Lhamo v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FedCFamC2G 15
•6 September 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Lhamo v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 15
File number(s): PEG 256 of 2020 Judgment of: JUDGE STREET Date of judgment: 6 September 2021 Catchwords: MIGRATION – Administrative Appeals Tribunal – application for Student (Temporary) (Class TU) Visas – whether the applicants had given, or caused to be given, a bogus document or information that is false or misleading in a material particular – Public Interest Criterion (PIC) 4020 – whether the Tribunal had probative evidence to find that the information given was purposefully false – whether the Tribunal failed to consider the totality of the requirements in cl 500.212 of the Migration Regulations 1994 – whether the Tribunal misconstrued the PIC 4020 criterion – no jurisdictional error – application dismissed Legislation: Migration Act 1958 (Cth), s 476
Migration Regulations 1994 (Cth), sch 4; cls 500.212, 500.212(a)(ii), 500.217, 500.217(1), 4020, 4020(1), 4020(5)(b)
Cases cited: Trivedi v Minister for Immigration and Border Protection [2014] FCAFC 42 Division: Division 2 General Federal Law Date of hearing: 6 September 2021 Number of paragraphs: 45 Date of hearing: 6 September 2021 Counsel for the applicant: Ms S Frankel Solicitors for the applicant: Estrin Saul Lawyers Solicitors for the first respondent: Ms B Rayment, Sparke Helmore ORDERS
PEG 256 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: YEZER LHAMO
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE STREET
DATE OF ORDER:
6 SEPTEMBER 2021
THE COURT ORDERS THAT:
1.The application is dismissed.
2.The applicants pay the first respondent’s costs fixed in the amount of $5,500.00.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review 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 STREET:
Introduction
This is an application for a constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 30 July 2020, affirming the decision of a delegate of the first respondent (“the delegate”) not to grant the applicants’ Student (Temporary) (Class TU) Visas (“the Visas”).
Background
The first applicant is a citizen of Bhutan and is the wife of the second applicant, who is included as a member of the family unit.
On 13 March 2018, the applicants applied for the Visas.
On 26 June 2018, the delegate refused the Visas. The delegate found that the applicants failed to meet the criteria because the delegate was not satisfied that the applicants met the Public Interest Criterion (“PIC”) 4020(1) contained in sch 4 of the Migration Regulations 1994 (Cth) (“the Regulations”).
In the application for the Visas, under the heading “Visa History”, there were three questions. The third question was, relevantly:
“Has the applicant, or any person included in this application, ever had an application for entry or further stay in Australia or any other country refused, or had a visa cancelled?”
Following which there is a printed answer:
“No.”
In the visa there is also a heading “Student Declarations” under which there is a warning:
“Giving false or misleading information is a serious offence.”
Underneath that, there appears:
“The applicants declare that they:
Have read and understood the information provided on the website ( regarding living and studying in Australia.”
There are also a number of other questions about the applicants’ understanding in respect of the application for the Visas.
There is then a heading “Declarations”, under which there is a warning:
“Giving false or misleading information is a serious offence.”
Under this warning there appears:
“The applicants declare that they:
Have read and understood the information provided to them in this application.”
The answer provided is “Yes”. Underneath that, there is a question:
“The applicants declare that they:
…
Have provided complete and correct information in every detail on this form and any attachments to it.”
The answer to this question appears as “Yes”. Underneath that, there is a question:
“The applicants declare that they:
…
Understand that if any fraudulent documents or false and misleading information has been provided with this application, or if any of the applicants fail to satisfy the Minister of their identity, the application may be refused and the applicant(s), and any member of their family unit, may become unable to be granted a visa for a specified period of time.”
There is an answer “Yes” to this question. Then there is a question:
“The applicants declare that they:
…
Understand that if documents are found to be fraudulent or information to be incorrect after the grant of a visa, the visa may subsequently be cancelled.”
The answer to this question was “Yes”.
Before the Tribunal
Following the refusal of the application for the Visas by the delegate on 26 June 2018, the applicants lodged an application for review by the Tribunal on 16 July 2018.
By letter dated 6 July 2020, the applicants were invited to attend a hearing on 27 July 2020. The applicants appeared before the Tribunal on that date to give evidence and present arguments.
In its reasons, the Tribunal identified the background to the review application. The Tribunal identified that, in this review, whether the applicants meet PIC 4020 was a requirement under cl 500.217(1) of the Regulations for the grant of the Visas, and set out the gist of those requirements. The Tribunal identified that the PIC criteria can be waived if there are certain compelling or compassionate reasons justifying the granting of a visa.
The Tribunal turned to the question of whether or not the applicants had given, or caused to be given, a bogus document or information that is false or misleading in a material particular. The Tribunal made reference to the question, to which the Court has earlier referred, as to whether the applicants had ever had any application for entry or further stay in Australia, or any other country refused or a visa cancelled, to which the applicants have answered “No”.
The Tribunal identified that the second applicant admitted that he had twice been refused a visa as an accompanying family member of the applicant. Those applications were refused in April 2014 and November 2014.
The Tribunal noted that there is no dispute that the visa refusals occurred before the applicants submitted the impugned application for the Visas on 13 March 2018. The Tribunal noted that the first applicant accepted that she was aware that the visa refusals had occurred, and that she failed to declare them in the relevant section of the application.
The Tribunal referred to the representative’s contention that this was just negligence and the first applicant lacking presence of mind when the impugned answer was given, and that because of the applicant’s state of mind, she had misunderstood the question.
Taking into account the first applicant’s alleged belief as to her visa history, including the successful grant of a visa, the Tribunal identified that the response by the first applicant defies the ordinary meaning of the question to which the first applicant gave the false answer. The Tribunal found the first applicant’s explanation for giving the false answer to be unpersuasive.
The Tribunal referred to the contention that it was not a purposively false answer because the first applicant had declared the visa refusals in past visa applications. The Tribunal referred to the contention advanced that the answer was not purposely false, was unintentional, negligent, and reflected a misunderstanding of the question.
The Tribunal referred to the applicant’s evidence as to her presence of mind and inability to understand the question being the result of several distressing circumstances and various personal pressures. The Tribunal identified those alleged pressures and circumstances, including the attendance of her mother almost a year before. The Tribunal also referred to the first applicant advancing her goals in relation to her studies, but found that the evidence does not satisfy the Tribunal that the first applicant was unable to focus on and manage the important aspects of her day-to-day life.
The Tribunal referred to the fact that, from August 2017, the first applicant had sufficient presence of mind to be able to competently attend what was important to her, and that she travelled to Bhutan and returned to Australia for the purpose of undertaking her course of study. The Tribunal was satisfied, in the circumstances, that the application for the Visas was very much a focus of the first applicant’s attention.
The Tribunal was not persuaded that the stresses, which the first applicant relies upon to explain her lack of presence of mind when she provided the impugned answer, were so influential at the time she provided the answer and submitted the application to the Department that she was unable to properly understand the question to which she provided the false answer “No”. The Tribunal was not persuaded that the first applicant gave the false answer because she misunderstood the question.
The Tribunal was satisfied that the impugned answer “No” was given by the first applicant. The Tribunal found there is evidence that the applicant gave that answer to the Minister, that the information was purposely false, and that it was false and misleading in a material particular as defined in PIC 4020, which answer was relevant to the criteria that the Minister had to consider in deciding whether to grant the Visas. Therefore, the Tribunal found that the applicants did not meet PIC 4020(1).
The Tribunal then turned to the issue of whether the requirements of PIC 4020 should be waived. The Tribunal referred to the reasons advanced, and was not satisfied that the requirement should be waived. The Tribunal found that the applicants did not meet the criteria under PIC 4020 for the purpose of cl 500.217(1) of the Regulations. Consequently, the Tribunal affirmed the decision of the delegate under review.
Before the Court
These proceedings were commenced on 1 September 2020.
The written submissions filed on behalf of the applicant confirm that Ground 3 was not pressed. Accordingly, the two Grounds in the application are as follows:
Ground 1
1.There was no probative evidence for the Second Respondent’s finding that the First Applicant’s answer to the relevant question bore the character of a purposeful falsity.
Particulars
While the Second Respondent rejected the Applicants’ explanations as to the reasons for the error, this rejection itself did not lend itself to a finding of purposeful falsity.
Ground 2
2.The Second Respondent misconstrued Public Interest Criterion 4020 (1) by failing to determine whether the existence of a purposeful falsity was of itself sufficient to discharge the question of materiality, without reference to the requirements enumerated in subclause 500.212 of Schedule 2 to the Migration Regulations 1994 (Cth).
Particulars
Subclause 500.212 Schedule 2 to the Migration Regulations 1994 (Cth) requires the Delegate to reach a state of satisfaction as to whether the First Applicant is a genuine applicant for stay and entry as a student by reference to the matters outlined in (a), (b), and (c). The Second Respondent focused its inquiry to subclause 500.212 (a)(ii) as determinative of the question of materiality in relation to Public Interest Criterion 4020 (1) and (5) of Schedule 4 to the Schedule 2 to the Migration Regulations 1994 (Cth).
Ground 1
In relation to Ground 1, the applicant sought to focus upon the explanations that had been advanced to the Tribunal, which were correctly identified by the Tribunal, and drew attention to the relevant passage in Trivedi v Minister for Immigration and Border Protection [2014] FCAFC 42 at [32]. In substance, reference was made to the earlier correct inclusion of the previous visa refusals by the first applicant in earlier visa applications. It was suggested, by Counsel for the applicants, that the Tribunal had not identified the evidence in relation to the information being purposely false.
Counsel for the applicants made reference to the Tribunal rejecting the first applicant’s explanations, and contended that the Tribunal’s decision did not reflect an engagement with the subjective element in respect of the answer being purposely untrue. It was contended that the Tribunal had to find that the false answer was tainted by an element of fraud and deception, and it was submitted that the evidentiary basis for a finding of the answer was purposely false was wanting in the present case and, accordingly, a jurisdictional error.
Contrary to Counsel for the applicants’ submissions, there was ample probative evidence before the Tribunal that the answer was purposely false, given the first applicant’s evidence that the answer was false and that the applicant had completed the form, in relation to which the content was obviously of significance, as identified from the other passages in the application to which the Court has referred.
The Tribunal was not required to accept the first applicant’s explanation, and gave logical and rational reasons that reflect a meaningful engagement with the first applicant’s submissions. The Tribunal rejected the alleged misunderstanding given the plain language of the question asked.
The Tribunal also identified that the explanation in relation to stressors was not persuasive, given the period of time since the first applicant’s mother attended, and her ability to focus on the next step in respect of her study, having travelled to Bhutan where the Tribunal, as it did in the present case, rejected the explanations advanced by the applicants as to it being negligent or reflecting a misunderstanding. It was clearly open to the Tribunal to find that the answer was false.
This is not a case where there was no evidence to support the adverse finding. The answer itself identified in the application and its importance as made clear by the application were all evidence from which the Tribunal, once the Tribunal had rejected the applicants’ explanation, had an evidentiary basis to draw the inference of intent or purpose to which the Tribunal found in the present case. In substance, the submissions advanced as to there being no probative evidence to support the adverse finding were an invitation to impermissible merits review. No jurisdictional error as alleged in Ground 1 is made out.
Ground 2
In relation to Ground 2, which is as follows:
Ground 2
2.The Second Respondent misconstrued Public Interest Criterion 4020 (1) by failing to determine whether the existence of a purposeful falsity was of itself sufficient to discharge the question of materiality, without reference to the requirements enumerated in subclause 500.212 of Schedule 2 to the Migration Regulations 1994 (Cth).
Particulars
Subclause 500.212 Schedule 2 to the Migration Regulations 1994 (Cth) requires the Delegate to reach a state of satisfaction as to whether the First Applicant is a genuine applicant for stay and entry as a student by reference to the matters outlined in (a), (b), and (c). The Second Respondent focused its inquiry to subclause 500.212 (a)(ii) as determinative of the question of materiality in relation to Public Interest Criterion 4020 (1) and (5) of Schedule 4 to the Schedule 2 to the Migration Regulations 1994 (Cth).
It is difficult to understand how it is alleged that the second respondent focused its inquiry on sub-cl 500.212(a)(ii) of the Regulations as being determinative of the question of materiality. The Tribunal made no reference to that actual provision, and the Tribunal’s reasons reflect an unconfined consideration of whether the requirements should be waived. The Tribunal identified that there was no evidence that satisfies the Tribunal of the existence of compelling circumstances that affect the interests of Australia, and that there were no compassionate or compelling circumstances the interests of an Australian citizen or an Australian permanent resident or an eligible New Zealand citizen that justify the grant of the Visas. The Tribunal also took into account the totality of the evidence in that regard.
In its form, the application itself identified the materiality of misleading or false information in the application being made for the Visas. The Tribunal did not treat the finding of purposeful falsity as conclusive in respect of determining whether the PIC criteria should be waived.
Given the form of the application and the nature of the answer in respect of the refusal of past visa applications, the period of time that had elapsed between 2014 and 2018 is not a basis to find that the information was not false or misleading in a material particular. The material particular was squarely identified, being the question and answer of “No”. For the reasons that the Tribunal gave, the Tribunal found that the answer was one that was purposefully false and that was a finding open to the Tribunal for the reasons it gave. The Tribunal did not treat the purposefully false answer as determinative of whether the criteria should be waived.
The submissions advanced in relation to the first applicant’s alleged understanding of the question was rejected by the Tribunal. Accordingly, the contention that the Tribunal failed to appreciate how the applicant might meet the criteria is, in substance, inviting this Court to engage in impermissible merits review.
The Tribunal did not find the first applicant’s answer to the visa refusal question was determinative of the applicant’s ability to meet cl 500.212 of the Regulations. The Tribunal correctly identified that the Tribunal’s finding was irrelevant to the criteria that the Minister may consider when deciding whether to grant a student visa pursuant to cl 500.212 of the Regulations. Further, it is not the case that the answer to the question had to be determinative of the criteria to succeed in the application.
The Tribunal’s reasoning on PIC 4020(5)(b) did not reflect a jurisdictional error. In that regard, the Tribunal was responding to the way in which the case had been put in the administrative decision-making. In that regard, the Tribunal was addressing the applicants’ case, which contended that the information was not purposefully false, which reflected an implicit acceptance of the information being relevant to the criteria for the grant of the Visas, and therefore fell within PIC 4020(5)(b). Accordingly, there was no misconstruction of PIC 4020 as alleged in Ground 2, and no jurisdictional error as alleged in Ground 2 is made out.
Accordingly, the application is dismissed.
I certify that the preceding forty-five (45) paragraphs are a true copy of the settled transcript of the published oral reasons for judgment of Judge Street delivered in open Court on 6 September 2021 and the parties were sent a sealed copy of the Court’s orders. Associate:
Dated: 13 October 2021
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