Singh v Minister for Home Affairs [2019] FCA 379

Appeal from:

Singh v Minister for Immigration [2018] FCCA 2997

File number:

QUD 716 of 2018



Date of judgment:

27 February 2019


Migration Act 1958 (Cth) ss 5, 103, 359, 499

Migration Regulations 1994 (Cth) Sch 2, cll 572.223, 572.224

Cases cited:

Kishore v Minister for Immigration and Border Protection [2017] FCA 1254

SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152

Trivedi v Minister for Immigration and Border Protection (2014) 220 FCR 169

Date of hearing:

27 February 2019


New South Wales


General Division

National Practice Area:

Administrative and Constitutional Law and Human Rights


No Catchwords

Number of paragraphs:


Counsel for the Appellant:

The appellant appeared in person assisted by an interpreter

Solicitor for the First Respondent:

Ms B Rayment of Sparke Helmore Lawyers

Counsel for the Second Respondent:

The second respondent filed a submitting notice save as to costs


QUD 716 of 2018






First Respondent


Second Respondent




27 FEBRUARY 2019


1.    The appeal be dismissed.

2.    The appellant pay the first respondent’s costs fixed in the sum of $5,000.

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




1    This is an appeal from the decision of the trial judge refusing the appellant’s application for Constitutional writ relief in respect of the decision of the Administrative Appeals Tribunal given on 12 September 2016 to affirm the decision of the Minister’s delegate not to grant the appellant a student (temporary) (class TU) visa: Singh v Minister for Immigration [2018] FCCA 2997.


2    The appellant arrived in Australia in 2009 on a student visa. He obtained other visas and on 13 May 2014 applied for the visa the subject of the present appeal.

3    On 20 February 2015, the delegate decided to refuse to grant the visa, principally on the basis that on two occasions during the course of the application process the appellant had provided documents from a particular branch of an Indian bank (the Bank branch), namely Punjab & Sind Bank, that the Australian High Commission in New Delhi had ascertained were bogus. In those circumstances, the delegate concluded that the appellant had not satisfied the Public Interest Criterion 4020 (PIC 4020), which was a necessary precondition for the grant of the visa under cl 572.224(a) of Sch 2 of the Migration Regulations 1994 (Cth).

4    PIC 4020(1) relevantly provided that a necessary criterion for the grant of the visa was that there was no evidence before the Minister that the visa applicant had given, or caused to be given, to the Minister or any officer a bogus document or information that was false or misleading in a material particular in relation to the application for the visa. PIC 4020(5) provided that, for the purpose of PIC 4020, information that was false or misleading in a material particular meant information that was both false or misleading at the time it was given and relevant to any of the criteria that the Minister might consider when making a decision on the application, whether or not the decision was made because of that information.

5    PIC 4020(4) provided that, relevantly, the Minister could waive the requirements of PIC 4020(1)(a) only if satisfied that either compelling circumstances that affected the interests of Australia or compassionate, or compelling circumstances that affected the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen, justified the granting of a visa. It was clear that the appellant could not satisfy the second of those exceptions because he was not himself, and did not identify anyone else, who relevantly was an Australian citizen, permanent resident or eligible New Zealand citizen. Nor was there any aspect of his application that fell within the first exception.

6    Section 5 of the Migration Act 1958 (Cth) defined “bogus document” in relation to a person as meaning a document that the Minister reasonably suspected was a document that purported to have been, but was not, issued in respect of the person, or was counterfeit. Section 103 provided that a non-citizen must not give, present, produce or provide to an officer or the Minister a bogus document or cause such a document to be so given, presented, produced or provided.

7    In the course of submitting material to the Minister’s Department in support of his application for the visa, the appellant provided some financial documents that appeared to have been generated by the Bank branch. The Department sent those documents to the High Commission to conduct checks with the Bank branch to verify whether the documents were genuine.

8    On 25 August 2014, the Department informed the applicant that the assistant branch manager of the Bank had informed the High Commission that the account number in the documents did not exist and that no fixed deposit or savings account statement had been issued by the Bank that corresponded to those in the documents submitted by the appellant. The Department informed the appellant in that letter that there was evidence to suggest that the appellant did not meet the financial requirements of the visa specified in cl 572.223, but offered the appellant an opportunity to comment on those concerns. The letter informed him that he could not only address the issue of whether the documents might be false or misleading or bogus, but also could identify any compelling circumstances to justify a waiver of PIC 4020(1) or (2) to enable the grant of the visa.

9    On 5 September 2014, the appellant sent an email to the Department, explaining that the financial documents that he had provided reflected the genuine financial position of his father at the Bank branch and enclosed an apology letter purporting to be from the Bank, together with a second set of confirmatory Bank documents purporting to be issued by the Bank. The second set of documents identified the existence of the funds needed to evidence sufficient financial support in order for the appellant to meet the criteria in cl 572.223 for the grant of the visa. He asked the Department to recheck the new financial information from his father with the Bank once again and assured it that, “this time there won’t be any issues with the enquiry process”.

10    On 16 January 2015, the Department wrote to the appellant again to disabuse him of his hope. The letter said that Departmental checks of the second set of documents that he had provided on 5 September 2014 from the Bank branch had resulted in the Bank verifying that the fixed deposits and accounts referred to in that material did not belong to the Bank branch and that the second set of documents had not been issued by it. Again, the Department offered the appellant the opportunity to comment on that information and identify any compelling circumstances that might justify a waiver of PIC 4020(1) or (2).

11    The appellant responded in an email of 9 February 2015. He expressed surprise that, once again, the same problem had arisen. He explained that his parents had arrived in Australia on 14 January 2015 for a visit, and were not due to return home until 26 February 2015. He said that his father had returned home and had spoken to the Bank manager and higher officials without avail, resulting in his father asking the Bank to close his accounts and selling a property in order to generate sufficient funds to satisfy the visa criteria. He attached a third set of financial documents to evidence this.

12    As I have noted, the delegate decided on 20 February 2015 to refuse to grant the visa. The delegate’s decision recorded the history above. The delegate found that the third set of documents, which appeared to be from a different bank, were irrelevant to the assessment of the question under PIC 4020, because they did not obviate the fact that, on two occasions, a bogus document had been provided in the application process.

13    The delegate found that the appellant had not provided any information to suggest that he sought a waiver of PIC 4020. The delegate found that the criteria in cl 572.224 (that required an applicant for a visa to satisfy, among others, PIC 4020) had not been satisfied and, because the appellant had failed to satisfy PIC 4020, refused to grant the visa.

The review in the Tribunal

14    The appellant sought review of the delegate’s decision which came to be heard by the Tribunal. He provided the Tribunal with a copy of the delegate’s decision. On 22 August 2016, the Tribunal wrote to the appellant, who was represented by a solicitor migration agent at the hearing, inviting him to provide information before the hearing it would hold. The letter said that one mandatory criterion for the grant of the visa was that the appellant met the genuine temporary entrant criterion in cl 572.223(1)(a). That required the Minister to be satisfied that the applicant was a genuine applicant for entry and stay as a student because “the Minister is satisfied that the applicant intends genuinely to stay in Australia temporarily, having regard to” his circumstances, immigration history and any other relevant matter. The letter also informed the appellant of the provisions of the Minister’s direction under s 499 of the Act, Direction 53, “Assessing the genuine temporary entrant criterion for Student visa applications.

15    The Tribunal invited the appellant, under s 359(2), to provide, by 5 September 2016, information in writing that demonstrated that he had a current enrolment in an acceptable course of study, information that he wished the Tribunal to consider concerning the genuine temporary entrant criterion and the considerations in Direction 53, together with detailed information regarding his immigration history, student visa history, study history including all the enrolments and student visas that he had been granted, all the courses he had proposed for previous visas, what courses he had pursued, completed or attempted, and any study gaps and reasons for not studying.

16    On 5 September 2016, the Tribunal received a letter from the appellant. He explained that he arrived in Australia on 10 May 2009 and went through the history of the courses he had taken in detail. He said that he had been, and was, a genuine student and had successfully finished all his courses in Australia to enrich his study and skills. He wrote that he was then enrolled in the last course, being an advanced diploma in leadership and management and attached a copy of an Australian Government Department of Education and Training confirmation of enrolment identifying that his current proposed course would end on 15 April 2018.

17    On 8 September 2016, the appellant attended a hearing at the Tribunal together with his solicitor migration agent. The hearing lasted about one and a half hours.

18    On 12 September 2016, the Tribunal decided to affirm the delegate’s decision. In its decision record, the Tribunal set out the criteria in PIC 4020. It explained that the Full Court of this Court had held in Trivedi v Minister for Immigration and Border Protection (2014) 220 FCR 169 that when PIC 4020 referred to information that was false, it did so in the sense of purposely untrue and that it was not necessary for the Tribunal, the Minister’s delegate or Minister, to conclude that the applicant for the visa was aware that the information was purposely untrue for the purpose of engaging the criterion. It stated that it was necessary only that there be an element of fraud or deception by some person to attract the operation of the provision.

19    The Tribunal found that, on two occasions, the appellant had provided documents that appeared to have been issued by the Bank. It found that the appellant had not disputed the history of the events that the delegate had recorded. It considered the appellant’s explanation that the Bank had been at fault in not confirming the genuineness of the documents but that he was not, in effect, complicit in any falsity. The Tribunal found that there remained a reasonable suspicion on all of the material before it that both sets of Bank documents that the appellant had given to the delegate were counterfeit and or were not issued in respect of the person named in the documents, although, they purported to have been so issued and, therefore, they were bogus documents as defined in the Act.

20    The Tribunal found that when the appellant gave the two sets of documents from the Bank to the delegate, in relation to his application, he contravened the requirements of PIC 4020(1). It found that the appellant had not, and could not, identify any circumstance to justify it waiving the requirements of PIC 4020(1) or (2). Accordingly, it found that the appellant had not satisfied PIC 4020 for the purpose of cl 572.224.

21    The Tribunal then gave an independent reason why it affirmed the delegate’s decision, namely that the appellant, having been invited to provide information relevant to the genuine temporary entrant criterion, had failed to satisfy the Tribunal that he was such a person. It found that following his arrival in Australia in 2009 on a student visa, when he said that he had a career ambition to open one or more restaurants in India, he had completed, by 2011, two VET sector certificates in commercial cookery and a diploma of hospitality and, subsequently, had completed a diploma of management in 2012 and a diploma of business in 2013. It found that the appellant had made the then current visa application in 2013, seeking to study a certificate IV in business administration (that he completed in 2015), a diploma of business administration (that he completed in August 2016), and the course that he then wished to study, being a diploma of management, which, by the time of the Tribunal hearing, was called a diploma of leadership and management.

22    The Tribunal found that in order to satisfy the considerations referred to in Direction 53 to meet the genuine temporary entrant criterion, the appellant had to have had, and continue to have, “incentive to cease residence in Australia”. The Tribunal recorded that it had a long discussion with the appellant as to the numerous courses that he had taken and the, by then, high number of qualifications he had acquired. It acknowledged that different people might have different levels of confidence but found that, if the appellant had intended to stay in Australia only temporarily, he would have considered himself sufficiently skilled and qualified to open restaurants in India by the time of completion of his diplomas of business and management in 2013, and would not have made, the new visa application in 2013, the subject of this appeal.

23    It found that overall, despite having very real personal incentives to cease residence in Australia, including his family connections and ambitions, the appellant had, by his conduct, shown that he was unwilling to depart Australia after having acquired qualifications and acumen in fields objectively sufficient for himself to embark upon the overseas enterprise that he claimed, in circumstances where he claimed that his wish to study in Australia was to achieve that very acumen to take overseas.

24    The Tribunal found that the appellant did not wish, or intend, to leave Australia, and wished to remain and live in Australia. Accordingly, it found that he did not intend genuinely to stay in Australia temporarily and thus failed to satisfy cl 572.223(1)(a). The Tribunal found that the appellant could not be granted the visa for both reasons it had given and affirmed the delegate’s decision.

The proceeding before the trial judge

25    The appellant appealed to the Federal Circuit Court. The trial judge summarised the facts and the grounds on which the appellant sought review of the Tribunal’s decision. Those grounds were that:

    he believed that he had not received a fair or just decision;

    the Tribunal’s discretion had miscarried in relation to the genuine temporary entrant criterion;

    the delegate had refused the visa solely on the ground of the bogus documents and had not raised the genuine temporary entrant criterion; and

    he had been denied procedural fairness in the Tribunal hearing because the Tribunal member had not provided him with an opportunity to make additional submissions, or given him any additional time to provide evidence for the genuine temporary entrant criterion and could not prepare or provide any evidence about that criterion because he did not know in advance that the Tribunal would ask him about that topic; and had he been given such an opportunity, he would have had a reasonable chance of satisfying the Tribunal about the genuine temporary entrant criterion.

26    The trial judge rejected each of those grounds. He found that the appellant had had an opportunity to deal with the issues that the Tribunal had decided adversely to him because it had put the appellant on notice, first, in its letter of 22 August 2016, that an issue in the review was whether the appellant had satisfied the genuine temporary entrant criterion and, secondly, a further issue in the review was whether the appellant could have satisfied PIC 4020, it being raised in the delegate’s decision that the appellant had provided to the Tribunal for the purposes of the review.

27    His Honour rejected the second ground on the basis that the Tribunal was not confined to only the issues before the delegate and that the Tribunal had identified to the appellant that the genuine temporary entrant criterion as an issue before it. His Honour also found that the ground substantively sought the Court to undertake impermissible merits review of the Tribunal’s findings, which it was not able to do. His Honour rejected the third ground. He found that the appellant had not been denied procedural fairness because he had had an opportunity to deal with the genuine temporary entrant criterion. The trial judge found that this matter arose directly in the Tribunal’s letter to the appellant of 22 August 2016, which had attached Direction 53. He found that the appellant had replied, by his email dated 5 September 2016, at length to the matters raised in the 22 August 2016 letter from the Tribunal. Accordingly, he rejected the fourth ground. He noted that the appellant had not sought additional time to provide any further information, and that in the absence of evidence, the ground was without merit.

28    His Honour then dismissed the application with costs.

This appeal

29    In his notice of appeal, the appellant raised the following grounds:

    he did not believe that he had received a fair decision from the delegate because the documents were not bogus, but valid, and that the Tribunal and trial judge should also have found them to be;

    it was unjust that the financial documents from a fully computerised bank were not considered by the Attorney-General and Department of Justice;

    the Tribunal had sent him by email its 22 August 2016 letter including Direction 53, but “Unfortunately, all documents went into junk mail. I received text message from AAT on 1st September at 11am. I could not prepare myself for hearing because of less time and more stress. At the end of hearing, I could not give the proper information regarding Genuine Temporary Entrant (GTE) criterion to the AAT Member and he did not give me chance for additional submission” (errors in original);

    if the Tribunal had given him an opportunity “for more documents submission I would get fair decision because I am continuously studying in hospitality industry” (errors in original);

    the Tribunal should have granted the visa because there was no evidence that the appellant had given misleading information to the Department; and

    he was living in the Queensland countryside and studying on his latest course to enhance his skill and experience.

30    The appellant provided a written submission by email on 21 February 2019 following a telephone hearing that I conducted in Brisbane on 19 February 2019, at a time when he was suffering from acute food poisoning and unable to attend Court for the then scheduled hearing of the appeal.

31    In his written submission, the appellant argued that the delegate had refused the visa because of the negligence of the Bank. He contended, as he had done before the delegate, the Tribunal and his Honour, that the Bank had been updating its data and had not provided proper documentation because of computer errors. He noted that the Bank branch’s manager had apologised in a letter of 3 September 2014, that had been attached to the appellant’s response to the Department that he sent on 5 September 2014. He said that he had subsequently provided a computerised record from another bank that the delegate had not considered and that his family had been updating that financial information thereafter. He said that he was innocent of any complicity in the provision of documents that the delegate had not accepted as genuine for the purposes of PIC 4020. He argued that at the hearing before the Tribunal, the member was “not in a good mood” and had arrived 45 minutes late. However, he gave no evidence about that topic to the trial judge or me.

32    His submission went on to complain about various inadequacies of the lawyer, to whom he had turned, and his solicitor migration agent. He also referred to, but to which I have had no regard, a number of other matters which I have not admitted into evidence, including the fact that he had applied for a permanent visa that had been refused on 20 February 2019, and which decision he asked me to overturn. I told him that that decision was not the subject of or relevant to his appeal.

33    The first ground of appeal did not engage with the fact that the Tribunal correctly applied the law as expounded in Trivedi 220 FCR 169. There, Buchanan J, with whom Allsop CJ and Rangiah J agreed, held that it was not necessary for the Department to show that the visa applicant was knowingly complicit in the use or production of a false document that he or she lodged or caused to be lodged with the Department. Buchanan J held that it would be an impossible task for those administering the visa system for them to determine whether a visa applicant was himself or herself complicit in the document being false. Rather, his Honour found that it was necessary that the information or document had the necessary quality of purposeful falsity, whether or not the visa applicant could be shown to have knowledge of that fact: Trivedi 220 FCR at 179 [43]. See also Kishore v Minister for Immigration and Border Protection [2017] FCA 1254 at [32]-[33] per Rares J. It follows that the arguments, that the appellant put forward in support of the first and second grounds on appeal, must fail.

34    The third ground of appeal is entirely without substance. The appellant was on notice of the genuine temporary entry criterion and, as the trial judge found, he had responded in detail to the Tribunal’s letter of 22 August 2016 in his email of 5 September 2016. The only record of the conduct of the Tribunal hearing is in its decision record, the appellant not having provided any evidence below or sought to lead fresh evidence before me of anything else that occurred in the hearing. Not only was the appellant represented by a migration agent at the hearing in the Tribunal, the Tribunal’s decision record noted that the Tribunal had had a long discussion with the appellant about the genuine temporary entrant criterion. There is no suggestion in the Tribunal’s decision record (or the appellant’s email of 5 September 2016) of any request by him or his solicitor migration agent to provide further information, or that there was anything which the appellant could or did say to support a different outcome. In any event, the appellant had ample advance notice from the Tribunal’s letter of 22 August 2016 and his response of 5 September 2016 that the genuine temporary entrant criterion was an issue in the review. He engaged substantively with the Tribunal, both in his email of 5 September 2016 and at the hearing. See SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at 164-165 [40]-[43], per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ.

35    The fourth ground must be rejected because the Tribunal did give the appellant an opportunity of which he availed, to provide information to it, both before the hearing in writing and during the hearing. There was no denial of procedural fairness or other jurisdictional error in the way in which the Tribunal dealt with the question of whether the genuine temporary entrant criterion had been satisfied.

36    The fifth ground is simply an attempt to cavil with the Tribunal’s factual findings and is misconceived, having regard to Trivedi 220 FCR 169. The last ground is simply a statement that the appellant is continuing to study for another course, which is irrelevant to the issues arising in the appeal.


37    For those, the appeal must be dismissed with costs fixed in the sum of $5,000.

I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rares.


Dated:    19 March 2019