Asamoah v Minister of Immigration and Citizenship
[2025] FedCFamC2G 1287
•13 August 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Asamoah v Minister of Immigration and Citizenship [2025] FedCFamC2G 1287
File number(s): SYG 3294 of 2019 Judgment of: JUDGE CLEARY Date of judgment: 13 August 2025 Catchwords: MIGRATION – judicial review application – decision of Administrative Appeals Tribunal refusing to grant partner visa – whether applicant provided bogus document - construction of “in relation to” in PIC 4020(1) – no jurisdictional error established – application dismissed. Legislation: Migration Act 1958 (Cth) s 5, 65, 476
Migration Amendment Regulations 2011 (No 1) (Cth)
Migration Regulations 1994 (Cth) Sch 2 cl 801.221, PIC 4020
Cases cited: Batra v Minister for Immigration and Citizenship [2013] FCA 274; (2013) 212 FCR 84
LPDTvMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 98 ALJR 610
Mudiyanselage v Minister for Immigration and Citizenship [2013] FCA 266; (2013) 211 FCR 27
Nanre v Minister for Immigration and Boder Protection (2015) 232 FCR 80
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
Division: Division 2 General Federal Law Number of paragraphs: 70 Date of hearing: 1 August 2025 Place: Parramatta Solicitor for the Applicant: Mr M. Jones of Michael Jones Solicitor Counsel for the Respondents: Ms N. Maddocks of Counsel Solicitor for the Respondents: Sparke Helmore Lawyers ORDERS
SYG 3294 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: ERNEST ASAMOAH
Applicant
AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE CLEARY
DATE OF ORDER:
13 AUGUST 2025
THE COURT ORDERS THAT:
1.The name of the first respondent be amended to read “Minister for Immigration and Citizenship”.
2.The application is dismissed.
3.The applicant pay the first respondent’s costs fixed in the amount of $8,371.30.
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 CLEARY
INTRODUCTION
The applicant has filed an application for judicial review under s 476 of the Migration Act 1958 (Cth) (Act). The applicant seeks constitutional writ relief against the respondents in respect of a decision of the Administrative Appeals Tribunal (Tribunal) dated 5 December 2019 which affirmed an earlier decision of a delegate of the first respondent (delegate) not to grant the applicant a Partner (Residence) (Class BS) (subclass 801) visa under s 65 of the Act.
RELEVANT FACTUAL BACKGROUND
On 19 December 1989, the applicant, a citizen of Ghana, first arrived in Australia on a visitor visa.
On 22 April 1993, the applicant lodged an application for a refugee humanitarian visa, which included three (3) dependents. On 23 December 1993, the application for a refugee humanitarian visa was refused.
On 7 July 2013, the applicant married his partner (sponsor).
On 14 August 2013, the applicant lodged an application for a Partner (temporary) (class UK) (subclass 820) visa and a Partner (residence) (class BS) (subclass 801) visa.
On 23 March 2015, the delegate granted the applicant a provisional (subclass 820) partner visa.
On 1 September 2016, the applicant’s representative wrote to the Minister requesting that the applicant’s visa application be expedited, “in order to regularise Sara, Emmanuel and Samuel’s residency situations in Australia”.
On 30 November 2016, the applicant’s new lawyer and migration agent at that time, Mr Sam Wellington of Wellington Legal, sent an email and a cover letter (with the reference - “Applicant: Mr Ernest ASAMOAH Application ID 365559471 Adding additional applicants after lodgement of Partner visa application”) to the Department of Immigration and Border Protection (Department):
(a)Advising that he acted for the “visa applicant” and the “[three] additional Applicants”, namely three older children of the applicant (additional applicants); and
(b)attaching a number of documents including a completed Form 956 – appointing Mr Wellington as the applicant’s migration agent; a completed Form 1436, one for each of the three additional applicants; certified copies of birth certificates and passports for each of the three additional applicants; two passport size photographs of each of the three additional applicants; and a document referred to as main applicant’s visa application summary 15/08/2013.
On 21 December 2016, the additional applicants applied for Extended eligibility (Temporary) (Class TK) Dependent Child (subclass 445) visas, which were later refused.
On 15 March 2017, the applicant was invited to comment on information that the Department considered would be the reason, or a part of the reason, for refusing the visa. The information included that:
(a)The applicant did not declare in his visa application form 47SP his relationship with the mother of his three older children, the existence of his older children, or his siblings;
(b)Despite the older children having Australian birth certificates, their Republic of Ghana passports stated that they were born in Accra, Ghana; and
(c)The applicant’s brother failed to declare him as a sibling on his Form 47SP, however, had declared a sister. His brother had also provided birth certificates that indicated he was the biological father of the applicant’s older children.
On 29 March 2017, the applicant, through his representative, responded to the delegate, but made no specific comment on either the birth certificates or the Ghanaian passports of the additional applicants.
On 19 July 2017, a delegate refused to grant the applicant a Partner (residence) (class BS) (subclass 801) visa on the basis that there was a failure to comply with the requirements of the Public Interest Criterion 4020 (PIC 4020), in particular subclause 4020(1). In its decision, the delegate found that as no information had been submitted that indicated the applicant had sought a waiver under subclause 4020(4).
On 8 August 2017, the applicant lodged an application to the Tribunal for review of the delegate’s decision.
On 21 November 2019, the applicant and his representative, with the assistance of an Akan (Ghana) interpreter, appeared before the Tribunal to give evidence and present arguments.
On 5 December 2019, the Tribunal affirmed the delegate’s decision not to grant the partner visa.
RELEVANT LEGISLATIVE PROVISIONS
The legislative provisions relevant to the Tribunal’s decision are as follows.
Clause 801.221(2) of Schedule 2 of the Migration Regulations 1994 (Cth) (Regulations) provides:
(2) An applicant meets the requirements of this subclause if:
(a) the applicant is the holder of a Subclass 820 visa; and
(b)the applicant continues to be sponsored for the grant of the Subclass 820 (Partner) visa by:
(i) the sponsoring partner; or
(ii)the Australian citizen, Australian permanent resident or eligible New Zealand citizen who sponsored the applicant for that visa; and
(c)the applicant is the spouse or de facto partner of the sponsoring partner; and
(d)subject to subclauses (6A) and (7), at least 2 years have passed since the application was made.
PIC 4020(1) and (4) referred to in cl 801.221(2) provides as follows:
(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.
Section 5(1) of the Act defines “bogus document” as follows:
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.
TRIBUNAL DECISION
The Tribunal identified that the issue for determination by it in the review was whether the applicant met the PIC 4020 as required by cl 801.221 of Schedule 2 of the Regulations.
In considering PIC 4020(1), the Tribunal turned to whether the applicant had given, or caused to be given, a bogus document or information that was false or misleading in a material particular, for the purposes of PIC 4020(1).
The Tribunal did not accept the applicant’s attempt to shift blame for the false and misleading information in his Form 47SP on to his former representative. The Tribunal did not accept that the applicant was unaware that his responses to questions such as the makeup and structure of his family were incorrect. The Tribunal found that the applicant had provided false or misleading information by failing to list the details of his older children, former partners (including the older children’s mother) and siblings in Form 74SP.
The Tribunal did not accept the applicant’s claim that he did not declare his brother because he was older and there was anger between them. The Tribunal noted that the applicant had also not included his sister in the application. The Tribunal considered that the applicant’s omissions in this regard constituted a false response to the question concerning his siblings in his Form 47SP.
The Tribunal found that the Ghanaian passports of the additional applicants to be bogus documents, a factual finding which the applicant does not dispute or challenge in these proceedings.
The Tribunal turned to the interview the applicant had with the Department on 1 and 2 March 2017, and the claims the applicant did not understand the questions put to him by the interviewer, that the interviewer suspected he had poor English comprehension, that the interviewer did not offer an Akan interpreter or that the applicant felt compelled to answer the interviewer’s questions. The Tribunal did not accept these claims.
The Tribunal found the applicant had supplied bogus documents to the Department (being the Ghanaian passports) and had failed to provide crucial information regarding his previous relationships and his children in answers to questions in his Form 47SP, thus giving ‘information that is false or misleading in a material particular.’
At paragraph [43] the Tribunal made the following finding:
[43]The Tribunal thus finds that the applicant supplied ‘bogus’ documents to the Department as defined in s.5(1) and also failed to provide crucial information regarding his previous relationships and his children in answers to questions in his Form 47SP, thus giving ‘information that is false or misleading in a material particular’ to the Department as defined in PIC4020(5). This information the Tribunal considers is false or misleading in a material particular because the knowledge of the applicant’s past relationship (which he failed to declare) would have been relevant to the assessment of whether the parties (in the present application) are in a spousal relationship as required by the Regulations. Furthermore, the Tribunal finds the information pertaining to the existence of the applicant’s three children that are now dependent applicants would have been relevant in the assessment of the sponsorship and whether the sponsorship would have been approved.
Accordingly, the Tribunal found the applicant did not meet the requirements of PIC 4020(1).
The Tribunal considered in paragraphs [45]-[61] whether there were compelling or compassionate circumstances that justified waiving the criteria, but found that the requirements of PIC 4020(1) should not be waived, and thus, held that for the purposes of cl 801.226 of Schedule 2 of the Regulations, the applicant does not satisfy PIC 4020.
The Tribunal affirmed the decision not to grant the applicant a partner visa, and held it had no jurisdiction in respect of the applicant’s three older children.
GROUND OF JUDICIAL REVIEW
The applicant relies on an amended application. The amended application contains one ground of review as follows (as written):
1.The Tribunal's exercise of the discretion whether to waive the requirements of PIC 4020(1) miscarried due to an error in interpretation of the legislation.
Particulars
The Tribunal found that the Applicant had given bogus documents "in relation to" his visa application. The Tribunal misconstrued the meaning of the term "in relation to" the visa application, and this improperly affected its assessment of whether the compassionate circumstances of the case justified the grant of the visa.
On 11 June 2025, the proceedings were docketed to me and set down before me for final hearing on 1 August 2025. At the hearing before me Mr Michael Jones appeared for the applicant, and Ms Nicole Maddocks, of counsel, appeared for the first respondent. Both made written and oral submissions on the above ground of review, the substance of which I set out below, where necessary.
To obtain the constitutional writ relief sought in the amended application the applicant must prove that the Tribunal’s decision is vitiated by jurisdictional error: Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 at [76].
Recently, in LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 98 ALJR 610 at [2] – [3] (LPDT) the High Court explained that:
[3]…Jurisdictional error on the part of a statutory decision-maker in making a decision can include: misunderstanding the applicable law; asking the wrong question; exceeding the bounds of reasonableness; identifying a wrong issue; ignoring relevant material; relying on irrelevant material; in some cases, making an erroneous finding or reaching a mistaken conclusion; or failing to observe some applicable requirement of procedural fairness.
To constitute jurisdictional error, in most cases, the error must be material, in the sense that it could have realistically deprived the first applicant of the opportunity of a successful outcome: LPDT at [32].
APPLICANT’S SUBMISSIONS
On 4 July 2025, Mr Jones filed written submissions in this Court. At the hearing before me, he made oral submissions based on those written submissions. The substance of the applicant’s written submissions can be broken into two parts.
First, at paragraphs [13]-[17] the applicant sets out what Mr Jones referred to as his interpretation or construction argument regarding the meaning of the expression “in relation to” in PIC 4020(1). I set these paragraphs out below:
[13]PIC 4020(1) is breached by a person giving or causing to be given a bogus document "in relation to" the visa application or a visa held in the previous 12 months. The term "in relation to" must be interpreted in the context of the legislative provision, which is intended to counter attempts to obtain visas fraudulently.
[14]There is obviously a wide range of circumstances in which a person may give or cause to be given a bogus document. A person may admit having entered the country with a false passport, then in making an application for a visa in which from the start they truthfully declare their real identity they may provide the false passport merely as background material. In another situation, a person might claim to have been the target of false criminal charges brought by their political opponents. Evidence of those charges would be a document obtained by making a false or misleading statement and would therefore be bogus.
[15]It could not be said that in either hypothetical case the applicant would be failing to comply with PIC 4020 by giving the bogus document "in relation to" their visa application, since they were not relying on it as genuine. It would be a perverse interpretation of the legislation to hold that whenever an applicant provides a bogus document with no intention of relying on it that they are in breach of the PIC.
[16]In this case, the Applicant clearly did not rely or intend to rely in any way on the bogus documents. The details given in the 1436 forms merely answered the question as to what the passports actually stated as the children's places of birth. They were accompanied by the children's Australian birth certificates which in their terms contradicted what was said in the passports. They were provided under a covering letter from the Applicant's solicitor. While a more complete explanation could have been given, it could not reasonably be concluded that either the Applicant or the solicitor intended that both the passports and the contradicting birth certificates were to be relied on in claiming that the children were the children of the Applicant.
[17]The Tribunal's finding that the Applicant had given or caused to be given bogus documents in relation to his visa application was based on a misinterpretation of the legislation.
Second, at paragraphs [18], and [20]-[23] the applicant sets out what Mr Jones referred to as his argument regarding the affect the misconstruction of the expression “in relation to” had on exercise of the discretion by the Tribunal in PIC 4020(4). I set these paragraphs out below:
[18]It is accepted that the Applicant gave false or misleading information in a material particular in relation to his visa application concerning his family composition, as found by the Tribunal at [32] and [33] (CB 318).
…
[20]In Kaur the Full Federal Court held at [26] that:
[…] 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.
[21]Although what was at issue in that case was whether or not there were compelling circumstances, their Honours' reasoning would apply equally to compassionate circumstances.
[22]If the decision maker is satisfied that compelling or compassionate circumstance of the relevant type do exist, then it must decide separately whether grant of the visa is justified. Justification will necessarily depend both on the strength of the compelling or compassionate nature of the circumstances and the nature and seriousness of the breaches of the PIC.
[23]The Tribunal in this case did not clearly explain how it balanced the compassionate circumstances relating to the Applicant's wife and young child against the nature and extent of the breaches, but it can only be inferred that it weighed its findings on both bogus documents and false or misleading information together against the discretion to grant the visa. As has been argued above, the Tribunal was in error in respect of whether the Applicant had given bogus documents in relation to the application, and therefore its balancing would have been significantly tilted against the Applicant.
In addition to the concession in paragraph [18] of the applicant’s written submissions set out above, the applicant does not dispute the Tribunal’s finding that the Ghanaian passports of the additional applicants (the three adult children of the applicant) were each a “bogus document” within the meaning of s 5(1) of the Act.
The essence of the applicant’s submission is that the Tribunal misconstrued the expression “in relation to” in PIC 4020(1), and gave it a meaning which was too broad, and this affected the findings under PIC 4020(4). At the hearing it was submitted that the expression “in relation to” referred to the purpose for which the documents are given to the Department. At the hearing before me, Mr Jones submitted that while it is accepted that the Ghanaian passports were bogus documents within the meaning of s 5(1) of the Act, they were not given, or caused to be given by the applicant, to the Department “in relation to” the applicant’s application for a visa. Rather, it was submitted, copies of the Ghanaian passports for each of the additional applicants were provided because Form 1436 asked questions about their passports, therefore they did not fall within PIC 4020(1).
Mr Jones also submitted that while the additional applicants’ Ghanaian passports are conceded to be “bogus documents”, the applicant did not have any intention of relying upon them in relation to his visa application, rather they were provided because Form 1436 contained questions which asked for details about the passports (for example see questions 9-11 in Form 1436).
In developing this argument, Mr Jones referred to the Federal Court decision of White J in Nanre v Minister for Immigration and Boder Protection (2015) 232 FCR 80 (Nanre) at [27]-[30]. The applicant submitted that if the Court accepted this construction of PIC 4020(1), the Tribunal erred in finding at paragraph [34] that the applicant had given bogus documents to the Department as part of his Partner visa application. The applicant also submitted that this had a flow on effect under PIC 4020(4). Mr Jones submitted that as a result of the Tribunal misconstruing the meaning of the expression "in relation to", this improperly affected its discretionary assessment under PIC 4020(4) as to whether the compassionate circumstances of the case justified the grant of the visa, which was the jurisdictional error identified and relied upon by the applicant in his amended application.
I asked Mr Jones towards the end of his submission whether his argument regarding PIC 4020(4) was dependent on the Court accepting his first argument in relation to the construction or interpretation of “in relation to” in PIC 4020(1). Mr Jones conceded that if the Court rejected his statutory construction argument regarding the expression “in relation to” in PIC 4020(1), then his argument in relation to the Tribunal’s discretionary assessment under PIC 4020(4) could not succeed.
Shortly before the hearing on 1 August 2025, the applicant sent an email to the Court and the first a respondent, attaching a decision of Judge Driver in Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 109 (Singh). At the hearing, and for completeness, I asked Mr Jones if the applicant was also relying upon the jurisdictional error identified by Judge Driver in Singh at [27]-[34] as part of the applicant’s judicial review proceedings in this Court. Mr Jones said the applicant was not submitting or claiming as part of its case in this Court that the Tribunal in the present case had committed the kind of jurisdictional error identified by Judge Driver in Singh.
FIRST RESPONDENT’S SUBMISSIONS
The substance of the first respondent’s submissions in response to the applicant’s first argument, his construction argument regarding “in relation to” in PIC 4020(1), are set out in his written submissions at paragraphs [28] – [33] (footnotes omitted):
[28]As a matter of statutory construction, where expressions such as “in relation to” are used in statute, a broad connection, not necessarily causal, is generally sufficient but the degree of connection required is determined by the context.
[29]The expression “in relation to”, which appears in PIC 4020(1), was previously considered by the Federal Court in Nanre v Minister for Immigration and Border Protection (2015) 232 FCR 80; [2015] FCA 528. In Nanre, the appellant contended that documents or information could “relate to” a visa application only if they were relevant to the satisfaction of the criteria bearing on the grant of the visa for which the application is made (at [24]). White J rejected this argument, finding relevantly as follows at [27]-[28] (emphasis added):
[27]The submission of the appellant was, in effect, that the expression “in relation to” has the meaning of “relevant to” or “probative of”, in the sense that the document or information provided is capable of being logically probative of the criteria to be satisfied for the grant of a visa. It is plain that the expression “in relation to” does not have that narrow meaning, and that it refers instead to the purpose for which the document or information is given to the identified person, however probative of the matters to be established the document or information may be. A document given to the Department to support an application for a visa remains such a document even if, unbeknown to the applicant, it is irrelevant or otherwise incapable of achieving the purpose for which it was provided. The appellant’s submission does not recognise the composite effect of the requirement that there be no evidence that an applicant “has given … to a relevant assessing authority … a bogus document … in relation to the application of a visa”.
[28]To construe the expression “in relation to” in the way for which the appellant contends would be to adopt a strained meaning and would not give effect to the evident intention of PIC 4020, namely, the discouragement of the provision of false or misleading information. …
[30]In the present case, the applicant’s representative provided the Ghanaian passport bio data pages relating to the applicant’s three older children together with completed 1436 forms which appear to have been provided for the purpose of seeking to add the applicant’s three older children to the applicant’s visa application. These documents were, as a matter of fact (and having regard to the broad import to be given to the expression “in relation to”), given by the applicant “in relation to” his visa application.
[31]The applicant’s contention (Applicant’s Submissions filed on 4 July 2025 (AS) at [16]) that the applicant did not rely or intend to rely in any way on the bogus documents should be rejected. The applicant’s representative provided to the Department what were described as certified copies of the birth certificates and passports of each of the applicant’s older children. No submission was made on behalf of the applicant that the passports were not genuine documents or that the applicant was providing the passports solely for the purpose of supporting the information provided in response to Question 7 on the applicable forms, and this revisionist narrative ought to be rejected.
[32]Further, contrary to what is stated in the AS at [11] and [16], the details given in the 1436 forms went further than merely answering the question as to what the passports stated as the children’s places of birth. While this is true in relation to Question 7 on the applicable forms, Question 8 was not so confined, and the applicant nevertheless stated that each of his older children were born in Ghana (CB 206, 211, 216).
[33]The Minister accordingly submits that the Tribunal’s finding that the applicant had given or caused to be given bogus documents in relation to his visa application was not based on a misinterpretation of the legislation, as alleged by the applicant (AS [17]).
The first respondent also made a submission regarding the alternative basis on which he says the Tribunal decision was also made, and the fact that the applicant does not challenge that finding at paragraph [34]:
[34]Significantly, the Tribunal found that PIC 4020(1) was not met for two reasons – namely, the applicant had supplied bogus documents to the Department, and he had given information that was false or misleading in a material particular to the Department (at [43]). These findings were separate and independent bases upon which the Tribunal found that PIC 4020(1) was not met. The applicant does not challenge the latter of these findings (AS [18]).
As to the applicant’s second argument regarding PIC 4020(4), the first respondent made the following submissions at paragraphs [35] – [39]:
[35]The applicant’s contention that the Tribunal’s exercise of discretion in respect of PIC 4020(4) miscarried ought to be rejected. The Tribunal did not misconstrue the meaning of the expression “in relation to”, as it appears in PIC 4020(1), for the reasons set out above. The ground fails for this reason alone.
[36]As the applicant acknowledges, PIC 4020(4) sets up a two-staged inquiry (AS at [20], referring to Kaur v Minister for Immigration and Border Protection (2017) 256 FCR 235 at [26]). The Tribunal acknowledged as such, at paragraph [45] of its reasons.
[37]The Tribunal was not satisfied that there existed compelling circumstances that affected the interests of Australia, or that there were compassionate or compelling circumstances that affected the interests of an Australian citizen, an Australian permanent resident, or an eligible New Zealand citizen.
[38]In particular, the Tribunal was not satisfied that the submissions advanced concerning the sponsor and the applicant’s youngest child amounted to compassionate or compelling circumstances (at [50]-[55]). That was the end of its enquiry, such that the second stage identified in Kaur (i.e., the discretionary stage) was not enlivened (cf. AS [23]).
[39]Furthermore, and in any event, as set out above, the Tribunal did not err in its construction of whether the applicant had given bogus documents in relation to the visa application (cf. AS [23]).
At the hearing before me, and in reply to Mr Jones, Ms Maddocks made the following oral submissions:
(a)No argument was ever advanced by the applicant or his lawyer/migration agent, Mr Wellington, to the Department, before the Tribunal, or leading up to the Tribunal hearing, that the Ghanaian passports of the additional applicants were not genuine, or bogus. The email from Mr Wellington (and the cover letter) makes no mention of the passports being bogus. The evidence in the Tribunal decision at paragraph [26] is that the applicant told the Tribunal at the hearing the passports were “wrong”;
(b)The applicant’s submissions about Nanre were wrong. Rather, his Honour, White J, in Nanre rejected a narrow construction of the expression “in relation to” contained in PIC 4020(4) at [28] in favour of a construction which emphasise the importance of honesty and accuracy in an application for a visa;
(c)The Ghanaian passports were given for the relevant purpose, that being the applicant’s visa application. There was nothing in Mr Wellington’s correspondence which advises the Department, or the Tribunal, that the passports were not genuine. On the contrary they are provided to the Department as “certified copies”, giving the impression of they are genuine. They also contain information, for example, place of birth, which corresponded to the answers given to the questions contained in Form 1436. For example, in answer to question 8 on Form 1436, the additional applicants stated their place of birth to be “Accra in Ghana”, which is consistent with their passports but not consistent with their Australian birth certificates.
(d)In relation to the second argument, the first respondent submits the Tribunal did not get past the first stage of the two-stage test set out in Kaur, because the answer to the stage one test was “no”, and so the findings about the provision of bogus documents was not relevant to the decision under PIC 4020(4).
(e)Singh was distinguishable from the present Tribunal’s decision on the basis that the Tribunal did not conflate the first and second stage test (a submission Mr Jones agreed with).
CONSIDERATION
It is well accepted principle of statutory construction that the text of a provision is to be construed according to the context 'by reference to the language of the instrument viewed as a whole': see National Disability Insurance Agency v Warwick [2025] FCAFC 100 at [42], citing the judgment of Gordon J (Besanko J agreeing) in Sea Shepherd Australia Limited v Commissioner of Taxation [2013] FCAFC 68; (2013) 212 FCR 252 at [34].
In Project Blue Sky v ABA (1998) 194 CLR 355, a majority of the High Court (McHugh, Gummow, Kirby and Hayne JJ) held at [69]:
The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The meaning of the provision must be determined “by reference to the language of the instrument viewed as a whole”. In Commissioner for Railways (NSW) v Agalianos, Dixon CJ pointed out that “the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed”. Thus, the process of construction must always begin by examining the context of the provision that is being construed.
The High Court has also emphasised the importance of context when interpreting connecting phrases such as the expression “in relation to” in legislation. In Travelex Ltd v Commissioner of Taxation (2010) 241 CLR 510 French CJ and Hayne J said as to the interpretation of the expression of “in relation to” at [25]:
It may readily be accepted that "in relation to" is a phrase that can be used in a variety of contexts, in which the degree of connection that must be shown between the two subject matters joined by the expression may differ. It may also be accepted that "the subject matter of the enquiry, the legislative history, and the facts of the case" are all matters that will bear upon the judgment of what relationship must be shown in order to conclude that there is a supply "in relation to" rights.
In Nanre, White J examined what the expression “in relation to” meant in the context of PIC 4020(1). While Nanre concerned a different type of document, namely a TRA Skills Assessment document, not passports, White J’s conclusion as to the proper construction of the expression “in relation to” in PIC 4020(1) is binding on this Court.
In Nanre, the appellant made the following argument about the statutory construction of “in relation to” in PIC 4020(1):
Documents or information could “relate to” a visa application only if they were relevant to the satisfaction of the criteria bearing on the grant of the visa for which application is made. Documents or information which, as a matter of fact and law, could not assist in establishing the applicable criteria were irrelevant and could not be said to have been given “in relation to” the visa application.
This construction of “in relation to” in PIC 4020(1) was rejected by the White J. His Honour set out his reasons for this at [27]-[32] of his judgment for that conclusion. These reasons included an examination of the Explanatory Memorandum to Migration Amendment Regulations 2011 (No 1) (Cth), by which PIC 4020 was introduced:
[27]The submission of the appellant was, in effect, that the expression “in relation to” has the meaning of “relevant to” or “probative of”, in the sense that the document or information provided is capable of being logically probative of the criteria to be satisfied for the grant of a visa. It is plain that the expression “in relation to” does not have that narrow meaning, and that it refers instead to the purpose for which the document or information is given to the identified person, however probative of the matters to be established the document or information may be. A document given to the Department to support an application for a visa remains such a document even if, unbeknown to the applicant, it is irrelevant or otherwise incapable of achieving the purpose for which it was provided. The appellant’s submission does not recognise the composite effect of the requirement that there be no evidence that an applicant “has given ... to a relevant assessing authority ... a bogus document ... in relation to the application of a visa”.
[28]To construe the expression “in relation to” in the way for which the appellant contends would be to adopt a strained meaning and would not give effect to the evident intention of PIC 4020, namely, the discouragement of the provision of false or misleading information. That intention was stated expressly in the Explanatory Memorandum provided by the Minister to Migration Amendment Regulations 2011 (No 1) (Cth) by which, amongst other things, the PIC 4020 was introduced.
Section 97 to 106 of the Act, in general, place obligations on applicants to provide correct information and to correct any incorrect information whether at the time of application or subsequently prior to visa grant. In circumstances where incorrect information is provided, the Minister may cancel under section 109 of the Act any visa that has been granted. The application of section 109 of the Act depends on a visa having been granted.
Section 65 of the Act provides that after considering valid visa application, the Minister must grant the visa if the applicant has satisfied the prescribed criteria, provided that there are no statutory bars to the visa being granted. Currently, the power to refuse a visa application on the basis that the visa applicant has false or misleading information is extremely limited. The relevant Schedule 2 criteria are not of general applicability, and relate only to false or misleading information provided by a primary visa applicant to satisfy certain specific requirements. Further, it is common practice that a visa applicant will seek to withdraw the bogus documents, or false or misleading information or find alternative methods of satisfying the relevant visa criteria without relying on the false information. In circumstances where this occurs, a decision maker is required to accept the request to withdraw the information and continue to process the application.
[29]This purpose has been recognised in the authorities. In Mudiyanselage v Minister for Immigration and Citizenship [2013] FCA 266; (2013) 211 FCR 27 at [35], Tracey J said that one of the purposes of the amendment was “to frustrate applicants who submit bogus documents when making a visa application in the hope that they will not be detected but that, if their deceit is exposed, they are able to eschew reliance on the document without prejudice to the success of their application”. Likewise, Murphy J said in Batra v Minister for Immigration and Citizenship [2013] FCA 274; (2013) 212 FCR 84 at [58]:
[58] The use of bogus documents is prohibited by s 103. The evident purpose of the prohibition is the maintenance of an effective migration system whereby classes of visa are given to those who have certain skills or characteristics. The section, considered in the context of other provisions such as ss 100, 101, 102, 104, 105, 107, 108 and 109, promotes honesty, order and reliability within the Australian migration system. Together, the provisions emphasise the importance of honesty and accuracy in an application for a visa.
Murphy J went on to find at [60] and [61] that the fact that the bogus skills assessment being considered in that case was of no legal effect was immaterial.
[30]The appellant sought to draw support for his submission from the use of the word “relevant” in the definition of “information that is false or misleading in a material particular” contained in PIC 4020(5)(b). The submission was that this was an express recognition of the necessity for the material said to be false or misleading to be relevant to the criteria to be considered by the Minister. As the provision of a bogus document or information that is false or misleading are alternatives in PIC 4020(1), it should be taken, it was said, that relevance was also necessary in the case of bogus documents.
[31]I do not accept that submission. PIC 4020, being part of a regulation made by the Executive, cannot control the meaning of the language used by the Parliament in s 97 of the Migration Act. Further, the term “in relation to” governs both the giving of a bogus document and the giving of information which is false or misleading. There is no reason in logic to suppose that terminology identifying what is false or misleading information should inform the meaning of a term concerning a different subject matter and, in particular, the purpose for which that information is given to the Minister.
[32]In a number of decisions, the FCC, and the Federal Magistrates Court, as it was formerly known, have upheld findings of the MRT that documents provided to the Department as part of a visa application were bogus documents, or false in a material particular, even though, for one reason or another, the document had no legal effect: Brar v Minister for Immigration and Citizenship [2012] FMCA 519; Bajwa v Minister for Immigration [2014] FCCA 2890; Sekhon v Minister for Immigration [2014] FCCA 2834. The appellant sought to distinguish these cases by his focus on the expression “in relation to”. For the reasons already given, the narrow construction which the appellant sought to give to that expression is rejected.
As was the case in Nanre, in the present case I do not need to revert to judicial exegesis of the phrase “in relation to” to conclude that the Ghanaian passports of the additional applicants were given, or caused to be given, by the applicant “in relation to” the applicant’s application for a visa. The answer is clear from the proper construction of PIC 4020(1) and the evidence. What the applicant may have intended is not relevant to the question of statutory construction.
The applicant does not dispute or challenge the finding that the Ghanaian passports were bogus documents. In fact, the applicant goes further and says that the applicant did not rely upon the Ghanaian passports because they were obviously bogus and therefore would have been destructive of the applicant’s application if he relied upon them.
The Ghanaian passports were emailed to the Department by the applicant’s representative, Mr Wellington, on 30 November 2016, under cover of a letter dated 30 November 2016 (Court Book page 201-202). Significantly, the subject matter line of the cover letter states in bold font:
Applicant: Mr Ernest ASAMOAH Application ID 365559471 Adding additional applicants after lodgement of Partner visa application
In the first paragraph of the 30 November 2016 cover letter, Mr Wellington, says “We refer to the above matter” being a reference to the subject matter line in the letter, and says he acts “for the visa applicant and the additional applicants”. He then encloses a completed Form 956, which nominates himself as the representative of the applicant and the additional applicants, attaches a completed Form 1436 for each additional applicant, and attaches “certified Birth Certificates and [Ghanaian] passports” for each additional applicant. The certification certified the photocopies of the passports provided as true copies of the originals.
As the first respondent correctly pointed out in submissions, the answers to questions 7, 8 and 9 in Form 1436, reflected information that is contained in the Ghanaian passports. In other words, the applicant's representative used the Ghanaian passports to provide information to the Department as required by Form 1436.
A significant problem with the applicant’s argument is that nowhere in the letter dated 30 November 2016, or in any other correspondence, does the applicant or his representative disavow the genuineness of the Ghanaian passports, or submit that they are being provided, not for their genuineness, but because they are the subject of questions in Form 1436 by the Department. The applicant does not tell the Department or the Tribunal the passports are bogus. The highest the evidence gets is at paragraph [26] of the Tribunal decision where the applicant tells the Tribunal the Australian birth certificates are genuine and the Ghanaian passports are “wrong”.
Another problem is the reference in the 30 November 2016 cover letter and the Ghanaian passports themselves, to the copies of the Ghanaian passports being “certified” copies. The inference being that the passports are genuine documents. A further problem, as averted to above, is that the applicant used the knowingly false information from the Ghanaian passports to complete some of the questions in Form 1436. If the passports were known to be false, why use the information in them to answer questions asked by the Department?
As White J held in Nanre, the intention of PIC 4020(1) is evident from the Explanatory Memorandum and the authorities. That intent is to promote honesty, order and reliability within the Australian migration system by discouraging the provision of any false or misleading information in visa applications by visa applicants: see Mudiyanselage v Minister for Immigration and Citizenship [2013] FCA 266; (2013) 211 FCR 27 at [35] and Batra v Minister for Immigration and Citizenship [2013] FCA 274; (2013) 212 FCR 84 at [58]. Therefore, the use of the expression “in relation to” should be construed to achieve that intention.
I do not accept the submission by the applicant that the expression “in relation to” should be given the construction contended for. In particular, I do not accept the submission that the words “in relation to” in PIC 4020(1) refers to the “purpose” for which documents may have been given by the applicant. I reject such a narrow construction of PIC 4020(1). The applicant’s intention when his representative gave the Ghanaian passports to the Department on 30 November 2016 is not relevant to the question of the proper construction of PIC 4020(1)(a). Whether the applicant intended (or not) to provide the document on the basis it was in fact a bogus document is irrelevant. Knowingly providing a bogus document does not change the nature of the document, it is still a “bogus document” within the meaning of s 5(1) of the Act. I consider that to construe the expression “in relation to” in the way the applicant contends would be to adopt a “strained meaning” and “would not give effect to the evident intention of PIC 4020, namely, the discouragement of the provision of false or misleading information” in visa applications: Nanre at [28].
Mr Wellington was the representative (lawyer and migration agent) for the applicant in relation to the applicant’s visa application, and for the additional applicants. I find the applicant, through his representative, Mr Wellington, gave, or caused to give, the Ghanaian passports to the Department “in relation to” the applicant’s “application for a visa” within the meaning of PIC 4020(1)(a). The content of the letter dated 30 November 2016 from Mr Wellington, and the content of the email dated 30 November 2016 which sends the letter to the Department, supports this finding. It is the only rational reason the email and letter was sent in the first place. There is no other rational reason why Mr Wellington sent certified copies of the Ghanaian passports to the Department on behalf of his clients.
When asked what the applicant contended that alternative reason was, Mr Jones submitted the only reason why the Ghanaian passports were given to the Department on behalf of his clients was because specific questions in Form 1436 asked about the passports.
I do not accept that submission for three reasons. First, Form 1436 is a document clearly related to the visa applicant’s visa application; its purpose is to add the additional applicants to the applicant’s visa application. Second, if the applicant knew the Ghanaian passports were bogus, he could have simply refrained from providing them to the Department. Third, the applicant used what he knew was false information in the Ghanaian passports, such as birthplaces, to answer questions in Form 1436 for each of the additional applicants. In other words, the applicant used the Ghanaian passports, which were admitted bogus documents, for the very purpose that PIC 4020(1) is there to prevent: to discourage the provision of false and misleading information in relation to an application for a visa.
As I have found against the applicant on his statutory construction of PIC 4020(1) in relation to the Ghanaian passports, and consistent with what Mr Jones told the Court at the hearing, I do not need to go on to consider whether the exercise of the Tribunal’s discretion under PIC 4020(4) was affected by the interpretation of the meaning of the expression “in relation to” under PIC 4020(1). Nor, for the same reason, do I need to consider the first respondent’s alternative argument in paragraph 34 of its written submissions that there was separate and independent basis for supporting the Tribunal’s finding that that PIC 4020(1) was not met which the applicant does not challenge. Namely, that the applicant had given information in a separate form, Form 74SP, that was false or misleading in a material particular, to the Department.
DISPOSITION
For the reasons set out above, the applicant has not established that the Tribunal’s decision is affected by jurisdictional error as claimed in the amended application.
The amended application is dismissed.
COSTS
The first respondent has sought an order that the applicant pay the first respondent’s costs in the amount of $8,371.30. The amount sought is for the scale amount under Item 3 in Schedule 2, Part 2, of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth). Mr Jones did not oppose the amount sought by the first respondent. I consider the amount sought is fair and reasonable given the nature of these types of matters. I will order that the applicant pay the first respondent’s costs in the amount of $8,371.30.
I certify that the preceding seventy (70) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Cleary. Associate:
Dated: 13 August 2025
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