Shrestha v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2025] FedCFamC2G 998
•27 June 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Shrestha v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2025] FedCFamC2G 998
File number(s): SYG 572 of 2021 Judgment of: JUDGE MCCABE Date of judgment: 27 June 2025 Catchwords: MIGRATION – application for review of Administrative Appeals Tribunal’s decision – student visa – Public Interest Criterion 4020 – jurisdictional error established. Legislation: Migration Act 1958 (Cth)
Migration Regulations 1994 (Cth)
Cases cited: LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12
Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Others [1996] HCA 6; (1996) 136 ALR 481
Trivedi v MIBP [2014] FCAFC 42.
Division: Division 2 General Federal Law Number of paragraphs: 35 Date of last submission/s: 5 June 2025 Date of hearing: 16 May 2025 Place: Sydney Solicitor for the applicant: Mr R Turner (Ray Turner Immigration Lawyers) Counsel for the first respondent: Mr G Johnson Solicitor for the first respondent: Sparke Helmore Lawyers Second respondent: Submitting appearance, save as to costs ORDERS
SYG 572 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: SAKSHAM SHRESTHA
First Applicant
JANAKI SHRESTHA
Second Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE MCCABE
DATE OF ORDER:
27 JUNE 2025
THE COURT ORDERS THAT:
1.A writ of certiorari be issued directed to the second respondent quashing its decision dated 16 March 2021.
2.A writ of mandamus be issued directed to the Administrative Review Tribunal (the successor body to the second respondent) requiring it to determine the applicants' application for review according to law.
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 MCCABE:
Clause 500.217(1) of Schedule 2 to the Migration Regulations 1994 (Cth) refers to requirements that must be met by an applicant for a student visa. The requirements are set out in various 'public interest criteria' instruments. This case focuses on the provisions of Public Interest Criterion 4020 (PIC4020). PIC4020 imposes two requirements which are said to be relevant here. PIC4020(1) says there must be no evidence that an applicant has provided a bogus document or information that is false or misleading in a material particular. PIC4020(2) says the minister must be satisfied the applicant and each member of their family unit has not been denied a visa on account of PIC4020(1) during a three-year exclusion period. (The three-year exclusion period is triggered when the applicant was denied a visa by reasons of a contravention of PIC4020(1).) PIC4020(4) says the requirements in PIC4020(1) and (2) can be waived.
This case arises out of an incorrect answer given by Mr Saksham Shrestha to a question contained in an official form. The form was completed in support of Mr Shrestha's application for a Student (Temporary) (Class TU) (Subclass 500) visa in 2019. His wife, Mrs Shrestha, formed part of the same application on the basis she was a member of her husband's household. The problematic question in the form related to the visa history of the applicants. Mr Shrestha was asked whether he or any person covered by the form had previously been refused entry to Australia. Mr Shrestha said 'no'. But Mrs Shrestha had previously been denied a visa (and had thus been refused entry to Australia) on two occasions. The error was drawn to Mr Shrestha's attention after the minister's department consulted its records. Mr Shrestha thereafter attempted to correct the record, but - at least in the eyes of the minister's delegate - the damage was already done. The delegate concluded the applicant failed to comply with the provisions of PIC4020(1) notwithstanding the applicant's attempt to correct his answer in the form. The delegate also declined to exercise the discretion in PIC4020(4) to waive the requirements. That meant the applicant and his family member were unable to satisfy cl 500.217(1). The visas were denied on that basis. The Administrative Appeals Tribunal reached the same conclusion on review. The Tribunal's decision - which is the subject of these proceedings - is dated 16 March 2021.
Background
Mr Shrestha and his wife are both citizens of Nepal. Mr Shrestha entered Australia in early 2019 on a visitor visa. He subsequently enrolled in a course and applied for a student visa on 9 April 2019. He was assisted by a migration agent in that process. His wife was included in the application as a member of his family unit. Mrs Shrestha remained offshore.
The application form is reproduced in exhibit one (the court book) at pp 1ff. Amongst other questions, the form asked (court book at p 12):
Has the applicant, or any person included in the application, ever had an application for entry or further stay in Australia or any other country refused, or had a visa cancelled?
The form records Mr Shrestha answering 'No' to that question. On 7 June 2019, Mr Shrestha was contacted by the minister's department in relation to his answer: court book at pp 44ff. The applicant was told the department's records showed Mrs Shrestha had been refused (a) a student visa on 26 October 2018 and (b) a visitor visa on 14 March 2019. (Copies of the refusal decisions are reproduced in the court book at pp 50ff.) The applicant was asked to comment on this information. In a letter dated 20 June 2019, Mr Shrestha confirmed his wife had previously applied for and been denied visas. He said his incorrect answer in the application form was the product of a misunderstanding as to the scope of the question: court book at p 49. He explained:
I thought that the question you referred to in your letter of 7 June 2019 was asking whether my visa application was refused or cancelled and as my visa application has never been refused or cancelled I replied to that question as “NO”.
The delegate's decision refusing the visa is dated 16 August 2019. The decision is reproduced at pp 61ff of the court book. In the decision, the delegate explained:
Based on the evidence and information before me, I find that the applicant has given information that is false or misleading in a material particular to 500.217. Therefore, I am not satisfied that the applicant meets Public Interest Criterion (PIC) 4020, subclause 4020(1).
The delegate acknowledged Mr Shrestha's evidence that the misstatement was the product of an honest mistake. The delegate nonetheless decided it would not be appropriate to exercise the discretion in PIC4020(4) to waive the requirement in PIC4020(1) or the exclusion period imposed under PIC4020(2). It followed that the applicant was unable to satisfy the requirements in cl 500.217(1), which meant the visa must be refused.
The Tribunal's review
Mr Shrestha and his wife sought review of the delegate's decision in the Tribunal. Mr Shrestha provided a statutory declaration (court book at p 93) in which he repeated his explanation that he gave an incorrect answer to the question in the form because he thought the question only referred to him, not the secondary applicant. He added: "My intention was not to deceit to Immigration or make any false representation." His migration agent provided submissions to similar effect: court book at pp 91ff. The applicant was asked about his answer on the form in a short hearing held by telephone on 16 March 2021.
The Tribunal decided to affirm the delegate's decision following that hearing. The decision dated 16 March 2021 is reproduced in the court book at pp 106ff. In its reasons for decision, the Tribunal observed PIC4020(1) might be contravened even where the bogus document or false or misleading statement was provided unwittingly. But the Tribunal added (at [10]):
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 Tribunal acknowledged Mr Shrestha's statutory declaration and the evidence he gave at the hearing to the effect that the incorrect answer was the product of a genuine misunderstanding: at [13]-[14]. The Tribunal then explained its finding as follows (at [15]):
15. The Tribunal has considered this matter carefully and notes that the applicant has not stated that he did not provide misleading information but simply asserted that he made a mistake in doing so. The applicant did not provide any other evidence in regard to this matter for active consideration by the Tribunal. The Tribunal notes that it is the applicant's responsibility to ensure that in all his dealings with the Department that he provides accurate and up-to-date information. The Tribunal has considered this carefully and finds that the applicant did provide misleading information in this context to the department and did not provide any other evidence to refute the contention that he did so. As stated above the Tribunal has considered this matter very carefully and finds that the applicant has given, or caused to be given, to the Minister, an officer, or a relevant assessing authority a misleading document that is false or misleading in a material particular as defined in PIC 4020, that is false or misleading at the time it is given, and is 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.
I note the Tribunal's finding in [15] appears to turn on its criticism of Mr Shrestha's failure to provide "any other evidence" that the applicant had made an innocent mistake. It is not clear what other evidence the Tribunal had in mind apart from the evidence already to hand in the form of (a) Mr Shrestha's statutory declaration in which he asserted he was genuinely confused and (b) his sworn evidence to similar effect provided at the hearing. At a minimum, the Tribunal does not explain why Mr Shrestha's various statements should not be believed. The Tribunal does not point to evidence of "an element of fraud or deception by some person" even though it acknowledged (at [10]) that Trivedi suggested PIC4020(1) was only engaged in those circumstances. I will return to this issue below.
The Tribunal concluded Mr Shrestha was unable to satisfy the requirement in PIC4020(1). It also concluded the requirements in PIC4020(1) and (2) should not be waived pursuant to PIC4020(4). On that basis, the Tribunal concluded Mr Shrestha (and Mrs Shrestha by extension) did not satisfy cl 500.217(1). The Tribunal affirmed the delegate's decision.
The application for judicial review
The applicant's further amended application for review was filed in conjunction with post-hearing submissions. I gave the applicant leave to file those submissions given his case evolved somewhat during the course of oral submissions by his solicitor, Mr Turner. The minister did not oppose the further amended application for review, and I accept leave should be given to rely on those grounds.
Mr Shrestha's further amended application for review identifies two grounds, whereas the amended application before the Court at the time of the hearing only identified one ground. That first ground was the focus of oral submissions by the representatives of the parties. The ground contends the non-disclosure of Mrs Shrestha's visa history was inadvertent and corrected when it was brought to his attention. Mr Turner, the applicant's solicitor, argued that even belated disclosure to correct an inadvertent error effectively expunged that error through the operation of s 99 of the Migration Act 1958 (Cth). I was told it followed there was no false or misleading statement for the purposes of PIC4020(1) by the time of the Tribunal's decision (or the time of the delegate's decision, for that matter). The further amended application added a second ground which captured some of the submissions that were made at the hearing. The second ground contends the Tribunal failed to carry out its statutory duty in applying PIC4020.
The first ground of review: was there a false or misleading statement?
The Tribunal found the statement contained in the application form regarding visa history was factually incorrect when the form was lodged. As well it might: the applicant said 'No' in answer to a question about whether anyone covered by the application had been refused entry in circumstances where the correct answer to that question was clearly 'Yes'. The applicant appears to have conceded in his evidence to the Tribunal that the statement was factually incorrect when made, albeit he insisted the misstatement was the product of a genuine misunderstanding as to the scope of the question: see the Tribunal's reasons at [14].
The applicant's first ground of review proceeds on the basis Mr Shrestha corrected the record before the application for a visa was finalised. The correction supposedly came in his letter to the department on 20 June 2019 that I have already quoted. Strictly speaking, that letter did not disclose the missing facts about Mr Shrestha's visa history; rather, the letter merely confirmed what the department had already brought to the applicant's attention after the department consulted its records. This is not a case where the applicant realised he made a mistake and promptly informed the department of the error before the error was independently discovered. Mr Turner says that distinction is irrelevant for present purposes.
Mr Turner argues the Tribunal was wrong to make its findings having regard only to the information provided in the form when it was filed. He argued the Tribunal was able to take account of subsequent revisions to answers in the form when the Tribunal considered whether the applicant made a false or misleading statement within the meaning of PIC4020(1). In making that argument, Mr Turner relies on the operation of s 99 of the Act. Section 99 provided at the time:
Any information that a non-citizen gives or provides, causes to be given, 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.
The minister points out in written submissions that s 99 is found in Subdivision C of Part 2 Division 3 of the Act. The heading of Subdivision C is 'Visas based on incorrect information may be cancelled'. The minister notes the decision under challenge in this case is not a cancellation decision, but a refusal decision - whereas a perusal of other provisions in the same subdivision suggests they are concerned with cancellation. I was told that tends to suggest a decision to refuse a visa may not be covered by s 99 even though the language of that section refers to information given to a decision-maker "reviewing a decision under this Act in relation to the non-citizen's application for a visa…".
As it happens, some other provisions in Subdivision C are not expressly limited to cancellation decisions. As I understand the minister's argument, however, these provisions are all ultimately referable to the cancellation powers contained in Subdivision C.
Mr Turner says the operation of s 99 is not limited as the minister contends. Mr Turner says the effect of s 99 is that Mr Shrestha's belated explanation of his wife's visa history is taken to be his answer to the relevant question on the visa application form. If that is the correct approach, then Mr Turner argues there was no answer in the application form that was false or misleading.
I do not need to reach a concluded view on the minister's argument about the scope of provisions in Subdivision C because I am satisfied s 99 does not assist the applicant in the way Mr Turner contends. That section is one of several integrity provisions which explain how information provided to the department is to be treated. The integrity provisions are obviously intended to ensure those engaging with the department provide truthful and accurate information. Section 99 says any information given to the department at any point in connection with a visa application is treated as if it were provided in answer to a question on the form. By treating all information as if they were answers to questions on the form, that information is subjected to the integrity provisions which apply to the application form. Those integrity provisions include s 101 which says answers given on the form (or which are deemed by s 99 to be given on the form, I should interpolate) must be correct. Section 100 says the answer to the question might be incorrect even though the person providing the answer did not know it was incorrect. Section 105 creates an obligation to inform the department where the non-citizen becomes aware an answer in the form was incorrect.
Section 99 is, in effect, a deeming provision which effectuates the integrity provisions. There is no basis in the text of that section for assuming incorrect answers are somehow expunged by the simple expedient of providing fresh or different information, whether that information is provided pursuant to the obligations in ss 104 or 105 or otherwise. A contravention of s 101(b) occurs when incorrect information has been provided in answer to a question on a visa application form, even if the answer is subsequently corrected and is deemed to be given in answer to the same question.
The applicant says the Tribunal's decision was defective because it was based on a fact (ie, a false or misleading statement) that did not exist because the Tribunal did not take account of the operation of s 99. For reasons I have explained, s 99 does not have the effect contended for. The first ground of review as articulated in the amended further application for review must therefore fail.
The second ground of review: did the Tribunal fail to discharge its statutory function in dealing with PIC4020?
The applicant says the Tribunal should have addressed three questions in order to determine whether PIC4020(1) was contravened. It needed to ask itself:
(a)Was there an error?
(b)If there was an error, was that error material in the relevant sense?
(c)Was there an element of fraud or deception in the non-provision of the information?
In his further amended application for review, the applicant accepts the Tribunal made a finding that there was an error. But what of the other criticisms?
The minister's supplementary submissions argue the Tribunal's discussion at [8] of its reasons confirms the Tribunal was conscious of the need to be satisfied the false or misleading statement was material. At [15] the Tribunal appears to be referring to the concept of materiality when it suggests the information in question must be "relevant to any of the criteria the Minister may consider when making a decision on an application…". I accept the Tribunal did not dwell on the concept of materiality or offer a more detailed exposition of its understanding, but that is likely because the materiality of the false statement in this case was obvious when one has regard to the criteria.
There can be no doubt the failure to disclose Mrs Shrestha's visa history was material to the question the Tribunal had to decide under PIC4020(1). That information went to the very heart of the requirement in that determination. The minister pointed out the secondary applicant's visa history was also a relevant matter to consider when determining whether the primary applicant was a genuine temporary entrant under cl 500.212 of the regulations: see cl 500.212(c). The Tribunal was plainly aware of the requirement of materiality. Given it is not appropriate to read the Tribunal’s reasons “with an eye keenly attuned to the perception of error”, I am satisfied the Tribunal has done enough in its reasons to establish it had the requirement of materiality in mind when it made its findings: see Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Others [1996] HCA 6; (1996) 136 ALR 481 at 490 per Brennan CJ, Toohey , McHugh and Gummow JJ.
That brings me to the other criticism - namely, that the Tribunal failed to consider whether there was an element of fraud or deception in the provision of the false or misleading information. The requirement of an element of fraud or deception was discussed by the Full Court in Trivedi. In that case, Buchanan J acknowledged (at [28]) "it is not necessary a visa applicant know of, or be directly involved in, any falsehood for PIC 4020 to be engaged". But after analysing the text of PIC4020(1), his Honour went on to observe (at [32]-[33]):
32. ….I would not infer any apparent intention to disqualify a visa applicant who could explain an innocent mistake in a document or information provided by them. PIC 4020 is not directed, in my view, to innocent, unintended or accidental matters. However, different questions arise when information or documents provided in support of an application are revealed as false, in the purposely untrue sense of that term.
33. In my view, it should be accepted that an element of fraud or deception is necessary in order to attract the operation of PIC 4020. To take the example of bogus documents, a counterfeit document is not produced accidentally. Similarly, to charge that a statement is false is not to say only that it is wrong. The accusation potentially imports some element of knowledge or intention on somebody's part, and in my view does so in the present context.
At [43], his Honour explained the requirement that the false statement be "purposely untrue" could be satisfied even though the applicant was not aware of the falsity. His Honour explained:
In my view, it is not necessary (for reasons yet to be further developed) to show knowing complicity by a visa applicant. That would impose an impossible task on those administering the visa system. But it is necessary that the information or document have the necessary quality of purposeful falsity, whether or not the visa applicant can be shown to have knowledge of that fact.
The Tribunal in this case mentioned the decision in Trivedi and noted the requirement that there be an element of fraud or deception (at [10]). The Tribunal also noted the applicant insisted the incorrect answer in the form was the product of an innocent misunderstanding, and that "his intention was not to deceive or make false representation…": at [13]; see also [14]. But the Tribunal did not thereafter expressly find there was purposeful falsity.
The minister argues the absence of an express finding does not matter in circumstances in where the Tribunal found there was purposeful falsity by implication. That implication was said to flow from the fact the Tribunal's finding in [15] necessarily involved a rejection of the applicant's claim that the non-disclosure was innocent.
I have already quoted paragraph [15], the decisive passage in the Tribunal's reasons. One must look past the repeated but gratuitous assertions that "the Tribunal has considered this matter carefully" to examine the substance of what the Tribunal says in that passage. The Tribunal begins by observing "the applicant has not stated that he did not provide misleading information but simply asserted that he made a mistake in doing so". That does not address the real issue, which is whether there was purposeful falsity on the part of the applicant or someone else. But a close examination of what was said in that paragraph reveals a further problem.
Even if one accepts the Tribunal's finding in that paragraph amounts to an implicit rejection of the applicant's claim he acted innocently, it is not apparent why the Tribunal reached that conclusion. That is a problem here because the Tribunal found the applicant's assertions of innocent intent were not established because they were uncorroborated - adding it was the responsibility of the applicant to provide all the evidence necessary to establish they were entitled to the visa. In expressing its finding in that way, the Tribunal failed to acknowledge there was evidence - in the form of the applicant's assertions of innocence - that had to be evaluated and rejected on its own terms before the finding could properly be made. If that finding were defended on the basis the Tribunal rejected the applicant's assertions because it expected there would be corroborating evidence if true, that would point to illogicality: it does not follow an applicant cannot be believed in the absence of corroboration.
The Tribunal's reasoning in this respect is unreasonable. That finding - such as it was - was central to the Tribunal's ultimate decision. It follows the decision is affected by jurisdictional error. There does not seem to be any doubt this jurisdictional error is material in the sense explained by the plurality in LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12 at [6]-[7]: the decision could have been made differently if the jurisdictional error had not occurred.
Conclusion
A writ of certiorari must be issued quashing the decision of the Administrative Appeals Tribunal, and a writ of mandamus should be directed to the Administrative Review Tribunal directing that it reconsider the application according to law.
I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment of Judge McCabe. Associate:
Dated: 27 June 2025
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