Zitkus v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

[2021] FCCA 1881

FEDERAL CIRCUIT COURT OF AUSTRALIA

Zitkus v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1881

File number(s):	ADG 452 of 2019
Judgment of:	JUDGE EGAN
Date of judgment:	16 August 2021
Catchwords:	MIGRATION – False and misleading information provided to Department in visa application form – actions of applicant intentional and deliberate – no basis for claim that the Tribunal, in the circumstances of the matter, ought to have further considered why the applicant had provided false information – no jurisdictional error established – application dismissed.
Legislation:	Migration Regulations 1994 (Cth) Sch 2, cl 572.224, Sch 4, PIC 4020.
Cases cited:	Trivedi v Minister for Immigration and Border Protection (2014) 220 FCR 169. Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611. Minister for Immigration and Citizenship v Li (2013) 249 CLR 332. Kaur v Minister for Immigration and Border Protection [2017] FCAFC 184. Plaintiff M64/2015 v Minister for Immigration and Border Protection [2015] HCA 50.
Number of paragraphs:	22
Date of last submission/s:	10 August 2021
Date of hearing:	12 August 2021
Place:	Brisbane
Solicitor for the Applicant:	Bede Anthony Elliott & Associates
Counsel for the Applicant:	Mr E. Stratton-Smith
Solicitor for the First Respondent:	Mr Cummings of Sparke Helmore
Second Respondent	Submitting appearance save as to costs

ORDERS

ADG 452 of 2019

BETWEEN:

MARTINAS ZITKUS

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE EGAN
DATE OF ORDER:	16 AUGUST 2021

IT IS ORDERED THAT:

1.The Originating Application for Review filed on 14 November 2019 be dismissed.

2.The Applicant pay the First Respondent’s costs of and incidental to the Application for Review, fixed in the amount of $5,000.00.

REASONS FOR JUDGMENT

JUDGE EGAN:

1. The applicant is a citizen of Lithuania who arrived in Australia as the holder of a Tourist visa in October 2012. Subsequently, he was granted Student visas.

2. On 3 November 2014, the applicant applied for a Student visa for the stated aim of undertaking study for a Diploma of Marketing course between 24 November 2014 and 22 November 2015. In the form relevant to such visa application, the applicant replied “No” to each of the following questions: [1]

   (a)In the last five years have you, or any other person included in this application, visited, or lived, outside Lithuania for more than 3 consecutive months (other than Australia)?

   (b)Have you … ever:

   (i)Been convicted of a crime or offence in any country (including any conviction which is now removed from official records)?

   (ii)Been removed or deported from any country (including Australia)?

   (iii)Been excluded from or asked to leave any country (including Australia)?

   [1]           Court Book (CB) p. 3 – 5 inclusive.

3. On 4 December 2014, the Department invited the applicant to comment on investigations which suggested that the applicant had been arrested in Norway on 16 November 2010, and subsequently imprisoned for one (1) year and ten (10) months, before being deported back to Lithuania on 5 September 2012. The applicant provided a statement in response to such invitation. [2] The statement recounted how, according to the applicant, he had been unwittingly involved in the importation of drugs into Norway, after which he was charged and imprisoned. Relevant to the question of the non-disclosure of his conviction, the applicant recorded in such statement the following:

   “Only reason I haven’t told this to Migration that again I was highly recommended to don’t tell this to anyone anywhere at least until case is finished (still open today)”.

   [2]           CB 66 – 67.

4. On 11 March 2016, a delegate of the Minister refused to grant the visa on the basis that the applicant did not meet the criteria as set out in cl. 572.224 of Schedule 2 to the Migration Regulations 1994 (Cth) (‘the Regulations’) which required satisfaction, inter alia, of the conditions set out in PIC 4020 of Schedule 4 of the Regulations. PIC 4020 relevantly provided as follows:

   “PIC 4020

   (1)  There is no evidence before the Minister that the applicant has given, or caused to be given, to the Minister, an officer, the Tribunal during the review of a Part 5-reviewable decision, a relevant assessing authority or a Medical Officer of the Commonwealth, a bogus document or information that is false or misleading in a material particular in relation to:

   (a)       the application for the visa; or

   (b)  a visa that the applicant held in the period of 12 months before the application was made.

   (2)       The Minister is satisfied that during the period:

   (a)       starting 3 years before the application was made; and

   (b)  ending when the Minister makes a decision to grant or refuse to grant the visa;

   the applicant and each member of the family unit of the applicant has not been refused a visa because of a failure to satisfy the criteria in subclause (1).

   (2AA)  However, subclause (2) does not apply to the applicant if, at the time the application for the refused visa was made, the applicant was under 18.

   (2A)     The applicant satisfies the Minister as to the applicant's identity.

   (2B)     The Minister is satisfied that during the period:

   (a)       starting 10 years before the application was made; and

   (b)  ending when the Minister makes a decision to grant or refuse to grant the visa;

   neither the applicant, nor any member of the family unit of the applicant, has been refused a visa because of a failure to satisfy the criteria in subclause (2A).

   (2BA)  However, subclause (2B) does not apply to the applicant if, at the time the application for the refused visa was made, the applicant was under 18.

   (3)  To avoid doubt, subclauses (1) and (2) apply whether or not the Minister became aware of the bogus document or information that is false or misleading in a material particular because of information given by the applicant.

   (4)  The Minister may waive the requirements of any or all of paragraphs (1)(a) or (b) and subclause (2) if satisfied that:

   (a)       compelling circumstances that affect the interests of Australia; or

   (b)  compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen;

   justify the granting of the visa.

   (5)  In this clause:

   "information that is false or misleading in a material particular" means information that is:

   (a)       false or misleading at the time it is given; and

   (b)  relevant to any of the criteria the Minister may consider when making a decision on an application, whether or not the decision is made because of that information.

   Note:         For the definition of bogus document , see subsection 5(1) of the Act.”

5. The applicant sought review of the decision of the delegate by the Administrative Appeals Tribunal (‘the Tribunal’).

6. On 8 February 2017, the Tribunal affirmed the delegate’s decision. After the filing in the Federal Circuit Court of an Originating Application for Review of that Tribunal’s decision, the Court remitted the matter for reconsideration by the Tribunal by consent.

7. A further hearing of the Tribunal (differently constituted) occurred on 4 July 2019 and 1 August 2019. By an email dated 31 July 2019, the applicant’s migration agents provided further submissions to the Tribunal. [3] Included in such submissions was the following:

   [3]           CB 234 – 270.

   “Mr Zitkus has always asserted that he did not disclose to DOHA within the sub-class 572 visa application form the criminal charges brought against him in Norway, his imprisonment nor other associated matters (collectively referred to as the “adverse information”) due to information provided to him by Senior Lithuanian Police Officers that he not disclose any such information to any third party. Mr Zitkus understood that it was necessary for him not to disclose such information because of the fact that investigations concerning his step-father’s possible involvement in extensive criminal activities were continuing and he had provided extensive information to Police Authorities in order to assist them with such enquiries. He understood that he could be placing himself in danger by disclosing these matters to third parties and could also jeopardise the continuing investigations being undertaken as to his father’s alleged criminal activities.

   While Mr Zitkus has been unable to provide the Tribunal with documentation proving the above information provided to him by the Senior Lithuanian Police Officials, this does not detract from the fact that he understood that he was not permitted to disclose the adverse information to DOHA. It is for this reason that he did not disclose the same within the subclass

   572 visa application, rather than a desire to hide from DOHA the fact that he may not have satisfied Public Interest Criteria 4001.

   In the above circumstances, the Tribunal should accept that the failure by Mr Zitkus to disclose the adverse information to DOHA within the sub-class 572 visa application does not constitute a breach of Public Interest Criteria 4020 because there was no element of fraud nor deception in Mr Zitkus’ failure to disclose such information to DOHA. Further, the submission of a sub-class 572 visa application which did not disclose the adverse information does not have the necessary quality of purposeful falsity to attract the operation of Public Interest Criteria 4020.

   If the Tribunal does not accept the above contentions and finds that Mr Zitkus provided DOHA with information which was false or misleading in a material particular when submitting his sub-class 572 visa application, I respectfully submit that it should find that there are compassionate or compelling circumstances that affect the interests of his Australian family members and justify both the approval of the above Application and the ultimate grant of a sub-class 572 visa to him.

   You should be satisfied from the enclosed materials, and for those reasons set out below, that Mr Zitkus has three family members here in Australia (i.e. his Aunty, his nephew and his niece) who are all permanent residents and who will all be adversely affected to varying degrees if Mr Zitkus is not permitted to continue residing in Australia moving forward (as will be the case if the above Application is refused). I respectfully submit that these factors should collectively be recognised by the Tribunal as sufficiently compelling and/or compassionate to justify the grant of Mr Zitkus’ sub-class 572 visa.

   I draw the following matters to your attention in support of the above contention:

   1. Mr Zitkus is the only biological nephew/niece of his Aunty, Sigita, and the only biological cousin of her two children, Erlandas and Andzelika;

   2. Sigita, Erlandas and Andzelika do not have any biological family members in Australia other than Mr Zitkus. Mr Zitkus’ father was Sigita’s only sibling. He is deceased;

   3. Sigita separated from her first husband (i.e. the father of Erlandas and Andzelika) in 2010 and neither she nor the children have had any contact with him since 2012;

   4. Sigita, Erlandas and Andzelika have lived in Australia on a continuing basis since 2010. They are all Australian permanent residents. Erlandas recently submitted an application for Australian Citizenship;

   5. Sigita’s second husband, Mr Vincent Ventrice, was diagnosed with Nasopharyngeal Cancer for the third time in July 2017 (after successfully overcoming the cancer in 2007 and again in 2009); and

   6. Sigita has been unable to take up employment as a Paramedic following her recent successful completion of such studies because it has been necessary for her to care for Mr Ventrice. Mr Zitkus has provided invaluable support to she, Mr Ventrice, Erlandas and Andzelika at all times”

8. On 17 October 2019, the Tribunal affirmed the decision of the delegate to refuse to grant to the applicant the visa.

   Grounds of Review

9. At the hearing before the Court, the applicant relied upon the Ground of Review as set out in the Originating Application for Review filed on 14 November 2019, namely:

   “1.The Tribunal committed jurisdictional error by treating as irrelevant the reasons why the Applicant provided relevant misleading information in his application for a Student Visa.”

10. It was submitted on behalf of the applicant that the Tribunal ought to have considered why the applicant had in fact knowingly made a false and misleading statement in his visa application. It was submitted that in determining whether PIC 4020 was enlivened or not ‘… the reasons for making the false or misleading statement should not be ignored or treated as irrelevant.’ It was further submitted that the circumstances of the present matter were such as to take the applicant outside of the operation of PIC 4020. There was no merit to such submission.

11. In Trivedi v Minister for Immigration and Border Protection (2014) 220 FCR 169 Buchanan J (with whom Allsop CJ and Rangiah J agreed) said, at [21], [30] – [39] and [43], as follows:

    [21] Two questions were argued on the present appeal.  The appellants argued that it was necessary that the first appellant be knowingly involved in the giving of false information for PIC 4020 to apply.  I would not accept that contention.  Conversely, the respondent argued first that no element of knowledge by a visa applicant was necessary, and secondly that information did not need to be purposely untrue for PIC 4020 to apply, because PIC 4020 was directed to any incorrect information that was relevant to a visa criterion.  I would accept the first of those arguments but not the second.

    …

    [30] Much, of course, depends on the context and perceived purpose of PIC 4020 as well as the terms in which the prohibition in question is expressed.  In the present case, I think the intention and purpose of PIC 4020 are clearly revealed by the text and a consideration of the purpose for which the information is provided.

    [31] First, the references in PIC 4020(1) and (3) to a “bogus document or information that is false or misleading in a material particular” are ones which in my view give an indication of the character of improper material to which PIC 4020 is addressed. That construction is strengthened by reference to the interaction between PIC 4020 and s 97 of the Migration Act.

    [32] It is apparent from the terms of PIC 4020 that it addressed the problem of attempts to work a fraud or deception on the assessment of claims for a visa.  That is also evident from the fact that PIC 4020 states a “public interest” criterion, from the narrow and exceptional circumstances necessary to waive its requirements and, more generally, from the serious consequences that follow from its application.  I would not infer any apparent intention to disqualify a visa applicant who could explain an innocent mistake in a document or information provided by them.  PIC 4020 is not directed, in my view, to innocent, unintended or accidental matters.  However, different questions arise when information or documents provided in support of an application are revealed as false, in the purposely untrue sense of that term.

    [33] In my view, it should be accepted that an element of fraud or deception is necessary in order to attract the operation of PIC 4020.  To take the example of bogus documents, a counterfeit document is not produced accidentally.  Similarly, to charge that a statement is false is not to say only that it is wrong.  The accusation potentially imports some element of knowledge or intention on somebody’s part, and in my view does so in the present context.

    [34]Secondly, consideration of the circumstances of the introduction of PIC 4020 confirms me in the view derived from the text of PIC 4020 that it is not directed to information or documents which are not tainted in the way I have indicated.

    [35]PIC 4020 was introduced as part of Schedule 4 to the Migration Regulations 1994 (Cth) by amendments made by the Migration Amendment Regulations 2011 (No. 1) (Cth). The context in which PIC 4020 was introduced is not unimportant to a proper understanding of its purpose and intended effect.

    [36] At that time, the Migration Act contained (as it still does) a series of provisions (in Part 2, Division 3, Subdivision C) requiring visa applicants and non-citizens entering Australia to provide correct information in visa applications and on passenger cards. Bogus documents are not to be given. Incorrect answers or information are to be promptly corrected. These obligations apply whether a person knows the information to be correct at the time or not (s 100).

    [37] The obligation to provide correct information and answers and non-bogus documents applies to visa applicants, as well as persons entering Australia on a visa (e.g. a tourist visa). The same subdivision of the Migration Act provides that breach of its requirements might lead to cancellation of a visa, whether or not non-compliance was deliberate or inadvertent (s 111).

    [38] The Explanatory Statement issued with the Migration Amendment Regulations 2011 (No. 1) referred to those existing arrangements, saying:

    Item [3] – Schedule 4, Part 1, after clause 4019

    …

    Sections 97 to 106 of the Act, in general, place obligations on applicants to provide correct information and to correct any incorrect information whether at the time of application or subsequently prior to visa grant. …

    [39] The contrast between the reference to the existing provisions (correct/incorrect) and the language in new PIC 4020 (false or misleading) is obvious.  One explanation given by the Explanatory Statement for the need for the new provisions was as follows:

    Item [3] – Schedule 4, Part 1, after clause 4019

    …

    … Further, it is common practice that a visa applicant will seek to withdraw the bogus documents, or false or misleading information or find alternative methods of satisfying the relevant visa criteria without relying on the false information. In circumstances where this occurs, a decision maker is required to accept the request to withdraw the information and continue to process the application.

    …

    [43] In my view, it is not necessary (for reasons yet to be further developed) to show knowing complicity by a visa applicant.  That would impose an impossible task on those administering the visa system.  But it is necessary that the information or document have the necessary quality of purposeful falsity, whether or not the visa applicant can be shown to have knowledge of that fact.”

12. The Court finds that the Tribunal was justified in finding that the applicant had purposefully and falsely provided incorrect information in his visa application form. The Tribunal comprehensively dealt with that aspect of the applicant’s claims at [19] – [101] of its reasons. At [65] – [68] inclusive of its reasons, the Tribunal said as follows:

    “[65] He gave further evidence that when he was back in Lithuania he helped the police with another case, a homicide with which his stepfather had been charged, and that they were concerned that his safety may be at risk. He said that they were going to offer to send him to America but he was not interested in going into witness protection.

    [66] He said that the Lithuanian police told him not to speak to anyone about what happened in Norway.

    [67] He gave evidence that he now understands that this does not justify him not disclosing things on his visa application. He said that he suspects that the Lithuanian police did not mean that he should mislead Australian authorities but that he was scared and took it as being more general than that.

    [68]      He described himself as “overthinking” the situation.”

1. Absent the applicant satisfying the Tribunal that there was a basis for waiver of his compliance with PIC 4020 under PIC 4020(4), there was no basis for the visa being granted to the applicant.

2. As to its consideration as to whether the applicant’s actions in giving the false and misleading information was ‘innocent, unintended and accidental’, the Tribunal, at [99] – [107] inclusive of its reasons, said as follows:

   “[99] The misrepresentations made by the applicant are not unintended or accidental and therefore do not fall within the category of misrepresentation excepted by Justice Buchanan. The Tribunal does not need to consider whether they were “innocent” or what His Honour meant by that.

   [100] At paragraph 33 of his decision Justice Buchanan says that “… It should be accepted that an element of fraud or deception is necessary in order to attract the operation of PIC4020.” The applicant’s submissions suggest that there was no element of fraud or deception involved in the misrepresentations that he made and that the operation of PIC 4020 is not attracted.

   [101]The Tribunal does not accept that the misrepresentations made by the applicant lacked an element of either fraud or deception and does not accept the applicant’s argument that they do not attract the effect of PIC 4020.

   [102] If the applicant believed that he was justified in making misrepresentations, that does not relieve them of the character of fraud. The Tribunal finds that the applicant made false statements knowing them to be false and expecting the Department to rely on them. He intended or expected to benefit from that reliance. They were attended by an element of fraud, whether or not the applicant believed them to be justified.

   [103] Further, the applicant clearly intended to deceive the department when he made the misrepresentations, He intended to engender in the Department the beliefs that he had not lived outside of Lithuania in the period leading up to his application, that he had not been convicted of a crime, and that he had not been deported from any country. If it is true that he believed he was justified in making those misrepresentations that does not mean that he did not intend to deceive the Department.

   [104] The applicant refers to paragraph 43 in which Justice Buchanan says “… it is necessary that the information or document have the necessary quality of purposeful falsity, whether or not the visa applicant can be shown to have knowledge of that fact.” The applicant promotes an interpretation whereby deliberate falsity is not “purposeful”.

   [105]The Tribunal is of the view that Justice Buchanan’s comments do not assist the applicant in that way.

   [106] Tribunal’s finding is, therefore, that the applicant provided relevantly misleading information and that the comments of Justice Buchanan in Trivedi do not dissuade the Tribunal from that finding.

   [107]    Therefore, the applicant does not meet PIC 4020(1).”

3. The Tribunal did not err in the way in which it considered the applicant’s actions. It was entitled to find that the applicant had deliberately sought to mislead the Department. His justification for doing so was not accepted by the Tribunal. The Tribunal was entitled to reject the applicant’s explanations.

4. It cannot be said that no other rational or logical decision maker could not have made the same decision as the Tribunal. As was said by Crennan and Bell JJ in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [130], [131] and [135]:

   “[130] In the context of the Tribunal's decision here, "illogicality" or "irrationality" sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came, in relation to the state of satisfaction required under s 65, is one at which no rational or logical decision maker could arrive on the same evidence. In other words, accepting, for the sake of argument, that an allegation of illogicality or irrationality provides some distinct basis for seeking judicial review of a decision as to a jurisdictional fact, it is nevertheless an allegation of the same order as a complaint that a decision is "clearly unjust" or "arbitrary" or "capricious" or "unreasonable" in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person. The same applies in the case of an opinion that a mandated state of satisfaction has not been reached. Not every lapse in logic will give rise to jurisdictional error. A court should be slow, although not unwilling, to interfere in an appropriate case.

   [131] What was involved here was an issue of jurisdictional fact upon which different minds might reach different conclusions. The complaint of illogicality or irrationality was said to lie in the process of reasoning. But, the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.

   …

   [135] On the probative evidence before the Tribunal, a logical or rational decision maker could have come to the same conclusion as the Tribunal. Whilst there may be varieties of illogicality and irrationality, a decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material before the decision maker. A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn. None of these applied here. It could not be said that the reasons under consideration were unintelligible or that there was an absence of logical connection between the evidence as a whole and the reasons for the decision. Nor could it be said that there was no probative material which contradicted the first respondent’s claims. There was. The Tribunal did not believe the first respondent’s claim that he had engaged in the “practice of homosexuality” in the UAE and accordingly it was not satisfied that he feared persecution if he returned to Pakistan.”

5. Neither could the decision of the Tribunal be considered as legally unreasonable, or one lacking an evident and intelligible justification, as such respective concepts were considered by Hayne, Kiefel and Bell JJ in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [66] and [76] where it was said:

   “[66] This approach does not deny that there is an area within which a decision-maker has a genuinely free discretion. That area resides within the bounds of legal reasonableness. The courts are conscious of not exceeding their supervisory role by undertaking a review of the merits of an exercise of discretionary power. Properly applied, a standard of legal reasonableness does not involve substituting a court's view as to how a discretion should be exercised for that of a decision-maker. Accepting that the standard of reasonableness is not applied in this way does not, however, explain how it is to be applied and how it is to be tested.

   …

   [76] As to the inferences that may be drawn by an appellate court, it was said in House v The King that an appellate court may infer that in some way there has been a failure properly to exercise the discretion "if upon the facts [the result] is unreasonable or plainly unjust". The same reasoning might apply to the review of the exercise of a statutory discretion, where unreasonableness is an inference drawn from the facts and from the matters falling for consideration in the exercise of the statutory power. Even where some reasons have been provided, as is the case here, it may nevertheless not be possible for a court to comprehend how the decision was arrived at. Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification.”

6. The Tribunal dealt with whether the evidence before it was such as to justify waiver of the relevant PIC 4020 criteria. The Tribunal was mindful of its obligations in that regard, citing as it did Kaur v Minister for Immigration and Border Protection [2017] FCAFC 184 and Plaintiff M64/2015 v Minister for Immigration and Border Protection [2015] HCA 50.

7. The applicant did not seek to impugn the decision of the Tribunal on the basis that the Tribunal had erred on the question as to whether the relevant PIC 4020 criteria ought to be waived or not. The Court need not therefore canvas such issue.

8. The applicant has failed to establish jurisdictional error on the part of the Tribunal.

9. The Application for Review is without merit and is dismissed.

10. The Court will hear the parties as to costs.        

I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Egan.

Associate:

Dated:       16 August 2021