Kaur v Minister for Immigration and Citizenship [2025] FedCFamC2G 1526

1. The applicants also filed an affidavit with that judicial review application on 29 March 2022, annexing copies of the Tribunal's decision.
2. The applicant appeared before the Court on 16 June 2025 without legal representation but with the assistance of a Punjabi interpreter. The Court confirmed with the applicant that she had received a copy of the Court Book and the Minister's written submissions.
3. At the outset of the hearing, the Court raised an issue with counsel for the Minister that arguably the Tribunal may have not engaged with the applicants' submission that they left India due to safety and employment concerns, save for accepting that the applicant's father-in-law was incarcerated. In doing so, the Tribunal appeared to have failed to address, to reach any kind of finding, or engage in any discussion as to whether or not those fears were a compassionate or a compelling circumstance. The parties were therefore granted leave to file supplementary written submissions to that effect. The Minister filed supplementary submissions addressing this issue on 30 June 2025.
4. The materials before the Court include:
   • the application for judicial review filed by the applicants on 29 March 2022;
   • the supporting affidavit filed by the applicants on 29 March 2022 (the affidavit being taken as read and in evidence at the hearing on 16 June 2025);
   • a Court Book numbering 213 pages (tendered and referenced as Exhibit 1);
   • written submissions filed on behalf of the Minister on 3 June 2025; and
   • supplementary written submissions filed on behalf of the Minister on 30 June 2025.
5. The applicant was not represented at the hearing and the Court was thus mindful of the comments of Colvin J in DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784 at [8] and Feutrill J in BKT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 384 at [55] that it is usually appropriate for an unrepresented applicant to be given an opportunity to explain orally the matters that are said to give rise to an appeal (or review). That sensible and appropriate course is now the standard procedure in this Court: see, by way of recent example, Kaur v Minister for Immigration and Citizenship [2025] FCA 931 at [10]. Accordingly, at the hearing of this matter, the applicant was invited to tell the Court what she believed to be wrong with the Tribunal's decision and/or procedure.
6. The Court also took some time to explain that it could not undertake a merits review of the Tribunal's decision (Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272) and could only consider whether or not the Tribunal decision revealed jurisdictional error. The Court explained that in migration decisions such as the decision being challenged, common categories of alleged jurisdictional error include:

(a) where the decision-maker identifies the wrong issue or asks the wrong question (Craig v State of South Australia [1995] HCA 58; (1995) 184 CLR 163 at 178 (Craig));

(b) where the decision-maker ignores relevant material (Craig at 178);

(c) where the decision-maker relies on irrelevant material (Craig at 178);

(d) where the decision-maker fails to follow mandatory procedures (SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24; (2005) 228 CLR 294 at 354-355);

(e) where the decision-maker shows actual or apprehended bias (SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80 at [2]); and

(f) where the decision is illogical, irrational or unreasonable (Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21 at 27-28; Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at 648; Minister for Immigration and Citizenship v Li [2012] HCA 61; (2013) 249 CLR 332 at [26]- [28] and Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; (2014) 231 FCR 437 at 445).

1. However, it was also explained to the applicant that this was not an exhaustive list and she should attempt to tell the Court why she said the Tribunal had fallen into error.
2. Against that background, the applicant raised that the Tribunal erred in failing to consider that as her situation in India was not safe at the time, her and her husband made a decision to leave India. When asked, the applicant acknowledged she had assistance in preparing her judicial review application but that she understands the grounds that had been advanced. However, when invited to make any submissions at the hearing the applicant indicated that there was nothing further she wished to raise with the Court. The applicant also did not wish to make any submissions in reply to the Minister.

1. As outlined above, the application for judicial review contains a single particularised ground. Noting that the applicants were unrepresented in this matter, the Court has endeavoured to interpret the applicants' grounds as broadly as possible (as per the principles in MZAIB v Minister for Immigration and Border Protection [2015] FCA 1392). The Court also explored with counsel for the Minister the issue adverted to above at [46].
2. The Minister observed that the central question raised by the application is whether the Tribunal could refer back to its finding on PIC 4020(1) or the circumstances underpinning its conclusion on PIC 4020(1), in making a finding on PIC 4020(4). In respect of PIC 4020(1), the Tribunal had found that the applicant had provided false or misleading answers in her visa application and specifically rejected as "fanciful" her claim that responsibility for this lay with another person. In respect of PIC 4020(4) the Tribunal found, inter alia, that the weight of that fraud significantly outweighed any benefit Australia might receive from the applicant's stated intention of pursuing a career in Australia as a software engineer.
3. The Minister drew the Court's attention to the following observation by Judge Emmett in Singh v Minister for Immigration and Border Protection [2016] FCCA 774 (Singh)at [60].

the discretionary matters set out in PIC 4020(4) are unrelated to the content of PIC 4020(1) and (2) and reasons for any breaches thereof. Accordingly, any error in the Tribunal's consideration of one of the three breaches of PIC 4020(1) (which I have found) would not have affected the Tribunals consideration of PIC 4020(4). In the circumstances, I do not accept the submissions of the applicant to the contrary.

1. The Minister observed that the above statement from Judge Emmett appeared to underpin the argument in this application. However, the Minister further drew the Court's attention to the subsequent decision of Judge Jarrett in Le v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1694 where his Honour found that Singh should not be read as a "statement of principle" and further that the statutory language does not suggest that the discretion in PIC 4020(4) is fettered in any way.
2. The Court agrees with the Minister's submission in this respect. In any event, the Tribunal's consideration in respect of "the weight of the fraud" is responsive, in part, to the applicant's expression of remorse which the applicant had wanted the Tribunal to have regard to in respect of considering compassionate or compelling circumstances.
3. Ultimately, though, the Court accepts the Minister's contention that PIC 4020(4) should not be construed as ruling impermissible any consideration of an applicant's circumstances which may emanate from findings made in respect of PIC 4020(1).
4. The Minister further contended that the Tribunal actively and intellectually engaged with the applicant's evidence and submissions. The Court agrees that the Tribunal properly summarised the applicant's evidence and submissions about her father-in-law's incarceration and her own fears of returning to India. The Tribunal did not make any additional findings about the applicant's fears of returning to India or her father-in-law's circumstances as the power in PIC 4020(4) required it to consider whether there were any compelling circumstances that "affect the interests of Australia", or compassionate or compelling circumstances that "affect an Australian citizen or permanent resident, or an eligible New Zealand citizen". The applicant's fears about returning to India and the circumstances of her family members were directed at neither of those issues. In this respect, the Minister relied upon Vyas v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCCA 1226 where Judge Raphael observed:

In the court's view, the Explanatory Memorandum is of assistance in considering the plain words of the regulation, such that it cannot be said that it would be sufficient for the applicants to demonstrate that their circumstances are compelling or compassionate alone. There has to be a connection with Australia or an Australian citizen, Australian permanent resident or eligible New Zealand citizen; because otherwise there would be no utility in having those words in the clause, which would be contrary to the views expressed by the High Court in Project Blue Sky that an attempt must be made to give meaning to all the words of a statutory provision.

1. It is clear that the applicant's limited submissions in this respect were matters which were personal to her. As the applicant was not an Australia citizen, permanent resident or eligible New Zealand citizen, the discretionary waiver could not apply to her and that was the basis for the Tribunal declining to consider those matters in respect of PIC 4020(4).
2. The Court is satisfied that, even adopting the broad approach referred to in [52] of these reasons, no jurisdictional error is apparent.

1. The application for review and additional submissions made by the applicant has failed to identify any jurisdictional error on the part of the Tribunal. The Court is otherwise unable to identify any jurisdictional error on the part of the Tribunal.
2. Accordingly, the application is dismissed.

I certify that the preceding sixty-two (62) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Gerrard.