Rani (Migration) - [2024] ARTA 499

Rani (Migration) [2024] ARTA 499 (12 December 2024)
DECISION AND
REASONS FOR DECISION
Applicants:Mrs Kusum Rani
Mr Bittu Mehla
Respondent:  Minister for Immigration and Multicultural Affairs
Tribunal Number:  2211045

Tribunal:General Member A. McMurran
Place:Sydney
Date: 12 December 2024

Decision: The Tribunal remits the applications for Skilled (Provisional) (Class VC) visas for reconsideration, with the direction that:
· The first and second named applicants meet Public Interest Criterion 4020 for the purposes of cl 485.216 of Schedule 2 to the Regulations;
· The second named applicant meets cl 485.311 of Schedule 2 to the Regulations.
Statement made on 12 December 2024 at 5:25pm

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – Post-Study Work stream – bogus document – misleading information – false passport – migration history – identity requirements – administrative errors – legal proceedings to correct identity documents – purposeful falsity – unintentional error and genuine mistake – decision under review remitted
LEGISLATION
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024
Migration Act 1958, ss 5(1), 65
Migration Regulations 1994, Schedule 2, cl 485.216, 485.231, 485.311; Schedule 4, Public Interest Criterion 4020
CASES
Arora v MIBP [2016] FCAFC 35
Batra v MIAC [2013] FCA 274
Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611
Trivedi v MIBP [2014] FCAFC 42
Zitkus v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2021] FCCA1881
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to an order under section 70 of the Administrative Review Tribunal Act 2024 and replaced with generic information.
STATEMENT OF REASONS
APPLICATION FOR REVIEW

This is an application lodged with the Administrative Appeals Tribunal on 1 August 2022 for review of a decision made by a delegate of the Minister for Home Affairs on 13 July 2022 to refuse to grant the applicants, who are both citizens of the Republic of India, Skilled (Provisional) (Class VC) post-study Work Stream visas under s 65 of the Migration Act 1958 (Cth) (the Act).
On 14 October 2024, the Administrative Appeals Tribunal (AAT) became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. This application falls into that category.
The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT. This decision and statement of reasons is made by the Tribunal in place of the AAT.
The applicant, Mrs Kusum Rani, and her spouse, the secondary applicant Mr Bittu Mehla (“the applicants”) applied for the visas on 13 August 2021. The secondary applicant, also referred to as a dependent applicant, claims the visa as a member of the applicant’s family unit.[1]
[1] Cl 485.231 of Schedule 2 to the Regulations
The delegate refused to grant the visas on the basis that the applicants did not satisfy the requirements of cl 485.216 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). This was because the delegate found that there was evidence that the applicant had provided a bogus document or false or misleading information in a material particular as regards the secondary applicant.
The bogus document was claimed to be the second-named applicant’s passport.
The misleading information was claimed to arise in two student visa application forms lodged 4 February 2019 and 3 March 2021, and this application under review. In all 3 applications, the delegate found there was misleading information provided about the secondary applicant’s identity, and his immigration history, in answer to particular questions in the application forms about his identity and any prior visa refusals.
The delegate found the applicant responsible and liable for all the information in the application forms, including the information about the secondary applicant. The applicant had been invited by the Department to respond to adverse information in her application but had not done so within the time provided for a response.
The applicants appeared before the Tribunal by video from Melbourne on 9 December 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Hindi and English languages, who also appeared by video. All participants could see and hear each other and no issue was raised as to the proceeding format.
The applicants were represented in relation to the review. The representative also attended the hearing by video from Melbourne, sitting with the applicants, and made submissions.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
Background
The applicants were married in India on 27 March 2016. They have relatives both in India and in Western Australia. The applicant now has a one year old child born in Australia. The applicant came to Australia as a student to study accounting. She changed careers and is now working as an enrolled nurse and intending to study to obtain her degree to become a registered nurse. The secondary applicant is working as a truck driver.
The applicant arrived in Australia on 22 February 2019 on a student visa which ceased on 15 March 2021. Her student visa was renewed on 20 May 2021 and ceased on 15 August 2021. This application for a Subclass 485 (Post-Study) work stream visa was made on 13 August 2021, and the applicant has remained on a Bridging visa since that time.
The secondary applicant’s visa history was not before the AAT or the Tribunal.
The delegate’s decision however refers to applications for 2 student visas lodged on 4 February 2019 and 3 March 2021, with the secondary applicant as a related family member to those applications. The decision further recites that those visas were held within 12 months of the lodgement of the application under review.
The Tribunal does not have before it relevant Department information from those applications or the resulting decisions, other than what is contained in the delegate’s decision and the information provided by the Department for this review from the applicant’s Subclass 485 visa application, lodged 13 August 2021.
The applicant claimed in her oral evidence to the Tribunal that she had provided the information for all 3 applications.
She was assisted by her representative to whom she provided the information between 2019 and 2021. The applicant provided evidence both to the Department and the Tribunal with an explanation as to the claimed false or misleading information, and the bogus document, being the secondary applicant’s passport.
No information or evidence was submitted concerning any visa refusals for the dependent applicant.
The applicant submitted that she was ready to proceed with this review and had provided all her information for consideration. No adjournment or deferral was sought by the applicant or her representative and none was considered necessary by the Tribunal. The applicants confirmed on conclusion of the hearing that they had understood the interpreter.
Both applicants gave oral evidence. They spoke some English and used the interpreter for their Hindi language as and when they required.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this review is whether the applicants meet Public Interest Criterion 4020 (PIC 4020) as required by cl 485.216 for the grant of the visa.
Broadly speaking, this requires that:
·Firstly, there is no evidence that the applicant has given, or caused to be given, to the Minister, an officer, the Tribunal, a relevant assessing authority, or Medical officer of the Commonwealth, 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: PIC 4020(1); and
·Secondly, the applicant and each member of the family unit has not been refused a visa because of a failure to satisfy PIC 4020(1) during the period starting 3 years before the application was made and ending when the visa is granted or refused, unless the applicant was under 18 at the time the application for the refused visa was made: PIC 4020(2) and (2AA); and
·Thirdly, the applicant satisfies the Minister as to his or her identity: PIC 4020(2A); and
·Fourthly, neither the applicant nor any family unit member has been refused a visa because of a failure to satisfy PIC 4020(2A) during the period starting 10 years before the application was made and ending when the visa is granted or refused, unless the applicant was under 18 at the time the application for the refused visa was made: PIC 4020(2B) and (2BA).
Waiver
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: PIC 4020(4). However, this waiver does not apply to the identity requirements in PIC 4020(2A) and (2B).
PIC 4020 is extracted in the attachment to this decision.
The Tribunal has considered the information extracted from the Department file under review, the delegate’s decision, and the oral evidence from the hearing, Department Policy, and relevant court decisions. The Tribunal has also had regard to the applicant’s written submissions.
No waiver information was submitted in this case, although in oral evidence the applicant told the Tribunal that she thought her circumstances might be “compelling and compassionate” and sufficient to enliven the application of public interest criteria 4020(4).
Terms defined
The term ‘information that is false or misleading in a material particular’ is defined in PIC 4020(5) and the term ‘bogus document’ is defined in s 5(1) of the Act (see the attachment to this decision).
In contrast to the definition of ‘information that is false or misleading in a material particular’ in PIC 4020(5), the reference in the definition of ‘bogus document’ to a document that was obtained because of a ‘false or misleading’ statement has no requirement that it be relevant to a criterion for the grant of the visa: Arora v MIBP [2016] FCAFC 35; Batra v MIAC [2013] FCA 274.
The requirement in PIC 4020(1) not to provide a bogus document, or false or misleading information, applies whether or not the Minister became aware of the bogus document or information that is false or misleading in a material particular because of information given by the applicant: PIC 4020(3). It also applies whether or not the document or information was provided by the applicant knowingly or unwittingly.
While PIC 4020 refers to information that is false, in the sense of purposely untrue, it is not necessary for the Minister (or the Tribunal on review) to conclude that the applicant was aware the information was purposely untrue in order for PIC 4020 to be engaged.
However, an element of fraud or deception by some person is necessary to attract the operation of the provision: Trivedi v MIBP [2014] FCAFC 42.
The Hearing
For the purposes of this review, the Tribunal is only concerned with the issue of the criteria in cl 485.216(1) and whether the applicant satisfies public interest criteria 4020. The Tribunal explained to the applicants that this was the issue being considered, and that if the matter was remitted, it would then be up to the Department to consider any other criteria for approval of the visa.[2]
[2] See Haque(Migration) [2023] AATA 127 (13 January 2023) at [19].
Both applicants gave their evidence separately to the Tribunal. No issues were raised with the interpreter, also appearing by video, or detected with the interpretation by the Tribunal. There was a short adjournment during the hearing to enable the applicants to confer with their representative. On conclusion of the review proceedings, no further adjournment was sought or request made to provide additional information.
Kusum Rani
The applicant acknowledged and accepted that it was the information relevantly contained in the 3 applications lodged 4 February 2019, 3 March 2021, and 13 August 2021 which was being considered on review. She did not wish to correct any of that information. She agreed that she had through her representative already lodged a form with the Department on 23 October 2024 to correct the answers claimed to be incorrect.
The corrections made concerning 2 common questions in the applications made were read to the applicant as follows: [the corrected answer is italicised]
With respect to dependent applicant MEHLA, BITTU, Is this family member currently, or have they ever been known by any other names?
“Yes”.
With respect to dependent applicant MEHLA, BITTU, 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?
“Yes”.
The explanation for the incorrect information was noted as “Unintentional typing error”. In the submitted applications the applicant had answered “No” to the questions.
The applicant explained that firstly, the applicant’s initial passport issued to him in India had recorded his date of birth incorrectly, as 15 February 1993, when in fact his birth date as recorded on his birth certificate is 15 February 1995.[3] His name was also misspelt as “Bitto”.
[3] Indian Birth Certificate submitted and produced for the Tribunal records shows DOB as 15/2/1995.
The applicant said when they had married in 2016, she was not aware his recorded birthdate on his passport or any documents might have been incorrect. She was not privy to those documents. She said she first became aware of the issue when she saw the delegate’s decision in July 2022. She said her husband had said nothing about it before.
She could not understand the decision because the applicant had an elder brother born in November 1992, and therefore it would be physically impossible for his mother to have had another child (the secondary applicant) born in February 1993.
The applicant said when she raised it with her husband she was angry she had not known before she provided the information to her representative for the applications. Her husband explained to her that the error had commenced with a typing mistake in his educational school certificates, which recorded his name incorrectly as “BITTO”, and which had been used by his parents to obtain his initial passport while he was still at school. She said at the time her husband did not think it was important and now realises that was a substantial error. After discussions with him, they took steps through an Indian court to have the error rectified on the school issued certificates containing his incorrect name and date of birth.
She referred to and relies upon a copy of an order obtained on 15 May 2024 from a civil judge who, following a judgement in favour of the secondary applicant as plaintiff, issued a mandatory injunction directing the local Board of School Education to correct the particulars in the certificates and documents for the applicant’s secondary and senior examination certificates.
In her application for the Subclass 485 visa under review, the applicant had submitted a different passport to one previously used by the dependent applicant. This passport was issued on 12 June 2018 in the correct name of the secondary applicant, showing his birthdate as 15 February 1995. As this document contradicted the earlier passport information submitted to the Department by her husband, using the name “BITTO” and with a birthdate 15 February 1993 (“the first passport”), the applicant understood that the 2018 passport submitted by the applicant in support of her application was reasonably considered by the delegate to be ‘bogus’.
The applicant insisted it was a simple mistake brought about by an initial ‘typographical error’ recorded by her husband’s school, and which information had been inadvertently retained when his parents had applied for the first passport.
It was claimed that this first passport had wrongly recorded both his name and date of birth. She stated she was unaware of this history as her husband had said nothing about it to her, and she did not observe any error in submitting the 2018 passport with this latest visa application. The Department was made aware of the two different passports purporting to be the same person, after the application was lodged.
The applicant said that when the applicant saw the Department decision, she and the secondary applicant took steps for rectification through an Indian court, which she thought was all that they could do to correct the mistake. She said she had become upset with the applicant because prior to the decision he had not seen the “mistake” as something which was going to seriously affect consideration of his identity in formal matters such as making a migration application.
The applicant submitted that had she known about the information being incorrectly submitted before the decision, or even before lodging the application, she would have taken steps to have the information corrected then, or in the case of the application, to have had it withdrawn so the issue could be “corrected” before lodgement. When asked why it had taken so long to correct the issue, the applicant explained they had only received a court order on 15 May 2024 which she has submitted, and which was the earliest opportunity to inform the Tribunal. She said she did not have that information at the time to give to the Department.
The applicant was asked what she thought the Tribunal should do. She thought that even though the information lodged was incorrect, the document itself was not bogus, because it was based on information available at the time and which she had been given not knowing it needed to be corrected. The applicant said she did not challenge the finding by the delegate on false and misleading information. She also accepted that the Department had relied upon the earlier passport containing the incorrect name and date of birth, in granting the 2 student visas. But she was of the view it was entirely inadvertent and unintentional on her part, and that she would not knowingly have submitted incorrect information.
She did not attempt to explain why her husband gave her incorrect details which she had lodged when she passed the information to her representative. She blames her husband on the basis he was careless, and that the existence of the first passport was not known to her and that what she submitted was what he had given to her and that she had no reason not to query that information when she believed his birth date was in fact 15 February 1995. She also had always known him by name as Bittu Mehla as recorded on his 2018 passport.
The applicant was asked for any other arguments or submissions. She submitted that her current employment in the health industry sector was very valuable to the Australian community. Her current role in Western Australia working in residential aged care as an enrolled nurse was a pathway for her to study and become a registered nurse, which was her goal. She has a young family, but no close relatives living in Australia. She thought that her personal family circumstances and her job role were compelling circumstances that affect the interests of Australia and should be considered.
The Tribunal found that the applicant was a credible and transparent witness who did not dissemble and sought to answer questions as truthfully as she could recall.

She acknowledged the importance of providing correct information, and that “the department cannot be wrong”, but asked that the Tribunal accepted that she would not have knowingly or intentionally sought to provide false or misleading particulars to the Department.
Bittu Mehla
On 24 October 2024, the secondary applicant made a lengthy statement for this review in response to a request from the Tribunal. The statement is not repeated here in full, but has been considered. In large measure it is consistent with what evidence was given at the hearing. He states that:
[extracts follow]
…
“6. My legal and correct name is Bittu Mehla, and my correct date of birth is 15 February 1995. However, due to administrative errors in some of my earlier documents, particularly my school certificates, my name was recorded as Bitto, and my date of birth was listed as 15 February 1993.
7.This discrepancy was neither intentional nor an attempt to provide false information. It arose from historical mistakes in my personal records, which I did not fully realize until later. As soon as I became aware of this issue, I took immediate legal action to correct my name and date of birth.
8.The discrepancy in my name and date of birth began during my early school admissions in India. At that time, many schools did not require parents to present formal documentation, such as a birth certificate, to verify a child's personal details. Instead, school authorities often recorded information based on verbal declarations made by parents during the enrolment process. This informal practice resulted in my name being recorded as "Bitto" instead of my correct name "Bittu Mehla," and my date of birth being entered as "15 February 1993" rather than my actual date of birth, "15 February 1995.”
9.Unfortunately, neither my parents nor I were aware of the significance of this error at the time. They did not see it as an urgent issue to correct, and thus, the error remained unaddressed throughout my schooling. As a result, my Year 10 and Year 12 certificates both carried the incorrect name "Bitto" and the wrong date of birth, "15 February 1993."
10.When it came time to apply for my first passport, I used the same educational documents that listed the incorrect details. As such, my first passport was also issued with the name "Bitto" and the incorrect birthdate. At that stage, I was unaware of the long-term complications this discrepancy could cause.
11.My first passport was issued under the name "Bitto" with the date of birth listed as 15 February 1993. The passport number was [number], and it was issued by the Republic of India based on my 10th-grade certificate. The date of issue for this passport was 20 November 2014, and its expiry date was 19 November 2024
…
And
16.In my visa application, I incorrectly answered "No" to both questions regarding whether I had been known by any other names and whether I had ever had a visa refused or cancelled. The reason for these errors was an unintentional typing mistake.”
The Tribunal asked questions of the secondary applicant. He did not know and could not recall the details or particulars of any previous applications he may have made. He said those applications had been arranged by an agent he had retained in India. He had tried to contact that agent to find out information on what had been produced to the Department. The agent in India had not responded to him and was “being uncooperative”. He said the agent had not informed him of the outcome of any application that may have been lodged and he was unaware of the details of any prior visa refusal decision applicable to an application on his behalf.
The Tribunal asked him why he had made the current application with his wife while not aware of the outcome for any previous application. He said he had joined her as a secondary applicant/ family member for her student visa applications in 2019 and 2021, when he had not heard from his previous agent about his own application. He just assumed there was no decision at that time.
It was put to him that his wife did not know what applications he may have made. He responded he did not tell her and that in any event he could not recall himself in 2019 as he had heard nothing from his agent and did not know whether or not an application had been lodged. He said he discovered: “I had made an application in 2016 or 2017 for a student visa”.
He was asked what he was going to study. He responded that “I’m not aware of that application” and said he only realised it had happened when he saw the delegate’s decision in July 2022.
The Tribunal found the answers implausible, but the witness sought to explain that in about 2016 or 2017, before coming to Australia with his wife, he had left everything to an agent in India who simply failed to communicate. He said he did not know what the agent may have done. He said that when he gave information to the applicant, he believed it was correct. He did not know the details of any decision concerning him which might have been refused. He could not tell the Tribunal or explain what application was being referred to by the delegate in the decision under review. He said he had tried to find out information from the Department unsuccessfully about what may have happened.
He said when he became aware of the issue of his identity and the claimed bogus document, as well as the false and misleading information, he and the applicant had agreed to have his identity issue ‘corrected’ by an Indian court and to reflect his correct birthdate on his school records. He was unable to inform the Tribunal about any particulars of the answers giving false or misleading information or the bogus document, but submitted his actual birth date is now as recorded as 15 February 1995, not 1993.
The Tribunal put to him that he had deliberately given the wrong information to his wife. He responded that he “agrees that was a mistake” and that in 2019 “I told my wife that I’ve not had a visa cancelled or refused”. He said similarly to the applicant that he had only learnt of a visa refusal against him in 2022 when he saw the delegate’s decision. He said he is not disputing the information referred to by the delegate which he accepts. He said he tried to find out information from his Indian agent after seeing the decision but without success. He agrees now he gave incorrect information to his wife.
He was asked about his relatives in Australia. He said he has 2 cousins in Perth one of whom is an Australian citizen. He did not know about the other cousin as “I don’t see them much”. He also has a brother in Perth who he believes has applied for a visa but “we don’t talk too much”.
Overall, the Tribunal formed the view that the secondary applicant was unimpressive in his evidence. He could not recall or provide particulars or details which he would be expected to know, such as any previous student visa application he may have made in 2016 or 2017 before coming to Australia. He had not bothered to check before informing his wife that he had not had any visa cancelled or refused before.
Representative’s submission
The representative was asked for any submissions. He had listened to all the evidence and concluded that the applicant had “married a person who made a mistake”, but that “the mistake was not made knowingly” by the applicant and that the family’s circumstances and hers in particular as a health worker were both “compassionate and compelling”.
Has the applicant given, or caused to be given a bogus document, or information that is false or misleading in material particular?
Bogus document
Having considered all the available information and the oral evidence, the Tribunal is satisfied that the applicant has given or caused to be given a bogus document, being a passport containing a different name and birthdate for the secondary applicant.
The evidence discloses that the secondary applicant had used his first passport (issued 20 November 2014) based on identity details wrongly recorded in his school certificate, for a student visa application which he had asked an Indian agent to lodge in 2016 or 2017.
In 2021, the secondary applicant gave his applicant wife details of a passport issued in 2018, which he used to travel to Australia, and which contained his correct name and birthdate. She did not question that information. His wife was unaware of his earlier application or its outcome, or the incorrect identity details it contained as to the spelling of his name and his incorrect birthdate.
The 2018 passport for her husband submitted by the applicant with her application, drew the attention of the delegate who reasonably concluded it was a bogus document as compared to the first passport, and identified a different person as a dependent applicant, and was therefore not issued by Indian authorities as a genuine Republic of India passport.
The delegate does not explain what “department procedures” were used to verify the document to check its veracity but nonetheless formed “the preliminary assessment” that it had not been issued in connection with the secondary applicant. The delegate not unreasonably assessed that the dependent applicant was attempting to use the 2018 passport, as one that had been doctored to overcome his visa history of a refused application.
The only evidence before the Tribunal as to whether that 2018 passport contained correct information in connection with the secondary applicant as to his name and date of birth, is the evidence from the civil judge in India obtained on 15 May 2024. The judge heard evidence about the “mistake” which evidence was accepted. The court then made orders to allow his identity information to be corrected on his school records, which records were then reissued.
The Tribunal has accepted that evidence and the copy of the judgement from the Indian civil court produced by the applicant for this review.
It was left unexplained for the Tribunal why the secondary applicant had obtained the ‘new’ passport in 2018, and why he had said nothing to his wife about his earlier visa history. His statement he had “forgotten” or simply “did not know” in 2019 and up until 2022 about the mistake disclosing his identity is hardly plausible.
False or misleading information in a material particular at the time it was given (on 13 August 2021).
Both applicants agreed in their oral evidence that the 2 answers to the questions cited above in these reasons was incorrect. The Tribunal has had regard to all the available information and concludes that the answers to those questions were relevant in the approval of the applicant’s two student visa applications in 2019 and 2021 and that the information was false or misleading at the time it was given. The ‘material particular’ was the secondary applicant’s identity and his visa history, which information goes to the heart of the integrity of the application process.[4]
[4] See comments in Patel (Migration) [ 2023] AATA 4148 (30 November 2023)
The Tribunal is further satisfied that had the correct answers been provided, those applications (including the current application) may not have been granted.
Is there an element of fraud or dishonesty and the necessary element of ‘purposeful falsity’ considered in Trivedi v MIBP [2014] FCAFC 42 (“Trivedi”)
Having concluded that the statutory elements in the Regulations have been made out, namely that the applicant provided information that was false or misleading in a material particular, and in addition, that the 2018 passport was reasonably considered by the delegate to be a bogus document, the Tribunal has considered the question of fraud and purposeful falsity in the context of a dishonest intention on the part of either applicant.
The applicant maintains in her oral assertions that she did not know of her husband’s true circumstances concerning his identity and of a previous application made on his behalf and using a different passport. The husband has also confirmed in his evidence that he did not tell the applicant those circumstances. He maintains his reasons for doing so were simply inadvertent, and because he did not know nor was he able to obtain any contradictory information from his former Indian agent.
The Tribunal accepts the applicant’s evidence that she was unaware of the true state of affairs about her husband and the correct information submitted in August 2021. She was unaware of her husband’s earlier passport information describing a different person. She had already submitted 2 successful applications naming her husband as dependent applicant. She had no reason to suspect this third application would be any different. It stands to reason that she would not submit information that she knew would be incorrect because it contradicted information already held by the Department, and lead to a likely outcome the application would be refused.
The Tribunal is satisfied that when she submitted the application for the subclass 485 visa with the incorrect information, and with different documentation to what her husband had relied upon previously, that she did so unwittingly.
The Tribunal has considered relevant authorities on the issue of innocent or unintended mistake or error. Trivedi’s case stands for the principle that if an applicant can explain an innocent mistake in a document or information provided by them or on their behalf, they may then be able to satisfy PIC 4020 (1).[5] It is a matter for the decision-maker in a fair contextual analysis to determine on the facts whether there was an innocent or unintended mistake or error.
[5] Department policy document – PAM 3 guide for decision-makers
In Zitkus v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2021] FCCA1881 (“Zitkus”), where the court was also considering PIC 4020, the court noted that the Tribunal in that case had considered whether the applicant’s actions were “innocent, unintended and accidental”. After considering the evidence and the applicant’s explanation, including that it had been ‘highly recommended’ that he disclose nothing, the court found that the disclosure was not unintended or accidental and the criterion was not met.[6]
[6] see discussion by decision-maker in Tribunal case 1927526 16 September 2022)
That does not mean, however, that a submission that a non-disclosure was “innocent, unintended and accidental” might never be able to be satisfied. It will depend upon whether there is evidence which could support such a finding, and which involves considering such a submission with an open mind as to the “quality” of the ‘purposeful falsity’ claimed to be involved, and so to reach a conclusion reasonably and logically soundly based.[7]
[7] See also on “illogicality” and “irrationality” Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR at [130] – [135].
The delegate in this instance did not have the benefit of hearing the witnesses, nor the written explanation in the secondary applicant’s submission to the Tribunal. The applicant also had attempted to establish the veracity of the applicant’s identity by reference to the 2018 passport as a document genuinely issued by the Republic of India. The documentation provided for review included evidence of a request made to VFS Global, used by governments around the world for exclusive biometric collection services and identity verification, with digital assistance in online visa applications.[8] Evidence was produced of payment for the application accepted on 3 October 2024 by VFS. The applicant did not submit a response from VFS with no indication as to when such response might be made. This discloses to the Tribunal however the applicant’s honest intent by seeking verification, not knowing in advance what the response might be.
[8] Welcome to VFS Global | vfsglobal [ website address]
The Tribunal was not persuaded by the evidence of the secondary applicant alone, which failed to cover essential elements, such as explaining why his new passport was issued in 2018 and his total failure to remember or particularise an earlier application where a different passport document had been submitted. He did not appear overly concerned about his prior conduct and in not keeping his wife up-to-date about events or his personal history.
Notwithstanding that concern however, the Tribunal was persuaded by the evidence from the Indian court and the applicant’s evidence and her argument that the information she had disclosed was not done with any purposeful falsity, and that it was innocent and unintended on her part. The Tribunal was satisfied that she did not set out to deceive or mislead, and was not tainted by any suggestion of fraud or falsity.
Her explanation that her husband had not told her was plausible, taking into account different cultural considerations as between husband-and-wife in India, where questions may not be raised by one against the other, and the likelihood that as the secondary applicant had stated, he did not think his history was important, at least not until it was too late and the significance dawned on him when the application was refused.
The Tribunal could find no authority which demonstrates that the circumstances relative to the dependent applicant’s negligence, or sheer inadvertence or carelessness on his part is akin to ‘purposeful falsity’ in the Trivedi sense. The Tribunal finds it is satisfied that the dependent applicant acted in the circumstances of this case without an element of intentional fraud.
Summary.
The Tribunal has found that the applicant has given, or caused to be given a ‘bogus document’, as defined in s 5(1), that is, a passport document that was reasonably suspected to have been issued in 2014, but not issued for the same person in 2018, and was obtained because of a false or misleading statement as to the identity of the person (the dependent applicant), and whether or not the statement was made knowingly by the applicant herself.
The Tribunal has also found that that the applicant has given false or misleading information in a material particular’ as defined in PIC 4020(5). The information was false or misleading at the time it was given in 2019, and 2021, and relevant to whether or not a decision was made because of that information.
So much is conceded by both applicants. The Tribunal is also satisfied that these findings made by the Department were relevant in relation to a visa held in the 12 months before this visa application under review was made in 2021.
The Tribunal having considered all the available information has placed significant weight on the oral evidence, arguments and submissions to the Tribunal. The delegate’s decision makes no reference to or apparent consideration of Trivedi’s case, any other relevant court authorities, or the application of Department Policy as it relates to consideration of intentional fraud in this context.
The Tribunal on the other hand has considered there was a genuine and unintentional error on the applicant’s part, compounded by the sheer inadvertence and negligence of the secondary applicant who acted carelessly, but not intentionally, in providing the wrong information. He believed the information was correct at the time it was given although taking no steps to verify its accuracy.
The Tribunal differs from the delegate’s findings to find that in its proper context, the evidence discloses that this is a case which meets the circumstances described in Trivedi in that there was no ‘purposeful falsity’ disclosed in the false or misleading information and the bogus document found on the evidence. It is a case which foundered on unintentional error and genuine mistake.
Each case must stand or fall on its particular facts. In this instance, the Tribunal is of the view that a fair and reasonable interpretation of the facts leads to a decision in favour of the applicants as the preferable outcome.
Therefore, the Tribunal finds that the applicant and the secondary applicant have both met PIC 4020 and that cl 485.216(1) is satisfied.
Has a visa previously been refused on the basis of a failure to satisfy PIC 4020(1)?

PIC 4020(2) requires the Tribunal to be satisfied that the applicant and each member of the family unit have not been refused a visa because of a failure to satisfy PIC 4020(1) in the period commencing 3 years before the application was made and ending when the visa is granted or refused. This requirement does not apply to a person who was under 18 at the time the application for the refused visa was made: PIC 4020(2AA).
The Tribunal finds on the available information that there is no evidence that the applicant and the secondary applicant as member of the family unit has been refused a visa because of a failure to satisfy PIC 4020(1) in the period commencing 3 years before the application was made and ending when the visa is granted or refused.
Therefore, PIC 4020(2) is met.
Has the applicant satisfied the identity requirements?
PIC 4020(2A) requires an applicant satisfy the Tribunal as to his or her identity.
The Tribunal has carefully considered all the available information. The identity of the secondary applicant was central to the refusal by the delegate and the Department’s decision.
For the reasons given in this decision, the Tribunal has found it is satisfied as to the identity of the secondary applicant and which has been corroborated through a court decision in an Indian court which had evidence which was accepted as to the ‘correct’ identity, and found accordingly. The Tribunal has accepted that evidence.

100. Therefore, the applicant meets PIC 4020(2A).
Has a visa previously been refused on the basis of a failure to satisfy PIC 4020(2A)?
101. PIC 4020(2B) requires that neither the applicant nor any family unit member have been refused a visa because of a failure to satisfy the identity requirements in PIC 4020(2A) during the period starting 10 years before the application was made and ending when the visa is granted or refused. This requirement does not apply to a person who was under 18 at the time the application for the refused visa was made: PIC 4020(2BA).
102. There is no evidence before the Tribunal that the applicant or any member of the family unit has been refused a visa in the relevant period because of a failure to satisfy PIC 4020 (2A).
103. Therefore PIC 4020(2B) is met.
The secondary applicant
104. Cl 485.311 requires that the second named applicant is a member of the family unit of a person who satisfies the primary criteria for the grant of the visa and who has made a combined application.
105. The Tribunal finds on the available information and accepts that the second named applicant is a member of the primary applicant’s family unit and who has made a combined application.
106. The secondary applicant is also required to satisfy PIC 4020 in accordance with cl 485.313.
107. As the applicants both satisfy PIC 4020 the appropriate course is to remit the applications for further consideration as to the remaining criteria.
Conclusion
108. On the basis of the above for this review, the Tribunal finds that the applicant does satisfy PIC 4020 for the purposes of cl 485.216(1).
DECISION
109. The Tribunal remits the applications for Skilled (Provisional) (Class VC) visas for reconsideration, with the direction that:
·The first and second named applicants meet Public Interest Criterion 4020 for the purposes of cl 485.216(1) of Schedule 2 to the Regulations
·The second named applicant meets cl 485.311 of Schedule 2 to the Regulations.

Date(s) of hearing: 9 December 2024
Representative for the Applicant: Mr Jujhar Bajwa (MARN: 0742209)

ATTACHMENT

Migration Regulations 1994
Schedule 4
4020(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.

(2)The Minister is satisfied that during the period:
(a)starting 3 years before the application was made; and
(b)ending when the Minister makes a decision to grant or refuse to grant the visa;

the applicant and each member of the family unit of the applicant has not been refused a visa because of a failure to satisfy the criteria in subclause (1).
(2AA)However, subclause (2) does not apply to the applicant if, at the time the application for the refused visa was made, the applicant was under 18.
(2A)The applicant satisfies the Minister as to the applicant’s identity.
(2B)The Minister is satisfied that during the period:
(a)starting 10 years before the application was made; and
(b)ending when the Minister makes a decision to grant or refuse to grant the visa;

neither the applicant, nor any member of the family unit of the applicant, has been refused a visa because of a failure to satisfy the criteria in subclause (2A).
(2BA)However, subclause (2B) does not apply to the applicant if, at the time the application for the refused visa was made, the applicant was under 18.
(3)To avoid doubt, subclauses (1) and (2) apply whether or not the Minister became aware of the bogus document or information that is false or misleading in a material particular because of information given by the applicant.
(4)The Minister may waive the requirements of any or all of paragraphs (1)(a) or (b) and subclause (2) if satisfied that:
(a)compelling circumstances that affect the interests of Australia; or
(b)compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen;

justify the granting of the visa.
(5)In this clause:
information that is false or misleading in a material particular means information that is:
(a)false or misleading at the time it is given; and
(b)relevant to any of the criteria the Minister may consider when making a decision on an application, whether or not the decision is made because of that information.

Migration Act 1958
s 5 Interpretation
(1) In this Act, unless contrary intention appears:
…

bogus document, in relation to a person, means a document that the Minister reasonably suspects is a document that:
(a)purports to have been, but was not, issued in respect of the person; or
(b)is counterfeit or has been altered by a person who does not have authority to do so; or
(c)was obtained because of a false or misleading statement, whether or not made knowingly.