He v Minister for Immigration and Multicultural Affairs

Case [2025] FedCFamC2G 568

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

  1. 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

  2. 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 helunwei@aliyun.com 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…

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He v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 568
Case
[2025] FedCFamC2G 568
Decision Date

CaseChat Overview and Summary

The applicant, a citizen of China, sought judicial review of a decision by the Administrative Appeals Tribunal (the Tribunal) affirming a decision by a delegate of the Minister for Home Affairs to refuse his application for a Student (Temporary) (Class TU) (subclass 500) visa. The Tribunal's decision was based on the finding that the applicant had provided or caused to be provided a bogus document or false or misleading information in relation to a previous visa application, which led to the refusal of the current visa application. The applicant argued that the Tribunal failed to make reasonable inquiries into the documents in question and that the decision was therefore unreasonable and unfair.

The legal issues before the Court were whether the Tribunal's decision was affected by material jurisdictional error, specifically whether the Tribunal failed to maintain reasonableness by not making further inquiries into the documents that were central to the decision, and whether the Tribunal's decision was based on procedural fairness. The Court noted that its role was limited to determining whether the Tribunal had made a legal or procedural error and not to reassess the evidence or decide whether the applicant should be granted the visa.

The Court found that the Tribunal had adequately considered the evidence before it, including the results of the Department's investigation that the applicant's identity number did not exist in the Public Security Bureau's system. The Court held that the Tribunal was not required to inspect the documents in detail but could rely on the Department's findings. The Court also found that the applicant's failure to respond to the Department's invitation to comment on the adverse information did not affect the fairness of the Tribunal's decision. Consequently, the Court dismissed the application for judicial review, finding no material jurisdictional error in the Tribunal's decision.

Orders

Orders of the court

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Background

Background to the litigation

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.BACKGROUNDApplication 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 helunwei@aliyun.com 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 sinopacific@yahoo.com 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 sinopacific@yahoo.com 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 sinopacific@yahoo.com 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

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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 Ht308405411@gmail.com 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]).

Ratio Decidendi

Legal Principle Established

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.