Singh v Minister for Immigration and Citizenship
[2025] FedCFamC2G 889
•11 June 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Singh v Minister for Immigration and Citizenship [2025] FedCFamC2G 889
File number(s): BRG 42 of 2023 Judgment of: JUDGE COULTHARD Date of judgment: 11 June 2025 Catchwords: MIGRATION – Regional Sponsored Migration Scheme (Class RN) (Subclass 187) visa – judicial review of a decision of the Administrative Appeals Tribunal – misapplication of Public Interest Criterion 4020(1) – third party fraud – materiality – futility – no jurisdictional error – application dismissed Legislation: Migration Act 1958 (Cth) ss 5; 46; 47; 48; 65; 476; 477
Migration Regulations 1994 (Cth) reg 187.233; 187.311
Public Interest Criterion 4020; 4202
Cases cited: Elliah v Minister for Immigration and Citizenship [2025] FCA 459
Gill v Minister for Immigration and Border Protection (2016) 248 FCR 398; [2016] FCAFC 142
Kaur v Minister for Immigration and Border Protection (2019) 269 FCR 464; [2019] FCAFC 53
Kaur v Minister for Immigration and Border Protection [2021] FCA 1026
Maharjanv Minister for Immigration and Border Protection (2017) 258 FCR 1; [2017] FCAFC 213
Singh v Minister for Immigration and Border Protection (2016) 247 FCR 554; [2016] FCAFC 141
Singh v Minister for Immigration and Border Protection (2017) 253 FCR 267; [2017] FCAFC 105
SZFDE vMinister for Immigration and Citizenship (2007) 233 CLR 189; [2007] HCA 35
Trivedi & Ors v Minister for Immigration and Border Protection & Anor (2014) 220 FCR 169; [2014] FCAFC 42
Xiong v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1075
Division: Division 2 General Federal Law Number of paragraphs: 86 Date of last submission/s: 28 May 2025 Date of hearing: 24 October 2024 and 28 May 2025 Place: Brisbane Solicitor for the Applicants: The first and second applicant appeared in person unrepresented Solicitor for the First Respondent: Ms White - Sparke Helmore Solicitor for the Second Respondent: The second respondent filed a submitting appearance, save as to costs ORDERS
BRG 42 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: AMANDEEP SINGH
First Applicant
LOVERPREET KAUR
Second Applicant
BIRJOT SINGH BHANHU
Third Applicant
AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent
ADMINISTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE COULTHARD
DATE OF ORDER:
11 JUNE 2025
THE COURT ORDERS THAT:
1.The name of the first respondent be changed to “Minister for Immigration and Citizenship”.
2.The application is dismissed.
3.The first applicant and second applicant pay the first respondent’s costs, fixed in the amount of $6,500.
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 COULTHARD
INTRODUCTION
Before the Court is an application for judicial review of a decision of the then Administrative Appeals Tribunal (“the Tribunal”) by which the Tribunal affirmed a decision of a delegate of the Minister for Home Affairs (as the Minister was then called) (“the delegate”) to refuse to grant the applicant a Regional Sponsored Migration Scheme (Class RN) (subclass 187) visa.
BACKGROUND
Application for a visa and the delegate’s decision
The applicants are citizens of India.
On 24 February 2017, the first applicant (“the applicant”) applied for a Regional Sponsored Migration Scheme (Class RN) (subclass 187) visa (“the visa”). The applicant’s spouse and child (the second and third applicants respectively) were added to the application as members of the applicant’s family unit. In the visa application, the applicant nominated the sponsoring employer as Sunshine Steak and Seafood Pty Ltd (trading as Cinnamon Lane) (“the sponsor”/“the nominator”) in the nominated position of Cook (Court Book (“CB”) 1-24).
On 14 October 2019, the delegate refused to grant the visa on the basis that the applicant did not meet the criteria in cl 187.233(3) of Schedule 2 of the Migration Regulations 1994 (Cth) (“the Regulations”) because the position was not the subject of an approved nomination (CB 28-38).
On 12 October 2021, the Tribunal set aside the delegate’s decision to refuse the sponsor’s nomination and substituted a decision to approve the nomination by the nominator. Also on 12 October 2021, the Tribunal remitted the applicants’ visa application to the Department of Home Affairs (“the Department”) to consider the remaining criteria for the visa with a direction that the applicant met cl 187.233(3) in Schedule 2 of the Regulations (CB 43-47).
On 20 December 2021, the Department wrote to the applicant inviting him to comment on information that an online search of public sources appeared to show that the sponsor had ceased to trade at their nominated business address and therefore may no longer be actively operating a trading business at the given address (CB 70-73). The Department went on to explain that it had concerns that the applicant may not be employed at the nominated address and that the nominator is not able to pay the proposed salary as indicated in the associated nomination application. The Department requested the applicant provide verifiable evidence to demonstrate that the business was actively and lawfully operating in Australia, whether it had the financial capacity to support two years continuous employment together with any information related to recent changes in the business address and its operations. The Department invited the applicant to comment and requested that the applicant provide, inter alia, a current valid and executed lease agreement or property ownership of the address at which the business was said to be operating.
On 10 January 2022, the applicants’ migration agent requested an extension of time in which to prepare the requested documents (CB 74).
On 3 February 2022, the applicants’ migration agent provided documents to the Department being payslips, an employment contract and bank statements (CB 210). On the same date, the Department made a further written request for the applicant to provide a current valid and executed lease agreement or property ownership of the address at which the business was said to be operating (CB 209-210). The Department’s request asked the applicant to ensure that the documents provided by him were verifiable (CB 209-210).
On 9 February 2022, the applicant provided to the Department several documents including, relevantly, a lease agreement executed on 16 March 2020 (“the lease agreement”) (CB 169-192; 211-216).
On 15 February 2022, the Department wrote to the applicant setting out reasons why it considered that the lease agreement was a bogus document within the meaning of that term in s 5(1) of the Migration Act 1958 (Cth) (“the Act”) (CB 211-216). The Department stated that an open-source check shows that the lessor [in the lease agreement] was deregistered with ASIC on 4 December 2018 but that the execution date on the lease agreement was 16 March 2020 and that given the deregistration it was not possible for the same entity to execute a valid lease agreement on 16 March 2020. The applicant was invited to provide comment within 14 days.
On 25 February 2022, the applicants’ migration agent wrote to the Department stating that he had been instructed by the applicant to provide to the Department a letter from the director of the sponsor (“Mr Masum”) which responded, inter alia, to the Department’s concern that the lease agreement was a bogus document (CB 217-219). In that letter dated 25 February 2022, Mr Masum stated that it is possible for a business to be deregistered and still operate if they are in the process of reinstating the registration and can be registered by paying the fee to ASIC (CB 218-219).
On 29 March 2022, a delegate made the decision to refuse to grant the applicant the visa for reasons including that the applicant did not satisfy Public Interest Criterion (“PIC”) 4020(1) because, relevant to these proceedings, the lease agreement which the applicant had provided to the Department was a bogus document. The delegate also considered that there was no evidence that compelling circumstances existed to waive the requirement of PIC 4020(1) (CB 222-234) (“the delegate’s decision”).
Application for review to the Administrative Appeals Tribunal
On 13 April 2022, the applicants applied to the Tribunal for review of the delegate’s decision (CB 235-242).
On 26 July 2022, the Tribunal invited the applicants to attend a hearing on 16 August 2022 to give evidence and present arguments relating to the issues arising in their case. The hearing was rescheduled to 30 August 2022 at the applicants’ request (CB 247-249; 253-254; 259-260).
On 23 August 2022, the applicants provided written submissions and documents to the Tribunal in support of their application (CB 262-295). The documents provided included a statutory declaration by the applicant to the effect that all the documents submitted by him [to the Department] were provided by his employer and that he did not forge or create those documents (CB 294-295); and screenshots from the applicant’s mobile telephone evidencing receipt of the documents from his employer (CB 278-293).
On 30 August 2022, the applicants attended the hearing before the Tribunal by video conference to give evidence and present arguments. They were assisted by their representative and an interpreter in the Punjabi and English languages (CB 309).
The Tribunal allowed the applicants until 21 September 2022 to provide further information (CB 211). On 21 September 2022, the applicants’ migration agent provided written submissions and documents in support of the applicant’s submission as to a waiver of PIC 4020 (CB 313-332).
On 22 November 2022, the Tribunal affirmed the delegate’s decision and gave written reasons for its decision (CB 337-354) (“Decision”).
THE TRIBUNAL’S DECISION
Relevantly, the Tribunal identified that the issues on review were whether:
(a)the applicant met PIC 4020(1) which, relevantly, required that there is no evidence that the applicant had given, or caused to be given, to the Minister a bogus document in relation to the application for the visa ([24]);
(b)if the applicant did not satisfy PIC 4020(1) whether pursuant to PIC 4202(4) there were compelling circumstances that affect the interests of Australia or compassionate or compelling circumstances affecting the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen to waive the requirements of PIC 4020(1) to justify the grant of the visa ([25]);
(c)in any event, the visa application could be not granted given that the nominated position was no longer available to the applicant ([102]-[103]).
Providing a bogus document and PIC 4020
The Tribunal summarised the evidence and submissions and made the following findings referring to the principles in Trivedi & Ors v Minister for Immigration and Border Protection & Anor (2014) 220 FCR 169; [2014] FCAFC 42 (“Trivedi”) as to the engagement of PIC 4020(1):
(a)The lease agreement was a bogus document because it was either a completely counterfeit document or a copy of an earlier lease which had been altered by a person not having authority to do so ([60]-[63]);
(b)It is not necessary to show knowing complicity by the visa applicant. The words “given or caused to be given” do not import a mental element such that an applicant needs to know that the documents they are providing are defective in the relevant sense. All that is necessary is the information provided was purposefully false ([65]);
(c)Having found that the lease agreement was either a completely counterfeit document or a copy of an earlier lease which had been altered by a person without authority, the information contained in it was therefore purposefully false ([66]);
(d)The lease agreement had been given to the Minister by the applicants’ migration agent acting on the applicant’s instructions and that accordingly the applicant had given the lease or caused it to be given to the Minister ([66]).
(e)The Tribunal accordingly found that the applicant did not meet PIC 4020(1) ([85]).
Whether visa application stultified by fraud
In respect of the provision of the lease agreement, the applicant submitted that the visa application had been vitiated by the sponsor’s fraud, that is, by fraud on the part of Mr Masum. The Tribunal accepted that the fraud associated with the preparation of the bogus lease agreement was attributed to the sponsor ([79]). The applicant’s submission was that he should not be penalised by the exclusion period which would apply under PIC 4020(2) due to someone else’s “unethical deeds” or “penalised” for the sponsor’s actions ([79]; [81]).
The Tribunal identified the relevant principles applicable to a determination of whether a visa process is stultified by fraud by reference to the principles set out in the decision of the Full Court in Kaur v Minister for Immigration and Border Protection (2019) 269 FCR 464; [2019] FCAFC 53 (“Kaur”) at [56] per Murphy, Mortimer and O’Callaghan JJ ([76]) which principles the Tribunal said include that the applicant satisfy the court to the requisite standard that they were neither complicit in the fraud nor “indifferent” to it. The Tribunal also referred to “indifference” as explained in Gill v Minister for Immigration and Border Protection (2016) 248 FCR 398; [2016] FCAFC 142 (“Gill”).
The Tribunal then went on to make the following observations with respect to the provision of the bogus lease agreement to the Department:
81. The applicant has claimed that he should not be penalised for Mr Masum's actions. However, the Tribunal discussed with him at the hearing whether he thought that it was unusual that he should be paid wages for over two years when he was not required to work for the business paying those wages. He said that he thought that it was unusual, but that Mr Masum had told him that the business was receiving Government benefits and that is why the business continued to pay his wages. The applicant acknowledged that he sought alternative employment and received wages for that employment whilst receiving the wage payments from the nominator.
82. The Department notified the applicants on 20 December 2021 that it was concerned that the nominator may have ceased to trade at its nominated address. The applicant had previously been employed at the nominator's business as a Cook but had not been required to work there for over two years at the time when the Department issued its request for information. The applicants provided to the Department the documents supplied by Mr Masum and made no independent enquiries to provide a response to the Department's request for information. The Tribunal finds that the applicant was indifferent to the fraud associated with the provision of the bogus document.
Having made those observations, the Tribunal concluded that the applicant had not established that he was the innocent victim of fraud and that accordingly the visa application had not been invalidated by third party fraud ([83]).
Waiver of PIC 4020
Having found that the applicant did not meet the requirements of PIC 4020(1), the Tribunal considered whether the requirements should be waived. The Tribunal identified that the requirement may be waived where there are compelling circumstances that affect the interests of Australia, or where there are compassionate or compelling circumstances that affect the interest of an Australian citizen, an Australian permanent resident, or an eligible New Zealand citizen that justify the granting of the visa ([89]).
The Tribunal referred to the invitation to the applicant to provide evidence as to whether such circumstances existed. The Tribunal concluded that there was no evidence provided to the Tribunal that could lead to a consideration of a waiver on the basis of compelling reasons affecting the interests of Australia ([95]) nor was there any evidence provided that there existed compelling or compassionate circumstances that affected the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen ([96]).
Accordingly, the Tribunal concluded that the requirements of PIC 4020(1) should not be waived in respect of the applicant ([97]).
Nominated position no longer available
The Tribunal then considered the further issue in the matter which was whether the nominated position was still available to the applicant ([98]).
The Tribunal stated that it explained to the applicant that even if the Tribunal found that PIC 4020 had been met, the visa application could still be refused because the position was, on the applicant’s own evidence, no longer available ([102]-[103]). The Tribunal referred to the applicant’s evidence that he would no longer work for the sponsor even if he was invited back to work ([103]). The applicant told the Tribunal that he was aware that the visa application could not be approved because he no longer had a nominator ([104]).
Having regard to the requirement of “position” in cl 187.233 and the authority of Singh v Minister for Immigration and Border Protection (2017) 253 FCR 267; [2017] FCAFC 105 (“Singh”), the Tribunal concluded that the applicant did not meet cl 187.233(5) in Schedule 2 of the Regulations because the nominated position was no longer available to him ([105]-[106]). The Tribunal referred to the applicant’s evidence that he had been offered employment with an employer other than the nominator and stated that as the “position” referred to a particular job with a particular employer that exists at the time at which the employer nomination is submitted for approval, the recent offer of employment was not relevant ([105]).
As a result, the Tribunal found that the applicant did not meet cl 187.233(5) and that the second and third applicants did not meet cl 187.311 in Schedule 2 of the Regulations because they were not members of the family unit of a person who held a Subclass 187 visa ([106]-[109]).
APPLICATION TO THIS COURT
On 18 January 2023, the applicants filed an application for judicial review pursuant to s 476(1) of the Act. The applicants also filed on 18 January 2023 an affidavit affirmed by the applicant. The affidavit recounted the history of the matter, the applicant’s reliance upon the genuineness of the documents provided to the delegate and annexes documents which were provided to the Tribunal after the hearing, and which are in the Court Book (CB 315-322; 330). The affidavit also annexes a copy of the Tribunal’s Decision.
Procedural orders were made permitting the applicants to file an amended application with proper particulars of the grounds of the application and requiring the filing of written submissions and any additional evidence on which they sought to rely. The first respondent was ordered to file and serve written submissions and any additional evidence on which the first respondent sought to rely. Orders were also made as to the preparation, filing, and service of a Court Book. In the preparation of the Court Book, two documents were inadvertently excluded. They are annexed to the affidavit of Jarvis Dale Kristenfeldt affirmed on 3 October 2024 and filed on behalf of the first respondent on 3 October 2024 (“Kristenfeldt affidavit”). Those documents are an ASIC search of Murphy & Sons (Pialba) Pty Ltd and a Titles Queensland search. They are taken to form part of the Court Book.
Pursuant to s 477(1) of the Act the application was required to be made within 35 days of the Tribunal decision, that is, by 27 December 2022. Accordingly, the application was filed 20 days out of time. The application was listed as a hearing of the application to extend time and a hearing of the substantive application in the event the Court extended time. Prior to the hearing the Court notified the parties that the listed hearing would proceed as a hearing on the extension of time only with the matter to be listed for a hearing on a date to be fixed in the event time was extended.
The application for an extension of time came on for hearing on 24 October 2024. The hearing was adjourned to enable the applicants to make further submissions on the issue of futility as it related to the application of PIC 4020. For that purpose, pro bono representation was facilitated for the applicant. Written submissions were filed on behalf of the applicant on 28 January 2025 with respect to the application for extension of time. Before the matter came on for hearing again, an order was made, by consent, granting the application for an extension of time pursuant to s 477(2) of the Act. The application for judicial review was set down for final hearing on 7 April 2025. That date for the final hearing was later adjourned to 28 May 2025.
The applicant and second applicant appeared in person unrepresented. The applicant made submissions and had the assistance of an interpreter in the Punjabi and English languages.
The material before the Court was the application, the applicant’s affidavit, the applicant’s written submissions filed on 28 January 2025, the response, the first respondent’s written submissions filed on 4 October 2024 and further consolidated written submissions filed on 9 May 2025, and the Court Book (which as noted above is taken to include the annexures to the Kristenfeldt affidavit). Before the hearing commenced, the Court confirmed with the applicants that they had these documents in Court with them.
CONSIDERATION
For the applicants to be successful the Court must be satisfied that the Tribunal’s decision is affected by material jurisdictional error.
The Court explained to the applicants that the role of the Court was limited to determining whether the Tribunal had made a legal or procedural error and that the role of the Court on judicial review is not to decide whether on the evidence before the Tribunal the Court considers that the applicant should or should not be granted the visa.
Despite the procedural orders permitting them to do so, the applicants did not file an amended application.
The grounds of review set out in the application are (without alteration):
1.The Second Respondent made jurisdictional error in its application of the waiver provision in public Interest Criterion 4020 (PIC 4020) in Schedule 4 to the Migration Regulations 1994 (Cth).
Particulars
a) The Second Respondent ignored the general Australian Public Interest aspect of my application by overlooking, ignoring and not inquiring whether any compelling and compassionate reason exists in the application.
2.The Second Respondent made judicial error by failing to consider and taking a narrow approach rather than broadly, the concept of indifference allied to “reckless indifference” at Common law pursuant to paragraph 16 of Kaur v Minister for Immigration and Border Protection [2021] FCA 1026.
Particulars
a)The applicant was in a passive position when seeking an employment, or nomination from the Nominator and it is unusual for the applicant or any employee to conduct a company ASIC search to scrutinise the existence of the company, director and the shareholder of the company. Given the fact that the applicant worked at Mr Masum’s Cinnamon Lane restaurant until December 2019 did not put the credibility of Mr Masum in doubt.
b)The fact that the Second Respondent found that the lease was a bogus document puts the credibility of the Nominator in doubt. The details of the lessor and premises are listed on the front page of the lease. Given the fact that the lessor of the lease is not the registered proprietor and was dis-registered, the nominator should be easily discovered during the due diligence period by the Immigration department at the very initial stage of approval. The Approval of the Nomination for the Department provides more confidence to the Applicant than doubting the Nominator.
Despite the procedural order requiring them to do so, the applicants did not file any written submissions apart from the written submissions filed on 28 January 2025 regarding the application to extend time. The applicants were given the opportunity to make oral submissions in support of the application for judicial review and in response to the first respondent’s submissions.
Ground One: the application of the waiver in PIC 4020
Ground one concerns the Tribunal’s decision not to waive the requirements of PIC 4020. The applicant contends that the Tribunal had ignored the “general Australian Public Interest aspect of my application” by “overlooking, ignoring and not inquiring whether any compelling and compassionate reason exists in the application” other than by submitting that the requirement of PIC 4020 should not have applied to him or his family.
In their written submissions filed 28 January 2025 (“AS”), the applicants submit that the applicants do not allege that the Tribunal “ignored” or “failed to make inquiries” but allege that PIC 4020 was misapplied (AS [14]). This appears to be an abandonment of ground one as pleaded in the application. Nevertheless, given that the proceedings continued with the applicant unrepresented, the Court has considered ground one as pleaded in the application.
In his oral submissions, the applicant did not make any submission in support of ground one as pleaded in the application.
The Court agrees with the first respondent’s submission that the Tribunal’s reasons for Decision do not disclose any jurisdictional error in its consideration of the waiver of PIC 4020(1). The Tribunal found that there was no evidence before it relevant to the waiver. The applicant’s submissions were as to matters that were personal to him and accordingly not relevant to the matters required to be considered in considering the waiver. Accordingly, there is no merit in the contention in ground one that the Tribunal overlooked or ignored relevant evidence in its consideration of the waiver. At [89]-[97] of its reasons for Decision, the Tribunal correctly identifies the requirements of the waiver and the matters addressed by the applicant in support of his submission that the requirement of PIC 4020(1) should be waived.
Accordingly, no jurisdictional error is established on ground one.
Ground two: misapplication of the test about indifference
In ground two, the applicants contend that the Tribunal misunderstood or misapplied the requirement of “indifference”, in relation to the applicant’s provision of the bogus lease agreement to the Department, rather than assessing that involvement having regard to the requirement of “reckless indifference”. In support of that contention, the application refers to the decision of the Federal Court in Kaur v Minister for Immigration and Border Protection [2021] FCA 1026 at [16]. There the Federal Court set out what was said by the Full Court of the Federal Court in Kaur at [136]-[140] as to what is meant by indifference in the context of indifference to the commission of a fraud.
Two further points are made in the applicants’ written submissions in support of the contention that the Tribunal “misapplied” PIC 4020. Those points are that:
(a)PIC 4020 is not directed to “innocent, unintended or accidental matters” (AS [15] referring to Trivedi at [32]) and so the Tribunal’s finding that it did not need to consider the applicants’ knowledge of the falsity of the lease agreement was contrary to the High Court’s decision in SZFDE vMinister for Immigration and Citizenship (2007) 233 CLR 189; [2007] HCA 35 (“SZFDE”) (AS [19] referring to SZFDE at [22] and Kaur at [56]);
(b)the lease agreement was not relevant to the assessment of the relevant visa criteria because whether such a lease existed is not, and cannot be, determinative of the question of employment (AS [17]).
The applicants further submitted in their written submissions that if the applicant can demonstrate that he was the innocent victim of a fraud perpetrated by a third party that will vitiate the first respondent’s refusal of the visa application and will require determination afresh (AS [20]). It is not clear whether what was intended by this submission is that the applicants intended to seek a declaration that no valid visa application had been made within the meaning of ss 46 and 47 of the Act. No application to amend the relief sought in the application has been made. An application for such declaratory relief would have required a hearing to be held and evidence led which would have enabled this Court to make a finding with precision as to what the fraud was, how it was perpetrated, and what effect it had on the visa application having regard to the approach set out in Kaur at [56]-[58] (see also Elliah v Minister for Immigration and Citizenship [2025] FCA 459 at [77]-[81]).
The question before this Court is whether the Tribunal, in its consideration of whether the visa application was stultified by fraud, fell into jurisdictional error.
In summary, the Court understands the grounds of the application as now pressed in ground two of the application and articulated in the applicants’ written submissions as to jurisdictional error are:
(a)Whether the Tribunal erred in considering the applicant’s knowledge as to the falsity of the lease agreement;
(b)The lease agreement was not, in any event, relevant to a consideration of the relevant visa criteria;
(c)The Tribunal erred in its consideration of whether the visa application was stultified by the fraud of the sponsor.
The Court will deal with each of these in turn.
Knowledge of the applicant as to the lease agreement being a bogus document
PIC 4020(1) provided:
(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 reviewable migration decision, a relevant assessing authority or a Medical Officer of the Commonwealth, a bogus document or information that is false or misleading in a material particular in relation to:
(a)the application for the visa; or
(b)a visa that the applicant held in the period of 12 months before the application was made.
The term “bogus document” was defined in s 5(1)(b) of the Act as follows:
bogus document, in relation to a person, means a document that:
(a) purports to have been, but was not, issued in respect of a 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.
The Tribunal found that the lease agreement was a bogus document within the meaning of s 5(1)(b) of the Act. The basis for that finding was set out in ([61]) of the Decision as follows:
61. The lease, on the face of it, was executed on 16 March 2020. It was prepared in the name of Murphy as lessor. The ASIC extract in respect of that company confirms that the company had been deregistered since 4 December 2018. The Titles Registry search in respect of the subject land reveals that a different entity had owned the land since 14 April 2016. Although prepared in the name of Murphy as lessor, the lease purports to have been executed by the nominator Sunshine Steak and Seafood Pty Ltd as both lessor and lessee.
The Tribunal concluded that it was satisfied on the evidence that the lease agreement produced to the Department was either a completely counterfeit document or a copy of an earlier lease which had been altered by a person not having authority to do so. Accordingly, the Tribunal found that the lease agreement was a bogus document given to the Minister in relation to the application for the visa ([63]).
The Tribunal’s finding that the lease agreement was a bogus document within the meaning of s 5(1)(b) of the Act is not in contention in these proceedings.
The applicants’ submission is instead directed to the Tribunal’s consideration of whether the Tribunal’s finding that it did not need to consider the applicant’s knowledge of the falsity of the lease agreement. The Tribunal dealt with this at [64]-[66] of its reasons for Decision.
The Tribunal found that the lease agreement was provided to the applicant by Mr Masum and that the applicant gave it to his migration agent for submission to the Department ([64]). In oral submissions to this Court, the applicant submitted that the lease agreement was provided directly by the sponsor to the Department. If by this the applicant contends that the lease agreement was not provided by him to his migration agent who then provided it to the Department, this contention is inconsistent with the evidence in that regard in the Court Book (CB 74; 169-192; 211-216; 279-293). Further, the applicant provided the sponsor’s letter of 25 February 2022 to his migration agent who provided it, on the applicant’s instructions, to the Department (CB 217-219). In any event, in the absence of the transcript, the Court agrees with the first respondent’s submission that the Court is to rely upon the Tribunal’s reasons as an accurate summary of the evidence before the Tribunal.
The Tribunal stated that it was not necessary to show knowing complicity by the applicant and that the words “given or caused to be given” do not import a mental element such that an applicant needs to know that the documents they are providing are defective in the relevant sense. The Tribunal observed that all that is required is that the information provided was purposefully false ([65]). The Tribunal then went on to find that the lease agreement was provided by the Department by the applicants’ migration agent, acting on the applicant’s instructions, and that it was given or caused to be given by the applicant ([66]).
The Court does not find any error in this approach. In Trivedi, Buchanan J (Allsop CJ and Rangiah J agreeing) at [43] said that it is not necessary to show knowing complicity by a visa applicant. Then at [49] his Honour said:
[49] For the reasons I have already given, it should be accepted that PIC 4020 is directed information or documents which are purposely untrue. It seems to me to be clear from the same analysis that the purpose of PIC 4020 was to render visa applicants ultimately responsible for the veracity of the information and documents supplied to support the application …
Accordingly, the approach of the Tribunal in its application of PIC 4020(1) at [64]-[66] does not disclose any jurisdictional error.
Whether the lease agreement was relevant to the “employment”
The applicants contend that the lease agreement was not relevant to the criteria for the visa as it was not determinative of the “issue of employment”.
The Court agrees with the first respondent’s submission that this contention misunderstands PIC 4020. The requirement in PIC 4202(1) that there is no evidence before the Minister that the applicant has given or caused to be given a bogus document in relation to the application for the visa does not require that the document be relevant to any of the other criteria that must be satisfied for the visa to be granted. In any event, it would appear to be relevant to the criteria as to the availability of the position.
Stultification of the visa application by fraud
Whether the visa application was stultified by fraud is a separate issue to the application of PIC 4020(1). At the hearing before the Tribunal, the representative made a reference to the stultification of the visa application process in the applicants’ submission to the Tribunal dated 22 August 2022 (CB 264-270).
The asserted invalidity of the visa application depended on whether it was affected by third party fraud on the applicants and which also stultified one or more aspects of the visa application and determination process (Kaur at [53]-58]; SZFED at [11], [28]-[37] and [47]-[55], Singh v Minister for Immigration and Border Protection (2016) 247 FCR 554; [2016] FCAFC 141 at [51]-[52] and Gill at [47]). That was the issue before the Tribunal based on the evidence before it.
The lease agreement was not provided with the visa application. It was provided by the applicant some five years later in response to the Department’s request for information. Nevertheless, it is not in contention that the lease agreement must be considered as part of the visa application as it comprehends not only the form filled in by a visa applicant but also supporting documents which must be considered by the Minister under s 47 of the Act until a decision is made under s 65 of the Act (Maharjanv Minister for Immigration and Border Protection (2017) 258 FCR 1; [2017] FCAFC 213 at [108]. This was acknowledged by the Tribunal (at [80]).
The principles as to whether fraudulent conduct vitiates a visa application were set out by the Full Court of the Federal Court in Kaur at [56]-[58]. As to indifference in the context of public law fraud, the Full Court in Kaur set out the relevant principles at [134]-[140] noting that indifference approximates to what has been called “reckless indifference” at common law. Where a visa applicant is found to be indifferent to a fraud perpetrated by a third party as part of the decision-making process, this will avoid the unravelling effect of the fraud (Kaur at [58](b)).
Here, the alleged fraud associated with the preparation of the lease agreement was attributed by the applicant to Mr Masum. This was not a case in which it was suggested that the applicants’ migration agent acted fraudulently. This was acknowledged by the Tribunal ([79]). Accordingly, the question for the Tribunal was whether the applicant was “indifferent” to the fraud associated with the preparation of the lease agreement by Mr Masum. There was no evidence that the applicant had colluded with Mr Masum and the Tribunal made no such finding.
The Tribunal referred to the relevant authorities as to what is meant by “indifference” in the context of public fraud. The Tribunal specifically referred to Kaur and what is meant “indifference” as explained in Gill (an authority referred to by the Full Court in Kaur in its discussion on indifference). The Tribunal then considered the applicant’s evidence and submissions and made the following findings (at [81]-[82]):
81. The applicant has claimed that he should not be penalised for Mr Masum's actions. However, the Tribunal discussed with him at the hearing whether he thought that it was unusual that he should be paid wages for over two years when he was not required to work for the business paying those wages. He said that he thought that it was unusual, but that Mr Masum had told him that the business was receiving Government benefits and that is why the business continued to pay his wages. The applicant acknowledged that he sought alternative employment and received wages for that employment whilst receiving the wage payments from the nominator.
82. The Department notified the applicants on 20 December 2021 that it was concerned that the nominator may have ceased to trade at its nominated address. The applicant had previously been employed at the nominator's business as a Cook but had not been required to work there for over two years at the time when the Department issued its request for information. The applicants provided to the Department the documents supplied by Mr Masum and made no independent enquiries to provide a response to the Department's request for information. The Tribunal finds that the applicant was indifferent to the fraud associated with the provision of the bogus document.
The Tribunal concluded that it was not satisfied that the applicant had established that he was the innocent victim of a fraud and that accordingly, the visa application had not been vitiated by fraud ([83]).
The Court cannot discern any error in the approach taken by the Tribunal. The Tribunal identified the correct legal principles and applied those principles to the evidence before it. The Tribunal’s conclusions on the evidence were neither illogical, irrational or unreasonable.
No jurisdictional error is established on ground two.
Materiality and discretionary refusal of relief – futility
The first respondent submits that for the applicants to establish that the Tribunal’s decision was affected by jurisdictional error, it is necessary to demonstrate each of the Tribunal’s alternate findings were affected by legal error, that is, its finding with respect to PIC 4020 and the availability of the nominated position.
The first respondent submits that this is because either of those alternative findings would have been sufficient on its own to lead the Tribunal to affirm the decision under review (first respondent’s further consolidated submissions (“FRFS”) [41]). The Court agrees (Xiong v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1075 at [63]-[81]).
As discussed earlier, the applicant admitted at the Tribunal hearing that the nominated position is no longer available to him ([40]; [103]) and gave evidence that he would no longer work in the nominated position for the nominator and had been offered employment with another employer. The Court is prepared to infer that based on the offer of new employment (or any other new employment) the applicant will never be able to satisfy cl 187.233 because a new nomination in respect of the same position made by a new employer cannot be relied upon to meet the requirements of that clause (Singh at [88]-[89]). The Court accepts the first respondent’s submission in that regard (FRFS [42]).
Accordingly, were the Court to have found jurisdictional error in respect of the Tribunal’s consideration of PIC 4020, the Tribunal would have to affirm the delegate’s decision on the basis that the nominated position is not available. That would be an exercise in futility.
The applicant, however, raised in submissions the three-year ban imposed by PIC 4020(2). The applicant told the Court that this was the only reason he was pursuing the application for judicial review. He submitted that he did not want to risk any future visa application not being granted because of the three-year ban.
PIC 4020(2) provided:
(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).
The effect of PIC 4020(2) was that the applicant and each member of his family unit would not be able to satisfy the Minister that during the period starting three years before the application for a visa was made and ending when the Minister makes a decision to grant or refuse to grant the visa the applicant and each member of his family unit had not been refused a visa because of a failure to satisfy PIC 4020(1). The exclusion does not apply to the third applicant by operation of PIC 4020 (2AA).
The three-year period has now expired. It expired on 29 March 2025; the delegate’s decision having been made on 29 March 2022. Accordingly, the applicant and the second applicant are not now prevented by the operation of PIC 4020(2) from making an application for a visa.
The Court’s attention was, however, drawn by the first respondent in oral submissions to the operation of s 48 of the Act. Section 48(1) of the Act provided:
(1) A non‑citizen in the migration zone who:
(a) does not hold a substantive visa; and
(b) after last entering Australia:
(i)was refused a visa, other than a refusal of a bridging visa or a refusal under section 501, 501A or 501B, for which the non‑citizen had applied (whether or not the application has been finally determined); or
(ii) held a visa that was cancelled under section 109 (incorrect information), 116 (general power to cancel), 133A (Minister’s personal powers to cancel visas on section 109 grounds), 133C (Minister’s personal powers to cancel visas on section 116 grounds), 134 (business visas), 137J (student visas) or 137Q (regional sponsored employment visas);
may, subject to the regulations, apply for a visa of a class prescribed for the purposes of this section or have an application for such a visa made on his or her behalf, but not for a visa of any other class.
Putting aside any of the visas prescribed for the purposes of s 48, if an applicant did not hold a substantive visa at the time of the delegate’s decision on 29 March 2022, then the effect of s 48(1) of the Act is that an applicant would have to be offshore to make a valid visa application. There is no evidence before the Court upon which any finding can be made as to the visas held by the applicants at the time of the delegate’s decision. The first respondent submitted that the Court could safely assume that the first and third applicants did not hold a substantive visa at that time but that it could not be certain about that in respect of the second applicant (CB 20-21). The first respondent submitted, however, that materiality resolves the point. This is because in circumstances where the Tribunal can only affirm the delegate’s decision (for the reason explained above with respect to the availability of the nominated position), then the limitation imposed by s 48 of the Act would remain. The Court agrees.
Accordingly, it remains that it would be futile for the Court to remit the matter to the Tribunal even were it to have found jurisdictional error by the Tribunal.
CONCLUSION
For the reasons outlined, no jurisdictional error is established. Accordingly, the application is dismissed.
I certify that the preceding eighty-six (86) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Coulthard. Associate:
Dated: 11 June 2025
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