Kaur v Minister for Immigration and Citizenship

Case [2025] FedCFamC2G 1526

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Kaur v Minister for Immigration and Citizenship [2025] FedCFamC2G 1526   

File number(s): ADG 75 of 2022
Judgment of: JUDGE GERRARD
Date of judgment: 19 September 2025
Catchwords: MIGRATION – student visa – decision of the Administrative Appeals Tribunal – consideration of PIC 4020 – whether Tribunal erred in referring to its finding on PIC 4020(1) or the circumstances underpinning its conclusion in that regard in making a finding on PIC 4020(4) – no jurisdictional error established – application dismissed
Legislation:

Migration Act 1958 (Cth) ss 375A, 476

Migration Regulations 1994 (Cth) cl 500.217 in Schedule 2 and PIC 4020 in Schedule 4

Cases cited:

BKT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 384

Craig v State of South Australia (1995) 184 CLR 163

Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21

DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784

Kaur v Minister for Immigration and Citizenship [2025] FCA 931

Le v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1694

Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437

Minister for Immigration and Citizenship v Li (2013) 249 CLR 332

Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259

MZAIB v Minister for Immigration and Border Protection [2015] FCA 1392

Singh v Minister for Immigration and Border Protection [2016] FCCA 774

SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 294

SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80

Trivedi v Minister for Immigration and Border Protection (2014) 220 FCR 169

Vyas v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCCA 1226

Division: Division 2 General Federal Law
Number of paragraphs: 62
Date of last submission/s: 30 June 2025
Date of hearing: 16 June 2025
Place: Adelaide
Applicants: First applicant appeared self-represented and on behalf of the second applicant
Counsel for the First Respondent: Alex Chan
Second Respondent: Submitting appearance, save as to costs
Solicitor for the Respondents: Sparke Helmore

ORDERS

ADG 75 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:

JASLEEN KAUR

First Applicant

VARINDER VIRK

Second Applicant
AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:

JUDGE GERRARD

DATE OF ORDER:

19 SEPTEMBER

THE COURT ORDERS THAT:

1.The application be dismissed.

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 24.04(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth)), or to record a variation to the order pursuant to r 24.04 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth).

REASONS FOR…

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AGLC
Kaur v Minister for Immigration and Citizenship [2025] FedCFamC2G 1526
Case
[2025] FedCFamC2G 1526
Decision Date

CaseChat Overview and Summary

The applicants, citizens of India, sought judicial review of a decision by the Administrative Appeals Tribunal (AAT) that refused their application for student visas. The applicants had previously held student visas and applied for new ones, but the delegate of the Minister found that the primary applicant had provided false or misleading information in her application, breaching Public Interest Criterion (PIC) 4020(1). The AAT upheld the delegate’s decision, and the applicants sought review of the AAT’s decision, arguing that the Tribunal erred in its consideration of PIC 4020(4).

The court was required to determine whether the AAT had erred in its consideration of PIC 4020(4) in light of its earlier findings on PIC 4020(1). The applicants argued that the Tribunal had erred in referring back to its finding on PIC 4020(1) or the circumstances underpinning its conclusion in that regard when making a finding on PIC 4020(4). The court examined the relevant statutory language and case law, including Singh v Minister for Immigration and Border Protection [2016] FCCA 774 and Le v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1694. The court found that the statutory language did not suggest that the discretion in PIC 4020(4) was fettered in any way by the Tribunal’s consideration of PIC 4020(1), and that the Tribunal’s consideration of “the weight of the fraud” was responsive, in part, to the applicant’s expression of remorse.

The court found that the AAT did not fall into jurisdictional error in its consideration of PIC 4020(4) and dismissed the applicants’ application for judicial review. The court held that the AAT’s consideration of the weight of the fraud was responsive to the applicant’s expression of remorse and did not amount to an error of law. Accordingly, the application for judicial review was dismissed, and the AAT’s decision was upheld. No orders were made as to costs.

Orders

Orders of the court

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Background

Background to the litigation

For the reasons set out below, the Court has not found jurisdictional error in the Tribunal’s decision. On that basis, the application cannot succeed. BACKGROUND The applicants are citizen of India (Court Book (CB) 4-6). They first arrived in Australia on 5 March 2019 as holders of student visas (CB 207-208). On 7 March 2021, the applicants applied for the visas (CB 1-22). In that application, Ms Kaur (the applicant) indicated that she intended to study the final four subjects of her master’s degree in software engineering that was the subject of her previous student visa (CB 15, 27). Mr Virk (the second applicant), the applicant’s husband, was named as a member of the applicant’s family unit (CB 4-5). The applicants provided written submissions and other documentation in support of their application (CB 27-52) and appointed a migration agent as their authorised representative (CB 24-26). On 18 June 2021 and 19 July 2021, a delegate of the Minister invited the applicants to comment on adverse information received, namely, that the applicant had previously unsuccessfully applied for a student visa under a different name and date of birth, and had failed to disclose this in her 2021 visa application (CB 53-58). The applicants did not respond to this invitation. On 13 July 2021, the applicants’ migration agent withdrew representation (CB 59-61). On 24 August 2021, the delegate refused to grant the applicants the visas (CB 74-80). The delegate found that the applicant did not satisfy cl 500.217 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) because the applicant did not satisfy Public Interest Criterion (PIC) 4020(1). Clause 500.217 provides as follows: (1)The applicant satisfies public interest criteria 4001, 4002, 4003, 4004, 4010, 4013, 4014, 4020 and 4021. (2)If the applicant has not turned 18, public interest criteria 4012A, 4017 and 4018 are satisfied in relation to the applicant. (3)If the applicant had turned 18 at the time of application, the applicant satisfies public interest criterion 4019. (4)The applicant (other than a Foreign Affairs student or a Defence Student) satisfies public interest criterion 4005. (5)The applicant, being a Foreign Affairs student or a Defence Student, satisfies public interest criterion 4007. The relevant part of PIC 4020 in Schedule 4 of the Regulations provides:(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. The delegate found that the applicant had provided a bogus document in support of her application and therefore could not meet PIC 4020(1) in order to satisfy cl 500.217 for the grant of the visa.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

On 29 March 2022, the applicants lodged an application for judicial review in this Court (CB 205-213 ). That application seeks review of the Tribunal’s decision pursuant to s 476 of the Act.THE TRIBUNAL’S DECISION To obtain assistance from this Court, the applicants must show that the Tribunal has fallen into jurisdictional error. It is thus useful to outline the Tribunal’s decision in some detail. The Tribunal’s reasons began by identifying the visa under review, noting that the applicants had applied for the Student (Temporary) (Class TU) visas on 7 March 2021 (at [1]-[2]). The Tribunal explained that a delegate of the Minister had refused to grant the applicant the visa because the delegate found that the applicant had provided a bogus document, or information that is false or misleading, in relation to the visa application (at [2]). The Tribunal confirmed that the applicant appeared before it with her representative to give evidence and present arguments on 2 March 2022 (at [5]-[6]). The Tribunal outlined that the issue before it was whether the applicant met PIC 4020 as required by cl 500.217 of the Regulations (at [8]). The Tribunal set out the relevant legislation in that regard and noted that the requirements of PIC 4020(1) and (2) can be waived if there are certain compelling or compassionate reasons to justify granting the visa (at [9]). The Tribunal set out the ultimate question before it, which is set out as follows (at [10]):Is there evidence 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, information that is false or misleading in a material particular in relation to the application for the visa? The Tribunal also outlined the relevant definitions under PIC 4020, namely, that (at [13]-[14]):·‘information that is false or misleading in a material particular’ is defined in PIC 4020(5);·the requirements of PIC 4020(1) apply whether or not the bogus document was provided by the applicant, and whether it was done knowingly or unwittingly; and ·the Tribunal is not required to find that the applicant was aware the information was purposely untrue, however an element of fraud or deception by some person is necessary to attract that provision (Trivedi v Minister for Immigration and Border Protection (2014) 220 FCR 169) (Trivedi)). Against this background, the Tribunal set out the applicant’s statement with a history of her personal background and visa applications (at [11]). It highlighted that the applicant had a passport issued on 24 March 2015, expiring on 23 March 2025, in the name of Harpreet Kaur born in 1994, as well as a second passport issued on 4 August 2018, expiring on 3 August 2028, in the name of Jasleen Kaur born in 1997. The Tribunal confirmed the first passport was not declared at pages 3 and 17 of the visa application subject to the review (at [12]).

Ratio Decidendi

Legal Principle Established

Against that background, the applicant raised that the Tribunal erred in failing to consider that as her situation in India was not safe at the time, her and her husband made a decision to leave India. When asked, the applicant acknowledged she had assistance in preparing her judicial review application but that she understands the grounds that had been advanced. However, when invited to make any submissions at the hearing the applicant indicated that there was nothing further she wished to raise with the Court. The applicant also did not wish to make any submissions in reply to the Minister. CONSIDERATION As outlined above, the application for judicial review contains a single particularised ground. Noting that the applicants were unrepresented in this matter, the Court has endeavoured to interpret the applicants’ grounds as broadly as possible (as per the principles in MZAIB v Minister for Immigration and Border Protection [2015] FCA 1392). The Court also explored with counsel for the Minister the issue adverted to above at [46]. The Minister observed that the central question raised by the application is whether the Tribunal could refer back to its finding on PIC 4020(1) or the circumstances underpinning its conclusion on PIC 4020(1), in making a finding on PIC 4020(4). In respect of PIC 4020(1), the Tribunal had found that the applicant had provided false or misleading answers in her visa application and specifically rejected as “fanciful” her claim that responsibility for this lay with another person. In respect of PIC 4020(4) the Tribunal found, inter alia, that the weight of that fraud significantly outweighed any benefit Australia might receive from the applicant’s stated intention of pursuing a career in Australia as a software engineer. The Minister drew the Court’s attention to the following observation by Judge Emmett in Singh v Minister for Immigration and Border Protection [2016] FCCA 774 (Singh)at [60].the discretionary matters set out in PIC 4020(4) are unrelated to the content of PIC 4020(1) and (2) and reasons for any breaches thereof. Accordingly, any error in the Tribunal’s consideration of one of the three breaches of PIC 4020(1) (which I have found) would not have affected the Tribunals consideration of PIC 4020(4). In the circumstances, I do not accept the submissions of the applicant to the contrary. The Minister observed that the above statement from Judge Emmett appeared to underpin the argument in this application. However, the Minister further drew the Court’s attention to the subsequent decision of Judge Jarrett in Le v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1694 where his Honour found that Singh should not be read as a “statement of principle” and further that the statutory language does not suggest that the discretion in PIC 4020(4) is fettered in any way. The Court agrees with the Minister’s submission in this respect. In any event, the Tribunal’s consideration in respect of “the weight of the fraud” is responsive, in part, to the applicant’s expression of remorse which the applicant had wanted the Tribunal to have regard to in respect of considering compassionate or compelling circumstances.