FEDERAL COURT OF AUSTRALIA

Kaur v Minister for Immigration and Border Protection [2014] FCA 1276

THE COURT ORDERS THAT:

1.    The appeal be allowed.

2.    The decision of the second respondent be quashed.

3.    A writ of mandamus directed to the second respondent be issued requiring the second respondent to determine the appellant's application for review according to law.

4.    The first respondent pay the appellant's costs of the application before the Federal Circuit Court and on this appeal, if any, to be taxed if not agreed.

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

REASONS FOR JUDGMENT

1        Ms Satvir Kaur is a citizen of India, who arrived in Australia in May 2008 and completed a certificate III and certificate IV in hairdressing and a diploma in hairdressing salon management at TAFE NSW. On 29 June 2010, she applied for a skilled (provisional) (class VC) visa. She included with her application a skills assessment issued by Trades Recognition Australia (TRA) relevant to her nominated occupation as a hairdresser.

2        An applicant for this visa category is required to satisfy the requirements of cl 485.224 of Sch 2 of the Migration Regulations 1994 (Cth), which includes public interest criterion 4020 (PIC 4020), contained in Sch 4. PIC 4020(1) relevantly 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.

3        Information that is "false or misleading in a material particular" is defined as information that is false or misleading at the time it is given, and 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: PIC 4020(5). A "bogus document" has the same meaning as s 97 of the Migration Act 1958 (Cth).

4        On 15 August 2011, an officer of the department of Immigration and Citizenship (as it was then known) wrote to Ms Kaur, inviting her to comment on suspected fraudulent information provided to TRA, which indicated that she had gained 900 hours of work experience at Highlights Hair and Makeup Salon (the salon). The officer noted that the department had undertaken inquiries and there were concerns as to whether Ms Kaur had ever undertaken work experience as a hairdresser at the salon.

5        Ms Kaur provided a submission in response on 31 August 2011, enclosing a statement, a work reference letter dated 15 October 2009 which she had provided to TRA, an updated reference letter from the proprietor of the salon, timesheets and photographs of her at the salon.

6        On 19 September 2011, a delegate of the Minister refused Ms Kaur's application for a visa on the basis that she had not satisfied PIC 4020(1).

7        The delegate noted that departmental officers had undertaken investigations into the salon on 21 March 2011 and 24 March 2011 which raised serious concerns as to whether Ms Kaur was ever employed by the salon and the salon was not able to identify her as a past employee in a face-to-face interview. On this basis, the delegate was not satisfied that she had ever been employed by the salon and concluded that the work experience information she supplied to TRA was false or misleading in a material particular.

8        On 5 October 2011, Ms Kaur applied to the Migration Review Tribunal for a review of this decision, but the Tribunal affirmed the delegate's decision on 19 November 2012.

9        Ms Kaur sought judicial review of the Tribunal's decision on 13 December 2012 before the Federal Circuit Court, but this application was dismissed on 18 June 2014. See Kaur v Minister for Immigration & Anor [2014] FCCA 1264.

10        By notice of appeal filed on 7 July 2014, Ms Kaur appeals against the Federal Circuit Court's judgment.

THE TRIBUNAL'S DECISION

11        The Tribunal dealt with submissions concerning the authority of TRA as an assessing authority and the validity of PIC 4020. It referred to the decision in Mudiyanselage v Minister for Immigration & Citizenship [2012] FMCA 887 and stated that PIC 4020 does not set any temporal confinement as to when a bogus document is provided.

12        The Tribunal held that the issue of whether TRA was the relevant assessing authority at the time the reference letter was provided or at the time of the delegate's decision was irrelevant. In the Tribunal's view, the relevant time is not when the applicant provided the skills assessment to TRA or when the delegate made their decision; rather, it is the time of the Tribunal's decision. The Tribunal considered that the relevant assessing authority at the time of the Tribunal's decision is TRA, pursuant to legislative instrument IMMI 12/068, and there is nothing to suggest that IMMI 12/068 is not valid.

13        The Tribunal rejected Ms Kaur's submission that PIC 4020 did not apply at the time her application for a visa was made and that its retrospective operation was invalid. It found that the legislation expressly provided for its retrospective operation and evidenced a parliamentary intention that it would apply retrospectively. It stated that any challenge to its validity would need to be determined by a court.

14        As to whether Ms Kaur had submitted false or misleading information, the Tribunal referred to observations made by departmental officers in relation to their investigation of the salon in March 2011. Amongst other concerns, the officers were not satisfied, given the size and scope of the business, that it could have gainfully employed six to eight students, as claimed, over the relevant periods.

15        The Tribunal found, however, that the information obtained by the officers as a result of their site visit was "highly unsatisfactory". It considered it significant that the officers' conclusion was not that Ms Kaur's employment claims were not genuine, rather, that they could not be verified. The Tribunal held that this evidence alone was insufficient for it to make a positive finding that Ms Kaur was not working at the salon. It gave the department's site visit report no weight.

16        In respect of Ms Kaur's evidence, the Tribunal found her to be a credible witness who had provided consistent and credible information about her employment at the salon. It accepted that her evidence concerning the dates and hours of her employment was consistent with the timesheets she had submitted and credible with respect to her study commitments.

17        Nonetheless, the Tribunal stated that the reference letter Ms Kaur provided to TRA and the department appeared to be misleading, as it suggested that when she started working at the salon in August 2008, she worked independently and performed the full range of hairdressing services, even though she had no formal qualifications or experience as a hairdresser at that stage. When this was pointed out to Ms Kaur in oral evidence, she confirmed that she did not work independently as a hairdresser when she commenced her employment and did not perform the full range of hairdressing services until later in her work experience.

18        It is useful to set out the first few paragraphs of the reference letter:

This is to certify that Mrs Satvir Kaur has been working with Highlights hair and makeup by Ching Mercado from August 2008 till date. Satvir has been working as a hairdresser on average about 20 hrs a week on a part-time basis and does more hours on session breaks. To date Satvir has completed more than 950 hours of work experience.

Satvir works independently performing a full range of hairdressing services on a variety of clients in an operating hairdressing salon situation within accepted time restraints.

Her job involves managing multiple services within the salon range, operate as an effective team-member, and deal effectively with a number of contingencies that arise when performing multiple services in a salon team that includes salon assistants, apprentices, senior hairdressers, receptionists, supervisors and managers.

19        Ms Kaur submitted that the reference letter was written in the present tense and did not indicate that she performed the full range of duties from the start. She said the first three sentences of the reference letter should not be read together and indicated that she worked independently and performed the full range of duties at the end of the employment period and not the start. Ms Kaur also contended that TRA assessors, being generally competent in relevant trades, would be cognisant of the fact that a person with no experience would not be able to perform the full range of duties when they commenced their employment.

20        In the Tribunal's view, when the reference letter was read as a whole, it gave the impression that Ms Kaur worked independently and performed the full range of duties throughout the period of her employment. It stated that Ms Kaur's suggested reading of the document "impose(d) an unreasonable expectation upon the reader of that document". The Tribunal held that the issue was whether the information was objectively false or misleading and not whether it in fact misled anyone. To the extent Ms Kaur was asking the Tribunal to second guess what TRA may have decided if it had full and accurate information about her skills and experience, on the authority of Khan v Minister for Immigration and Citizenship [2011] FCA 75, the Tribunal considered it was not obliged to do this and PIC 4020 requires it to have regard to the nature of the information given to the assessing authority at the time it is given.

21        The Tribunal noted that for false or misleading information provided in respect of a skills assessment, the information must be of moment or significance and relevant to the purpose for which it was provided: see Shah v Minister for Immigration and Citizenship [2011] FMCA 18; (2011) 249 FLR 136 at [99]. It held that the information was relevant to cl 485.221 of the Regulations, as this requires an applicant to obtain a skills assessment and that skills assessment was issued on the basis of her employment at the salon.

22        The Tribunal concluded that the reference letter which Ms Kaur submitted to TRA for the purpose of obtaining a suitable skills assessment gave a false and misleading impression of her skills and experience as a hairdresser and this information was false or misleading in a material particular, meaning that she did not meet PIC 4020(1).

JUDICIAL REVIEW IN THE FEDERAL CIRCUIT COURT

23        Ms Kaur raised four grounds of review in her application to the Federal Circuit Court:

(1)    The Tribunal misinterpreted or misapplied the law to the facts by finding that:

(i)    PIC 4020 did not require it to ask TRA whether the reference letter given to it by the applicant was "false or misleading in a material particular";

(ii)    PIC 4020 applied to Ms Kaur when, in so far as it purports to apply to an application made before it was introduced, it is invalid; and

(iii)    the employment reference letter was false or misleading in a material particular, when 900 hours of work experience were purportedly required by TRA, but TRA was not empowered to set 900 hours of work experience as a standard precondition for a skills assessment.

(2)    The Tribunal failed to take the employment reference letter into account, as it failed to understand the letter and did not have proper regard to it.

(3)    The decision of the Tribunal is arbitrary because it did not have any reasonable basis on which to determine whether the employment reference letter was false or misleading in a material particular.

(4)    The Tribunal failed to make a relevant inquiry, as it was required to make an inquiry of TRA as to whether, if the reference letter had been read down as not reflecting 900 hours of work experience as a fully qualified hairdresser, it would have made a material difference to whether it would have issued a positive skills assessment.

24        At the hearing, Ms Kaur did not press grounds 1(i) and 4.

25        In respect of ground 1(ii), Ms Kaur contended that PIC 4020 was introduced and took effect on 2 April 2011 by virtue of reg 3 of the Migration Amendment Regulations 2011 (Cth), which purported to apply to subclass 485 visa applications pursuant to reg 5.

26        Regulation 5 relevantly provides:

5 Amendment of Migration Regulations 1994 — Schedule 3

(1)    Schedule 3 amends the Migration Regulations 1994.

(2)    The amendments made by Schedule 3 apply in relation to an application for a visa:

(a)    made, but not finally determined (within the meaning of subsection 5 (9) of the Migration Act 1958), before 2 April 2011; or

(b) made on or after 2 April 2011.

27        Ms Kaur submitted that reg 5(2)(a) of the Amendment Regulations and PIC 4020 are invalid insofar as they purport to apply to an application already lodged before the provisions were introduced, because it is manifestly unjust and/or oppressive or is contrary to the intention of Parliament in relation to the regulation-making power of the Minister. She contended that it would be contrary to common law notions against retrospective laws and inconsistent with s 12(2) of the Legislative Instruments Act 2003 (Cth) for PIC 4020 to operate in relation to acts done in relation to an application before it came into force. She submitted that merely because PIC 4020 has been incorporated into a time of decision criterion (being cl 485.224), that does not mean its application is not retrospective. Ms Kaur also drew attention to the fact that PIC 4020(2) introduced a three year prohibition on the grant of a visa if a person is refused a visa due to a failure to satisfy PIC 4020(1).

28        Ms Kaur referred to Lord Russell's comments in Kruse v Johnson [1898] 2 QB 91, which were cited by Hayne, Kiefel and Bell JJ at [70] in Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332, in relation to unreasonableness in the exercise of delegated law-making power. Ms Kaur confirmed that she was not suggesting that it is the role of the Court to determine whether a more favourable regulation could have been drafted, rather, the issue was whether the regulation is manifestly unjust. She acknowledged that the Minister can have criteria at the time of the decision and these criteria can be changed, but said it is another thing to have a regulation that imposes a three year prohibition for an act done previously when there was no prohibition for such an act at the time of the application. Ms Kaur referred to Lockhart J's comments in Minister for Primary Industries and Energy v Austral Fisheries Pty Ltd (1993) 40 FCR 381 at 381-2.

29        In the Minister's submission, PIC 4020 was inserted by the operation of item 4 of Sch 3 of the Amendment Regulations. The Minister contended that the injustice complained of did not arise, as the Amendment Regulations only operate in respect of future decisions on visas that have not been granted and without making any alteration to the past legal position of any visa applicant. See Hu v Minister for Immigration and Citizenship [2007] FMCA 1710; (2007) 214 FLR 296 at [24]. Given the express intention that the amendments were to take effect in the future, the Minister said there was no room for the operation of any common law presumption against retroactive operation.

30        The primary judge held that the applicant's submissions were an "invitation to consider a hypothetical opinion on the outcome of the event if there is some application made by this applicant within the next three years" and this is beyond the scope or authority of jurisdictional review and needs no further comment (reasons at [56]). His Honour found that as PIC 4020 is a time-of-the-decision criterion, it only applied after 2 April 2011 and does not affect or impact on any right or obligation that existed at that time (reasons at [57]).

31        The primary judge referred to comments made by Smith FM in Hu v Minister for Immigration, who found that a particular provision revealed an express intention that the change to the time-of-the-decision criterion would apply to all future decision-making addressing any undecided visa applications and any application for review by the Tribunal. Smith FM then stated at [16]-[18]:

16.     It was strongly urged upon the Court that the application of the amended criterion in the present situation gave rise to a significant degree of hardship and unfairness to a student such as Mr Hu, who had studied in Australia in courses with the expectation of qualifying for permanent residence under a subclass 880 visa, and had undertaken that study and applied for a visa at a time when it was not a condition of the visa that all his qualifications were obtained in registered courses.

17.     The degree of this hardship, and the strength of any public policy considerations justifying its infliction, are not matters for the Court to determine. Nor can the Court give a remedy to the applicants, if the intent of the amending regulation is clear, and if it is clear that s 12(2) of the Legislative Instruments Act has no application. Unfortunately, I have decided that both of these questions must be decided against the applicants.

18.     As I have explained above, there is no ambiguity in the transitional provision which accompanied the amendment, allowing application of principles presuming against interference with accrued rights or expectations.

32        The primary judge also referred to the reasons of Judge Barnes in Kaur v Minister for Immigration [2013] FCCA 2209 at [8], [12] and [71]. At [71], Judge Barnes stated:

71.    Hence the new time of decision criteria in relation to Subclasses 485 and 487 which applied PIC 4020 were applicable to the Applicant's application at the time of the Tribunal decision. The Tribunal was bound to apply the Amending Regulations because the Applicant's visa application had not been "finally determined" at the date of commencement of the Amending Regulations. The fact that it did so was not a misconstruction or misapplication of the relevant law. The Tribunal was not obliged to apply the criteria for the visa as they stood at the time of the visa application, the delegate's decision, the application to the Tribunal or the first Tribunal decision (insofar as various earlier dates were referred to in the Applicant's submissions). By analogy with the remarks of Smith FM in Hu at [27], the Applicant had no more than a right to compel the Tribunal to make a decision on whether it was satisfied as to the prescribed criteria which were relevantly in place at the time of the decision. Clause 487.228 (which required the applicant to satisfy PIC 4020) was such a criterion, as was cl.485.224.

33        As to ground 1(iii), Ms Kaur referred to comments made by Murphy J in Batra v Minister for Immigration and Citizenship [2013] FCA 274; (2013) 212 FCR 84 at [72], who stated that the Tribunal was wrong to find that 900 hours of work experience was a standard precondition for accreditation, as the TRA was not empowered to set such a standard. She submitted that TRA was not empowered to set 900 hours of work experience as a standard precondition for a skills assessment at the time her assessment application was lodged and even at the time it was granted, meaning that her reference letter could not have been false or misleading in a material particular at the time her assessment application was lodged.

34        The Minister noted that in Batra it was common ground that TRA had not been properly specified as an assessing authority pursuant to reg 2.26B(1A) of the Regulations at the time of the Tribunal's decision on 3 March 2011 and that it had not properly set a skills standard against which the applicant could be assessed. The Minister submitted that the statement by Murphy J in Batra at [72] does not mean that TRA never has any power to set a standard for a skills assessment and his Honour's comments were limited to circumstances where TRA was not properly specified under the Regulations. As such, the Minister submitted that the decision in Batra is distinguishable from this case and the comments at [72] are not applicable.

35        A "relevant assessing authority" for the purpose of PIC 4020 is a person or body specified under reg 2.26B of the Regulations, which provided at the material time:

2.26B Relevant assessing authorities

(1)     Subject to subregulation (1A), the Minister may, by an instrument in writing for this subregulation, specify a person or body as the relevant assessing authority for:

(a)     a skilled occupation; and

(b)     one or more countries;

for the purposes of an application for a skills assessment made by a resident of one of those countries.

(1A)    The Minister must not make an instrument under subregulation (1) unless the person or body has been approved in writing as the relevant assessing authority for the occupation by:

(a)    the Education Minister; or

(b)     the Employment Minister.

(2)     The standards against which the skills of a person are assessed by a relevant assessing authority for a skilled occupation must be the standards set by the relevant assessing authority for the skilled occupation.

36        The primary judge accepted that there is a distinction between Batra and this case, as at the time when Batra was before the Tribunal, being 3 March 2011, the Minister had not specified TRA as the lawful migration skills assessment body, however, by the time the present matter was before the Tribunal, being 19 November 2012, that approval had been made on 2 April 2011. Consequently, the primary judge concluded that at the time of the Tribunal's decision, TRA had been lawfully authorised.

37        The primary judge noted that for the purposes of PIC 4020, information will be misleading in a material particular if it might be relevant to the granting or refusal of a visa. His Honour held that even if at the time information was given there might not have been a relevant criterion because the regulation had not yet been gazetted, if at the time of the decision the information might be relevant or might be something that is considered, then it is misleading in a material particular. The primary judge recognised that this is important in this case, because at the time the information was given to TRA, the information did not have anything to do with the granting or refusal of a visa, as the Amendment Regulation had not been made. The primary judge accepted, however, that by the time the Tribunal came to make its decision, the statutory regime had changed and the requirement of the skills assessment had come into effect, and this meant that the information was relevant to the grant or refusal of the visa (reasons at [80]-[81]).

38        By grounds 2 and 3, Ms Kaur submitted that the Tribunal did not, in effect, give proper regard to her reference letter or that its consideration of the letter was arbitrary. She said the reference letter did not state that she had worked the entire 900 hours independently and performing the full range of services as a hairdresser, instead, the reference letter was written in the present tense and the evidence given to the Tribunal was that she had started off as a junior hairdresser and by the end of her work experience she had those skills. Ms Kaur relied on the decision in Kozel v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 658; (2004) 138 FCR 181 to support the proposition that a Tribunal may fall into jurisdictional error if it has looked at the contents of a document with an eye keenly attuned to error. She said it was open for the Court to look at the contents of the reference letter and, on a fair reading of the letter, determine whether it was false or misleading in a material particular.

39        The Minister submitted that the letter, read as a whole, supported the Tribunal's view and it was open to the Tribunal to reach the finding of fact it did. The Minister contended that these grounds were no more than an attack on the merits of the Tribunal's decision and did not identify any jurisdictional error. See Minister for Immigration and Citizenship v SZJSS [2010] HCA 48; (2010) 243 CLR 164 at [23]-[40].

40        The Minister submitted that the question whether something is false or misleading is clearly a question of fact and something that must be left to the Tribunal, because the Tribunal must consider whether PIC 4020 is satisfied. The Minister said that in order for a jurisdictional error to be demonstrated, it had to be a finding that no reasonable Tribunal, properly informed of the law, could have made and whether that finding was available as a matter of law.

41        In respect of Ms Kaur's submissions, the primary judge stated that "[t]he thrust of the argument advanced by [counsel for Ms Kaur] is that the Tribunal engaged in what could be called a pernickety exercise of grammar when reading the Reference Letter, however, it is conceded that the Tribunal has looked at the Reference Letter objectively and made a finding of fact" (reasons at [83]).

42        The primary judge said there were a number of issues conveyed by the reference letter, including:

(1)    the number of hours worked;

(2)    what had been done and the skills shown during that time;

(3)    the certification stating that the applicant had been working from August 2008 to 15 October 2009;

(4)    the concept of the work being continuous; and

(5)    the applicant had been working as a hairdresser, on average about 20 hours per week on a part-time basis.

43        The primary judge found that the second sentence of the reference letter conveyed the impression that the applicant had been working for the entirety of the period between August 2008 and October 2009. The primary judge noted that the initial contextual statements, such as the date, amount of hours and the occupation, supported the Minister's contention that it was reasonably open to the Tribunal to conclude that the reference letter's contents were misleading in a material particular (reasons at [93]).

44        The primary judge agreed with the Minister's submissions that grounds 2 and 3 amounted to no more than an attack on the merits of the decision and did not identify any jurisdictional error: see SZJSS at [23]-[40] (reasons at [94]).

APPEAL TO THIS COURT

45        Ms Kaur's notice of appeal filed 7 July 2014 identifies four grounds of appeal (two on the first page and two on the second) which appear to overlap and, for convenience, have been renumbered as grounds 1 to 4, and may be stated as follows:

(1)    There was no intention for the reference letter to be misleading where the Judge made the negative decision.

(2)    Judge was unjust by saying that reference was a bogus document.

(3)    The Judge erred by finding that PIC 4020 in relation to my skill assessment obtained from Trades Recognition Australia and for the purposes of clause 485.244 of the regulations.

(4)    At the time reference was submitted, was not made intentionally to be misleading or false but it became false or misleading because of change in the law.

46        Ms Kaur did not file any written submissions or supporting affidavit material.

47        The Minister's submissions appear only to address grounds (3) and (4) above. The Minister submits that these grounds seek only to re-agitate the grounds raised below, without any identification of what error is said to be present in the primary judge's findings. The Minister contends that the primary judge's conclusions were legally correct and were open to his Honour on the basis of the submissions and for the reasons given.

48        The Minister notes that PIC 4020 refers to information that is given to a number of different bodies, including a "relevant assessing authority" and such an authority is a person or body specified under reg 2.26B of the Regulations. In this case, the Tribunal found that the relevant assessing authority was TRA, in light of legislative instrument IMMI 12/068, and this legislative instrument took effect on 12 June 2012 and post-dated the relevant time in Batra. The Minister observes that Ms Kaur did not take issue with the Tribunal's findings in this respect and did not adduce any evidence to suggest that the Tribunal was wrong.

49        The Minister submits that the other ground essentially takes issue with the fact that the Federal Circuit Court found that PIC 4020 operates as a "time of decision" criterion. Without more, the Minister says there is no clear basis to ascertain what the error is said to be and this ground appears to simply express disagreement and dissatisfaction with the primary judge's conclusion. If this is so, the Minister submits this ground invites impermissible merits review and should be rejected.

50        Grounds (1), (2) and (3) may be taken to raise two grounds to the effect that:

(1)    the primary judge was wrong to accept the Minister's submission that the Court was required to look at the reference objectively when determining whether PIC 4020(1) was satisfied, in particular, whether the reference letter provided information that was false or misleading in a material particular;

(2)    even if that were the appropriate test, the primary judge erred in not finding that the Tribunal erred in construing the reference letter as containing information that was false or misleading in a material particular in the manner that it did.

51        Ground (4) above, may be taken to repeat the ground before the primary judge in (1)(ii), namely, that the Tribunal (and the primary judge) erred in finding that PIC 4020 applied to Ms Kaur when, insofar as it purports to apply to an application made before it was introduced, it was invalid.

52        To the extent that ground (4) repeats ground (1)(ii) argued before the primary judge, in my view, it should be dismissed. For the reasons the primary judge gave and set out above, the relevant change to the regulatory framework has a valid retrospective application.

53        The principle issue, therefore, raised by the appeal concerns the first three grounds just identified, namely what the relevant test is when applying PIC 4020 and, if the Tribunal, and thus the primary judge, erred by applying the incorrect test, whether the appeal should be allowed on the further ground identified, or remitted to the Tribunal for reconsideration.

54        One important decision not cited in the submissions of the Minister but relevant to the determination of this appeal, is the decision of the Full Court in Trivedi v Minister for Immigration and Border Protection [2014] FCAFC 42; (2014) 220 FCR 169. Buchanan J, with whom Allsop CJ and Rangiah J agreed, dealt expressly with the application of PIC 4020.

55        Trivedi was decided after the Tribunal's decision and also after the judicial review application was argued before the primary judge and plainly not brought to his Honour's attention before his reserved judgment was handed down.

56        Buchanan J provided the following analysis.

    His Honour was content with saying that he was satisfied that it was not necessary for a visa applicant to know of or be directly involved in any falsehood for PIC 4020 to be engaged ([28] of his reasons).

    In identifying the character or quality of the documents or information to which PIC 4020 is directed, much depends on the context and perceived purpose of PIC 4020, as well as the terms in which the prohibition in question is directed ([29] and [30]).

    PIC 4020 addresses the problem of attempts to work a fraud or deception on the assessment of claims for a visa, which is evident from the fact that PIC 4020 states a "public interest" criterion ([31] and [32]).

    His Honour 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 to innocent, unintended or accidental matters. However, different questions arise when information or documents in support of an application are revealed as false, in the "purposely untrue sense of that term" ([32]).

    It should be accepted that an element of fraud or deception is necessary in order to attract the operation of PIC 4020 ([33]).

    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 ([33]).

    The circumstances of the introduction of PIC 4020 confirm the view derived from the text of PIC 4020 that it is not directed to information or documents which are not tainted in the way indicated ([34]).

    The submission that PIC 4020 applies to any "objectively" untrue statement or information provided by a visa applicant, so that even a completely innocent mistake would (subject to the waiver provisions in PIC 4020) be favourable to that visa application and any visa application by that applicant and each member of the family unit for the next three years, cannot be accepted ([41]).

    It is not necessary to show knowing complicity by a visa applicant because 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 ([43]).

57        In this case in the Tribunal, the question was not asked whether the information contained in the reference letter obtained and provided by the appellant to the TRA had the necessary quality of "purposeful falsity".

58        Rather, the Tribunal approached the matter on the basis that the relevant information was objectively false or misleading and it was not relevant whether in fact it misled anyone.

59        The primary judge effectively accepted the Minister's submission that that approach was correct and accordingly, on that basis, dismissed that ground of the review application.

60        In my view, that approach does not accord with the approach identified in Trivedi by the Full Court and this appeal should succeed on that ground.

61        I do not accept the submission made on behalf of the Minister that, in substance, the Tribunal adopted the Trivedi approach to decision-making. It did not. It asked, rather, whether "objectively" the information was false and misleading. By doing so, it failed to inquire into the purposeful falsity of the information.

62        In those circumstances the further question arises whether, on the material before the Tribunal and presently before the Court it can be said that the appellant should have succeeded in the review application before the Tribunal. While I consider there are strong grounds for contending, on the materials before the Court, that there is a lack of evidence to suggest that the information identified by the Tribunal as false or misleading had the quality of purposeful falsity, that is a matter which, in my view, should be the subject of reconsideration by a Tribunal.

63        In those circumstances, the appeal is allowed and the matter should be remitted to the Tribunal for reconsideration.

CONCLUSION AND ORDERS

64        In these circumstances, the appropriate orders are that:

(1)    The appeal be allowed.

(2)    The decision of the second respondent be quashed.

(3)    A writ of mandamus directed to the second respondent be issued requiring the second respondent to determine the appellant's application for review according to law.

(4)    The first respondent pay the appellant's costs of the application before the Federal Circuit Court and on this appeal, if any, to be taxed if not agreed.

Associate:

Dated:    25 November 2014