Song v Minister for Immigration, Citizenship and Multicultural Affairs
[2022] FedCFamC2G 469
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Song v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 469
File number: SYG 3363 of 2017 Judgment of: JUDGE KENDALL Date of judgment: 16 June 2022 Catchwords: MIGRATION – Student visa – decision of the Administrative Appeals Tribunal – whether the Tribunal erred in determining that the applicants did not meet the requirements for the grant of the visas – whether the Tribunal’s failure to disclose the existence of a s 375A certificate to the applicants amounted to jurisdictional error – whether material provided to the Court post-dating the Tribunal’s decision identified any error – no jurisdictional error – application dismissed. Legislation: Migration Act 1958 (Cth), ss 438, 352, 375A, 359A, 476
Migration Legislation Amendment (2016 Measures No. 1) Regulation 2016, Item 32 in Schedule 4, Schedule 5
Migration Regulations 1994 (Cth), cll 572.223 and 572.224 in Schedule 2, PIC 4020 in Schedule 4
Cases cited: Arora v Minister for Immigration and Border Protection [2016] FCAFC 35
Bala v Minister for Immigration & Border Protection [2019] FCA 600
Batra v Minister for Immigration and Citizenship [2013] FCA 274
BEG15 v Minister for Immigration & Border Protection [2017] FCAFC 198
Craig v State of South Australia (1995) 184 CLR 163
Gupta v Minister for Immigration [2016] FCA 1004
Hong v Minister for Immigration & Anor [2019] FCCA 3500
Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437
Minister for Immigration & Border Protection v Singh (2016) 244 FCR 305
Minister for Immigration & Citizenship v Li (2013) 249 CLR 332
Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration v SZMTA; CQZ15 v Minister for Immigration; BEG15 v Minister for Immigration [2019] HCA 3
MZXHY v Minister for Immigration [2007] FCA 622
Plaintiff M64/2015 v Minister for Immigration and Border Protection [2015] HCA 50
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294
SZJMG v Minister for Immigration & Citizenship [2008] FCA 1145
SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80
Trivedi v Minister for Immigration and Border Protection [2014] FCAFC 42
Division: Division 2 General Federal Law Number of paragraphs: 95 Date of hearing: 14 June 2022 Place: Perth Applicants: First applicant in person Counsel for the First Respondents: Mr S Kovacs Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Clayton Utz ORDERS
SYG 3363 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: HOOI SEE SONG
First Applicant
HENRY TAN
Second Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE KENDALL
DATE OF ORDER:
16 JUNE 2022
THE COURT ORDERS THAT:
1.The application be dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE KENDALL:
BACKGROUND
The applicants in this proceeding are citizens of Malaysia (Court Book (“CB”) 1-3). The first and second applicants are wife and husband respectively (CB 1-2 & 10-11).
The applicants first arrived in Australia in May 2015 as the holders of Electronic Travel Authority (Class UD) (Subclass 601) visas (the “visitor visas”). The applicants indicated on their Passenger Travel Cards that they were entering Australia with the intention of staying for a five day holiday (CB 25).
The applicants were married in New South Wales on 13 June 2015 (CB 10-11).
On 3 July 2015, the first applicant applied for a Student (Temporary) (Class TU) Vocational Education and Training Sector (Subclass 572) visa (the “visa”) (CB 1-9). The first applicant’s husband (the second applicant) was included in that visa application as a member of the first applicant’s family unit (CB 2-3).
The first applicant was, at the time of the visa application, enrolled to undertake a Certificate II in Business, Certificate III in Business Administration and Certificate IV in Small Business Management (CB 26).
On 7 July 2015, the then Department of Immigration and Border Protection (the “Department”) requested that the first applicant provide further information in support of the visa application (CB 19-28). Specifically, the Department requested that the first applicant provide a statement addressing the genuine temporary entrant criterion (having regard to the factors set out in Ministerial Direction No. 53) (CB 26-27).
On 28 July 2015, the applicants responded to that request by providing additional documents to the Department. Those documents were re-sent on 7 August 2015, 11 August 2015 and 8 October 2015 (CB 29-66) and included the first applicant’s “genuine temporary entrant” statement, bank documents and financial information and other supporting information.
On 15 October 2015, the first applicant was invited to comment on adverse information (CB 67-71). In particular, the invitation stated as follows:
Adverse information received
The department has conducted checks to confirm the information that you provided in your application. During this process we have received unfavourable information which does not support your application.
The financial evidence that you have provided in support of your student visa application from CIMB Bank Berhad has been sent to the offshore post for verification.
Based on the verifications conducted it has been confirmed that the financial document is not genuine and has been altered.
This information is relevant to the consideration of the student visa application as you have provided a false and misleading document. Therefore, the financial evidence provided is not credible and is not a true reflection of your financial capacity as required to satisfy the grant of the student visa application.
I invite you to comment on the aforementioned and provide evidence to support your claims.
The applicants did not provide any response.
On 14 March 2016, a delegate of the first respondent (the “Minister”) refused to grant the applicants the visas (CB 77-93). The delegate found that the first applicant had “given or caused to be given a bogus document”. On that basis, the delegate found that the first applicant did not satisfy PIC 4020 in Schedule 4 of the Migration Regulations 1994 (Cth) (the “Regulations”) and, as such, failed to satisfy cl 572.224 in Schedule 2 of the Regulations (CB 86). The delegate also found that the second applicant did not satisfy cl 572.322 in Schedule 2 of the Regulations.
On 30 March 2016, the applicants lodged an application for review of the delegate’s decision with the Administrative Appeals Tribunal (the “Tribunal”) (CB 94-96).
On 23 September 2016, the applicants were invited (through their representative) to attend a hearing before the Tribunal on 13 October 2016 (CB 101-104).
On 12 October 2016, the applicants’ representative provided further material to the Tribunal in support of their application (CB 105-169).
On 13 October 2016, a delegate of the Minister issued a “certificate regarding disclosure of certain information to Administrative Appeals Tribunal under s 375A of the Migration Act 1958” (the “s 375A certificate”) (CB 170).
The applicants appeared at a hearing before the Tribunal on 13 October 2016. The applicants were assisted at that hearing by their registered migration agent and by an interpreter in the “Chinese and English languages” (CB 177).
On 18 October 2016, the Tribunal affirmed the delegate’s decision refusing to grant the applicants the visas (CB 174-180).
The applicants sought judicial review of the Tribunal’s decision in the then Federal Circuit Court of Australia (“FCCA”).
On 16 June 2017, a Judge in the FCCA remitted the matter (by consent) to the Tribunal for reconsideration (CB 181-182). It was noted that the Minister had conceded that the Tribunal had erred by failing to disclose the s 375A certificate to the applicants (CB 182).
On 29 September 2017, the applicants were invited by the Tribunal (through their representative) to comment on or respond to information (CB 187-191). The invitation letter (dated 27 September 2017) provided an overview of the applicants’ migration history and stated (CB 189-190):
•On 28 July 2015 you provided evidence to the Department being financial evidence from CIMB Bank Berhad in relation to the secondary applicant, Henry Tan attesting to monies that was held in his name in that bank.
•The Department made enquiries to its offshore post regarding whether or not the document from CIMB Bank Berhad was genuine.
•On 27 August 2015 the offshore post confirmed that the document was not genuine and had been altered.
…
This information is relevant to the review because it suggests that you are not a genuine applicant for entry and stay as a student as this information suggests you, as a holder of a higher degree course has applied for a student visa in the VET sector in Australia in order to maintain ongoing residence in Australia rather than a genuine interest in study.
If we rely on this information in making our decision, we may find that you do not satisfy the requirements of cl.572.223(1)(a) of Schedule 2 to the Regulations that requires that you are a genuine applicant for entry and stay as a student and we may affirm the decision under review ..
You are invited to give comments on or respond to the above information in writing.
Your comments or response should be received by 13 October 2017. If the comments or response are in a language other than English, they must be accompanied by an English translation from an accredited translator.
If you cannot provide your written comments or response by 13 October 2017, you may ask us for an extension of time in which to provide the comments or response. If you make such a request, it must be received by us before 13 October 2017 and you must state the reason why the extension of time is required.
We will carefully consider any request for an extension of time and will advise whether or not the extension has been granted.
If we do not receive your comments or response within the period allowed or as extended, we may make a decision on the review without taking any further action to obtain your views on the information. You will also lose any entitlement you might otherwise have had under the Migration Act 1958 to appear before us to give evidence and present arguments.
No response or comment was received by the applicants or their representative.
On 19 October 2017, the Tribunal affirmed the delegate’s decision refusing to grant the applicants the visas (CB 195-201).
On 2 November 2017, the applicants filed an application for judicial review of the Tribunal’s decision in this Court. That application was supported by an affidavit (deposed by the first applicant on 31 October 2017) which annexed a copy of the Tribunal’s decision record.
The application for judicial review is filed pursuant to s 476 of the Migration Act 1958 (Cth) (the “Act”). To obtain assistance from this Court, the applicants must show that the Tribunal has fallen into jurisdictional error.
TRIBUNAL’S DECISION
The Tribunal’s decision is seven pages in length and spans 28 paragraphs. It also includes two pages containing extracts of the relevant legislative provisions.
The Tribunal first identified the type of visa under review (at [1]) and summarised the delegate’s decision (noting that the delegate was not satisfied that the first applicant met the requirements set out in cll 572.224 and 572.223(1)(a) in Schedule 2 of the Regulations on the basis that PIC 4020 in Schedule 4 of the Regulations had not been met (at [2])).
The Tribunal explained that the applicants had applied for the visas on 3 July 2015 (at [3]) and that a differently constituted Tribunal had affirmed the decision under review on 18 October 2016. It also explained that the FCCA had remitted the application (by consent) to the Tribunal on 26 June 2017 (at [4]).
The Tribunal then stated:
5.On 29 September 2017, the Tribunal wrote to the applicant, pursuant to s.359A of the Act, inviting the applicant to comment on or respond to certain information. The applicant was advised that the applicant’s comments or response should be received by 13 October 2017 and if the applicant cannot provide written comments or response by 13 October 2017, the applicant may ask the Tribunal for an extension of time in which to provide the comments or response. The applicant was advised that if the Tribunal did not receive her comments or response within the period allowed or as extended, the Tribunal may make a decision on the review without taking any further action to obtain the applicant’s views on the information and the applicant would also lose any entitlement to appear before the Tribunal to give evidence and present arguments.
The Tribunal explained that the applicants had not responded within the specified time period (at [6]) and that it had proceeded to make its decision on the review (at [7]), noting that the applicants were represented by a registered migration agent in relation to the review (at [8]).
The Tribunal identified that:
9.The issue in this review is whether the visa applicant meets Public Interest Criterion 4020 (PIC 4020) as required by cl.572 for the grant of the visa. Broadly speaking, this requires that:
•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: cl.4020(1); and
•the applicant and each member of the family unit has not been refused a visa because of a failure to satisfy cl.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: cl.4020(2) and (2AA); and
•the applicant satisfies the Minister as to his or her identity: cl.4020(2A); and
•neither the applicant nor any family unit member has been refused a visa because of a failure to satisfy cl.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: cl.4020(2B) and (2BA).
The Tribunal explained that the requirements set out in PIC 4020 in Schedule 4 of the Regulations could be waived in certain circumstances where there are compelling and compassionate reasons to justify the granting of the visa (at [10]).
The Tribunal then summarised the delegate’s decision as follows (at [11]):
(a)the applicants arrived in Australia in May 2015 as the holders of the visitor visas and stated on their passenger cards that they intended to stay for a five day holiday;
(b)the applicants were married on 13 June 2015. On 3 July 2015, the first applicant applied for the visa (noting that on the previous day, she had enrolled in a Certificate II in Business, a Certificate III in Business Administration and a Certificate IV in Small Business management, from 7 September 2015 to 7 April 2019);
(c)on 7 July 2015, the Department, being concerned that the first applicant had lodged the visa application to maintain a residence in Australia rather than for study purposes, invited her to comment on information regarding her “genuine intention to stay in Australia temporarily as a student”;
(d)on 28 July 2015, the first applicant responded to the Department and provided a statement and supporting documents (including bank statements);
(e)on 15 October 2015, the Department advised the applicants that attempts to verify evidence provided from CIMB Bank Berhad had found that the document was “not genuine and had been altered”;
(f)the applicants were invited to comment on the suspected “non genuine” information but no response was received; and
(g)the Department found that the first applicant had “given or caused to be given a bonus document and, on that basis, did not satisfy PIC 4020 in Schedule 4 of the Regulations (noting that this also meant that the second applicant failed to satisfy the requirements).
The Tribunal continued:
12. The Tribunal, advised the applicant, pursuant to s.359A that:
•On 28 July 2015 she provided evidence to the Department being financial evidence from CIMB Bank Berhad in relation to the secondary applicant, Henry Tan attesting to monies that was held in his name in that bank.
•The Department made enquiries to its offshore post regarding whether or not the document from CIMB Bank Berhad was genuine.
•On 27 August 2015 the offshore post confirmed that the document was not genuine and had been altered.
13.The applicant was advised that this information is relevant to the review because it may lead the Tribunal to find that there is evidence she gave documents that are considered to be bogus and she gave information to the Department that is false or misleading in a material particular in relation to the visa application. She was advised that unless the requirement of PIC 4020 is waived by the Tribunal (which it can only do if it is satisfied that there are compelling circumstances that affect the interests of Australia or compelling or compassionate circumstances that affect the interests of an Australian citizen, permanent resident or an eligible New Zealand), the Tribunal would find that she did not satisfy an essential criterion for the grant of a visa and may affirm the decision under review.
The Tribunal then assessed whether the first “applicant ha[d] given, or caused to be given a bogus document, or information that [was] false or misleading in material particular”. In this regard, the Tribunal:
(a)explained some of the key terms and definitions and cited relevant case law (at [14]) (including Arora v Minister for Immigration and Border Protection [2016] FCAFC 35 and Batra v Minister for Immigration and Citizenship [2013] FCA 274);
(b)noted that the requirement regarding bogus documents was applicable whether or not the Minister became aware of the bogus documents and whether the document was providing knowingly or unwittingly (at [15]). Further, the Tribunal need not conclude that an applicant was aware that the information was “purposely untrue” for PIC 4020 of Schedule 4 of the Regulations to be engaged (at [16]). The Tribunal also noted that there needed to be “an element of fraud or deception by some person”, citing Trivedi v Minister for Immigration and Border Protection [2014] FCAFC 42;
(c)noted that the first applicant was advised that the document from CIMB Bank Berhad “was not genuine and had been altered” but did not respond to the invitation to comment letter. The Tribunal confirmed that it would “rel[y] on the information before it” (at [17]);
(d)was satisfied that the first applicant had “given, or caused to be given … a ‘bogus document’” (at [18]); and
(e)found that the first applicant did not meet the requirements of PIC 4020 in Schedule 4 of the Regulations (at [19]).
The Tribunal then considered whether the requirements of PIC 4020 in Schedule 4 of the Regulations should be waived. In that regard, the Tribunal:
(a)explained that the requirements may be waived where there are compelling circumstances affecting the interests of Australia or compassionate or compelling circumstances affecting the interests of an Australian or New Zealand citizen or an Australian permanent resident, which justify the granting of the visa (at [20]);
(b)noted that the expressions “compelling circumstances” and “compassionate or compelling circumstances” are not defined but that, to be compelling, the circumstances must “force or drive the decision-maker irresistibly to be satisfied”, citing Plaintiff M64/2015 v Minister for Immigration and Border Protection [2015] HCA 50. The Tribunal also noted that “compassionate” related to the ordinary meaning of feelings of “sympathy, sorrow, pity or concern” towards others (at [21]);
(c)explained that, as the applicants had not responded to the invitation sent by the Tribunal (pursuant to s 359A of the Act), it had no information before it to be satisfied that such “compassionate” or “compelling circumstances” existed (at [22]); and
(d)found that the requirements of PIC 4020 in Schedule 4 of the Regulations should not be waived (at [23]).
On the basis of the above, the Tribunal found that the first applicant did not satisfy the requirements of PIC 4020 in Schedule 4 of the Regulations (for the purposes of cl 572.224 in Schedule 2 of the Regulations) (at [24]).
The Tribunal continued:
25.On the Department file, there is a s.375A certificate. It states that the disclosure of a document would be contrary to public interest because
“folio (I do not have the folio numbers at this point of time but this applied to information received from the overseas post). We do not want to disclose the names of bank officials due to privacy reasons. We do not want to disclose to the client and any third parties the process used by overseas post to verify bank details”
26.The certificate does not refer to a file number nor the relevant folios nor the date of the document. Accordingly, the Tribunal does not consider the purported s375A certificate to be valid. The Tribunal disclosed to the applicant the information that the overseas post found the document provided by the applicant to the Department was not genuine pursuant to s.359A. The applicant did not respond.
The Tribunal affirmed the decision refusing to grant the applicants the visas (at [28]).
PROCEEDING IN THIS COURT
In their application for judicial review filed with this Court on 2 November 2017, the applicants provide a sole “ground of review” as follows:
1.I MEET ALL THE REQUIREMENTS TO GRANT THE STUDENT VISA.
The applicants also filed an affidavit, deposed by the first applicant, in support of their application for review. The affidavit annexed a copy of the Tribunal’s decision and states (without alteration):
1. My student visa was refused despite I meet the requirements.
2. Please revoke the AAT decision & remit my case.
On 1 November 2021, procedural orders were made by this Court giving the applicants an opportunity to file an amended application, any further affidavit evidence and written submissions.
On 5 December 2021, the first applicant sent an email to Chambers. That email attached a letter and three Overseas Student Confirmation-of-Enrolment (“CoE”) documents. The letter states (without alteration):
I, Mrs Hooi See SONG. After finished the Diploma of Marketing in Australian Academy of Commerce we plan to expand and improve my knowledge in different field as well as my view in a developed country. Thus, I did some research and found that it is amazing to study and improve the skill in early learning childhood here since we plan to have our own child. Due to Covid19 so we decided to stay in Australia and I continue to study Certificate III Early Learning Childhood and Diploma Early Learning Childhood in Kirana College.
Please see the proof and consider all to grant me student visa to allow me to finish the study in Australia.
The materials before the Court thus include the application for judicial review and supporting affidavit filed by the applicants on 2 November 2017, a Court Book numbering 201 pages (marked as Exhibit 1), material provided by the applicant to Chambers on 5 December 2021 (marked as Exhibit 2) and written submissions filed by the Minister on 21 December 2021.
The first applicant appeared before the Court without legal representation. She spoke on her own behalf and on behalf of her husband. The first applicant was assisted by an interpreter in the Mandarin and English languages. The Court confirmed with the first applicant that she and her husband had received a copy of the Court Book and the Minister’s written submissions.
The Court noted that the applicants’ application for judicial review only seeks relief by way of an order quashing the Tribunal’s decision. It does not seek a writ of mandamus that the matter be remitted. As such, this Court’s jurisdiction under s 476 of the Act is not properly invoked. The Minister was agreeable to the applicants “orally amending the application to rectify the oversight”. The Court explained this issue to the first applicant and, with her agreement, made an order amending the application for judicial review to include a request for a writ of mandamus.
Further, noting that the applicants were unrepresented, the Court gave the first applicant an opportunity to explain orally what she thought the Tribunal “did wrong”. This is the standard procedure in this Court following the decision in Bala v Minister for Immigration & Border Protection [2019] FCA 600 at [7].
To assist the first applicant, the Court explained to her that the only issue before the Court was whether the Tribunal fell into jurisdictional error. It was explained that the possible categories of jurisdictional error are not exhaustive and sometimes overlap. Further, for migration decisions of this sort, they most commonly include, but are not limited to, the following categories:
(a)where the decision-maker identifies the wrong issue or asks the wrong question: Craig v State of South Australia (1995) 184 CLR 163 (“Craig”) at 198;
(b)where the decision-maker ignores relevant material: Craig at 198;
(c)where the decision-maker relies on irrelevant material: Craig at 198;
(d)where the decision-maker fails to follow mandatory procedures: SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294 at [207]-[208];
(e)where the decision-maker shows actual or apprehended bias: SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80 at [2]; and
(f)where the decision is illogical, irrational or unreasonable: Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 at [131]; Minister for Immigration & Citizenship v Li (2013) 249 CLR 332 at [26]-[28]; Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437 at [44].
It was also explained that this Court cannot review the merits of the Tribunal’s decision or grant the applicants the visas that they seek. Rather, the role of the Court is restricted to determining if the Tribunal made a material error in arriving at the decision it arrived at: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272.
Against this background, the first applicant stated that she had contacted relatives in Malaysia to obtain bank statements and that they had sent her “snapshots or photographs” of those documents (which she had then forwarded on to the Department). The first applicant claimed that she did not know what happened but that “this was the reason her visa was refused”. She also stated that she would be “happy to send them again”. She stressed that the documents were real and not falsified and that, if she “was given another opportunity”, she could forward documents to the Department without delay.
Arguably, what the applicant seeks, is an impermissible merits review of the Tribunal’s decision. In any event, this Court cannot accept “new evidence” from the applicant.
CONSIDERATION
Ground of review and affidavit
The applicants’ sole ground of review provides:
1. I MEET ALL THE REQUIREMENTS TO GRANT THE STUDENT VISA.
The affidavit deposed by the first applicant (in support of the application for judicial review) states (without alteration):
1. My student visa was refused despite I meet the requirements.
2. Please revoke the AAT decision & remit my case.
Both the application for judicial review and the affidavit suggest that the first applicant’s visa application was refused despite her meeting all of the requirements for the grant of the visa.
This fails on a factual level.
The subclass 572 visa was repealed by the Migration Legislation Amendment (2016 Measures No. 1) Regulation 2016 (the “Amending Regulation”). Item 32 in Schedule 4 of the Amending Regulation states that:
32 Parts 570 to 580 of Schedule 2
Repeal the Parts, substitute:
…
Schedule 5 of the Amending Regulation contains the “[a]pplication and transitional provisions” and states that:
5404 Operation of Schedule 4
(1)The amendments of these Regulations made by Schedule 4 to the Migration Legislation Amendment (2016 Measures No. 1) Regulation 2016 (other than items 44, 48 and 49 of that Schedule) apply in relation to an application for a visa made on or after 1 July 2016.
(2)The amendments of these Regulations made by items 44, 48 and 49 of Schedule 4 to the Migration Legislation Amendment (2016 Measures No. 1) Regulation 2016 apply in relation to a visa granted before, on or after 1 July 2016.
Note:Schedule 4 to the Migration Legislation Amendment (2016 Measures No. 1) Regulation 2016 commences on 1 July 2016.
As the first applicant applied for the visa prior to 1 July 2016, the Amending Regulation does not apply. In those circumstances, the provisions relating to the subclass 572 visa continue to apply and the Tribunal was required to assess the first applicant against the criteria for the grant of that visa.
The subclass 572 visa contains time of application criteria and time of decision criteria. Clause 572.224(a) in Schedule 2 of the Regulations required that, at the time of decision, the applicant “satisfie[d] public interest criteria … 4020”.
At the time of the Tribunal’s decision, PIC 4020 in Schedule 4 of the Regulations provided:
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.
…
(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.
The Tribunal here was satisfied that there was “evidence that the [first] applicant ha[d] given, or caused to be given, to the Minister, a ‘bogus document’” (at [18]). On that basis, the first applicant did not satisfy PIC 4020 in Schedule 4 of the Regulations. In order for the first applicant to be granted the visa, she had to meet that requirement at the time of decision as required in cl 572.224 in Schedule 2 of the Regulations.
As outlined above, the requirements of PIC 4020 in Schedule 4 of the Regulations may be waived where there are compelling or compassionate circumstances. The Tribunal provided the applicants with an opportunity to provide any information relating to compelling or compassionate circumstances by its invitation to comment letter dated 27 September 2017 (CB 187-191).
The applicants did not respond to that letter and thus did not avail themselves of that opportunity.
In those circumstances, the Tribunal was correct to find that the applicants did not meet the requirements for the grant of the visa.
No error arises in relation to ground 1 or the first applicant’s affidavit.
Section 375A Certificate
In circumstances where the applicants are self-represented, the Court has considered for itself whether any jurisdictional error arises in relation to Tribunal’s failure to disclose, to the applicants, the existence of the s 375A certificate issued by the Department in this matter.
In this matter, a delegate of the Minister issued a s 375A certificate on 13 October 2016 (CB 170). The Tribunal determined that the certificate was invalid, noting as follows:
25.On the Department file, there is a s.375A certificate. It states that the disclosure of a document would be contrary to public interest because
“folio (I do not have the folio numbers at this point of time but this applied to information received from the overseas post). We do not want to disclose the names of bank officials due to privacy reasons. We do not want to disclose to the client and any third parties the process used by overseas post to verify bank details”
26.The certificate does not refer to a file number nor the relevant folios nor the date of the document. Accordingly, the Tribunal does not consider the purported s375A certificate to be valid. The Tribunal disclosed to the applicant the information that the overseas post found the document provided by the applicant to the Department was not genuine pursuant to s.359A. The applicant did not respond.
To the extent that any error arises in the provision of an invalid certificate, this was not an error on the part of the Tribunal. Rather, it was an error on the part of the Secretary of the Department. The Secretary was obliged to provide the Tribunal with all relevant documents (pursuant to s 352(4) of the Act) and any certificate issued under the Act (pursuant to s 375A(2) of the Act).
The s 375A certificate is not clear as to the materials it covers. As outlined by the Tribunal, the certificate does not contain folio numbers of the document, the type of document (for example a letter or an email or similar) or the date or length of the document (or documents) in question.
The certificate does, however, state that the certificate “applies to the information received from the overseas post”.
The Tribunal did advise the applicants (in a letter dated 27 September 2017) that there was information that may be the reason or part of the reason for affirming the decision under review and invited the applicants to comment on or respond to that information. The Tribunal’s letter provided as follows (CB 189-191):
In conducting the review, we are required by the Migration Act 1958 to invite you to comment on or respond to certain information which we consider would, subject to your comments or response, be the reason, or a part of the reason, for affirming the decisions under review.
Please note, however, that we have not made up our mind about the information.
The particulars of the information are:
•On 28 July 2015 you provided evidence to the Department being financial evidence from CIMB Bank Berhad in relation to the secondary applicant, Henry Tan attesting to monies that was held in his name in that bank.
•The Department made enquiries to its offshore post regarding whether or not the document from CIMB Bank Berhad was genuine.
•On 27 August 2015 the offshore post confirmed that the document was not genuine and had been altered.
This information is relevant to the review because it may lead the Tribunal to find (subject to your comments and response) that there is evidence you have given documents that are considered to be bogus and you have given information to the Department that is false or misleading in a material particular in relation to the visa application.
In order to be granted the visa you must satisfy cl.572.224 of Schedule 2 to the Migration Regulations, which requires that you to satisfy Public Interest Criterion 4020 (PIC4020).
PIC 4020 relevantly requires that there is no evidence before the Tribunal that an applicant has given or caused to be given a bogus document or information that is false or misleading in relation to the application for the visa. If the Tribunal finds that the applicant has given or caused to be given a bogus document or information that is false or misleading in relation to the application for the visa, unless the requirement of PIC 4020 is waived by the Tribunal (which it can only do if it is satisfied that there are compelling circumstances that affect the interests of Australia or compelling or compassionate circumstances that affect the interests of an Australian citizen, permanent resident or an eligible New Zealand), the Tribunal would find that you do not satisfy an essential criterion for the grant of a visa and may affirm the decision under review.
•You and the second named applicant entered Australia on 4 May 2015 as holders of Electronic Travel Visa (UD601) valid until 4 August 2015. You stated on your Passenger Travel Card you were entering Australia with the intention of holidaying for4 days.
•You and the second named applicant married in Australia on 13 June 2015.
•You obtained a Confirmation of Enrolment to study in Australia on 2 July 2015
•You applied for a student visa on 3 July 2015 to study in the VET sector.
•You have completed a higher degree course in Malaysia, Bachelor of Finance, in 2014.
The applicants were required to provide their response by 13 October 2017. No response or information was received from the applicants or their representative.
This Court accepts that the applicants here were not made aware of the s 375A certificate or asked to comment on the validity of that certificate.
This Court has previously considered the jurisprudence in relation to the disclosure of s 375A certificates in the decision of Hong v Minister for Immigration & Anor [2019] FCCA 3500 (at [87]-[102]) and repeats its analysis in that case here as follows.
Procedural fairness obliged the Tribunal to disclose the existence of the certificate to the applicants: Minister for Immigration & Border Protection v Singh (2016) 244 FCR 305 at [53]-[59] (“Singh”).
There have been significant jurisprudential developments since Singh. Notably, the High Court recently had reason to consider the Tribunal’s procedural fairness obligations in relation to certificates, including invalid certificates.
The High Court judgment in Minister for Immigration v SZMTA; CQZ15 v Minister for Immigration; BEG15 v Minister for Immigration [2019] HCA 3 (“SZMTA”) is relevant to this matter. The Court notes that SZMTA concerned s 438 of the Act, not s 375A of the Act, and that these provisions are not identical. Nonetheless, SZMTA remains relevant. For the purposes of this judgment, SZMTA provides as follows (emphasis added):
2.The Full Court was correct to take the view that the fact of notification of the existence of a certificate triggers an obligation of procedural fairness on the part of the Tribunal to disclose the fact of notification to the applicant for review. Breach of that obligation of procedural fairness constitutes jurisdictional error on the part of the Tribunal if, and only if, the breach is material. The breach is material if it operates to deny the applicant an opportunity to give evidence or make arguments to the Tribunal and thereby to deprive the applicant of the possibility of a successful outcome.
In order to determine whether the Tribunal’s failure to disclose the existence of the certificate to the applicants (or the material the subject of that certificate) resulted in any practical injustice to the applicants, the Court notes the analysis provided in SZMTA, as follows:
45.Materiality, whether of a breach of procedural fairness in the case of an undisclosed notification or of a breach of an inviolable limitation governing the conduct of the review in the case of an incorrect and invalid notification, is thus in each case essential to the existence of jurisdictional error. A breach is material to a decision only if compliance could realistically have resulted in a different decision.
46.Where materiality is in issue in an application for judicial review, and except in a case where the decision made was the only decision legally available to be made, the question of the materiality of the breach is an ordinary question of fact in respect of which the applicant bears the onus of proof. Like any ordinary question of fact, it is to be determined by inferences drawn from evidence adduced on the application.
…
49.Where non-disclosure of a notification has resulted in a denial of procedural fairness, the similar question that remains for the court on judicial review of a decision of the Tribunal is whether there is a realistic possibility that the Tribunal’s decision could have been different if the notification had been disclosed so as to allow the applicant a full opportunity to make submissions. Whilst “[i]t is no easy task for a court … to satisfy itself that what appears on its face to have been a denial of natural justice could have had no bearing on the outcome”, the task is not impossible and can be done in these appeals.
50.In order to inform curial determination both of how the Tribunal in fact acted in relation to the notified document or notified information and of whether its decision could realistically have been different if the relevant breach had not occurred, evidence of the content of the document or information is relevant and admissible.
The Court must be satisfied that the failure to disclose the material the subject of the certificate, or the certificate itself, was material in the sense that it deprived the applicants of the possibility of a successful outcome by not being able to present evidence or arguments.
On the evidence here, the Court is satisfied that the failure to reveal the certificate (or the documents the subject of the certificate) in this matter did not deprive the applicants of a successful outcome.
While the Tribunal here did not disclose to the applicants the fact of the certificate’s existence, the information the subject of the certificate was, in substance, disclosed to the applicants. The documents the subject of the certificate related to “information received from the overseas post” (CB 170). The Tribunal included that information (as summarised by the delegate) in its letter to the applicants dated 27 September 2017 (as outlined at [68] above) (CB 187-191).
The information the subject of the certificate was also put to the applicants by the delegate in the invitation to comment letter dated 15 October 2015 (CB 67-71).
The applicants did not respond to either invitation to comment.
The Court is satisfied that the failure to disclose the certificate and the information the subject of the certificate was not material. The substance of the information was clearly an issue that the applicants were aware of and had been invited to comment upon on multiple occasions. The applicants did not take up those opportunities.
On the basis of the information above, the Court is satisfied that there was no practical injustice to the applicants from the failure to disclose the certificate to the applicants: BEG15 v Minister for Immigration & Border Protection [2017] FCAFC 198 at [33].
The Court is satisfied that there was thus no jurisdictional error in this regard: SZMTA at [2].
Exhibit 2
As outlined above, on 5 December 2021, the first applicant sent an email to Chambers which attached a letter and three CoE documents.
These documents were marked by the Court as Exhibit 2. They do not appear to have been before the Tribunal.
The letter, which is undated, states (without alteration):
I, Mrs Hooi See SONG. After finished the Diploma of Marketing in Australian Academy of Commerce we plan to expand and improve my knowledge in different field as well as my view in a developed country. Thus, I did some research and found that it is amazing to study and improve the skill in early learning childhood here since we plan to have our own child. Due to Covid19 so we decided to stay in Australia and I continue to study Certificate III Early Learning Childhood and Diploma Early Learning Childhood in Kirana College.
Please see the proof and consider all to grant me student visa to allow me to finish the study in Australia.
The CoE documents provided by the first applicant related to:
(a)a Certificate III in Early Childhood Education and Care course to be undertaken from 13 July 2020 to 18 July 2021;
(b)a Diploma of Early Childhood Education and Care course to be undertaken from 19 July 2021 to 17 July 2022; and
(c)a Diploma of Early Childhood Education and Care course to be undertaken from 25 April 2022 to 29 January 2023.
All of the CoE documents post-date the Tribunal’s decision.
The Court notes that an application for judicial review (being a matter of the sort the subject of this proceeding) is ordinarily confined to materials which were before the Tribunal: SZJMG v Minister for Immigration & Citizenship [2008] FCA 1145. Further, it is not open for an applicant to ask that the Court admit new evidence for the purpose of disagreeing with a factual conclusion reached by the Tribunal: MZXHY v Minister for Immigration [2007] FCA 622 at [8] and Gupta v Minister for Immigration [2016] FCA 1004 at [27].
In the circumstances of this matter, the materials provided to the Court by the applicants could not assist the applicants in any event. The Tribunal in this matter was required to assess whether or not the first applicant had provided (or caused to be provided) a “bogus document” to the Department. The Tribunal here determined that the first applicant had done so (at [18]).
The only other question for the Tribunal to consider was whether there were “compassionate or compelling circumstances” that justified the granting of the visa. The applicants provided no evidence to the Tribunal in that regard and failed to respond to the Tribunal’s invitation to comment (sent pursuant to s 359A of the Act). In the circumstances, the Tribunal found that the requirements of PIC 4020 in Schedule 4 of the Regulations should not be waived (at [23]).
Exhibit 2 does not identify any jurisdictional error on the part of the Tribunal.
CONCLUSION
The application for judicial review filed by the applicants on 2 November 2017 has not identified any jurisdictional error. The Court is otherwise unable to identify any jurisdictional error.
The application is, accordingly, dismissed.
I certify that the preceding ninety-five (95) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kendall. Associate:
Dated: 16 June 2022
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