Li v Minister for Immigration and Citizenship [2025] FedCFamC2G 1391

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).

1. On 24 March 2020 the Administrative Appeals Tribunal ("the AAT/Tribunal") affirmed a decision to cancel the Employee Nomination Scheme visa of the applicant, Ms Qian Li. On 28 April 2020, the applicant asked this Court to review that decision.
2. On my reading of the file, the matter was then before the Registrar in Victoria on 12 August 2020. On that date, the Registrar made the usual orders for the filing of material and ordered that the matter be listed for a hearing on a date to be advised. That date did not come for some time. The matter was subsumed into the National Docket.
3. It was then listed before me to be heard on 20 March 2025. Nine days before that hearing was to take place, the parties approached my Chambers asking for the matter to be adjourned and I was able to find the date of 22 July 2025 for the hearing to be rescheduled. The matter has been heard today before me in accordance with those orders.
4. Notwithstanding that delay, it still means that this matter has been languishing for some five years in this Court, which is, by any measure, an inordinate delay. On behalf of the Court, I apologise to Ms Li for the delay in this Court being able determine her application for review.
5. Because of those circumstances, I have decided to give the decision today by way of ex-tempore reasons.
6. The background to this matter is that the applicant is a citizen of China. She made an application for the visa in circumstances that, without being too pejorative, were somewhat shady. I say that because the company that purported to be the employer did not exist. The applicant was never interviewed for the position. The position was given a salary of $181,000, which is, depending on how one looks at it, $999 ahead of the salary that would mean that there needed to be a mandatory English requirement test undertaken.
7. The investigations ended up showing that the persons who were purportedly the directors of the company were not the directors, and signatures were purportedly said to be forgeries. The visa nevertheless was granted. It was sometime after the visa had been granted that information was given to the department that this particular granting of the visa may have through fraudulent conduct of the applicant or her agents.
8. The department issued a Notice of Intention to Consider cancellation. It did so on the basis that the applicant had given false information in her application for the visa, and that a bogus document, the employment contract, was given to the department to the Minister to consider in deciding whether to grant the visa..
9. The delegate found that false information had been given and that a bogus document had been provided. What this meant was that the grounds for cancellation of the visa had been made out, but, pursuant to s 109 of the Migration Act 1958 (Cth) ("the Act"), the cancellation was not mandatory. The Minister was obliged to consider whether there were circumstances that meant that, in the Minister's discretion, the visa ought not be cancelled. The delegate went through those matters and still cancelled the visa.
10. That decision was then taken to the AAT.
11. There was quite an extensive hearing conducted over the course of two days, and quite a volume of material was given to the Tribunal.
12. The Tribunal member gave reasons that went for some 64 pages and consisted of some 295 paragraphs. Much of the decision revolved around the history of the matter and ensuring that the submissions regarding the evidence were all laid out.
13. The Tribunal needed to decide firstly whether the Notice of Intention to Consider cancellation complied with requirements in s 107 of the Act. It found that it did.
14. The Tribunal then looked at whether there were any defects in the notice itself. The Tribunal identified four defects but concluded that those four minor errors did not impact in any way on validity of the notice and were of no consequence.
15. The Tribunal then looked at whether there was non-compliance in regard to the s 107 notice.
16. The notice alleged that the applicant had provided false information to the Minister in the first question in her visa application. The visa application, at CB 1 has a section headed "Record of Responses". The visa form states:

The position that this application relates to must be a position that the applicant has been nominated for by their prospective employer. This application may be refused if incorrect information is provided relating to the nomination details.

Nomination details:

Give details of the related nomination.

1. The applicant replied, in answer to this question and gave the ID/nomination approval number. She then the reference number of 840578892.
2. It was said that this was false information.
3. There is no doubt that the reference number 840578892 was a number that had been given to the applicant as being the nomination approval number. It is said that the false information was that this was a position that the applicant had been nominated for by their prospective employer.
4. In other words, it is alleged that there was no real position, there was no real prospective employer, and therefore, by simply saying that there was such a matter, the applicant was giving false information, notwithstanding that the numbers and position given were ones that were given to her by the department, and they did relate to the application that had been made.
5. The Tribunal concluded that the applicant had engaged a solicitor from SHS Law to assist to lodge the documentation consistent with the terms of an agreement that she had entered into with an employment agency to facilitate her permanent residence in Australia nominated by an employer. The Tribunal accepted that the law firm had lodged a bogus nomination on behalf of a company that did not truly exist.
6. The Tribunal, having come to that conclusion, found that, in the visa application form in response to the question about the related nomination, the applicant gave an incorrect answer by stating that she had been nominated by the fictitious employer and gave the related nomination transaction reference number 840578892.
7. The Tribunal found that the applicant declared in her application form that the position to which that application related was a position nominated under reg 5.19 of the Migration Regulations 1994 (Cth) ("the Regulations") by providing details in the application of the related nomination that had been lodged with the department. The Tribunal found that that was also an incorrect answer.
8. The Tribunal then looked at whether the applicant provided a bogus document, that being the employment contract. The Tribunal said, at paragraph 242 of its reasons:

It appears to the Tribunal that the applicant had outsourced the whole of the process of engaging with the department to ensure that she achieved the migration outcome desired as set out in her agreement with ASSA. Despite her claimed 15-year corporate employment career in China, it appears to the Tribunal that the applicant has been recklessly indifferent as to how her employment agency and SHS Law achieved the outcome desired by her. It appears that she has turned a blind eye to just how the proposed migration outcome by her employment company was achieved. As such, and consistent with (obiter) dicta in the authority of SRAN v Minister 2014 FCCA 37, the Tribunal found that the applicant was liable for the actions of her agent of SHS Law.

1. Therefore, the Tribunal was satisfied that she caused a bogus document to be provided to the department.
2. The Tribunal then had to ask itself whether the visa should be cancelled. At paragraph 246, the Tribunal said that:

In exercising this power, the Tribunal must consider the applicant's response, if any, to the s 107 notice about the non-compliance and have regard to any of the prescribed circumstances, that is s 109, subparagraph 1(b)(c) of the Act and the prescribed circumstances were set out in regulation 2.41 of the regulations.

1. The Tribunal then listed in brief form what those 10 prescribed circumstances were. At paragraph 247 the Tribunal said that:

While the factors set out in regulation 2.41 must be considered, they do not represent an exhaustive statement of the circumstances that might be properly considered to be relevant in any case. The Tribunal may have regard to lawful government policy. The relevant policy is set out in the department's Procedural Advice Manual, PAM 3, General Visa cancellation Powers, which refers to matters such as the consequences of cancelling the visa, international obligations and any other relevant matters.

1. The Tribunal's consideration of those matters was then set out. The Tribunal went through each of those matters and came to the conclusion that there was non-compliance with s 101(b) and s 103 of the Act and that there were grounds for cancelling the visa. The Tribunal said it has taken into account the applicant's denial of any breach in this regard. The Tribunal said that it also recognised that the daughter of the applicant's visa and that of her husband will remain cancelled if the Tribunal affirms the delegate's decision to cancel the visa of the applicant.
2. The Tribunal said it also recognised that the cancellation of the applicant's visa would possibly cause a degree of hardship to the parties, although no claims of evidence have been made regarding any possible hardship apart from the impact of the cancellation on the daughter.
3. At paragraph 292:

The Tribunal said that in its opinion the provision of incorrect information to obtain a visa is of grave concern and impacts the integrity of Australia's immigration and visa system. While the Tribunal acknowledges that the applicant relied on the employment agency and the law firm to deliver her a migration outcome, it appears that she has turned a blind eye or in the alternative has been recklessly indifferent to information and documentation submitted on her behalf. The applicant has not persuaded the Tribunal that her visa should not be cancelled.

Based on available evidence, the visa and those of the rest of the family were granted on the basis of incorrect information and a bogus document. Having regard to the matters above, the Tribunal concluded that the visa should remain cancelled.

1. In the amended application, that was filed on 1 July 2025, the applicant relied on five grounds of review. I will just go through some of them very quickly. Ground one was that the Tribunal misapplied s 101(b) of the Act when it wrongly concluded that the applicant had provided incorrect information. The argument here was that the reference number given by the applicant in her visa application was a number that was allocated by the department to identify the related employer nomination application. That itself cannot be incorrect information.
2. I am of the view that the Tribunal was correct when it said that the obligation to provide correct information was a broader one than just rabbiting back to the department the numbers that had been given to it in the first place. The preamble to those questions made it very clear that this was an application that must be a position that the applicant has been nominated for by their prospective employer. There had been no true prospective employer. The nomination was a false one. Therefore, I am not convinced that by the arguments of the applicant that this was not incorrect information.
3. It was, in my view, an attempt by the applicant to say to the department that this was a bona fide application from a bona fide perspective employer. In that regard, I am of the view that it can be seen as incorrect information, and it was open to the Tribunal to find that way. Ground one fails.
4. With regard to ground three, the applicant has asked for time to consider and make submissions as to a piece of information that was only disclosed to them today and has not concluded their submissions.
5. The ground was that the Tribunal obtained information which it was required to have regard to but failed to do so in breach of s 359(1). Whilst I have some fairly strong views on the disposition of this ground, they cannot be concluded views because the applicant has not made all of their submissions. I decline, then, to deal further with ground three.
6. Ground four is that the Tribunal irrationally or unreasonably concluded, at paragraph 209 of its reasons, that there was an inconsistency in the applicant's narrative when in truth there was none.
7. Paragraph 209(4) stated that the applicant:

...did not have any idea how the migration agent framework and the legal framework for workplace relations law in Australia. This is inconsistent with the latest submission that all the evidence given by the applicant indicates she was aware of the entire process.

1. The applicant submits that there is no inconsistency in this statement because one can have no idea how the legal framework in Australia works but still be aware of the entire process. I do not agree with the submission of the applicant in this regard, for the very short reason that it must have been obvious to the applicant that: there needed to be a proper and legally binding employment contract where there was a true employer who had a true position; and, that the applicant would be employed in that particular role and be paid accordingly; for the visa to be given to her to be a resident of Australia.
2. It seems to me it was open for the Tribunal to find that there was an inconsistency, in one hand saying that "we do not know how the system works", and then on the other hand saying that she "was aware of all the facets of this process". I do not find that ground 4 illustrates any jurisdictional error.
3. I will go then to ground 2 and ground 5, which I have combined for these purposes. Having come to the conclusion that grounds for cancellation were satisfied, the Tribunal, as I have already indicated, said that they acknowledged that they needed to consider all of the circumstances. So, the Tribunal needed to consider whether the visa should be cancelled or not.
4. The Tribunal went to the trouble of listing the mandatory considerations set out in the regulations and also took the trouble to talk about the PAM 3, which in the way in which it was framed, indicated that the Tribunal was going to follow what was in PAM 3. PAM 3 has been helpfully annexed to the affidavit of Mr Da Wei David Gu that was filed on 1 July 2025.
5. At page 23 of the affidavit, PAM 3's contents regarding deciding whether to cancel pursuant to s 109 have been reproduced. The matters that must be taken into account were also reproduced. They were the same as those that had been listed by the Tribunal in paragraphs 246 and 247.
6. It then talks of matters that should be taken into account. Relevantly, it says:

It is policy that delegates also consider the following four matters, even if not specifically raised by the visa holder in response to the Section 107 notice, and those are whether there are persons in Australia whose visas would or may be cancelled under Section 140. Secondly, whether Australia has obligations under relevant international agreements that would or may be breached as a result of the visa cancellation. Thirdly, whether there are mandatory legal consequences to a cancellation decision, and fourthly, whether there are any other relevant matters, including the degree of hardship that may be caused to the visa holder and any family members.

1. The policy then talks of weighing matters and says:

As a matter of policy, delegates should not weigh matters that are against the visa holder. This is because the grounds for cancelation have already been made out. Any information provided by the visa holder should be weighed in their favour. The amount of weight to give to the considerations is a matter of discretion for the delegate.

1. What this says in effect is that whilst it is a matter for the delegate, how it is that they weigh matters up, they should not weigh matters against the visa holder. The way in which the Tribunal went about the consideration of these matters was contrary to what was in that policy manual.
2. That would not normally amount to a jurisdictional error. But if it is that a Tribunal says that they will be implementing the PAM 3, then any derogation from that may be seen as a jurisdictional error.
3. In this case, what can be seen is that the Tribunal has, on a number of occasions, talked about a particular circumstance and then said that they give weight to this consideration in favour of cancelling the visa. Whilst that would not normally amount to a jurisdictional error, if a Tribunal or decision maker has said that they will implement PAM 3 and then do something that PAM 3 says should not be done, such action may amount to jurisdictional error.
4. However, I am of the view that whilst those examples show that there has not been compliance with PAM 3, notwithstanding that the Tribunal said that they would implement PAM 3, the error of the Tribunal is more fundamental than that.
5. It is trite to say that the circumstances in r 2.41 must be considered. How they are considered is a matter for individual Tribunal members or individual decision makers. Some may speak of the matters as a whole. Some may talk about ones for which the evidence before them means that there really can be no need to consider those particular circumstances, and others may talk about the matters in a summary way. This particular Tribunal member decided to go through each of the circumstances seriatim.
6. The first circumstance that needed to be considered under regulation 2.41 was "what was the correct information". The Tribunal then wrote about what it considered to be the correct information in paragraphs 249, 250, 251, 252 and 253. That was sufficient, one might think, to set out the circumstances under that particular aspect. The Tribunal then, at paragraph 254, said this:

The Tribunal gives weight to these considerations in favour of cancelling the visa.

1. Whether this is in contravention of the PAM 3 is not the point here. What can be gleaned is that this circumstance has been considered by the Tribunal because it has set out the relevant factual material and then given a conclusion as to how it has considered the matter - that being that it gave weight to those considerations in favour of cancelling the visa.
2. The next circumstance is the content of the genuine document. Again, the Tribunal set out in paragraphs 255, 256 and 257 what it considered to be the factual matrix under that particular consideration. At paragraph 258 the Tribunal said:

The Tribunal finds there is no genuine document in the circumstances of this case. The Tribunal gives weight to this consideration in favour of cancelling the visa.

1. Paragraph 258 is an illustration of the consideration that the Tribunal has had on this particular circumstance.
2. The next circumstance is "whether the decision to grant a visa or immigration clear the visa holder was based wholly or partly on incorrect information or a bogus document". Again, paragraphs 259 and 260 set out the factual matrix. At 261, the Tribunal says:

In these circumstances the Tribunal considers that the decision to grant the applicant a subclass 186 visa was based partly on incorrect information and a bogus document. The Tribunal gives weight to this consideration in favour of cancelling the visa.

1. Again, this is a consideration of that particular circumstance.
2. The next section is "the circumstances in which the non-compliance occurred". Paragraphs 262, 263, 264, 265, 266, 267, 268, 269 and 270 set out the factual matrix. The Tribunal, at 271 says:

The Tribunal gives weight to this consideration in favour of cancelling the visa.

1. Therefore, there has been consideration of that particular circumstance.
2. "The present circumstances of the visa holder" is the next category. Paragraphs 272 and 273 set out what the present circumstances are. There is criticism of the Tribunal for not setting out the other factual considerations in this section. Without wanting to go too far into it, that criticism is justified and should have been included under the factual matrix of this circumstance. Nevertheless, that is another argument.
3. At paragraph 274 the Tribunal wrote:

The Tribunal gives little weight to the applicant's present circumstances in favour of not cancelling the visa.

1. Whilst it may be that there was not full consideration because not all the circumstances were taken into account, nevertheless there was consideration given to that circumstance.
2. The next circumstance, "the subsequent behaviour of the visa holder concerning his or her obligations under subdivision C of division 3 of part 2 of the Act", paragraphs 275, 276, 277 set out the factual matrix. At paragraph 278, the Tribunal wrote:

The Tribunal gives some weight to this consideration in favour of cancelling the visa.

1. The next consideration is "any other instances of non-compliance by the visa holder known to the minister". The Tribunal simply wrote:

The Tribunal is not aware of any other instances of non-compliance.

1. That is the factual matrix of that consideration. There is no similar consideration given to this aspect. The Tribunal does not, as it had in the previous six instances, talked about what weight it gave in displaying or illustrating the consideration it had made.
2. The next circumstance is "the time that has elapsed since the non-compliance", and paragraph 280 sets out a factual matrix. There is no conclusion or consideration then given to this circumstance.
3. The next circumstance is "any breaches of the law since the non-compliance and the seriousness of those breaches". The Tribunal simply wrote:

The Tribunal is not aware of any breaches of the law by the applicant since the non-compliance.

1. But that is all that is written, there is no sentence talking about the consideration given to this particular circumstance.
2. Finally, "any contribution made by the holder to the community". The Tribunal wrote:

Apart from her involvement with AU and Lotus, the applicant has not submitted and there is no evidence before the Tribunal regarding any contributions made by her to the community.

1. There again is no sentence that talks of what consideration is given to this aspect. The problem that the Tribunal has here is that it has chosen to look at the matters, seriatim, set out factual matrices and then talk of what consideration is given to that particular circumstance. It has done so for six of the matters and has not done so for four of the matters.
2. Having set out that this was the way in which the Tribunal was going to illustrate its consideration, it behoved the Tribunal, too, on the other four aspects to also give a similar consideration.
3. This is a matter that is quite apart from whether there had been compliance with the PAM 3 or not, or whether there had been a proper consideration given with respect to PAM 3.
4. This comes down to a fundamental question of whether all ten of those matters have been considered by the Tribunal.
5. Given that the Tribunal has, on its own undertaking, decided to illustrate the consideration given with regard to the first six of those considerations, but not to the last four of those considerations, I am of the view that the Tribunal therefore cannot be said to have considered all of those circumstances that r 2.41 mandated that it considered.
6. Therefore, the Tribunal has made a jurisdictional error.
7. It is unnecessary for me to therefore make any conclusion on whether there had been a jurisdictional error committed because of non-compliance with PAM 3, given that it had earlier said that it would consider the matters in the manner suggested by PAM 3.
8. And I do not need to make any conclusion to the failure to look at all of the factual matters under the heading of "the present circumstances of the applicant", though it should be able to be easily discerned, from my reasons, the way in which I was thinking with regard to those matters.
9. Given that ground 2 has succeeded and that the Court has found jurisdictional error, there is no need for me to make any other concluded view.
10. Therefore, the application for review is allowed and I will issue the appropriate writs, and the matter will be sent back to the Tribunal, which will now be the Administrative Review Tribunal, for reconsideration.

I certify that the preceding seventy-nine (79) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Vasta.