He v Minister for Immigration and Multicultural Affairs
[2025] FedCFamC2G 568
•23 April 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
He v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 568
File number(s): BRG 57 of 2024 Judgment of: JUDGE COULTHARD Date of judgment: 23 April 2025 Catchwords: MIGRATION – Student (Temporary) (Class TU) (subclass 500) visa – judicial review of a decision of the Administrative Appeals Tribunal – failure to inquire – procedural fairness – no jurisdictional error established – application dismissed Legislation: Migration Act 1958 (Cth) ss 5; 352; 359A; 360; 476; 494D
Migration Regulations 1994 (Cth) cl 500.217
Public Interest Criterion 4020
Cases cited: Faruque v Minister for Immigration and Border Protection [2015] FCA 1198
Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 83 ALJR 1123
SZOIN v Minister for Immigration and Citizenship [2011] FCAFC 38; (2011) 191 FCR 123
Trivedi v Minister for Immigration and Border Protection [2014] FCAFC 42; (2014) 220 FCR 169
Verma v Minister for Immigration and Border Protection [2018] FCAFC 87; (2018) 262 FCR 514
Division: Division 2 General Federal Law Number of paragraphs: 49 Date of last submission/s: 10 April 2025 Date of hearing: 10 April 2025 Place: Brisbane Counsel for the Applicant: The applicant appeared in person unrepresented Solicitor for the First Respondent: Ms Tran - Sparke Helmore Lawyers Solicitor for the Respondents: The second respondent filed a submitting appearance, save as to costs ORDERS
BRG 57 of 2024 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: LUNWEI HE
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE COULTHARD
DATE OF ORDER:
23 APRIL 2025
THE COURT ORDERS THAT:
1.The application is dismissed.
2.The Applicant is to pay the First Respondent’s costs, 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 COULTHARD
INTRODUCTION
Before the Court, is an application for judicial review of a decision of the then Administrative Appeals Tribunal (“the Tribunal”) by which the Tribunal affirmed a decision of a delegate of the Minister for Home Affairs, (as the Minister was then called) (“the delegate”), to refuse to grant the applicant a Student (Temporary) (Class TU) (subclass 500) visa.
BACKGROUND
Application for a visa and the delegate’s decision
The applicant is a citizen of China. On 7 May 2018, the applicant made an application for a student visa (Court Book (“CB”) 1-40). The application was submitted by [email protected] as a self-registered user (“first visa application”). Several documents were submitted with the first visa application including identity documents (CB 23-31), academic documents (CB 32-35) and employment documents (CB 36-40) (“the documents”). The documents contained the applicant’s identity number as 22010219951023107X. The visa application also stated that the applicant’s identity number as it appeared on his national identity card was 22010219951023107X. The applicant was granted the student visa on 18 May 2018. The visa ceased on 4 September 2021.
On 30 August 2021, the applicant applied for a Student (Temporary) (Class TU) (subclass 500) visa (“the visa”) to undertake a Diploma of Leadership and Management (CB 48-63). The application was submitted by a migration agency, Hutai Immigration, Finance and Tax Advisory. The applicant appointed Mr Jingxin Wu of Hutai Immigration to act as his authorised recipient (“the first migration agent”/ “Mr Jingxin Wu”) and provided the email [email protected] as the address to which communications were to be addressed (CB 52-53).
On 12 December 2022, the Department sent a letter addressed to the applicant by email to [email protected] inviting the applicant to comment on adverse information that may lead to a decision to refuse his application for a student visa (“the s 57 invitation”) (CB 75-79). The Department stated that as there was evidence suggesting the applicant had provided or caused to be provided a bogus document or false or misleading information in relation to his first visa application, he may fail to satisfy Public Interest Criterion (“PIC”) 4020(1) with the result that his visa application may be refused. The s 57 invitation listed and described the six documents in which the applicant’s identity number was stated to be 22010219951023107X and which the applicant had provided with his first visa application. The s 57 invitation also stated that a Departmental officer had contacted a representative of the Public Security Bureau of Meihekou City (“the Public Security Bureau”) who had advised that the identity number the applicant had provided with the documents does not exist in the Public Security Bureau’s system. The applicant was provided 28 days within which to comment on the adverse information. The applicant did not respond.
On 7 February 2023, the Department sent a letter addressed to the applicant by email to [email protected] notifying the applicant that a delegate of the Minister had refused to grant the applicant the visa. The decision record listed and described the six documents in which the applicant’s identity number was stated to be 22010219951023107X and stated that a Departmental officer had contacted a representative of the Public Security Bureau who had advised that the identity number 22010219951023107X did not exist in the Public Security Bureau’s system. The decision record also stated that the applicant had been provided with 28 days within which to provide comment on the suspected ‘non-genuine’ information provided to the Department and that the applicant had not responded. The decision record stated that on the basis of the information before it, the delegate found that the applicant had given or caused to be given a bogus document within the meaning of s 5(1) of the Migration Act 1958 (Cth) (“the Act”) within 12 months of the visa application being lodged and that the delegate was therefore not satisfied that the applicant meets PIC 4020(1) and cl 500.217 in Schedule 2 of the Migration Regulations 1994 (Cth) (“the Regulations”) (“the delegate’s decision”) (CB 84-88).
Application for review to the Administrative Appeals Tribunal
On 27 February 2023, the applicant applied to the Tribunal for a review of the delegate’s decision (CB 89-96). The applicant appointed a registered migration agent to act as his representative and authorised recipient. The application provided the name of the migration agent as Mrs Shiran Wang of Huatai Immigration (“the second migration agent”/ “Mrs Shiran Wang”) and provided the email address [email protected] (CB 93). The application attached a copy of the delegate’s decision (CB 95).
The applicant also filed an Appointment of Representative/Appointment of Authorised Recipient – Migration Division form. In that form, the applicant nominated Mrs Shiran Wang as his agent and authorised recipient and provided the email address [email protected] (CB 97-98). It is apparent that the email address in the application for review contains a typographical error and that the email address provided in the Appointment of Representative/ Appointment of Authorised Recipient – Migration & Refugee Division form was the correct email address. This is apparent from the fact that the Tribunal, as noted below, corresponded with Mrs Shiran Wang at the email address provided in the Appointment of Representative/ Appointment of Authorised Recipient – Migration & Refugee Division form and Mrs Shiran Wang responded to the Tribunal using that email address.
On 28 February 2023, the Tribunal sent an email to Mrs Shiran Wang at the email address [email protected] attaching a letter addressed to the applicant acknowledging receipt of the application for review and advising the applicant that should he wish to provide material or written arguments for consideration, he should do so as soon as possible (CB 101-102). The letter stated that the Tribunal had requested the Department to provide it with all their documents and files relevant to the applicant’s application. Neither the applicant nor Mrs Shiran Wang responded. As will be considered later, it transpires that the Department did not provide its file to the Tribunal.
On 8 September 2023, the Tribunal sent an email to Mrs Shiran Wang at the email address [email protected] attaching a letter addressed to the applicant inviting him to attend a hearing on 13 October 2023 to give evidence and present arguments relating to the issues arising in his case (CB 105-107). The letter requested the applicant to provide by 6 October 2023 all documents on which he intended to rely to support his case and stated that the applicant should have regard to the reasons set out by the Department for its decision.
On 8 September 2023, the Tribunal received an email from Mrs Shiran Wang sent from the email address [email protected] which stated “I will be out of office due to personal reasons from 07 September 2023 to 11 September 2023. I will be back to the office on 12 September 2023.”
On 9 September 2023, the applicant completed and sent to the Tribunal an Appointment of Representative/Appointment of Authorised Recipient – Migration & Refugee Division form in which he appointed a new migration agent, Ms Yifan Gao to act as his representative and authorised recipient (“the third migration agent”/ “Ms Yifan Gao”) and provided the email address [email protected] (CB 109-110).
On 12 September 2023, Ms Yifan Gao provided the Tribunal with a completed Response to Hearing Invitation form which stated that the applicant would be attending the hearing and that she would not be attending (CB 111-113).
Then, on 10 October 2023, Ms Yifan Gao sent an email to the Tribunal (CB 114) stating that:
I am writing on behalf of the above client whose hearing will be held at 10:30 (QLD time) on 13 October 2023. Due to some personal reasons, the client is unable to attend as scheduled. The client prefers Member make the decision based on the submissions.
On 12 October 2023, the Tribunal responded by email sent to the email address [email protected] advising that it was necessary to complete and resubmit the Response to Hearing Invitation form confirming the applicant’s non-attendance at the hearing and requesting a decision on the papers by close of business on 12 October 2023 (CB 115).
On 12 October 2023, Ms Yifan Gao sent an email to the Tribunal attaching a Response to Hearing Invitation form which she said she had signed on behalf of the applicant. The form stated in respect of the applicant “No. I will not participate in the hearing, and consent to the Tribunal making a decision on the papers without taking further steps to allow me to appear” (CB 116-121).
On 8 January 2024, the Tribunal affirmed the delegate’s decision. On 10 January 2024, the Tribunal sent an email to Ms Yifan Go at [email protected] attaching a letter addressed to the applicant notifying him of the Tribunal’s decision and attaching a copy of the reasons for decision (“Decision”) (CB 125-130).
THE TRIBUNAL DECISION
The Tribunal first referred to the applicant’s response to hearing invitation submitted on 12 October 2023 in which the applicant stated that he would not participate in the hearing and that he consented to the Tribunal making a decision on the papers without taking further steps to allow him to appear ([4]). The Tribunal said that it was satisfied that the necessary consent had been given under s 360(2)(b) of the Act and that, pursuant to s 360(3), the review applicant was no longer entitled to appear before it. The Tribunal stated that the matter had therefore been determined on the evidence available to the Tribunal ([5]).
The Tribunal identified that the issue on review was whether the visa applicant meets Public Interest Criterion 4020 (PIC 4020) as required by cl 500.217(1) for the grant of the visa. The Tribunal summarised the requirements of PIC 4020 with respect to an applicant giving or causing to be given a bogus document or information that is false or misleading in a material particular in relation to the application for the visa or a visa that the applicant held in the 12 months before the application was made ([7]). The Tribunal stated that pursuant to PIC 4020(4) the requirements in PIC 4020(1) and (2) can be waived if there are certain compelling or compassionate reasons justifying the granting of the visa but noted that this waiver does not apply to the identity requirements in PIC 4020(2A) and (2B) ([8]).
The Tribunal then set out the meaning of the term “information that is false or misleading in a material particular” as defined in PIC 4020(5) and the term “bogus document” as defined in s 5(1) of the Act and referred to relevant authorities and legal principles including that PIC 4020 applies whether or not the document or information was provided by the applicant knowingly or unwittingly ([9]-[11]).
The Tribunal then went on to set out an extract from the delegate’s reasons for refusing to grant the applicant a visa. The extract set out the details of the documents provided by the applicant including the identity number provided on those documents, the contact the Department had made with a representative of the Public Security Bureau and the results of that contact ([12]).
The Tribunal stated that the applicant had not provided any information to the Department, nor to the Tribunal that refuted the results of the Department's investigation and that, nor had the applicant provided an explanation as to why he did not respond to the Department’s letter of 12 December 2022 (which was the s 57 invitation) (CB 75-79) ([13]).
The Tribunal concluded that in those circumstances, based on the results of the investigation undertaken by the Department, it was satisfied on the balance of probabilities that the applicant had submitted to the Department, a bogus document in relation to a visa held within 12 months of the lodgement of the applicant’s current student visa application, being the documents listed in the delegate’s decision ([14]). The Tribunal concluded that the applicant did not meet PIC 4020(1) ([15]).
The Tribunal then considered whether the requirements of PIC 4020(1) or (2) should be waived and set out the circumstances in which the requirements may be waived and referred to relevant authority ([17]). The Tribunal said that it was not satisfied that the requirements should be waived ([18]; [21]). The Tribunal said there was no evidence before it that there were compelling circumstances affecting the interests of Australia and, nor was it submitted by the applicant that such circumstances exist ([19]), and there was no evidence before the Tribunal that there were compassionate or compelling circumstances affecting the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen and nor was it submitted by the applicant that such circumstances exist ([20]).
The Tribunal concluded that the applicant did not satisfy PIC 4020 for the purposes of cl 500.217(1) ([22]) and affirmed the decision not to grant the applicant a Student (Temporary) (Class TU) visa ([23]).
PROCEEDINGS IN THIS COURT
These proceedings were commenced pursuant to s 476(1) of the Act by application filed on 12 February 2024. The applicant also filed an affidavit on 12 February 2024. The affidavit annexes copies of the applicant’s passport; the visa application lodged on 30 August 2021; the delegate’s decision; the Tribunal’s acknowledgment of the application for review; the Tribunal’s hearing invitation; and the Tribunal’s decision. The applicant also deposes in his affidavit to matters about the making of his first visa application which are considered below.
Procedural orders were made permitting the applicant to file and serve an amended application with proper particulars and any additional evidence on which he sought to rely and requiring the applicant to file and serve written submissions. The first respondent was ordered to file and serve written submissions and any additional evidence on which it sought to rely. Orders were also made as to the preparation, filing, and service of a Court Book. At the hearing the applicant sought leave to rely upon written submissions which he had not filed or served. Leave was granted.
The material before the Court was the application, the applicant’s affidavit, the first respondent’s response, the applicant’s written submissions, the first respondent’s written submission and the Court Book. Before the hearing commenced, the Court confirmed with the applicant that he had these documents with him in Court. The Court Book was made an exhibit in the proceedings.
The applicant appeared in person unrepresented. The applicant had the assistance of an interpreter in the Mandarin and English languages.
CONSIDERATION
For the applicant to be successful the Court must be satisfied that the Tribunal’s decision is affected by material jurisdictional error.
The Court explained to the applicant that the role of the Court was limited to determining whether the Tribunal had made a legal or procedural error and that the role of the Court on judicial review is not to decide whether on the evidence before the Tribunal the Court considers that the applicant should or should not be granted the visa.
Despite procedural orders permitting him to do so, the applicant did not file an amended application. The grounds of review set out in the application are (without alteration):
1. During the process of the decision making, the Second Respondent failed to maintain “reasonableness”. More specifically, before making the ultimate decision, the Second Respondent failed to make reasonable inquiries to the First Respondent in obtaining and inspecting the decisive documents submitted by the Applicant.
2. The Applicant was alleged of providing “bogus documents” to the First Respondent for his first student visa application, and thus his second student was refused as he fails to satisfy the First Respondent of Public Interest Criterion (PIC) 4020.
3. The documents in question are listed as follows:
a.a notarised birth certificate for Lunwei He (dob 23/10/1995), reference (2018) JCGAZZI, No. 04821 issued by the Changchin Guoan Notary Public Office, Jilin Province and Notarised by Wang Li Jin on 02 April 2018. The certificate states that the applicant’s identity number is 22010219951023107X.
b.a copy of their Household Register No. 236003582 issued on 21 September 2012 that states their identity number is 22010219951023107X.
c.a copy of their National Identity Card with valid period 30 March 2017 to 30 March 2027 that states their identity number is 22010219951023107X.
d.a Notarised Graduation Certificate for Lunwei He (23/10/1995, M): reference (2018) J CG A Z ZI, No. 04823 issued by the Changchin Guoan Notary PublicOffice, Jilin Province and Notarised by Wang Li Jin on 2 April 2018. This certificate states that the applicant’s identity number is 22010219951023107X.
e.a Notarised copy of Academic Transcripts for Lunwei HE (23/10/1995, M): reference (2018) J C G A Z ZI, No. 04822 issued by the Changchin Guoan Notary Public Office, Jilin Province and Notarised by Wang Li Jin on 2 April 2018. This certificate states that the applicant’s identity number is 22010219951023107X.
f.a copy of their Employment Certificate, supplied by Supervisor Shao Qiwei from the Changchun Zhongcheng Construction Engineering Co LTD dated 12 April 2018 that states their identity number is 22010219951023107X.
4. The Second Respondent has given the following reasoning for their decision, “In these circumstances, based on the results of the investigation undertaken by the Department, the Tribunal is satisfied on the balance of probabilities that the applicant has submitted to the Department, a bogus document in relation to a visa they held within 12 months of their current student visa application being lodged.”
5. The Second Respondent made the decision solely based on the Department’s results of the investigation without looking into the “bogus documents” in detail. The documents are critical to the decision, so the Second Respondent is obliged to inspect the documents rather than merely know the existence of them. The Second Respondent’s failure of making further inquiries to the First Respondent in obtaining and inspecting the “bogus documents”, and solely rely on the information provided by the First Respondent are so unreasonable given the significance of the documents.
6. Therefore, the Applicant believes the process of making the decision by the Second Respondent is without reasonableness and is unfair. The Applicant seeks the Court to quash the decision made by the Second Respondent.
At the commencement of the hearing, the first respondent identified that in the application for judicial review the applicant had not sought a writ of mandamus directed to the Tribunal requiring it to determine the applicant’s application according to law. This was explained to the applicant and leave was given for the applicant to amend his application for judicial review to seek a writ of mandamus.
Grounds two, three and four in the application restate the reasons for the Tribunal’s decision and accordingly do not identify any jurisdictional error. Grounds one, five and six raise essentially the same complaint. The Court has therefore considered those grounds together.
In addition to the grounds of review set out in the application, the applicant deposed in his affidavit filed with the application for judicial review, circumstances surrounding the lodgement of his first application for a student visa as follows (without alteration):
8.My first student visa, which is the one referred to by the Respondent 1 in the refusal letter, was managed an overseas agent from China. I submitted my documents to her and she was responsible for completing the online application and uploading documents for me.
9. My first student visa was granted successfully. However, I never had access to the application summary, nor the immiaccount login details.
10. I personally believe the agent has uploaded the wrong documents for my visa application. This leads to the Respondent 1 suspecting me in providing bogus documents.
The Court has had regard to those contentions in considering the applicant’s grounds of review.
Further, in oral submissions, the applicant also contended that the Tribunal had denied him procedural fairness because he did not receive a letter from the Tribunal asking him to make submissions. He said the process had been in the control of his migration agent. Accordingly, the applicant said that he had not been given an opportunity to “put his side of the story”. The Court has also had regard to whether the applicant was afforded procedural fairness.
Grounds one, five and six: unreasonableness because of failure to make inquiries
A preliminary point raised by the first respondent (first respondent’s written submissions (“FRS”) [23]) was non-compliance by the Secretary of the Department with s 352 of the Act. Section 352(1) requires the Registrar to notify the Secretary as soon as is practicable that an application for review has been made to the Tribunal. Relevantly, s 352(2) provides that, after being notified of the application, the Secretary must provide the Registrar within ten working days the prescribed number of copies of a statement about the decision under review and pursuant to s 352(4), as soon as practicable, provide to the Registrar the documents in the Secretary’s possession or control the Secretary considers relevant to the review of the decision. The first respondent told the Court that this requirement had not been complied with. Accordingly, the Tribunal did not have before it the six documents identified in the s 57 invitation and the delegate’s decision. The Tribunal had a copy of the delegate’s decision as it was attached to the application for review to the Tribunal (CB 95).
The Court agrees with the first respondent’s submission that non-compliance with s 352 does not amount to a jurisdictional error on the part of the Tribunal and that any non-compliance by the Secretary did not vitiate the Tribunal’s decision (FRS [23]) referring to SZOIN v Minister for Immigration and Citizenship [2011] FCAFC 38; (2011) 191 FCR 123).
The applicant’s complaint in grounds one, five and six is that the Tribunal’s decision was unreasonable or unfair because instead of accepting the outcome of the Department’s investigation into the bogus nature of the documents, the Tribunal should have reviewed the documents itself and made its own direct inquiries. The applicant submits that without doing so the Tribunal could not have reached the state of satisfaction required to find that he did not satisfy the requirements of PIC 4020(1).
The Tribunal did not have the six documents before it. However, the Court is satisfied that, in the circumstances of this case, a failure to inquire about or obtain a copy of the documents did not result in the Tribunal’s decision being affected by jurisdictional error because:
(a)The documents were clearly identified in the s 57 invitation from the Department to the applicant (CB 76) which was repeated in the delegate’s decision of which the Tribunal had a copy (CB 86). The investigation made by the Department and the result of that investigation arising from its inquiry to the Public Security Bureau was also set out in the s 57 invitation and repeated in the delegate’s decision;
(b)The Tribunal considered that information as set out in its reasons for Decision ([12]-[13]);
(c)The information was uncontested by the applicant. He did not provide any information to the Tribunal or the Department refuting the results of the Department’s inquiry to the Public Security Bureau. The applicant did not respond to the s 57 invitation or make any submissions to the Tribunal;
(d)There was no information before the Tribunal that could reasonably have indicated that obtaining copies of the documents or making a further inquiry of the Public Security Bureau or making any other inquiry would have resulted in a different outcome (FRS [25] referring to Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 83 ALJR 1123 at [25]-[26]);
(e)The Tribunal was entitled to rely upon the outcome of the Department’s investigations in circumstances where there was no evidence provided by the applicant or otherwise to suggest that the information provided by the Public Security Bureau was wrong (FRS [29] referring to Faruque v Minister for Immigration and Border Protection [2015] FCA 1198 at [26]-[27]).
Further, the terms of PIC 4020(1) and (4) and the definition of bogus document in s 5(1) of the Act did not require the Tribunal to make a positive finding that there was evidence before it that the applicant had given or caused to be given bogus documents to the Minister. The Tribunal was required to be satisfied that there was no evidence that that the applicant had given, or caused to be given, a bogus document to the Minister. Where, as here, there existed evidence that the applicant had given or caused to be given bogus documents with his first visa application, the requirements of PIC 4020(1) could not be met. The Court agrees with the first respondent’s submission to this effect (FRS [28] referring to referring to Verma v Minister for Immigration and Border Protection [2018] FCAFC 87; (2018) 262 FCR 514 at [37]). The outcome of the inquiry by the Department was probative evidence for the purposes of PIC 4020.
In his affidavit and submissions to this Court, the applicant contends that the first visa application was lodged on his behalf by an overseas Chinese education agent and that he did not have access to the online application, his immiaccount login details and that nor did he submit or view the documents uploaded with his application. The applicant did not make this contention either to the Department or to the Tribunal. Accordingly, the Tribunal could not have taken this contention into consideration in making its decision. In any event, the following points are to be made:
(a)Apart from the applicant’s assertion as to the involvement of an overseas Chinese education agent, there is no evidence before the Court that such an agent was involved. The applicant has not provided, for example, the name of the agent or any correspondence he had with the agent regarding his first visa application;
(b)The first visa application form was not, on its face, lodged by an agent. The information at the foot of the first page of the application is that the application was submitted by [email protected] as a self-registered user (CB 1) and does not provide an authorised recipient (CB 6);
(c)In his second visa application, as noted above, the applicant appointed the first migration agent as his authorised recipient and provided the email address, [email protected] as the address to which communications were to be addressed (CB 52-53). To be clear, this was not the Chinese education agent the applicant said had lodged the first visa application and uploaded the documents. Pursuant to s 494D of the Act, the Minister was required to give the first migration agent, as the authorised recipient, any documents in connection with the visa application that the Minister would otherwise have given to the applicant. That is what the Department did: the s 57 invitation and the delegate’s decision were sent to the first migration agent at the email address provided.
In his affidavit (at para. 10) the applicant said he believed that the agent uploaded the ‘wrong documents’. The applicant told the Court that he had no idea that the Chinese education agent had uploaded the ‘wrong documents’ as he did not have access to the agent’s emails. This contention was not made to either the Department or the Tribunal. In any event, the Tribunal was clearly cognisant of the principle that an element of fraud or deception is necessary to attract the operation of PIC 4020. The Tribunal referred to the decision of the full court of the Federal Court in Trivedi v Minister for Immigration and Border Protection [2014] FCAFC 42; (2014) 220 FCR 169. At [43] of the decision, Buchanan J (Allsop CJ and Rangiah J agreeing) said that it is not necessary to show knowing complicity by a visa applicant. Then at [49] his Honour said:
[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. …
Finally, so far as the applicant might now to be understood to be alleging fraud on the part of an unidentified overseas Chinese education agent, the applicant has not filed any evidence upon which a finding of fraud could be made. Accordingly, the Court is not able to make any such finding.
No jurisdictional error is established on either of grounds one, five or six or by reason of the matters raised in the applicant’s affidavit with respect to the alleged involvement of a Chinese education agent or his alleged lack of knowledge about the documents uploaded with his first visa application.
Procedural fairness
The applicant did not raise in his application for judicial review the ground of procedural fairness. He raised it at the hearing before this Court. As noted above, the applicant’s complaint was that the Tribunal did not give him a meaningful opportunity to be heard.
The Court is satisfied that the Tribunal complied with its procedural fairness obligations in Division 5 of Part 5 of the Act (as then applied) and which are an exhaustive statement of the Tribunal’s obligations in respect of the matters there dealt with. This is because:
(a)The Tribunal’s obligations under s 359A were not enlivened. The information regarding the documents, their bogus nature, the inquires made by the Department and the results of those inquiries was set out in the delegate’s decision. A copy of the delegate’s decision was attached to the application for review to the Tribunal (CB 95). Accordingly, the information was information given by the applicant for the purpose of the review (s 359A(4)(b));
(b)Prior to the hearing, the Tribunal invited the applicant to provide material or written arguments (CB 101-102). This invitation was sent to the email address of the second migration agent appointed by the applicant and who was authorised to receive communications on behalf of the applicant (CB 99-100);
(c)Pursuant to s 360 of the Act, the Tribunal invited the applicant to attend a hearing to give evidence and present arguments relating to the issues arising in relation to the decision under review which were those identified in the delegate’s decision (CB 104). The hearing invitation also invited the applicant to provide all documents he intended to rely upon at the hearing. The hearing invitation was sent to the email address of the second migration agent;
(d)The applicant’s third migration agent sent a response to hearing invitation to the Tribunal stating that the applicant will not participate in the hearing and that he consented to the Tribunal making a decision on the papers (CB 118-121). The applicant was accordingly not entitled to appear before the Tribunal (s 360(3) of the Act).
For the reasons above, no jurisdictional error is established on the ground of procedural fairness.
CONCLUSION
Accordingly, for the reasons given above, the application is dismissed.
I certify that the preceding forty-nine (49) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Coulthard. Associate:
Dated: 23 April 2025
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