Mohammed v Minister for Immigration & Multicultural Affairs [2025] FedCFamC2G 1484

1. By application filed on 6 March 2024, the applicant seeks judicial review of a decision of the Administrative Appeals Tribunal[1] (the Tribunal) dated 5 February 2024. The Tribunal affirmed a decision of a delegate (the delegate) of the First Respondent (the Minister) in refusing to grant the applicant a Student (Temporary) (Class TU) visa (the visa) under s 65 of the Migration Act 1958 (Cth) (the Act).

1. The applicant is a citizen of India. On 12 July 2019, he was granted a Student (Class TU) Subclass 500 visa and entered Australia on 17 July 2019.
2. The applicant applied for a further student visa onshore, the subject of these proceedings, on 30 April 2020. Documents provided in support of the application included a bank statement issued by the State Bank of India (SBI statement) for the account name of Mrs N Sultana, the applicant's mother.
3. On 21 August 2020, the delegate wrote to the applicant (via his representative) under s 57 of the Act and invited him to comment on information which indicated that the SBI statement was non-genuine and considered to be a fraudulent document.
4. The applicant responded to the invitation by providing financial documents from the Bank of Baroda and a statement seeking to explain the circumstances in which the SBI statement was obtained.
5. On 9 May 2022, the delegate refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl 500.217(1) of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) because the delegate was not satisfied that the applicant met the Public Interest Criteria (PIC) 4020 in Schedule 4 of the Regulations.
6. On 11 May 2022, the applicant applied to the Tribunal for review of the delegate's decision.
7. On 9 June 2023, the applicant appeared before the Tribunal to give evidence and present arguments, with the assistance of an interpreter in the Hindi and English languages.
8. On 23 October 2023, the Tribunal invited the applicant pursuant to s 359A of the act to provide a response in relation to the bogus document and any information relevant to the PIC 4020(4) waiver in his case. The applicant did not respond to the letter.
9. On 5 February 2024, the Tribunal affirmed the delegate's decision to refuse to grant the applicant the visa.

1. The dispositive issue before the Tribunal was whether the applicant satisfied the requirements of PIC 4020 as required by cl 500.217(1) of the Regulations.
2. At [8] of its decision, the Tribunal set out broadly the requirements in PIC4020(1) and (2) and the circumstances in which it can be waived.
3. The Tribunal set out details of the investigation conducted by the Department of Home Affairs (the Department) which indicated that the SBI statement was a non-genuine document, in that it had been altered by a person who did not have the authority to do so.
4. At [12], the Tribunal set out details of the applicant's response to the Department's invitation under s 57 of the Act. In summary, the applicant claimed that it was during COVID-19 and his mother, who experienced challenges during the lockdown, asked a relative to go to the bank and send all the necessary paperwork to the applicant. The applicant said that his relative purposely altered the paperwork to damage his career.
5. At [23]-[24] of its decision, the Tribunal noted that the applicant appeared to have conceded, based on his response to the s 57 invitation, that the SBI statement was not a genuine document. The Tribunal concluded at [24] and [25] that the SBI statement is a 'bogus document' as defined in s 5(1) of the Act as it reasonably suspected that the document was altered by a person who did not have authority to do so.
6. The Tribunal considered the applicant's claim that he had no knowledge that the SBI statement was a bogus document and that he did not 'give' the document to the Department. The Tribunal considered that for a bogus document to be 'given or caused to be given' did not mean that the applicant needed to be aware that the document given was bogus or that they had instructed another person to provide it.
7. Notwithstanding its finding, the Tribunal went on to consider whether the applicant had caused the bogus document to be given either because; (a) he was complicit in the fraud or (b) indifferent to it. The Tribunal, for reasons set out at [31]-[49] rejected the applicant's claim that he had no knowledge the document was bogus as it considered his evidence to be inconsistent, evasive and vague. The Tribunal also considered that the applicant, by his failure to check the document was 'recklessly indifferent' to what was being provided to the Department with his application: [29]-[30].
8. The Tribunal considered the applicant's evidence about his study in Australia, but it rejected his claim that his 'study was going well'.
9. The Tribunal ultimately concluded at [56] that the applicant had given or caused to be given a bogus document to the Minister in relation to his visa application and did not meet PIC 4020(1) of the Regulations.
10. The Tribunal noted that it had given the applicant an opportunity at the hearing and after the hearing to provide submissions in relation to the waiver, but he had not done so, and it was not satisfied that PIC 4020(1) should be waived: [62]-[64]. The applicant, therefore, did not satisfy cl 500.217 for the grant of the visa.

1. The application for judicial review was filed on 6 March 2024 and advanced two grounds of review.
2. The applicant also filed an Affidavit annexing the Tribunal's decision. It was not necessary for the Court to take this Affidavit into evidence as the Tribunal's decision was included in the Court Book filed by the Minister on 5 August 2025.
3. The matter was listed for hearing before me on 21 August 2025 at the Parramatta Registry of the Court and a notice of listing was sent to the parties on 9 July 2025. 
4. At the hearing on 21 August 2025, the applicant appeared in person and was assisted by an interpreter in the Hindi and English languages. The Minister was represented by Mr Wong of HWL Ebsworth Lawyers.
5. The Court Book was tendered into evidence at the hearing and marked Exhibit CB. 
6. Being mindful that the applicant was unrepresented, I explained to him how the hearing would proceed and the role and powers of the Court in judicial review proceedings.  
7. The applicant was guided through his application and was invited to make oral submissions in support of the grounds of review advanced in the application, which he did.

1. The Court can only grant relief if it can be established that the decision of the Tribunal is affected by a jurisdictional error: Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476.  
2. In Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421 (SZMTA) at [81], the High Court, per Nettle and Gordon JJ explained that:

The categories of jurisdictional error are not closed. Jurisdictional error by a statutory decision-maker includes identifying a wrong issue; asking the wrong question; ignoring relevant material; relying on irrelevant material; in some cases, making an erroneous finding or reaching a mistaken conclusion; and failing to observe some applicable requirement of procedural fairness.

1. To constitute jurisdictional error, the error must be material, in the sense that it could have realistically deprived the applicant of the opportunity of a successful outcome: SZMTA at [2]; LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; (2024) 418 ALR 152 at [32].  
2. Further, as explained to the applicant at the hearing, it is not for the Court to review the merits of the Tribunal decision: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272.

1. The grounds of review advanced in the application (without alteration) are: 
   1. I continue to believe that PIC4020 should not apply to me as I never intentionally provided a bogus document.
   2. The Tribunal was provided with sufficient explanation and failed to accept that the document which was submitted was beyond my own control and caused by someone else without my knowledge.
2. In oral submissions, the applicant said he was not personally involved in the provision of any non-genuine document. He was not aware of any investigation conducted by the Department that the document provided by his mother and the agent was fraudulent or non-genuine. He did not give the bogus document to the Department and did not know about the contents of the document. He passed the document on to the agent and it was the agent's responsibility to submit it. He said it had nothing to do with his credibility as he was not involved with the document and was innocent.

1. In written submissions, the Minister has responded to grounds one and two together. For ease of consideration, I will also deal with the grounds together as there is some overlap in the complaints they raise.
2. By these grounds, the applicant contends that PIC 4020 should not have applied to him because he did not intentionally provide the bogus document, it was altered by someone else without his knowledge and it was beyond his control.
3. The Minister submitted that neither ground has any merit and the Tribunal's findings were open to it on the evidence before it.
4. The grounds advanced, on their face, do little more than express strong disagreement with the Tribunal's findings and reasons. Unless it can be demonstrated that the Tribunal's findings were not rationally open to it or that the decision was legally unreasonable, the Court's role, in reviewing the Tribunal decision, is limited.
5. To satisfy cl 500.217(1), the applicant had to satisfy PIC 4020. The terms of PIC 4020 required the Tribunal to be satisfied that there was 'no evidence' that the applicant had given, or caused to be given, a bogus document in relation to his application for the visa. Notwithstanding the applicant's protest that he was not aware of the investigation conducted by the Department or that the SBI statement was a bogus document, the information before the Tribunal suggested that the SBI statement was counterfeit or had been altered by a person who did not have the authority to do so. There was no evidence before the Tribunal to the contrary, and the Tribunal recorded in its reasons at [23] that the applicant had conceded that the document was 'not genuine'.
6. As there was evidence before the Tribunal which suggested that the SBI statement was counterfeit or had been altered by a person who did not have the authority to do so, it was open for the Tribunal to conclude at [24] that the SBI statement was a 'bogus document' within the meaning of s 5(1)(b) of the Act. No error is disclosed in that finding of the Tribunal.
7. The Tribunal also considered the applicant's claim that he did not have any knowledge that the SBI statement was a bogus document. At [27], it correctly stated, by reference to the Full Federal Court authority in Singh v Minister of Immigration and Border Protection (2018) 261 FCR 556; [2018] FCAFC 52 (Singh), that it was not necessary for the applicant to have been aware that a bogus document had been given by another person or that he had instructed another person to provide the bogus document.
8. In Singh the Full Federal Court held that:

[152] ..... it was open to the AAT to find that the appellant had, at the very least, caused the bogus document (or false and misleading information) to be given to the Department because he was content to have his brother-in-law act as his intermediary. He said that he gave various certified documents to his brother-in-law for the purpose of lodging an application for the visa with the Department. The appellant gave no evidence that he sought in any way to control or limit what the brother-in-law did when acting in his capacity as intermediary. The legislative scheme, including PIC 4020, operates on the basis that the visa applicant bears responsibility for a bogus document, or information which is false or misleading in a material particular, if the visa applicant has given the document (or information) to the Department, or caused it to be given. As noted above, the policy underlying this scheme was described by Buchanan J in Trivedi. It is a policy which reflects the volume of administrative decision-making and the limited capacity of the Department to detect and determine who has engaged in fraudulent or dishonest conduct.

[153] We do not consider that the legislative scheme, which vests responsibility on the visa applicant for what is provided to the Department in support of a visa application, differentiates between the facts and circumstances in Trivedi and Patel and those here (and in Zhang). It was open to the AAT to find that the appellant had given or caused to be given to the Department a bogus document or information that was false or misleading in a material particular. In the particular facts and circumstances here, the appellant bears responsibility for what he contends his brother-in-law subsequently did. Applying Trivedi and Patel, and having regard to the facts as found by the AAT, it was not necessary for the AAT to determine whether or not the appellant had knowledge of, or was complicit in, the brother-in-law's fraudulent conduct. No significance attaches to the fact that the brother-in-law subsequently retained a migration agent to lodge the documents, including the bogus document, with the Department. (emphasis added)

1. The Tribunal was not required to determine that the applicant had knowledge of, or was complicit in, the fraudulent conduct of his relative. Contrary to the applicant's contention, it was not necessary for the Tribunal to conclude that he was aware that the SBI statement (found to be a bogus document) had been intentionally provided by him for PIC 4020 to apply.
2. While it was probably not required to do so, the Tribunal went on to consider at [31]-[49] the credibility of the applicant's claim that he was not aware the SBI statement was a bogus document. The Tribunal found that the applicant had not provided consistent evidence regarding the circumstances of procuring the SBI statement, including whether his mother had asked his cousin to procure the document, whether his mother had COVID-19 or was merely concerned about being exposed to the virus, whether his mother had the funds already or had to take out an education loan, and the dates he claimed the loan would have been taken out. The Tribunal, having set out the inconsistencies in the evidence, which it noted the applicant had been unable to explain, and finding that the applicant had been evasive and vague in his responses to its questions, proceeded to reject (at [51]) the applicant's claim that he was not aware the SBI statement was counterfeit. I accept the Minister's submission that the Tribunal's finding in that regard was open to it, based on the evidence before it: Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 at [130].
3. While the applicant may emphatically disagree with the Tribunal's findings and reasons, his grounds do not disclose jurisdictional error in the Tribunal's decision. It was open to the Tribunal to conclude, for the reasons it gave, that PIC 4020 applied to the applicant. Further, no error is discernible in the Tribunal's reasoning for rejecting the applicant's claim that he was not aware of the bogus document.
4. Neither ground one nor two establish jurisdictional error on the part of the Tribunal.

1. As the grounds raised by the applicant do not establish jurisdictional error, the application for judicial review must be dismissed.

I certify that the preceding forty-six (46) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Skaros.

[1] The Court notes that the Administrative Appeals Tribunal has been superseded by the Administrative Review Tribunal. Item 10, Part 2 of Schedule 16 to the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 provides that for any proceedings that were pending in any court or tribunal immediately before the transition time and to which the Administrative Appeals Tribunal was a party, the Administrative Review Tribunal is, after the transition time, substituted for the Tribunal as a party to the proceedings.