Zhou v Minister for Immigration and Citizenship [2025] FedCFamC2G 1138

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. This is an application for judicial review of a decision of the Administrative Appeals Tribunal (the Tribunal) dated 14 November 2019, affirming a decision of a delegate of the first respondent (the delegate) to refuse to grant the applicant's Temporary Work (Skilled) (subclass 457) visas (the visas).
2. For the reasons set out below, the application must be dismissed.

1. The applicants are Chinese citizens. The first and second applicants are husband and wife. The third and fourth applicants are their two children.
2. The applicants applied for the visa on 19 July 2016. The first applicant was the primary applicant, and the second, third, and fourth applicants were dependent applicants. The first applicant provided an International English Language Testing System (IELTS) Report Form (IELTS report) in support of his application.
3. By a letter from the (then) Department of Immigration and Border Protection (the Department), dated 14 September 2016, the first applicant was invited to comment on adverse information regarding his visa application. The letter invited the first applicant to comment on the IELTS report, as facial image comparison analysis indicated the IELTS report contained a face that did not match the face of the first applicant. The Department indicated that it appeared the first applicant had provided a bogus document, or false or misleading information. The first applicant did not provide a response to this invitation.
4. On 21 December 2016, the delegate refused to grant the applicants' visas on the basis that there was evidence that the applicants had provided a bogus document, or false or misleading information in relation to his visa application. Consequently, the first applicant did not meet Public Interest Criteria (PIC) 4020, and therefore was unable to satisfy cl 457.224 of the Migration Regulations 1994 (Cth) (the Regulations).
5. On 3 January 2017, the applicants lodged an application for review with the Tribunal.
6. On 14 November 2019, the Tribunal affirmed the decision not to grant the applicants the visas.

1. At [1] - [6], the Tribunal set out the application for review and the background of the matter.
2. The issue on review was whether the visa applicant met the Public Interest Criterion 4020 (PIC 4020) as required by cl 457.224 of the Regulations for the grant of the visa.
3. At [7], the Tribunal summarised the requirements of PIC 4020 as follows:
   • 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).
4. Whilst the Tribunal noted 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, this waiver does not apply to the identity requirements in PIC 4020(2A) and (2B).
5. At [9], the Tribunal noted that the first applicant provided the Department with the IELTS report, which was deemed to have been completed by a person who did not match the facial images held against the first applicant in the Department's records.
6. The first applicant conceded that he did not sit the IELTS test as he knew he could not pass the test, but wanted to remain in Australia [13]. The first applicant informed the Tribunal that his Migration Agent suggested and arranged for another person to complete the IELTS test for him.
7. At [14], the Tribunal discussed with the applicant that the requirements of PIC 4020 may be waived where there are compelling circumstances that affect the interests of Australia, or where there are compassionate or compelling circumstances that affect the interests of an Australian citizen or permanent resident.
8. The first applicant informed the Tribunal that he wanted his children to remain in Australia. The first applicant said his son, who was currently in Year 9 at high school, would be unable to continue his schooling if the family returned to China, as he did not have the foundational knowledge, nor could he read or write in Chinese. The first applicant said that he had paid tax while he worked in Australia, and that he was a specialised and experienced welder who was an asset to his employer. The first applicant also told the Tribunal that his brother is an Australian citizen, and that he enjoys spending time with him and his family. The first applicant urged the Tribunal to forgive his wrongdoing and to show him and his family mercy.
9. After setting out the legal principles related to PIC 4020 at [16] - [18], the Tribunal noted that the Department arranged for a forensic facial comparison of the image from the IELTS report with images of the applicant held on Departmental systems. The Tribunal further noted that the forensic comparison revealed that the image of the person who appears on the IELTS Test report did not match the facial images of the applicant held on the Departmental system.
10. As such, at [22], the Tribunal found that there was evidence that the first applicant gave to the Minister (in the form of the Departmental delegate) a bogus document in relation to his Subclass 457 visa application, and therefore, he did not meet PIC 4020(1).
11. At [23] - [24], the Tribunal set out the criteria and legal principles for waiving PIC 4020.
12. At [26], whilst the Tribunal acknowledged that the first applicant's children, particularly his son, would be affected if they returned to China, and that it held concerns regarding the first applicant's claimed treatment by his previous Migration Agent, the Tribunal noted that these are matters that it was unable to take into consideration. This was due to the fact that they were circumstances that affect the applicants themselves, not the interests of Australia, or the interests of any Australian citizen or permanent resident.
13. Further, at [27], the Tribunal considered the applicant's claims that he has paid tax while he has worked in Australia, and that he is a specialised and experienced welder who is an asset to his employer. The Tribunal also had regard to the fact that the applicant enjoys spending time with his brother, who is an Australian citizen. However, ultimately, the Tribunal was not persuaded that any of these matters, of themselves or combined, were sufficient to demonstrate that there were compelling circumstances that affect the interests of Australia, or compassionate or compelling circumstances affecting the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen, that justify the granting of the visa.
14. As such, at [28], the Tribunal was not satisfied that the requirements of PIC 4020(1) should be waived.
15. Subsequently, the Tribunal found that the first applicant did not satisfy PIC 4020 for the purposes of cl 457.224.
16. At [30], the Tribunal found that the second, third and fourth applicants were not entitled to Subclass 457 visas as they do not meet the secondary visa criteria. Further, there was no evidence before the Tribunal that they met the primary criteria in their own right.
17. Consequently, at [31], the Tribunal affirmed the delegates' decision.

1. The applicants advance two grounds of judicial review contained in an Originating Application filed with the Court on 2 December 2019. They are as follows:
   1. The Tribunal failed to disclose the information in respect of forensic facial comparison.
   2. The Tribunal failed to exercise its discretion to waive PIC 4020.

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 first respondent's written submissions had been translated to him. The Court also ensured the 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 were provided to the Court by the applicant in support of his case. The applicant told the Court initially that he was not aware of the arrangement by his Migration Agent to have another person attend the IELTS. When the applicant was taken to the Tribunal decision record at [13], which indicated he was aware of the arrangement, he conceded to the Court that he was aware of the arrangement.
4. The applicant stated that he would very much like some additional time, say one and a half years, that would enable his child to finish his education in Australia. The Applicant stated that he was aware he had done the wrong thing, however he hoped he could be excused and have one more opportunity. The applicant stated that he and his family have paid any tax due on their earnings and contributed to Australia.
5. At the conclusion of the first respondent's oral submissions, the applicant was asked if he wished to state anything in reply. He answered "No".

1. As to ground one, the first respondent submitted that this ground appears to be a claim that the Tribunal failed to comply with its obligations under ss 359A or 359AA of the Act, which require the Tribunal to put clear particulars of any information to an applicant, that it considered would be the reason, or part of the reason for affirming the decision.
2. The applicants have not identified what 'information' in respect of the facial comparison report should have been disclosed to them. Approaching the matter broadly, the 'information' could be the outcome of the forensic facial comparison, which indicated that the person who took the IELTS test was not the first applicant, and the report or document that reflected the analysis of the forensic facial comparison.
3. Neither matter was 'information' which had to be put to the applicant under ss 359A or 359AA of the Act, for the following two reasons.
4. First_,_ the outcome of the forensic facial comparison was information that the applicants had provided to the Tribunal for the purpose of review, and therefore fell within the exception in s 359A(4)(b). The information was in the delegate's decision, which was provided by the applicants with the application to the Tribunal (CB 85 - 99).
5. Second, the forensic report was not in fact before the Tribunal. The Tribunal could not have put information to the applicants that it did not itself have. It is clear that the Tribunal relied on the delegate's discussion of the Facial Image Comparison analysis [8],[19].
6. Here, the 'information in respect of forensic facial comparison' which the Tribunal relied upon in making its findings was information which the applicants themselves provided, being the delegate's decision and the applicant's evidence at the hearing. Neither matter was required to be put to the applicant, nor did the Tribunal owe the applicants any further procedural fairness obligations in respect of those matters. As such, ground one should be dismissed.
7. As to ground two, the first respondent submits that the applicants appear to seek impermissible merits review, expressing no more than disagreement with the Tribunal's findings.
8. In any event, the Tribunal's finding that there were no compelling or compassionate circumstances does not disclose any error. The Tribunal identified the matters the applicants put forward as compelling and compassionate reasons [14] - [15].
9. The Tribunal expressly considered the impact of the visa refusal on the first applicant and his two children at [26], where the Tribunal was correct to find it could not take these circumstances into account as they did not affect the interests of Australia, or the interests of any Australian citizen or permanent resident.
10. Further, the Tribunal expressly considered the first applicant's claims to have paid his taxes, to have specialised experience as a welder and to be an asset to his employer, to be involved with his church and to have a brother, at [27]. The Tribunal found that these claims were not persuasive enough on their own or together for them to be satisfied the threshold of compelling or compassionate was met.
11. The Tribunal's conclusions were not unreasonable, irrational, or illogical. They were based on an objective assessment by the Tribunal on the materials before it, and it was not a conclusion it could be said no reasonable person could have met. Ground two should be dismissed.

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 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 acknowledged to the Court that he was aware of the arrangement for another person to attend the IELTS. This was on the basis that the applicant knew he could not pass the test. The Court is satisfied that a ground to refuse the applicant's visa arose on the basis that the applicant had provided a bogus document or false and misleading information in respect to his application.
2. The Tribunal then undertook an orthodox consideration of whether or not it should exercise its discretion to waive PIC 4020. The Tribunal faithfully set out the submissions made by the applicant as to his specific circumstances, which he said were in favour of a waiver and the grant of the visa sought.

1. Ground one is an assertion that the Tribunal failed to disclose information in respect of the forensic facial comparison, which detected that the applicant had not sat the IELTS, but in fact another person had sat the examination on his behalf.
2. This information was not before the Tribunal, rather, it was information that was set out in the delegate's decision. The Court is unable to identify what "information" contained within the forensic facial comparison should have been disclosed to the applicant. In any event, the Court is not satisfied that it was "information" which had to be put to the applicant under s 359A or s 359AA.
3. First, the outcome of the forensic facial examination was provided by the applicants to the Tribunal as part of the application for merits review to the Tribunal. It thus fell within the exemption of s 359A(4)(b).
4. Second, the forensic report was not in fact before the Tribunal. The Tribunal relied on the delegate's discussion of the facial image comparison analysis in making the decision. Therefore, there was no information that was required to be put to the applicant. Ground one has no merit.

1. Ground two simply expresses vehement disagreement with the conclusion arrived at by the Tribunal, that is that the matters in favour of the applicant's visa being granted were outweighed by the matters that favoured the visa not being granted under PIC 4020.
2. The Tribunal properly set out the applicant's claims at [11] - [15] of the Tribunal decision record, and then it considered those claims at [26] - [27]. The Court is satisfied there is nothing irrational, illogical or legally unreasonable in the conclusions arrived at by the Tribunal that the requirements of PIC 4020(1) should not be waived.
3. The applicant's submissions to the Court, as they are, simply invite the Court to undertake impermissible merits review. The task of the Court is simply to consider whether or not there is a legal error in the decision of the Tribunal. Ground two has no merit.
4. As the applicant is unrepresented, the Court has considered the relevant Court book together with the other material related to the case that is before the Court, but is unable to ascertain any unarticulated jurisdictional error.
5. Given that the three secondary applicants rely upon the first applicant being granted a visa, their applications must also be dismissed.

1. As neither of the grounds of judicial review has any merit, the Court has no option other than to dismiss the application.

I certify that the preceding fifty-five (55) numbered paragraphs are a true copy of the Reasons for Judgment of Judge D Humphreys.