Alaebo-Emmanuel v Minister for Immigration, Citizenship and Multicultural Affairs - [2024] FedCFamC2G 514

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Alaebo-Emmanuel v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 514

File number: PEG 137 of 2023

Judgment of: JUDGE KENDALL

Date of judgment: 7 June 2024

Catchwords: MIGRATION – Student visa – decision of the Administrative Appeals Tribunal – whether the Tribunal failed to afford the applicant procedural fairness – whether the Tribunal failed to consider relevant information – whether the Tribunal considered irrelevant information – alleged fraud by the applicant’s agent – Ministerial intervention – no jurisdictional error – application dismissed.

Legislation:
Migration Act 1958 (Cth), ss 5, 46, 47, 48, 49, 98 & 476 and Division 5 of Part 5

Migration Regulations 1994 (Cth), cll 485.224 & 500.211-500.218 in Schedule 2 and PIC 4020 in Schedule 4

Cases cited:
Bala v Minister for Immigration & Border Protection [2019] FCA 600

BKT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 384

Craig v State of South Australia (1995) 184 CLR 163

Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3

Gill v Minister for Immigration and Border Protection [2016] FCAFC 142

Kaur v Minister for Immigration and Border Protection [2017] FCAFC 184

Kaur v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 243

Maharjan v Minister for Immigration and Border Protection [2017] FCAFC 213

Minister for Immigration & Citizenship v Li (2013) 249 CLR 332

Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611

Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259

Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11

Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437

MZXLD v Minister for Immigration and Citizenship [2007] FCA 1912

Patel v Minister for Immigration and Border Protection [2015] FCAFC 22

Prodduturi v Minister for Immigration and Border Protection [2014] FCA 624

SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294

Singh v Minister for Immigration and Border Protection [2018] FCAFC 52

Singh v Minister for Immigration and Border Protection [2016] FCAFC 141

SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63

SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80

Trivedi v Minister for Immigration and Border Protection [2014] FCAFC 42

Vyas v Minister for Immigration and Citizenship [2012] FMCA 92

Zhang v Minister for Immigration and Border Protection [2016] FCA 921

Division: Division 2 General Federal Law

Number of paragraphs: 188

Date of hearings: 1 November 2023 & 20 February 2024

Place: Perth

Applicant: Applicant appeared in person

Counsel for the First Respondent: Ms G Ellis appeared at the first hearing in this matter (on 1 November 2023) and Ms C Taggart of counsel appeared at the second hearing (on 20 February 2024)

Second Respondent: Submitting appearance, save as to costs

Solicitor for the Respondents: Sparke Helmore
ORDERS

PEG 137 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
ESOMCHI FAITHFUL ALAEBO-EMMANUEL

Applicant

AND:
MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:

JUDGE KENDALL

DATE OF ORDER:

7 JUNE 2024

THE COURT ORDERS THAT:
1.The application be dismissed.

Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE KENDALL:
BACKGROUND

The applicant is a citizen of Nigeria (Court Book (“CB”) 2). He first arrived in Australia in April 2017 as the holder of a student visa. The applicant indicated that he intended to complete a Diploma of Science (Engineering Studies) course (the “Diploma course”) and a Bachelor of Engineering (Mechatronics) (Honours) course (the “Bachelor course”) (CB 99).
The applicant completed the Diploma course on 15 June 2018 (CB 21-22 and the affidavit of Benjamin Mayne affirmed on 23 October 2023 and filed in this Court on 24 October 2023 (the “Mayne affidavit”), p 4). The applicant re-enrolled in the Bachelor course numerous times between 2017 and 2021. His student visa expired on 15 March 2021. All of the applicant’s enrolments in the Bachelor course were cancelled because of a failure to commence studies or a failure to pay fees (CB 12 and Mayne affidavit 4-9).
On 12 March 2021, the applicant applied for the Student (Class TU) (Subclass 500) visa the subject of this application (the “visa”) (CB 1-18). With his visa application, the applicant provided an affidavit of sponsorship (from his father), a genuine temporary entrant statement, academic records related to the Diploma course and an affidavit of change of name document (from his father) (CB 19-23).
On 15 June 2021, the Department of Home Affairs (the “Department”) asked the applicant to provide more information in support of his visa application (CB 24-31). In particular, the Department asked for a detailed explanation relating to the applicant’s “financial capacity”, “evidence of annual income” and “relationship to the source funds” (together with some health-related information) (CB 28).
In response, the applicant provided a “Verification of Bank Statements” form and bank statements from Access Bank, Nigeria for the periods from 10 February 2021 to 11 March 2021 and from 10 February 2021 to 6 August 2021 (CB 32-46).
On 27 July 2021, the Department wrote to the applicant and again asked him to provide more information in support of his visa application (CB 47-52). In particular, the further request asked the applicant to provide a detailed explanation relating to his “financial capacity” and his “relationship to the source funds” (CB 51).
On 17 November 2021, the Department invited the applicant to comment on adverse information in relation to his application (CB 53-56). Relevantly, the correspondence from the Department stated:
On 13 October 2021, the Department initiated an investigation to verify the authenticity of the financial documents provided with your application. It was confirmed that both bank statements provided do not correspond with the Bank records. Therefore, there are serious concerns that the Bank statements you provided are non-genuine and may have been provided to influence the decision on your application. There are also consequential concerns that you may not have genuine access to these funds and may not meet the financial requirement.
You may provide comment on the above concerns supported by documentary evidence to substantiate any claims made and specify if you believe there are any compelling circumstances affecting the interests of Australia, or compassionate or compelling circumstances affecting the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen, to justify the waiver of any or all of PIC 4020(1) to justify the grant of the visa.
On 13 December 2021, the applicant provided a submission to the Department which stated (without alteration) (CB 57-58):
In response to the wrong and misleading information supplied to you in my father’s name: Most frankly, it was done by the agency that my father entrusted with the assignment of writing and securing me an admission to one of the finest universities in western Australia. All the processes and procedures were handled by her which includes getting hold of the required documents. She has been handling the processes even before I turned 18 years of age.
Nonetheless, I beg for forgiveness for myself and my parents from the depth of our hearts while asserting very vigorously that by the end of February I will have paid up to 16,000 dollars for my next tuition. My parents are currently sending me up to 2000 dollars every week since my university closed to send to Edith Cowan University for my next semester which starts in the first week of March even though sending money has been extremely hard since the inception of the present Government in Nigeria. I hope to enrol in 4 units by the end of the week to get the estimate of the cost of the semester fees.
I hope to reassure you that I do take my studies in Australia very seriously as I already passed my units this semester. I have also completed a diploma and aim to finish my degree by at most the end of next year. I understand your worries are based on if I can afford the tuition and living expenses, for that I guarantee you that it is handled as it is the number one of myself and family.
Once again, I sincerely apologize for the mistrust I caused through the misleading information that was supplied. I plead with you to tamper justice with mercy.
On 28 January 2022, a delegate of the first respondent (the “Minister”) refused to grant the applicant the visa (CB 63-67). The delegate found that the applicant had given information that was “false or misleading in a material particular”. The delegate was therefore not satisfied that the applicant met Public Interest Criterion (“PIC”) 4020 in Schedule 4 of the Migration Regulations 1994 (Cth) (the “Regulations”). Further, the delegate was not satisfied that there were grounds to justify a waiver of PIC 4020 and the granting of the visa and, accordingly, found that cl 500.217 in Schedule 2 of the Regulations had not been met. On that basis, the delegate determined that the applicant could not be granted the visa (CB 65-66).
On 18 February 2022, the applicant applied for review of the delegate’s decision at the Administrative Appeals Tribunal (the “Tribunal”) (CB 68-73).
On 22 December 2022, the Tribunal invited the applicant to attend a hearing before it on 16 January 2023 by telephone (CB 77-80).
On 3 January 2023, the applicant wrote to the Tribunal asking to change his contact phone number and providing the Tribunal with a completed “Response to hearing invitation” form (CB 82-85).
On 9 January 2023, the applicant provided additional material to the Tribunal in the form of a letter from ANZ Bank and two character reference letters (from his employer and the father of an NDIS recipient for whom the applicant was also employed to assist) (CB 87-91).
On 16 January 2023, the applicant appeared before the Tribunal (by telephone) to give evidence and present arguments (CB 92-94).
On 13 June 2023, the Tribunal affirmed the delegate’s decision refusing to grant the applicant the visa (CB 97-106).
On 13 July 2023, the applicant applied to this Court for judicial review of the Tribunal’s decision.
THE TRIBUNAL’S DECISION
That application for judicial review is brought pursuant to s 476 of the Migration Act 1958 (Cth) (the “Act”). To obtain assistance from this Court, the applicant must show that the Tribunal has fallen into jurisdictional error. It is thus helpful to outline the Tribunal’s decision in some detail.
The Tribunal’s decision in this matter is 10 pages long and spans 35 paragraphs (CB 97-106). The final two pages include extracts of relevant legislative provisions (CB 105-106).
The Tribunal began by explaining that the applicant had applied for the visa on 12 March 2021 and that a delegate of the Minister had refused to grant the applicant the visa on 28 January 2022 because the applicant did not satisfy the requirements set out in cl 500.217(1) in Schedule 2 of the Regulations (as there was evidence that the applicant had provided, or had caused to be provided, bogus documents in relation to the visa application). The Tribunal confirmed that the applicant appeared at a hearing before it on 16 January 2023 to give evidence and present arguments and detailed the documents provided by the applicant to the Tribunal and to the Department. The Tribunal also noted that the applicant had submitted a copy of the delegate’s decision (dated 28 January 2022) and reproduced excerpts from the delegate’s findings (at [1]-[6]).
The Tribunal then summarised the applicant’s oral evidence given at the hearing, as follows:
(a)the applicant arrived in Australia in April 2017 to study engineering (completing the Diploma course and claiming to have 11 units left in the Bachelor course) (at [7]);
(b)the applicant’s father was his financial sponsor and an agent in Nigeria had assisted him with completion of his fist student visa application (which was granted). The applicant’s parents suggested that the applicant use the same agent when he applied for the visa the subject of the review in 2021 (at [8]);
(c)that agent compiled documents and sent them to the applicant who uploaded them to the Department himself (because his father, who is a pastor in Nigeria, was not computer literate);
(d)when the applicant was contacted by the Department regarding the falsified financial documents, the applicant went back to the agent and requested a letter from her but was told that it would put her job at risk. The applicant’s father had provided documents to the agent when the applicant first applied for a visa and had given the agent financial records when the applicant re-applied for his visa. Further, the applicant had spoken with the agent prior to the documents being provided to the Department and the applicant believed that there were sufficient funds available (at [9]);
(e)the applicant told the Tribunal that when the Department contacted him to advise that the amount was not sufficient (after the first bank statements had been sent), the applicant contacted the agent and was told by the agent that she would speak with his father about the amount. The applicant claimed, however, that the agent had not spoken with his father and “thought that since the agent was being paid, she wanted to get things done quickly, otherwise it takes time to do ‘cyber stuff’” (at [10]);
(f)the applicant told the Tribunal that he did not think that his father had enough funds at the time the applicant was required to provide evidence and the applicant told the Tribunal that he was “going to lose everything” but that he would return to Nigeria upon completion of his university studies (at [11]);
(g)the Tribunal explained to the applicant the circumstances in which the PIC 4020 requirements could be waived and noted that the applicant had explained that he was the carer to an NDIS patient and that he could not leave him. The applicant also explained that the parents of that patient had “told him he should apply for residency” (at [12]); and
(h)whilst the applicant had initially planned to return to Nigeria to help his father, he was considering staying in Australia after completion of his degree and “may consider applying for a working visa” (at [13]).
The Tribunal identified that the issue in the matter was whether the applicant met PIC 4020 as required by cl 500.217(1) in Schedule 2 of the Regulations (summarising the legislative criteria) and explaining that, if the applicant did not meet the requirements, it would then need to determine whether those requirements could be waived. The Tribunal also detailed the definitions of “information that is false or misleading in a material particular” (as set out in PIC 4020) and the term “bogus document” (outlined in s 5(1) of the Act) and the relevant case law in that regard (at [15]-[19]).
The Tribunal noted that, despite the applicant’s claims that the agent had been at fault, the applicant had confirmed that his father had provided financial documents to the agent (in both his previous and current visa applications) and that the applicant had himself uploaded documents to the Department. On that basis, the Tribunal considered that the applicant and his father were in control of the provision of the bank statements found by the Department to be non-genuine (at [20]).
The Tribunal found that the applicant’s explanation (that the agent may have wanted to facilitate the provision of documents quickly because his father was not computer literate) to be inconsistent with the applicant’s evidence that his father had originally produced financial documents that the applicant had then submitted himself. Further, whilst the applicant claimed that the issue had been with the amount of funds available, the Department’s decision record indicated that the issue was that the bank statements submitted were found to be bogus (at [21]).
The Tribunal was satisfied that the Department had carried out an investigation into the bank documents provided and, based on those findings, the Tribunal reasonably suspected that the bank statements provided in the name of the applicant’s father were counterfeit. The Tribunal found that the applicant was responsible for the provision of the financial documents and that the applicant had not been able to demonstrate fraud by a third party. The Tribunal concluded that there was evidence that the applicant had given, or caused to be given, a bogus document and that the applicant therefore did not meet PIC 4020(1) in Schedule 4 of the Regulations (at [22]-[23]).
The Tribunal then considered whether the requirements of PIC 4020 ought to be waived and explained the circumstances in which the requirements could be waived (including by reference to relevant legislative provisions, authorities and the Department’s “Migration Policy and Operational Contents”) (at [24]-[28]).
The Tribunal then had regard to the applicant’s circumstances, as follows:
(a)the Tribunal noted that the applicant had not made any specific claim that there were “compelling circumstances” which affected the interests of Australia in his case (at [29]);
(b)the Tribunal considered the references provided by the applicant (from his employer and “from the father of a disabled person”) and accepted that the applicant “had a positive and stabilising effect on the life of the referrer’s son, and that he [was] often available when other support workers [were] not and [was] prepared to work extra hours”. The Tribunal noted, however, that the applicant was employed on a casual basis as a disability carer (a field of work not related to his engineering studies);
(c)the Tribunal also noted that employment was “not meant to take precedence over the applicant’s studies” and that, despite arriving in Australia in 2017, the applicant had only completed a Diploma course;
(d)on the basis of the above information, the Tribunal was not satisfied that the applicant’s work justified the granting of a student visa (at [31]); and
(e)the Tribunal was also not satisfied that the applicant “gave an honest and true account of what occurred regarding the submission of bank documents” (which were found to be bogus) and weighed that against the applicant in assessing whether PIC 4020 should be waived (at [32]).
The Tribunal ultimately found that the requirements in PIC 4020(1) should not be waived and that, as a result, the applicant did not satisfy PIC 4020 for the purposes of cl 500.217(1) in Schedule 2 of the Regulations (at [33]).
The Tribunal affirmed the delegate’s decision refusing to grant the applicant the visa (at [35]).
APPLICATION TO THIS COURT
The application for judicial review filed by the applicant on 13 July 2023 contains three particularised grounds of review, as follows:
1.The Administrative Appeals Tribunal (“AAT”) made a jurisdictional error by failing to afford the applicant procedural fairness.
Particulars:
a.The AAT failed to give the Applicant meaningful opportunity to explain any compassionate or compelling circumstances in which the Public Interest Criteria 4020 may be waived.
2. The AAT failed to take a relevant consideration into account.
Particulars:
a.The AAT failed to consider the effects of an alleged fraud committed on a visa applicant by a third party during the visa application process.
3. The AAT took an irrelevant consideration into account.
Particulars:
a.While considering whether there were any compelling reasons for the Applicant to remain in Australia, The AAT put to the applicant that compelling and compassionate circumstances affecting the ‘short-term’ interests of an Australian citizen cannot not be considered. The irrelevant consideration being the emphasis on ‘short term’ interest of an Australian citizen.

The applicant also filed an affidavit in support of that judicial review application (sworn and filed by the applicant and filed on 13 July 2023). That affidavit set out some background history and annexed a copy of the Tribunal’s decision.
On 30 August 2023, procedural orders were made by Registrar Downing of this Court, giving the applicant an opportunity to file an amended application, any written submissions and any additional evidence.
On 8 September 2023, a Court Book was filed on behalf of the Minister.
On 24 October 2023, written submissions and the Mayne affidavit were filed on behalf of the Minister.
The matter was initially listed for a hearing before this Court on 1 November 2023 (the “first hearing”).
On 30 October 2023, (two days prior to the first hearing), the applicant sent an email to the Court providing a copy of a notarised letter (dated 13 October 2022 and notarised on 13 October 2023) from the applicant’s former migration agent in relation to the bank documents provided in this case.
The first hearing took place on 1 November 2023 as scheduled. The applicant appeared in person and Ms Georgina Ellis (“Ms Ellis”) from Sparke Helmore appeared on behalf of the Minister.
The Court confirmed with the applicant that he had received copies of the Court Book, the Mayne affidavit and the Minister’s written submissions.
The Court had the Court Book tendered and referenced as Exhibit 1 and the notarised letter from the applicant’s former agent tendered and referenced as Exhibit 2. The Court also had the Mayne affidavit taken as read and in evidence.
Noting that the applicant was unrepresented, the Court gave him the opportunity to explain orally what he thought the Tribunal “did wrong”. This is now the standard procedure in this Court following the decisions in Bala v Minister for Immigration & Border Protection [2019] FCA 600 at [7] and BKT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 384.
To assist the applicant, the Court explained to him that the only issue before the Court was whether the Tribunal fell into jurisdictional error. It was stressed that the possible categories of jurisdictional error are not exhaustive and sometimes overlap. Further, it was explained that for migration decisions of this sort, they most commonly include, but are not limited to, the following categories:
(a)where the decision-maker identifies the wrong issue or asks the wrong question: Craig v State of South Australia (1995) 184 CLR 163 (“Craig”) at 198;
(b)where the decision-maker ignores relevant material: Craig at 198;
(c)where the decision-maker relies on irrelevant material: Craig at 198;
(d)where the decision-maker fails to follow mandatory procedures: SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294 at [207]-[208];
(e)where the decision-maker shows actual or apprehended bias: SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80 (“SZRUI”) at [2]; and
(f)where the decision is illogical, irrational or unreasonable: Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3 at [33]; Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 at [131]; Minister for Immigration & Citizenship v Li (2013) 249 CLR 332 at [26]-[28]; Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437 at [44].
It was also explained that this Court cannot review the merits of the Tribunal’s decisions or grant the applicant the visa that he seeks. Rather, the role of the Court is restricted to determining if the Tribunal made a material error in arriving at the decisions it arrived at: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272.
Against this background, the applicant told the Court that when he first came to Australia, he was only 17 years old and that his agent was in his home country. The applicant explained that his agent had completed all of the forms for him. The applicant also explained that, when he began the process for his further visa in 2021, he was asked to provide a bank statement so he told his father. The applicant said he was told by his father that, when the agent had done his first visa application, there was no issue and they should ask the agent as she was “more experienced and did it the first time”. The applicant told the Court that he sent the agent what he received from “immigration” and the agent got in touch with the applicant’s parents and then came back to the applicant. The applicant said that he then “got a response from immigration” and “that is when the issue started”.
When asked by the Court what the applicant thought his agent did wrong, the applicant told the Court that in his country, they do not use a BSB or account number like they do in Australia. They instead have a “bank identification number” which his father sent to the agent. The applicant explained that the agent has now told him that, if she had gone back to his father, it would have taken longer than the 20 days allowed by immigration. The applicant elaborated by explaining that the agent had instead “sent through incorrect documents that she just made up on her own”.
The Court clarified with the applicant that the agent was the person who wrote the notarised letter recently provided to the Court by the applicant (and marked as Exhibit 2). The applicant confirmed that was correct.
That letter, dated 13^th October, 2022 (but notarised on 13/10/2023) provides (without alteration):
In the month of August 2016, Evang. Emmanuel Alaebo contacted me to help his son who just turned 18 at the time process his visa to study in Australia. The visa process went well, and he got approved to study at Edith Cowan university. When he needed his visa renewed in 2021, he began the process as he was currently in Australia and when he received a response from the immigration, his dad got back in contact with me saying that he is not sure his son has the appropriate knowledge to get this done and he wanted me to get in contact with his son and handle it myself.
I spoke to the son who then sent me the response from the migration agency, and I realized that they wanted to show more funds in the account. The dad as with his age and upbringing was not internet savvy and had provided me with his banking details which I then provided the account manager with the instruction of the dad to download and send to him, knowing he wants to use it for Visa purposes, I instructed the account manager to boost the account because if we had contacted the dad it will have taken a very long time for him to get the documents and also set up the bank transfers. Both the father and son had no knowledge of how I decided to proceed with the matter.
When I got the bank statement from the account manager, I sent it to Esomchi Alaebo Emmanuel through his WhatsApp to upload to his immigration account. I can categorically say that neither Esomchi nor his father were aware of what the account manager did as it is against their faith, and it betrays the trust which they had in me to be honest with them and the immigration team. The whole essence of this letter is to let those involved that he, Esomchi Alaebo-Emmanuel is completely innocent of the whole process, and he was never aware it was inflated, which if he knew he would not have agreed to it because he is in the system and he is aware of the implication.
The applicant explained that, when he first approached the agent, she had refused to write the letter because she works for an agency and she had said that it would cause problems for her. The applicant also told the Court that he “did not know anything about it at all”.
The Court asked Ms Ellis if she would be in a position to respond to the letter (Exhibit 2) and the alleged conduct of the applicant’s former agent. Ms Ellis told the Court that, given the late provision of the document by the applicant, she had been unable to obtain instructions.
In the circumstances, the Court determined that it was appropriate to adjourn the matter to allow Ms Ellis to obtain instructions and to file further written submissions. Orders were made in that regard (including allowing the applicant time to also file written submissions) and the hearing was adjourned to a date to be fixed.
On 6 November 2023, the applicant contacted the Court (by email) and requested that the Court assist the applicant in securing pro bono legal representation. The Court agreed that it was appropriate to do so in the circumstances and issued a pro bono referral certificate.
On 15 November 2023, further written submissions were filed on behalf of the Minister.
On 27 November 2023, a solicitor agreed to accept the Court’s pro bono referral on the basis that they would provide the applicant with advice only in relation to his application but would not be in a position to provide any further assistance.
On 30 November 2023, the applicant filed submissions in this Court.
The materials before this Court thus include the application for judicial review and supporting affidavit filed by the applicant on 13 July 2023, the Court Book (Exhibit 1), written submissions and the Mayne affidavit filed on behalf of the Minister on 24 October 2023, the notarised letter provided by the applicant (Exhibit 2), further written submissions filed on behalf of the Minister on 15 November 2023 and written submissions filed by the applicant on 30 November 2023.
The matter came before this Court again on 20 February 2024 (the “second hearing”). The applicant appeared in person at the second hearing. Ms Cobey Taggart of counsel (“Ms Taggart”) appeared at the second hearing on behalf of the Minister.
At the second hearing, Ms Taggart made oral submissions on behalf of the Minister. The applicant was asked if he wished to make any submissions to the Court but chose not to do so. The parties’ written and oral submissions will be detailed further below.
CONSIDERATION
Grounds of review
Ground one
As outlined above, ground one provides as follows:
1.The Administrative Appeals Tribunal (“AAT”) made a jurisdictional error by failing to afford the applicant procedural fairness.
Particulars:
a.The AAT failed to give the Applicant meaningful opportunity to explain any compassionate or compelling circumstances in which the Public Interest Criteria 4020 may be waived.
In ground one, the applicant suggests that he was not afforded procedural fairness.
The Court disagrees for the reasons that follow.
As explained by this Court in Kaur v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 243, Division 5 of Part 5 of the Act is taken to be an exhaustive statement of the natural justice hearing rule in relation to matters of this sort and the Tribunal is obliged to comply with those requirements: s 357A of the Act.
The Court has considered whether the Tribunal has done so in this case and notes that:
(a)there was no information in this matter that the Tribunal was required to put to the applicant (pursuant to s 359A of the Act) because the Tribunal’s decision was made based on the material before the Department and information provided to the Tribunal by the applicant (together with the applicant’s oral evidence given at the Tribunal hearing in this matter);
(b)the Tribunal invited the applicant to attend a hearing before it and the applicant did so (CB 77-80 & 92-94). The applicant gave evidence at the hearing (on 16 January 2023) in support of his review application. Accordingly, the Tribunal complied with its obligations under s 360 of the Act;
(c)the applicant provided additional material to the Tribunal (via email) on 9 January 2023 in support of his review application (CB 87-91);
(d)the Tribunal considered that additional material in its written reasons (see, for example, paragraphs [4], [12] & [31] of the Tribunal’s reasons);
(e)the dispositive issue before the Tribunal (being whether the applicant satisfied the requirements of PIC 4020 in Schedule 4 of the Regulations and, if not, whether there were any compelling or compassionate circumstances to justify waiving those requirements) was the same as the issue before the delegate and which led to the refusal of the applicant’s visa. Accordingly, no error of the kind contemplated by SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63 arises in this matter; and
(f)there is no evidence before this Court to suggest that the Tribunal was anything but impartial and objective: SZRUI.
The Court is satisfied that the Tribunal afforded the applicant procedural fairness in this matter.
No jurisdictional error arises in this regard.
Ground two
Ground two states:
2. The AAT failed to take a relevant consideration into account.
Particulars:
a.The AAT failed to consider the effects of an alleged fraud committed on a visa applicant by a third party during the visa application process.
By ground two, the applicant suggests that the Tribunal failed to consider his claim that an agent was involved in the visa application process and the provision of bogus documents.
This fails on a factual level.
The Tribunal detailed the applicant’s oral evidence before the Tribunal (including questions asked of the applicant in that regard) as follows:
8.The applicant was asked to explain about his financial sponsor and how the evidence was obtained to support his visa application. The applicant stated his father is his sponsor and his visa was renewed in March 2021. He said when he first applied to come to Australia, he was 17 years old and an agent in Nigeria assisted him to complete the application. The applicant’s visa was granted, and he stated he came to Australia when he was 18. It was claimed that when he applied for a further visa in 2021 his parents suggesting using the same agent as it had worked out well before.
9.The applicant claimed his agent compiled the documents and sent them to him, and he uploaded them to the Department. The applicant’s father is a pastor in Nigeria and is not familiar with computers, so he did it himself. According to the applicant, when he was contacted by the Department and told his financial documents were falsified, he went back to the agent. The applicant said he requested a letter from the agent but was told it would put her job at risk. Instead, the applicant said he wrote to the Department and advised them the agent was at fault. The Tribunal asked if the applicant’s father had provided documents to the agent when he first applied for a visa and the applicant said he had. The applicant claimed his father had also given the agent financial records at the time the applicant reapplied for his visa. He said he had communications with the agent about whether there were sufficient funds prior to the documents being provided to the Department and the applicant believed that there were.
10.The Tribunal asked the applicant to explain why the Department would have found the documents were not genuine if his father provided them, and the applicant thought the amount was adequate. The applicant said the Department contacted him after “the first bank statements” had been sent and told him the amount was not sufficient. It was claimed he contacted the agent and was told they would speak to his father about the amount. The applicant said the agent had not in fact spoken to his father. He said he thought that since the agent was being paid, she wanted to get things done quickly, otherwise it takes time to do “cyber stuff”. The applicant explained that his parents are by themselves as his siblings no longer live there.
11.The applicant was asked if his father had enough the funds at the time the applicant was required to provide evidence. He said he did not think so although he may have had close to the amount. The Tribunal explained to the applicant that there must be no evidence he had either given, or caused to be given, bogus documents and even if an agent is used, the applicant is still responsible. The applicant indicated he is going to lose everything and said after university he will go back.
Having set out the applicant’s oral evidence, the Tribunal went on to consider whether the applicant had “given, or caused to be given, a bogus document, or information that was false or misleading in [a] material particular”.
Relevantly, the Tribunal’s consideration in that regard was as follows:
20.The applicant gave evidence in his written submission to the Department and at the Tribunal hearing that an agent in Nigeria was responsible for the provision of the bank documents found to be non-genuine. He stated his father has suggested using the same agent who assisted the applicant when he first applied to study in Australia, when documents were required to demonstrate financial capacity. Despite the claims of an agent being at fault, the applicant confirmed his father had provided financial documents to the agent both when he first applied for a visa and at the time the applicant reapplied for his visa. The applicant himself then uploaded the documents to the Department. In these circumstances, it appears the applicant and his father were in control of the provision of the Access Bank statements that the Department found to be non-genuine.
21.The applicant advised the Tribunal it was his belief the agent may have wanted to facilitate the provision of documents quickly because his father was not computer literate, and it would otherwise take time. This explanation is not consistent with the applicant’s evidence that his father had originally produced the financial documents that the applicant himself had submitted. The applicant claimed the issue had been with the amount of funds available, but according to the Department’s decision record, this was not the primary issue since both bank statements submitted in support of the visa application were found to be bogus.
22.The Tribunal is satisfied the Department carried out an investigation into the bank documents provided in support of the applicant's visa. Based on those findings, the Tribunal reasonably suspects the bank statements from Access Bank in the name of the applicant's father were counterfeit. Although the applicant claimed an agent was engaged to arrange the documents, the Tribunal has no independent evidence to support the claims made and the applicant’s oral evidence contained inconsistencies. The Tribunal finds that based on the circumstances in this case, the applicant himself was responsible for the provision of the financial documents. The applicant has not been able to demonstrate fraud by a third party and as a result, the Tribunal concludes there is evidence the applicant has given, or caused to be given, to the Minister, a 'bogus document' as defined ins 5(1), that is, a document that the Tribunal reasonably suspects is counterfeit or has been altered by a person who does not have authority to do so whether or not made knowingly in relation to the visa application.
As is evidenced by the paragraphs above, the Tribunal expressly considered the applicant’s claims regarding the agent’s involvement and ultimately determined that the applicant and his father were in control of, and responsible for, the provision of the financial documents (being the bank statements from Access Bank). In coming to that determination, the Tribunal considered the applicant’s explanations and found that the applicant’s oral evidence “contained inconsistencies” and that the applicant had not provided any independent evidence to support his claims.
The Court is satisfied that the Tribunal’s findings were open to it on the limited evidence before it and no jurisdictional error arises in this regard.
Ground three
Ground three provides:
3. The AAT took an irrelevant consideration into account.
Particulars:
a.While considering whether there were any compelling reasons for the Applicant to remain in Australia, The AAT put to the applicant that compelling and compassionate circumstances affecting the ‘short-term’ interests of an Australian citizen cannot not be considered. The irrelevant consideration being the emphasis on ‘short term’ interest of an Australian citizen.

By ground three, the applicant essentially claims that the Tribunal erred by considering whether there were any compassionate or compelling circumstances affecting the short-term interests of an Australian citizen.
This also fails on a factual level.
There is no reference in the Tribunal’s written reasons to the words “short-term” or anything in the Tribunal’s reasons which might suggest that the Tribunal had regard to the “short-term” interests only of any Australian citizen.
The Tribunal correctly identified and detailed the tests in relation to consideration of a waiver of the requirements in PIC 4020 as follows:
24.The requirements of PIC 4020(1) and (2) may be waived where there are compelling circumstances that affect the interests of Australia, or where there are compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident, or an eligible New Zealand citizen (as defined in reg 1.03), that justify the granting of the visa. The decision-maker must first be satisfied that there are such circumstances, then must consider whether to exercise the discretion to waive the requirements, having regard to those circumstances: Kaur v MIBP [2017] FCAFC 184.
25.The expressions ‘compelling circumstances’ and ‘compassionate or compelling circumstances’ are not defined for these purposes. To be compelling, the circumstances must force or drive the decision-maker irresistibly to be satisfied: see Plaintiff M64/2015 v MIBP [2015] HCA 50. The ordinary meaning of ‘compassionate’ relates to feelings of sympathy, sorrow, pity or concern for others.
…
30.The Tribunal considered whether there are compassionate or compelling circumstances that affect the interests of an Australian citizen, Australian permanent resident or eligible New Zealand citizen in the applicant’s case. According to Departmental policy, compassionate or compelling circumstances that affect the applicant are not relevant unless they also directly affect an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen. Factors for considering a waiver of any or all of PIC 4020(1) and/or (2), can include:
•whether there are any significant health or welfare issues affecting an Australian citizen, Australian permanent resident or eligible New Zealand citizen and there is an absence of other carers in Australia.
•whether the illness of the Australian citizen, permanent resident or New Zealand citizen is debilitating, permanent and requires ongoing care (that is, it is not a temporary illness, or an illness that does not require continuous care).
The Court notes, in particular, the Tribunal’s reference to the decision of the Full Court of the Federal Court of Australia (the “Full Court”) in Kaur v Minister for Immigration and Border Protection [2017] FCAFC 184 (“Kaur”). In Kaur, the Full Court held as follows:
26.Fourthly, PIC4020(4) sets up a two-staged inquiry. It obliges the decision maker first to be satisfied that there are “compelling circumstances”. Only then may the decision maker go on to consider those circumstances in the application of his or her discretion. The appellants’ argument conflates these inquiries. They submit that upon the involvement of any child in a visa application to which PIC4020 applies, the existence of the Convention comes into consideration as a compelling circumstance warranting the balancing exercise of the considerations involved. In our view, that does not represent a correct interpretation of the regulation. PIC4020(4)(a) imposes a filter, whereby the decision maker must consider that there exist “compelling” (that is, “forceful”; Paduano v Minister for Immigration & Multicultural and Indigenous Affairs [2005] FCA 211; (2005) 143 FCR 204 at [32]–[37] per Crennan J) circumstances. In the present case, the Tribunal applied that filter at [82] to reject the appellants’ submissions. We see no error in that approach.
As explained by the Full Court in Kaur, the Tribunal was first required to be satisfied that there existed “compelling circumstances” before considering whether any such circumstances ought to be taken into account in determining whether to exercise the discretion to waive the requirements set out in PIC 4020 in Schedule 4 of the Regulations.
The Tribunal’s findings in this regard provide as follows:
31.The Tribunal assessed the applicant’s submissions that public interest criteria 4020(1) should be waived because he works as a carer for a disabled young adult who is a NDIS recipient. The applicant submitted evidence of his employment, a work reference, and a reference from the father of the disabled person. It is noted the applicant is said to be the primary carer, although not the only carer, of the NDIS recipient. The Tribunal accepts the statements made by the father of the disabled person that the applicant has had a positive and stabilising effect on the life of the referrer’s son, and that he is often available when other support workers are not and is prepared to work extra hours. However, the applicant is employed in a casual capacity as a disability carer, a field of work that is not related to his past or present studies in engineering. In addition, employment it is not meant to take precedence over the applicant’s studies which is the reason he was first granted a student visa. Despite arriving in Australia in 2017, the applicant has so far only completed a diploma course. For this reason, the Tribunal is not satisfied the applicant’s work justifies the granting of a student visa.
As can be seen from the passage above, the Tribunal accepted the applicant’s evidence relating to his care for the NDIS patient. However, The Tribunal also had regard to the nature of his employment (as a casual worker only) and noted that the applicant’s employment did not relate to his studies in engineering. The Tribunal also noted that the applicant’s employment should not take priority over his studies (being the reason for the grant of the applicant’s original visa).
Having considered the information before it, the Tribunal was ultimately not satisfied that the applicant’s employment justified the grant of the visa (or the waiver of the PIC 4020 requirements).
The Court is satisfied that the Tribunal’s findings were open to it on the evidence before it. The Court is further satisfied that the Tribunal applied the correct test (as set out by the Full Court in Kaur) and no jurisdictional error arises in this regard.
Otherwise
As outlined above, the Court allowed the parties additional time to address the issue of an alleged fraud by the applicant’s former agent insofar as it related to the issue of the provision of bogus documents and the failure by the applicant to meet PIC 4020 in Schedule 4 of the Regulations.
Relevant legislative provisions
As noted above, the applicant in this matter applied for Subclass 500 visa. The eligibility criteria for the grant of that visa are set out in cl 500.2 in Schedule 2 of the Regulations, which (at the time of the Tribunal’s decision) relevantly provided as follows:
500.2 Primary criteria
Note:The primary criteria must be satisfied by at least one member of the family unit. The other members of the family unit who are applicants for a visa of this subclass need satisfy only the secondary criteria.
All criteria must be satisfied at the time a decision is made on the application.
The criteria that the applicant was required to satisfy for the grant of the visa in this case are set out in cll 500.211 to 500.218 in Schedule 2 of the Regulations.
Of particular relevance in this matter is cl 500.217 in Schedule 2 of the Regulations, which (at the time of the Tribunal’s decision) provided as follows:
500.217
(1)The applicant satisfies public interest criteria 4001, 4002, 4003, 4004, 4010, 4013, 4014, 4020 and 4021.
…
The applicant in this matter was found to not satisfy PIC 4020 in Schedule 4 of the Regulations, which relevantly stated as follows (at the time of the Tribunal’s decision):
4020
(1)There is no evidence before the Minister that the applicant has given, or caused to be given, to the Minister, an officer, the Tribunal during the review of a Part 5-reviewable decision, a relevant assessing authority or a Medical Officer of the Commonwealth, a bogus document or information that is false or misleading in a material particular in relation to:
(a)       the application for the visa; or
(b)a visa that the applicant held in the period of 12 months before the application was made.
…
(4)The Minister may waive the requirements of any or all of paragraphs (1)(a) or (b) and subclause (2) if satisfied that:
(a)compelling circumstances that affect the interests of Australia; or
(b)compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen;
justify the granting of the visa.
(5)       In this clause:
information that is false or misleading in a material particular means information that is:
(a)       false or misleading at the time it is given; and
(b)relevant to any of the criteria the Minister may consider when making a decision on an application, whether or not the decision is made because of that information.
Note:     For the definition of bogus document, see subsection 5(1) of the Act.
“Bogus document” is defined in s 5(1) of the Act, as follows:
5 Interpretation
(1) In this Act, unless the contrary intention appears:
…
bogus document, in relation to a person, means a document that the Minister reasonably suspects is a document that:
(a)purports to have been, but was not, issued in respect of the person; or
(b)is counterfeit or has been altered by a person who does not have authority to do so; or
(c)was obtained because of a false or misleading statement, whether or not made knowingly.
Types of fraud cases
It is also useful to explain the types of fraud cases that can arise in relation to of PIC 4020 in Schedule 2 of the Regulations.
The Full Court in Singh v Minister for Immigration and Border Protection [2018] FCAFC 52 (“Singh”) noted that the proper construction of PIC 4020 in Schedule 2 of the Regulations has been considered in a number of decisions of the Full Court and the Federal Court of Australia (the “FCA”). The Full Court also emphasised “the need to pay close attention to the facts” in each case and explained that “different principles can apply in cases where a visa applicant contends that his or her visa application was invalid because of fraud, as opposed to a contention that there has been a misconstruction or misapplication of PIC 4020” in Schedule 2 of the Regulations: Singh at [78].
The distinction referenced above highlights the differences between two streams of case law (which will be set out and discussed further below).
Relevant authorities
As noted above, there are two streams of case law relevant to fraud cases regarding PIC 4020 in Schedule 2 of the Regulations.
The first stream relates to matters in which there is a contention that there has been a misconstruction or misapplication of PIC 4020 in Schedule 2 of the Regulations. The relevant cases in that regard are Trivedi v Minister for Immigration and Border Protection [2014] FCAFC 42 (“Trivedi”); Patel v Minister for Immigration and Border Protection [2015] FCAFC 22 (“Patel”) and Zhang v Minister for Immigration and Border Protection [2016] FCA 921 (“Zhang”).
The second stream of cases relates to matters where a visa applicant contends that his or her visa application was invalid because of fraud. The cases relevant in those circumstances are Gill v Minister for Immigration and Border Protection [2016] FCAFC 142 (“Gill”); Singh v Minister for Immigration and Border Protection [2016] FCAFC 141 (“Singh 2016”) and Maharjan v Minister for Immigration and Border Protection [2017] FCAFC 213 (“Maharjan”).
A brief summary of the relevant facts in these cases is set out below.
Trivedi
The first appellant in Trivedi applied for a Skilled (Residence) (Class VB) (Sponsored) (Subclass 886) visa in July 2009. The first appellant’s husband and son were included in that application. The first appellant provided International English Language Testing System (“IELTS”) English tests for herself and her husband with her visa application and nominated her language ability (and that of her husband) as being “competent”. The IELTS test report form for the first appellant showed her scores as follows: listening – 6.5, reading – 6.0, writing – 6.5 and speaking – 6.0, giving her an overall band score of 6.0. The first appellant gave evidence to the Migration Review Tribunal (the “MRT”) that she had taken the IELTS test whilst on a visit in India (rather than taking it in Australia): Trivedi at [2]-[4].
When assessing the first appellant’s visa application, the Department made reference to an “online verification service” used to confirm IELTS scores. Information from that service indicated that the first appellant had in fact received the following scores: listening – 6.5, reading – 6.0, writing – 5.5 and speaking – 5.5. Those scores did not meet the requisite standard for competent English (requiring an IELTS test score of at least 6.0 for each of the categories). This information was brought to the first appellant’s attention by correspondence from the Department and she was invited to comment. A migration agent ultimately provided a response on the first appellant’s behalf stating that “it was not a right document”, that “she was misguided by certain agents in India” and that she had “achieved the required English outcome by her own efforts anyway”: Trivedi at [5]-[7].
A delegate of the Minister refused to grant the first appellant and her family the skilled visas on the basis that information provided by the first appellant in relation to her IELTS test scores was found to have been “false or misleading in a material particular” and, on that basis, the first appellant did not satisfy cl 886.224 in Schedule 2 of the Regulations. The first appellant sought review of that decision by the MRT. The first appellant gave an account to the MRT (both at a hearing before it and in writing before and after the hearing) essentially stating that she had failed her IELTS test a few times and the supervisor in the examination hall in India told her not to worry and assured her that he would “fix up” her old result with a new result. The first appellant also maintained that she was not aware of “how the fraudulent document came to exist”, “was not personally involved in or aware of the deception” and was “not aware that the document she submitted was a false document”: Trivedi at [8]-[12].
There was “no issue before the MRT” in relation to the “deceptive quality of the IELTS test” report. Rather, the first appellant “sought to excuse her involvement as an innocent and unknowing one”. The MRT determined, by reference to Vyas v Minister for Immigration and Citizenship [2012] FMCA 92, that the requirements in PIC 4020 applied “whether or not the document is provided by the applicant knowingly or unwittingly”. The MRT also found that there “were no grounds upon which it would be justified to waive the requirements of PIC 4020” and did not do so: Trivedi at [13]-[18].
The issue before the Federal Magistrates Court (as it then was) (the “FMC”) was whether PIC 4020 only applied if the first appellant intended to mislead the Department. The FMC (and the Full Court) rejected that contention. Before the Full Court, the Minister raised a further argument that information supplied to the Minister (or the Department) did not need to be purposely untrue for PIC 4020 to apply because “PIC 4020 was directed to any information that was relevant to a visa criterion”: Trivedi at [19]-[21].
The Minister’s argument was rejected by the Full Court with Buchanan J stating (and Allsop CJ and Rangiah J agreeing):
32.It is apparent from the terms of PIC 4020 that it addressed the problem of attempts to work a fraud or deception on the assessment of claims for a visa. That is also evident from the fact that PIC 4020 states a “public interest” criterion, from the narrow and exceptional circumstances necessary to waive its requirements and, more generally, from the serious consequences that follow from its application. I would not infer any apparent intention to disqualify a visa applicant who could explain an innocent mistake in a document or information provided by them. PIC 4020 is not directed, in my view, to innocent, unintended or accidental matters. However, different questions arise when information or documents provided in support of an application are revealed as false, in the purposely untrue sense of that term.
33.In my view, it should be accepted that an element of fraud or deception is necessary in order to attract the operation of PIC 4020. To take the example of bogus documents, a counterfeit document is not produced accidentally. Similarly, to charge that a statement is false is not to say only that it is wrong. The accusation potentially imports some element of knowledge or intention on somebody’s part, and in my view does so in the present context.
…
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.
Buchanan J also rejected the appellants’ contention that it was necessary for the MRT to be satisfied that the first appellant had been complicit in the provision of the deceptive information provided. Relevantly, Buchanan J stated (with Allsop CJ and Rangiah J agreeing):
49.For the reasons I have already given, it should be accepted that PIC 4020 is directed to information or documents which are purposely untrue. It seems to me to be clear from the same analysis that the purpose of PIC 4020 was to render visa applicants ultimately responsible for the veracity of the information and documents supplied to support the application. Although the limited terms of the waiver (and therefore any discretion to excuse non-compliance) make it apparent that innocent errors are not the focus of attention, it is equally clear that PIC 4020 is directed at the overall integrity of the visa system and as a bulwark against deception and fraud from any quarter associated with a visa applicant. It is not inconsistent with a coherent public policy to make a visa applicant ultimately responsible for purposely untrue material provided with a visa application. It would be an intolerable burden on the administration of the visa system to require that those assessing visa applications not only discover that information or documents are false in a material particular, but also that the visa applicant who provided them knew them to be so. In many cases that would be impossible and would defeat the apparent intent of the provision.
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.
Patel

The appellant in Patel applied for a skilled visa and, to be eligible for that visa, was required to have competent English. Relevantly, the appellant was required to obtain a score of at least 6 in each of the four test components. The appellant provided an IELTS test report showing her results for listening, reading, writing and speaking were 7, 7, 7.5 and 7 respectively. A review of the IELTS online verification system indicated that the appellant had actually obtained scores of 4.5, 4, 4.5 and 4 respectively. The Department drew those discrepancies to the appellant’s attention and asked for her comments. The appellant “assured” the Department that the results she had provided “were the results [she had] obtained from the testing authority and were not in any way altered or forged”. The delegate, however, concluded that the document was a bogus document and refused to grant the applicant the visa on the basis that she did not satisfy PIC 4020 in Schedule 4 of the Regulations: Patel at [2]-[11].
The appellant applied to the then MRT for review of the delegate’s decision. The MRT affirmed the delegate’s decision, concluding that the IELTS test report form was a bogus document. The MRT also considered with the requirements of PIC 4020 should be waived but ultimately determined that the requirements should not be waived: Patel at [12]-[15].
The appellant then sought judicial review of the delegate’s decision in the then Federal Circuit Court of Australia (the “FCCA”). That judicial review application was dismissed in September 2014. The FCCA found that no jurisdictional error had been shown in relation to the decision of the MRT. The FCCA also rejected a submission that the approach taken by the MRT was inconsistent with the decision of Trivedi: Patel at [17].
In her appeal to the Full Court, the appellant claimed that the FCCA had erred in finding that the MRT had correctly construed and applied PIC 4020. Further, the appellant also contended that the FCCA should have found that the MRT erred by failing to appreciate “the requirements of evidence or information necessary before PIC 4020 could be invoked”. The appellant also claimed that the FCCA erred by not accepting her argument that the MRT ought to have made its own enquiries as to the circumstances surrounding the creation of the bogus document: Patel at [18].
Buchanan J found as follows:
19.In my respectful view, none of those grounds of appeal has any substance. Having regard to the circumstances which I have described, it is clear that the MRT gave direct consideration to whether the document was a bogus document within the meaning of s 97 of the Act and whether PIC 4020 was engaged in relation to it. There was no error in that analysis, whether by reference to the judgment of this Court in Trivedi or otherwise which discloses jurisdictional error.
20.The suggested obligation that the MRT should itself have pursued further inquiries cannot be sustained either. The failure of the MRT to make its own further inquiries does not reveal jurisdictional error in this case.
Flick J gave separate reasons and stated as follows:
35.In the absence of any challenge to the integrity of the test results as recorded “on-line”, such information as was available to the delegate and the Tribunal, it is respectfully observed, is readily susceptible to a conclusion that the form of written document provided by the Appellant stated test results which had been deliberately changed. Such a conclusion could well have been supported by reference to the fact that each of the four test results bore no correlation to the correct results and that the four results as provided made possible the grant of the visa as sought by the Appellant. And such information as was available to the delegate and the Tribunal was also readily susceptible to a conclusion that it was the Appellant who was to bear responsibility for those changes.
…
36.No error is exposed in the reasoning of the Tribunal. Given the limited facts presented to it by the now-Appellant, the state of reasonable satisfaction was a conclusion readily open to it. The Federal Circuit Court Judge was correct to reject this challenge to the reasoning of the Tribunal.
The Full Court ultimately dismissed the appeal and awarded the Minister costs.
Zhang
The decision in Zhang also relates to the provision of an IELTS test report which was found by a delegate of the Minister and by the MRT to be a bogus document. In that matter, a review of the IELTS online verification system found that the photograph of the person who sat the test did not match the photograph on the test report form provided by the appellant. When asked to comment on the adverse information by the Department, the appellant said that he had met a man named “Kevin” in February 2012. The appellant explained that Kevin had claimed to be a senior migration agent and offered to assist the appellant with his visa application. Further, Kevin had told the appellant to sit an IELTS test and the appellant did so, providing the results, together with his work experience and study documents to Kevin. In July 2012, Kevin provided the appellant with a letter from the Department acknowledging his visa application. The appellant did not have any further contact with Kevin and was shocked to be notified by the Department that his IELTS results were bogus. The appellant concluded that Kevin had forged the results before submitting them to the Department but had been unable to reach Kevin when he tried to contact him: Zhang at [2]-[17].
Before the FCCA, the appellant raised two particularised grounds of review claiming that the MRT erred by concluding that the bogus document had been given (or caused to be given) to the Minister and that the MRT erred by refusing the appellant’s request to provide a substitute for the bogus document. The FCCA rejected both grounds.
In relation to the first ground, the FCCA found that Kevin had acted for the appellant in his dealings with the Department and the MRT’s finding was open to it on the evidence before it. The FCCA also cited Trivedi and Patel in support of its finding that the appellant was responsible for bogus documents submitted on his behalf even if he was unaware they were bogus.
The second ground was dismissed on the basis that the appellant had not requested further hearing time as alleged: Zhang at [18]-[23].
On appeal to the FCA, the appellant claimed that the FCCA had erred in failing to distinguish Trivedi and Patel on the basis that he was a victim of fraud and, on that basis, the FCCA ought not to have found that he was responsible for the bogus document. Leave was refused in relation to two additional ground the appellant sought to raise which had not been raised in the FCCA. Leave was refused on the basis that the Minister did not have an opportunity to adduce relevant evidence in the FCCA: Zhang at [25] & [63].
The FCA ultimately determined as follows:
67.As to ground 1 of the appeal, I accept the Minister’s submission that the appellant’s attempt to distinguish Trivedi and Patel is predicated on a false premise, namely that the Tribunal accepted that the appellant was unaware that Kevin had submitted a fraudulent document. No such finding was made by the Tribunal. Nor do I accept the appellant’s submission that an inference should be drawn that the primary judge accepted the appellant’s claim on this matter.
68.Moreover, and in any event, as the Minister also pointed out, Trivedi is not distinguishable on the suggested basis because the visa applicant’s knowledge of the fraudulent conduct on the part of an agent is not material to the operation of PIC 4020, as was held by the Full Court in both Trivedi and Patel (see also Huang v Minister for Immigration and Border Protection [2015] FCA 792 at [34] per Farrell J). It should also be noted that in Trivedi, as here, the visa applicant claimed to be shocked and surprised when told about the bogus document. I reject the appellant’s contention that either Trivedi or Patel are distinguishable.
69.Finally, and for completeness, it should be noted that neither below nor in the appeal was any issue raised by the appellant concerning s 48 of the Migration Act. In particular, unlike cases such as Prodduturi and Singh, there was no claim that the visa application itself was a nullity because of fraud. On the contrary, the relief sought in this Court was to have the orders of the FCCA set aside and a direction made that his visa application be determined according to law (either by the Tribunal or the Minister). Necessarily, therefore, the appellant relied on his visa application being a valid application.
Gill
The appellant in Gill arrived in Australia as the holder of a student visa. In May 2011, an online application was made in his name for a skilled visa. It was stated in that visa application that the appellant had obtained a skills assessment from Trades Recognition Australia (“TRA”) (with a reference number provided). A delegate of the Minister refused to grant the appellant the skilled visa on the basis that TRA had advised that there was no skills assessment matching the reference number provided in the appellant’s visa application. Accordingly, the delegate found that PIC 4020 in Schedule 4 of the Regulations had not been met and, as a result, the appellant could not satisfy cl 485.224 in Schedule 2 of the Regulations: Gill at [3]-[4].
The appellant sought review of the delegate’s decision by the Tribunal, claiming that he had “been the victim of fraudulent conduct by his former migration agent and that the agent had, without his knowledge, provided false information in his visa application, with the consequence that his visa application was invalid”. The Tribunal found that the visa application was valid, that the agent had acted fraudulently and “had fabricated claims in order to deceive both the appellant and the Department into believing that a valid visa application had been lodged” and that the “appellant was complicit in the fraud”. The Tribunal ultimately concluded that PIC 4020 in Schedule 4 of the Regulations was not satisfied and there was no basis for that requirement to be waived: Gill at [5]-[10].
In December 2013, the appellant sought judicial review in the FCCA. An amended application was later filed in the FCCA, challenging the “conclusion that the appellant was complicit in his agent’s fraud” and contending that the “Tribunal lacked jurisdiction because there was no valid visa application and, therefore, no ‘MRT-reviewable decision’”. The appellant also sought a declaration from the FCCA that there was no valid visa application. Only the jurisdiction ground was pressed before the FCCA and the appellant was “cross-examined at some length”: Gill at [11]-[15].
The FCCA accepted that the appellant’s argument “raised a jurisdictional fact which the FCCA had to determine for itself based on all the evidence before it” and explained that the characterisation of the question regarding whether there had been a valid visa application as a jurisdictional fact was made by Perram J in Prodduturi v Minister for Immigration and Border Protection [2014] FCA 624 at [13]. The FCCA ultimately determined that the appellant was “indifferent” in relation to his relationship with his agent and that his “indifference … amounted to a general authority to the agent”. On that basis, the FCCA found that the appellant was not entitled to the grant of any relief: Gill at [17]-[19].
The appellant raised four grounds before the Full Court, essentially challenging the FCCA’s findings regarding the appellant’s “indifference” to the agent’s fraud and contending that the FCCA misunderstood which process was stultified by the agent’s fraud (noting that the “relevant process was the legal consequences which attached only to valid visa applications for the purposes of ss 46, 47, 48, 49 and 98” of the Act). The relief sought by the appellant included an order quashing the Tribunal’s decision and a declaration that there was no valid visa application within the meaning of s 46 of the Act or, in the alternative, an order remitting the matter to the FCCA for rehearing according to law: Gill at [21]-[26].
Before the Full Court, the Minister submitted that the visa application was valid and that, if it were not valid, there would be no utility in relief the Full Court could grant. The Minister also submitted that there was no error in the FCCA’s finding regarding the appellant’s indifference and that the Tribunal was correct in finding that there was no stultification of the Tribunal process. The Minister also argued that the FCCA (pursuant to s 476 of the Act) was only able to grant relief in relation to the Tribunal’s decision and not in relation to the decision of the Minister’s delegate (and it would thus be futile for the FCCA to grant relief regarding the Tribunal’s decision). The Full Court ultimately found that the FCCA had incorrectly determined what would or would not constitute “indifference” when deciding if fraudulent conduct affected the validity of a visa application: Gill at [33]-[45].
The Full Court also summarised some relevant legal principles regarding fraud, as follows:
46In SZSXT v Minister for Immigration and Border Protection [2014] FCAFC 40; 222 FCR 73 (SZSXT), Perram, Robertson and Griffiths JJ summarised some relevant principles established in SZFDE relating to fraud in a public law context, including a migration case. Those principles are set out in [51] of SZSXT (the paragraph references are to SZFDE):
(a)in the framework of general legal principle, fraud can come in various guises and is ‘infinite in variety’ [8];
(b)different considerations may arise when fraud is alleged in a public law case, which involves the due administration of Commonwealth laws and has an important constitutional underpinning in Ch III of the Constitution [11];
(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’ [17];
(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 [20];
(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’ [22];
(f)in a public law case, fraud is not limited to that of a decision-maker, a party or a party’s representative [25]-[27]; 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 [28]. 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 [51]-[52].
47The first and last of those principles from SZFDE have particular relevance in this appeal. Recognition that fraud can arise in a wide range of factual circumstances, such that it is apt to describe the range as “infinite in variety”, highlights the undesirability of prescribing in generally applicable terms the scope for judicial review where there is third party fraud. It is critical to pay close attention to both the particular facts and circumstances in which the issue of fraud arises and also to the terms of any specific legislative provision which may be affected by the fraudulent conduct of a third party, such as a migration agent.
As can be seen above, contrary to the Minister’s contentions, the Full Court determined that there was no clear limit regarding the kind of third party fraud which might render a visa application invalid.
The Full Court explained that it is one thing to conclude that a visa applicant “gave his or her general authority to [an] agent to do whatever is lawful and proper” to obtain a a particular visa, as opposed to a visa applicant “placing such matters in the hands of a migration agent and being indifferent to whether the migration agent uses lawful or unlawful means” to obtain a visa. The Full Court ultimately determined that the FCA erred in failing to address whether the appellant’s “indifference” extended to whether the agent’s conduct “went so far as to include unlawful or dishonest conduct”: Gill at [48].
Singh 2016
The appellant in Singh 2016 also claimed that he was the victim of fraudulent conduct by his migration agent and contended that that fraud tainted the subsequent decision-making process. A skilled visa application was lodged online in March 2011. That visa application form stated that the appellant had obtained a skills assessment from TRA for his nominated skilled occupation of “solid plasterer”. A reference number for the assessment was provided in the visa application. A delegate of the Minister refused to grant the appellant the skilled visa on the basis that the appellant “had provided false and misleading information” to the Department in relation to his skilled visa application and was therefore unable to satisfy PIC 4020 in Schedule 4 of the Regulations: Singh 2016 at [3]-[5].
The appellant sought review of the delegate’s decision by the Tribunal. Before the Tribunal, the appellant claimed that his agent had acted fraudulently without his knowledge or authorisation. Whilst expressing some doubts as to whether the applicant was the victim of “outright fraud”, the Tribunal ultimately determined that the migration agent had acted fraudulently and that the appellant had been complicit in the fraud because he was “indifferent” to the contents of his visa application and that appellant was “not too particular” about how he got his visa: Singh 2016 at [7]-[12].
The appellant sought judicial review in the FCCA. The judicial review application contained a number of grounds but only two were pressed. Those grounds essentially contended that the Tribunal had erred in finding that there was a valid visa application and in finding that it had jurisdiction to review the delegate’s decision. The appellant (in his amended judicial review application) sought relief in the form of prohibition against the Minister restraining him from acting upon the Tribunal’s decision and writs of certiorari and mandamus. At the hearing before the FCCA, counsel for the appellant stated that the appellant also sought a declaration of right concerning the operation of s 48 of the Act: Singh 2016 at [13]-[17].
The FCCA ultimately concluded that it had no jurisdiction to hear and determine the amended application for judicial review, having accepted the Minister’s submission that, because the appellant acknowledged that he was not eligible for the skilled visa, there was no utility in proceeding: Singh 2016 at [20].
The appellant raised one (particularised) ground of review before the Full Court, contending that the FCCA had erred in determining there was no utility in his judicial review application. The appellant asserted that there was “utility in the relief sought because of the potential effect on the operation of s 48” of the Act of the “principles of issue estoppel and the principles in Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11”. The appellant also claimed that the FCCA had erred in finding that the proceedings were wrongly constituted because the Minister’s delegate was not a party: Singh 2016 at [20]-[22].
The Full Court found that the FCCA did have jurisdiction, stating (at [39(b)]) that:
The FCCA plainly did have jurisdiction here to review the Tribunal’s decision and, in an appropriate case, to set aside that decision on the grounds of non-complicitous fraud on the part of the visa applicant and to declare that the original visa application was invalid.

The Full Court also outlined how a fraud of a migration agent might affect the validity of a visa application and confirmed that the FCCA could provide declaratory relief in appropriate cases. In this regard, the Full Court relevantly stated as follows:
52.Naturally, whether or not a Court exercising judicial review determines ultimately to grant appropriate declaratory relief will depend upon a range of matters. They include whether the evidence justifies the making of relevant and necessary findings of facts relating to such matters as the validity of the visa application, whether the visa applicant has been the victim of fraud and whether that fraud has also stultified some relevant aspect of the decision-making process in relation to the consideration of the visa application. None of these matters was addressed or determined by the FCCA below because of the erroneous finding that the Court lacked jurisdiction. For completeness, we accept the Minister’s contention that, having regard to authorities such as SZFDE and Minister for Immigration and Citizenship v SZLIX (2008) 245 ALR 501 at [33] it will be necessary to find that the agent’s conduct is not only a fraud on the visa applicant but must also stultify one or more aspects of the relevant statutory decision-making processes under the Migration Act.
Maharjan
The first appellant applied for a student visa in March 2013. Her husband was included in that visa application, as was their son. The visa application was submitted through a migration agent. An officer of the Department contacted the appellants a day after the visa application was made, seeking additional information regarding the financial requirements for the grant of the visas. The correspondence from the Department also outlined the various ways in which the financial requirements could be satisfied. The appellants’ migration agent responded to the Department’s request and provided a number of financial documents, including two bank statements which purported to have been issued by the Nabil Bank in Nepal: Maharjan at [3]-[14].
The appellants were then asked to comment on information obtained by the Department which suggested that the bank statements were fraudulent. In particular, it was noted that the bank statement provided was dated August 2012 but the bank account was not opened until December 2012. Whilst acknowledging that the bank had verified that the funds were available, the delegate ultimately found that the first appellant did not satisfy PIC 4020 in Schedule 4 of the Regulations because the bank statements provided in support of her application were fraudulent: Maharjan at [15]-[19].
The appellants sought review of the delegate’s decision by the Tribunal, arguing that the Tribunal should be satisfied that the first appellant met the requirements of PIC 4020 in Schedule 4 of the Regulations and, if she did not, those requirements ought to be waived. The Tribunal rejected both arguments and adopted the delegate’s findings. The Tribunal did not make any findings of fact about the first appellant’s claims to have been an innocent victim of fraud (perpetrated by the Nepalese agent): Maharjan at [20]-[22].
The appellants sought judicial review of the Tribunal’s decision in the FCCA. The FCCA dismissed the appellants’ application in November 2016: Maharjan at [24].
Before the Full Court, the appellants sought leave to raise a ground which was not agitated before the FCCA. That ground contended that the FCCA erred by not deciding the jurisdictional fact of whether fraud had invalidated the visa application or the visa application process. The Full Court granted the appellants leave in that regard: Maharjan at [27]-[37].
The Full Court explained that whether a proceeding succeeds on Singh 2016 and Gill grounds, or whether it fails because of the reasoning in Trivedi, may well depend on the facts and issues raised and the arguments run. The Full Court also noted that the two sets of authorities are not inconsistent: Maharjan at [85].
The Minister submitted that the circumstances of the fraud in this case were far removed from those in Singh 2016 and Gill because the fraud in those cases was committed by an Australian registered migration agent. The Minister also contended that if the appellants were to succeed, it would “vastly extend” the current law and lead to an “absurd situation” where submission of any fraudulent document could invalidate a visa application. Further, the Minister submitted that the appellants could not succeed because of the decision in Trivedi and that the bank statements provided in this case were lodged after the visa application and thus could not invalidate the visa application. The Full Court did not accept any of those submissions: Maharjan at [86]-[87].
The majority stated as follows:
88.While it is true the circumstances of the alleged fraud are different in this appeal from the facts of Singh and Gill, as the authorities make clear, it is undesirable to prescribe in advance the scope of judicial review for third party fraud: SZSXT at [51(a)] and [51(g)]; reaffirmed in Gill at [46].
89.In SZFDE at [11], the Court emphasised the constitutional underpinnings of the Court’s supervisory jurisdiction in relation to the due administration of the laws of the Commonwealth, of which the Migration Act is one.
90.Instances of fraud, or bad faith, by those exercising public power are a different category, not presently relevant. In this appeal, as in SZSXT, Gill and Singh, the Court is concerned with the effect of third party fraud on the processes of decision-makers under the Act, and on the processes of the Act itself.
Gilmour and Mortimer JJ (as the Chief Justice then was) also emphasised the following relevant matters:
102.Similarly we reject the submission there is any “vast extension” of the law. The appellants will be required to prove the fraud (see SZSJA v Minister for Immigration and Border Protection [2013] FCAFC 158; 308 ALR 266 at [38] and the authorities there cited), and satisfy the Federal Circuit Court that the first appellant was neither complicit in the fraud nor “indifferent” to it, in the limited and particular sense explained in Gill and Singh. That is, as the Chief Justice observed in SZRUR v Minister for Immigration and Border Protection [2013] FCAFC 146; 216 FCR 445 at [51], a heavy burden.
103.If the appellants establish those matters, the second question for the Federal Circuit Court will be how, if at all, the fraud which is proven to have occurred, affected the processes by which the appellants’ visa applications were to be considered: see Minister for Immigration and Citizenship v SZLIX [2008] FCAFC 17; 245 ALR 501 at [33]. That is because, as the High Court said in SZFDE and Full Courts of this Court have reiterated, there must also be a fraud “on” the administrative decision-maker, in the sense of the fraud affecting that decision-maker’s statutory functions and obligations, or adversely affecting, disabling or stultifying the processes which the Act prescribes. In SZFDE the effect was on the Tribunal’s hearing function. It may well be that an applicant cannot establish this requirement on the facts: see for example Minister for Immigration and Citizenship v Lu [2010] FCAFC 147; 189 FCR 525 at [38] and SZLHP v Minister for Immigration and Citizenship [2008] FCAFC 152; 172 FCR 170 at [13]-[18] (Branson J), [27] (Lindgren J), [51] (Graham J).
…
105.As the Full Court in Singh stated at [45], there is no clear intention disclosed by ss 46 and 47 of the Act that the validity requirements in s 46 are intended to be exhaustive, and in particular are intended to exclude a visa application affected by third party fraud. The concept of a valid visa application, on the current state of authority of this Court, does not include an application made without the actual or otherwise authority of the named visa applicant, where the visa applicant does not have capacity to give authority (see Kim) and does not include an application based on fraudulent documents where the visa applicant is neither complicit in the fraud nor indifferent to the use of unlawful or dishonest means (see Singh and Gill).
In allowing the appeal in this matter, the Full Court ultimately stated as follows:
113.The appeal should be allowed and the matter should be remitted to the Federal Circuit Court for determination in accordance with this Court’s reasons. Before the Federal Circuit Court, the appellants will bear the onus of proving that the fraud alleged was a fraud perpetrated on the first appellant: that is, that she was neither complicit in it nor “indifferent” to it, in the limited sense explained in Singh and Gill. The appellants will also need to prove that the submission of those fraudulent documents provided by the Nepalese agent to their migration agent and then to the Minister’s delegate “stultified” the visa application and determination processes for which the Migration Act provides. The Minister will be able to both adduce any evidence he considers appropriate, and to test (whether by way of evidence or by way of cross-examination) the appellants’ case. There is in those circumstances no relevant prejudice to the Minister. Whether the Federal Circuit Court is satisfied of the matters alleged, and whether the Court considers declaratory relief as sought to be appropriate, will be matters for it.
General principles
The Full Court in Singh outlined the general principles regarding issues of fraud which can be derived from the relevant authorities (some of which are summarised above) as follows:
144 …
(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.
Facts of this case
As outlined above, the applicant in this matter applied for the visa the subject of this judicial review application on 12 March 2021 (CB 1-18). Upon review of his visa application, the Department asked the applicant to provide further information, including a detailed explanation relating to the applicant’s “financial capacity”, “evidence of annual income” and “relationship to the source funds” (CB 24-31).
In response, the applicant provided a “Verification of Bank Statements” form and bank statements from Access Bank, Nigeria for the periods from 10 February 2021 to 11 March 2021 and from 10 February 2021 to 6 August 2021 (CB 32-46).
On 27 July 2021, the Department wrote to the applicant and again asked him to provide additional information relating to his “financial capacity” and his “relationship to the source funds” (CB 47-52).
On 17 November 2021, the Department invited the applicant to comment on adverse information in relation to his application (CB 53-56). In particular, the Department explained that the bank statements provided by the applicant did not correspond with the bank’s records and the Department was concerned that they were not genuine documents.
On 13 December 2021, the applicant provided a submission to the Department which essentially stated that the “wrong and misleading information” was supplied by “the agency” his father had asked to assist with his visa and study enrolments (CB 57-58):
On 28 January 2022, the Minister’s delegate refused to grant the applicant the visa (CB 63-67). The delegate found that the applicant had given information that was “false or misleading in a material particular” and, as such, the delegate was not satisfied that the applicant met PIC 4020 in Schedule 4 of the Regulations. The delegate was not satisfied that there were grounds to justify a waiver of PIC 4020 and the granting of the visa (CB 65-66).
The applicant applied for review of the delegate’s decision by the Tribunal (CB 68-73). The applicant provided additional materials to the Tribunal and attended a hearing before it (by telephone) to give evidence and present arguments. The Tribunal reasonably suspected that the bank statements provided by the applicant were fraudulent and ultimately found that the applicant himself was responsible for the provision of the financial documents (noting that the applicant had not been able to demonstrate fraud by a third party). The Tribunal found that the applicant did not meet the requirements of PIC 4020 in Schedule 4 of the Regulations. Further, having considered the applicant’s submissions, found that the requirements of PIC 4020 in Schedule 4 of the Regulations should not be waived and ultimately affirmed the delegate’s decision refusing to grant the applicant the visa.
The applicant sought judicial review of the Tribunal’s decision by this Court. In his review application, the applicant sought the following orders:
An order that the decision of the tribunal … be quashed.
A writ of mandamus directed to the tribunal … requiring them to determine the applicant’s application according to law.
The Respondent pay the Applicant’s costs.
The applicant also raised the following grounds of review:
1.The Administrative Appeals Tribunal (“AAT”) made a jurisdictional error by failing to afford the applicant procedural fairness.
Particulars:
a.The AAT failed to give the Applicant meaningful opportunity to explain any compassionate or compelling circumstances in which the Public Interest Criteria 4020 may be waived.
2. The AAT failed to take a relevant consideration into account.
Particulars:
a.The AAT failed to consider the effects of an alleged fraud committed on a visa applicant by a third party during the visa application process.
3. The AAT took an irrelevant consideration into account.
Particulars:
a.While considering whether there were any compelling reasons for the Applicant to remain in Australia, The AAT put to the applicant that compelling and compassionate circumstances affecting the ‘short-term’ interests of an Australian citizen cannot not be considered. The irrelevant consideration being the emphasis on ‘short term’ interest of an Australian citizen.
Whilst not stated in his review application, it appears to the Court that the applicant had some assistance with the preparation of his judicial review application.
The Court notes that, notwithstanding the apparent assistance (noted above), the applicant did not seek declaratory relief or raise any contention about the validity of his visa application in his judicial review application.
Parties submissions
As outlined above, the applicant provided Exhibit 2 (being a notarised letter from the applicant’s former migration agent) to the Court (via email) two days prior to the first hearing. At that hearing, the Court gave the parties time to file additional submissions in relation to Exhibit 2.
On 15 November 2023, further written submissions were filed on behalf of the Minister.
Following the issue of a pro bono referral certificate by this Court, a solicitor agreed to accept the pro bono referral on the basis that they would provide the applicant with advice only in relation to his application but would not be in a position to provide any further assistance.

On 30 November 2023, the applicant filed submissions in this Court. The Court again notes that it appears from the language used in the submissions filed on behalf of the applicant that he had assistance with the preparation of those submissions. They are clear and quite helpful.
Minister’s submissions
In the further written submissions filed on behalf of the Minister and in oral submissions before this Court at the second hearing (on 20 February 2024), the Minister essentially submitted as follows:
(a)there are two types of fraud cases which can arise (and different principles which apply);
(b)the first is where an applicant contends that there was a misconstruction or a misapplication of PIC 4020 in Schedule 4 of the Regulations;
(c)the second is where an applicant contends that his or her visa application was invalid because of fraud;
(d)the potential relevance of Exhibit 2 depends on the type of category the proceeding falls into;
(e)the Minister submits that the application simply impugns the Tribunal’s construction and application of PIC 4020 in Schedule 4 of the Regulations because the applicant does not seek a declaration in the judicial review application that his visa application was invalid (cf Gill at [14], Mahajaran at [45] and Singh 2016 at [40]) and because the grounds of review raised all take issue with the Tribunal’s processes and do not allege that the Tribunal lacked jurisdiction (due to the visa application not being valid as a jurisdictional fact);
(f)if the applicant were to seek a declaration that the visa application was invalid, the onus would be on him to establish that that was the case (citing Singh at [144(8)]);
(g)in the absence of any allegation of fraud concerning the validity of the visa application (as a jurisdictional fact), the applicant for judicial review simply impugns the Tribunal’s construction and application of PIC 4020 in Schedule 4 of the Regulations as a question of law;
(h)it is well established that evidence not before the Tribunal (such as Exhibit 2) is irrelevant to an application for judicial review which is confined to identifying legal error: MZXLD v Minister for Immigration and Citizenship [2007] FCA 1912 (“MZXLD”) at [10]-[11] and on that basis, the Minister submits Exhibit 2 should be given no weight;
(i)the question the Tribunal was required to answer in this case was whether the applicant had given or caused to be given a bogus document and, if so, whether there were compelling or compassionate reasons to justify the grant of the visa;
(j)the applicant conceded that the bank statements provided to the Department were bogus and claimed that they had been provided by an agent in Nigeria (CB 57-58). Those claims were repeated in oral evidence before the Tribunal (CB 101);
(k)the provision of Exhibit 2 by the applicant merely seeks to address evidentiary deficiencies identified by the Tribunal and the Court cannot now consider for itself whether the applicant fell afoul of PIC 4020 by reference to materials that were not before the Tribunal; and
(l)even if Exhibit 2 had been provided to the Tribunal, it is difficult to see how it could have impacted on the consideration of PIC 4020 in Schedule 4 of the Regulations (absent any question of third-party fraud invalidating the visa application which has not been claimed).
The Minister also included relevant extracts from the decisions of Trivedi, Zhang and Singh.
Applicant’s submissions
As outlined above, at the first hearing before this Court, the applicant explained that his agent had completed his application form for him (including assisting with his initial visa application). The applicant also told the Court that his agent had said that if she had gone back to his father to obtain a bank statement, it would have taken longer than the 20 days allowed by immigration so she instead “made up her own”.
In written submissions filed by the applicant, it was submitted that:
(a)the application implicitly explores the intricate repercussions of fraudulent influence and emphasises the substantial impact of external fraudulent actions on the decision-making process (beyond mere legal error);
(b)Exhibit 2 (being a new piece of evidence) sheds light on fraudulent actions affecting the application’s validity;
(c)the Tribunal expressed suspicion concerning certain documents but stopped short of establishing definitive proof that the applicant had direct involvement in presenting counterfeit documents;
(d)the Tribunal’s findings failed to consider the potential role of the external agent or acknowledge the applicant’s lack of complicity in the falsification process;
(e)despite not explicitly seeking a declaration of invalidity, the application addresses the profound impact of the fraudulent conduct on the visa application’s integrity;
(f)the applicant and his father unwittingly became entangled in the agent’s deceitful actions;
(g)whilst acknowledging the principles in Singh, it is crucial to highlight the broader scope inherent in this proceeding;
(h)Trivedi and Zhang involve visa applications and fraudulent representations (as does the present case), however, they differ in that Trivedi centred on the applicants knowingly providing false information and the focus in the present case lies on external influence; and
(i)the Minister’s argument confines the application to legal matters but it is essential to acknowledge the broader implications of the fraudulent influence on the visa application and the Tribunal’s inquiry.
The applicant was given an opportunity to make further oral submissions at the second hearing but declined to do so.
Consideration
As outlined above, there are two distinct streams of case law relevant to fraud cases regarding PIC 4020 in Schedule 4 of the Regulations. The first issue for the Court to determine is which of the two streams of case law this case falls into.
The first stream relates to matters in which there is a contention that there has been a misconstruction or misapplication of PIC 4020 in Schedule 4 of the Regulations. The second stream of cases relates to matters where a visa applicant contends that his or her visa application was invalid because of fraud.
In this matter, the issue before the Tribunal was whether PIC 4020 in Schedule 4 of the Regulations was satisfied. No issue was raised by the applicant before the Tribunal that it lacked jurisdiction to review the delegate’s decision because the visa application was invalid for fraud. Instead, the applicant contended both before the Minister’s delegate and before the Tribunal that he had not given or caused to be given the bogus document because his agent perpetrated the fraud which the applicant did not know about and was not complicit in: Singh at [147(1)].
The Court also notes that, at no point in the judicial review application did the applicant seek any declaratory relief concerning the validity of his visa application. The applicant also did not raise any concerns in this regard in the first or second hearings before this Court.
The written submissions filed on behalf of the applicant (on 30 November 2023) make vague references to the impact of the alleged fraud on the validity of the visa but still do not seek a declaration that the visa application was invalid and, as such, the Tribunal had no jurisdiction to review the Tribunal’s decision.
In the circumstances of this matter, where the Court has done everything possible to assist the applicant (including arranging pro bono legal advice for the applicant), the Court is satisfied that the applicant had every opportunity to squarely raise the invalidity of his visa application for this Court’s consideration.
The applicant did not do so.
On the evidence before this Court, where the judicial review application does not seek a declaration that the visa application was invalid and where the applicant’s grounds of review do not allege that the Tribunal lacked jurisdiction, the Court is satisfied that this matter falls into the stream of cases in which there is a contention that there has been a misconstruction or misapplication of PIC 4020 in Schedule 4 of the Regulations.
Having determined the stream of cases within which the present matter falls, the Court notes that Exhibit 2 cannot assist the applicant. As correctly submitted by the Minister, without any allegation of fraud concerning the validity of the applicant’s visa application, the application for judicial review filed by the applicant simply seeks to impugn the Tribunal’s construction and application of PIC 4020 in Schedule 4 of the Regulations. That is, the judicial review application is confined to identifying legal error on the part of the Tribunal. Evidence that was not before the Tribunal is therefore irrelevant: MZXLD at [10]-[11].
In the circumstances, the Court places no weight on Exhibit 2.
In relation to the stream of cases the present matter falls within, Trivedi provides some useful guidance as follows (emphasis added):
49.For the reasons I have already given, it should be accepted that PIC 4020 is directed to information or documents which are purposely untrue. It seems to me to be clear from the same analysis that the purpose of PIC 4020 was to render visa applicants ultimately responsible for the veracity of the information and documents supplied to support the application. Although the limited terms of the waiver (and therefore any discretion to excuse non-compliance) make it apparent that innocent errors are not the focus of attention, it is equally clear that PIC 4020 is directed at the overall integrity of the visa system and as a bulwark against deception and fraud from any quarter associated with a visa applicant. It is not inconsistent with a coherent public policy to make a visa applicant ultimately responsible for purposely untrue material provided with a visa application. It would be an intolerable burden on the administration of the visa system to require that those assessing visa applications not only discover that information or documents are false in a material particular, but also that the visa applicant who provided them knew them to be so. In many cases that would be impossible and would defeat the apparent intent of the provision.
50There 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.
The question for the Tribunal to assess in this matter was whether the applicant had given (or caused to be given) a bogus document (as outlined in PIC 4020(1) in Schedule 4 of the Regulations) and, if so, whether there were compelling or compassionate reasons to waive the relevant requirements (as outlined in PIC 4020(4) in Schedule 4 of the Regulations).
In this matter, the Tribunal found as follows:
22.The Tribunal is satisfied the Department carried out an investigation into the bank documents provided in support of the applicant’s visa. Based on those findings, the Tribunal reasonably suspects the bank statements from Access Bank in the name of the applicant’s father were counterfeit. Although the applicant claimed an agent was engaged to arrange the documents, the Tribunal has no independent evidence to support the claims made and the applicant's oral evidence contained inconsistencies. The Tribunal finds that based on the circumstances in this case, the applicant himself was responsible for the provision of the financial documents. The applicant has not been able to demonstrate fraud by a third party and as a result, the Tribunal concludes there is evidence the applicant has given, or caused to be given, to the Minister, a ‘bogus document’ as defined in s 5(1), that is, a document that the Tribunal reasonably suspects is counterfeit or has been altered by a person who does not have authority to do so whether or not made knowingly in relation to the visa application.
For the reasons set out above in Trivedi, the Tribunal was correct to find that the applicant in this matter was ultimately responsible for the “untrue material” provided in support of his visa application. Further, the Tribunal was not required to “discover” that the applicant (who provided the bank statements to the Department) knew them to false in a material particular.
The Court also notes that, as outlined above, the reasoning in Trivedi was upheld in Zhang. Zhang also provides some useful information relevant to this matter, as follows (emphasis added):
69.Finally, and for completeness, it should be noted that neither below nor in the appeal was any issue raised by the appellant concerning s 48 of the Migration Act. In particular, unlike cases such as Prodduturi and Singh, there was no claim that the visa application itself was a nullity because of fraud. On the contrary, the relief sought in this Court was to have the orders of the FCCA set aside and a direction made that his visa application be determined according to law (either by the Tribunal or the Minister). Necessarily, therefore, the appellant relied on his visa application being a valid application.
That reasoning applies equally in this matter. There was no claim in the judicial review application that the visa application was a nullity because of the fraud. Nor was this raised before the Tribunal. On the contrary, the relief sought in this Court was to have the decision of the Tribunal set aside and the matter returned to the Tribunal for reconsideration. As was the case in Zhang, the applicant necessarily relies on his visa application being valid.
No jurisdictional error arises on the basis of Exhibit 2 (provided to the Court by the applicant) and the Court is satisfied that the Tribunal correctly construed and applied PIC 4020 in Schedule 4 of the Regulations.
MINISTERIAL INTERVENTION
The circumstances of this matter are most unfortunate.
The applicant in this matter appears to have unknowingly provided a document that was false or misleading. Notwithstanding that lack of knowledge, on the basis of the authorities set out above, the applicant was ultimately responsible for providing that document and thus did not satisfy PIC 4020 in Schedule 2 of the Regulations.
When the matter came before the Court, the applicant stressed that he was not aware that the document provided to him by his agent was fraudulent and that he was “an innocent victim”.
Unfortunately, for the reasons set out above, the Court is not able to assist the applicant in relation to his judicial review application.
The Court does, however, consider that the applicant’s circumstances to be compelling.
On that basis, the Court draws the applicant’s attention to the Minister’s discretionary powers pursuant to s 351(1) of the Act. Where, as is the case here, the Tribunal has affirmed a decision refusing the applicant the visa, and that decision has been upheld on review, the Minister has a statutory discretion to substitute a more favourable decision.
The Court encourages the applicant to seek Ministerial intervention in relation to this matter.
CONCLUSION
The application for judicial review and supporting affidavit (filed by the applicant on 13 July 2023), the applicant’s oral and written submissions and Exhibit 2 have failed to identify any jurisdictional error on the part of the Tribunal.
The Court is otherwise unable to identify any jurisdictional error.
The application is, accordingly, dismissed.

I certify that the preceding one hundred and eighty-eight (188) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kendall.
Associate:
Dated: 7 June 2024

File number:	PEG 137 of 2023
Judgment of:	JUDGE KENDALL
Date of judgment:	7 June 2024
Catchwords:	MIGRATION – Student visa – decision of the Administrative Appeals Tribunal – whether the Tribunal failed to afford the applicant procedural fairness – whether the Tribunal failed to consider relevant information – whether the Tribunal considered irrelevant information – alleged fraud by the applicant’s agent – Ministerial intervention – no jurisdictional error – application dismissed.
Legislation:	Migration Act 1958 (Cth), ss 5, 46, 47, 48, 49, 98 & 476 and Division 5 of Part 5 Migration Regulations 1994 (Cth), cll 485.224 & 500.211-500.218 in Schedule 2 and PIC 4020 in Schedule 4
Cases cited:	Bala v Minister for Immigration & Border Protection [2019] FCA 600 BKT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 384 Craig v State of South Australia (1995) 184 CLR 163 Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3 Gill v Minister for Immigration and Border Protection [2016] FCAFC 142 Kaur v Minister for Immigration and Border Protection [2017] FCAFC 184 Kaur v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 243 Maharjan v Minister for Immigration and Border Protection [2017] FCAFC 213 Minister for Immigration & Citizenship v Li (2013) 249 CLR 332 Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11 Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437 MZXLD v Minister for Immigration and Citizenship [2007] FCA 1912 Patel v Minister for Immigration and Border Protection [2015] FCAFC 22 Prodduturi v Minister for Immigration and Border Protection [2014] FCA 624 SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294 Singh v Minister for Immigration and Border Protection [2018] FCAFC 52 Singh v Minister for Immigration and Border Protection [2016] FCAFC 141 SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63 SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80 Trivedi v Minister for Immigration and Border Protection [2014] FCAFC 42 Vyas v Minister for Immigration and Citizenship [2012] FMCA 92 Zhang v Minister for Immigration and Border Protection [2016] FCA 921
Division:	Division 2 General Federal Law
Number of paragraphs:	188
Date of hearings:	1 November 2023 & 20 February 2024
Place:	Perth
Applicant:	Applicant appeared in person
Counsel for the First Respondent:	Ms G Ellis appeared at the first hearing in this matter (on 1 November 2023) and Ms C Taggart of counsel appeared at the second hearing (on 20 February 2024)
Second Respondent:	Submitting appearance, save as to costs
Solicitor for the Respondents:	Sparke Helmore

PEG 137 of 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	ESOMCHI FAITHFUL ALAEBO-EMMANUEL Applicant
AND:	MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS First Respondent ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent

ORDER MADE BY:	JUDGE KENDALL
DATE OF ORDER:	7 JUNE 2024