Feng v Minister for Immigration and Multicultural Affairs
[2024] FedCFamC2G 1042
•18 October 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Feng v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 1042
File number(s): SYG 2976 of 2020 Judgment of: JUDGE KAUR-BAINS Date of judgment: 18 October 2024 Catchwords: MIGRATION – Administrative law – judicial review – contention that the Tribunal failed to properly construe PIC 4020 and make an express finding that in relation to the incorrect information there was “an element of fraud or deception” – whether the “no evidence” terminology in PIC 4020(1) applies to both the question of whether the applicant has given or caused to be given the relevant impugned information, as well as to whether the information is false or misleading in a material particular - application dismissed Legislation: Migration Act 1958 (Cth) ss 65, 476, 477
Migration Regulations 1994 (Cth) sch 2 cl 500.217, sch 4 Public Interest Criterion 4020
Cases cited: Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473
Automotive Invest Pty Ltd v Commissioner of Taxation [2024] HCA 36
Trivedi v Minister for Immigration and Border Protection (2014) 220 FCR 169
CHZ19 v Minister for Home Affairs [2019] FCA 914
Faruque v Minister for Immigration and Border Protection [2015] FCA 1198
Fati v Minister for Home Affairs [2019] FCA 52
Gill v Minister for Immigration and Border Protection [2016] FCAFC 142
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Peraj v Minister For Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 184
Salopal v Minister for Immigration and Border Protection [2018] FCA 1308
Division: Division 2 General Federal Law Number of paragraphs: 63 Date of hearing: 30 September 2024 Place: Sydney Counsel for the Applicant: Ms F McNeil of Counsel Solicitor for the Applicant: Mr A Pham of Andy Pham Lawyers Solicitor for the First Respondent: Ms K Evans of Sparke Helmore Solicitor for the Second Respondent: Submitting appearances save as to costs ORDERS
SYG 2976 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: CHIU-HE FENG
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
Respondent
ORDER MADE BY:
JUDGE KAUR-BAINS
DATE OF ORDER:
18 OCTOBER 2024
THE COURT ORDERS THAT:
1.The name of the First Respondent is amended to Minister for Immigration and Multicultural Affairs.
2.The Further Amended Application is dismissed.
The Applicant pay the First Respondent’s costs of and incidental to the proceeding fixed in the sum of $8371.30.
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 Kaur-Bains
The applicant seeks judicial review of a decision of the second respondent (Tribunal) dated 26 November 2020. The Tribunal refused to grant the applicant a Student (Temporary) (Class TU) Student (subclass 500) visa (Student Visa), as it was not satisfied the applicant met the Public Interest Criterion (PIC) 4020 as required by cl 500.217 of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations), because of the provision of false or misleading information in a previous visa application form as to the applicant’s regional work history.
This Court has jurisdiction to determine this matter pursuant to s 476 of the Migration Act 1958 (Cth) (Act). The amended application for review has been brought within the time set out in s 477 of the Act.
BACKGROUND
The applicant is a citizen of China (CB 2). The applicant applied for a working holiday visa on 8 December 2015 (First Visa). The First Visa was granted on 5 January 2016.
The applicant then applied for a second working holiday visa on 27 October 2016 (Second Visa). The Second Visa was granted on 27 October 2016 and that visa was valid until 28 February 2018 (CB 37).
On 28 December 2017 the applicant applied for the Student Visa to study the course General English – Beginner to Advanced from Provider Group Colleges Australia Pty Ltd (CB 1-35).
On 9 April 2018 the delegate sent the applicant an invitation to comment on adverse information (CB 37-40). The invitation set out the following:
Department records indicate that you were previously granted a Second Working Holiday visa 27/10/2016 on the basis of a bogus document or information that is false or misleading in a material particular to the grant of that visa. You continued to hold the same Working Holiday visa until 28/02/2018, that is, within the last 12 months of lodging this Student visa application.
In your previous working holiday visa application lodged 27/10/2016 you provided details of having completed prior regional employment in order to satisfy the requirements to be granted a Second Working Holiday visa. Regional employment details provided:
ABN: 70680477133
Location of employment: Postcode 2450
Period of employment: 14/03/2016 to 29/06/2016
WHM Regional Employment: Agriculture, Forestry and Fishing
Investigations conducted by the Department have found the employment claims to be false and fraudulent.
It is a requirement for the grant of a Student (subclass 500) visa that the applicant satisfies Public Interest Criterion (PIC) 4020 contained in clause 4020 of Schedule 4 to the Migration Regulations 1994. Subclause 4020(1) requires that there is no evidence before the Minister that the applicant has given, or caused to be given, to the Minister, an officer, the Administrative Appeals Tribunal, 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:
•the application for the visa; or
•a visa that the applicant held in the period of 12 months before the application was made.
If there is such evidence, subclause 4020(4) provides that PIC 4020(1)(a) or (b) and subclause 4020(2) will nonetheless be satisfied if the Minister is satisfied that:
•compelling circumstances that affect the interests of Australia; or
•compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen;
justify the grant of the visa.
As there is evidence suggesting that you have provided, or caused to be provided, a bogus document or false or misleading information in relation to this visa application, you may fail to satisfy PIC 4020(1), with the result that this visa application may be refused.
The applicant’s solicitor, Andy Pham, on two occasions on 30 July 2018 and 1 August 2018, provided email responses to the delegate’s invitation to comment on adverse information. The responses attached statutory declarations of Rosa Pulera (CB 49-53) and Giovanbattista Pulera (CB 61-67) both declared on 26 July 2018.
The statutory declarations stated that between April 2016 and late 2017, the applicant worked on a farm on a trainee basis, without remuneration, at 88 Jones Lane, Newbridge NSW 2795 for Mr and Mrs Pulera. It was declared that the applicant received “little pocket monies” from Mr and Mrs Pulera and the applicant spoke no English at all.
On 15 August 2018, the delegate refused to grant the applicant the Student Visa and emailed the applicant’s solicitor with a Notification of the refusal decision as PIC 4020 was not satisfied (CB 72-76).
On 29 August 2018, the applicant applied to the Tribunal to review the decision of the delegate to refuse to grant the Student Visa.
Tribunal’s Decision
By letter dated 8 July 2020 the Tribunal invited the applicant to provide information (CB 85). The applicant’s solicitor, Mr Pham, who had previously acted for the applicant before the Tribunal, responded by providing a sworn statutory declaration by the applicant dated 22 July 2020, together with the statutory declarations of Rosa Pulera and Giovanbattista Pulera declared on 26 July 2018 (referred to in [7] of this judgment). The applicant’s solicitor also provided written submissions to the Tribunal to the effect that the statutory declarations by Mr and Mr Pulera supported that the applicant had completed regional work, although with a different employer than the one stated in the visa application (CB 107-111).
On 9 September 2020 the applicant appeared before the Tribunal to give oral evidence and present arguments at the hearing. The applicant was assisted by a Vietnamese interpreter and was represented by Mr Pham, her solicitor, before the Tribunal ([3] and [4] of the reasons).
The Tribunal set out the background of the matter ([12] to [20] of the reasons) and summarised the applicant’s submissions regarding her work at the Puleras’ farm ([21] to [22] of the reasons). Relevantly, the Tribunal noted that those submissions did not answer the concern that the information related to the applicant’s regional employment history in her application for the Second Visa was false and misleading at the time it was submitted.
The Tribunal noted the applicant did not dispute, that at no time was she employed by Green Wayne Barry (ABN 70680477133), as recorded in her Second Visa application, and acknowledged the information as to her regional work in the application was untrue. The Tribunal noted the applicant sought to excuse the presence of the incorrect information by claiming that her agent put it there without her knowledge or consent ([23] of the reasons). The Tribunal also recorded the applicant’s evidence regarding her claims that she was put in touch with this agent by unnamed friends via an unnamed website, that she never met the agent and that she does not know the agent’s name, phone number, website or the name of the agency he worked for ([24] of the reasons). The Tribunal also noted the applicant’s evidence that she paid the agent to assist her with her application, giving the agent her immigration history, biographical information and passport, but did not tell her agent about her employment history because the agent never asked ([26] of the reasons).
The Tribunal found the applicant’s claims regarding her reasons for being unable to remember basic information about her agent to verify her claims that she engaged the agent to prepare the application and the role they played in preparing the application, to be “unpersuasive” ([25] of the reasons).
The applicant gave evidence that she engaged her agent to submit her application form. The Tribunal found it to be “inherently implausible” that the applicant would not have told her agent about her employment history on the Puleras’ farm if she did in fact believe that her work there would have met her regional work obligations ([26] of the reasons).
The Tribunal found it to be “inherently implausible” that the agent would not have asked the applicant about her employment history and instead “chose unilaterally to fabricate an employment history for her” ([27] of the reasons).
The Tribunal summarised the applicant’s evidence relating to why she did not check the application for errors and omissions, being that she did not speak English and was unfamiliar with the law and procedures regarding making a visa application, so she put her trust in her agent ([28] of the reasons). After noting there was no evidence that the applicant asked to view the application before it was submitted, as well as there being no evidence that she asked her friends or the Pulera’s or anybody else to assist her to check the accuracy of the application before it was submitted, the Tribunal found that the applicant was at best indifferent to the accuracy and completeness of the information that was provided in her application ([29] of the reasons).
Further, the Tribunal said it was not satisfied that the applicant was not complicit in the provision of false or misleading information to the Department due to her “evident indifference to the accuracy and truthfulness” of the information ([30] of the reasons).
Ultimately the Tribunal found, on balance, that it was satisfied there was evidence before it that the applicant had given, or caused to be given, information about her regional work history that was purposefully untrue and that the impugned information was false or misleading in a material particular as defined in PIC 4020. It also found the information was relevant to the criteria that the Minister may consider when deciding whether to grant a Student Visa and that it was also satisfied that the information was provided in relation to the Second Visa which was held by the applicant in the 12 months before she applied for the Student Visa. The Tribunal found the applicant therefore did not meet the requirements of PIC 4020(1) ([31] to [33] of the reasons).
For those reasons the Tribunal determined that it was not satisfied that cl 500.217(1) of the Regulations was satisfied ([34] to [41] of the reasons).
RELEVANT LAW
Section 65(1) of the Act, relevantly provides:
(1)Subject to sections 84 and 86, after considering a valid application for a visa, the Minister:
(a) If satisfied that:
…
(ii)the other criteria for it prescribed by this Act or the regulations have been satisfied: and
…
is to grant the visa; or
(b) if not so satisfied, is to refuse to grant the visa.
Relevantly for this matter, the primary criteria for the grant of a student visa was cl 500.217(1), which provided:
(1) The applicant satisfies public interest criteria … 4020 …
PIC 4020 of sch 4 of the Regulations, at the relevant time provided:
(1) There is no evidence before the Minister that the applicant has given, or caused to be given, to the Minister….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. (emphasis added)
……
(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.
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.
GROUNDS IN THE AMENDED APPLICATION
In the Further Amended Application filed with leave on 30 September 2024, one ground was raised, being that:
The AAT found at [31] that it was satisfied that “the applicant gave, or caused to be given to ... the Department information about her regional work history that is purposefully untrue and [therefore] that the impugned information is false or misleading in a material particular as defined in PIC 4020”.
As explained in Trivedi v Minister [2014] FCAFC 42 and noted by the AAT at [10], “an element of fraud or deception by some person is necessary to attract the operation of the provision”.
In connection with this element of fraud or deception, the AAT erred in its finding at [31] because:
(a)The AAT did not make an express finding that, in relation to the incorrect information, there was “an element of fraud or deception”.
(b)Such a finding is not implicit in any other finding of the AAT.
(c)The AAT did not consider whether there was, in relation to the incorrect information, “an element of fraud or deception”.
PROCEEDINGS IN THIS COURT
The applicant read two affidavits without objection. The first affidavit was affirmed by Andy Pham, the applicant’s solicitor, dated 24 December 2020 which annexed the Tribunal’s decision. The second affidavit was affirmed by Gillian Hawkins on 24 July 2024, annexing a copy of a transcript of the hearing before the Tribunal.
Applicant’s Submissions
The applicant contends the Tribunal erred in its construction and application of the requirements of PIC 4020, in that it failed to consider and make an express or implied finding that the information as to previous regional work history that was provided in the second visa application was false or misleading, in the sense of being purposely untrue, and carrying an element of fraud or deception.
Minister’s Submissions
The Minister contended that PIC 4020 did not require a conclusive finding to be made by the Tribunal as to whether the information, provided in the Second Visa application as to the applicant’s regional work history, was false or misleading, in the sense of being purposely untrue. Rather, the Tribunal needed to be satisfied that PIC 4020 was satisfied, and PIC 4020 would be satisfied if there is no evidence of information, which was false or misleading, in the sense of being purposely untrue. Conversely, if there exists such evidence, then the criterion in PIC 4020 will not be fulfilled. In any event, the Minister submitted there was evidence of the matters referred to in PIC 4020. Therefore, the Tribunal was correct in its conclusion at [31] of the reasons.
CONSIDERATION
Proper construction of PIC 4020
The parties directed my attention to the following cases as to the proper construction of PIC 4020.
In Trivedi v Minister for Immigration and Border Protection (2014) 220 FCR 169 (Trivedi), the relevant facts were that the appellant applied for a skilled (residence) (class VB) visa. The appellant provided a test result form, which showed that she had obtained the required IELTS scores in the English language (at [2] and [3]). The Ministers department ascertained that the appellant in fact had not obtained the required IELTS scores. The Full Federal Court was considering whether:
(a)First, it was necessary to find that the appellant was knowingly involved in the giving of the false information for PIC 4020 to apply.
(b)Second, whether the information needed to be purposely untrue for PIC 4020 to apply.
The Full Court found that:
(a)First, it was not necessary for a visa applicant to know of, or be directly involved in, any falsehood before PIC 4020 is engaged (at [28], [54]).
(b)Second, an element of fraud or deception by somebody is necessary in order for PIC 4020 to be engaged. Also, the information must have the quality of being purposely untrue (at [33], [43] – [44]).
What is purposely untrue?
Buchannan J (Allsop CJ at [1] and Rangiah J at [56] agreeing) relevantly stated:
30 Much, of course, depends on the context and perceived purpose of PIC 4020 as well as the terms in which the prohibition in question is expressed. In the present case, I think the intention and purpose of PIC 4020 are clearly revealed by the text and a consideration of the purpose for which the information is provided.
…
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.
34Secondly, consideration of the circumstances of the introduction of PIC 4020 confirms me in the view derived from the text of PIC 4020 that it is not directed to information or documents which are not tainted in the way I have indicated.
…
43In 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.
Therefore, to be “purposely untrue”, the information which is untrue is provided to the Minister’s department, with the ultimate end to attempt to work a fraud or deception on the assessment of claims for a visa. It is noted that there is “a difference between “purpose” and “motive”, with a person’s purpose being usually the end, object or goal that the person seeks to achieve. A person’s motive is the reason that the person seeks to achieve that purpose or end.”: Automotive Invest Pty Ltd v Commissioner of Taxation [2024] HCA 36 at [110] (Edelman, Steward, Gleeson J).
Does the visa applicant have to be knowing or complicit in the deceptive character of the information?
In Trivedi Buchanan J (Allsop CJ and Rangiah J agreeing) also relevantly stated:
49 … 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.
The Full Court in Trivedi, dismissed the appeal finding:
(a)It was not necessary for the Tribunal to find that the appellant knowingly provided false information, or to determine whether she knew or did not know that the information was false when she gave it (at [52]).
(b)The information provided by the appellant to the Minister’s department was misleading and false. That information was provided both in the body of the application and in the form of the document which falsely stated the IELTS scores.
Thus, the Tribunal does not need to make a finding that the applicant knowingly provided false information, or to determine whether she knew or did not know that the information was false when she gave it.
Whether the “no evidence” terminology applied to the two limbs of PIC 4020(1)?
An issue that arose in these proceedings is whether the “no evidence” terminology in PIC 4020(1) applies both to the question whether the applicant has given or caused to be given the relevant information, as well as to whether, the information is false or misleading in a material particular, in which case PIC 4020(1) would not be met where there was some evidence. The inquiry would be reduced to whether there was some evidence on the issue rather than an evaluation of all the evidence and making positive findings.
In Faruque v Minister for Immigration and Border Protection [2015] FCA 1198 (Faruque) the applicant applied for a Student (Temporary) (Class TU) visa. A delegate of the Minister refused to grant the visa as the delegate was not satisfied that the applicant met PIC 4020 because she had provided with her visa application, a bank statement in her husband’s name which the delegate considered was false or misleading in a material particular. Katzmann J said the following:
26… The Tribunal recognised that when PIC 4020 refers to false information it was referring to information, as it put it at [8] of its reasons, “in the sense of purposely untrue”. It is important to recall that the Tribunal did not have to be satisfied that the bank statement was purposely false or contained purposely false or misleading information. It had to be satisfied that there was no evidence to the contrary. For this reason I do not think there is sufficient doubt about the primary judge’s conclusion that the Tribunal applied the correct test as set out in Trivedi. The Tribunal’s decision should be read in the context of the evidence and other material before it and the terms of PIC 4020.
27 The Tribunal was required to be satisfied that there was no evidence that in support of their visa application the applicants provided a bogus document or information that was purposely untrue or misleading in a material respect. Here, there was evidence to suggest that the information in question was purposely untrue or misleading in a material respect. (emphasis added)
In Salopal v Minister for Immigration and Border Protection [2018] FCA 1308 (Salopal), the issue arose directly as to whether the “no evidence” aspect of PIC 4020(1) applied only to the “given or caused to be given” limb of the requirement or whether it also applied to the “bogus document” limb of the clause. Colvin J noted the definition of “bogus document” and that it required that the Minister reasonably suspect that the document have one of the characteristics identified in (a), (b) or (c). His Honour concluded (at [86]):
… A requirement that there be no evidence of a state of suspicion which is itself to be formed in the course of the determination to be made by the person to whom an absence of evidence of that state of suspicion must be demonstrated would have a Kafkaesque quality.
His Honour also said the following (at [87]):
Also relevant to the construction of the scope of the ‘no evidence’ language in PIC 4020(1) is the fact that it also applies in cases where there is an issue whether information that is false or misleading in a material particular has been given in relation to the application for the visa or a visa held by the applicant in the previous 12 months. If the ‘no evidence’ terminology applies to both the question whether the applicant has given or caused to be given the relevant information as well as to whether that information is false or misleading in a material particular then PIC 4020(1) would not be met where there was some probative evidence that the information was false or misleading irrespective of whether the Tribunal, on evaluating all of the information, did not reasonably suspect that the information was false or misleading. It would reduce the inquiry to a question whether there was some probative evidence on the issue rather than an evaluation whether the evidence led to a reasonable suspicion that the document had been obtained because of a false or misleading statement.
(emphasis added)
I note that in the current PIC 4020, “information that is false or misleading” is defined in PIC 4020(5) and does not require that the Minister “reasonably suspects”, which is the language for the definition of “bogus document”, for the purposes of PIC 4020 (see [25] of this judgment). I am not sure, if Colvin J in Salopal had been aware of that matter, whether it would have affected his Honour’s construction of PIC 4020.
His Honour, Colvin J, then considered the authorities and concluded at [91] that he could discern no statement in the cases in which a view is expressed to the effect that the “no evidence” aspect of PIC 4020(1) extended beyond the requirement that the visa applicant has been the one who has given the document to the relevant party for the purposes of a visa application. His Honour did not accept the submission advanced by the Minister and at [93] to [95] concluded that PIC 4020 required the Tribunal to consider:
(a)First, whether the document was a bogus document and that turned upon whether the Tribunal reasonably suspected that it was obtained because of a false or misleading statement. Therefore, it was not enough for the Tribunal simply to find there was some evidence that the document was a bogus document. Rather, the Tribunal had to consider all the evidence and whether it reasonably suspected that the document was obtained because of a false or misleading statement.
(b)Second, whether there was no probative evidence that the applicant had given the document to the parties listed in PIC 4020(1).
I note that Colvin J in Salopal was not taken to the decision in Faruque.
In Fati v Minister for Home Affairs [2019] FCA 52 (Fati), Charlesworth J, in considering PIC 4020 said:
6 At this juncture it is convenient to note two features of PIC 4020 upon which this appeal turns.
7 As can be seen, two requirements must be met. The first is the absence of evidence of the provision of a document meeting the description of a “bogus document”. The second is the absence of evidence of the provision of “information that is false or misleading in a material particular”. PIC 4020 will not be fulfilled if either one of these two requirements is not met.
8 A conclusive finding as to whether the document is bogus or as to whether the information is false or misleading is not necessary. Satisfaction of PIC 4020 will be satisfied if there is “no evidence” of either of those things. Conversely, where there exists evidence of either of those things, the criterion will not be fulfilled.
I note that Charlesworth J in Fati was not taken to either of the decisions, Faruque or Salopal.
In CHZ19 v Minister for Home Affairs [2019] FCA 914 (CHZ19), when considering what PIC 4020 required at [86] to [87] Colvin J said at [86] and [87] the following:
86. In considering whether the Tribunal's finding concerning the Requirement may be impugned for jurisdictional error it is important to bear in mind the nature of the task entrusted to the Tribunal in evaluating whether the Requirement had been satisfied. The criteria of the Requirement are expressed in terms that mean the question for the Tribunal was whether there was no evidence that the appellant had given information that was false or misleading in a material particular. The use of the term 'evidence' rather than 'information' in the criteria means that the Requirement is directed to instances where there is material before the Minister (or the Tribunal on review) that is sufficiently probative to lead to the conclusion that a bogus document has been given in support of the visa application: Sun v Minister for Immigration and Border Protection [2016] FCAFC 52; (2016) 243 FCR 220 at [45]. To similar effect is the decision in Verma v Minister for Immigration and Border Protection [2018] FCAFC 87 where at [37] the Court said, as to a decision concerning PIC 4020(1) that the Tribunal 'only needed to be satisfied that there was some probative evidence that the appellant had provided a bogus document' (in this case, information that is false or misleading in a material particular).
87. A major difficulty with proposed ground 2C is that it does not engage with the terms of the Requirement. It simply states that there was error in the factual findings in paras 47 to 51 of the Tribunal's reasons. However, those findings were directed to whether there was probative evidence that the appellant had provided information that was false or misleading. The main issue for the Tribunal was about whether there was probative evidence.
I note that Colvin J in CHZ19 was not taken to any of the decisions in Faruque, Salopal or Fati.
In Peraj v Minister For Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 184, the issue was raised as to whether the decision in Salopal per Colvin J was inconsistent with the Federal Court decisions of Faruque at [26] and [27] per Katzman J, Fati at [8] per Charlesworth J and CHZ19 at [86] to [87] per Colvin J. At [59], his Honour Besanko J said it was not necessary for him to consider the issue because the Tribunal in that case made its decision by reference to a state of reasonable satisfaction and for that reason the point of law or construction of PIC 4020 did not arise.
As can be seen from the above decisions, there is some conflict as to the proper construction of PIC 4020, with on the one side the decisions of Faruque at [26] and [27] per Katzman J, Fati at [8] per Charlesworth J and CHZ19 at [86] to [87] per Colvin J and on the other side Salopal per Colvin J. However, given my reasons set out below, that the Tribunal did in this case look at whether there was evidence as to the impugned information being purposely untrue, I do not need to consider the question of construction for myself and which of the Federal Court decisions to follow.
Consideration of the Tribunal’s reasons
I need to read the reasons fairly and not with an eye attuned to error and possibly straying into impermissible merits review. As said in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at p 272:
These propositions are well settled. They recognise the reality that the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed (38). In the present context, any court reviewing a decision upon refugee status must beware of turning a review of the reasons of the decision-maker upon proper principles into a reconsideration of the merits of the decision. This has been made clear many times in this Court. For example, it was said by Brennan J in Attorney-General (NSW) v Quin (39):
"The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository's power. If, in so doing, the court avoids administrative injustice or error, so be it; but the court has no jurisdiction simply to cure administrative injustice or error. The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone."
Turning to the Tribunal’s reasons, there is no dispute that the Tribunal asked itself the correct question posed by PIC 4020. The Tribunal correctly set out that it needed to consider whether the applicant met the requirements of PIC 4020 as required by cl 500.217(1) of the Regulations ([6] and [7] of the reasons). Importantly, the Tribunal set out that the requirements in PIC 4020(1) applied whether or not the information was provided by the applicant knowingly or unwittingly and that there must be an element of fraud or deception by some person involved in providing the false or misleading information in order for PIC 4020 to be enlivened as per Trivedi ([9] and [10] of the reasons). Those reasons disclose that the Tribunal was clearly aware that for PIC 4020 to be engaged there had to be an element of fraud or deception by some person involved in providing the false or misleading information in the visa application. The findings of the Tribunal need to be read against the fact that the Tribunal was aware of the requirements of PIC 4020 and what was required.
The Tribunal set out the critical issue for determination at [11] as follows:
whether there is evidence before the Tribunal that the applicant has given, or caused to be given, to the Minister, an officer, the Tribunal, a relevant assessing authority or a medical officer of the Commonwealth:
•'information that is false or misleading in a material particular' as defined in PIC 4020(5), i.e. information that is:
•false or misleading at the time it is given, and
•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.
in relation to the visa application or a visa held in the 12 months before the visa application was made.
(emphasis added)
The Tribunal, in referring to the fact that it needed to consider whether there was evidence of the matters referred to in PIC 4020, was taking a conservative approach to the requirement for evidence and not the more limited approach taken of whether there was “no evidence”, being the construction favoured in Faruque and Fati.
In answering that question, the Tribunal turned its mind to all the evidence, including the applicant’s evidence given at the hearing, as to her involvement in the provision of information to her agent for the visa application. At [23] to [29] of the Tribunal’s reasons, the Tribunal looked at the nature of the untrue information provided and the applicant’s involvement in that provision, noting there was no issue that the information was untrue. At [29] of the reasons, after its assessment of the evidence given by the applicant, the Tribunal found that the applicant was at best indifferent to the accuracy and completeness of the information that was provided to the department in her application.
At [31], the Tribunal made the ultimate finding that it was “satisfied there is evidence…that the applicant gave or caused to be given, …information about her regional work history that is purposefully untrue and that the impugned information is false or misleading in a material particular as defined in PIC 4020.” This finding was reasonably open on the evidence, being as follows:
(a)On 27 October 2016, the applicant lodged an application for a working holiday visa electronically via the internet by her agent. To address the eligibility criteria for a history of regional work, information was included in the visa application, as to the applicant’s regional work history.
(b)The applicant gave evidence before the Tribunal that the information as to the regional work history was untrue.
(c)The applicant gave evidence before the Tribunal that her agent completed the form.
(d)The applicant sought to excuse the presence of the impugned information by saying, inter alia, it was put in the visa application without her knowledge or consent by the agent and the applicant did not check the visa application for errors or omissions. Based on the evidence given by the applicant, the Tribunal made a finding at [29], that at best the applicant was indifferent to the accuracy and completeness of the information that was provided in the application to the department for the purpose of obtaining the Second Visa. This was evidence of the applicant’s state of mind, that she was indifferent as to the information that either her agent or somebody else put in her visa application for the purpose of obtaining a visa.
I note the Full Court in Gill v Minister for Immigration and Border Protection [2016] FCAFC 142, recognised that if a visa applicant is indifferent as to whether an agent’s conduct in assisting the applicant went so far as to include unlawful or dishonest conduct, then the applicant has given the agent authority to lodge the application. In this case the applicant’s Counsel at the hearing before me said that at no time has the applicant, either before the Tribunal or before this court, suggested that the applicant’s agent was fraudulent.
Therefore, the evidence identified in [56] of this judgment, has the necessary quality that it is evidence which the Tribunal could reasonably find pointed to the information being purposely untrue, in that it was put in the applicant’s visa application for the end of working a deception on the assessment of the applicant’s visa. The Tribunal’s finding, based on the applicant’s evidence, that the applicant was at best indifferent to the accuracy and completeness of information in her visa application, supports the finding by the Tribunal at [31] that the applicant gave or caused to be given information that was purposely untrue by somebody. As said the only purpose of putting the information in the visa application was an attempt to work a deception on the assessment of claims for the second visa and designed to meet criteria to obtain a visa.
The ground for judicial review in the Further Amended Application fails.
For completeness, before me there was a suggestion raised during the hearing that the applicant was saying that the Tribunal ought to have considered in its reasoning process that there was a possibility of an innocent error in the completion of the visa application form, such as the agent failed to ask the applicant a question as to her employment history and copied across a previous application (Tp.36.40-Tp37.15). I note that at no time did the applicant, who was represented by a solicitor before the Tribunal, suggest the information was put in the application by accident or innocently as suggested before me.
Gleeson CJ in Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473 (at [1]) observed that:
Proceedings before the Tribunal are not adversarial; and issues are not defined by pleadings, or any analogous process. Even so, this Court has insisted that, on judicial review, a decision of the Tribunal must be considered in the light of the basis upon which the application was made, not upon an entirely different basis which may occur to an applicant, or an applicant’s lawyers, at some later stage in the process.
I also note that no ground is raised in the Further Amended Application that the Tribunal failed to consider a submission by the applicant that there was an innocent explanation for the error, so there is no basis to consider the matter raised. However, I do note the Tribunal by referring to Trivedi and the notion of purposely untrue, was aware that if the information provided in the visa application was put there by somebody by accident or innocently, then there would not be the requisite deception required by PIC 4020. The Tribunal considered the excuses raised by the applicant as to the presence of the impugned information and found the applicant’s excuses were implausible, which was open to the Tribunal to so find.
CONCLUSION
The Further Amended Application must be dismissed.
I certify that the preceding sixty-three (63) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kaur-Bains. Associate:
Dated: 18 October 2024
0
11
2