FEDERAL COURT OF AUSTRALIA

Fati v Minister for Home Affairs [2019] FCA 52

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

2.    The appellant is to pay the first respondent’s costs of the appeal.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

CHARLESWORTH J:

1    The appellant, Mr Nikolin Fati, is a dual citizen of Albania and Italy. He arrived in Australia in 2013 on a visitor’s visa and was subsequently granted a student visa under the Migration Act 1958 (Cth).

2    Mr Fati applied for a further student visa on 29 January 2015. A delegate of the Minister for Home Affairs refused to grant the application on the basis that Mr Fati did not satisfy an essential criterion for the visa. The delegate’s decision was affirmed on review by the Administrative Appeals Tribunal. The Federal Circuit Court of Australia dismissed Mr Fati’s application for judicial review of the Tribunal’s decision: Fati v Minister for Immigration & Anor [2018] FCCA 100. This is an appeal from that judgment.

VISA CRITERIA

3    For Mr Fati to be eligible for the grant of the visa it was necessary that the Minister be satisfied that Mr Fati was “a genuine applicant for entry and stay in Australia as a student” because, among other things, he “intends genuinely to stay in Australia temporarily”: Act, s 65, Migration Regulations 1994 (Cth), Sch 2, cl 572.223(1)(a). Relevant to that criterion was the genuineness of Mr Fati’s intention to return to his home country upon the completion of his studies, including for the purpose of pursuing work opportunities in his chosen occupation.

4    For Mr Fati to be eligible for the grant of the visa it was also necessary that he satisfy “public interest criteria 4020” (PIC 4020): Regulations, Sch 2, cl 572.224(a). It provides:

(1)    There is no evidence before the Minister that the applicant has given, or caused to be given, to the Minister, an officer, the Migration Review Tribunal, a relevant assessing authority or a Medical Officer of the Commonwealth, a bogus document or information that is false or misleading in a material particular in relation to:

   (a)    the application for the visa; or

(b)    a visa that the applicant held in the period of 12 months before the application was made.

…

(5)    In this clause:

information that is false or misleading in a material particular means information that is:

(a)    false or misleading at the time it is given; and

(b)    relevant to any of the criteria the Minister may consider when making a decision on an application, whether or not the decision is made because of that information.

Note:    Regulation 1.03 defines bogus document as having the same meaning as in section 97 of the Act.

5    At the time of Mr Fati’s visa application, s 97 of the Act defined “bogus document” as follows:

bogus document, in relation to a person, means a document that the Minister reasonably suspects is a document that:

 (a)    purports to have been, but was not, issued in respect of the person; or

(b)    is counterfeit or has been altered by a person who does not have authority to do so; or

(c)    was obtained because of a false or misleading statement, whether or not made knowingly.

6    At this juncture it is convenient to note two features of PIC 4020 upon which this appeal turns.

7    As can be seen, two requirements must be met. The first is the absence of evidence of the provision of a document meeting the description of a “bogus document”. The second is the absence of evidence of the provision of “information that is false or misleading in a material particular”. PIC 4020 will not be fulfilled if either one of these two requirements is not met.

8    A conclusive finding as to whether the document is bogus or as to whether the information is false or misleading is not necessary. Satisfaction of PIC 4020 will be satisfied if there is “no evidence” of either of those things. Conversely, where there exists evidence of either of those things, the criterion will not be fulfilled.

THE PIZZERIA EMAIL

9    Mr Fati submitted a number of documents in support of his visa application. Among them was an email from a Pizzeria in Italy dated 6 February 2015. The email was submitted by Mr Fati in response to a request from the Department administered by the Minister for evidence relevant to the question of whether he was a genuine temporary entrant to Australia.

10    On its face, the email appears to have been transmitted from the address pizzeria.duemori@liberto.it. The body of the email reads:

Hello, we are the pizzeria I DUE MORI from carmagnola.

We heard that Mr Nikolin Fati is attending the school for get a managerial level on business and tourism.

We would be glad if Mr Fati could start with us his business manager for the new pizzeria that we are opening in Turin.

Having previously worked with Mr Fati we know that he will be able to organize and better manage all the work that concerns our new restaurant.

We leave our contact details if you need to contact us.

Regards,

The Pizzeria I DUE MORI

11    There follows an address situated in Carmagnola in the name “Mr Roberto Gatti”. A telephone number appears below Mr Gatti’s name. It is uncontroversial that the email was provided as evidence of Mr Fati’s genuine intention to stay only temporarily in Australia before returning to Italy to pursue opportunities for work there.

THE TRIBUNAL’S REASONS

12    In its written reasons, the Tribunal summarised the enquiries that had been made, and the conclusions that had been drawn by the delegate in relation to the Pizzeria email as follows:

4.    The department conducted verification of the document provided and for the following reasons concluded that the e-mail received from pizzeria.duemori@liberto.it was a bogus document.

•    The departmental staff from the Australian Embassy in Berlin contacted the Pizzeria I Due Mori using the contact details specified on their website and spoke with the owner of the restaurant. The owner advised the officers that he does not know Mr Nikolin Fati (the applicant) or Mr Roberto Gatto (a person who’s named appeared on the e-mail of 6 February 2015) and that his business never offered employment to Mr Fati;

•    The officers telephoned the number provided as a contact details in the e-mail of 6 February 2016 and the applicant’s sister Ms Antuana Fati answered the call. She stated that she used to work with Mr Gatti at Pizzeria I Due Mori. When the officer inquired if she had Mr Gatto’s telephone number, she asked the officer to call her back in five minutes. When the officer rang her back, she stated that she drove to the restaurant to give Mr Gatto her phone;

•    The officers spoke to Mr Gatto who stated that Mr Fati worked for him at ‘Mondo Pizza’ for seven months ‘of the books’; that he acquired the Pizzeria I Due Mori but refused to provide details of the purchase; that the pizzeria is closed but will reopen at the end of the year and that pizzeria’s official telephone number is not yet active.

5.    On 7 May 2015, the department invited the applicant to provide his comments and response on the suspected ‘non-genuine’ document. On 9 May 2015 the applicant’s representative submitted another letter from Mr Gatto dated 7 June 2015 clarifying that he never claimed that Mr Fati worked at pizzeria I Due Mori; that, if the purchase of pizzeria I Due Mori does not come through, he is willing to offer Mr Fati a position in another restaurant currently owned by him. Mr Gatto signed this letter and provided contact telephone number that was different from the one provided in the e-mail of 6 February 2015.

6.    The delegate concluded that the applicant submitted a bogus document to the department and, after considering waiver provisions, proceeded to make decision on 1 September 2015.

13    The Tribunal’s references to “Mr Gatto” are to be understood as references to the author of the email, Mr Roberto Gatti.

14    Later in its reasons the Tribunal gave its own consideration to the email under the heading “Has the applicant given, or caused to be given a bogus document, or information that is false or misleading in material particular?”. To dispose of this appeal, it is necessary to consider what appears under that heading in full:

26.    The term ‘information that is false or misleading in a material particular’ is defined in cl.4020(5) and the term ‘bogus document’ is defined in s.5(1) of the Act (see the attachment to this decision). In contrast to the definition of ‘information that is false or misleading in a material particular’ in cl.4020(5), the reference in the definition of bogus document to a document that was obtained because of a ‘false or misleading’ statement has no requirement that it be relevant to a criterion for the grant of the visa: Arora v MIBP [2016] FCAFC 35; Batra v MIAC [2013] FCA 274.

27.    The requirement in cl.4020(1) not to provide a bogus document, or false or misleading information, applies whether or not the Minister became aware of the bogus document or information that is false or misleading in a material particular because of information given by the applicant:  cl.4020(3). It also applies whether or not the document or information was provided by the applicant knowingly or unwittingly.

28.    While PIC 4020 refers to information that is false, in the sense of purposely untrue, it is not necessary for the Minister (or the tribunal on review) to conclude that the applicant was aware the information was purposely untrue in order for PIC 4020 to be engaged. However, an element of fraud or deception by some person is necessary to attract the operation of the provision: Trivedi v MIBP [2014] FCAFC 42.

29.    The tribunal must make an assessment as to whether there is evidence that is sufficiently probative to lead to a conclusion that the applicant has given, or caused to be given, to the Minister, or an officer of the Department, the tribunal a bogus document or information that is false or misleading in a material particular in relation to his application for a Student visa subclass 572.

30.    I note that, according to the definition of a bogus document in s.5(1) of the Act, it is sufficient that the tribunal ‘reasonably suspects’ that the document was bogus, for example, because it was not issued in respect to the applicant or because it is counterfeit or has been altered or was obtained because of false or misleading statement (see Sandhu v Minister for Immigration & Anor [2013] FCCA 491).

31.    In his evidence, the applicant stated that, on 17 February 2015, together with other documentary evidence, he submitted to the department through his migration agent, an email dated 6 February 2015 sent from email address pizzeria.duemondi@liberto.it. The email relevantly stated:

'Hello, we are the pizzeria I Due Mori from Carmagnola ...

Mr Fati could start with us his business manager for the new pizzeria we are opening in Turin. Having previously worked with Mr Fati we know that he will be able to organise and better manage all the work that concerns our new restaurant. We leave our contact details if you need to contact us ...

The Pizzeria I Due Mori

1022 Carmagnola

Mr Roberto Gatti

Tel: number XXX XXX 1722.

32.    I have placed some weight on the information relating to the Department’s verification of the document submitted by the applicant, as set out in the delegate’s decision. However, as indicated to the applicant during the hearing, I accept that the e-mail of 6 February 2015 neither contains a job offer at pizzeria I Due Mori nor it asserts that the applicant was previously employed at pizzeria I Due Mori as it was stated in the primary decision.

33.    Based on the evidence before it, which I consider of sufficiently probative value, I find that the e-mail received from email address pizzeria.duemondi@liberto.it dated 6 February 2015 the visa applicant submitted to the Department with his visa application is a counterfeit and as such, a bogus document as defined in s.5(1)(b).

34.    According to Macquarie Dictionary, the word ‘Counterfeit’ means ‘made to imitate, and pass for, something else; not genuine.

35.    Based on the evidence before me I am satisfied that the e-mail of 6 February 2015 was created by Mr Gatto to imitate a letter from the owners of the pizzeria I Due Mori. He used the business e-mail address and provided the business’ street address without having any authority to do so. In the e-mail Mr Gatto wrote ‘We are the pizzeria I Due Mori from Carmagnola’. The applicant confirmed in his evidence that Mr Gatto was not the owner of the pizzeria I Due Mori at the time he wrote the e-mail in February 2015. I am satisfied on the evidence that the document was not a genuine letter from Pizzeria I Due Mori.

36.    As a result, I am not satisfied that there is no evidence that the applicant has given, or caused to be given, to the Minister, or an officer of the Department, the tribunal or a relevant assessing authority a bogus document or information that is false or misleading in a material particular in relation to his application for a Student visa subclass 572. Accordingly, the tribunal finds that the applicant does not meet the requirements of paragraph 4020(1)(a).

15    In essence, the Tribunal found that the email purported to be a genuine letter from the owners of the pizzeria, was not in fact a genuine letter from the owners, and had been sent without the owners’ authorisation. It appears that the Tribunal arrived at that conclusion because the author of the email, Mr Gatti, was not (and knew that he was not) the owner of the pizzeria at the time that the email was sent.

Reasons of the primary judge

16    To succeed before the primary judge it was necessary for Mr Fati to establish jurisdictional error on the part of the Tribunal: s 474 of the Act; Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 at [83] (Gaudron, McHugh, Gummow, Kirby and Hayne JJ).

17    Relevantly, Mr Fati raised the following ground for judicial review:

…

If the unsigned email is a considered to be a document which factually is accepted as part of the application then the decision for finding the document appeared to be counterfeit or was bogus was made without substantial evidence to support the conclusion.

…

18    The primary judge rejected this ground of review for reasons his Honour expressed as follows:

70.    The Tribunal made reference to Trivedi and acknowledged that it was necessary for it to be satisfied that there was an element of fraud or deception by some person attaching to the document in question. In this context, as indicated above, it made the finding that the email was counterfeit in the sense that its author had passed himself off as the proprietor of Pizzeria I Due Mori, when he was not and had provided a telephone number which was false and this was done with the intent of deceiving the recipient of the email.

71.    As Buchanan J observed, a counterfeit document is not produced accidentally. The Tribunal rejected the assertion that there was some element of inadvertence or mistake in respect of the production of the email. It is the clear import of the Tribunal’s reasons that it found that there was an element of deception relating to the production of the email and this deception related to the application of considerations germane to whether the applicant was genuine in his assertion that he intended his stay in Australia to be … temporary.

72.    In these circumstances, I consider that the Tribunal applied the jurisdiction conferred upon it and in doing so made the necessary findings of facts required to acquit that jurisdiction.

19    His Honour later returned to the question of whether it was open to the Tribunal to conclude that there existed evidence that Mr Fati had provided a document that was counterfeit. His Honour concluded:

88.    The jurisdiction of the Tribunal, provided by Public Interest Criterion 4020, was to consider whether there was no evidence indicative of the provision of a bogus document in support of the application for the relevant visa. The Tribunal concluded that there was evidence to indicate that a bogus document had been provided to a relevant decision maker and that it had been done so for dishonest rather than mistaken or otherwise innocent reasons.

89.    The Tribunal found that the email was a calculated attempt by Mr Gatti to pass himself off as something he was not, namely the then proprietor of Pizzeria I Due Mori and this deception had the potential to subvert a proper consideration of the applicable criteria relating to whether the relevant visa should or should not be granted. Accordingly, the provision of the email fell within the proper purview of the Public Interest Criterion.

90.    In my view, the Tribunal asked itself the correct questions posed by the relevant statutory framework. The conclusion it reached was reasonable in the sense that it was supported by evidence, namely the results of the inquiries made by the consular staff stationed at the Australian Embassy in Berlin. The applicant was given an opportunity to comment on this evidence. The Tribunal did not accept his explanations. This was its prerogative alone.

91.    For all these reasons, I am satisfied that the applicant has been unable to make out any of the grounds of his appeal or establish that there has been any jurisdictional error arising from the Tribunal’s decision. In particular, I am satisfied that it was within the jurisdiction conferred upon the Tribunal to determine whether or not the email in question was counterfeit in nature.

92.    In determining that it was, I am further satisfied that this decision cannot be regarded as being lacking in intelligibility or transparency. In my view, it was a determination, which was clearly open to the Tribunal, on the evidence before it and the consideration of this evidence was the sole domain of the Tribunal. Accordingly, the application must be dismissed.  …

GROUNDS OF APPEAL

20    The amended grounds of appeal before this Court are as follows:

1.    The Tribunal failed to perform its statutory function according to law in that it erred in finding that an email dated 17 February 2015 submitted by the appellant to the Minister or his delegate was a ‘bogus document’.

2.    The Tribunal’s decision is vitiated by jurisdictional error on the basis that the jurisdictional fact of a ‘bogus document’ did not exist.

3.    The Tribunal’s decision refusing the appellant the grant of a visa was made without power as the jurisdictional fact which formed the basis for refusal of the visa application did not exist.

4.    The decision of the Federal Circuit Court was infected by the legal errors made by the Tribunal identified in grounds 1 to 3 above, which it repeated, giving rise to a constructive failure to exercise jurisdiction.

21    The date in ground 1 will be understood as intended to read “6 February 2015”.

22    In this Court, Mr Fati’s submissions focused primarily on the meaning of the word “counterfeit”. There were two related aspects to his argument. The first turned on the ordinary meaning of the word. In relation to a document, he submitted, the word “counterfeit” meant an imitation, such that it was necessary to show that the email imitated or purported to be a document of a particular kind, but was not in fact a document of that kind. He further argued that the word “counterfeit” in connection with a document, and read in the context of the Act, necessarily involved an element of deliberate deception, such that the document must knowingly be passed off as one thing when in fact it was something else. It was not sufficient, he submitted, that there be evidence of inadvertence or mistake in relation to the production of the email. Nor was it sufficient, he submitted, that there be evidence that an assertion made in a document is wrong. Mr Fati referred to Trevedi v Minister for Immigration and Border Protection (2014) 220 FCR 169 in which Buchannan J said of PIC 4020 (Allsop CJ and Rangiah J agreeing):

32    It is apparent from the terms of PIC 4020 that it addressed the problem of attempts to work a fraud or deception on the assessment of claims for a visa. That is also evident from the fact that PIC 4020 states a ‘public interest’ criterion, from the narrow and exceptional circumstances necessary to waive its requirements and, more generally, from the serious consequences that follow from its application. 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.

…

43    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.

…

47    The appellants’ argument about the need for complicity or intent by a visa applicant relied on Murphy v Farmer and on Cameron v Holt (1980) 142 CLR 342. The argument sought to link the meaning adopted by the majority in Murphy v Farmer (that, in that case, ‘false’ meant ‘purposely untrue’) with the statements by Barwick CJ in Cameron v Holt (at 346) that ‘presenting’ a false document to an officer required consciousness of its contents and a guilty intent. Thus combined, the composite proposition was that PIC 4020 required it to be shown that the first appellant intended to provide false information.

48    In the circumstances of the present case I would accept the first strand of the argument but not the second.

49    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.

23    See also Arora v Minister for Immigration and Border Protection (2016) 238 FCR 153 at [11] (Buchanan, Perram and Rangiah JJ).

MATERIALITY AND JURISDICTIONAL ERROR

24    I have concluded that Mr Fati cannot succeed on this appeal because:

(1)    the Tribunal determined that Mr Fati did not satisfy PIC 4020 on the discrete and alternate basis that he had, by provision of the Pizzeria email, provided information that was false or misleading in a material particular in relation to his visa application;

(2)    there is no error affecting the Tribunal’s reasoning in relation to that discrete and alternative basis;

(3)    on that basis, the Tribunal was bound to affirm the delegate’s decision; and, accordingly

(4)    any error affecting the Tribunal’s conclusion that the email was a “bogus document” could not have materially affected the jurisdiction of the Tribunal to affirm the delegate’s decision so as to constitute jurisdictional error.

25    Before elaborating on this reasoning, it should be emphasised that the grounds for judicial review raised before the primary judge did not expressly agitate any issue concerning the discrete question of whether the information contained in the email was false or misleading. In my view, the grounds for review and submissions of Mr Fati before the primary judge were concerned with the question of whether the Tribunal had erred in construing the word “counterfeit”, or otherwise erred in identifying and applying mental elements attaching to the word, and misapplied the “bogus document” definition to the facts as found.

26    After raising the issue with the parties, this Court invited further submissions in relation to what appeared to the Court to be a discrete basis for the Tribunal’s decision. Having considered the parties’ further submissions, and in light of the legal principles discussed below, I am satisfied that it is not necessary for the Minister to file a notice of alternative contention in respect of the issue, nor is it necessary for Mr Fati to file any application in order for the issue to properly arise for consideration in this appeal. That is so whether or not the issue was expressly raised before the primary judge and whether or not the issue is raised by express words on the notice of appeal.

27    The issue arises for determination because it forms a necessary part of Mr Fati’s task to establish that the error alleged in [1] of the amended notice of appeal is jurisdictional. The task of characterisation requires a court on judicial review (and this Court on appeal) to ask whether the asserted error is one that would materially affect the exercise of the Tribunal’s jurisdiction.

28    By [2] and [3] of the amended notice of appeal it is alleged that a “jurisdictional fact” preconditioning the exercise of the Tribunal’s decision did not exist. In submissions, the alleged “jurisdictional fact” is the Tribunal’s satisfaction that Mr Fati did not satisfy the “bogus document” limb of PIC 4020. In my view, these grounds proceed from a wrong assumption.

29    If the decision of the Tribunal is correctly founded on an alternate limb of PIC 4020 it would follow that the Tribunal would have lawfully determined that Mr Fati did not satisfy PIC 4020. It would follow that any error affecting the Tribunal’s interpretation or application of the alternative limb would not be material: Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 359 ALR 1.

Independent bases for decision

30    The parties are in dispute as to whether the Tribunal in fact arrived at any conclusion as to whether the Pizzeria email constituted a document that was false or misleading in a material particular.

31    For the Minister it is submitted that the Tribunal’s reasons should not be interpreted as disclosing any consideration of the question of whether Mr Fati failed to satisfy this alternate limb of PIC 4020. The effect of the Minister’s submission is that references in the Tribunal’s reasons to the alternate limb should be understood as nothing more than that: mere references. I reject this aspect of the Minister’s submissions.

32    The reasons of the Tribunal make express reference to the two bases upon which a person may be found not to satisfy PIC 4020 in the heading, referred to at [14] above. By that heading, the Tribunal may be fairly understood as asking itself whether Mr Fati has failed to satisfy either limb of the criterion. Absent a clear indication to the contrary, the paragraphs that follow that heading should be understood as the Tribunal’s reasoning toward a conclusion in respect of both limbs.

33    That is reinforced by the Tribunal’s conclusion at [36], to the effect that it was “not satisfied that there is no evidence that the applicant has given, or caused to be given, to the Minister, or an officer of the Department, the tribunal or a relevant assessing authority a bogus document or information that is false or misleading in a material particular in relation to his application for a Student visa subclass 572”. The word “or” naturally indicates that the Tribunal’s conclusion that Mr Fati did not satisfy PIC 4020 was founded on two independent bases.

No error affecting alternate conclusion

34    Mr Fati submitted that the Tribunal’s conclusion that the email was a document that was false or misleading was affected by error because the Tribunal had erroneously conflated the test to be applied on that limb with the test to be applied on the alternate limb. I reject that submission. The facts found by the Tribunal in relation to the email were relevant to the application of both limbs of the criterion. The conclusion that there was evidence that the email contained information that was false or misleading in a material particular was clearly open on the facts as found. Whilst the Tribunal’s reasoning focuses principally on the question of whether the email was a “counterfeit” document, that of itself does not indicate error in the application of the alternate limb. I consider Mr Fati has failed to establish that the Tribunal erred in concluding that there was evidence that the email was false or misleading.

No jurisdictional error

35    The jurisdiction exercised by the Tribunal was that conferred by s 65 of the Act. The operation of s 65 was discussed in Plaintiff S297/2013 v Minister for Immigration and Border Protection & Anor [2014] HCA 24 (at [34]):

The decision to be made by the Minister in performance of the duty imposed by s 65 is binary: the Minister is to do one or other of two mutually exclusive legally operative acts — to grant the visa under s 65(1)(a), or to refuse to grant the visa under s 65(1)(b) — depending on the existence of one or other of two mutually exclusive states of affairs (or ‘jurisdictional facts’) — the Minister’s satisfaction of the matters set out in each of the sub-paragraphs of s 65(1)(a), or the Minister’s non-satisfaction of one or more of those matters.  …

(Footnote omitted)

36    The Tribunal was obliged to form its own conclusion on the material before it as to Mr Fati’s eligibility for the visa: s 349(1) of the Act. In its application to Mr Fati, s 65 mandated that the delegate’s decision be affirmed if the Tribunal was not satisfied that he satisfied PIC 4020.

37    For the purposes of what follows, let it be assumed (but not decided) that the Tribunal misconstrued the word “counterfeit” as it appears in the definition of the phrase “bogus document” for the purpose of applying PIC 4020 in Mr Fati’s case. It may also be assumed (but not decided) that the Tribunal erred because it was not open to it to conclude, on the material before it, that there was evidence that Mr Fati had provided a document that was (or reasonably suspected to be) counterfeit and, hence, bogus. In either case, the Tribunal would fail to proceed in accordance with correct legal principle in relation to that limb of PIC 4020.

38    In Hossain Kiefel CJ, Gageler and Keane JJ said:

29    That a decision-maker ‘must proceed by reference to correct legal principles, correctly applied’ is an ordinarily (although not universally) implied condition of a statutory conferral of decision-making authority. Ordinarily, a statute which impliedly requires that condition or another condition to be observed in the course of a decision-making process is not to be interpreted as denying legal force and effect to every decision that might be made in breach of the condition. The statute is ordinarily to be interpreted as incorporating a threshold of materiality in the event of non-compliance.

30    Whilst a statute on its proper construction might set a higher or lower threshold of materiality, the threshold of materiality would not ordinarily be met in the event of a failure to comply with a condition if complying with the condition could have made no difference to the decision that was made in the circumstances in which that decision was made. The threshold would not ordinarily be met, for example, where a failure to afford procedural fairness did not deprive the person who was denied an opportunity to be heard of ‘the possibility of a successful outcome’, or where a decision-maker failed to take into account a mandatory consideration which in all the circumstances was ‘so insignificant that the failure to take it into account could not have materially affected’ the decision that was made.

31    … Ordinarily, as here, breach of a condition cannot be material unless compliance with the condition could have resulted in the making of a different decision.

…

34    Formation of the Minister’s state of satisfaction or of non-satisfaction is in each case conditioned by a requirement that the Minister or his or her delegate, or the Tribunal forming its own conclusion on review, must proceed reasonably and on a correct understanding and application of the applicable law, which includes the criteria prescribed by the Migration Act and the Migration Regulations for the visa in question.

39    In that case, the Tribunal had breached a statutorily implied condition by misapplying a visa criterion in relation to the review applicant, Mr Hossain. However, that breach could have materially affected the Tribunal’s decision to affirm a decision of the Minister to refuse to grant Mr Hossain a visa. The breach could have made no difference because the Tribunal had correctly found that Mr Hossain did not satisfy another visa criteria. Accordingly, the Court held (at [35]), the Tribunal “had no option but to affirm the decision of the delegate”.

40    The same principles apply to Mr Fati’s case. As the Tribunal had concluded that Mr Fati did not satisfy an essential requirement of PIC 4020, it was obliged by s 65 of the Act to affirm the delegate’s decision. Any error in the application of any other essential requirement of PIC 4020 could not have affected that obligation and so could not be characterised as jurisdictional.

41    The above reasoning does not engage with the substance of Mr Fati’s arguments concerning the proper construction and application of the “bogus document” definition and its interrelation with PIC 4020. For the reasons given above, it is not necessary to decide the correctness of those arguments in order to dispose of this appeal. Consideration of construction arguments of the kind advanced by Mr Fati should be deferred to a case in which the outcome turns upon them.

Associate:

Dated:    29 January 2019