Federal Court of Australia

Peraj v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 184

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be allowed.

2.    Orders 1 and 3 of the Federal Circuit Court of Australia made on 16 March 2020 be set aside and, in their place, order that writs of certiorari and mandamus be issued to the second respondent quashing the decision made on 7 August 2018 and remitting the matter to be determined according to law.

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

REASONS FOR JUDGMENT

BESANKO J:

Introduction

1    This is an appeal by the appellant from an order made by the Federal Circuit Court of Australia on 16 March 2020 dismissing the appellant’s application for judicial review of a decision made by the Administrative Appeals Tribunal (the Tribunal).

2    On 21 June 2017, the appellant applied for the grant of a Student (Temporary) (class TU) subclass 500 visa (Student visa). On 3 October 2017, a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (the Minister) refused to grant a Student visa to the appellant. On 19 October 2017, the appellant applied to the Tribunal for a review of the delegate’s decision. The Tribunal reviewed the decision and, on 7 August 2018, decided that the delegate’s decision should be affirmed. The appellant made an application to the Federal Circuit Court for judicial review of the Tribunal’s decision. That application was, as I have said, dismissed (Peraj v Minister for Immigration & Anor [2020] FCCA 712 (PJ reasons)). The appellant now appeals to this Court.

The Appellant’s Application before the Delegate

3    In the appellant’s application for the Student visa lodged with the then Department of Immigration and Border Protection (the Department), he provided the following details in response to a request to give details in support of his ability to meet the genuine temporary entrant criteria:

My name is Ferdinand Peraj, I come from Italy and my intention is to study in Australia for a temporary period. My residence is in Caraglio, a small city in the north of Italy, where I live with my family: my wife Rovena and my two daughters. I was born in Albania, I moved to Italy when I was 18, I have been living in Italy for 19 years and I am Italian citizen since 2010. After 19 years of work, in April I proposed to my current employer a break: I wanted to travel and explore Australia as a tourist, take my time to study English. At the beginning I left with a Tourist Visa, I visited a lot cities, in particular Adelaide, which I loved the most. Staying here made me realize how important is this experience for me, for this reason I asked an extension from my work break to my employer, finalised to study English and get an English certificate. Since the company I work for is expanding abroad, my employer accepted my proposal, in change I have to reach at least an upper intermediate level of English. My currently job position in the company is as Workmen Coordinator, I started to work there years ago as a simple worker until my current role. This study experience in Australia is a big opportunity for me to invest in my professional career. If I can significantly improve my English level I could aspire to manage and coordinate directly workmen in international projects. Among the numerous schools in Australia I chose Kaplan International English School, it is a global brand, recognised also in Italy. In this school the average age is a bit higher than other schools I visited and the classes consist of a maximum of 15 students, which allows teachers to get to know the pupils. This experience is temporary. My family will stay in Italy during this period, unfortunately, it was not possible to bring them with me. In term of private life, when coming back to Italy I want to live in my own house in Caraglio, with my family and continue to work in the same company.

4    In response to another request in the application form to provide details of his employment history, the appellant said that he is employed and that that is his current employment situation. He said that he is employed by an organisation known as Dimocart Italia and that Dimocart Italia is a business involved in manufacturing. He identified a Mr Gianluigi Di Molfetta as the contact person within the organisation and he provided a telephone number. Under the heading “Future employment”, he was asked whether he had been offered a job at the completion of the course, which is the subject of his application, and he said that he has.

5    The appellant also provided similar details in a written statement which was part of his application. In that statement, he provides the following information:

After 19 years of uninterrupted work, with very few personal holidays, just thinking about spending time with my family, in April of this year I proposed to my current employer a break: I wanted to travel and explore Australia as a tourist, take my time to study English in this wonderful land which I have always heard about. My aim was simply to travel around and visit different cities, learning a bit of English on a daily basis. At the beginning I left with a Tourist Visa, I visited a lot cities, in particular Adelaide, which I loved the most, in this city I found my size because it is a smaller town, compared to Melbourne or Sydney, and for this reason I chose to stay here longer.

Staying here made me realize how important is this experience for me, for this reason I asked an extension from my work break to my employer, finalised to study English and get an English certificate.

Since the company I work for is expanding beyond the Italian borders, my employer accepted my proposal, in change I have to proof my attendance in an English course and obtain at least a certificate of an upper intermediate level of English.

My currently job position in the company, named Dimocart Italia, is as Workmen Coordinator, I started to work here years ago as a simple worker until my current role. The company is specialized in recycling and environmental service; it is a solid reality, settled in my territory, born in 1958.

This study experience in Australia is a big opportunity for me to invest in my professional career. If I can significantly improve my English level I could aspire to manage and coordinate directly workmen in international projects. It will be a similar role, but with more responsibilities and in international contexts.

…

My genuine intention is to come back to Italy, where my family and my work are.

6    On 29 June 2017, the Department asked the appellant to complete and provide what is known as a Form 80 which requires “Personal particulars for assessment including character assessment”. He did that and in the form he identified his employer at the time (and since October 2000) as Dimocart Italia s.r.l. Further, in response to a question in the form asking the appellant to state his main reason for remaining in Australia, the appellant said the following:

My company in Italy has decided to increase the number of its factorys (sic). I need a better English level to aspire to manage workmen in an international business, like my job place wants to be.

7    The appellant also provided to the Department a curriculum vitae and in that document he identified his employment from October 2000 to the present to be a workman coordinator at Dimocart Italia s.r.l.

8    On 23 August 2017, the Department sent a letter to the appellant in which it invited him to comment on unfavourable information the Department had received which did not support his application for a visa. The Department’s letter included the following passages:

On 16 August 2017, as part of the routine processing of your application, a Departmental Officer from the Australian High Commission in London conducted checks to verify your employment. During this process the Departmental Officer contacted your declared employer, Dimocart Italia, on the phone number you provided to the department as detailed above. The Departmental Officer was provided with the following information:

•    Mr Ferdinand Peraj is not currently employed by Dimocart Italia. The referee confirmed the length of employment as being about 10 years until Mr Peraj left on recreational leave. The referee stated that Mr Peraj went on holiday using his approved leave for 3 weeks, but did not state where he was going; referee declared that, being an Albanian national, the referee thought Mr Peraj would have just gone back to his home country to visit their family. The referee stated that Mr Peraj contacted the company to advise that he was not going to return from Australia. The referee asked Mr Peraj to submit his resignation, but Mr Peraj stated he could not due to his current location, and as such the company made Mr Peraj redundant.

•    The referee confirmed that the company is planning expansion, but stated that there was no proposal to Mr Peraj in relation to this.

•    Finally, the referee stated that Mr Peraj was not offered a promotion of any type.

The Departmental investigations identified that you do not have current employment in Italy as declared and that you do not have an offer of returning to your employer nor are you currently employed as declared. Additionally, I have concerns that your employer is not expecting you to return from Australia. The results of the Departmental investigations lead to concerns that you have provided information that is false or misleading in a material particular. Specifically, the information raises concerns about your motivation to obtain a student visa and to remain in Australia temporarily, and that you therefore may not meet 500.212 - the Genuine Temporary Entrant criteria.

It is a requirement for the grant of a Student (subclass 500) visa that the applicant satisfies Public Interest Criterion (PIC) 4020 contained in clause 4020 of Schedule 4 to the Migration Regulations 1994. Subclause 4020(1) requires that there is no evidence before the Minister that the applicant has given, or caused to be given, to the Minister, an officer, the Administrative Appeals 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:

•    the application for the visa; or

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

…

As there is evidence suggesting that you have provided, or caused to be provided, a bogus document or false or misleading information in relation to this visa application, you may fail to satisfy PIC 4020(1), with the result that this visa application may be refused.

You may provide comment on the information that is considered to be false or misleading or the document that is considered to be bogus …

9    In her Decision Record dated 3 October 2017, the delegate referred to this letter and noted that in response to the letter, on 11 September 2017 the appellant provided in Italian, with an English translation, a letter signed by Mr Di Molfetta (Mr Di Molfetta’s letter) and a letter from “Dimocart s.r.l Pieve Emanuele” (Mr Pieve’s letter). Mr Di Molfetta’s letter was as follows:

I the undersigned Di Molfetta Gianluigi legal representative of Dimocart s.r.l., other than confirming the absolute trust in Mr. Ferdinand Peraj’s abilities, I hereby confirm that the conversation I had with the Immigration Department occurred during a particularly complicated and stressful day, following some events.

I apology if some of my answers were inaccurate, and I am at your disposal for any further information.

10    It is clear then that it was Mr Di Molfetta who provided the information referred to in the Department’s letter dated 23 August 2017. In his letter, Mr Di Molfetta provides a limited explanation for some of his answers being inaccurate, but he does not identify which answers were inaccurate and the way in which they were inaccurate.

11    Mr Pieve’s letter was as follows:

This is to certify that the Company Dimocart srl di Pieve Emanuele with registered office in Fizzonasco, Milan, on Via Gobetti 33, hereby notifies Mr. Peraj Ferdinand, born in Shkoder Albania on 15/07/81, passport no. YB0408617

ITS WILLINGNESS

to continue their collaboration which ended in 2000.

The studies carried out in Australia will be useful for Peraj Ferdinand to improve his knowledge of the English Language in order to advance his professional career in view of an international expansion of the company.

It is not in dispute that the initial translation of Mr Pieve’s letter contained an error and it should have referred to the appellant’s employment commencing, not ending, in 2000.

12    On the material before the delegate, she found that the appellant had given information that was false or misleading in a material particular and that, accordingly, she was not satisfied that the appellant met Public Interest Criterion (PIC) 4020, subclause 4020(1). That meant that the appellant did not satisfy clause 500.217 in Schedule 2 of the Migration Regulations 1994 (Cth) which requires an applicant to satisfy, among other provisions, PIC 4020.

13    It is convenient at this stage to set out the relevant clauses in PIC 4020:

(1)    There is no evidence before the Minister that the applicant has given, or caused to be given, to the Minister, an officer, the Tribunal during the review of a Part 5 reviewable decision, 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.

(2)    The Minister is satisfied that during the period:

  (a)    starting 3 years before the application was made; and

(b)    ending when the Minister makes a decision to grant or refuse to grant the visa;

the applicant and each member of the family unit of the applicant has not been refused a visa because of a failure to satisfy the criteria in subclause (1).

…

(3)    To avoid doubt, subclauses (1) and (2) apply 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.

(4)    The Minister may waive the requirements of any or all of paragraphs (1)(a) or (b) and subclause (2) if satisfied that:

  (a)    compelling circumstances that affect the interests of Australia; or

(b)    compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen;

justify the granting of the visa.

(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:    For the definition of bogus document, see subsection 5(1) of the Act.

14    The appellant brought his application for the Tribunal to review the delegate’s decision on 19 October 2017.

15    Between the delegate’s decision and the decision of the Tribunal, the appellant provided to the Tribunal an unsigned statement of Mr Di Molfetta (Mr Di Molfetta’s statement). Mr Di Molfetta’s statement was as follows:

 1    I am the legal representative of Dimocart S.R.L.

 2    Ferdinand commenced his employment at Dimocart S.R.L. in October 2000. He was co-ordinating the workforce and supervising work in the company.

3    In August 2017, I received a call from the Immigration Department relating Ferdinand Peraj.

4    Without knowing that my answers could jeopardise Ferdinand’s student visa application, I answered the officer’s questions in an incriminating manner.

5    When I received the call from the Immigration Department, I was under a stressful moment. The call interrupted my train of thought. I was angry and wanted to end the call as soon as I could.

6    I did not wish to interrupt my train of thought and I did not think twice before I answered the officer from the Immigration Department. Therefore, when officer asked me if Ferdinand had an open job offer from Dimocart, I said no.

7    I now remember that Ferdinand and the management of Dimocart did have a conversation on advancing his studies in Australia. In view of an international expansion of the company, the management made a verbal offer to Ferdinand indicating that he could return to Dimocart to work upon completion of his studies in Australia.

8    I previously wrote a letter to confirm the intention of Dimocart in offering Ferdinand a position.

9    I apologise for my actions which caused a refusal to Ferdinand’s visa application.

The Decision of the Tribunal

16    The reasons of the Tribunal are brief. They were given orally at the conclusion of the hearing and in the form of an explanation to the appellant of the reasons the Tribunal has decided to affirm the delegate’s decision.

17    The relevant part of the written record of the Tribunal’s reasons is as follows:

5.    Your application was refused on 3 October 2017 because the delegate found you did not meet clause 500.217, which deals with what are known as Public Interest Criteria (PIC). One of those is PIC 4020, which states that:,

To satisfy this criterion there is no evidence before the Minister, or in this case the Tribunal, that the applicant has given or caused to be given a bogus document or information that is false or misleading in a material particular in relation to the application for the visa.

6.    In your case, in support of your visa application, you provided an employment history stating you have been employed by Dimocart Italia as a workman/coordinator, since October 2010.

7.    In your application, in response to the question: Has the applicant been offered a job at the completion of the course? You responded, “Yes.”

8.    Under the GTE heading you stated, “After 19 years of work in April, I proposed to my current employer a break. I wanted to travel and explore Australia a tourist, take my time to study English” You went on to say, “Staying here made me realise how important is this experience for me. For this reason I asked an extension from my work break to my employer. Finalised to study English, and get an English certificate. Since the company I work for is expanding abroad, my employer accepted my proposal. If I can significantly improve my English level, I could aspire to manage and coordinate, directly, workmen in international projects. When going back to Italy I will work in the same company”.

9.    A department official from the Australian High Commission in London contacted Mr Di Molfetta, the contact you provided at your employment, Dimocart Italia, to verify your employment, and the documents you provided.

10.    The verification process findings were that you were not currently employed by Dimocart Italia.

11.    Mr Di Molfetta advised you had gone on approved leave for three weeks. You had contacted the company and advised them you would not be returning explaining you were in Australia. You were asked to submit your resignation, but stated that you could not do so from Australia, and so the company made you redundant.

12.    Mr Di Molfetta confirmed the company planned expansion, but said there was no plan for you to be involved in that expansion. Mr Di Molfetta said you had not been offered a promotion of any type.

13.    Invited to comment on this potentially adverse information, you provided a document signed by Mr Di Molfetta, in which he claimed he had a conversation with a department officer, and apologised if some of his answers were inaccurate, stating it was during a particularly complicated and stressful day.

14.    A further document you provided was a letter from Dimocart notifying you of their willingness to continue your collaboration, which was incorrectly interpreted as having ended in 2000 when it should have been interpreted as commenced in 2000.

15.    The delegate was not satisfied with your response, and refused your application. You appealed to this Tribunal for review of that decision.

16.    The role of the Tribunal is to take a fresh look at your application, and to consider whether you satisfy clause 500.217, and whether you have provided information that is in breach of PIC 4020.

…

19.    In your case, in support of your application, you provided the documents that we referred to earlier about your employment. You subsequently provided an undated letter signed by Mr Di Molfetta, claiming the call from the department came at a stressful moment, and interrupted his train of thought. He stated that he was angry and wished to wind the call up as soon as he could. He did not wish to interrupt his train of thought, and stated he did not think twice before answering, which was why he said the company did not have a job offer open to you. He stated in the letter, “I know remember the third man at (sic) [now remember that Fernindand and] the management of Dimocart did have a conversation on advancing his studies in Australia. In view of the international expansion of the company, the management made a verbal offer to Ferdinand, indicating that he could return to Dimocart to work upon completion of his studies in Australia”.

20.    Evidence before the Tribunal indicates that Mr Di Molfetta was engaged in a substantial interview with the department officer, in which he provided detailed answers to questions, and from which there was no indication that he was keen to complete the interview.

21.    The Tribunal finds it implausible that when he became aware that your visa application was refused he now provides answers that directly contradict a number of statements he made to the officer. I give his written statement very little weight and prefer the evidence he gave to the officer over the telephone as being more believable.

22.    The Tribunal finds that in support of this student visa application you have provided evidence that was non-genuine, and that you have provided information that is false or misleading in a material particular, and therefore finds you do not satisfy PIC 4020.

The Decision of the Federal Circuit Court

18    The appellant was legally represented before the Federal Circuit Court and this Court. There was one ground of judicial review before the Federal Circuit Court and it was in the following terms:

1.    The decision of the Administrative Appeals Tribunal (“AAT”) was affected by jurisdictional error in that the AAT member failed to apply, or misapplied, public interest criterion 4020.

a.    The AAT found that I had provided evidence that is false or misleading. However, the member failed to establish or identify what document or evidence was false or misleading.

b.    There was no finding that the initial reference letter that was provided was bogus or involved an element of fraud. At no point has the genuineness of the original letter ever been investigated or put to Dinocart [sic] for comment.

c.    There was no finding that the information I included in my application form was not true and correct to the best of my knowledge, or that it involved an element of fraud.

19    The primary judge said that the appellant had made claims in his application that he was in current employment and that he had been offered a job and that there was a plan for him to return to work with that employer and that each of those claims were contradicted by Mr Di Molfetta in his telephone interview with the Departmental Officer (PJ reasons at [15]). His Honour said that the Tribunal was justified in finding that Mr Di Molfetta’s unsigned statement, which was a statement after Mr Di Molfetta was apparently aware of the consequences for the appellant of his statement, was implausible. His Honour said that it contradicted Mr Di Molfetta’s earlier statement. He said that Mr Di Molfetta did not in terms deny the record before the Tribunal of what he had said to the Departmental Officer. He simply said that he had made errors and that he now remembered a relevant conversation where the management of Dimocart had offered a job to the appellant. The primary judge said that it was not surprising in those circumstances that the Tribunal found Mr Di Molfetta’s subsequent explanation to be implausible because it “barely explains” how such an error could have been made (PJ reasons at [17]). The primary judge said that the explanation by Mr Di Molfetta of impatience, anger and forgetfulness did not appear to be compelling. The primary judge then said (PJ reasons at [17]):

17    … Of course, I am not a finder of fact but I say that because in my view the Tribunal’s reasoning on that was entirely open.

20    The primary judge noted that the Tribunal had concluded that the appellant had provided information that was false or misleading. In particular, he noted that the appellant had said that he was currently employed, and had been offered a job, and that he would return to employment with that employer and that even though, according to the primary judge, those concepts in themselves “do not sit together easily”, nevertheless, the information was material because it was an essential or necessary element of deciding whether the appellant was a genuine temporary entrant. The primary judge said that whether or not the appellant had a job in Italy was highly relevant to the question of whether or not he was likely to return once his Student visa (if granted) had expired (PJ reasons at [18]).

21    The primary judge turned to consider each particular of the single ground of review. First, the primary judge rejected the assertion that the Tribunal had found that the appellant had provided evidence that was false or misleading, but had failed to establish or identify the document or evidence that was false or misleading. The primary judge said that whilst the Tribunal did not make a finding that the documents provided by Mr Di Molfetta were bogus or contained false or misleading information, the false or misleading claims referred to by the Tribunal were made by the appellant himself and were in his application for a Student visa. He claimed that he was employed by an employer in Italy and that he had been offered a job when he returned to that employer (PJ reasons at [20]). The primary judge then said the following (PJ reasons at [21]):

I say that somewhat advisedly, because on a fair reading of the claim for the student visa, the applicant does not clearly distinguish between a claim that he is currently employed and a claim that he will be offered a job when he returns. On my reading of his document he claims both.

22    Secondly, with respect to the appellant’s assertion that there was no finding by the Tribunal that the initial reference letter was bogus or involved an element of fraud and that the genuineness of the original letter was never investigated or put to Dimocart for comment, the primary judge said, as he had in relation to the first particular, that it was true that there was no finding that the initial reference letter provided was bogus or involved an element of fraud and that the Tribunal did not make any finding about the letters from Mr Pieve or Mr Di Molfetta. The primary judge said that, in his view, this ground missed the point. As I understand it, the relevant point according to the primary judge, was whether the appellant had provided information that was false or misleading in a material particular (PJ reasons at [22]).

23    Finally, with respect to the appellant’s contention that there was no finding by the Tribunal that the information he had included in his application form was not true and correct to the best of his knowledge or that it involved an element of fraud, the primary judge said that this ground was intended to refer to Trivedi v Minister for Immigration and Border Protection [2014] FCAFC 42; (2014) 220 FCR 169 (Trivedi) “which requires that the false or misleading statement be purposefully false or that it involve an element of fraud or deception” (PJ reasons at [23]). The primary judge said that it was correct to say that the Tribunal had not made a direct finding to this effect (PJ reasons at [24]). However, he said that the Tribunal’s conclusion needed to be understood in the context of the forensic battleground in the case. The appellant at no point had said that he had been mistaken about whether he was employed by Dimocart or whether he was to be given a job by Dimocart when he returned to Italy. The appellant’s case was that Mr Di Molfetta was mistaken at the time he spoke to the Departmental Officer. Mr Di Molfetta provided a statement saying that he was mistaken and that what he had told the Departmental Officer was incorrect and that the truth was that the appellant was to be offered a job when he returned. The primary judge said that it was open to the Tribunal to conclude that Mr Di Molfetta’s statement was implausible, in other words, what Mr Di Molfetta was saying was not true. It followed that the claims made by the appellant were untrue and that it could be inferred that they were made knowingly and deliberately. The primary judge expressed the following conclusions (PJ reasons at [26]):

It was not put by the applicant that he was in error in the claims he made - on the contrary. In those circumstances, it appears to me implicit in the Tribunal’s reasoning that the applicant’s claims were purposefully false or, if not purposely false, then reckless as to their truth. In other words, there was an element of deception involved. In my view, that is an implicit finding and one that was open to the Tribunal.

24    The primary judge held that the single ground of review failed.

The Appeal

25    There is one ground of appeal to this Court and it is as follows:

The Federal Circuit Court erred in holding that the decision of the Administrative Appeals Tribunal was not affected by jurisdictional error, when it should have held that:

a.    the Tribunal constructively failed to exercise its jurisdiction to review the decision in relation to PIC 4020 because the Tribunal was required to, but did not:

i.    identify the particular information that it found to have been provided that was said to be false or misleading in a material particular; and/or

ii.    identify or engage with the issue of whether any information found to be false or misleading was purposefully false or misleading; and/or

iii.    identify the material particular(s) in which such information was false or misleading; and/or

iv.    identify or engage with the issue of how the information that was considered false or misleading was relevant to a material particular; and/or

v.    consider, as required by PIC 4020(5)(a), whether the information was false or misleading at the time it was given and make findings as to either the true position or the applicant’s state of mind at the time when the information was provided; and/or

b.    the Tribunal failed to identify any, or alternatively adequate, reasons for giving the written statement of Mr (sic) “little weight”, and for preferring his “telephone evidence” as “more believable”, in circumstances where it had only a brief note of the telephone conversation and the note did not expressly or unambiguously contradict the claims of the applicant.

Analysis

26    The jurisdictional error alleged in the Court below was a failure by the Tribunal to apply PIC 4020 or a misapplication of the criterion. In the Notice of appeal to this Court, the appellant advanced the jurisdictional error in terms of a failure to exercise jurisdiction following a failure to engage with the elements of PIC 4020. Another way of describing this type of error is that there was a failure by the Tribunal to give “proper, genuine and realistic consideration to the merits of the case” (Khan v Minister for Immigration and Ethnic Affairs [1987] FCA 713; (1987) 14 ALD 291 at 292) or, as it is sometimes put, the administrative decision-maker failed to bring an active intellectual engagement to the elements of the claim.

27    In the appellant’s written reply submissions and oral submissions on the appeal, he identified an error that is not identified in his Notice of appeal to this Court and is to the effect that, in making its assessment under PIC 4020, the Tribunal misunderstood the state of mind it was required to hold in relation to the criterion. The appellant submits that what the Tribunal did was to consider whether it was satisfied that there was no evidence of the matters identified in PIC 4020(1) whereas, the appellant submits that the correct test, with respect to the element in PIC 4020(1) which refers to information being “false or misleading in a material particular”, requires the Tribunal to be reasonably satisfied of that element. I should say this argument, insofar as it is put as a freestanding jurisdictional error, faces the difficulty that it was not raised in the Court below. Nevertheless, insofar as it is put as a reason for the errors asserted by the appellant in the Notice of appeal to this Court, it seems to me that the argument may be put. Later in the reasons, I will outline the substance of this argument, but, for reasons I will give, it is not necessary for me to address it. In any event, as I will explain, the factual premise of the argument is not made out.

28    It is convenient for me to begin my analysis, including a summary of the parties’ key submissions, by reference to the elements of PIC 4020.

  1.    The appellant gives information to the Minister or the Tribunal.

29    There is no dispute that the appellant provided the Minister and the Tribunal with the information identified by the Tribunal in paragraphs 6, 7 and 8 of its reasons. That is the information relied on by the Tribunal.

  2.    The information is false or misleading.

30    The appellant submits that the Tribunal did not identify the respects in which the particular information which it found to be false or misleading. It is correct to say that, although the Tribunal identified information, it did not expressly articulate how that information was false or misleading. If one looks at the Tribunal’s reasons (set out above at [17]), it identifies information in paragraphs 6, 7 and 8 and makes a finding in paragraph 22 that the appellant had provided false or misleading information, but it does not identify the information which is false or misleading, or how particular information is false or misleading. This is in contrast to the primary judge’s approach.

31    The appellant submits that this is no idle point because there were, in fact, a number of respects in which the information provided by the appellant and the version of the employer preferred by the Tribunal were consistent. He identified the following matters:

(1)    the appellant had been employed by the employer;

(2)    the appellant had initially requested a short period of leave;

(3)    the employer’s business was expanding;

(4)    the appellant did not say that he had been given a promotion, but only that he aspired to a promotion; and

(5)    the preferred version of the employer that the appellant had contacted the employer and had advised that he would not be returning and that he was then made redundant by the employer was not necessarily inconsistent with the appellant’s information, “in the absence of a finding as to whether this relates to a permanent state of affairs as opposed to the appellant not returning as initially proposed after the three week break but there being some intention to return in the future”.

32    As I have said, the primary judge’s approach was different from that of the Tribunal. He expressly identified the three respects in which the appellant’s information was false or misleading — that the appellant was in current employment, that he had been offered a job and that there was a plan for him to return to work with that employer. The appellant submits that those three matters were not findings of the Tribunal, but the primary judge’s assessment of the evidence.

33    The appellant submits that the failure of the Tribunal to address the respects in which the information he had provided was false or misleading meant that, not only had it not properly addressed this element, but also that it had not properly addressed two further elements of PIC 4020, being those identified in 3 and 4 below. The appellant submits that, in fact, the Tribunal could not address those elements without first clearly identifying the respects in which the information provided by the appellant was false or misleading.

34    The appellant submits that this error by the Tribunal was material because it could have affected the Tribunal’s assessment of what, in fact, was contradictory or inconsistent between the information he provided and the preferred version of the employer.

35    In response, the Minister submits that the Tribunal did identify the information which was false or misleading in paragraphs 6, 7 and 8 of its reasons. The Minister further submits that in assessing the Tribunal’s reasons, it is important to bear in mind the “forensic battleground” before the Tribunal. As to the importance of this matter and the general context of the review, the Minister points to cases which have held that the Tribunal’s decision must be viewed in the context in which it was made (Faruque v Minister for Immigration and Border Protection [2015] FCA 1198 at [26] per Katzmann J; Kumar v Minister for Immigration and Border Protection [2020] FCAFC 16; (2020) 274 FCR 646 at [7] per Logan J). Further, the Minister points to the following observations of Gleeson CJ in Appellant S395/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71; (2003) 216 CLR 473 (at [1]):

… Proceedings before the Tribunal are not adversarial; and issues are not defined by pleadings, or any analogous process. Even so, this Court has insisted that, on judicial review, a decision of the Tribunal must be considered in the light of the basis upon which the application was made, not upon an entirely different basis which may occur to an applicant, or an applicant’s lawyers, at some later stage in the process.

(citation omitted.)

36    The forensic battleground or general context in this case included the fact that the appellant never claimed that he was in error or mistaken about his version of events. His case before the Tribunal was that Mr Di Molfetta was mistaken in what he told the Departmental Officer and that the Tribunal should draw that conclusion.

37    The Minister’s identification of the Tribunal’s findings of the respects in which the information was false or misleading was information to the effect that he was employed by an employer in Italy, that he continued to be employed by that employer and that he had been offered a job by the same employer when he returned to Italy. The Minister submits that the Tribunal’s finding that the information provided by the appellant was false or misleading is contained in paragraph 22 of its reasons and that the primary judge’s characterisation of the respects in which the information was false or misleading is correct (PJ reasons at [15]).

38    The Minister submits that the information was clearly false or misleading and he refers to the following: (1) the appellant’s statement that he was in current employment as against the company’s statement that the appellant had been made redundant; (2) the appellant’s statement that he had been offered a job at the completion of his course as against the employer’s version that the appellant had said he was not returning from Australia; and (3) the appellant’s statement that he had been offered a job as part of the company’s expansion plans as against the employer’s statement that there was no proposal for the appellant to be included in the company’s expansion plans.

  3.    The false or misleading information must have the necessary quality of purposeful falsity.

39    The information must not only be false or misleading, but it must also be shown that it is known to be false or misleading. Although this is not necessarily knowledge the appellant must have, it is a necessary element. In this case, the only relevant information was given by the appellant and it must be shown that he had knowledge that the information was false or misleading (Trivedi)). The appellant submits that the Tribunal’s failure to identify the respects in which the appellant’s information was false or misleading meant that the Tribunal could not properly address the issue of purposeful falsity. When the Tribunal’s failure is coupled with the matters identified above (at [31]), the Tribunal was simply not in a position to decide whether an inference of knowledge should be drawn.

40    The appellant submits that, in any event, the Tribunal did not address this issue and that nowhere in the Tribunal’s reasons is the issue identified.

41    The appellant submits that the primary judge erred in concluding that it was implicit in the Tribunal’s reasons that the appellant’s claims were purposefully false, or if not purposefully false, then made recklessly as to their truth. The fact that the appellant did not claim that his information was in error or mistaken does not enable that conclusion to be drawn.

42    The appellant submits that the Tribunal’s failure to properly identify the alleged contradictions or inconsistencies between the information provided by the appellant and the version of the employer preferred by the Tribunal is material because it might have affected the Tribunal’s conclusions as to knowledge.

43    In response, the Minister submits that the Tribunal did not err when the forensic battleground or general context in which the review was conducted is considered.

44    The Minister also referred to the well-known statement of the High Court in Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 272 to the effect that the reasons of an administrative decision-maker are not to be construed minutely and finely with an eye keenly attuned to the perception of error. The Minister said that there was never any submission by the appellant that if the account of the telephone call between the Departmental Officer and Mr Di Molfetta was accepted, the appellant was in some way mistaken or in error. In this context, the Minister referred to the letter from the appellant’s lawyers to the Tribunal dated 11 July 2018 where they point out that the information provided by the appellant is consistent with Mr Pieve’s letter.

  4.    The information must be false or misleading at the time it is given.

45    The appellant submits that the Tribunal’s failure to identify the respects in which the information provided by the appellant was false or misleading meant that the Tribunal could not properly engage with the issue as to whether the information was false or misleading with knowledge at the time it was given. The appellant submits that the decision-maker must identify with precision the information provisionally characterised as false or misleading and then determine whether it bore that character with the requisite knowledge at the time it was given.

46    The Minister submits that the appellant’s submission goes nowhere because this element was simply not an issue before the Tribunal. In any event, there can be no doubt that the issue must be resolved against the appellant. He arrived in Australia in April 2017 and his application was made in June 2017. The three week period of leave had well and truly expired by the time he came to make the statements in his application.

47    Insofar as this complaint is put forward as a freestanding error, it must be rejected for the reasons advanced by the Minister.

  5.    The necessary state of mind of the decision-maker.

48    To satisfy PIC 4020, the decision-maker must reach a state of mind as to the matters in PIC 4020(1) and that subclause refers to there being no evidence before the Minister of the relevant matters.

49    The appellant submits that there are three elements in PIC 4020(1) and a different state of mind applies to each. As I understand it, he puts the matter in the following way:

(1)    there must be no evidence before the Minister that a document or information said to fall within the clause has been provided to one of the entities identified in the clause;

(2)    PIC 4020 is not satisfied in the case of bogus documents where the decision-maker reasonably suspects the document is a bogus document;

(3)    PIC 4020 is not satisfied in the case of information where the decision-maker is reasonably satisfied that it is false or misleading in a material particular. The appellant points to the fact that the false or misleading limb, unlike the bogus document limb, has the requirement that the information have that character in a material particular in relation to the application for the visa or a visa that the applicant held in the period 12 months before the application was made.

50    The appellant submits that these propositions as to the interpretation of PIC 4020(1) follow from the definition of “bogus document” in s 5 of the Migration Act 1958 (Cth) and the decisions in Salopal v Minister for Immigration and Border Protection [2018] FCA 1308 (Salopal) and Sun v Minister for Immigration and Border Protection [2016] FCAFC 52; (2016) 243 FCR 220 at [28], [40] and [46].

51    The appellant submits that the Tribunal assessed both the limb relating to the giving of information and the limb relating to its character as false or misleading by reference to the lowest level of satisfaction (i.e., there is no evidence that) and that that was an error of law. The appellant submits that the Tribunal’s approach can be seen in paragraph 5 of its reasons.

52    In support of his submission as to the proper construction of PIC 4020(1), the appellant relies heavily on the decision of Colvin J in Salopal.

53    In Salopal, the issue concerned the bogus document limb of PIC 4020(1). The document alleged to be a bogus document was a Trades Recognition skills assessment. It was said to be a bogus document because the Minister reasonably suspected that it was a document that was obtained because of a false or misleading statement made to Trades Recognition Australia that the applicant had worked 900 hours at Pastry Art Designs. Colvin J dealt with the reference to “no evidence” at [83]–[96]. He began by setting out the terms of PIC 4020(1). He noted the use of the term “evidence” rather than “information” in PIC 4020(1). He said (at [84]) that the use of the term “evidence”:

… means that the requirement is directed to instances where there is material before the Minister (or the Tribunal on review) that is sufficiently probative to lead to the conclusion that a bogus document has been given in support of the visa application: Sun v Minister for Immigration and Border Protection [2016] FCAFC 52; (2016) 243 FCR 220 at [45]. To similar effect is Verma v Minister for Immigration and Border Protection [2018] FCAFC 87 where at [37] the Court said as to a decision concerning PIC 4020(1) that the Tribunal ‘only needed to be satisfied that there was some probative evidence that the appellant had provided a bogus document’.

54    His Honour noted that an issue had arisen before him as to whether the “no evidence” aspect of PIC 4020(1) applied only to the “given or cause to be given” limb of the requirement or whether it also applied to the “bogus document” limb of the clause. Colvin J noted the definition of “bogus document” and that it required that the Minister reasonably suspect that the document have one of the characteristics identified in (a), (b) or (c). His Honour concluded (at [86]):

… A requirement that there be no evidence of a state of suspicion which is itself to be formed in the course of the determination to be made by the person to whom an absence of evidence of that state of suspicion must be demonstrated would have a Kafkaesque quality.    

55    Importantly, his Honour said the following (at [87]):

Also relevant to the construction of the scope of the 'no evidence' language in PIC 4020(1) is the fact that it also applies in cases where there is an issue whether information that is false or misleading in a material particular has been given in relation to the application for the visa or a visa held by the applicant in the previous 12 months. If the 'no evidence' terminology applies to both the question whether the applicant has given or caused to be given the relevant information as well as to whether that information is false or misleading in a material particular then PIC 4020(1) would not be met where there was some probative evidence that the information was false or misleading irrespective of whether the Tribunal, on evaluating all of the information, did not reasonably suspect that the information was false or misleading. It would reduce the inquiry to a question whether there was some probative evidence on the issue rather than an evaluation whether the evidence led to a reasonable suspicion that the document had been obtained because of a false or misleading statement.

56    His Honour then considered the authorities and he concluded that he could discern no statement in the cases in which a view is expressed to the effect that the “no evidence” aspect of PIC 4020(1) extended beyond the requirement that the visa applicant has been the one who has given the document to the relevant party for the purposes of a visa application.

57    The appellant’s argument about the required state of mind for the purposes of PIC 4020(1) may have been partially responsive to an argument advanced by the Minister in his written submissions to the effect that PIC 4020 was not satisfied if there was “even a skerrick of evidence that the appellant had provided information of the relevant character” (see written submissions at [21] and [22]).

58    The Minister submits that a conclusion that PIC 4020 was not satisfied unless the false or misleading character of the information was established to the reasonable satisfaction of the decision-maker is inconsistent with the following decisions of this Court: Faruque at [26] and [27] per Katzmann J; Fati v Minister for Home Affairs [2019] FCA 52 at [8] per Charlesworth J; and CHZ19 v Minister for Home Affairs [2019] FCA 914 at [86]–[87] per Colvin J.

59    It is not necessary for me to address this argument because jurisdictional error has been established by reference to other grounds. In any event, the argument does not get to first base because I think the Tribunal made its decision by reference to a state of reasonable satisfaction. In those circumstances, the point of law or construction concerning PIC 4020 does not arise.

  6.    Other errors.

60    The appellant submits that the Tribunal made a number of other errors. It is not entirely clear whether the alleged errors were said to be jurisdictional errors in their own right, or were said to be evidence of the Tribunal’s failure to engage with the issues. In any event, two of the alleged errors were not errors and the third was not material.

61    The first alleged error was said to be a failure by the Tribunal to engage with a difference between the issues before the delegate and the issues before it. This matter arose in the following way. Mr Pieve’s letter referred to the “Collaboration” between the appellant and his employer ending in 2000. The telephone conversation with Mr Di Molfetta referred to the appellant’s employment ending in 2017. In reaching her conclusions, the delegate took into account this inconsistency. As I have said, it is the case that there had been a translation error in the translation of Mr Pieve’s letter. This was recognised by the Tribunal. The translation error played no part in the Tribunal’s decision and it was not the Tribunal’s role to review the delegate’s decision. Its role was to reach the correct and preferable decision on the information before it. There was no error in the Tribunal’s approach.

62    The second alleged error was an error by the Tribunal in the chronology. In its reasons, the Tribunal states that Mr Di Molfetta provided answers which contradicted the information he was said to have given in the telephone call after the appellant’s visa application had been refused. The true position is that Mr Di Molfetta’s letter was provided to the delegate after the unfavourable information letter, but before the delegate had made her decision. The more detailed statement of Mr Di Molfetta was provided after the delegate had made her decision. The error is unlikely, in my view, to have played any material part in the Tribunal’s reasoning. Further, it does not mean that the finding was irrational or illogical as asserted by the appellant.

63    The third alleged error was said to be the Tribunal’s characterisation of the telephone call with Mr Di Molfetta. The Tribunal appears to have adopted a characterisation of that telephone call solely on the basis of the delegate’s summary in the unfavourable information letter. That was an insufficient basis, so the appellant submits, to conclude that the interview was substantial, that the answers provided were detailed and that there was no indication that he was keen to complete the interview. This submission must be rejected. First, the context is important in this area. Mr Di Molfetta did not later say that the report of what he had said to the Departmental Officer was incorrect. On the contrary, he apologised and sought to explain why he had said what he did. Secondly, the challenge is, in reality, a request for merits review which is not permissible on an application for judicial review. Finally, insofar as this is an allegation of a jurisdictional error in its own right, it is not a matter that was raised in the Federal Circuit Court.

  7.    Ulterior purpose/utility

64    Before the primary judge, the Minister submitted that the Court should refuse relief in the exercise of its discretion because it should infer that the proceedings had been brought for an ulterior purpose. The ulterior purpose was the purpose of extending the appellant’s residence in Australia for reasons unrelated to the educational purpose for which he sought a visa.

65    The matters upon which the Minister relied in support of these submissions were as follows. The appellant applied for a visa to undertake an English course before returning to Italy to be reunited with his family. He obtained such a qualification in May 2018. In those circumstances, and in the event that he established jurisdictional error, the Court should exercise its discretion not to grant the relief the appellant seeks in his judicial review application. The appellant’s submission suggests that he wanted to undertake a second English course. However, there is no evidence before the Court to indicate that the appellant’s current Bridging visa has prevented him from studying in the 22 months since he finished his first English course.

66    These submissions were made to the primary judge, but it is not a matter that his Honour addressed. It was not necessary for him to do so. The Minister did not file a Notice of contention. However, he repeated the submission in his written submissions to this Court. He submitted that the appellant had applied for a visa to study an English course which he began studying in July 2017 and that he would then return to Italy. He has now been in Australia for far longer than the Student visa would have permitted if it had been granted. There is no evidence that the appellant has been studying and completed the course whilst he awaited the hearing of his judicial review application. The Court should infer that the judicial review proceedings have been brought for an ulterior purpose, namely, to extend the appellant’s residence in Australia for reasons unrelated to the purpose for which he sought a visa. The Minister submits that the argument now has “even more force” because the three year visa application bar imposed by PIC 4020(2) as a result of the delegate’s adverse PIC 4020(1) finding, will expire on the day after the appeal is heard (Prodduturi v Minister for Immigration and Border Protection [2015] FCAFC 5; (2015) 144 ALD 243 at [8]).

67    In oral submissions before this Court, the Minister withdrew the allegation that the proceeding was brought for an ulterior purpose and put his submission that the Court should refuse relief in the exercise of its discretion on the basis of a lack of utility. In other words, even if a jurisdictional error is found, relief should be refused on the basis that it lacks utility. The appellant’s counsel put the matter in the following terms:

… there can be no realistic suggestion that we are here today, not to challenge a PIC4020 finding, but because the applicant’s desire to undertake the three-month introductory English course, for which he applied for the Visa over three years ago, remains unmet. That suggestion has not been made. There’s no evidence about it. In the passage of time that has flowed since the delegate’s decision, he could have done it a dozen times, but more importantly there’s no evidence that he could not do it, that he had not done it. As such, the court finds itself in a state where it cannot be satisfied that the appeal has utility.

68    A little later the Minister’s counsel said:

… There’s no suggestion that he hasn’t done the course, or that he has some desire to do some other course. The evidential basis upon which you will make that finding is that he says he wants to do a three-month English course and then get back to the job he dearly desires, at Dimocart Italia. Here we are, three and a half years later, your Honour — so I don’t know.

69    I would not entertain the argument about utility. The ulterior purpose argument was raised before the Federal Circuit Court, but the primary judge did not deal with it. The Minister did not file a Notice of contention and the argument was not pursued in this Court. The lack of utility argument was raised in oral submissions by the Minister. It was put on the basis that there was a lack of evidence from the appellant of a desire to do another course. An argument put on that basis should be the subject of proper notice (e.g., a Notice of contention) in order to ensure procedural fairness and that has not occurred.

70    I have dealt with the matters in 1, 4, 5, 6 and 7 above, leaving for consideration 2 and 3. In my opinion, with respect to the matters in those paragraphs, the Authority did not give proper, genuine and realistic consideration to the application of PIC 4020 and, as a result, constructively failed to exercise the jurisdiction.

71    The Tribunal was required to identify, not only the information which was provided to the delegate and the Tribunal, but also the precise respects in which that information was false or misleading. That was the starting point in this case for the proper application of PIC 4020. The Tribunal did not do that. Even selecting parts of the information, as the Tribunal did, does not meet the requirement even when that selection is coupled with a conclusion expressed in terms of PIC 4020. In his reasons, the primary judge identified three respects in which the information was false or misleading. Those conclusions as to the respects in which the information was false or misleading were no doubt open on the evidence, but with respect to the primary judge, the conclusions were his conclusions, not conclusions or findings made by the Tribunal. In the ordinary case at least, it is for the administrative decision-maker to make the necessary findings, not for the Court on judicial review.

72    The next failure is more significant and, to my mind, decisive of the conclusion that the Tribunal did not give proper, genuine and realistic consideration to PIC 4020. Knowledge of the false or misleading nature of the information is an element of the criterion. The Tribunal did not make an express finding about the matter. More than that, it did not identify knowledge as a requirement. The primary judge held that a finding of knowledge was implicit in the Tribunal’s reasons. With respect, the difficulty with that approach in this case is that the Tribunal said nothing in its reasons to indicate that it was aware of the requirement. The forensic battleground and general context may suggest in this case that such a finding would be relatively easy to make, but I am unable to see how, if the Tribunal says nothing to indicate that it was aware of the requirement, a conclusion can be drawn that the Tribunal made an implicit finding of knowledge.

73    As far as materiality is concerned, the prospects of a different result following a review without jurisdictional error appear slim, but I am not prepared to say that they are non-existent.

74    These conclusions are sufficient to lead to a conclusion that the Tribunal’s decision was affected by jurisdictional error.

Conclusions

75    The appeal must be allowed and the orders made by the Federal Circuit Court on 16 March 2020 must be set aside. In place of those orders, there must be an order that writs of certiorari and mandamus be issued to the second respondent quashing the decision made on 7 August 2018 and remitting the matter to be determined according to law. I will hear the parties on the costs of the application for judicial review to the Federal Circuit Court and the costs of the appeal to this Court.

Associate:    

Dated:    10 March 2021