Muthoni v Minister for Immigration and Multicultural Affairs
[2024] FedCFamC2G 1399
•19 December 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Muthoni v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 1399
File number(s): SYG 191 of 2020 Judgment of: JUDGE PAPADOPOULOS Date of judgment: 19 December 2024 Catchwords: MIGRATION – Judicial Review – student visa – cancellation under s 109 of the Migration Act 1958 (Cth) – interpretation and application of reg 2.41 of the Migration Regulations 1994 (Cth) – no jurisdictional error – application dismissed. Legislation: Migration Act 1958 (Cth) ss 99, 100, 101, 106, 108, 109
Migration Amendment (2014 Measures No 2) Regulation 2014 (Cth)
Migration Legislation Amendment (2016 Measures No.1) Regulation 2016 (Cth)
Migration Regulations 1994 (Cth) reg 2.41(a) and 2.41(c), Sch 2 cl 500.213 and cl 500.214
Cases cited: BGM16 v Minister for Immigration and Border Protection (2017) 252 FCR 97
Taylor v The Owners – Strata Plan No 11564 (2014) 253 CLR 531
Division: Division 2 General Federal Law Number of paragraphs: 54 Date of last submission/s: 21 November 2024 Date of hearing: 1 November 2024 Place: Sydney Counsel for Applicant Mr G. Rebetzke Solicitor for Applicant Taylor Rose Counsel for First Respondent Mr T. Reilly Solicitor for First Respondent Minter Ellison Solicitor for Second Respondent Submitting appearance, save as to costs ORDERS
SYG 191 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MAGDALINE WAITHERA MUTHONI
ApplicantAND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First RespondentADMINISTRATIVE APPEALS TRIBUNAL
Second RespondentORDER MADE BY:
JUDGE PAPADOPOULOS
DATE OF ORDER:
19 DECEMBER 2024
THE COURT ORDERS THAT:
1.The name of the first respondent be amended to ‘Minister for Immigration and Multicultural Affairs’.
2.The application filed on 28 January 2020 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 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 PAPADOPOULOS
The applicant seeks judicial review of a decision made by the second respondent, the Administrative Appeals Tribunal (Tribunal), on 2 January 2020. The Tribunal affirmed a decision made by a delegate (delegate) of the first respondent (Minister) on 4 August 2017 to cancel the applicant’s Student (Temporary) (Class TU) (Subclass 500) visa (student visa). This Court has jurisdiction to determine this matter pursuant to s 476 of the Migration Act 1958 (Cth) (Act).
BACKGROUND
The applicant is a national of Kenya and holder of a Kenyan passport. The applicant is not a national of Norway or a holder of a Norwegian passport.
On 9 June 2017, the applicant applied for a student visa. The applicant received assistance from an agent overseas when making her student visa application.
At the time of making her student visa application, the applicant resided in Nairobi[1] and a copy of her Kenyan passport was provided to the Department in support of that application.[2] However, incorrect information was provided to the Department within the applicant’s student visa application form where ‘NORWAY – NOR’ was specified in the form as the ‘Country of passport’ and ‘Nationality of passport holder’.[3]
[1] CB 22.
[2] CB 34-35.
[3] CB 20.
The student visa was granted on 12 June 2017. Shortly thereafter, the applicant travelled to and entered Australia on 18 June 2017 as the holder of that visa.
THE DELEGATE’S DECISION
On 12 July 2017, the delegate sent to the applicant a Notice of Intention to Consider Cancellation under s 109 of the Act (NOICC)[4] which specified, among other things, that consideration was being given to cancellation of her student visa on the basis that incorrect information had been provided in her student visa application, which demonstrated possible non-compliance with s 101 of the Act. The applicant did not respond to the NOICC.
[4] CB 40-43.
On 4 August 2017, the delegate cancelled the student visa. In so doing, the delegate:
(a)decided that there was non-compliance with s 101 in the way described in the NOICC;[5] and
(b)after having had regard to circumstances prescribed in reg 2.41 of the Migration Regulations 1994 (Cth) (Regulations), and a range of other ‘relevant factors’, decided to cancel the visa.[6] In particular, when having regard to the correct information, a circumstance prescribed by subreg. 2.41(a), the delegate found that the correct answer to the questions within the form was Kenya, not Norway, and that the applicant’s provision of incorrect information could not be attributed to the questions being either ambiguous or open to different interpretations. Further, when having regard to whether the decision to grant the visa was based wholly or partly on incorrect information, a circumstance prescribed by subreg 2.41(c), the delegate made the following findings:
· if the visa holder had provided the correct answers to the questions regarding her country of passport and her nationality on her visa application, this would have prompted an immigration officer to ask for more information and scrutinise more closely, the application as a whole and the risks associated with the country from where the visa holder originated. The application was assessed as a streamlined risk with streamlined evidentiary requirements. The assessing officer has been denied opportunity to apply a more rigorous assessment process and correctly assess whether the visa holder met all relevant criteria for grant of the visa.
· if the visa holder had provided the correct answers to the questions regarding her nationality and country of passport, this may have resulted in a decision not to grant the TU500 Student visa. The incorrect answers may have enabled her to obtain immigration benefits to which she was not entitled.
[5] CB 63-64.
[6] CB 65-68.
THE TRIBUNAL’S DECISION
On 17 August 2017, the applicant applied to the Tribunal for review of the delegate’s decision.[7] The Tribunal held a hearing on 9 October 2019. Following that hearing, the Tribunal wrote to the applicant pursuant to s 359A of the Act. On 2 January 2020, the Tribunal affirmed the delegate’s decision to cancel the applicant’s student visa.
[7] CB 70-72.
In its decision, the Tribunal outlined the procedural background of the matter, relevantly noting that the applicant’s student visa application ‘was fast tracked by the Department’ because the visa application form contained information which indicated that the applicant’s nationality was Norwegian and that the country that issued her passport was Norway.[8]
[8] CB 195 at [3].
In assessing whether there was non-compliance with s 101 of the Act, the Tribunal noted the applicant’s evidence that the answers provided in the visa application form in relation to her nationality and country of passport were incorrect.[9] The Tribunal considered the operation of the relevant provisions within Subdivision C of Division 3 of Part 2 of the Act and determined that it was the applicant’s responsibility to ensure that the information given or provided in her student visa application was correct.[10]
[9] CB 198 at [24].
[10] CB 198-199 at [25]-[26].
Having found that there was non-compliance with s 101 of the Act, the Tribunal turned to consider whether or not the visa should be cancelled. In so doing, and in accordance with s 109(1)(c) of the Act, the Tribunal made a series of findings having regard to the range of circumstances prescribed in reg 2.41. It also made findings against various Departmental policy considerations which it considered to be relevant in the applicant’s case. Given the grounds pressed before this Court, a summary of the Tribunal’s specific findings in relation to the circumstances prescribed in subregs 2.41(a) and (c) follows.
When having regard to the prescribed circumstance in subreg 2.41(a), that being ‘the correct information’, the Tribunal noted that the correct information in this case is ‘that the applicant is a citizen of Kenya and holds a Kenyan passport’.[11] While the Tribunal acknowledged the submissions and evidence before it, which indicate that the applicant now understands the operation of s 99 of the Act,[12] but had no intention to provide incorrect answers and did not understand why her agent had done so, it nevertheless found that the incorrect information had been provided in the visa application form and that ‘the questions in the visa application form were not ambiguous and the answers to the questions were fundamentally important’.[13] Having made that finding, the Tribunal determined that this weighed against the applicant in considering whether to cancel the visa.[14]
[11] CB 199 at [29].
[12] CB 199 at [29], CB 120.
[13] CB 199 at [29].
[14] CB 199 at [29].
When having regard to the prescribed circumstance in subreg 2.41(c), that being ‘whether the decision to grant a visa or immigration clear the visa holder was based, wholly or partly, on incorrect information or a bogus document’, the Tribunal:
(a)recorded that, at hearing, it had put the applicant on notice of its particular concern that ‘her visa was fast tracked because her country of origin had been incorrectly listed as Norway’.[15]
(b)referenced the reasoning in the delegate’s decision, such that had the correct information been provided in the application form, the ‘application would have been subjected to greater scrutiny’.[16]
(c)dealt with a submission that the correct information appeared elsewhere in the application, concluding that while s 54 of the Act required the delegate to have regard to all of the information in the application when deciding whether to grant or refuse to grant a visa, this did not contradict or override the requirement for visa applications to be correct in accordance with s 101 of the Act, and that ‘[t]o interpret it otherwise would result in the Department being responsible for ensuring visa applications were correct rather than the applicant.’[17]
On this basis, the Tribunal found that the decision to grant the visa ‘was based largely on incorrect information provided in the application’.[18] Having made that finding, the Tribunal determined that this also weighed against the applicant in considering whether to cancel the visa.[19]
[15] CB 196 at [10].
[16] CB 199 at [31].
[17] CB 200 at [32].
[18] CB 200 at [32].
[19] CB 200 at [32].
Having made findings in relation to the circumstances prescribed in reg 2.41 and various Departmental policy considerations it thought were relevant, and apportioned weight to each of these factors as part of its overall assessment whether or not to cancel the visa, the Tribunal concluded that the applicant’s visa should be cancelled. On that basis, it affirmed the delegate’s decision under review.[20]
[20] CB 199-202 at [27]-[46].
PROCEEDINGS IN THIS COURT
By way of an originating application filed in this Court on 28 January 2020, the applicant raised two grounds of review. However, by way of an amended application filed on 28 May 2020, the applicant then raised four grounds of review. By way of written submissions filed on 2 April 2024 and oral submissions at hearing on 1 November 2024, the applicant sought only to rely upon two of the grounds raised in her amended application (reproduced without alteration):
3 The Tribunal misconstrued or misapplied the criteria in s 109 of the Migration Act 1958 (Cth) by:
c. Contrary to s 109(1)(c) of the Migration Act 1958 (Cth), the Tribunal failed to give genuine and proper consideration having regard to the prescribed regulation 2.41 of the Migration Regulations 1994 (Cth):
i. the correct information;
ii. the content of the genuine document (if any);
iii. whether the decision to grant a visa or immigration clear the visa holder was based, wholly or partly, on incorrect information or a bogus document;
iv. circumstances in which the noncompliance occurred;
v. the present circumstances of the visa holder;
vi. the subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act
vii. any other instances of non-compliance by the visa holder known to the Minister
viii. the time that has elapsed since the non-compliance
ix. any breaches of the law since the non-compliance and the seriousness of those breaches;
x. any contribution made by the holder to the community.
4 The decision of the Tribunal was legally unreasonable.
At hearing, the applicant submitted that these grounds overlapped to some degree and that essentially there were two grounds being pressed, being as follows:
(a)The Tribunal misapplied the criteria in s 109 of the Act whereby, contrary to section 109(1)(c), it failed to give genuine and proper consideration when having regard to the prescribed circumstance in subreg 2.41(a) (the first ground);
(b)The Tribunal misapplied the criteria in s 109 of the Act whereby, contrary to section 109(1)(c), it failed to give genuine and proper consideration when having regard to the prescribed circumstance in subreg 2.41(c) (the second ground).
RELEVANT LEGISLATION
The relevant provisions within Subdivision C of Division 3 of Part 2 of the Act read:
99 Information is answer
Any information that a non‑citizen gives or provides, causes to be given or provided, or that is given or provided on his or her behalf, to the Minister, an officer, an authorised system, a person or the Tribunal, or the Immigration Assessment Authority, reviewing a decision under this Act in relation to the non‑citizen’s application for a visa is taken for the purposes of section 100, paragraphs 101(b) and 102(b) and sections 104 and 105 to be an answer to a question in the non‑citizen’s application form, whether the information is given or provided orally or in writing and whether at an interview or otherwise.
100 Incorrect answers
For the purposes of this Subdivision, an answer to a question is incorrect even though the person who gave or provided the answer, or caused the answer to be given or provided, did not know that it was incorrect.
101 Visa applications to be correct
A non‑citizen must fill in or complete his or her application form in such a way that:
(a) all questions on it are answered; and
(b) no incorrect answers are given or provided.
…
106 Obligations to give etc. information is not affected by other sources of information
The requirement for a non‑citizen to comply with sections 101, 102, 103, 104 and 105, is not removed or otherwise affected by the fact that the Minister or an officer had, or had access to:
(a) any information given by the non‑citizen for purposes unrelated to the non‑citizen’s visa application; or
(b) any other information.
…
108 Decision about non‑compliance
The Minister is to:
(a) consider any response given by a visa holder in the way required by paragraph 107(1)(b); and
(b) decide whether there was non‑compliance by the visa holder in the way described in the notice.
109 Cancellation of visa if information incorrect
(1) The Minister, after:
(a) deciding under section 108 that there was non‑compliance by the holder of a visa; and
(b) considering any response to the notice about the non‑compliance given in a way required by paragraph 107(1)(b); and
(c) having regard to any prescribed circumstances;
may cancel the visa.
….
Reg 2.41 in Part 2 of the Regulations provides:
2.41 Whether to cancel visa—incorrect information or bogus document (Act, s 109(1)(c))
For the purposes of paragraph 109(1)(c) of the Act, the following circumstances are prescribed:
(a) the correct information;
(b) the content of the genuine document (if any);
(c) whether the decision to grant a visa or immigration clear the visa holder was based, wholly or partly, on incorrect information or a bogus document;
(d) the circumstances in which the non‑compliance occurred;
(e) the present circumstances of the visa holder;
(f) the subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act;
(g) any other instances of non‑compliance by the visa holder known to the Minister;
(h) the time that has elapsed since the non‑compliance;
(j) any breaches of the law since the non‑compliance and the seriousness of those breaches;
(k) any contribution made by the holder to the community.
Note: Under s. 109 of the Act, the Minister may cancel a visa if there was non‑compliance by the holder of a kind set out in Subdivision C of Division 3 of Part 2 of the Act. The Minister is to have regard to the prescribed circumstances in considering whether to cancel the visa.
Clause 500.213 in Part 500 of Schedule 2 to the Regulations provides:
(1) If required to do so by the Minister, in writing or by use of a computer program available online, at any time, the applicant gives to the Minister evidence that the applicant has a level of English language proficiency that meets the requirements specified in an instrument under paragraph (3)(a).
Note: For arrangements for the use of a computer program, see section 495A of the Act.
(2) Subclause (1) does not apply to an applicant within a class of applicants specified in an instrument under paragraph (3)(b).
(3) The Minister may, by legislative instrument, specify:
(a) requirements for the purposes of subclause (1); or
(b) a class of applicants to which subclause (1) does not apply.
Clause 500.214 in Part 500 of Schedule 2 to the Regulations provides:
(1) The applicant will have genuine access to funds of a kind mentioned in subclause (2) and, if subclause (3) applies, subclause (3).
(2) While the applicant holds the visa, sufficient funds will be available to meet:
(a) the costs and expenses of the applicant during the applicant’s intended stay in Australia; and
(b) the costs and expenses of each member of the applicant’s family unit (if any) who will be in Australia.
(3) If required to do so by the Minister, in writing or by use of a computer program available online, at any time, the applicant gives to the Minister evidence of financial capacity that satisfies the requirements specified in an instrument under subclause (4).
Note: For arrangements for the use of a computer program, see section 495A of the Act.
(4) The Minister may, by legislative instrument, specify requirements for the purposes of subclause (3).
CONSIDERATION
The first ground
By way of pre-hearing written submissions, the applicant contends that the Tribunal failed to properly have regard to the prescribed circumstance in subreg 2.41(a), namely ‘the correct information’. The applicant argues that proper regard of ‘the correct information’ involves an assessment of whether an applicant would have still been eligible for the grant of the student visa on the basis of the correct information. According to the applicant, this visa eligibility assessment is contemplated by subreg 2.41(a) ‘because the variance between the correct information and the incorrect information is a question already addressed in the anterior step prescribed by section 109(1)(a) of the Migration Act, namely whether there has been non-compliance’ and that, as a matter of construction, subreg 2.41(a) should not be taken to require the same circumstance (non-compliance) twice’. The applicant summarises the Tribunal’s error in the following terms:
The question which was required to be addressed by the Tribunal, was whether the correct information made any difference to the visa-holder’s eligibility to be granted the visa. In this case, this required the Tribunal to consider whether the nationality of the applicant as a Kenyan had any bearing on any of the prescribed criteria for the granting of the visa. This it failed to do.
By way of pre-hearing written submissions, the Minister contends that the applicant’s expansive construction of subreg 2.41(a) is incorrect as it requires the Tribunal to read extra words into the regulation, which is not justified within the principles summarised by the High Court in Taylor v The Owners – Strata Plan No 11564 (2014) 253 CLR 531 (Taylor) at [35]-[40]. The Minister contends that a plain reading of the words simply requires the Tribunal to have regard to the correct information, not to then undertake a further assessment of the visa application to determine whether a visa would have been granted to the applicant had that correct information been provided. The Minister did not regard subreg 2.41(a), when properly construed, to be ‘superfluous’ as it put beyond doubt that ‘the correct information would be considered by a decision-maker in the exercise of their discretion to cancel the visa pursuant to s 109(1) of the Act’.
At hearing, the applicant further argued that, when having regard to the prescribed circumstance in subreg 2.41(a), the Tribunal was required to assess ‘whether the correct information would have had any bearing on the original decision to grant the visa’ rather than merely note that the information provided was incorrect.[21] In addition, the applicant raised a somewhat unrelated further argument that the correct information had been provided elsewhere in the application, including by way of the lodgement of a copy of the biodata page of the applicant’s Kenyan passport, and that the Tribunal did not properly consider the operation of s 54 of the Act, which required the original decision-maker to have regard to all of the information in the application before making a decision whether to grant or refuse to grant the visa.
[21] T3, 21-28.
At hearing, the Minister briefly summarised the points raised in his pre-hearing written submissions and argued that there was no clear justification in construing subreg. 2.41(a) in the manner contended by the applicant. In support of that argument, my attention was drawn to the High Court’s decision in Taylor at [38] (footnotes omitted):
The question of whether the court is justified in reading a statutory provision as if it contained additional words or omitted words involves a judgment of matters of degree. That judgment is readily answered in favour of addition or omission in the case of simple, grammatical, drafting errors which if uncorrected would defeat the object of the provision. It is answered against a construction that fills ‘gaps disclosed in legislation’ or makes an insertion which is ‘too big, or too much at variance with the language in fact used by the legislature’.
The parties did not address the first ground in their post-hearing written submissions.
Having considered the parties’ submissions, I am of the view that the Tribunal, when having regard to the prescribed circumstance in subreg 2.41(a), as part of its broader consideration of whether or not the applicant’s visa should be cancelled under s 109, was merely required to identify the correct information as part of that consideration.
As a matter of statutory construction, it is s 108(b) of the Act where the Minister considers whether there was non-compliance. It is at that point that the Minister considers what the correct information and the incorrect information was in order to determine if there was non-compliance with s 101 of the Act. Section 109(1)(a) simply states the pre-condition requirement for the Minister to then consider any response to the NOICC (pursuant to s109(1)(b)) and have regard to prescribed circumstances (pursuant to s 109(1)(c)), in order to determine as a matter of discretion whether or not to cancel the visa. I accept that ‘the correct information’ would have been considered as part of the Tribunal’s decision under s 108(b), but do not accept that this forecloses any further or similar consideration of ‘the correct information’ as part of a separate assessment of the circumstances prescribed by s 109(1)(c).
I also agree with and adopt the Minister’s submission that subreg 2.41(a) is not superfluous and that a plain reading of the words of the provision do not involve any further ‘mandatory’ analysis or consideration in the manner contended by the applicant as to do so would be unjustified.
On this basis, the Tribunal did not fail to properly have regard to the prescribed circumstance in subreg 2.41(a). Therefore, the Tribunal’s reasons do not disclose jurisdictional error in this regard.
Finally, in relation to the applicant’s argument that the correct information had been provided elsewhere in the application, including by way of the lodgement of a copy of the biodata page of the applicant’s Kenyan passport, and that the Minister was required by s 54 of the Act to have regard to all of the information in the application, I do not accept that the Tribunal erred in having found that there was non-compliance as described in the NOICC. In my view, the Tribunal’s reasoning at [32] of its decision accords with the obligation in s 106 of the Act and does not disclose jurisdictional error.
Accordingly, this ground must fail.
The second ground
By way of pre-hearing written submissions, the applicant contends that the Tribunal failed to properly have regard to the prescribed circumstance in subreg 2.41(c), namely ‘whether the decision to grant a visa or immigration clear the visa holder was based, wholly or partly, on incorrect information or a bogus document’. The applicant argues that the Tribunal’s fact-finding in relation to subreg 2.41(c) was ‘seriously illogical or unreasonable (thereby resulting in a decision which is illegally unreasonable)’ and that ‘[i]t was not open to the Tribunal to find that the decision to grant the visa was based “largely on incorrect information provided in the application” without evidence and without any intermediate fact finding in relation to the reasons for the decision to grant the visa at first instance’. A series of submissions were proffered in support of that contention, including:
(a)the Tribunal erred in characterising the incorrect information as ‘fundamentally important’ as the relevant criteria in Part 500 in Schedule 2 to the Regulations make no reference to the country of nationality of the applicant;
(b)there was no basis in law for discriminating between all applicants from Norway and all applicants from Kenya;
(c)the Tribunal’s decision relied upon assumption that an applicant with Kenyan nationality is less eligible or likely to be approved for a student visa than an applicant with Norwegian nationality;
(d)there was no evidence to support the Tribunal’s finding that the decision was based largely upon incorrect information;
(e)there was no statement of reasons given by the original decision-maker and that the closest document to a statement of reasons given by the original decision-maker was a Visa Grant Notice, which records the correct information whereby the applicant would be travelling to Australia on a Kenyan passport and that that the original decision-maker was aware the applicant would not be travelling on a Kenyan passport.
The applicant concluded that this error was material because ‘[h]ad the Tribunal not illogically and unreasonably determined that the original visa grant decision was based largely on the incorrect information, it may have exercised the discretion whether or not to affirm the cancellation of the visa differently’.
By way of pre-hearing written submissions, the Minister briefly addressed the applicant’s submissions in the following terms:
The applicant’s submissions also claim that the Tribunal’s reasoning at [32] was legally unreasonable in finding that the decision to grant the visa was based largely on the incorrect information. The nationality of the visa applicant is a matter of significance in any visa application: as stated in BGM16 v MIBP (2017) 252 FCR at [62] per Mortimer and Wigney, “[e]ssential to regulating the coming into and presence in Australia of non-citizens is to understand who they are, and where they have come from”. The Act requires that the applicant does not provide any incorrect answers in the visa application: s 101(b). The applicant having provided an incorrect answer about a matter of significance, it was at least open to the Tribunal to regard the decision to grant the visa as having been largely based on the incorrect information within the principles in MIAC v SZMDS (2010) 240 CLR 611 at [130-131]. Contrary to the applicant’s submissions, the Tribunal did not reason that Norwegian applicants are more likely than Kenyan applicants to be granted the visa. The Tribunal nowhere states this, and at [32] states that it is unable to take account of the department’s internal procedures for assessing visa applications, a reference to the delegate’s comments noted at [31].
At hearing, the parties pressed the arguments raised in their pre-hearing submissions. In the course of oral address, I drew the parties’ attention to two distinct matters relevant to my consideration which had not been adequately addressed in their submissions. The first matter related to the proper construction of reg 2.41, whereby I requested the parties’ examine the legislative history of that provision, particularly any Explanatory Statement, for the purpose of understanding the intended operation and application of subreg 2.41(c) in the present case. The second matter related to the operation of cl 500.213 and cl 500.214 in Part 500 of Schedule 2 to the Regulations which had been introduced on 1 July 2016. I specifically drew the parties’ attention to the phrase ‘If required to do so by the Minister’ in subcl 500.213(1) and subcl 500.214(3) and observed that it empowered the Minister to require a student visa applicant to give specified forms of evidence of their level of English language proficiency and financial capacity to a delegate at any time before a decision is made on their application. I requested submissions in relation to the intended operation of these provisions and their application in this case, pointing out the possibility that, on a fair reading of the Tribunal decision as a whole, a reasonable inference might be drawn that the Tribunal’s finding in relation to subreg 2.41(c) was underpinned by the denial of greater scrutiny of the application in terms of the requirements in cl 500.213 and cl 500.214. I ordered the parties provide supplementary written submissions addressing, among other things, each of these matters.
By way of post-hearing written submissions, in addressing the first matter, the applicant referred to the Explanatory Statement to the Regulations and submitted that it did not assist in construction of reg 2.41 to any great degree. In relation to the second matter, the applicant made no reference to extrinsic material to determine the intended operation of cl 500.213 and cl 500.214 and their application in this case. Instead, the applicant presented various assertions in relation to how the applicant had provided sufficient information and documents in their application which had either satisfied the original decision-maker that applicable English language proficiency and financial capacity requirements had been met, thereby not requiring the provision of further evidence in accordance with cl 500.213 and cl 500.214. The applicant further contended that there was no information before the Tribunal that the original decision-maker (due to policy or otherwise) would have in fact required the applicant to provide any further evidence of her English language proficiency or financial capacity had she provided the correct information about her nationality and country of passport. The applicant further argued that there was no evidence upon which the Tribunal could reach its finding that the visa application would have been subject to ‘greater scrutiny’ had the correct information been provided.
By way of post-hearing written submissions, in addressing the first matter, the Minister properly referred to the Explanatory Statement to the Migration Amendment (2014 Measures No 2) Regulation 2014 (Cth) (amending Regulation 2014). However, as to the second matter, the Minister made no submissions in relation to the intended operation of cl 500.213 and cl 500.214 and their application in this case. Instead, the Minister relied upon previous submissions that the applicant’s country of nationality was a matter of significance and that it did not matter that it was not a criterion for the visa.
I am of the view that the Tribunal had proper regard to the prescribed circumstance in subreg 2.41(c) as part of its broader consideration of whether or not the applicant’s visa should be cancelled. In reaching this conclusion, I have reviewed the Tribunal’s reasons with regard to the evidence before it along with an understanding of the intended operation of subreg 2.41(c) and the application of cl 500.213 and cl 500.214 in this case.
Prior to the commencement of the amending Regulation 2014, subreg 2.41(c) read:
(c) the likely effect on a decision to grant a visa or immigration clear the visa holder of the correct information or the genuine document;
Following commencement of the amending Regulation 2014 on 12 December 2014, subreg 2.41(c) was expressed in the following terms:
(c) whether the decision to grant a visa or immigration clear the visa holder was based, wholly or partly, on incorrect information or a bogus document;
By way of relying upon extrinsic materials to construe the intended operation of this amended provision as it applies in this case, I note the reference in the Minister’s post-hearing written submissions to the Explanatory Statement to the amending Regulation 2014, which provides the following explanation in relation to the intended operation of the amendment to subreg 2.41(c):
The effect of new paragraph 2.41(c) is to make clear that when considering whether to cancel a visa under section 109 of the Migration Act, a circumstance to which the Minister must have regard is to be an assessment of whether the incorrect information or bogus document was the basis, or part of the basis, for the decision to grant the visa or immigration clear the person, rather than as currently, a subjective assessment of the ‘likely effect’ of the incorrect information, or bogus document on the decision to grant the visa or immigration clear the person.
Therefore, when considering whether to cancel the applicant’s visa under s 109 of the Act, subreg 2.41(c):
(a)requires the Tribunal to make an assessment of whether the incorrect information was the basis, or part of the basis, for the decision to grant the visa.
(b)does not permit the Tribunal to make a subjective assessment of the ‘likely effect’ of the incorrect information on the decision to grant the visa.
Clauses 500.213 and 500.214 were introduced by Migration Legislation Amendment (2016 Measures No.1) Regulation 2016 (Cth) (amending Regulation 2016) and commenced on 1 July 2016.[22] The Explanatory Statement to the amending Regulation 2016 relevantly provides that the purpose of amending Regulation 2016 is, among other things, to amend the Regulations to:
[i]ntroduce a simplified international student visa framework which would…[r]epeal the provisions relating to the current regulatory assessment level framework and streamlined processing provisions and introduce new requirements to strengthen the integrity of the programme by providing a large range of factors for decision makers to assess genuineness and the need for individuals to provide evidence of financial and English language proficiency.
[22] See Item 2 and Schedule 4, amending Regulation 2016.
In relation to cl 500.213, the Explanatory Statement to the amending Regulation 2016 relevantly provides (emphasis added in bold):
Clause 500.213 provides that an applicant may be required to provide evidence of English language proficiency. This clause replaces previous provisions in Schedule 5A to the Migration Regulations, repealed by Item 39 of this Schedule, below, which established a regulatory framework requiring the provision of evidence on the basis of assessment levels. Clause 500.213 strengthens the integrity and enhances the competitiveness of the student visa program by making the requirements more flexible and allowing consideration of a larger range of factors such as the immigration risk associated with the applicant’s country of origin and education provider, before requiring evidence to be given. At the same time, this provision allows the requirements to be more streamlined for applicants who would not be required to provide evidence. Details of clause 500.213 are:
Subclause 500.213(1) provides that if required to do so by the Minister, in writing or by use of a computer program available online, at any time, the applicant must give to the Minister evidence that the applicant has a level of English language proficiency that meet the requirements specified in an instrument.
Under section 495A of the Migration Act, the Minister may arrange for a computer program for any purposes for which the Minster may exercise power under the designated migration law. The Minister is taken to have exercised the power that was exercised by the operation of the computer program under the arrangement. It is intended to make a computer program available as part of the online application process, under which an applicant’s country of origin and education provider, will be assessed and, if coming within the risk settings in the computer program, a requirement will then be made for the applicant to provide the evidence to satisfy clause 500.213 and the application may be refused if the applicant fails to provide evidence.
If the requirement to give evidence is made, the applicant must give the evidence specified in an instrument. The evidence specified will be evidence of the results of different English language tests. Provision for the evidence to be specified in an instrument allows the types of evidence to be changes should it become appropriate to do so, for instance, if new tests are developed and adopted in the future.
In relation to cl 500.214, the Explanatory Statement to amending Regulation 2016 relevantly provides (emphasis added in bold):
Clause 500.214 requires an applicant to have genuine access to certain funds, as described in subclauses (2) and (3)…. This subclause replaces the previous regulatory framework for the provision of evidence of an applicant’s financial capacity. This provision is intended to operate in the same way as subclause 500.213(1), including provision for a computer program to be arranged to make the requirement to give evidence of financial capacity at the time an applicant lodges an electronic application. For further details, see the notes on subclause 500.213(1) above.
Given the analysis of the intended operation and application of the relevant legislation, I am of the view that the parties’ submissions in relation to subreg 2.41(c) are misconceived and misdirected. When having regard to the prescribed circumstance in subreg 2.41(c) as part of its broader consideration of whether or not the applicant’s visa should be cancelled under s 109, the Tribunal was required to make an assessment of whether the decision to grant the visa was based, wholly or partly, on the incorrect information. That assessment involves a consideration of whether the incorrect information was relied upon in the making of the decision to grant the visa such that it provided some basis for that decision, including by way of influencing the original decision-maker’s assessment of the applicant against any of the visa eligibility criteria set out in Part 500 of Schedule 2 to the Regulations. The criteria include cl 500.213 and cl 500.214. The Tribunal was not required to make a subjective assessment of the ‘likely effect’ of the incorrect information on the decision to grant the visa.
In my view, on a fair reading of the decision as a whole, the Tribunal properly undertook the assessment task required when having regard to the prescribed circumstance in subreg 2.41(c). That assessment process is clearly disclosed in the Tribunal’s reasons which record that the Tribunal had:
(a)advised the applicant that a ‘particular concern in her case was the fact that her visa was fast tracked because her country of origin had been incorrectly listed as Norway’;[23]
(b)under the sub-heading ‘the correct information’, found that the questions about the applicant’s nationality and country of passport ‘were fundamentally important’;[24] and
(c)under the sub-heading ‘whether the decision to grant a visa or immigration clear the visa holder was based, wholly or partly, on incorrect information or a bogus document’, referred to the delegate’s decision and then repeated the delegate’s conclusion in stating that had correct information been given in response to these questions, the ‘application would have been subjected to greater scrutiny’.[25] In answering the question, the Tribunal found that the decision to grant the visa ‘was based largely on incorrect information’.[26]
[23] CB 196 at [10].
[24] CB 199 at [29].
[25] CB 199 at [31], CB 65.
[26] CB 200 at [32].
Given the operation of cl 500.213 and cl 500.214 whereby the Minister is empowered to require an applicant give specific evidence of English language proficiency and financial capacity depending upon their country of origin, that particular finding was open to the Tribunal. I infer from the reference to application fast-tracking in the Tribunal’s reasons at [10] that the Tribunal was of the view that the applicant’s provision of incorrect information led to the application being assessed in a streamlined manner such that no specific evidence was requested by the original decision-maker in relation to English language proficiency and financial capacity for the purposes of cl 500.213 and cl 500.214. This is borne out further in the Tribunal’s reasons at [31] where reference is specifically made to the delegate’s decision in which it was observed that had the applicant provided correct information in her application about her country of passport and nationality ‘her application would have been subjected to greater scrutiny’. The nature of this ‘greater scrutiny’ for the purposes of the original decision-maker’s assessment of cl 500.213 and cl 500.214 is made abundantly clear in the delegate’s decision, to which the Tribunal refers, in the following terms:
If the visa holder had provided the correct answers to the questions regarding her country of passport and her nationality on her visa application, this would have prompted an immigration officer to ask for more information and scrutinise more closely, the application as a whole and the risks associated with the country from where the visa holder originated. The application was assessed as a streamlined risk with streamlined evidentiary requirements. The assessing officer has been denied opportunity to apply a more rigorous assessment process and correctly assess whether the visa holder met all relevant criteria for grant of the visa.
Therefore, the Tribunal’s reasons disclose a logical basis upon which to rest the finding that the decision to grant the visa was based largely on the incorrect information that had been provided in the application. That finding was clearly open to the Tribunal on the evidence before it. The evidence relied upon to support such a finding was clearly set out in the delegate’s decision, which the Tribunal specifically referred to in its reasons.
Contrary to the applicant’s submissions, the Tribunal was not required to engage in any assessment of the ‘likely effect’ of the incorrect information on the decision to grant the visa. I therefore reject the applicant’s arguments insofar as they contend such an analysis would have been required.
Contrary to the Minister’s submissions, I do not accept that the incorrect information about the applicant’s nationality and country of passport was of concern to the Tribunal because it gave rise to a decision to grant the visa in circumstances where the original decision-maker was not aware of the applicant’s identity. While I accept that the applicant’s identity is a matter of significance, that was not the issue or concern expressed by the Tribunal in its reasons when it assessed whether the decision was wholly or partly based on the incorrect information. The Minister’s argument is not borne out by the evidence before the Tribunal, including the reasons specified in the delegate’s decision, or in the Tribunal’s reasons. On that basis, the principles in BGM16 v Minister for Immigration and Border Protection (2017) 252 FCR 97 are not relevant in this case.
Accordingly, this ground must fail.
CONCLUSION
As no jurisdictional error has been disclosed, I dismiss the application.
I will hear the parties in relation to costs.
I certify that the preceding fifty-four (54) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Papadopoulos. Associate:
Dated: 19 December 2024
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