Singh v Minister for Immigration and Citizenship [2025] FedCFamC2G 1349

1. This is an application for judicial review of a decision of the Administrative Appeals Tribunal (as it was then) (the Tribunal), dated 2 October 2024, affirming a decision of a delegate of the first respondent (the delegate) refusing to grant the applicants a Student (Temporary) (Class TU) (Subclass 500) (the visa).
2. For the reasons set out below, the application must be dismissed.

1. The first applicant and second applicant (the applicants) are husband and wife. The applicants are Indian citizens.
2. On 15 November 2022, the first applicant lodged an application for the visa, listing the second applicant as a secondary applicant.
3. As part of the visa process, the applicants submitted an online form to the Department containing information in support of their application. The applicants submitted the following information regarding their character (the character declarations) to the Department: In response to the question, "Has any applicant ever been convicted of an offence in any country (including any conviction which is now removed from official records)?", the applicants answered, "No"; In response to the question, "Has any applicant ever been the subject of a domestic violence or family violence order, or any other order, of a tribunal or court or other similar authority, for the personal protection of another person?", the applicants answered, "No".
4. On 31 January 2023, the Department wrote to the applicants and invited them to comment, pursuant to s 57 of the Migration Act 1958 (Cth) (the Act) (the s 57 letter), on adverse information that the character declarations provided were false. Departmental information indicated that the first applicant was previously convicted of offences and that he had been the subject of domestic violence orders in Australia.
5. On 1 March 2023, the applicants' representative responded to the s 57 letter, claiming that the first applicant misunderstood the questions due to his lack of knowledge and as a result of "unfortunate circumstances". The first applicant provided a statutory declaration, dated 1 March 2023, which claimed that he believed that the domestic violence related charges were not relevant to the character declaration as they had been dismissed. The first applicant further claimed that he suffers from psychiatric conditions which negatively impacted his capacity to understand the questions asked in the character declarations. The first applicant further claimed that his Australian Federal Police certificate did not include any adverse information.
6. On 27 April 2023, the delegate refused to grant the applicants the visa, finding that the applicants gave information to the Department that was false and misleading in relation to their visa application in a material particular and therefore they did not satisfy Public Interest Criterion (PIC) 4020(1) of Schedule 4 to the Migration Regulations 1994 (Cth) (the Regulations). Nor was the delegate satisfied that any compassionate or compelling circumstances existed to justify waiving PIC 4020(1).
7. On 28 April 2023, the applicants applied for Tribunal review of the delegate's decision.
8. On 25 July 2024, the Tribunal invited the applicants to appear before the Tribunal for a hearing scheduled for 19 September 2024. The applicants' Migration Agent requested for the Tribunal hearing to be rescheduled as he was travelling overseas on the scheduled day of the hearing.
9. On 6 September 2024, the Tribunal, by email to the applicants' Migration Agent, granted the postponement request and notified him of the hearing's postponement to 24 September 2024.
10. On 23 September 2024, the applicants' Migration Agent again requested for the hearing to be postponed. That same day, the Tribunal granted the postponement request and notified the applicants' Migration Agent of the hearing's postponement to 30 September 2024.
11. On 27 September 2024, the applicants' representative provided written submissions and the following supporting material to the Tribunal: A copy of the statutory declaration from the first applicant dated 1 March 2023; a copy of the Statement of Attainment dated 2 September 2024; a copy of the Australian Federal Police certificate for the first applicant dated 14 February 2023; and a copy of a various medical reports and invoices for medical treatment during the period between 18 September 2017 to 3 May 2023.
12. On 30 September 2024, the first applicant attended a hearing with his representative.
13. On 2 October 2024, the applicants' representative provided the Tribunal with a report from the first applicant's Counselling Psychologist, and two invoices for medication prescribed to the first applicant.
14. On 2 October 2024, the Tribunal affirmed the delegate's decision.

1. At [1] - [4], the Tribunal set out the application for review and the background of the matter.
2. At [6], the Tribunal relevantly identified that the issue arising on the review was whether the applicants met PIC 4020 as required by cl 500.217(1) of Schedule 2 to the Regulations.
3. The Tribunal noted at [7], that 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 as per PIC 4020(4).
4. The Tribunal outlined the relevant law at [8] - [10], the delegate's decision at [11] - [15], as well as the documents that the applicants submitted to the Tribunal [16].
5. At the Tribunal hearing, the first applicant apologised for the error in the character declarations, stating that it had been caused by a lack of knowledge of the law and immigration processes [17]. The first applicant stated that he did not have any intention to hide information.
6. The first applicant conceded that the information provided in the character declarations was incorrect, however stated that he misunderstood the form and that he did not think he had charges against his name at the time [18].
7. The applicant's representative reiterated to the Tribunal that it was a lack of knowledge that caused the first applicant to answer 'no' when he should have declared 'yes' in the character declarations [19]. The applicants' representative stated there had been a lack of understanding as the domestic violence charges had been dismissed, however the order was still in place, and as such the first applicant had not understood what his obligations were at the time [19].
8. After considering the first applicant's submissions as expressed at the hearing, the Tribunal was not satisfied that the applicants did not understand the application form or that they unknowingly provided incorrect information [20]. The Tribunal was not persuaded that there was no element of deception in providing the false information [20].
9. The Tribunal considered that the inconsistency between what exactly caused the first applicant to misunderstand what he was being asked in the character declarations, or what information he had to provide, demonstrated that the applicants' submissions were unreliable at best, if not disingenuous [21]. As a result, the Tribunal was not persuaded that the applicants had no intention of providing false information [21].
10. After considering the first applicant's medical reports provided and the diagnosis as explained, the Tribunal was not persuaded that they provide a satisfactory explanation for the applicants providing incorrect information [22].
11. Based on the information before it, the Tribunal found that the applicants did provide information that was false or misleading in a material particular, relevant to the visa application [23]. For this reason, the Tribunal was not satisfied that the applicants meet the requirements of PIC 4020(1) for the grant of this visa [23].
12. The Tribunal went on to consider whether the requirements of PIC 4020(1) or (2) should be waived [25] - [26]. The Tribunal noted that at the hearing, the first applicant and his representative, stated there were no circumstances to warrant a waiver of PIC 4020. Accordingly, the Tribunal at [29], concluded that the requirements of PIC 4020(1) should not be waived.
13. The Tribunal found that the applicants did not satisfy PIC 4020 for the purposes of cl 500.217 of the Regulations [30]. As such, at [31], the Tribunal affirmed the decision not to grant the applicants the visa.

1. The applicants advance one ground of judicial review contained in an Originating Application filed with the Court on 23 October 2024. It is as follows:

The Tribunal's decision dated 2 October 2024 is infect with jurisdictional error as the Tribunal failed to properly consider the evidence provided by the applicants' in support of their visa application.

1. The first applicant appeared before the Court unrepresented. He was assisted by an interpreter. Prior to the hearing commencing, the Court ensured that the applicant was in possession of a copy of the relevant Court books and that the respondent's written submissions had been translated to him. The Court also ensured the first applicant had access to a pen and paper so he could take notes during the course of the hearing should he so wish to.
2. At the commencement of the hearing, the Court explained it was undertaking judicial review, not merits review, and the difference between the two types of review. The Court also explained the procedure by which the hearing would be undertaken.
3. Despite Court orders, no written submissions or other material was provided to the Court by the first applicant in support of his case. The first applicant told the Court that he misunderstood the question being asked of him in the visa application. Further, he told the Court that he relied upon advice from his Migration Agent in relation to the answer he gave that was false or misleading. He thought the domestic violence proceedings had been dismissed. He also explained that he did not think he needed to mention a number of traffic convictions.
4. The first applicant was advised that the matters he raised only went to the merits of the Tribunal's decision. He was taken to his sole ground of judicial review and asked what evidence he says was not properly considered by the Tribunal. The applicant was unable to point to any such evidence.
5. At the conclusion of the respondent's oral submissions, the first applicant was asked if he wished to state anything in reply. He answered "No".

1. The applicants contend the Tribunal erred by failing properly to consider evidence provided by the applicants in support of their visa application.
2. To the extent that the applicants allege that they were not afforded natural justice, the first respondent submits that the Tribunal had complied with its procedural fairness obligations under Part 5, Division 4 of the Act, in that the applicants were properly invited to a hearing, which the first applicant attended, and the information relied upon by the Tribunal was information provided by the applicants.
3. Insofar as the applicants allege that the Tribunal failed to consider their evidence properly, such an argument fails on a proper reading of the Tribunal's decision. The Tribunal expressly considered the factual circumstances of the case and did not accept that the first applicant: provided a satisfactory explanation for providing what he conceded was incorrect information [20]. Furthermore, the Tribunal was not persuaded that there was no element of deception in providing the false information: [20].
4. The Full Court of the Federal Court of Australia in Trivedi v Minister for Immigration and Border Protection (2014) 220 FCR 169; [2014] FCAFC 42 (Trivedi) at [49] - [50] per Buchanan J, Allsop CJ and Rangiah JJ agreeing, provides:

For the reasons I have already given, it should be accepted that PIC 4020 is directed to information or documents which are purposely untrue. It seems to me to be clear from the same analysis that the purpose of PIC 4020 was to render visa applicants ultimately responsible for the veracity of the information and documents supplied to support the application. Although the limited terms of the waiver (and therefore any discretion to excuse non-compliance) make it apparent that innocent errors are not the focus of attention, it is equally clear that PIC 4020 is directed at the overall integrity of the visa system and as a bulwark against deception and fraud from any quarter associated with a visa applicant. It is not inconsistent with a coherent public policy to make a visa applicant ultimately responsible for purposely untrue material provided with a visa application. It would be an intolerable burden on the administration of the visa system to require that those assessing visa applications not only discover that information or documents are false in a material particular, but also that the visa applicant who provided them knew them to be so. In many cases that would be impossible and would defeat the apparent intent of the provision.

1. There is no error in the Tribunal's application of PIC 4020. The Tribunal noted that the first applicant conceded that he provided incorrect information in his visa application; namely, that he had stated that he had not been convicted of offences and that he was subject to a domestic violence order in Australia: [17], [20].
2. The Tribunal at [10], then correctly identified that an element of fraud or deception was necessary to attract the operation of PIC 4020: Trivedi at [49]. The Tribunal assessed whether the first applicant had provided information that was false or misleading in a material particular in relation to the character declarations he made in the visa application: [21] - [24].
3. The first respondent notes that the Australian Federal Police certificate for the first applicant included six driving offences that resulted in a fine. In written submissions to the Tribunal, the applicants' Migration Agent stated that the first applicant was not aware of these convictions as he changed his address and did not receive the court notice for the hearing related to the driving offences. No further evidence was provided to support this submission.
4. A Court Order Notice of the Local Court of NSW at Parramatta dated 18 May 2018 confirms the first applicant was subject to an Apprehended Domestic Violence Order for 12 months. The Court Order Notice also confirmed that the first applicant was present in court when the order was made. While the charges were dismissed under s 32 of the Mental Health (Forensic Provisions) Act 1990 (NSW), the first respondent submits that the evidence indicates the first applicant is likely to have been aware that he was subject to a domestic violence order.
5. In the visa application, the applicants declared that they understood that any false or misleading information is a serious offence, and that the provision of any fraudulent documents or false or misleading information may result in the application being refused and they may become ineligible to be granted a visa for a specified period of time.
6. The first respondent further notes that the applicants were assisted by a Migration Agent for their visa application. No explanation was provided as to why the applicants did not seek assistance from their migration agent to clarify the question.
7. It was submitted that evidence demonstrates the first applicant had considered whether he should declare the Apprehended Domestic Violence Order. The Tribunal relevantly found that the inconsistency between what exactly caused the first applicant to misunderstand what he was being asked on the application form or what information he had to provide, demonstrates that his submissions are "unreliable at best, if not disingenuous": [21]. The Tribunal recorded that it was not persuaded that the applicants had no intention of providing false information as it found that the submissions made by the first applicant suggests that he had turned his mind to whether he was being asked to declare any previous breaches of the law and that this should have reasonably caused him to be alert to the issue and either clarify the questions further or seek further assistance [21].
8. Regarding compassionate or compelling circumstances that affected the interests of an Australia citizen, Australia permanent resident or eligible New Zealand citizen, the Tribunal noted that the applicants had not provided any evidence in relation to this point and both the applicants, and their migration agent conceded there were no such circumstances: [25] - [30]. It was therefore open for the Tribunal to find that the requirements in PIC 4020 should not be waived as there were no compelling and compassionate circumstances, in the requisite sense.

1. In Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3 at [17] the task of a court conducting judicial review was described in this manner:

... An application for judicial review is one in which the judicial branch of government reviews, by reference to legality or lawfulness, the decision or decisions of the executive branch of government, here in the form of a decision of the Minister. The Court does not consider the merits or wisdom of the decision; nor does it remake the decision. The task of the Court is to rule upon the lawfulness or legality of the decision by reference to the complaints made about it.

1. The applicant's sole ground of judicial review complains that the Tribunal failed to properly consider the evidence provided by the applicant in support of their visa application. No particulars are provided as to what information was not properly considered. If grounds of judicial review are not supported by particulars, for that reason alone, they are liable for dismissal: WZAVW v Minister for Immigration and Border Protection [2016] FCA 760 at [35].
2. The Court notes that the applicant conceded that he had provided incorrect information in his visa application, when he stated he was not convicted of any offences, and he was not the subject of a domestic violence order in Australia.
3. The Tribunal did not accept the explanations offered by the applicant, based on the evidence that was before it and for the reasons given by the applicant. The Court is satisfied that it was open to the Tribunal to make the findings that it did. This included the adverse credit findings at [20], which rejected the contention that the applicant did not understand the application form or that he unknowingly provided incorrect information.
4. Having made this finding, that the applicant failed to satisfy PIC 4020(1), the Tribunal was then required to consider whether or not the requirements of PIC 4040(1) or (2) to determine whether any compassionate or compelling circumstance existed such that they should be waived.
5. The Court notes at the Tribunal hearing, the applicant and his representatives were asked whether or not they would like to make submissions regarding a waiver. The response was there were no such circumstances.
6. Having made the finding, that the first applicant had provided false misleading information, and noting the concession that there were no compelling or compassionate circumstances in his favour of a waiver, the Tribunal had no option open to it other than to affirm the decision not to grant the applicant's their visa.
7. The only material in the first applicant's favour was a statutory declaration which he provided to the delegate which stated he needed to stay in Australia to continue working to pay off a loan to a friend and financially support his family in India. I am satisfied this material was not compassionate or compelling such that there was a misapplication of the law by the Tribunal.
8. To the extent that there was any assertion that the applicant was not afforded procedural fairness, I reject such an assertion. The applicants were properly invited to attend the hearing and were provided with the information relied upon by the Tribunal and invited to present any evidence and make any arguments they wish to in their favour.
9. I am satisfied that the Tribunal properly considered all the evidence that was before it, including the concession by the applicant that he provided incorrect information in his visa application. I am satisfied there was nothing unreasonable, illogical or irrational in the finding by the Tribunal that it was not persuaded there was no element of deception in the providing of the false information.
10. I reject the assertion of the applicant made at the hearing, that he relied upon incorrect advice from his Migration Agent.
11. Noting the concession made by the first applicant, that there were no compassionate or compelling circumstances, I am satisfied that it was open to the Tribunal to find that PIC 4020 should not be waived. I am satisfied there was no evidence that was overlooked or that the Tribunal failed to properly consider the evidence that was before it.
12. The sole ground of judicial review has no merit.

1. In these circumstances, the application must be dismissed.

I certify that the preceding sixty-one (61) numbered paragraphs are a true copy of the Reasons for Judgment of Judge D Humphreys.