Shrestha v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2025] FedCFamC2G 998

The first ground of review: was there a false or misleading statement?

1. The Tribunal found the statement contained in the application form regarding visa history was factually incorrect when the form was lodged. As well it might: the applicant said 'No' in answer to a question about whether anyone covered by the application had been refused entry in circumstances where the correct answer to that question was clearly 'Yes'. The applicant appears to have conceded in his evidence to the Tribunal that the statement was factually incorrect when made, albeit he insisted the misstatement was the product of a genuine misunderstanding as to the scope of the question: see the Tribunal's reasons at [14].
2. The applicant's first ground of review proceeds on the basis Mr Shrestha corrected the record before the application for a visa was finalised. The correction supposedly came in his letter to the department on 20 June 2019 that I have already quoted. Strictly speaking, that letter did not disclose the missing facts about Mr Shrestha's visa history; rather, the letter merely confirmed what the department had already brought to the applicant's attention after the department consulted its records. This is not a case where the applicant realised he made a mistake and promptly informed the department of the error before the error was independently discovered. Mr Turner says that distinction is irrelevant for present purposes.
3. Mr Turner argues the Tribunal was wrong to make its findings having regard only to the information provided in the form when it was filed. He argued the Tribunal was able to take account of subsequent revisions to answers in the form when the Tribunal considered whether the applicant made a false or misleading statement within the meaning of PIC4020(1). In making that argument, Mr Turner relies on the operation of s 99 of the Act. Section 99 provided at the time:

Any information that a non-citizen gives or provides, causes to be given, or that is given or provided on his or her behalf, to the Minister, an officer, an authorised system, a person or the Tribunal, or the Immigration Assessment Authority, reviewing a decision under this Act in relation to the non-citizen's application for a visa is taken for the purposes of section 100, paragraphs 101(b) and 102(b) and sections 104 and 105 to be an answer to a question in the non-citizen's application form, whether the information is given or provided orally or in writing and whether at an interview or otherwise.

1. The minister points out in written submissions that s 99 is found in Subdivision C of Part 2 Division 3 of the Act. The heading of Subdivision C is 'Visas based on incorrect information may be cancelled'. The minister notes the decision under challenge in this case is not a cancellation decision, but a refusal decision - whereas a perusal of other provisions in the same subdivision suggests they are concerned with cancellation. I was told that tends to suggest a decision to refuse a visa may not be covered by s 99 even though the language of that section refers to information given to a decision-maker "reviewing a decision under this Act in relation to the non-citizen's application for a visa...".
2. As it happens, some other provisions in Subdivision C are not expressly limited to cancellation decisions. As I understand the minister's argument, however, these provisions are all ultimately referable to the cancellation powers contained in Subdivision C.
3. Mr Turner says the operation of s 99 is not limited as the minister contends. Mr Turner says the effect of s 99 is that Mr Shrestha's belated explanation of his wife's visa history is taken to be his answer to the relevant question on the visa application form. If that is the correct approach, then Mr Turner argues there was no answer in the application form that was false or misleading.
4. I do not need to reach a concluded view on the minister's argument about the scope of provisions in Subdivision C because I am satisfied s 99 does not assist the applicant in the way Mr Turner contends. That section is one of several integrity provisions which explain how information provided to the department is to be treated. The integrity provisions are obviously intended to ensure those engaging with the department provide truthful and accurate information. Section 99 says any information given to the department at any point in connection with a visa application is treated as if it were provided in answer to a question on the form. By treating all information as if they were answers to questions on the form, that information is subjected to the integrity provisions which apply to the application form. Those integrity provisions include s 101 which says answers given on the form (or which are deemed by s 99 to be given on the form, I should interpolate) must be correct. Section 100 says the answer to the question might be incorrect even though the person providing the answer did not know it was incorrect. Section 105 creates an obligation to inform the department where the non-citizen becomes aware an answer in the form was incorrect.
5. Section 99 is, in effect, a deeming provision which effectuates the integrity provisions. There is no basis in the text of that section for assuming incorrect answers are somehow expunged by the simple expedient of providing fresh or different information, whether that information is provided pursuant to the obligations in ss 104 or 105 or otherwise. A contravention of s 101(b) occurs when incorrect information has been provided in answer to a question on a visa application form, even if the answer is subsequently corrected and is deemed to be given in answer to the same question.
6. The applicant says the Tribunal's decision was defective because it was based on a fact (ie, a false or misleading statement) that did not exist because the Tribunal did not take account of the operation of s 99. For reasons I have explained, s 99 does not have the effect contended for. The first ground of review as articulated in the amended further application for review must therefore fail.

The second ground of review: did the Tribunal fail to discharge its statutory function in dealing with PIC4020?

1. The applicant says the Tribunal should have addressed three questions in order to determine whether PIC4020(1) was contravened. It needed to ask itself:

(a) Was there an error?

(b) If there was an error, was that error material in the relevant sense?

(c) Was there an element of fraud or deception in the non-provision of the information?

1. In his further amended application for review, the applicant accepts the Tribunal made a finding that there was an error. But what of the other criticisms?
2. The minister's supplementary submissions argue the Tribunal's discussion at [8] of its reasons confirms the Tribunal was conscious of the need to be satisfied the false or misleading statement was material. At [15] the Tribunal appears to be referring to the concept of materiality when it suggests the information in question must be "relevant to any of the criteria the Minister may consider when making a decision on an application...". I accept the Tribunal did not dwell on the concept of materiality or offer a more detailed exposition of its understanding, but that is likely because the materiality of the false statement in this case was obvious when one has regard to the criteria.
3. There can be no doubt the failure to disclose Mrs Shrestha's visa history was material to the question the Tribunal had to decide under PIC4020(1). That information went to the very heart of the requirement in that determination. The minister pointed out the secondary applicant's visa history was also a relevant matter to consider when determining whether the primary applicant was a genuine temporary entrant under cl 500.212 of the regulations: see cl 500.212(c). The Tribunal was plainly aware of the requirement of materiality. Given it is not appropriate to read the Tribunal's reasons "with an eye keenly attuned to the perception of error", I am satisfied the Tribunal has done enough in its reasons to establish it had the requirement of materiality in mind when it made its findings: see Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Others [1996] HCA 6; (1996) 136 ALR 481 at 490 per Brennan CJ, Toohey , McHugh and Gummow JJ.
4. That brings me to the other criticism - namely, that the Tribunal failed to consider whether there was an element of fraud or deception in the provision of the false or misleading information. The requirement of an element of fraud or deception was discussed by the Full Court in Trivedi. In that case, Buchanan J acknowledged (at [28]) "it is not necessary a visa applicant know of, or be directly involved in, any falsehood for PIC 4020 to be engaged". But after analysing the text of PIC4020(1), his Honour went on to observe (at [32]-[33]):

32. ....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.

1. At [43], his Honour explained the requirement that the false statement be "purposely untrue" could be satisfied even though the applicant was not aware of the falsity. His Honour explained:

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.

1. The Tribunal in this case mentioned the decision in Trivedi and noted the requirement that there be an element of fraud or deception (at [10]). The Tribunal also noted the applicant insisted the incorrect answer in the form was the product of an innocent misunderstanding, and that "his intention was not to deceive or make false representation...": at [13]; see also [14]. But the Tribunal did not thereafter expressly find there was purposeful falsity.
2. The minister argues the absence of an express finding does not matter in circumstances in where the Tribunal found there was purposeful falsity by implication. That implication was said to flow from the fact the Tribunal's finding in [15] necessarily involved a rejection of the applicant's claim that the non-disclosure was innocent.
3. I have already quoted paragraph [15], the decisive passage in the Tribunal's reasons. One must look past the repeated but gratuitous assertions that "the Tribunal has considered this matter carefully" to examine the substance of what the Tribunal says in that passage. The Tribunal begins by observing "the applicant has not stated that he did not provide misleading information but simply asserted that he made a mistake in doing so". That does not address the real issue, which is whether there was purposeful falsity on the part of the applicant or someone else. But a close examination of what was said in that paragraph reveals a further problem.
4. Even if one accepts the Tribunal's finding in that paragraph amounts to an implicit rejection of the applicant's claim he acted innocently, it is not apparent why the Tribunal reached that conclusion. That is a problem here because the Tribunal found the applicant's assertions of innocent intent were not established because they were uncorroborated - adding it was the responsibility of the applicant to provide all the evidence necessary to establish they were entitled to the visa. In expressing its finding in that way, the Tribunal failed to acknowledge there was evidence - in the form of the applicant's assertions of innocence - that had to be evaluated and rejected on its own terms before the finding could properly be made. If that finding were defended on the basis the Tribunal rejected the applicant's assertions because it expected there would be corroborating evidence if true, that would point to illogicality: it does not follow an applicant cannot be believed in the absence of corroboration.
5. The Tribunal's reasoning in this respect is unreasonable. That finding - such as it was - was central to the Tribunal's ultimate decision. It follows the decision is affected by jurisdictional error. There does not seem to be any doubt this jurisdictional error is material in the sense explained by the plurality in LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12 at [6]- [7]: the decision could have been made differently if the jurisdictional error had not occurred.

1. A writ of certiorari must be issued quashing the decision of the Administrative Appeals Tribunal, and a writ of mandamus should be directed to the Administrative Review Tribunal directing that it reconsider the application according to law.

I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment of Judge McCabe.