 In the course of the hearing, the Minister alleged that the appellant had attempted in his oral submissions to introduce arguments that had not been raised at first instance. The Minister contended that the appellant could not introduce those arguments without the leave of the Court. The new arguments were said to be as follows: (1) the "fraudulent information" contained in the appellant's visa application form included claims about conversion to Christianity and the primary judge erred in failing to comprehend that was so; (2) the material that the Secretary ought to have provided to the IAA included additional complaints made to OMARA about the migration agent (dated 8 February 2017 and 1 March 2017) and the learned primary judge erred in failing to have regard to them; (3) the identical wording evidencing fraud went beyond the passages emphasised in the affidavits upon which the appellant relied and included passages that the primary judge erroneously failed to take into account; and (4) the appellant articulated in oral submissions the reason why the alleged fraud stultified the IAA's review, whereas on his application for judicial review he had not articulated those reasons. 44 The appellant's primary position is that those arguments are not new. However, in the event that he is wrong, he now seeks leave to "expand" his case to include them. 45 Whether the arguments are new and, if so, whether leave should be granted to raise them, will be considered in the context of disposing of each ground of appeal. Ground 1 46 This ground is as follows: 1. The Court below erred: a. in finding that the material conclusions which led to the decision of the Second Respondent (the IAA) dated 23 November 2017 (Decision) were not vitiated by fraud b. in finding that the appellant was nonetheless complicit in any fraud 47 Oral submissions in support of the ground relied on "fraudulent information" relating to three topics: the appellant's connections with Halgheh Erfan, the threats to kidnap his son, and his conversion to Christianity. Connections with Halgheh Erfan and kidnapping threats 48 It was submitted that when the affidavit and oral evidence of the appellant was considered, no reasonable decision-maker could come to the conclusion that the things the appellant had said at the delegate interview about Halgheh Erfan were true. It was submitted that the trial judge therefore erred in concluding that the responses given on the visa application form were not fraudulent and that no fraud had been committed on the appellant himself. 49 Proof of fraud of a kind that would warrant the setting aside of an "otherwise blameless decision" is a heavy burden: SZRUR v Minister for Immigration and Border Protection (2013) 216 FCR 445 (at [51]). The burden is not discharged by the demonstration of bad or negligent advice: SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189 (at [53]). 50 As the Full Court explained in Katragadda v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 143, the discharge of the appellant's onus required proof of three factors: (1) fraud by the migration agent; (2) a resulting stultification of the decision making process; and (3) an absence of complicity in the fraud itself by the appellant. 51 In Singh v Minister for Immigration and Border Protection (2016) 247 FCR 554 (at [52], citing SZFDE and Minister for Immigration and Citizenship v SZLIX [2008] FCAFC 17; 245 ALR 501) the Full Court held that the establishment of fraud is not enough; it must be shown that the fraud is such as to "stultify one or more aspects of the relevant statutory decision-making processes under the Migration Act". It then falls upon a visa applicant to prove that he or she was neither complicit in the migration agent's fraud, nor that he or she had a state of mind that bordered on "reckless indifference" to the fraud, to the standard required by s 140 of the Evidence Act 1995 (Cth): Katragadda at [56]. Reckless indifference amounts to wilful blindness; a near deliberate dishonesty: Kaur v Minister for Immigration and Border Protection (2019) 269 FCR 464 (at [137]). 52 Intentional complicity does equate to a state of mind that is characterised as helpless, naïve nor ignorant, nor considered dependence or reliance on a migration agent's advice: see Kaur at [138] – [140]. 53 The reasons of the primary judge are not expressed in terms of positive findings about the absence of fraud. Rather, they explain why the primary judge was not satisfied that the appellant had discharged his onus. That conclusion was based on the assessment of the evidence as a whole, and especially his Honour's evaluation of the oral evidence given by the appellant. The primary judge concluded that if the written claims put forward by the migration agent did not precisely record what the appellant now said was the case, that would constitute exaggeration or, perhaps, a misunderstanding of instructions. 54 The appellant has not shown that reasoning to erroneous, having regard to the material before the primary judge, including the impressions conveyed by the appellant as a witness. The primary judge described the evidence given by the appellant as "far from satisfactory" and explained why that was so. The conclusion was based on (at least) the following features of the cross-examination: (1) The appellant had initially said that he had told the truth in his interview with the delegate, and it was only when he was reminded about the content of his affidavits that he referred to the migration agent kicking him under the table and pointing to his ring as a way of prompting him to raise the topic of Halgheh Erfan. (2) It was unclear whether the appellant himself was saying that he was forced into making statements that were untrue or whether the role of Halgheh Erfan had been exaggerated in the claims put forward on his behalf. In that respect, the appellant had said that the migration agent had made Halgheh Erfan into a "bigger thing" than it was. (3) It was difficult to credit that explanation given what the appellant had said in the interview with the delegate which placed significance on his Halgheh Erfan connections and the extortionary use his adversaries had sought to make of them. (4) The primary judge observed that the appellant had said in his interview with the delegate that his wife had been harassed at the family home by his business adversaries and, in that context, that his son had been threatened at school and "chased", and that the appellant had also said in cross-examination that his son had been threatened and chased on his way home from school. His Honour considered that to be tantamount to an allegation that the purpose of the chasing was, potentially at least, an attempt to kidnap the son. 55 To the extent that the transcript of the cross-examination contains discrete passages that might support a different finding when considered in isolation, they do not the assist the appellant in identifying appealable error. It is not sufficient to show that a differently constituted court might have reached a different conclusion. 56 As to the question of complicity, the evidence given on the application for judicial review was obviously relevant to the question of whether the statements of claim contained in the visa application form itself were false, and to the different question of whether the migration agent had committed a fraud on the IAA in which the appellant had no relevant involvement. The two questions were interrelated on the evidence, because proof of adherence to a false narrative by the appellant in his interview with the delegate is plainly relevant in determining whether the appellant was complicit in the migration agent's fraud. The primary judge was correct to conclude that false statements made in the interview with the delegate evidenced complicity on the appellant's part in a fraud on the visa application process as a whole. It could not assist the appellant to say that he was urged by the migration agent to make false statements to the delegate. The uncontested fact was that he chose to make those statements and that he knowingly did so. A visa applicant voluntarily joining in a scheme to put up a false narrative in support of the application cannot succeed on an argument that the proceedings on review of any resultant adverse decision were stultified. Whatever be the test for stultification, the primary judge was correct to conclude that it had not occurred in this case. 57 It is therefore unnecessary to consider the appellant's more nuanced arguments about the test for stultification warranting a conclusion that a decision on judicial review is "vitiated", nor is it necessary to consider whether those arguments are an expansion of what was advanced below on that topic. Christianity 58 The reasons of the primary judge contain an extract from the appellant's affidavit in which he referred to the migration agent urging him to get baptised. The primary judge said that he had expressly asked the appellant whether he should understand that evidence to mean that the claim of conversion to Christianity made on his behalf was false, and that the appellant had responded that those claims were not fraudulent. 59 The appellant's primary written submissions advanced no argument that the migration agent had prepared false statements concerning the appellant's conversion or other connection to Christianity. Neither the grounds of appeal nor the grounds for judicial review expressly refer to the topic. Submissions on the topic were advanced orally for the first time at the hearing of the appeal. 60 The effect of those submissions was that the primary judge erred in failing to identify that the case on judicial review included an allegation that the fraudulent information contained in the documents prepared by the migration agent included false claims on that topic. The appellant relies upon this exchange with the primary judge in the course of his examination: HIS HONOUR: … ANW18, do you say that what was said about your Christian conversion [in the Application Form] was false or not? THE INTERPRETER: Before I got to [the migration agent] - - - HIS HONOUR: Sorry, sir, I will repeat my question. I will repeat my question. … Do you say your claims – the claims made on your behalf about Christianity were fraudulent or not? THE INTERPRETER: I believe in Christianity, but [the migration agent] said if I get some sort of certificate, it's good. HIS HONOUR: I will ask you again, sir. Sir, I have one question. Were your claims about Christianity, the claims about Christianity made on your behalf by [the migration agent] [in the SHEV Application], fraudulent or not? THE INTERPRETER: What has he written there? HIS HONOUR: Thank you. Is there anything else you wish to say, sir? THE INTERPRETER: No. HIS HONOUR: Thank you…. 61 Counsel for the appellant submitted that the exchange could not be said to have "ruled out" that the appellant was making an allegation that the claims of Christianity were fraudulent. In addition, it was submitted that an "obvious inference" arose from the affidavit material that claims about Christianity fell within the claims the appellant had alleged were fraudulent. 62 I do not accept that the affidavits obviously supported an inference that Christianity was a topic encompassed within the fraud allegations the appellant had made. In cross-examination, the appellant himself confirmed that he believed in Christianity and that the migration agent had urged him to get a certificate (reasonably understood to mean a baptism certificate). He had several opportunities at first instance to confirm that the claims about conversion had been falsified by the migration agent, but he did not do so. Moreover, the appellant gave no additional evidence to explain how it was that the claims were falsified and to what extent. Given all of that, I am not satisfied that the primary judge erred in concluding that the topic was not encompassed within his claims of fraudulent activity. The arguments are new and it is therefore necessary to consider whether the appellant should have leave to raise them now. 63 The Court may grant leave if it is expedient in the interests of justice to do so: Han v Minister for Home Affairs [2019] FCA 331; SZLPH v Minister for Immigration and Border Protection (2018) FCR 105. 64 I am not satisfied that leave should be granted, for three reasons. 65 First, the Court is invited to accept that the failure to raise the topic in the proceedings below is explained by the appellant's self-represented status on his judicial review application. However, at first instance, the appellant relied on grounds of review and affidavits prepared at a time when he was legally represented. The grounds were amended more than once by the appellant's solicitor. The arguments now sought to be raised were not contained in them and did not otherwise obviously arise by inference. It may well be the case that the arguments were considered by the appellant's solicitor but a conscious decision made not to raise them. In the circumstances, it is not enough to point merely to the circumstance that the appellant was not legally represented at the time of the hearing itself. Moreover, the primary judge was at pains to clarify the scope of the claims of fraud, specifically by inviting the appellant to confirm that they encompassed the Christianity issue. As I have said, his responses did not clearly identify that they were. 66 On the material before me I am not satisfied that there is an adequate explanation for the failure to raise the arguments below. 67 Secondly, the cross-examination of the appellant did not enter the fray as to whether he had told the truth in his interview with the delegate about the topic of his conversion to Christianity. Had the appellant squarely raised the issue, the Minister on the application for judicial review could have tested him on his allegation. In my view, the responses the appellant gave to the plainly worded questions of the primary judge rendered it unnecessary for there to be any further examination on that topic by the Minister's counsel. The Minister would be prejudiced if the appellant were permitted to raise such a fact sensitive issue now. 68 Thirdly, the arguments about fraudulent information concerning Christianity are no more persuasive on their merits than the arguments concerning fraudulent information about Halgheh Erfan. The appellant's affidavits make it plain that he told the migration agent about his connections with Christianity and the appellant confirmed in cross-examination that he was a Christian. Ground 2 69 This ground alleges that the primary judge erred in rejecting the second ground for judicial review advanced at first instance, including by failing to find that the Secretary failed to comply with the obligation to provide the IAA with relevant materials, and by failing to find that the Secretary's non-compliance materially affected the outcome of the IAA's review. 70 It is convenient to turn first to those materials that were undoubtedly encompassed in the arguments raised below, namely complaints made to OMARA dated 13 March 2017 and 6 July 2017. The primary judge was correct to exclude consideration of the latter complaint because it post-dated the Referral Date. 71 As mentioned above, the complaint dated 13 March 2017 was made by the Department to OMARA and related to two visa applicants. It is not disputed that the Department's complaint was in the Secretary's possession. The issue on appeal is whether the primary judge erred in concluding that the Department's complaint was not indicative of fraud on the part of the appellant's migration agent. 72 The appellant is correct to say that his credibility was squarely in issue on the IAA review, including because the delegate's decision to refuse the visa was based in large part on inconsistencies between what he had said in his arrival interview and what had later been said in his visa application form, statutory declaration and the interview with the delegate. 73 At first instance, the appellant relied on an affidavit of his former solicitor which annexed the written reasons of OMARA. Those reasons are 53 pages long. The solicitor stated that she had compared the appellant's statement of claims to the wording used in "two other declarations" found by OMARA to have been identical as between two other visa applicants. She attached a copy of the appellant's claims in which she had highlighted those passages that were said to be identical to wording set out on pages 30 to 32 of OMRARA's decision. They are the passages emphasized in bold in Responses 89, 93 and 95 (see [10] and [13] above). 74 The primary judge acknowledged that the emphasised passages used language that was substantively identical to that employed by the migration agent in the other two cases and observed that the passages appeared to have been "cut and paste". However, the primary judge did not consider the common wording to be significant because they largely went to matters that were true of the appellant. 75 I am not satisfied that reasoning was erroneous. The primary judge was not bound to conclude that the use of identical wording in some passages of the appellant's claims was sufficient to indicate fraud on the part of the migration agent, as opposed to cutting and pasting of claims that were true in substance of the appellant. It must be borne in mind that the relevance of the material to the IAA's review was said to flow from the delegate's finding that the appellant had made inconsistent claims, including the introduction of a claimed connection with Halgheh Erfan. The claims about Halgheh Erfan were not duplicated from the claims of the other two visa applicants. As the emphasised passages show, they were either generalised statements that were undoubtedly true of the appellant or they related to his adherence to Christianity. 76 In any event, it is difficult to identify the relevance of the materials given the undisputed circumstance that the appellant himself gave a narrative at his interview with the delegate that aligned with the false narrative in the documents the migration agent prepared. Given that alignment, the documents themselves were not suggestive of a fraud committed without the appellant's knowledge or involvement. 77 It remains to consider whether the primary judge erred in failing to consider other passages from claims submitted in relation to other complainants. In that regard, the appellant relies on passages set out in the reasons of OMARA relating to visa applicants other than MA and FS. I accept that those passages contain some similar or identical wording to some parts of the information prepared by the migration agent on behalf of the appellant. However, I am not satisfied that the case advanced by the appellant on his application for judicial review was one that invited the primary judge to consider those passages in determining either ground of judicial review. 78 The solicitor's affidavit made it plain that the "shared wording" relied upon was that wording that she had specifically highlighted within the materials annexed to her affidavits. The solicitor did not highlight any of the passages now underpinning the arguments made on appeal. Nor was the second ground for judicial review worded in such a way as to alert the primary judge to the circumstance that those additional passages formed a part of the appellant's case. Nor has it been shown that the appellant advanced oral submissions at the hearing of his application that would have alerted the primary judge to the additional materials and how they were sought to be employed. 79 Whether or not the appellant was self-represented, it formed no part of the task of the primary judge to comb the lengthy reasons of OMARA to identify additional passages that might align in some way with the multitude of answers given by the appellant in his visa application form or statutory declaration. 80 The same may be said of the submission that the primary judge failed to have regard to all of the "shared wording" passages relating to the visa applicants MA and FS. It has not been shown that the additional passages were emphasised by the appellant at first instance, nor that they added anything further to his case in connection with the passages already relied upon. 81 The problem for the appellant was that, on any view of the facts, he had knowingly put forward a false version of events in his interview with the delegate. Proof that documents prepared by his migration agent were also false could not on any reasonable view support a finding that there was fraud of a kind sufficient to stultify the IAA in the performance of its review function. Leave to advance new arguments based on the additional materials will not be granted. 82 It follows that the appeal must dismissed. I certify that the preceding eighty-two (82) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Charlesworth. Associate: Dated: 4 September 2024