Gill v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 936
•20 October 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Gill v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 936
File number(s): MLG 2319 of 2017 Judgment of: JUDGE LUCEV Date of judgment: 20 October 2023 Catchwords: MIGRATION – Judicial review – Administrative Appeals Tribunal decision – Partner (Residence) (Class BS) visa – citizen of India – whether PIC 4020 misapplied or misunderstood – whether constructive failure to exercise jurisdiction by reason of misapplication or misunderstanding of PIC 4020 – whether misapplication or misunderstanding of meaning of “bogus document” – whether misapplication or misunderstanding of meaning of “bogus document” was a material error – whether findings of fact irrational, illogical or unreasonable – whether irrational, illogical or unreasonable findings constitute material error ‑ whether material jurisdictional error – writs issued Legislation: Migration Act 1958 (Cth) ss 5, 359A, 375A, 376, 474, 476
Migration Regulations 1994 (Cth) Sch 2, cl 801.226, Sch 4, cl 4020
Births, Deaths and Marriages Registration Act 1996 (Vic) ss 15, 18
Status of Children Act 1974 (Vic) s 5
Cases cited: AIB16 v Minister for Immigration and Border Protection [2017] FCAFC 163; (2017) 254 FCR 457
Bari v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1819
CHZ19 v Minister for Home Affairs [2019] FCA 914
CRL18 v Minister for Immigration, Citizenship Migrant Services and Multicultural Affairs (2020) 171 ALD 50; [2020] FCA 917
CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146; (2016) 253 FCR 496; (2016) 70 AAR 413
EWH20 v Minister for Immigration, Citizenship Migrant Services and Multicultural Affairs [2021] FCA 1451
Faruque v Minister for Immigration and Border Protection [2015] FCA 1198
Fati v Minister for Home Affairs [2019] FCA 52
Kaur v Minister for Immigration and Border Protection[2017] FCAFC 184; (2017) 256 FCR 235; (2017) 73 AAR 380
Minister for Immigration and Border Protection v Gilland Another [2019] FCAFC 9; (2019) 268 FCR 575; (2019) 163 ALD 219
Minister for Immigration and Border Protection v Pandey [2014] FCA 640; (2014) 143 ALD 640
Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332; (2013) 87 ALJR 618; (2013) 297 ALR 225; (2013) 138 ALD 181
Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611; (2010) 84 ALJR 369; (2010) 266 ALR 367; (2010) 115 ALD 248
Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; (2013) 212 FCR 99; (2013) 302 ALR 672; (2013) 136 ALD 41
Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors [1996] HCA 6; (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1
Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323; (2001) 75 ALJR 1105; (2001) 180 ALR 1; (2001) 62 ALD 225
MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; (2021) 273 CLR 506; (2021) 95 ALJR 441; (2021) 390 ALR 590
Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1
Singh v Minister for Home Affairs [2020] FCAFC 7; (2020) 274 FCR 506
Singh v Minister for Immigration and Border Protection [2018] FCAFC 52; (2018) 261 FCR 556
Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 109
Shrestha v Minister for Immigration and Border Protection [2018] HCA 35; (2018) 264 CLR 131; (2018) 92 ALJR 798; (2018) 359 ALR 22
SZOOR v Minister for Immigration and Citizenship [2012] FCAFC 58; (2012) 202 FCR 1; (2012) 289 ALR 463; (2012) 127 ALD 1
Trivedi and Others v Minister for Immigration and Border Protection [2014] FCAFC 42; (2014) 220 FCR 169; (2014) 141 ALD 252
Wu v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1091; (2021) 358 FLR 269
Division: Division 2 General Federal Law Number of paragraphs: 57 Date of last submission/s: 23 June 2022 Date of hearing: 23 June 2022 Place: Perth (by videolink to Melbourne) Counsel for the Applicant: Mr R Elishapour Solicitor for the Applicant: ASKY International Lawyers Counsel for the First Respondent: Mr J Barrington Solicitor for the Respondents: Mills Oakley Lawyers Second Respondent: Submitting appearance, save as to costs ORDERS
MLG 2319 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: GURPREET SINGH GILL
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE LUCEV
DATE OF ORDER:
20 OCTOBER 2023
THE COURT ORDERS THAT:
1.The name of the First Respondent be amended to read “Minister for Immigration, Citizenship and Multicultural Affairs”.
2.The “Amended Application” received by the Court on 25 March 2022 be treated as an amended application filed in accordance with order 3 of the Court’s Orders of 24 February 2022.
3.A writ of certiorari issue quashing the decision of the Second Respondent made on 13 October 2017.
4.A writ of mandamus issue requiring the Second Respondent to re-determine its review of the decision of the delegate of the First Respondent made on 28 September 2015, and to determine it according to law.
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 LUCEV
INTRODUCTION
Before the Court is an application for judicial review (“Judicial Review Application”) filed by the applicant, Gurpreet Singh Gill (“Mr Gill”), on 27 October 2017 in the Melbourne Registry of this Court, under s 476 of the Migration Act 1958 (Cth) (“Migration Act”), and subsequently amended (“Amended Judicial Review Application”). The Amended Judicial Review Application concerns a decision of the Administrative Appeals Tribunal (“Tribunal Decision” and “Tribunal” respectively) handed down 13 October 2017. The Tribunal Decision affirmed a decision of a delegate (“Delegate’s Decision” and “Delegate” respectively) of the first respondent, the then Minister for Immigration and Border Protection, now the Minister for Immigration, Citizenship and Multicultural Affairs (“Minister”), not to grant Mr Gill a Partner (Residence) (Class BS) visa (“Partner Visa”).
The three grounds of the Amended Judicial Review Application are set out below at 14] (ground 1), 34] (ground 2), and [38] (ground 3).
The following materials are before the Court:
(a)a Court Book (“CB”) numbering 534 pages (“Exhibit 1”);
(b)the affidavit of Mr Gill sworn 27 October 2017, annexing the Tribunal Decision;
(c)the affidavit of Rajiv Dalal affirmed 25 March 2022 (“Dalal Affidavit”);
(d)the Minister’s written submissions filed 23 December 2021 (“Minister’s Submissions”);
(e)Mr Gill’s written submissions filed 10 June 2022 (“Mr Gill’s Submissions”);
(f)the Minister’s further written submissions filed 20 June 2022 (“Minister’s Further Submissions”); and
(g)the transcript of the proceedings on 23 June 2022 (“Transcript”).
BACKGROUND TO AMENDED JUDICIAL REVIEW APPLICATION
The relevant background to the making of the Amended Judicial Review Application is set out hereunder:
(a)on 23 March 2009 Mr Gill, a male citizen of India, first arrived in Australia as the holder of a Student (Subclass 500) visa: CB 515;
(b)on 12 March 2013 Mr Gill lodged a combined Temporary Partner (Subclass 820) and Permanent Partner (Subclass 801) visa application: CB 1-24, on the basis of his marriage to his sponsor (“Sponsor”): CB 25-34, on 5 March 2013: CB 37;
(c)in support of his application Mr Gill provided to the Department:
(i)an undated statement in which he claimed his parents knew about and approved of his relationship with the Sponsor (“Mr Gill’s Statement”): CB 41-42;
(ii)the birth certificate of a child born (“Birth Certificate” and “Child” respectively) on 16 October 2013, listing Mr Gill and the Sponsor as the Child’s parents: CB 71; and
(iii)an affidavit deposed by Mr Gill’s parents which claimed Mr Gill and the Sponsor married with their “full consent” (“Parents’ Affidavit”): CB 106;
(d)on 18 March 2014 Mr Gill was granted a Temporary Partner (Subclass 820) visa (“Temporary Partner Visa”): CB 108-111;
(e)on 23 March 2015 Mr Gill provided further information and supporting documents for the processing of his Permanent Partner (Subclass 801) visa (“Permanent Partner Visa”): CB 117-135;
(f)on 28 May 2015 the Delegate issued Mr Gill with an invitation to comment (“Delegate’s Invitation to Comment”) under s 359A of the Migration Act in relation to:
(i)adverse information received by the Department on 18 November and 22 December 2014 that:
(A)Mr Gill was in a “contrived relationship”;
(B)Mr Gill was not the biological father of the Child;
(C)Mr Gill had given the Sponsor a house in return for sponsoring him; and
(D)the Sponsor had declared herself a single mother to Centrelink: CB 156; and
(ii)a home site visit on 28 April 2015 by Departmental officers to Mr Gill’s parents’ village in India (“Site Visit”) where they interviewed several individuals who stated Mr Gill:
(A)was single;
(B)had divorced his former wife when she was unsuccessful in obtaining a permanent visa; and
(C)was staying with his Indian friends in Australia: CB 157;
(g)between 24 June 2015 and 19 August 2015 Mr Gill submitted the following documents in response to the Delegate’s Invitation to Comment:
(i)a written response which stated his relationship with the Sponsor ended on 16 June 2015: CB 164-167;
(ii)an application and summons for an intervention order dated 22 June 2015: CB 168;
(iii)a statutory declaration affirmed on 26 June 2015 which made a claim of family violence against the Sponsor (“Family Violence Claim”): CB 169-174; and
(iv)an intervention order obtained against the Sponsor for the period from 18 August 2015 to 17 August 2016 (“Intervention Order”): CB 176-181;
(h)on 28 September 2015 the Delegate’s Decision was to refuse to grant Mr Gill a Permanent Partner Visa: CB 182-202. The Delegate found there was evidence Mr Gill had provided false or misleading information or a bogus document to the Minister, being Mr Gill’s Statement and the Parents’ Affidavit: CB 186-188. Accordingly, the Delegate was not satisfied Mr Gill met Public Interest Criterion 4020 (“PIC 4020”), being cl 4020 of Sch 4 to the Migration Regulations 1994 (Cth) (“Migration Regulations”) or cl 801.226 of Sch 2 to the Migration Regulations: CB 189;
(i)on 12 October 2015 Mr Gill lodged an application with the Tribunal for review of the Delegate’s Decision: CB 203-204, and provided therewith a copy of the Delegate’s Decision and notification letter: CB 204;
(j)on 15 October 2015 a non-disclosure certificate was issued under s 375A of the Migration Act (“375A Certificate”). The 375A Certificate covered information in folios “120 to 121, 124 to 125, 205 and 212” of a file for which no number was given, and stated that the disclosure of such information would be contrary to the public interest because it contained “departmental assessment/ processing methodology”: CB 212;
(k)a second non-disclosure certificate was issued on 15 October 2015 under s 376 of the Migration Act (“376 Certificate”). The 376 Certificate covered information in “folios 115 to 117 – Substantiated dob-in information” of a nominated file and stated the disclosure of that information would be contrary to the public interest: CB 213;
(l)on 24 February 2017 Mr Gill was invited to attend a hearing before the Tribunal scheduled for 24 March 2017 (“First Tribunal Hearing”): CB 214-221. On 23 March 2017 Mr Gill’s representative submitted:
(i)a written submission: CB 227-249;
(ii)a statutory declaration from Mr Gill’s father: CB 250-252;
(iii)a statutory declaration from Mr Gill: CB 253-261;
(iv)a copy of the request for the Site Visit made by the Department: CB 262-263;
(v)the Site Visit case notes: CB 263-266; and
(vi)a death certificate for Mr Gill’s aunt: CB 267;
(m)Mr Gill attended the First Tribunal Hearing on 24 March 2017 with his representative and several witnesses: CB 268-270. Copies of the 375A and 376 Certificates were provided to Mr Gill’s representative at the First Tribunal Hearing and the hearing was adjourned: CB 270;
(n)on 24 March 2017 Mr Gill was invited to comment on the validity of the 375A and 376 Certificates: CB 272-274, and was separately invited to attend the adjourned hearing scheduled for 31 March 2017 (“Second Tribunal Hearing”): CB 275-278;
(o)on 30 March 2017 Mr Gill’s representative provided a submission which stated that the information covered by the 376 Certificate had been released under a Freedom of Information request with some redactions: CB 366, and that the information was put to Mr Gill by the Department in a previous invitation to comment. In relation to the 375A Certificate, the submission stated the 375A Certificate was invalid as the documents covered were not properly identified: CB 367;
(p)on 31 March 2017 Mr Gill attended the Second Tribunal Hearing with his representative, his parents, and a friend: CB 373-375. The hearing was adjourned: CB 375;
(q)on 10 April 2017 Mr Gill was invited, under s 359A of the Migration Act, to comment on or respond to information that would be the reason or part of the reason for affirming the Delegate’s Decision (“Tribunal’s Invitation to Comment”). The particulars of the information were:
(i)Mr Gill was not in a genuine spousal relationship with the Sponsor;
(ii)Mr Gill was not the biological father of the Child;
(iii)Mr Gill gave the Sponsor a house;
(iv)the Sponsor declared herself to Centrelink as a single mother; and
(v)the Sponsor had provided different addresses to Centrelink at the time Mr Gill claimed to have shared accommodation with her: CB 382-384;
(r)on 2 May 2017 Mr Gill’s representative provided:
(i)a submission in response to the Tribunal’s Invitation to Comment (“Mr Gill’s May 2017 Submissions”): CB 397-406;
(ii)a statutory declaration of Mr Gill: CB 407-410; and
(iii)bank statements, correspondence and photographs relating to the Sponsor: CB 411-483;
(s)on 11 and 24 July 2017 Mr Gill was invited to attend a further hearing before the Tribunal scheduled for 9 August 2017 (“Third Tribunal Hearing”): CB 490-491;
(t)Mr Gill attended the Third Tribunal Hearing with his representative and three witnesses: CB 507-509; and
(u)on 13 October 2017 the Tribunal Decision was to affirm the Delegate’s Decision: CB 511-531.
TRIBUNAL DECISION
In the Tribunal Decision the Tribunal:
(a)summarised the background to the review application, the basis of the Delegate’s Decision and Mr Gill’s evidence: CB 515-518 at [1]-[26];
(b)identified that the issue before it was whether Mr Gill met PIC 4020, as required by cl 801.226 of Sch 2 to the Migration Regulations: CB 519-520 at [32]-[34];
(c)identified an additional irregularity in the evidence concerning the Child which became apparent in March 2017: CB 518 at [22]. The Tribunal found that on the face of the material the Child was conceived in January 2013, whereas the written statements indicated that the Sponsor was in Western Australia and Mr Gill was in Victoria from November 2012 until February 2013. The Tribunal recorded that it put this issue to Mr Gill at hearing and in the Tribunal’s Invitation to Comment: CB 518 at [22] and [28];
(d)proceeded to consider whether there was no evidence Mr Gill had given or caused to be given information that was false or misleading in a material particular in relation to the Partner Visa Application (being information that his parents knew about and approved of his relationship before he married the Sponsor, as contained in Mr Gill’s Statement and the Parents’ Affidavit) or a bogus document, namely the Birth Certificate: CB 520 at [37];
(e)although the Tribunal did not make a finding whether the parties were in a genuine spousal relationship, it made general observations about deficiencies in the evidence provided by Mr Gill to support that contention: CB 520 at [38], and considered the oral and written evidence provided in the course of the review, noting that the quality of the evidence in support of the review application was “not high”, and the evidence contained “serious anomalies”: CB 520 at [39]-[41];
(f)analysed the evidence before it in detail, finding that:
(i)the oral evidence of Mr Gill’s parents was “unsatisfactory” as the parents displayed very limited knowledge of the Sponsor: CB 521-522 at [45];
(ii)statutory declarations provided by third parties were expressed in “very brief and general terms” and asserted that Mr Gill and the Sponsor’s relationship was genuine but provided no reasons as to why they considered this was so: CB 521 at [43]; and
(iii)the documentary evidence of consignments sent to the Sponsor from Mr Gill’s parents in India did not refer to her as the spouse of Mr Gill: CB 522 at [49],
and having considered the evidence, it identified that it was required to go on to consider the application of the statutory test under PIC 4020: CB 523 at [50];
(g)considered whether Mr Gill had provided “information that is false or misleading in a material particular” as defined in PIC 4020(5): CB 523 at [51]-[53], and:
(i)was satisfied that Mr Gill’s Statement and the Parents’ Affidavit stating that Mr Gill’s parents knew about and approved of the relationship was “information” of that kind;
(ii)found Mr Gill provided that information to the Department when he made his Partner Visa application and later in May 2013 when he submitted the Parents’ Affidavit; and
(iii)found the information was material to the Partner Visa application because it related to the social recognition of the relationship: CB 523 at [54];
(h)did not accept the submissions explaining the parents’ lack of knowledge about the relationship, and:
(i)placed weight on:
(A)the Departmental report from the Site Visit (“Site Visit Report”) to Mr Gill’s parents’ village in India, finding it had sufficient probative value for the purposes of PIC 4020; and
(B)the oral evidence of Mr Gill’s parents to the Tribunal in which they displayed limited knowledge about the Sponsor: CB 524 at [59];
(ii)preferred the information contained in the Site Visit Report to the explanation provided by Mr Gill and his parents for their lack of knowledge of the relationship between Mr Gill and the Sponsor: CB 524 at [56]-[59]; and
(iii)was not satisfied that there was no evidence Mr Gill had given the Minister information that was false or misleading in a material particular in relation to the Partner Visa application: CB 525 at [62];
(i)considered the Birth Certificate and found that:
(i)it reasonably suspected that the Birth Certificate was obtained because of a false or misleading statement, whether or not made knowingly, and therefore found that the Birth Certificate was a bogus document: CB 525 at [63]; and
(ii)as the Birth Certificate identified Mr Gill as the father, found it could only have been obtained because of a statement to the Registrar of Births, Deaths and Marriages that Mr Gill was the father of the Child: CB 525 at [64];
(j)found that at the time of the Tribunal Decision there was no claim that the Child was the biological child of Mr Gill, but that the submission on behalf of Mr Gill was that the Tribunal could not be satisfied that the Child was not Mr Gill’s child: CB 525 at [66]. The Tribunal referred to a statutory declaration declared by Mr Gill dated 17 February 2017, which was provided to the Tribunal by Mr Gill, in which he accepted that the Child was not his biological child, and his evidence that “before 2015 he thought … [the Child] was his child but … [the Sponsor] eventually made it clear to him that he was not”: CB 525 at [67];
(k)despite Mr Gill’s claims to the contrary, the Tribunal found there were indications he was aware at the time the Birth Certificate was obtained that he was not the biological father: CB 525-526 at [68]-[69], and the Tribunal had regard to Mr Gill’s evidence:
(i)that he and the Sponsor had enjoyed a sexual relationship as early as November 2012, but did not accept Mr Gill’s explanation given that his and the Sponsor’s written statements submitted to the Department made no mention of face to face contact between November 2012 and February 2013: CB 526 at [70]; and
(ii)conceding he might not be the biological father, and his conflicting evidence about when he first heard that the alleged biological father attended the birth: CB 526 at [72]-[73];
(l)noted that it was not necessary for it to have a reasonable suspicion that Mr Gill was aware that the Birth Certificate was obtained because of a false or misleading statement (being that he was the biological father), given that the evidence indicated at least that the Sponsor knew all along Mr Gill was not the father, that the Birth Certificate was obtained because of a false or misleading statement, and that there was an element of fraud or deception at least on the part of the Sponsor: CB 527 at [75], and was not therefore satisfied that there was no evidence Mr Gill had given the Minister a bogus document: CB 528 at [79], and on this basis the Tribunal found that Mr Gill did not meet PIC 4020(1): CB 528 at [80];
(m)considered the exercise of discretion under PIC 4020(4), and having summarised the applicable law: CB 528 at [81]-[83], and having had regard to the Explanatory Statement to the legislation introducing PIC 4020 and applicable Department policy: CB 528 at [84], concluded it was not satisfied there were “compelling circumstances” or “compassionate and compelling circumstances” to justify waiving PIC 4020(2): CB 528 at [85];
(n)did not accept Mr Gill’s claim that he had no knowledge of the bogus document and/or false information: CB 528 at [86];
(o)considered the submissions of Mr Gill’s representative that Mr Gill “was entirely persuaded that he was the father” of the Child, but did not accept the submission given the “number of anomalies” in the evidence and “adverse findings” concerning Mr Gill’s knowledge and the knowledge of his parents: CB 528 at [86];
(p)considered the evidence of Mr Gill’s employer, an Australian citizen, concerning the “difficulty” he would experience if Mr Gill were to depart Australia: CB 529 at [88]-[89], and acknowledged that Mr Gill’s employer would have some difficulty replacing Mr Gill, but was not satisfied that his departure constituted compelling circumstances affecting the interests of Australia that justified the granting of a Partner Visa, or which would cause detriment to Mr Gill personally of such gravity for there to be compassionate or compelling circumstances: CB 529 at [90];
(q)accepted there may be disadvantage to the employer’s company, but found that:
(i)the company was not in any event, an Australian citizen: CB 529 at [91]; and
(ii)the detriment to the employer personally was not of such gravity to amount to compassionate or compelling circumstances: CB 529 at [92];
(r)had regard to Mr Gill’s evidence that he had not had any contact with the Child for over two years and found that there was no evidence before it at the time of the Tribunal Decision that the Child required care or support from him: CB 529 at [93];
(s)found that on the whole of the evidence before it that there were no compassionate or compelling circumstances that affected the interests of an Australian citizen, Australian permanent resident or an eligible New Zealand citizen that justify granting the Partner Visa and that PIC 4020(1) should not be waived: CB 530 at [94]-[95]; and
(t)having found that Mr Gill did not satisfy PIC 4020 for the purposes of cl 801.226 of Sch 2 to the Migration Regulations, the Tribunal Decision was to affirm the Delegate’s Decision: CB 530 at [96] and [102].
THE AMENDED JUDICIAL REVIEW APPLICATION
Litigation History
The Judicial Review Application was filed in the Melbourne Registry of the Court on 27 October 2017. Given that more than five years have passed since then it is appropriate to set out the subsequent litigation history of the matter, which is as follows:
(a)on 27 June 2018 a consent order was made by a Registrar of the Court with the usual programming orders and listing the matter for final hearing before a Judge of the Melbourne Registry of this Court on 24 April 2020;
(b)for reasons which are not evident from the file, but which may relate to the COVID-19 epidemic, there was no hearing on 24 April 2020, and nothing further happened on the matter until August 2021;
(c)in August 2021 the matter was transferred to the Perth Registry of the Court and listed before the Court as presently constituted on 3 September 2021 for a directions hearing, and at that directions hearing orders (“September 2021 Orders”) were made, including in Order 2 as follows:
(a) The Applicant file and serve by 3 November 2021:
i.any amended application with particulars of the grounds of the amended application;
ii. supplementary Court Book, if any; and
iii. written submissions
(b)the First Respondent to file and serve written submissions and any affidavits by 10 January 2022;
(c)the application be listed for final hearing before Judge Lucev at 10:00 am AWST/1:00 pm AEDST on 2 March 2022 by videolink.
(d)Mr Gill subsequently obtained legal representation, and on 24 February 2022 consent orders were made vacating the 2 March 2022 hearing and relisting the matter for final hearing on 23 June 2022, and ordering that:
3. On or before 25 March 2022, the applicant file and serve:
a.an amended application including any additional grounds of review with complete particulars of each ground; and
b. any affidavits.
4.The applicant file and serve a written outline of submissions 14 days before the final hearing.
5.The first respondent file and serve a further written outline of submissions 7 days before the final hearing.
(e)on 25 March 2022 the Dalal Affidavit was filed. It contained the amended grounds of the Judicial Review Application and the relief sought, but no amended Judicial Review Application as such was ever filed. The Minister, quite properly, prepared his case on the basis of the grounds in the Dalal Affidavit, and has not objected to those grounds, and the relief sought, being treated as the Amended Judicial Review Application. At the hearing the Court indicated it would make an order accordingly: Transcript, p 4. At the hearing Mr Gill’s Counsel suggested that there was an amended Judicial Review Application “marked received” by the Court, but which did not bear the Court’s seal or stamp: Transcript, p 3. Further investigation by the Court post-hearing revealed that this suggestion was, in fact, correct. An “Amended Application” stamped “RECEIVED Federal Circuit and Family Court of Australia” with a time stamp of “25/03/2022 1:16:13 PM AEDT” has been buried in the Court file: entitled “Draft Document” it appears in a file named “Case Administration” in the “Correspondence” folder. For reasons which are not apparent from the Court file the “Amended Application”, which contains grounds and relief sought identical (save for numbering) to that in the Dalal Affidavit, was not accepted for filing in the Melbourne Registry. It does not appear that the “Amended Application” was served on the Minister, but this is of no moment given that it is identical in terms to what appears in the Dalal Affidavit. In the circumstances, rather than the order foreshadowed at hearing, there will be an order that:
The “Amended Application” received by the Court on 25 March 2022 be treated as an amended application filed in accordance with order 3 of the Court’s orders of 24 February 2022.
(f)following the filing of written submissions by both parties the hearing proceeded on 23 June 2022.
Material jurisdictional error required
For present purposes it suffices to observe that the Court may set aside the Tribunal Decision upon judicial review if it is affected by material jurisdictional error: Migration Act, ss 474 and 476; Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1; MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; (2021) 273 CLR 506; (2021) 95 ALJR 441; (2021) 390 ALR 590 ("MZAPC") at [2] per Kiefel CJ, Gageler, Keane and Gleeson JJ.
To constitute jurisdictional error an error must be material in the requisite sense explained in MZAPC at [2] per Kiefel CJ, Gageler, Keane and Gleeson JJ as follows:
Materiality was explained in Minister for Immigration & Border Protection v SZMTA (2019) 264 CLR 421 to involve a realistic possibility that the decision in fact made could have been different had the breach of the condition not occurred. Existence or non-existence of a realistic possibility that the decision could have been different was explained to be a question of fact in respect of which the plaintiff in an application for judicial review of the decision on the ground of jurisdictional error bears the onus of proof.
Jurisdictional error, where material, may, relevantly, be constituted by an error where the Tribunal:
(a)identifies a wrong issue, or asks the wrong question. or ignores relevant material, or relies on irrelevant material in such a way that the Tribunal's exercise or purported exercise of power is thus affected resulting in a decision exceeding, or a failure to exercise, any authority or powers given to the Tribunal under the Migration Act: Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323; (2001) 75 ALJR 1105; (2001) 180 ALR 1; (2001) 62 ALD 225 at [82] per McHugh, Gummow and Hayne JJ;
(b)makes findings or acts in a manner that is legally unreasonable: Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332; (2013) 87 ALJR 618; (2013) 297 ALR 225; (2013) 138 ALD 181 ("Li") at [76] per Hayne, Kiefel and Bell JJ; and
(c)makes findings that are legally illogical, irrational and otherwise unreasonable: Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611; (2010) 84 ALJR 369; (2010) 266 ALR 367; (2010) 115 ALD 248 (“SZMDS”) at [130]-[131] per Crennan and Bell JJ. In order to establish jurisdictional error, “extreme” illogicality must be demonstrated, “measured against the standard that it is not enough for the question of fact to be one on which reasonable minds may come to different conclusions.”: Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; (2013) 212 FCR 99; (2013) 302 ALR 572; (2013) 136 ALD 41 (“SZRKT”), FCR at [148] per Robertson J; SZMDS at [135] per Crennan and Bell JJ; CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146; (2016) 253 FCR 496; (2016) 70 AAR 413 at [60] per McKerracher, Griffiths, and Rangiah JJ.
The onus is upon Mr Gill to establish jurisdictional error in the Tribunal Decision: BVD17 v Minister for Immigration and Border Protection [2019] HCA 34; (2019) 268 CLR 29; (2019) 93 ALJR 109; (2019) 373 ALR 196 at [38] per Kiefel CJ, Bell, Gageler, Keane, Nettle and Gordon JJ; Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 1047; (2017) 252 FCR 352; (2017) 347 ALR 173 at [48] per Griffiths, White and Bromwich JJ.
Legislation
Clause 801.226(1) and (4) of Sch 2 to the Migration Regulations relevantly provides that an applicant for a Permanent Partner Visa must satisfy PIC 4020. PIC 4020 (1), (4) and (5) relevantly provides that:
(1)There is no evidence before the Minister that the applicant has given, or caused to be given, to the Minister, an officer, the Tribunal during the review of a Part 5 reviewable decision, a relevant assessing authority or a Medical Officer of the Commonwealth, a bogus document or information that is false or misleading in a material particular in relation to:
(a) the application for the visa; or
(b)a visa that the applicant held in the period of 12 months before the application was made.
…
(4)The Minister may waive the requirements of any or all of paragraphs (1)(a) or (b) and subclause (2) if satisfied that:
(a) compelling circumstances that affect the interests of Australia; or
(b)compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen; justify the granting of the visa.
(5) In this clause:
information that is false or misleading in a material particular means information that is:
(a) false or misleading at the time it is given; and
(b)relevant to any of the criteria the Minister may consider when making a decision on an application, whether or not the decision is made because of that information.
In s 5(1) of the Migration Act “bogus document” is defined as:
"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.
Consideration - grounds and materiality
The Court will consider each of the three grounds of the Amended Judicial Review Application separately, before considering the issue of materiality.
Ground 1
Ground 1 of the Amended Judicial Review Application is as follows:
1.That the second respondent (the Tribunal) fell into jurisdictional error by misapplying or misunderstanding Public Interest Criterion 4020 of Schedule 4 to the Migration Regulations 1994 (CTH) (PIC 4020) and its application to the applicant’s case and thereby constructively failed to exercise jurisdiction.
Particulars:
a. The Tribunal’s conclusion that it was not satisfied there was no evidence that the applicant had given the Minister or other relevant personal information that was false or misleading in a material particular in relation to the visa application involves a misapplication or misunderstanding of the statutory test. The error was material.
b. The Tribunal sets out that there is a requirement of an element of fraud or deception by some person as necessary to attract the operation of the provision: Trivedi v MIBP [2014] FCAFC 42. The Tribunal in respect of the information provided by the applicant does not make a positive finding of any element of fraud or deception being carried out in the provision of the relevant information as required under the provision in respect of the information provided.
c. The Tribunal incorrectly establishes as a general premise that if the evidence in a case is not considered to be of ‘high-quality, free of any serious anomalies’ then an applicant may not satisfy the requirements of PIC 4020 (at [38]). This is effectively an extraneous requirement that has no foundation in law and unlawfully lowers the bar for engaging PIC 4020.
d. Further and in the alternative, the Tribunal in considering whether the criteria in respect of waiving the condition; failed to consider the impact of refusing to waive the criterion on the Australian Citizen child of the applicant’s sponsor. In circumstances where there was evidence that the applicant had for a time parental responsibility for the child (at [71]) and where the birth certificate still named the applicant as the child’s father and the question of whether the child was the biological issue of the applicant was not able to be determined. There was evidence sufficient to enliven the potential exercise of the discretion as the case related to the interests of an Australian Citizen child, but the discretion was not exercised.
Mr Gill’s submissions on ground 1
In relation to ground 1 generally Mr Gill submitted:
(a)the Tribunal’s conclusion that it was not satisfied there was no evidence that Mr Gill had given the Minister or another relevant person information that was false or misleading in a material particular in relation to the Partner Visa application involves a misapplication or misunderstanding of the statutory test, and in so doing the Tribunal fell into jurisdictional error, which was material; and
(b)there are two limbs on which Mr Gill advances ground 1, namely:
(i)the Tribunal sets out that there is a requirement of an element of fraud or deception by some person as necessary to attract the operation of the provision, citing Trivedi and Others v Minister for Immigration and Border Protection [2014] FCAFC 42; (2014) 220 FCR 169; (2014) 141 ALD 252 (“Trivedi”), but in respect of information provided by Mr Gill does not make a positive finding of any element of fraud or deception being carried out in the provision of the relevant information as required under the provision in respect of the information provided; and
(ii)the Tribunal incorrectly establishes as a general premise that if the evidence is not considered to be of “high quality, free of any serious anomalies” then the requirements of PIC 4020 may not be satisfied: CB 520 at [38], but this is effectively an extraneous requirement that has no foundation in law and unlawfully lowers the bar for engaging PIC 4020.
In relation to the meaning of the term “false or misleading” in relation to information provided or bogus documents, Mr Gill submitted that this term has been construed, in relation to PIC 4020, to mean “purposely untrue” and not merely a document produced “accidentally” or a statement that is merely “wrong”: Trivedi at [29]-[44] per Buchanan J, with whom Allsop CJ and Rangiah J agreed. Mr Gill submitted that the Tribunal in determining this issue considered the evidence generally and assessed whether the evidence was generally of a high quality and free of anomalies: CB 520 at [38], and in doing so, that the Tribunal expressly purported to undertake a general assessment of the quality of the evidence with a view to determining whether it was satisfied that Mr Gill met the requirements of PIC 4020.
In relation to the first limb of ground 1, that is failing to make a finding of fraud in relation to information Mr Gill gave that his parents knew of and approved of the relationship (“Approval Information”) Mr Gill submitted that:
(a)the Tribunal in determining whether it was satisfied that Mr Gill had not provided misleading information considers the evidence generally and assesses whether the evidence is generally of a high quality and free of anomalies, and in so doing, the Tribunal has expressly purported to undertake a general assessment of the quality of the evidence with a view to determining whether it was satisfied that Mr Gill met the requirement of PIC 4020;
(b)the Tribunal concluded that it was not satisfied that there was no evidence that false or misleading information had been given by Mr Gill: CB 525 at [62] relating to the Approval Information that Mr Gill gave;
(c)the Tribunal also conducted the process for the purposes of s 359A of the Migration Act on the same basis: CB 519 at [29];
(d)in its analysis the Tribunal considered the evidence that was given in documentary format, the evidence given in the proceedings and Mr Gill’s submission in the course of its analysis on the issue of whether there was some purposeful fraud carried out in the information provided by Mr Gill to the Minister: CB 524 at [56]-[60];
(e)in the Tribunal Decision the Tribunal has separately dealt with the Approval Information and its general assessment of the quality of the evidence provided by Mr Gill to its consideration of when Mr Gill was supplied a “bogus document” (the bogus document issue being the subject of ground 2), and in relation to the Approval Information and general state of the evidence concluded that:
It is clear that at some point Mr Gill’s parents came to learn about his second marriage. The Tribunal is however not satisfied that there is no evidence that Mr Singh has given the Minister or other relevant person information that (at the time it was given) was false or misleading in a material particular in relation to the visa application.
CB 525 at [62];
(f)in its assessment of the above information and evidence the Tribunal made no positive finding of purposeful falsity, deception or fraud, and its reasoning demonstrated a vague conclusion about the Tribunal not being satisfied that is premised entirely on the basis of some generalised assessment of the state of the evidence and a misapprehension of what the legal test required;
(g)for the sake of completeness notes that the only conclusion in respect of fraud on the part of any party apparent in the Tribunal Decision is in respect of the Birth Certificate: CB 527 at [75], and is attributed to the Sponsor, but is a conclusion which is made without evidentiary basis and relies on an unsound interpretation of the applicable legislation, but there is no such finding in respect of the Approval Information provided by Mr Gill; and
(h)the absence of a finding of purposeful falsity or fraud of the kind described in Trivedi and AIB16 v Minister for Immigration and Border Protection [2017] FCAFC 163; (2017) 254 FCR 457 (“AIB16”) at [13] per Tracey, Mortimer and Moshinsky JJ, results in the Tribunal Decision being affected by jurisdictional error on the basis that the threshold requirement for the Tribunal’s finding that it was not satisfied that Mr Gill had given the Minister or another relevant person information that (at the time it was given) was false or misleading in a material particular in relation to the Partner Visa application was not met.
In relation to the second limb of ground 1 as to whether the Tribunal asked the wrong question and failed to apply the correct legal test Mr Gill submitted that:
(a)the Tribunal asked itself a wrong question or otherwise misunderstood or misapplied the test in determining whether it was satisfied that the requirements of PIC 4020 had been met, stating at CB 520 at [38] as follows:
The Tribunal is not making a determination as to whether Mr Gill has been in a genuine spousal relationship with Ms Underwood, but the evidence in relation to that issue logically bears on the Tribunal’s determination whether he meets the requirements of PIC 4020. Generally speaking, if the whole of the evidence in support of an application were of a high quality, free of any serious anomalies, a decision-maker might conclude that an applicant met the requirements of PIC 4020. It could be otherwise if the evidence in support of an application were of not a high quality, and if it contained serious anomalies.
(b)the Tribunal relies on this general analysis of the whole of the evidence to reach its conclusion that it could not be satisfied that Mr Gill met the requirements of PIC 4020 in respect of the Approval Information and the other evidence before the Tribunal;
(c)the “incorrect question” asked by the Tribunal and misunderstanding of the legislation arises where the Tribunal sets upon a false equivalency between:
(i)the answer to an extraneous question such as whether the whole of the evidence in support of an application is of a high quality, free of any serious anomalies; and
(ii)the answer to the question of whether the Tribunal is satisfied there is no evidence that Mr Gill has given, or caused to be given to the relevant party, a bogus document or information that is false or misleading in a material particular in relation to the application for the Partner Visa;
(d)the Tribunal impermissibly lowers the threshold required to fail under PIC 4020 by equating inconsistencies found in the evidence with a positive finding of deception, fraud or purposeful falsity that is otherwise required;
(e)the Tribunal also misconstrued the fraud element identified in Trivedi as the Tribunal purports to equate it with a consideration of an assessment of evidence that seems to be targeted at establishing whether the Tribunal is satisfied that Mr Gill was in a genuine spousal relationship with the Sponsor. The Tribunal’s analysis of whether Mr Gill was in a genuine spousal relationship and determination of the same incorrectly conflates two sets of criteria in a way foreshadowed in Mr Gill’s May 2017 Submissions at CB 397 where Mr Gill submitted that (emphasis in original):
It is our submission that the Tribunal should confine its analysis to the specific issue considered by the delegate – that is, the specific applicability of PIC 4020 that the delegate considered and in relation to which the delegate made adverse findings. This is a case with a complicated set of facts and relationship history. Applicants should not be required to prepare a case for the Tribunal with the possibility if there are any concerns regarding the genuineness of the relationship, they must be in a position to address a possible application of PIC 4020 to any piece of evidence that they have already provided. Such an approach by the Tribunal means that applicants are virtually unable to prepare for their Tribunal hearing, as if there are doubts regarding the genuineness of the spousal relationship, any piece of oral or written evidence could, in theory, give rise to a possible adverse finding in relation to PIC 4020.
(f)the Tribunal’s misunderstanding or misapplication of the statutory test set out in PIC 4020 resulted in a jurisdictional error, and demonstrates a constructive failure to exercise jurisdiction.
The Minister’s submissions on ground 1
In relation to the first limb of ground 1 the Minister submitted:
(a)the Tribunal was not required to express any conclusive finding of purposeful falsity, deception or fraud in respect of the Approval Information, because PIC 4020 only required the Tribunal to be satisfied that there was no evidence before the Tribunal that Mr Gill had given, or caused to be given, information that was false or misleading in a material particular in relation to the Partner Visa application;
(b)the Tribunal did not have to be satisfied that the Approval Information was purposefully false or contained purposefully false or misleading information, but rather it had to be satisfied that there was no evidence to the contrary, and conversely where there exists evidence of either of those things (that is that a document is bogus or information is false or misleading) the PIC 4020 requirements will not be fulfilled, citing Faruque v Minister for Immigration and Border Protection [2015] FCA 1198 at [26] per Katzmann J; Fati v Minister for Home Affairs [2019] FCA 52 at [8] per Charlesworth J; CHZ19 v Minister for Home Affairs [2019] FCA 914 at [86]-[87] per Colvin J;
(c)the Tribunal correctly identified, by reference to Trivedi, that “an element of fraud or deception by some person is necessary to attract the operation of the provision”: CB 523 at [53], and the Tribunal was thus aware that it was necessary to have some evidence, that is, a skerrick of evidence, that the false information was provided with an element of fraud or deception: also citing Bari v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1819 at [21] per Judge Lucev;
(d)the Tribunal was also satisfied that there was at least some evidence of purposely false information, and the entire purpose of the Tribunal’s reasoning from CB 524-525 at [58]-[62] was directed to why the Tribunal did not accept Mr Gill’s parents’ explanation or their statements to the Departmental officials on the Site Visit in India. The Tribunal found, for example, that it was improbable that Mr Gill’s parents would “give information to strangers visiting their home inquiring about their son or that, having decided to talk to them, they would provide wrong basic information or omit to mention their son’s Australian wife and child for the reason that they were not asked directly or specifically about that”: CB 524 at [61]; and
(e)the Tribunal did not therefore accept that there was some innocent explanation for why Mr Gill’s parents did not reveal their knowledge of Mr Gill’s relationship with the Sponsor to the Department, and it follows inexorably from these findings that the Tribunal was “not satisfied that there is no evidence that Mr Singh has given the Minister or other relevant person information that (at the time it was given) was false or misleading in a material particular in relation to the visa application”: CB 525 at [62].
In relation to the second limb of ground 1 the Minister submitted that:
(a)the Tribunal did not misapply, misconstrue or misunderstand the relevant statutory test, but rather at CB 520 at [38] made a general observation, which as a general observation is unobjectionable, but which also did not form part of the statutory test that the Tribunal purported to apply. Rather, it was a general comment on the kinds of cases that might attract the application of the PIC 4020 criterion, and came immediately before the Tribunal made general observations about the evidence before it;
(b)there is no basis to infer that the Tribunal somehow applied this general comment in lieu of the correct tests throughout the Tribunal Decision, and Mr Gill does not point to any passage within the Tribunal Decision that demonstrates the Tribunal applied this “high quality, free of serious anomaly” threshold;
(c)rather, the Tribunal’s understanding of the statutory test that it had to apply came later in the Tribunal Decision at CB 523 at [51]-[53], where the Tribunal identified the statutory test, the definitions for certain phrases, and set out how certain cases have informed the statutory criterion. That understanding has not been impugned by Mr Gill and it is this understanding of the statutory test which immediately preceded the substantive reasoning in the Tribunal Decision;
(d)the Tribunal did not conflate any assessment of the genuineness of the relationship with its consideration of PIC 4020, and the Tribunal expressly said otherwise at CB 520 at [38] (which is set out at [18(a)] above, and repeated at [25] below):
The Tribunal is not making a determination as to whether Mr Gill has been in a genuine spousal relationship with … [the Sponsor], but the evidence in relation to that issue logically bears on the Tribunal’s determination whether he meets the requirements of PIC 4020.
Consideration – ground 1
The Full Court of the Federal Court set out how PIC 4020 should be applied in Trivedi at [28], [32], [33], [43], [49], [50], [52] and [53] per Buchanan J (Allsop CJ and Rangiah J agreeing at [1] and [56] respectively):
28.As it will be necessary to return to the first issue (the knowledge of the visa applicant) when I deal with the appellants' arguments, I will content myself with saying here that I am satisfied that it is not necessary a visa applicant know of, or be directly involved in, any falsehood for PIC 4020 to be engaged. I will return to that issue.
32. …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…
33. …it should be accepted that an element of fraud or deception is necessary in order to attract the operation of PIC 4020. …
43.In my view, it is not necessary (for reasons yet to be further developed) to show knowing complicity by a visa applicant. That would impose an impossible task on those administering the visa system. But it is necessary that the information or document have the necessary quality of purposeful falsity, whether or not the visa applicant can be shown to have knowledge of that fact.
49.For the reasons I have already given, it should be accepted that PIC 4020 is directed to information or documents which are purposely untrue. It seems to me to be clear from the same analysis that the purpose of PIC 4020 was to render visa applicants ultimately responsible for the veracity of the information and documents supplied to support the application. Although the limited terms of the waiver (and therefore any discretion to excuse non-compliance) make it apparent that innocent errors are not the focus of attention, it is equally clear that PIC 4020 is directed at the overall integrity of the visa system and as a bulwark against deception and fraud from any quarter associated with a visa applicant. It is not inconsistent with a coherent public policy to make a visa applicant ultimately responsible for purposely untrue material provided with a visa application. It would be an intolerable burden on the administration of the visa system to require that those assessing visa applications not only discover that information or documents are false in a material particular, but also that the visa applicant who provided them knew them to be so. In many cases that would be impossible and would defeat the apparent intent of the provision.
50.…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.
52.… it was not necessary for the MRT to find that the first appellant knowingly provided false information, or to determine whether she knew or did not know that the information was false when she gave it.
53.…the FCCA was correct to conclude that no mental element on the part of a visa applicant is required to engage PIC 4020. The information provided by the first appellant to the Minister's Department was misleading and false…
In AIB16 at [13] per Tracey, Mortimer and Moshinsky JJ the Full Court of the Federal Court said that:
The term “false or misleading” in relation to bogus documents has been construed, in the context of Public Interest Criterion 4020 in Sch 4 to the Migration Regulations 1994 (Cth), to mean “purposely untrue” and not merely a document produced “accidentally” or a statement that is merely “wrong”: see Trivedi v Minister for Immigration and Border Protection [2014] FCAFC 42; 220 FCR 169 at [29]-[44] (Buchanan J; Allsop CJ and Rangiah J agreeing). That construction should also be applied to the term “false or misleading” in the context of the s 5(1) definition of “bogus documents”.
In Arora & Anor v Minister for Immigration & Border Protection & Anor [2016] FCAFC 35, (2016) 238 FCR 153 ("Arora") at [15] and [17] per Buchanan, Perram and Rangiah JJ, the Full Court of the Federal Court stated:
15.Properly construed there is no requirement in PIC 4020(1) that the falsity of a bogus document should be relevant to the criteria that the Minister is considering. PIC 4020(1) and the definition in s 5 address separately the falsity, respectively, of information (in PIC 4020(5)) and bogus documents (in s 5). Each has its own particular regime. The definition of "bogus document" in s 5 is not concerned with the truth or otherwise of statements but with the reliability of documentation. It would be a most unworkable outcome if the Minister could not rely on the fact that a document was counterfeit but had to consider, in turn, whether the statements contained in it were, in any event, correct and otherwise relevant to the matters he had to consider. As a matter of formality, it is the definition of "bogus document" in s 5 which will apply unless "the contrary intention appears". For the reasons just given, the contrary intention does not appear and the concept of a "bogus document" is not subject to the gloss suggested by Mr Arora.
17.In those circumstances, it is not correct that the falsity of a bogus document needs to be relevant to the criteria to be considered by the Minister on the visa application.
In relation to ground 1 it is important to have regard to exactly what the Tribunal did, or did not, say in the Tribunal Decision.
In the Tribunal Decision at CB 520 at [38]-[39] the Tribunal said that:
38.Before proceeding, the Tribunal makes some general observations about the state of the evidence. Notably, Mr Gill married … [the Sponsor] within a few months after they met. That was very soon after the MRT affirmed the decision to refuse him a Student visa. The material also refers to a request Mr Gill made to the Minister to intervene in his case. The Tribunal is not making a determination as to whether Mr Gill has been in a genuine spousal relationship with … [the Sponsor], but the evidence in relation to that issue logically bears on the Tribunal’s determination whether he meets the requirements of PIC 4020. Generally speaking, if the whole of the evidence in support of an application were of a high quality, free of any serious anomalies, a decision-maker might conclude that an applicant met the requirements of PIC 4020. It could be otherwise if the evidence in support of an application were of not a high quality, and if it contained serious anomalies.
39.In Mr Gill’s case the quality of the evidence in support of the application is not high and the evidence contains serious anomalies.
The Tribunal then proceeded at CB 520-523 at [40]-[49] to consider particular evidentiary issues, namely:
(a)whether Mr Gill gave the Sponsor a house, an allegation it put to one side there being no evidence the Sponsor owned any property;
(b)the documentary evidence as to the residential and spousal arrangements as between Mr Gill and the Sponsor, and that that evidence was undermined to some extent by evidence of what the Sponsor told Centrelink about her residential and spousal arrangements, but that “there are other, more serious anomalies in the case that have not been satisfactorily explained”: at CB 521 at [42];
(c)the “very brief and general terms”: at CB 521 at [43], of statutory declarations from third persons submitted in support of the Partner Visa application;
(d)flaws in the Parents’ Affidavit, particularly in relation to the Sponsor;
(e)the unsatisfactory nature of the oral evidence from Mr Gill’s parents;
(f)the evidence of two of Mr Gill’s friends, one of whom was a fellow employee at Mr Gill’s workplace, who attended the wedding of Mr Gill and the Sponsor;
(g)the allegations made by the person asserting that he was the biological father of the Child;
(h)the sending of items of clothing to the Sponsor by Mr Gill’s family in India;
(i)the sending of photos of the Child (together with other persons, including the Sponsor) by Mr Gill to his father, over a year after the making of the Parents’ Affidavit, and more than a year after the birth of the Child;
(j)the evidence of the friend who was a fellow employee at Mr Gill’s workplace that he spoke on the phone to Mr Gill’s father in India on Mr Gill’s wedding day; and
(k)Mr Gill’s evidence that the Sponsor had had a miscarriage in 2014, which the Tribunal noted was unsupported by any medical evidence.
The Tribunal concluded this aspect of its consideration at CB 523 at [50] by observing that:
50.The evidence must be viewed as a whole, and the proper test in relation to PIC 4020 must be applied. For reasons to be developed further below, the Tribunal considers that the particular pieces of evidence that have been given special mention immediately above do not alter its ultimate conclusion.
The Tribunal then sets out – in heading form – the following question:
Has the applicant given, or caused to be given a bogus document, or information that is false or misleading in material particular?
before going on to deal with the test in relation to that issue at CB 523 at [51]-[53] as follows:
51.The term ‘information that is false or misleading in a material particular’ is defined in cl.4020(5) and the term ‘bogus document’ is defined in s.5(1) of the Act (see the attachment to this decision). In contrast to the definition of ‘information that is false or misleading in a material particular’ in cl.4020(5), the reference in the definition of bogus document to a document that was obtained because of a ‘false or misleading’ statement has no requirement that it be relevant to a criterion for the grant of the visa: Arora v MIBP [2016] FCAFC 35; Batra v MIAC [2013] FCA 274.
52.The requirement in cl.4020(1) not to provide a bogus document, or false or misleading information, applies whether or not the Minister became aware of the bogus document or information that is false or misleading in a material particular because of information given by the applicant: cl.4020(3). It also applies whether or not the document or information was provided by the applicant knowingly or unwittingly.
53.While PIC 4020 refers to information that is false, in the sense of purposely untrue, it is not necessary for the Minister (or the Tribunal on review) to conclude that the applicant was aware the information was purposely untrue in order for PIC 4020 to be engaged. However, an element of fraud or deception by some person is necessary to attract the operation of the provision: Trivedi v MIBP [2014] FCAFC 42.
At CB 523-525 at [54]-[62] the Tribunal deals with the information that Mr Gill’s parents knew about and approved of the relationship between Mr Gill and the Sponsor. The Tribunal:
(a)said there was no controversy that this information was given to the Department by Mr Gill in a statement made at or about the time of the Partner Visa application in March 2013 and when he submitted the Parents’ Affidavit in May 2013;
(b)set out and assessed the evidence in relation to the relationship between Mr Gill and the Sponsor, and why it was said that Mr Gill’s parents were unable to attend the wedding of Mr Gill and the Sponsor in Australia, including an analysis of what was said to have been said to Departmental officers by Mr Gill’s parents and by villagers during the Site Visit, and found that it did not accept the reasons put forward for a lack of knowledge of the relationship by Mr Gill’s parents;
(c)found that even when Mr Gill’s parents gave evidence to the Tribunal in March 2019 (some 6 years after the wedding) they “displayed limited knowledge” about the Sponsor: CB 524 at [59];
(d)concluded at CB 524-525 at [61]-[62] as follows:
61.…. The Tribunal considers that the report has sufficient probative value for the purposes of PIC 4020. The report of the interview records – briefly but clearly – key points including that the officers introduced themselves and informed Mr Gill’s parents that they were “from DIBP”. In his statutory declaration dated 28 April 2017 Mr Gill adopted a different position. He said it is “entirely possible that even if the officers introduced themselves properly, [his] parents might not have understood what the visit was about”. The Tribunal prefers the evidence contained in the report to the claim by Mr Gill’s parents that the officers did not introduce themselves as officers of the Department and that they, Mr Gill’s parents, did not say Mr Gill was living in Australia with friends. It is recorded in the report that the officers introduced themselves. Despite it being an unusually difficult time for Mr Gill’s parents, the Tribunal considers it to be improbable that Mr Gill’s parents would give information to strangers visiting their home inquiring about their son or that, having decided to talk to them, they would provide wrong basic information or omit to mention their son’s Australian wife and child for the reason that they were not asked directly or specifically about that.
62.It is clear that at some point Mr Gill’s parents came to learn about his second marriage. The Tribunal however is not satisfied that there is no evidence that Mr Singh has given the Minister or other relevant person information that (at the time it was given) was false or misleading in a material particular in relation to the visa application.
Having stated the test to be applied at CB 523 at [53] (set out at [28] above), the Tribunal’s analysis of the Approval Information issue then makes no mention, for the purposes of and in the course of its analysis and findings, of the test to be applied, and in particular that an element of fraud or deception by some person is necessary to attract the operation of PIC 4020: Trivedi at [33] per Buchanan J. Rather, the evidence is set out, observations are made about the evidence, and some evidence is preferred to other evidence: for example, the evidence in the Site Visit Report is preferred to the Parents’ Affidavit and their oral evidence to the Tribunal; but the Tribunal makes no mention as to whether it considers any of the evidence is affected by an element of fraud or deception.
Critically, the Tribunal does not actually make any finding that there was an element of fraud or deception involved in the preparation or provision of the Approval Information given to the Department. Apart from the recitation of the test to be applied at CB 523 at [53] (set out at [28] above) there is nothing to suggest that the Tribunal turned its mind, when considering the facts in relation to the Approval Information, to the necessity for there to be a finding that an element of fraud or deception in order to attract the operation of PIC 4020(1). Mere use of the language of the statutory test does not, without more, constitute a carrying out of the task of applying the statutory test. It may be, as suggested in Mr Gill’s submissions, that the Tribunal was diverted by a search for “serious anomalies” in the evidence, but in circumstances where the Tribunal has simply failed to apply the correct legal test, it is unnecessary to deal with that submission.
In the circumstances, the Court is satisfied that the Tribunal failed to apply the correct legal test in determining whether it was satisfied that there was no evidence that Mr Gill has given the Minister or other relevant person information that (at the time it was given) was false or misleading in a material particular in relation to the Partner Visa application. It follows ground 1 establishes error in the Tribunal Decision.
Whether the error identified above is jurisdictional depends upon whether it is material in the sense referred to in MZAPC at [2] per per Kiefel CJ, Gageler, Keane and Gleeson JJ. The issue of materiality is considered at [48]-[53] below.
Ground 2
Ground 2 of the Amended Judicial Review Application is as follows:
2.The Tribunal fell into jurisdictional error by misapplying or misunderstanding the meaning of ‘bogus document’ with respect to the operation of PIC 4020 and the error was material
a.The Tribunal in deciding a bogus document had been supplied, finds that the birth certificate was obtained by way of fraud on the part of the child’s mother, who at the time of registering the child’s birth, must have known that the child was not the biological issue of the applicant (at [77]).
b.The Tribunal cites the Victorian Births, Deaths and Marriages Registration Act 1996 and the Status of Children Act 1974 in general terms but fails to consider that s 5 of the latter provides a presumption that a child born to a woman during her marriage shall, in the absence of evidence to the contrary, be presumed to be the child of its mother and her husband.
c.Critically, there is scant material on which to base a suspicion that at the time the parties were registering the birth, the mother had the necessary intent of fraud or deception which led to the document being obtained.
d.The result is that the birth certificate is not a bogus document within the meaning of the Act and for the purposes of PIC 4020. The details provided at the registration of the child’s birth by the parents of the child were ostensibly based on the evidence available at the time, including the fact that the parents were married at law. The issue of the document was never proven to be the subject of the relevant kind of fraud or deception and the certificate merely reflects the records held by the Department of Births, Deaths and Marriages at the time it was issued.
Mr Gill’s submissions on ground 2
In relation to ground 2 Mr Gill submitted that:
(a)the Tribunal’s conclusion that a bogus document has been supplied was affected by jurisdictional error because the Birth Certificate does not meet the statutory definition of “bogus document”, and that the Tribunal has therefore misunderstood or misapplied the relevant legislative criteria;
(b)there are three limbs on which Mr Gill advances this ground:
(i)that the conclusion that the Birth Certificate is bogus is based substantially on a misconceived construction of the Births, Deaths and Marriages Registration Act 1996 (Vic) (“BDMRAct”) and the Status of Children Act 1974 (Vic) (“SC Act”). Mr Gill argues that the SC Act relevantly provides an applicable presumption that a child born to a woman during her marriage shall, in the absence of evidence to the contrary, be presumed to be the child of its mother and her husband, and that that presumption was not considered in the Tribunal Decision;
(ii)there was insufficient evidence before the Tribunal to displace the reasonable explanation offered by Mr Gill for the production of the material consistent with a lawful explanation, and as a corollary, there is insufficient material on which to base a conclusion that at the time the parties were registering the birth, the mother (the Sponsor) had the necessary intent of fraud or deception which led to the document being obtained; and
(iii)the legitimacy or provenance of the Birth Certificate was not brought into question and that in light of the other two limbs, there was insufficient basis to conclude it was fraudulently obtained or otherwise fell within the definition of a bogus document;
(c)the Birth Certificate was determined to be bogus by the Tribunal on the basis that it was obtained because of a false or misleading statement: Migration Act, s 5(1)(c). The requirement espoused in Trivedi, is that false or misleading must mean “purposely untrue” and not merely a document produced “accidentally” or a statement that is merely “wrong” as expressly applied to the term “false or misleading” in the context of the definition of “bogus document” in s 5(1) of the Migration Act: AIB16 at [13] per Tracey, Mortimer and Moshinsky JJ;
(d)the Tribunal summarised the statutory test at CB 523 at [51]-[53] (set out at [28] above);
(e)the Tribunal Decision refers to the Birth Certificate as a bogus document at CB 527 at [75] as follows:
… The evidence does indicate at least that … [the Sponsor] knew all along that Mr Gill was not the biological father. As the Tribunal has noted, Mr Gill gave evidence to the Tribunal that … [the Sponsor] told him that … [the Child] was not his child and that she had kept that a secret from him. Previously, in a statement dated 24 June 2015, Mr Gill said his marriage to … [the Sponsor] was genuine and continuing “except due to [the] fact that [she] was living in adultery and he was not aware of it”. The evidence therefore indicates that the birth certificate was obtained because of a false or misleading statement that Mr Gill was the biological father of … [the Child], and that there was an element of fraud or deception - at least on the part of … [the Sponsor].
(f)the Tribunal goes on to refer to the BDMR Act and SC Act in reasoning that the Sponsor must have had the necessary intent of purposeful falsity in registering the birth of the Child identifying Mr Gill as the father, observing at CB 527 at [77] as follows:
… The evidence summarised above indicates that at all material times … [the Sponsor] knew that Mr Gill was not the father. Consideration of relevant Victorian legislation - the Births, Deaths and Marriages Registration Act 1996 and the Status of Children Act 1974 – indicates that a statement to the Registrar of Births, Deaths and Marriages that Mr Gill was “father or parent” would amount to a statement that he was the biological father. The terms “mother” and “father” are not defined in the legislation. In their ordinary meaning a mother is a woman in relation to a child or children to whom she has given birth (as opposed to an adoptive mother) and a father is a man in relation to a child or children born from his fertilisation of an ovum (as opposed to adoptive father): Australian Concise Oxford Dictionary Fifth Edition, 2009.
(g)in relation to the first limb, there was an incorrect premise and misconceived understanding of the BDMR Act and other legislation because:
(i)generally, the Tribunal incorrectly attributes the necessary element of fraud to the Sponsor by determining that, at all times she “knew [Mr Gill] was not the father”, reasoning that the Sponsor intended to make the fraudulent statement in registering the Child’s birth and in the course of that process, listing Mr Gill as the Child’s biological father; and
(ii)the Tribunal Decision is affected by jurisdictional error because it proceeds on a misconception of the BDMRAct along with the SC Act. Specifically, the SC Act provides that a child born to a woman during her marriage shall, in the absence of evidence to the contrary, be presumed to be the child of its mother and her husband: SC Act, s 5. It follows that the Tribunal’s summary of the legislation that a statement to the Registrar of Births, Deaths and Marriages that Mr Gill was “father or parent” would amount to a statement that he was the biological father misconstrues the legislation and fails to properly construe the operation of s 5 of the SC Act, noting that at no point did the Tribunal consider that the registration may have taken place in accordance with the statutory presumption;
(h)in relation to the second limb concerning an absence of evidence sufficient to carry a finding of fraud because:
(i)there was never, at any point in time, anything more than assumptions and conjecture about the parentage of the Child and the status of the Sponsor’s knowledge at the time the birth was registered. Specifically, there were no DNA tests or paternity results before the Tribunal to exclude s 5 of the SC Act from applying. On the contrary, there was a wealth of evidence that at the time the Child was born to parents who were legally married: CB 37-38, and who jointly registered the Child’s birth: CB 71, with an intention that Mr Gill subsequently had parental responsibility for that child: see for example the Sponsor’s letter at CB 69;
(ii)the presumption as to parentage in respect of the Child born to married parents serves as a legitimate and valid explanation for the registration of the birth by Mr Gill and the Sponsor in the manner evinced by the Birth Certificate. A reasonable explanation, open on the material, consistent with the applicable statutes and which provides an explanation for the fraud found by the Tribunal is that Mr Gill and the Sponsor were married and the Sponsor did not have evidence confirming who the biological father of the Child was and that the Child was registered in accordance with the statutory presumption. This explanation for the registration of the birth was open on the evidence before the Tribunal, and it provides a cogent, reasonable and ultimately lawful basis for the registration of the Child’s birth in the way set out. The Tribunal erred in failing to consider that at the time of registering the birth, the circumstances and legislation provided a mechanism for the registration of the Child’s birth to have occurred lawfully, and the Tribunal instead leaps immediately to a conclusion that the Sponsor must have acted with purposeful fraud or deception while ignoring key provisions of the relevant legislation (here the BDMRAct and the SC Act);
(iii)by failing to correctly construe the relevant legislation, the Tribunal fell into jurisdictional error in concluding that the Sponsor had fraudulently registered the Child’s birth with Mr Gill named as the Child’s father, and without the “purposeful fraud” element the Court ought to consider that it was an error to find that the document was “bogus” as the necessary threshold requirement, as set out in Trivedi, was not established; and
(iv)ultimately the Court ought to conclude that the Birth Certificate is not a bogus document within the meaning of the Migration Act and for the purposes of PIC 4020. The Birth Certificate reflects details provided at the registration of the Child’s birth by Mr Gill and the Sponsor which were ostensibly based on the evidence available at the time, including the fact that Mr Gill and the Sponsor were married at law. The origin of the document was never brought into question and for the reasons set out above, the basis on which the Tribunal arrives at a finding of fraud or deception is seriously flawed; and
(i)in relation to the third limb that there was a legitimate document reflecting the contents of the Register:
(i)the Court ought to consider that the finding that the Birth Certificate is bogus in this case does not involve a question as to the legitimacy of the Birth Certificate itself, it not being disputed that the Birth Certificate was genuine and that it reflects the records held by the Victorian Department of Births, Deaths and Marriages at the time it was issued;
(ii)the application of PIC 4020 in this case varies significantly from other cases where decision-makers have made a positive finding that arises as a result of a forgery, fraudulent alteration, falsification or concoction, resulting in a bogus document being provided to the Minister, and the Court may refer to a number of cases where documents are falsified, fraudulently obtained or otherwise forged, to conclude that this is not a common base example of the application of PIC 4020 as a basis to refuse the Partner Visa: citing AIB16 (a fraudulent Iranian driver’s licence) and Singh v Minister for Immigration and Border Protection [2018] FCAFC 52; (2018) 261 FCR 556 (fraudulently altered IELTS results document);
(iii)at a fundamental level, the Birth Certificate being legitimately issued, and there being no established fraud in the process of registering the birth, means that the Court ought to conclude that the Birth Certificate cannot be considered to be bogus;
(iv)any error in the information as to the parentage is not determinative of whether the document is bogus, as the Child was in fact born and registration of birth was required at law which precipitated the production of the Birth Certificate: BDMRAct ss 15 and 18, and it is arguable that it is not the provision of any incorrect detailed information or the workings of some fraud on the Registry that brought about the creation and issue of the Birth Certificate, but rather the fact that the birth of the Child occurred as a matter of fact and that its registration was required as a matter of law;
(v)the conflation of these issues is evident in the Tribunal’s decision-making process, in that:
(A)the Tribunal did not consider the statutory presumption and incorrectly construed other legislation in reaching a conclusion that the Birth Certificate met the definition of bogus document;
(B)the Tribunal had limited, if any basis, to conclude that the Birth Certificate was created as a result of the requisite level of fraud or deception in accordance with Trivedi; and
(C)that the legitimacy of the Birth Certificate itself was never called into question; and
(vi)this forms the basis for concluding that the Tribunal has fallen into jurisdictional error by misunderstanding the operation of the relevant legislation on which it relied (PIC 4020 and the BDMRAct and the SC Act), and the Tribunal’s misunderstanding or misapplication of the statutory definition of “bogus document” resulted in a jurisdictional error.
The Minister’s submissions on ground 2
In relation to ground 2 the Minister:
(a)accepts that the Tribunal:
(i)erred in treating “parent” under the BDMR Act as coterminous with “biological father”: CB 527 at [75] and [77];
(ii)did not have regard to the statutory presumption of parentage arising from s 5 of the SC Act;
(iii)conclusion, at CB 527 at [75], that the evidence indicates that the Birth Certificate was obtained because of a false or misleading statement that Mr Gill was the biological father of the Child, and that there was an element of fraud or deception” was based on an incorrect understanding of the meaning of“parent” under the BDMR Act;
(iv)approached its consideration of whether the Birth Certificate was obtained because of a false or misleading statement, whether or not made knowingly, on an incorrect understanding of the law; and
(v)approached its consideration of whether Ms Underwood provided a false or misleading statement to the Registrar was formed on an incorrect understanding of the law; and
(b)says that that error was immaterial, for reasons discussed at [47] below.
Consideration – ground 2
It follows from the Minister’s concessions that ground 2 is affected by error. The question of whether that error is material, and therefore jurisdictional, is dealt with at [48]-[53] below.
Ground 3
Ground 3 of the Amended Judicial Review Application is as follows:
3.The Tribunal’s decision is affected by jurisdictional error because it is based on findings of fact that are irrational, illogical or so unreasonable that no reasonable decision-maker could make it and the error was material.
a.The Tribunal considers and makes specific mention of a piece of evidence being an unidentified person’s report including allegations that the relationship was contrived in its decision (at [48]).
b.In its reasons the Tribunal finds that there is no evidence to support a key allegation contained in the unidentified person’s report, namely that the applicant purchased the sponsor a house to induce her into the contrived relationship (at [40]).
c.Despite the evidentiary issues identified with the allegations, the Tribunal takes into account that the allegations have not been tested and gives the allegations some weight because the applicant appears never to have challenged the claim that someone other than he is Phoenix’s father (at [48]).
d.The Tribunal’s reliance on the untested allegations and decision to apportion them any weight in all the circumstances of the decision was irrational and unreasonable.
e.Further and in the alternative, the Tribunal not specifying how the weight apportioned to the evidence would be moderated to account for the fact that it was demonstrably false in a key respect, means that it was not so moderated and unreasonably given undue weight.
Mr Gill’s submissions on ground 3
In relation to ground 3 Mr Gill submitted:
(a)the Tribunal considers and makes specific mention of a piece of evidence being an unidentified person’s report including allegations that the relationship between Mr Gill and the Sponsor was contrived, and reliance on this material is particularly dangerous because Mr Gill had no way of testing or challenging the material in the course of the proceedings or the Partner Visa application process;
(b)the test in SZMDS at [131] per Crennan and Bell JJ emphasises that it is not sufficient for a reviewing court to make a finding of illogicality, irrationality or unreasonableness simply because one conclusion has been preferred to another possible conclusion, and further that it is possible for an administrative decision not to be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material before the decision-maker, and that a decision might be said to be illogical or irrational if only one conclusion is open on the evidence and the decision-maker does not come to that conclusion, or if a decision is made which was simply not open on the evidence or which lacks a logical connection between the evidence and the inferences or conclusions draw: SZMDS at [135] per Crennan and Bell JJ;
(c)in relation to the status of anonymous dob-in letters, SZOOR v Minister for Immigration and Citizenship [2012] FCAFC 58; (2012) 202 FCR 1; (2012) 289 ALR 463; (2012) 127 ALD 1 (“SZOOR”) involved a case where there was no finding of jurisdictional error where an anonymous dob-in letter in relation to a protection visa application was considered by the Tribunal in reaching a decision to refuse to grant a Protection Visa, but there are various points of distinction between that case and this case including the Tribunal’s treatment and caution when dealing with untested allegations arising from a want of personal knowledge of the circumstances set out in the dob-in letter;
(d)ground 3 is advanced on the basis of two alternative assertions, as follows:
(i)first, that the evidence was an untested allegation from a person who was ultimately not identified, and given that a significant aspect of the allegations was without legal basis and therefore found to be false, no reasonable decision-maker would have relied upon that evidence in reaching the same conclusions of fact in the matter; and
(ii)second, and in the alternative, because the evidence had been proven false in a key respect and was otherwise problematic, any reasonable decision-maker would have to consider whether the balance of the claims were similarly infected by falsity and baselessness, and any reasonable decision-maker would, as a matter of logic, have treated the allegations carefully and clearly setting out how any weight was to be apportioned to the evidence that was to be relied upon, having specific regard to the significant issues patently evident in the allegations, such that the Tribunal’s failure to do so was seriously illogical or so unreasonable that no reasonable decision-maker would have reached the same decision;
(e)the Tribunal refers to untested allegations and sets out their contents, stating, at CB 516 at [11], that:
In or about December 2014 a man contacted the Department and made a number of serious allegations against Mr Gill. In particular the man told the Department that he was the biological father of … [the Child] and was present at the birth; that Mr Gill and … [the Sponsor] were not in a genuine relationship; and that … [the Sponsor] had said she had “been given a house” by Mr Gill.
(f)in relation to the report set out at CB 516 at [11] the Tribunal in its consideration of the claims and evidence at CB 520 at [40] sets out that:
The Tribunal puts to one side the allegation that Mr Gill gave … [the Sponsor] a house. There appears to be no basis for that. There is evidence about premises that were rented. There is no evidence about any property owned by … [the Sponsor].
(g)finally, in its consideration of what weight to give the evidence given by the unidentified person, the Tribunal sets out at CB 552 at [48] that:
The allegations made to the Department by the man claiming to be … [the Child’s] biological father are substantially denied by Mr Gill. In weighing the evidence that those allegations were made, the Tribunal takes into account that the allegations have not been tested. It is significant, however, that Mr Gill appears never to have challenged the claim that someone other than he is … [the Child’s] father.
(h)it is implicit in the Tribunal’s remarks that there is “no basis” for the assertion that Mr Gill gave the Sponsor a house, that that is a conclusion that a significant aspect of the untested allegations were false, and this is particularly so as before the Delegate and the Tribunal there was significant amounts of financial information and evidence about the living arrangements (including details of a lease: CB 78-107) and financial circumstances for Mr Gill and the Sponsor, which excluded any likelihood of such a transaction taking place;
(i)there was, in the Tribunal’s consideration of the evidence and the material before it, “no basis” to support a significant aspect of the allegations that constituted that unidentified, untested report. Specifically, the allegations were predicated on an assertion that by purchasing the Sponsor a house, Mr Gill had demonstrated that there was a financial incentive that could call into question the genuineness of the relationship, and if it was proven, that the transaction by which Mr Gill purchased the Sponsor a house would have explained, by way of motive and incentive, the Sponsor’s involvement in what the Tribunal and Department seem to have considered a contrived relationship: see, for example, CB 519 at [29];
(j)as set out and is evident in the Tribunal Decision, a key aspect of the allegations was false and Mr Gill submits that this would have instilled in a reasonable decision-maker’s mind, serious concerns about any reliance on the other allegations contained in the dob-in report;
(k)instead, the Tribunal looked for corroborating evidence in the other circumstances to bolster the allegations contained in the dob-in report, and it relied on the dob-in report to inform the other information held on Departmental files and to colour the concessions made by Mr Gill in respect of parentage: CB 525 at [67], taking them altogether as evidence that the relationship was contrived and that Mr Gill did not meet PIC 4020;
(l)the result is internal logical inconsistency between the Tribunal’s finding that there was no basis for part of the allegations, then ignoring that finding in proceeding to apportion weight to other aspects of the allegations that Mr Gill had no way of testing or challenging, and although the Tribunal apparently moderated the weight of the evidence on the basis that the allegations were untested, it made no such adjustment for the fact that a key aspect of it was unsupported by any other evidence, rendering the conclusions based on this key piece of evidence unreasonable;
(m)the Tribunal’s consideration of the untested allegations takes place within that part of the Tribunal Decision where the Tribunal is considering the evidence in the proceedings generally, prior to turning its mind to whether it considered Mr Gill had caused to be given a bogus document, or information that is false or misleading in a material particular. The conclusion that there had been fraud in the process of obtaining the Birth Certificate for the Child relies on the allegations made by the unidentified person and the aspersions cast on the legitimacy of the relationship between Mr Gill and the Sponsor, that is, the allegations were an essential part of the body of evidence against which Mr Gill’s account was considered and in particular, the finding of fact that the Birth Certificate was a bogus document: CB 526 at [71]-[73]; and
(n)the above matters provide sufficient grounds to distinguish Mr Gill’s case from SZOOR for the following reasons:
(i)in SZOOR the Tribunal had accepted it must exercise “extreme caution” in relying and using the untested evidence in the anonymous allegations;
(ii)there was no formal finding by the Tribunal in SZOOR that the substance of the allegations was without factual basis as occurred in this case and forms the basis of Mr Gill’s complaint; and
(iii)the Tribunal in SZOOR was conducting an assessment of a different complexion: the merits of the appellant’s case there were considered and it was determined that the protection visa should be refused on the basis that the substantive criteria were not met, and the claims of the appellant had been considered, whereas in this case, the consideration for the purposes of PIC 4020 is a truncated exercise and did not take into account many of the submissions, evidence and claims of Mr Gill.
The Minister’s submissions on ground 3
In relation to ground 3 the Minister submitted:
(a)SZOOR is authority that dob-in letters can be considered by decision-makers;
(b)in this case Mr Gill seeks to rely upon the comments made in SZOOR at [16]-[17] per Rares J to attempt to distinguish the present case from SZOOR;
(c)the passage relied upon by Mr Gill from the judgment of Rares J in SZOOR was considered by the Full Court of the Federal Court in Minister for Immigration and Border Protection v Gill and Another [2019] FCAFC 9; (2019) 268 FCR 575; (2019) 163 ALD 219 (“Gill”), wherein the Full Court noted that in SZOOR Rares J was in a minority on this issue and that the case was in any event a case in which the decision-maker reasoned to a conclusion independently of the anonymous information before it: Gill at [47] per Moshinsky, Charlesworth and Lee JJ;
(d)the Full Court of the Federal Court found in Gill that there is no rule that anonymous information cannot in any case play a central role in reasoning toward a result, but that the use to which anonymous information may be put depends in all cases on the statutory context and upon the body of information before the decision-maker: Gill at [47] and [53] per Moshinsky, Charlesworth and Lee JJ;
(e)there are several reasons why there was no illogicality or irrationality in use in the Tribunal Decision of the anonymous information, including the following:
(i)first, to describe the anonymous information as “anonymous” is something of a misnomer, because, unlike SZOOR where the source of the information was mysterious, the information in this case came from the person who said that he “was the biological father of … [the Child] and was present at the birth”: CB 516 at [11], and thus the source had identified why he knew Mr Gill and how he knew the information and how he knew the information he conveyed, and in those circumstances there is no illogicality in the Tribunal relying upon some of the information provided;
(ii)second, the Tribunal was expressly aware of the dangers of relying on untested evidence, and noted that the allegations were substantially denied, and said that in weighing the evidence the Tribunal took into account that the allegations had not been tested: CB 522 at [48]; and
(iii)third, there is no internal logical inconsistency in a Tribunal finding that there is no basis for some part of the information, whilst accepting other parts of the information, and it is difficult to see how such a nuanced and considered approach to the information could be objectionable;
(f)in SZRKT at [119] per Robertson J the Federal Court found that where a decision-maker takes a “nuanced approach to questions of credit by considering whether its disbelief of the applicant in one respect nevertheless did not mean that it disbelieved him generally”, meant that such an approach “may more readily be seen that such a finding on credit goes only to a matter of fact and thus is quintessentially the province of the Tribunal”;
(g)in Gill the Tribunal accepted some aspects of the information and did not make findings in respect of others, and at [49] per Moshinsky, Charlesworth and Lee JJ the Full Court of the Federal Court said that the Tribunal did not, in fact, make a finding that the informant was truthful and accurate in respect of the uncorroborated balance of the claims, and that “it was sufficient for the Tribunal to find (as it did) that the anonymous information was accurate in respects that rendered critical aspects of Mr Gill’s evidence unable to be accepted”, and the Full Court of the Federal Court did not find illogicality in this regard;
(h)this is substantially the same as in the present case, albeit the corroboration in this case comes from Mr Gill himself (and so did not undermine his credit). Here, the Tribunal relied upon information in the anonymous source relating to Mr Gill not being the biological father, a point conceded by Mr Gill: CB 525 at [67], and thus, the Tribunal relied upon the anonymous report where that information was corroborated by Mr Gill’s concessions;
(i)where the information in the anonymous report was uncorroborated, for example in relation to the allegations relating to the house, the Tribunal put that information to one side: CB 520 at [40], and where the information was much less certain, such as whether a particular person was present at the Child’s birth, the Tribunal apparently put no weight on the allegation, and although discussed briefly by the Tribunal at CB 526 at [72] the Tribunal did not go on to make any findings concerning it. Rather, the Tribunal considered that it was “not necessary to have a reasonable suspicion that Mr Gill was aware at the time it was obtained that it was obtained because of a false or misleading statement that he was the biological father”: CB 527 at [75]. Similarly, the Tribunal did not put any weight on the information or opinion from the anonymous source that the relationship was not genuine, and while the Tribunal expressed some doubt about the genuineness of the relationship, it expressly stopped short of deciding that issue: CB 530 at [100]; and
(j)the Tribunal’s approach discloses an evident and intelligible justification for the Tribunal’s use of the information provided by the “anonymous” source.
Consideration – ground 3
There is no doubt that the Tribunal was entitled to rely on dob-in information. In Gill at [49] per Moshinsky, Charlesworth and Lee JJ, the Full Court of the Federal Court observed as follows:
The conclusion of the primary judge was based in part on the premise that “simply because some parts of the allegations of an anonymous informant are independently proved does not necessarily demonstrate that the informant is truthful or accurate with respect to the balance of the claims”. While this may be correct, it pays insufficient regard to the nature of the task to be undertaken under s 65 of the Act. As has been explained, a decision to refuse to grant a visa under s 65(1)(b) did not require the Tribunal to make findings of fact: Minister for Immigration and Multicultural and Indigenous Affairs v Lat (2006) 151 FCR 214. More specifically, the Tribunal was under no obligation to make findings of fact consistent with each and every aspect of the competing narrative alleged by the informant(s). The Tribunal did not, in fact, make a finding that the informant was truthful and accurate in respect of the uncorroborated balance of the claims. In our view, it was sufficient for the Tribunal to find (as it did) that the anonymous information was accurate in respects that rendered critical aspects of Mr Gill’s evidence unable to be accepted.
and at [53] per Moshinsky, Charlesworth and Lee JJ further observed that:
It should be emphasised again that the use to which anonymous information may be put will depend in all cases on the statutory context and upon the body of the information before a decision-maker. In the circumstances of Mr Gill’s case, the weight to be ascribed to the anonymous information was a question in respect of which reasonable minds may differ. To make out the ground of review of legal unreasonableness, it is not sufficient to express emphatic disagreement with the weight ascribed by the Tribunal: Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164 at [34], [37] (French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ). Nor is it permissible for a court on review to substitute its own view as to the appropriate weight for that expressed by the decision-maker.
In this case the source of the dob-in information was, whilst not specifically identified, plainly from a person with some knowledge of the circumstances and of the person who claimed to be the biological father of the Child (other than Mr Gill who originally claimed to be the biological father of the Child). That other person was therefore someone whose dob-in information might be had regard to by the Tribunal.
In considering the dob-in information in this case the Tribunal did not accept it uncritically. The Tribunal took into account that the dob-in information was untested: CB 522 at [48]. The Tribunal considered and weighed the dob-in information, as it was entitled to do.
Critically, the Tribunal did not accept the dob-in information in its entirety. The Tribunal rejected information concerning Mr Gill giving the Sponsor property in circumstances where there was no other evidence to that effect, and the information was not independently corroborated: CB 520 at [40]. By contrast, in relation to the birth of the Child, the Tribunal took the dob-in information into account in assessing whether Mr Gill was the biological father of the Child. It did so in circumstances where the dob-in information suggested that Mr Gill was not the biological father of the Child, and that the biological father was present at the birth of the Child: CB 519 at [30], that information being arguably probative of the Child’s parentage, and thus possibly relevant to whether the Birth Certificate was a bogus document obtained because of a false or misleading statement. Significantly, the Tribunal took the dob-in information into account in circumstances where:
(a)Mr Gill knew that he was not the biological father of the Child, and had seemingly known that since sometime in 2015: CB 525 at [67];
(b)Mr Gill was aware at the time the Birth Certificate was obtained that he was not the father of the Child: CB 525-526 at [68], because of, amongst other things, an ultrasound report in his possession which showed that the Sponsor conceived the Child in Perth weeks before her return to Melbourne (where Mr Gill resided): CB 526 at [69]; and
(c)the Sponsor knew all along that Mr Gill was not the biological father of the Child: CB 527 at [75] and [77].
The fact that Tribunal did not find the allegation made in the dob-in information concerning Mr Gill giving the Sponsor property true, does not of itself warrant a finding that other dob-in information in respect of other matters, such as who the Child’s father actually was, was not true, either as matter of logic, rationality or reasonableness. As is evident from the matters set out at [44] above the Tribunal had information apart from the dob-in information, some of it from Mr Gill himself, which it considered and weighed together with the not inconsistent dob-in information concerning who the Child’s father actually was. It is evident that the Tribunal took care to consider what dob-in information it could rely on, and on what dob-in information it could not rely. It did so in a manner which was entirely orthodox: Gill at [49] per Moshinsky, Charlesworth and Lee JJ. Nothing in the Tribunal’s use of the dob-in information was, in the circumstances, legally unreasonableness on the basis of illogicality or irrationality in an SZMDS sense, or legally unreasonable on any of the bases, summarised in Minister for Immigration and Border Protection v Pandey [2014] FCA 640; (2014) 143 ALD 640 at [41] per Wigney J, arising from Li. It follows that ground 3 is not made out.
Materiality
Mr Gill’s submissions on materiality
In relation to the issue of materiality Mr Gill submitted that:
(a)the starting point is that the Partner Visa application was refused on the basis of the Tribunal not being satisfied that PIC 4020 was met by Mr Gill, and that in particular, the Tribunal’s conclusions that it was not satisfied there was no evidence before it that Mr Gill had given, or caused to be given to a relevant person, a bogus document and separately, information that is false or misleading in a material particular in relation to the Partner Visa application was a limited inquiry;
(b)inherent in that decision is that Mr Gill was not considered against the other substantive criteria set out in cl 801 of Sch 2 to the Migration Regulations, and critically, that there were claims of family violence and submissions made in respect of the genuineness of the relationship, and a wealth of supporting evidence of the same, that was not considered against the relevant criteria on the basis of the Tribunal’s conclusions in respect of PIC 4020;
(c)if the Tribunal had properly construed the legislative provision and properly approached the evidence, the conclusion in respect of Mr Gill’s failure to meet PIC 4020 would not have followed and the refusal of the Partner Visa ought not be considered an inevitability, an important consideration as to whether the errors were material lies in the broader circumstances of the case and the centrality of the errors to the decision made;
(d)at first instance the Delegate had erred in applying the PIC 4020 criteria, and this error was reflected in the Tribunal expressly disavowing the Delegate’s reasons for refusing the Partner Visa on the basis of PIC 4020, that is, that the affidavits provided by Mr Gill and the Sponsor were bogus: CB 188;
(e)Mr Gill maintains that the Partner Visa should have been considered in full according to the broader genuine spouse relationship criteria and in accordance with the claims of his being the victim of family violence as opposed to consideration on the basis of PIC 4020, which in Mr Gill’s submission was not open;
(f)the reliance of the Tribunal on the finding that the Birth Certificate was bogus and obtained by way of relevant fraud by the Sponsor is entwined with the conclusion that Mr Gill did not meet PIC 4020, and where the document is patently not bogus within the meaning of the Migration Act and there is no basis for finding that there was the necessary element of fraud in accordance with Trivedi, the error committed by the Tribunal was material and the result could well have been different in all the circumstances; and
(g)finally, the centrality of the evidence of the untested allegations to the conclusion that Mr Gill did not meet PIC 4020 supports the conclusion that there is more than a realistic possibility that the outcome would have been different if the evidence had been treated with the necessary care and caution. The Site Visit Report was taken together with other material that was seen to confirm that the relationship was contrived, and that PIC 4020 was not satisfied by Mr Gill. The substance of the Site Visit Report, coloured many of the inferences and conclusions drawn by the Tribunal, and had the Tribunal not approached the considerations of that evidence illogically or unreasonably a different outcome would likely have been reached.
The Minister’s submissions on materiality
In relation to the issue of materiality the Minister submitted as follows:
(a)the Tribunal determined that Mr Gill had given, or caused to be given, a bogus document, or information that is false or misleading in a material particular, on two separate bases:
(i)first, it was not satisfied that there was no evidence that the Approval Information was false or misleading in a material particular; and
(ii)second, it was not satisfied that there was no evidence that Mr Gill had given the Minister or other relevant person a bogus document, in the form of the Birth Certificate;
(b)only one of these findings was necessary to conclude that Mr Gill did not meet PIC 4020(1), and therefore the Tribunal’s findings with respect to the Approval Information withstand challenge, and provide a separate and independent basis for concluding that Mr Gill failed PIC 4020(1), and the error in the Tribunal’s construction of the meaning of “parent” under the BDMRAct did not therefore affect its consideration of the Approval Information;
(c)once the Tribunal had formed the state of satisfaction that Mr Gill did not meet PIC 4020(1), the Tribunal was required to go on and consider whether to waive the requirements of PIC 4020(1) in any event;
(d)in Wu v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1091; (2021) 358 FLR 269 at [11] per Judge Lucev this task has been described as requiring the following steps:
(i)first, the Tribunal must form a state of satisfaction as to whether there are compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen justifying the grant of the visa; and
(ii)second, the Tribunal may then go on to consider those circumstances in the application of its discretion.
(Also cited were Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 109 at [31] per Judge Driver; Kaur v Minister for Immigration and Border Protection[2017] FCAFC 184; (2017) 256 FCR 235; (2017) 73 AAR 380 at [26] per Dowsett, Pagone and Burley JJ and Singh v Minister for Home Affairs [2020] FCAFC 7; (2020) 274 FCR 506 at [55]-[56] per Derrington J);
(e)in the present case the Tribunal set out its reasons for the exercise of the discretion first, although, this does not necessarily mean that it considered the exercise of the discretion first: CB 528 at [83]-[86];
(f)the Tribunal considered whether the circumstances were compassionate or compelling circumstances that affect the interests of an Australian citizen, and Australian permanent resident or an eligible New Zealand citizen and concluded that on the whole of the evidence before the Tribunal there were not compassionate or compelling circumstances affecting such a person that might justify the grant of the Partner Visa: CB 530 at [94];
(g)importantly, these findings are not challenged on judicial review, and given that they are unchallenged, the Tribunal was not required to go to consider the exercise of its discretion, as having found that there were no compassionate or compelling circumstances, the Tribunal was not required to waive the requirements of PIC 4020(1);
(h)while it may be accepted that the Tribunal (wrongly) took into account the bogus Birth Certificate in considering its discretion, that issue of discretion never arose, and at most, the Tribunal asked itself a superfluous question: Shrestha v Minister for Immigration and Border Protection [2018] HCA 35; (2018) 264 CLR 151; (2018) 92 ALJR 798; (2018) 359 ALR 22; (2018) 76 AAR 16 at [10] per Kiefel CJ, Gageler and Keane JJ; and
(i)in short, the Tribunal’s erroneous construction of the BDMRAct and the SC Act did not:
(i)affect its conclusion with respect to the Approval Information; or
(ii)affect its conclusion with respect to whether compelling or compassionate circumstances existed,
and these two findings therefore survive any error made in relation to ground 2, and any error in relation to ground 2 is therefore not jurisdictional.
Consideration - materiality
For jurisdictional error to be established any error must be material in the sense referred to in MZAPC at [2] per per Kiefel CJ, Gageler, Keane and Gleeson JJ as follows:
Materiality was explained in Minister for Immigration & Border Protection v SZMTA (2019) 264 CLR 421 to involve a realistic possibility that the decision in fact made could have been different had the breach of the condition not occurred. Existence or non-existence of a realistic possibility that the decision could have been different was explained to be a question of fact in respect of which the plaintiff in an application for judicial review of the decision on the ground of jurisdictional error bears the onus of proof.
The threshold of materiality is not high, and requires no more than a realistic possibility that the Tribunal could have exercised power differently but for the error, that is, that there could have been a different decision: CRL18 v Minister for Immigration, Citizenship Migrant Services and Multicultural Affairs (2020) 171 ALD 50; [2020] FCA 917 at [83] per Stewart J; EWH20 v Minister for Immigration, Citizenship Migrant Services and Multicultural Affairs [2021] FCA 1451 at [36] per Halley J.
The Minister’s submissions on materiality are premised on the fact that not only was the Birth Certificate a bogus document, but also that the Tribunal was not satisfied that there was no evidence that the Approval Information was false or misleading in a material particular. In circumstances where the Court has found jurisdictional error in relation to both grounds 1 (directed to the Approval Information) and 2 (directed to the Birth Certificate) the basis for the Ministers submissions concerning a want of materiality, which are underpinned by an assumption that ground 1 is not made out, fall away.
Having regard to the Court’s findings of material jurisdictional error in relation to grounds 1 and 2 it is possible that if PIC 4020 is met then it necessary for the Tribunal to consider the merits of Mr Gill’s review application.
There is a wealth of information before the Tribunal concerning the alleged genuineness of the relationship between Mr Gill and the Sponsor and information concerning Mr Gill’s claims to have been the victim of family violence, and if PIC 4020 is met, then there is a realistic possibility that the Tribunal, on a consideration of all that material and the relevant criteria under cl 801.226 of Sch 2 to the Migration Regulations, might have been able to find that Mr Gill met the criteria, and therefore that the Tribunal might have arrived at a different decision.
In the circumstances the Court is satisfied that, but for the errors in the Tribunal Decision established by grounds 1 and 2, there is a realistic possibility that the Tribunal might, on a consideration of the merits of Mr Gill’s review application, arrived at a different decision, and material jurisdictional error in the Tribunal Decision is therefore established.
CONCLUSION AND ORDERS
The Court has concluded that:
(a)grounds 1 and 2 of the Amended Judicial Review Application establish material jurisdictional error in the Tribunal Decision; and
(b)ground 3 of the Amended Judicial Review Application does not establish material jurisdictional error in the Tribunal Decision.
Having regard to the conclusion of material jurisdictional error in grounds 1 and 2 of the Amended Judicial Review Application it follows that writs of certiorari and mandamus will issue quashing the Tribunal Decision and requiring the Tribunal to re-determine its review of the Delegate’s Decision according to law.
There will also be orders amending the name of the Minister to read “Minister for Immigration, Citizenship and Multicultural Affairs”, and for the grounds of the Judicial Review Application to be formally amended to those in the “Amended Application” received by the Court on 25 March 2022.
The Court will hear the parties as to costs.
I certify that the preceding fifty-seven (57) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Lucev. Associate:
Dated: 20 October 2023
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