Li v Minister for Immigration and Citizenship [2026] FedCFamC2G 582

1. This case concerns public interest criteria (PIC) 4020, contained in Part 1 of Sch 4 to the Migration Regulations 1994 (Cth) (Regulations). Clause 820.226 of Sch 2 to the Regulations requires that "the applicant satisfies public interest criteria 4020 and 4021".
2. Relevantly, PIC 4020(2A) requires that:

The applicant satisfies the Minister as to the applicant's identity.

1. Here, the Tribunal was not satisfied as to the applicant's identity, and for that reason, she did not meet that criteria for the purposes of cl 820.226 of Sch 2 to the Regulations. The Tribunal therefore affirmed the decision not to grant the applicant a Partner (Temporary) (Class UK) visa.
2. In short, the applicant has not identified any jurisdictional error in the Tribunal's decision, and the matter must be dismissed with costs. Indeed, many of the grounds in the application in this Court amounted to assertions which were never developed in submissions, let alone made out.

1. The applicant, Zhenshu Li, seeks judicial review of a decision of the then Administrative Appeals Tribunal (Tribunal) made in June 2022. She is a Chinese citizen who, under the name Xiang Mei Li, applied in 2002 for a short stay business visa and, subsequently, a protection visa, which was refused by the Minister. The refusal was affirmed by the Refugee Review Tribunal and judicial review of the Tribunal's decision was unsuccessful in the Federal Court.
2. Following the expiry of her bridging visa in December 2006, the applicant remained in Australia for seven years, after which she departed Australia using a passport in the name of Xiang Mei Li. A year later, in 2014, she applied for a combined Subclass 309/100 visa in the name of Zhenshu Li, but did not declare she had any other names or that she had previously been in Australia.
3. Although she was originally granted a Subclass Partner (Provisional) 309 visa, which allowed her to arrive in Australia in 2015, when she later applied for a Subclass 820/801 visa, she then declared she had a previous identity, namely, Xiang Mei Li. She provided her household registration certificate from China (Hukou) using that name, but the department responded by letter to her stating that information before it indicated that the Chinese passport and birth certificate provided in the name of Zhenshu Li:

... have been obtained on the basis of a non-genuine "Hukou" (Family Registration) document. Specifically, the household number used in your "Hukou" does not exist in the Donglai Street Police System which is where your "Hukou" was issued. As the "Hukou" you used to obtain your Birth Certificate and subsequently to obtain your Chinese passport is not genuine, I cannot be satisfied of your identity.

1. Evidence was then sought from her in response. The delegate refused the grant of the visa on the basis that the applicant did not satisfy the identity requirement, and there was then an application to the Tribunal. In the result, the Tribunal at [159] said it:

... places minimal weight on her Chinese issued documents and her supporting evidence.

... the applicant has been prepared to obtain and rely upon documents from the Chinese authorities, and from Australian entities, and to submit unreliable documents, and that she will do or say whatever she wants to achieve her desired outcome. The Tribunal is not satisfied that she has the identity as claimed.

1. The Tribunal earlier set out its significant concerns about the applicant's credibility at paragraphs 40 to 42 of its decision:
   1. The Tribunal has significant concerns about the applicant's credibility. It found that her evidence was inconsistent with her own previous evidence, and with other documentary and oral evidence, and that it was evasive, unreliable or implausible in important particulars.
   2. The Tribunal's concerns as to the applicant's credibility are relevant to whether it is prepared to accept her claims as to her identity and her explanations for inconsistencies and difficulties with her evidence and other evidence provided. As noted above the Tribunal must reach a state of satisfaction as to the applicant's identity. However, after considering all the material below, the Tribunal finds that she is an undependable and untruthful witness who has been prepared to do and say anything in order to obtain a migration outcome that she seeks, including presenting and maintaining different identities.
   3. The Tribunal acknowledges that a small number of the adverse details referred to below, while relevant, relate to more minor issues. It does not generally consider that minor or trivial matters of fact should, on their own, undermine a witness's credibility. But, when all the problematic evidence set out below is considered together, the Tribunal has found things that might otherwise appear inconsequential, collectively take on more significance. Therefore, less substantial inconsistencies and omissions have been given weight. While each may, itself, be minor, when considered as a whole, the small mistakes also indicate that she is not a person who is prepared to tell the truth about her identity or background.

1. The Minister's submissions before this Court accurately summarised the Tribunal's main concerns about the applicant's evidence as follows:

28. The Tribunal noted the following concerns about the applicant's evidence:

(a) she was prepared to use two different identities in Australia and only acknowledged her previous use of a different identity when she was confronted with evidence of this by the Australian authorities: DR[44]-[51];

(b) she did not initially acknowledge in her evidence to the Tribunal that she had a previous identity: DR[52];

(c) she had actively maintained a false identity in Australia for 11 years, and presented herself as that person to the RRT, the court and the Department. The Tribunal was not satisfied that the applicant had no knowledge of her false identity and relied entirely on her migration agent for visa and court applications. The Tribunal found that the applicant used the false identity to obtain a drivers licence, telephone account, an airline ticket and a travel document from the Chinese Embassy. It found that these matters suggested the applicant was prepared to do anything to achieve a desired migration outcome: DR[41] and [53]-[68];

(d) she gave inconsistent evidence about the reason for her departure from Australia in 2013. While this concern was not central to the question of her identity, it was relevant because it indicated the applicant was prepared to conceal the truth: DR[69]-[77];

(e) she gave false and misleading information in her subclass 309/100 visa application lodged in 2014. Her explanation for it was that she knew there was no way she would ever be able to come to Australia if she declared her previous identity, so she made the decision to conceal everything and deceive the Australian government. The Tribunal found this to indicate that the applicant was prepared to be untruthful to achieve a desired outcome: DR[78]-[86];

(f) the applicant's claims as to why she came to Australia have changed over varying applications and in her explanations. She and her sponsor gave inconsistent evidence about their reasons for travelling to Australia: DR[87]-[96];

(g) she gave inconsistent evidence about her family composition and work history: DR[97]-[104];

(h) the Tribunal noted the various Chinese identity documents produced by the applicant and the documents covered by the s 375A certificates: [105]-[118]. The Tribunal noted that there were inconsistencies between the Chinese identity documents and the applicant's claims. It noted that the certificate of permanent residence dated 6 November 2020 suggested that she was divorced, which was inconsistent with the applicant's evidence that she re-married the sponsor in 2014: DR[119]-[121];

(i) the Tribunal noted that the applicant provided her sister's address in China as her permanent address in her visa applications. As this address was not on the Chinese identity documents she had produced, it undermined her claimed identity: DR[124]-[131] and [139]. The Tribunal was also concerned that the applicant appeared to have made false representations to the Chinese authorities to obtain a Hukou for the purpose of her son's schooling: DR[136]-[139];

(j) the Tribunal noted the applicant gave confused and inconsistent evidence about how she obtained her new identity documents: DR[142]-[151].

1. The Tribunal also placed "very limited weight" on documents obtained or created in Australia, given its finding the applicant had previously been able to obtain documents in what she claimed was a false identity. In the result, little weight was placed on the Chinese identity documents in view of the applicant's inconsistent evidence; thus the Tribunal concluded:
   1. In conclusion, the Tribunal places minimal weight on her Chinese issued documents and her supporting evidence. It notes that the applicant claims that she was able to obtain false identity documents for payment of a fee; and she claims these allowed her to pass through Chinese and Australian customs. While the Tribunal accepts that the Department found that some of the documents she produced were genuinely issued, the Tribunal is not satisfied that her Chinese issued documents are reliable nor that they support her identity as claimed.
   2. The Tribunal considered a number of possibilities. This includes firstly, that the applicant's claims and explanations are true: that she and the sponsor divorced, didn't see each other in Australia, and that they happened to rekindle their relationship in China; it has too many concerns to accept that these claims are credible. It also considered another possibility that the applicant and sponsor had arrived in Australia as a genuine couple and had maintained this throughout the time she was in Australia while the sponsor married another person so that he could obtain residency and then invite the applicant as his wife back to Australia. Such an explanation, while indicating a manipulation of the migration system, could however support the applicant's identity. The Tribunal is not, however, satisfied that this can explain all the difficulties with the evidence. The Tribunal does not have to understand why actions have been taken; it has however come to the conclusion that due to the changing, inconsistent and not credible evidence, it has not reached a state of satisfaction as to the applicant's identity.
2. It can be seen from these extracts that the applicant faces the difficult task of overcoming those detailed and careful findings about the applicant's evidence.

1. The applicant put forward six grounds of review in a further amended application, although Ground 2 was effectively abandoned at the hearing before me. There was little development of any ground, nor much reference to the evidence or Tribunal reasons. I now consider those grounds.

1. Ground 1 concerned an alleged failure to consider relevant evidence as to identity, the particulars concentrating on:

(a) an alleged failure to properly engage with probative documentary evidence of identity, including Chinese notarial certificates confirming identity and birth details and a Chinese passport and birth certificate;

(b) an alleged failure to evaluate the probative value of these documents independently, instead dismissing them solely due to concerns about the "Hukou"; and

(c) the Tribunal adopting what was called "a derivative reasoning error", namely, because the Hukou was suspected to be non-genuine, all subsequent documents were treated as unreliable without independent assessment.

1. The premise of this ground fails at the outset. In fact, each of the documents identified in the particulars were specifically referred to in Tribunal reasons at [106]-[107] and [118]-[119] (see also [120]-[121]). In particular, at [107], the Tribunal noted the delegate's finding:

... on the basis of investigations that the hukou, issued ... October 2013 and updated ... October 2013, was non-genuine, and as her passport issued ... November 2013 and her birth certificate, issued ... May 2014, would have been obtained on the basis of that non-genuine hukou, then although the passport and birth certificates were found to be genuinely issued, they are also not reliable because they are based on a false hukou. The applicant had not responded to the delegate's concerns in the time provided by the delegate (nor did she seek an extension of time).

1. Therefore, this paragraph shows that the assertion that the Chinese passport and birth certificate were accepted by the delegate as genuinely issued is incorrect. The Tribunal put to the applicant much adverse information concerning the 2013 Hukou, as well as additional material and evidence: see Tribunal reasons at [118]-[123] and [132]-[144]. It follows that the material was considered, so the ground fails.

1. This ground asserted a constructive failure to exercise jurisdiction because the Tribunal refused or declined to investigate or verify conflicting evidence regarding the Hukou, including by refusing to contact the Chinese authorities. I understood this ground was abandoned at the hearing. In particular, there was no reference to making "an obvious inquiry about a critical fact, the existence of which is easily ascertained", within the meaning of the use of that expression by the plurality in Minister for Immigration and Citizenship v SZIAI [2009] HCA 39 at [25]. The Minister correctly pointed to the very different facts and easily identifiable issue or fact considered in cases such as Pillay v Minister for Immigration and Citizenship [2026] FCAFC 24, for example, at [58]-[66].
2. Furthermore, I note there is neither information nor submissions before the Court which would enable me to be satisfied about the ease of making inquiries in China or the utility of doing so when the applicant herself had told the Tribunal the documents obtained from China contained false information and that she had previously been able to obtain a number of false documents in order to come to Australia: see Tribunal reasons at [150] where it was said, without error that:

The applicant's evidence indicates that she applied for the new documents on the same day and thus she could not have relied upon her new hukou to obtain her new identity card which is genuine. The Tribunal has considered the applicant's assertion, as well as her suggestion that the Tribunal approach police/security/officers in China to verify this. The Tribunal was not prepared to contact various offices in China to seek to establish the applicant's identity, noting that it is her responsibility to produce documents to the Tribunal, she has provided a variety of changing and inconsistent documents and has already told the Tribunal that documents obtained from the Chinese authorities contain false information; further she was able to obtain a number of false documents in order to come to Australia in 2002.

1. Ground 2, although not pressed, would not have succeeded in any event.

1. In Ground 3, it is said that the credibility findings were irrational or illogical because they relied heavily on past alleged misconduct and inconsistencies to reject identity (in particular, the use of an alias, migration history and inconsistent statements), and this therefore amounted to jurisdictional error. There are a number of problems with this ground. The first is that it is a rare case in which irrationality or illogicality can be established: Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3 at [33]- [35] sets out what an applicant must show (but did not here), thus:

[33] The characterisation of a decision (or a state of satisfaction) as legally unreasonable because of illogicality or irrationality is not easily made: Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; 264 CLR 541 at 551 [11], 564 [52], and 586 [135]; Minister for Home Affairs v DUA16 [2020] HCA 46; 385 ALR 212 at 220 [26]; SZMDS 240 CLR at 647-650 [130]-[135]; CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146; 253 FCR 496 at 517-518 [60]; and Acting Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CWY20 [2021] FCAFC 195; 395 ALR 57 at 88 [142].

[34] The task in assessing illogicality is not an exercise in logical dialectic. "Not every lapse of logic will give rise to jurisdictional error. A Court should be slow, although not unwilling, to interfere in an appropriate case": SZDMS 240 CLR at 648 [130]. It is the ascertainment, through understanding the approach of the decision-maker and characterising the reasoning process, of whether the decision (or state of satisfaction) is so lacking a rational or logical foundation that the decision (or relevant state of satisfaction) was one that no rational or logical decision-maker could reach, such that it was not a decision (or state of satisfaction) contemplated by the provision in question. Some lack of logic present in reasoning may only explain why a mistake of fact had been made which can be seen to be an error made within jurisdiction. As the Chief Justice said in Stretton at [11], the evaluation of whether a decision was made within lawful boundaries is not definitional, but one of characterisation and whether the decision was sufficiently lacking in rational foundation, having regard to the terms, scope and purpose of the statutory source of power, that it cannot be said to be within the range of possible lawful outcomes.

[35] Ultimately, the question is whether the satisfaction of the relevant state of affairs or matter was irrational, illogical or not based on findings or inferences of fact supported by logical grounds: Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32; 207 ALR 12 at 20-21 [38]; Re Minister for Immigration and Multicultural Affairs; Ex Parte Applicant S20/2002 [2003] HCA 30; 198 ALR 59 at 71 [52] and 98 [173], such that it cannot be said to be possible for the conclusion to be made or the satisfaction reached logically or rationally on the available material. It will then satisfy the characterisation of unjust, arbitrary or capricious.

1. Fundamentally, the Tribunal's adverse credibility findings included those based on evidence the applicant gave to the Tribunal and claims made in the Tribunal by the applicant which were found to be inconsistent with other material provided to the Tribunal. These are clearly and logically set out in detail at paragraphs 124 to 151 of the Tribunal's reasons. At the hearing before me, the applicant's lawyer did not take me to any portions of the court book or the Tribunal's reasons to make good this submission requiring extreme illogicality by the Tribunal. This ground has not been made out.

1. Ground 4 in the application asserts that the Tribunal applied the wrong test as to identity by effectively requiring conclusive proof of identity rather than reasonable satisfaction. The difficulty with this ground, which was not elaborated upon at all at the hearing before me, is that the Tribunal set out in some detail the legal principles in the matter at paragraphs 13 to 17 of its decision:
   1. Regulation 820.226 requires that the applicant satisfies public interest criteria (PIC) 4020 and 4021. PIC 4020 is required by cl 820.226 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: PIC 4020(1); and
      • the applicant and each member of the family unit has not been refused a visa because of a failure to satisfy PIC 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: PIC 4020(2) and (2AA); and
      • the applicant satisfies the Minister as to his or her identity: PIC 4020(2A); and
      • neither the applicant nor any family unit member has been refused a visa because of a failure to satisfy PIC 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: PIC 4020(2B) and (2BA).
   2. The issue in this review is whether the applicant meets PIC 4020(2A) as required by cl 820.226 for the grant of the visa.
   3. The requirements in PIC 4020(1) and (2) can be waived if there are certain compelling or compassionate reasons justifying the granting of the visa: PIC 4020(4). However, this waiver does not apply to the identity requirements in PIC 4020(2A) and (2B). PIC 4020 is extracted in the attachment to this decision.
   4. PIC 4020(2A) and (2B) were introduced because identity fraud was considered a matter of serious concern given that a person's identity is the foundation of all checks, including national security and character checks; and as entitlements, such as a driver's licence or Medicare card, are dependent on the accurate identification of an applicant.4
   5. The Explanatory Statement to the Regulations that introduced this requirement suggests that in considering this criterion, decision-makers may have regard to a range of identity documents, including a person's passport but will need to consider the applicant's individual circumstances, including whether they have access to identity documents, when determining if the identity requirements are satisfied.5 The Tribunal makes up its own mind as to whether the requirement is satisfied, but it accepts that these are relevant considerations.
2. There was no analysis made in the written or oral submissions explaining what alleged error the Tribunal had made in that regard. None is apparent. Rather, I took this as simply an expression of dissatisfaction with the Tribunal's result, amounting to an attempt to invite the Court to engage in impermissible merits review. Neither on this ground nor any other ground did the lawyer for the applicant take me, at the hearing before me, to any relevant authorities. This ground fails.

1. Ground 5 asserts that the Tribunal took into account three irrelevant considerations by improperly relying upon a past unlawful stay in 2002 to 2013 (referred to above), prior false protection claims and relationship history inconsistencies when it was said those matters do not logically determine present identity and were used to discredit objective documentary evidence, and that this was jurisdictional error. Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 remains the leading statement of the law concerning irrelevant considerations, where Mason J said:

(1) Failure To Take Into Account a Relevant Consideration.

The failure of a decision-maker to take into account a relevant consideration in the making of an administrative decision is one instance of an abuse of discretion entitling a party with sufficient standing to seek judicial review of ultra vires administrative action. That ground now appears in s .5(2)(b) of the A.D.(J.R.) Act which, in this regard, is substantially declaratory of the common law. Together with the related ground of taking into account irrelevant considerations, it has been discussed in a number of decided cases, which have established the following propositions:

(a) The ground of failure to take into account a relevant consideration can only be made out if a decision-maker fails to take into account a consideration which he is bound to take into account in making that decision: Sean Investments Pty. Ltd. v. MacKellar; CREEDNZ Inc. v. Governor-General; Ashby v. Minister of Immigration. The statement of Lord Greene M.R. in Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation, that a decision-maker must take into account those matters which he "ought to have regard to" should not be understood in any different sense in view of his Lordship's statement on the following page that a person entrusted with a discretion "must call his own attention to the matters which he is bound to consider".

(b) What factors a decision-maker is bound to consider in making the decision is determined by construction of the statute conferring the discretion. If the statute expressly states the considerations to be taken into account, it will often be necessary for the court to decide whether those enumerated factors are exhaustive or merely inclusive. If the relevant factors - and in this context I use this expression to refer to the factors which the decision-maker is bound to consider - are not expressly stated, they must be determined by implication from the subject-matter, scope and purpose of the Act. In the context of judicial review on the ground of taking into account irrelevant considerations, this Court has held that, where a statute confers a discretion which in its terms is unconfined, the factors that may be taken into account in the exercise of the discretion are similarly unconfined, except in so far as there may be found in the subject-matter, scope and purpose of the statute some implied limitation on the factors to which the decision-maker may legitimately have regard: see Reg. v. Australian Broadcasting Tribunal; Ex parte 2HD Pty. Ltd., adopting the earlier formulations of Dixon J. in Swan Hill Corporation v. Bradbury, and Water Conservation and Irrigation Commission (NS.W) v. Browning. By analogy, where the ground of review is that a relevant consideration has not been taken into account and the discretion is unconfined by the terms of the statute, the court will not find that the decision-maker is bound to take a particular matter into account unless an implication that he is bound to do so is to be found in the subject-matter, scope and purpose of the Act.

(c) Not every consideration that a decision-maker is bound to take into account but fails to take into account will justify the court setting aside the impugned decision and ordering that the discretion be re-exercised according to law. A factor might be so insignificant that the failure to take it into account could not have materially affected the decision: see, e.g., the various expressions in Baldwin & Francis Ltd. v. Patents Appeal Tribunal; Hanks v. Minister of Housing and Local Government; Reg. v. Chief Registrar of Friendly Societies; Ex parte New Cross Building Society. A similar principle has been enunciated in cases where regard has been had to irrelevant considerations in the making of an administrative decision: Reg. v. Bishop of London; Reg. v. Rochdale Metropolitan Borough Council; Ex parte Cromer Ring Mill Ltd.

(d) The limited role of a court reviewing the exercise of an administrative discretion must constantly be borne in mind. It is not the function of the court to substitute its own decision for that of the administrator by exercising a discretion which the legislature has vested in the administrator. Its role is to set limits on the exercise of that discretion, and a decision made within those boundaries cannot be impugned: Wednesbury Corporation.

It follows that, in the absence of any statutory indication of the weight to be given to various considerations, it is generally for the decision-maker and not the court to determine the appropriate weight to be given to the matters which are required to be taken into account in exercising the statutory power: Sean Investments Pty. Ltd. v. MacKellar; Reg. v. Anderson; Ex parte Ipec-Air Pty. Ltd.; Elliott v. Southwark London Borough Council; Pickwell v. Camden London Borough Council. I say "generally" because both principle and authority indicate that in some circumstances a court may set aside an administrative decision which has failed to give adequate weight to a relevant factor of great importance, or has given excessive weight to a relevant factor of no great importance. The preferred ground on which this is done, however, is not the failure to take into account relevant considerations or the taking into account of irrelevant considerations, but that the decision is "manifestly unreasonable".

(Footnotes omitted)

1. The starting point for the applicant is to show that there were considerations which the decision maker was prohibited from taking into account. No explanation was given as to why these three matters could not be taken into account. Each is logically relevant to determining the ultimate issue posed by PIC 4020. Insofar as this ground was a complaint based on asserted illogicality or extreme unreasonableness, again, the Tribunal carefully set out its reasoning and there is nothing here that approaches the extreme illogicality described in Minister for Immigration and Citizenship v SZRKT [2013] FCA 317 at [148].
2. The Minister submits, and I agree, that it is misplaced reliance to assert that documentary evidence supports a case when those documents were issued on the basis of false information, namely, a non-genuine Hukou, as explained in Tribunal reasons at [118]:

The Tribunal explained at the first hearing that there were non-disclosure s 375A certificates on the Departmental files which required the Tribunal not to disclose certain information relating to investigative processes and sources of information and correspondence (copies of the certificates were provided at the second hearing to the agent, who did not object to their validity). Some of the information relates to the Department's processes and how they found out who she is and does not seem relevant; she had already said she was a different person so how they found out is not relevant. Some of the information is already repeated in the delegate's decision record. The Tribunal noted that it would disclose relevant information if required to do so pursuant to s 359A of the Act. The adverse information is essentially that the hukou issued in October 2013 had been found not to be genuine and although the birth certificate had been found to be genuinely issued, because it was based on a non-genuine hukou, it was genuinely issued on the basis of false information.

1. The final ground concerns an alleged denial of procedural fairness, but in the written submissions, no particulars were given of this ground beyond that the Tribunal had "[r]epeated concerns without engaging with responses" and "[d]ismissed explanations without proper reasoning", without explaining where this was said to have occurred. Again, this ground, which was not elaborated upon or particularised at the hearing, also appears to amount to impermissible merits review. It fails.
2. No jurisdictional error has been established. It follows that the amended application must be dismissed with costs.

1. The orders of the Court are that:
   1. The application be dismissed.
   2. The applicant pay the first respondent's costs fixed in the sum of $9,097.93.

I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Renwick.