Gupta v Minister for Immigration, Citizenship and Multicultural Affairs

[2024] FedCFamC2G 1298

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Gupta v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 1298

File number(s):	BRG 364 of 2022
Judgment of:	JUDGE EGAN
Date of judgment:	2 December 2024
Catchwords:	MIGRATION – Whether the Tribunal conducted a proper review – whether the decision of the Tribunal was attended with any irrationality or illogicality – no jurisdictional error established – application dismissed.
Legislation:	Migration Regulations (1994), cl. 500.212, PIC 4020
Cases cited:	CQG15 v Minister for Immigration and Border Protection (2016) 253 FCR 496
Division:	Division 2 General Federal Law
Number of paragraphs:	16
Date of last submission/s:	19 November 2024
Date of hearing:	19 November 2024
Place:	Brisbane
Applicant:	Ms Gupta, appearing on her own behalf
Solicitor for the First Respondent:	Mr J. Kyranis of Sparke Helmore
Second Respondent:	Submitting appearance, save as to costs

ORDERS

BRG 364 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

PARUL GUPTA

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE EGAN
DATE OF ORDER:	2 DECEMBER 2024

IT IS ORDERED THAT:

1.The name of the first respondent be changed to “Minister for Immigration and Multicultural Affairs”.

2.The name of the second respondent be changed to “Administrative Review Tribunal”

3.The Originating Application for Review filed on 26 August 2022 be dismissed.

4.The applicant pay the first respondent’s costs of and incidental to the Originating Application for Review filed on 26 August 2022 fixed in the amount of $6,500.

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 EGAN

INTRODUCTION

1. The applicant is a female citizen of the Republic of India who relevantly applied for a Student (Temporary) (Class TU) (Subclass 500) Visa on 2 October 2020.

2. On 22 October 2021, a delegate of the Minister refused to grant the visa. The delegate found that the applicant had provided evidence to the Department which constituted a breach of PIC 4020, which relevantly provided as follows:

   MIGRATION REGULATIONS 1994 - SCHEDULE 4

   Public interest criteria and related provisions

   4020

   (1) There is no evidence before the Minister that the applicant has given, or caused to be given, to the Minister, an officer, the ART during the review of a reviewable migration 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.

   (2) The Minister is satisfied that during the period:

   (a)  starting 3 years before the application was made; and

   (b)  ending when the Minister makes a decision to grant or refuse to grant the visa;

   …
   (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;

3. Satisfaction of PIC 4020 was a precondition to the grant of a visa under cl. 500.217 of Schedule 2 to the Migration Regulations (1994) (“the Regulations”).

4. The applicant applied to the Administrative Review Tribunal (“the Tribunal”) for review of the decision of the delegate.

5. On 11 October 2022, the Tribunal affirmed the decision of the delegate.

6. At [7] – [20] of its reasons, the Tribunal found as follows:

   7.I have before me the department file, which includes the material you provided with and in support of your application, and the tribunal file, which contains all the information that has come in since you lodged your review application. In making this decision I have relied on the information in the files and what you have told me here today.

   8. As I explained to you, there are two steps in matters of PIC 4020. The first is that the tribunal must find whether or not in support of your visa you have given or caused to be given a bogus document or information that is false or misleading in a material particular in relation to the application creating a breach of PIC 4020. And secondly, if the tribunal finds that you have provided evidence in breach of PIC 4020 one, it must consider or decide whether there are compelling circumstances that affect the interests of Australia or compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen that justify the granting of your visa.

   9. In support of your application you provided a fixed term deposit in the name of Suma Gupta your mother dated 28 September 2020 from the Punjab National Bank Saharanpur branch in order to satisfy the financial criteria in relation to your student visa application. There was also an affidavit provided from both your parents talking about their support.

   10. The department conducted a check in order to verify the authenticity of the fixed term deposit and found that the document from the applicant's mother was non-genuine and bogus. You were provided 28 days to provide comment on the suspected non-genuine information provided to the department.

   11. On 4 March 2021 a reply was provided to the department, which included two statutory declarations, one from you and the other from the education agent. Both declarations state that:

   12. It was an administrative error and that another student details who had a similar name were uploaded accidentally. The applicant has not provided sufficient evidence that it was an administrative error. Although another student may have a similar name to the applicant it does not adequately explain how the name on the bank deposit matches exactly with the applicant's mother's name on their passport and the affidavit of financial support provided.

   13. Based on the evidence and the information before me I find the applicant has given a bogus document in the meaning of section 51 of the Migration Act, therefore, I am not satisfied the applicant meets PIC 4020(1).

   14. It goes onto say there were no compassionate or compelling circumstances put forward that might lead to a waiver and, therefore, the delegate found you did not meet clause 500.217, which, as I said earlier, is a prerequisite for the grant of a visa. So in response to that today you say "I did not provide any financial documentation. I told the agent if there is information required about my funding, then I can provide it". Now, as I said to you, I am not sure why you would have made that statement to an agent but you say you did.

   15. You say that the previous time you applied for a student visa, which was back on 17 April 2019, there was no financial documents requested. We went through the history and I explained to you that on 19 January 2021 you were sent a natural justice letter advising you of the adverse information. In response you provided, well, it is headed a statutory declaration but it is not signed or stamped, and it says:

   16.      I never provided any funds to Help Education and Migration.

   17. Who are your agents, well, the gentleman in question is an education agent, not a migration agent.

   18.I have paid my fees and have maintained living expenses. I have accessed the funds directly and have evidence to show them. Help Education and Migration have advised me of the administrative error on my application where another student having similar details to me had sent them the documents for their file and it had been uploaded in error to my file.

   19. I also want to add there was no fraud or misleading or information that was intended to be provided, it was purely a human error. If requested, I am able to provide evidence of access to genuine funds for my stay, education and living in Australia.

   20. When I questioned you about this and say, "Hang on, this is extraordinary that this person in whose name this document appears has the same name with the exact same spelling as your mother. And a statutory declaration provided with your application signed by your mother and father also has exactly the same name as your mother". So my question is what was the name of this other student who you say "Had similar details to me. And that person had sent the documents for their file which had been uploaded in error to my file". And you say "I do not know the name of the other person and I do not know how it could have happened". But you confirm that what you say in your statutory declaration is what happened.

7. At [28] of its reasons, the Tribunal found that the applicant had not provided sufficient evidence to show that the provision of the fixed-term deposit information was an administrative error on the part of the applicant’s migration agent. At [29] of its reasons, when referring to the applicant’s migration agent, the Tribunal found as follows:

   29. He has provided no evidence to support the argument in terms of here is the name of the other person, here is how the file could have got messed up, here is a statement from an employee, here is a statement from anyone with any detail that would provide any meaningful resolution other than to say, well, we terminated her. We terminated that woman from our employment because this was so important.

8. On the question of waiver of the PIC 4020 criteria, the Tribunal at [32] – [34] inclusive of its reasons set out why no compassionate or compelling circumstances had been established. Its reasons were as follows:

   32. So I find that you have created a breach of PIC 4020 and, therefore, do not satisfy PIC 4020(1). And then turn my attention to whether or not it should be waived. Because, as I explained to you, it can be waived if there are compelling circumstances that affect the interests of Australia or compassionate or compelling circumstances that affect the interests of an Australian citizen, permanent resident or an eligible New Zealand citizen that justify the granting of the visa.

   33. When I put that to you and asked whether there were such circumstances you spoke at length about the fact that you wanted to study, you wanted to complete your study. It was not your fault at all. You have been and wish to continue to contribute to the economy by working, paying fees. You believe that any decision that results in your not receiving a visa you say would be unfair. You have almost finished. Your father started a building company 12 months ago, you are keen to go back and help and particularly at this stage with your father aged 65 and currently suffering from COVID you are keen to get back there.

   34. The tribunal does not believe that any of those things could be classified as compassionate or compelling circumstances that affect Australia or an Australian citizen, permanent resident or an eligible New Zealand citizen.

   Grounds of Review

9. On 26 August 2022, the applicant filed an Originating Application for Review of the decision of the Tribunal. The hand-written grounds of review were as follows:

   1.I Parul Gupta originally from India and currently living in Australia.

   2.I came to Australia to study and get an opportunity to choose a course which could enhance my skills as a painter, therefore I choose the further study options.

   3.My application was refused by the department, and I applied for review of the decision of the AAT.

   4.I applied for review to the Administrative Appeals Tribunal however the decision was affirmed by the member. I believe that the tribunal has made a jurisdictional error by not considering facts but merely assumptions to affirm the decision.

   5.I believe that the tribunal has fell into jurisdictional error by acting irrationally while considering review application. Therefore, I am now seeking justice from the Honourable Federal Circuit Court as I believe that there was a jurisdiction ever in the decision. I request Federal Circuit Court review and consider my case.

10. At the hearing before the Court, the applicant relied upon the application and her affidavit filed on 26 August 2022. The affidavit largely restated what was contained in her grounds of review. Oral submissions made by the applicant at the time of the hearing emphasized her claim that it was her agent’s fault that an inaccurate document was provided to the Department, and that she shouldn’t be punished for her agent’s mistake. She also noted that it had been more than three years since the visa refusal decision.

11. In respect of Grounds [1] – [3], it is clear that the Tribunal had regard to the contents of the statutory declarations of herself and her agent which had been provided to the Tribunal. It is also clear that the Tribunal considered that the applicant’s oral evidence contradicted the evidence in the statutory declarations. No jurisdictional error was established by reason of such grounds of review.

12. The only ground which could conceivably constitute a particularised ground of review was Ground 5, in which it was asserted that the Tribunal had fallen into jurisdictional error because it had acted irrationally. Ground 5 was otherwise an unparticularised claim that the Tribunal had acted irrationally. Quite apart from the ground being so imprecise and meaningless so as to give rise to a reason for dismissal of the ground as an abuse of the process of the Court, the applicant seeks an impermissible merit review, and has not demonstrated any extreme illogicality in the Tribunal’s decision-making process. The Tribunal appropriately considered the evidence before it and made a coherent and reasoned decision.

13. In CQG15 v Minister for Immigration and Border Protection (2016) 253 FCR 496 at [60] the Full Court of the Federal Court (McKerracher, Griffiths and Rangiah JJ) set out the relevant principles relating to irrationality and illogicality at [60] – [61] as follows:

    “[60] In Minister for Immigration and Border Protection v SZUXN (2016) 69 AAR 210, Wigney J collected the following relevant principles (at [52] and [54]-[56]):

    52 As Robertson J put it in Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99 at 137 [148], for a decision to be vitiated for jurisdictional error based on illogical or irrational findings of fact or reasoning, “extreme” illogicality or irrationality must be shown, “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”. And as McKerracher J (with whom Reeves J agreed) emphasised in SZOOR v Minister for Immigration & Citizenship (2012) 202 FCR 1 (at 22-23 [84]), a decision cannot be said by a reviewing court to be illogical, irrational or unreasonable simply because one conclusion has been preferred to another possible conclusion.

    …

    54 … The judgment of Crennan and Bell JJ in SZMDS reveals that jurisdictional error may be able to be established on the basis of illogical reasoning or illogical or irrational findings “on the way” to the final conclusion (see 648 [132]): see also SZRKT at 137-138 [151]-[153]; SZWCO v Minister for Immigration and Border Protection [2016] FCA 51 at [61]-[62].

    55 Nevertheless, allegations of illogical or irrational reasoning or findings of fact must be considered against the framework of the inquiry being whether or not there has been jurisdictional error on the part of the Tribunal: SZRKT at 137 [148]. The overarching question is whether the Tribunal’s decision was affected by jurisdictional error: SZRKT at 137-138 [151]. Even if an aspect of reasoning, or a particular factual finding, is shown to be irrational or illogical, jurisdictional error will generally not be established if that reasoning or finding of fact was immaterial, or not critical to, the ultimate conclusion or end result: Minister for Immigration and Citizenship v SZOCT (2010) 189 FCR 577 at 598-599 [83]-[84] (Nicholas J); SZNKO v Minister for Immigration and Citizenship [2013] FCA 123 at [113]. Where the impugned finding is but one of a number of findings that independently may have led to the Tribunal’s ultimate conclusion, jurisdictional error will generally not be made out: SZRLQ v Minister for Immigration and Citizenship (2013) 135 ALD 276 at 291 [66]; SZWCO at [64]-[67].

    56 An irrational or illogical finding, or irrational or illogical reasoning leading to a finding, by the Tribunal that the review applicant was not a credible or honest witness may in some circumstances lead to a finding of jurisdictional error. That would particularly be the case where the adverse credibility finding was critical to the Tribunal’s decision that it was not satisfied that the applicant met the criteria for the grant of a visa. Whilst it is frequently said that findings as to credit are entirely matters for the Tribunal, such findings do not shield the Tribunal’s decision-making processes from scrutiny: SZSHV v Minister for Immigration and Border Protection [2014] FCA 253 at [31]. Considerable caution must, however, be exercised before too readily acceding to a proposition that adverse findings as to credit expose jurisdictional error: SZVAP v Minister for Immigration and Border Protection (2015) 233 FCR 451 at 455-456 [14]-[15]. That is because assertions of illogicality and irrationality can all too readily be used to conceal what is in truth simply an attack on the merits of the Tribunal’s findings and decision. In SZMDS, Crennan and Bell JJ (at 636 [96]) made it plain that the deployment of illogicality or irrationality to achieve merits review should not be sanctioned.

    [61] For present purposes, there is a difficulty for the appellant in demonstrating “extreme” illogicality. Even emphatic disagreement with the Tribunal’s reasoning would not be sufficient to make out illogicality, according to SZMDS (at [124]). Although the appellant contends that the implausibility and inconsistencies were only “minor”, his Honour disagreed (at [26]-[27]).”

14. The applicant has failed to establish jurisdictional error on the part of the Tribunal.

15. The Grounds of Review are without merit and are dismissed.

16. The Court will hear the parties as to costs.

I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Egan.

Associate:

Dated:       2 December 2024