Federal Court of Australia

Lhamo v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCA 1167

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

2.    The appellants are to pay the first respondent's costs fixed in the sum of $7,241.

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

REASONS FOR JUDGMENT

BANKS-SMITH J:

1    This is an appeal from a decision of the Federal Circuit and Family Court of Australia (FCFCOA) dismissing the appellants' application for judicial review of a decision of the Administrative Appeals Tribunal. The Tribunal had affirmed the decision of a delegate of the Minister to refuse to grant the first-named appellant, Ms Yezer Lhamo, a student (temporary) (class TU) student (subclass 500) visa. The second-named appellant, Mr Jambay Yeshi, is Ms Lhamo's husband and was included in the visa application as a dependant applicant.

Criteria for student visa

2    Section 65(1) of the Migration Act 1958 (Cth) empowers the Minister to grant or refuse to grant a visa after considering a valid application for a visa and if satisfied that certain criteria are met. In the case of a student visa, criteria are relevantly prescribed by cl 500 of Schedule 2 of the Migration Regulations 1994 (Cth).

3    Clause 500.2 of Schedule 2 provides that there are certain primary criteria which must be met by at least one member of a family unit. The notes explain that each of the criteria must be met at the time a decision is made on the application.

Primary criteria cl 500.217

4    Clause 500.217 sets out one of those criteria, being that the applicant must satisfy a list of 'public interest criteria'. Such criteria are set out in Schedule 4 of the Migration Regulations.

5    Relevantly, one of the criteria listed in cl 500.217 is public interest criterion (PIC) 4020. In summary, PIC 4020(1) and (5) require that there be no evidence before the delegate that the appellant had given, or caused to be given, information that was false or misleading in a visa application and where the information is relevant to any of the criteria the Minister may consider when making a decision on an application.

PIC 4020

6    The criterion set out in PIC 4020 is that:

(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.

The allegedly false or misleading information in this case

7    Ms Lhamo is a citizen of Bhutan. Both appellants arrived in Australia in February 2016 as holders of a student visa granted in January 2016.

8    On 13 March 2018 Ms Lhamo applied for another visa proposing to study a Certificate IV of Commercial Cookery and a Diploma of Hospitality Management that had a final course end date of 5 October 2018.

9    In that visa application form, Ms Lhamo gave the following responses to relevant questions:

Has the applicant, or any other person included in this application, ever had an application for entry or further stay in Australia or any other country refused, or had a visa cancelled?

No.

…

Warning: Giving false or misleading information is a serious offence.

The applicants declare that they: …

Have provided complete and correct information in every detail on this form, and on any attachments to it.

Yes.

10    I will refer to the answer 'no' recorded in the above extract as the impugned answer.

11    According to Department records, Ms Lhamo had applied for a student (subclass 573) visa on 1 September 2014 which had been refused. Further, Mr Yeshi had previously applied for a student (subclass 572) visa for Australia as a dependant applicant on 29 November 2013 which had been refused. He had also applied previously for a student (subclass 573) visa for Australia as a dependent applicant on 1 September 2014 which had been refused.

12    The Department then proceeded on the basis that it suspected that Ms Lhamo had provided information that was false or misleading in a material particular, as that phrase is used in PIC 4020(1). The Department invited Ms Lhamo to comment on her answers given in the visa application and informed her that it could impact on whether the PIC 4020 criteria were satisfied.

13    I note that as to Mr Yeshi, similar provisions applied. Relevantly, cl 500.3 of Schedule 2 of the Migration Regulations set out requirements by way of secondary criteria that applied in the case of an applicant who was the member of a family unit of a person who satisfies the primary criteria. Under cl 500.317(1) of Schedule 2 it was necessary that Mr Yeshi also satisfy PIC 4020.

14    In a letter from the appellants to the Department responding to the invitation, the appellants stated the following and provided evidence of their previous visa history (included without correction):

We, Yezer Lhamo and Jambay Yeshi, are writing this letter to confirm that we received letter from immigration in regards to adverse information received by department on our previous refusals which were not mentioned in current visa application.

1.    We acknowledge and regret for negligence and carelessness practiced while filling the visa application. We have NO intentions to hide any information. We simply answered the questions but correct response been over sighted due to lack of presence of mind.

2.    I missed to mention previous visa refusal Fortuitously as we misunderstood the questions. Our previous visa has been already granted. Kindly note we got confused that our refusal history is before the grant, which may not have a connection with the current application.

3.    We were under extreme pressure to apply visa and was dealing with loads of information in regards to the application. We understand our responsibility but failed to act appropriately in terms of providing the accurate answers.

We again confirm our disappointment on this particular event that is been triggered due to incorrect information passed on to the honourable visa officer. There is no motive to purposely conceal any information related to out past and present.

The previous history is:

Yezer Lhamo - Visa refusal on 19 November 2014 under file number: S14/1472

Jambay Yeshi - Visa refusal on 19 November 2014 under file number: S14/1472

Visa refusal on 1 April 2014 under file number: S13/111

Authorities - 'false or misleading' in the requisite sense

15    The meaning of 'false or misleading' for the purpose of PIC 4020(1) and (5) was considered by the Full Court in Trivedi v Minister for Immigration and Border Protection [2014] FCAFC 42; (2014) 220 FCR 169. The Full Court in that case concluded that PIC 4020(1) refers to information that is false in the sense of being purposely untrue; but it is not necessary to conclude that a visa applicant is aware that information is purposely untrue. Relevantly, Buchanan J said (Allsop CJ and Rangiah J agreeing):

[32]    It is apparent from the terms of PIC 4020 that it addressed the problem of attempts to work a fraud or deception on the assessment of claims for a visa. That is also evident from the fact that PIC 4020 states a 'public interest' criterion, from the narrow and exceptional circumstances necessary to waive its requirements and, more generally, from the serious consequences that follow from its application. I would not infer any apparent intention to disqualify a visa applicant who could explain an innocent mistake in a document or information provided by them. PIC 4020 is not directed, in my view, to innocent, unintended or accidental matters. However, different questions arise when information or documents provided in support of an application are revealed as false, in the purposely untrue sense of that term.

16    Trivedi has been applied on numerous occasions, including in Patel v Minister for Immigration and Border Protection [2015] FCAFC 22 at [7] (Buchanan J), [32] (Flick J, Edmonds J agreeing); Sun v Minister for Immigration and Border Protection [2016] FCAFC 52; (2016) 243 FCR 220 at [44] (Flick and Rangiah JJ); and more recently was referred to in Chen v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 41; (2022) 288 FCR 218 at [18].

Delegate's decision

17    On 26 June 2018 the delegate refused to grant the visas the subject of the 13 March 2018 application stating that Ms Lhamo did not satisfy cl 500.217, and specifically PIC 4020(1). Similarly, the delegate found that Mr Yeshi did not satisfy cl 500.317, and specifically PIC 4020(1). The delegate was also not satisfied that there were grounds to justify the waiver of PIC 4020(1) under PIC 4020(4) with respect to either Ms Lhamo or Mr Yeshi. The delegate provided a decision record.

Before the Tribunal

18    On 16 July 2018 the appellants lodged an application for review by the Tribunal. Ms Lhamo attached to this application confirmations of enrolment for a Diploma of Hospitality Management and a Bachelor of Business with the final course end date of 5 November 2021.

19    On 6 July 2020 the Tribunal invited the appellants to appear before it for a telephone hearing. That invitation mentioned that the Tribunal had 'considered the material before us but we are unable to make a favourable decision on this information alone'.

20    The Tribunal also invited the appellants to provide certain information in writing by 20 July 2020: whether they gave a bogus document or information that was false or misleading for a visa application; whether they had visas refused in the past because of a failure to satisfy PIC 4020; and whether there are compassionate and compelling circumstances that can justify the grant of the visa and therefore waive the requirements in PIC 4020. The information sought clearly related to the potential consideration of PIC 4020, and a copy of that criterion was included with the invitation.

21    On 17 July 2020 the appellants' appointed migration agent responded to the invitation by way of two sets of submissions. In the first, Ms Lhamo explained her personal hardships, bereavement due to a family member's suicide, and that the appellants had 'no motive to purposely conceal any information related to our past and present travel history'. In the second submissions, the migration agent identified that the Department had decided that cl 500.217 was not satisfied, and characterised the conduct by Ms Lhamo as 'an oversight', a 'genuine human error' that was not false and misleading within the meaning of PIC 4020(1). Additionally, the migration agent stated that in issue was whether Ms Lhamo provided misleading information to satisfy the 'genuine temporary entrant' criteria.

22    The appellants participated in the hearing before the Tribunal.

23    Ms Lhamo accepted before the Tribunal that she had provided the impugned answer in her application, but contended that the answer did not constitute a failure to meet the requirements of PIC 4020 because it was not the result of a purposeful falsity: it was said to be unintentional, albeit negligent, and had resulted from Ms Lhamo's misunderstanding the question. Therefore, it was submitted, the impugned answer 'no' was not information that was false or misleading, as defined in PIC 4020(5) because the information was not a purposeful falsity, referring to the use of that phrase in Trivedi.

24    On 30 July 2020 the Tribunal affirmed the decision of the delegate not to grant the appellants the visas and published reasons. The Tribunal in its reasons explained the operation of PIC 4020 and the meaning of 'false and misleading' information in its requisite sense, and also considered the circumstances relied upon by Ms Lhamo to explain her conduct. Although lengthy, the following extracts reveal the reasoning of the Tribunal:

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

11.    There was no dispute that the applicant gave a false answer to a question in the application she made for the Student visa. The visa application also applied to Mr Jambay Yeshi who was included in the application as an accompanying member of the applicant's family unit. The question and answer in the visa application that is of concern is this: 'Has the applicant, or any person included in this application, ever had an application for entry or further state in Australia or any other country refused, or had a visa cancelled?' The applicant's answer to that question was 'No'.

…

13.    In substance the applicant accepted she was aware the visa refusals had occurred and that she failed to declare them in the relevant section of the Student visa application that related to the visa history of both the applicant and any person included in the application, namely Mr Jambay Yeshi.

…

18.    The first stressor relied upon by the applicant revolved around the birth of her first child on 17 June 2017. The applicant was expecting her mother to spend time in Australia to assist her to manage the new baby. On 9 May 2017 the Department refused to grant a visa to the applicant's mother. The visa refusal and managing the new baby caused the applicant to feel emotionally and mentally disturbed, and she found it difficult to managing her new baby without the assistance of her mother.

19.    The second stressor was the tragic news that the applicant's sister died prematurely. On 4 June 2017 the applicant was informed that her sister - with whom she enjoyed a close relationship - committed suicide. This news added to the burden of the applicant's pregnancy and caused great distress to the applicant. Subsequently, the applicant applied again for a visa to enable her mother to spend time with her and her baby in Australia. The application was made on 19 July 27; it was successful, and the applicant's mother arrived in Australia on 12 August 2017.

20.    The applicant informed the Tribunal the presence of her mother in Australia caused her to feel relieved to the extent that: 'finally it seemed that life is back on track with many responsibilities to take on ahead, as mother and as student. This further help me to feel enthusiastic with regard to my goals to achieve and complete the purpose of getting education from Australia.' In the absence of medical evidence, such as evidence of the applicant attending counselling, or other credible evidence independent of the applicant and her spouse, that the applicant in August 2017 and thereafter was unable to apply her mind to managing the day-to-day affairs of her life, the Tribunal infers from the applicant's quoted written statement, that after her mother arrived in Australia in August 2017, the applicant was enthusiastic about, and focused upon her goals and had sufficient presence of mind to feel that way, and that she was able to carry on accordingly. The evidence given by the applicant and her spouse does not satisfy the Tribunal that the applicant's stated feelings of enthusiasm to achieve her goals and complete her education in Australia, should not be taken literally by the Tribunal and treated as evidence that the applicant was unable to consistently focus her mind on and properly address matters of importance after her mother arrived in Australia in August 2017.

21.    The evidence satisfies the Tribunal that after the applicant's mother arrived in Australia in August 2017, the applicant was enthusiastic about and focused upon achieving her goals, and continuing her studies; and, the evidence does not satisfy the Tribunal that the applicant was unable to focus on and manage the important aspects of her day to day life.

22.    Consistent with the Tribunal's view that from August 2017 the applicant had sufficient presence of mind to be able to competently attend what was important to her, the applicant travelled to her home country Bhutan, with her mother and baby, and was able to make all the necessary arrangements for her daughter to be cared for in Bhutan whilst the applicant returned to Australia in February 2018 for the purpose of undertaking a course of study. In that context the applicant applied for the Student visa that is now in contention. In these circumstances the Tribunal is satisfied the application for the Student visa was very much a focus of the applicant's attention. The Tribunal is not persuaded that the stressors the applicant relies upon to explain her lack of presence of mind when she provided the impugned answer were so influential at the time she provided the answer, and submitted the application to the Department, that she was unable to properly understand the question to which she provided the false answer 'no', and that she gave the false answer because she misunderstood the question.

23.    On balance, the Tribunal is satisfied the impugned answer 'no' was given by the applicant, and there is evidence before the Tribunal that the applicant gave to the Minister, or a relevant assessing authority, being the Department, information that is a purposeful falsity, and that the impugned answer is false or misleading in a material particular as defined in PIC 4020; and, the answer is relevant to the criteria the Minister may consider when deciding whether to grant the Student visa pursuant to cl.500.212 of Schedule 2 to the Regulations.

25    The Tribunal was also not satisfied that the requirements of PIC 4020(1) and (2) should be waived under PIC 4020(4), because there was no evidence that there were compassionate or compelling circumstances that affected the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen.

26    It is important to note the reference in para 23 of the Tribunal's reasons to cl 500.212 of Schedule 2. That clause constitutes a separate primary criteria which must be met by the relevant applicant, and provides as follows:

500.212

The applicant is a genuine applicant for entry and stay as a student because:

(a)    the applicant intends genuinely to stay in Australia temporarily, having regard to:

(i)    the applicant's circumstances; and

(ii)    the applicant's immigration history; an

(iii)    if the applicant is a minor - the intentions of a parent, legal guardian or spouse of the applicant; an

(iv)    any other relevant matter; and

(b)    the applicant intends to comply with any conditions subject to which the visa is granted, having regard to:

(i)    the applicant's record of compliance with any condition of a visa previously held by the applicant (if any); and

(ii)    the applicant's stated intention to comply with any conditions to which the visa may be subject; and

(c)    of any other relevant matter.

27    The construction of cl 500.212 has been the subject of a number of decisions, including the recent Full Court decision in Dait v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 25; (2022) 288 FCR 1 (Jagot, Bromwich and Lee JJ). It was confirmed in Dait that each of subclauses (a), (b) and (c) of cl 500.212 are integral and have a 'waterfall effect', requiring a discrete inquiry as to each subclause by the decision maker. However, if the decision maker is satisfied that a visa should not be granted on the basis that the applicant has failed to satisfy the criterion in (say) subclause (a) or (b), then the decision maker is not required to consider subclause (c) because an adverse finding as to (a) or (b) forecloses any possibility of an applicant satisfying each step of cl 500.212. It was also confirmed in Eros v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1061 (Allsop CJ) at [22] that subclause (a) is 'concerned and only concerned with the intention as to length of stay'.

28    The reference in the migration agent's submissions to 'genuine temporary entrant' criteria indicates that the agent understood the definition in PIC 4020(5), including that it refers to information that is false or misleading at the time it is given and that is 'relevant to any of the criteria that the Minister may consider'. The agent acknowledged by the submission that in this case the impugned answer is relevant to specific criteria the Minister may consider, being the criteria in cl 500.212 regarding genuine temporary entrant status. It was not submitted by the appellants before the Tribunal that the impugned answer was not relevant to any of the criteria the decision maker may consider.

Before the FCFCOA

29    The appellants were represented by counsel before the FCFCOA, and relied on two grounds of review.

30    The first was to the effect that there was no probative evidence to support a conclusion that the impugned answer bore the characteristics of a purposeful falsity.

31    The second was as follows:

2.    The Second Respondent misconstrued Public Interest Criterion 4020 (1) by failing to determine whether the existence of a purposeful falsity was of itself sufficient to discharge the question of materiality, without reference to the requirements enumerated in subclause 500.212 of Schedule 2 to the Migration Regulations 1994 (Cth).

Particulars

Subclause 500.212 Schedule 2 to the Migration Regulations 1994 (Cth) requires the Delegate to reach a state of satisfaction as to whether the First Applicant is a genuine applicant for stay and entry as a student by reference to the matters outlined in (a), (b), and (c). The Second Respondent focused its inquiry to subclause 500.212 (a)(ii) as determinative of the question of materiality in relation to Public Interest Criterion 4020 (1) and (5) of Schedule 4 to the Schedule 2 to the Migration Regulations 1994 (Cth).

32    As to ground 1, the primary judge recorded the appellants' submissions that earlier visa applications had contained accurate information, and that the Tribunal erred by failing to have proper regard to Ms Lhamo's subjective position as to the circumstances in which the impugned answer was provided.

33    However, the primary judge concluded that there was 'ample probative evidence' from which the Tribunal could draw the inference as to the impugned answer being 'purposely false', and it was open to the Tribunal to make the findings based on that evidence. In particular the primary judge observed: that the Tribunal was not obliged to accept Ms Lhamo's explanation; that the question involved plain language; that the explanation in relation to the alleged stressors was not persuasive, paraphrasing the matters raised by the Tribunal at paras 20-22 of its reasons (extracted at [24] above).

34    As to ground 2, the primary judge noted a difficulty with the appellant's allegation that the Tribunal focused its inquiry on cl 500.212(a)(ii) of the Migration Regulations in circumstances where the Tribunal made no reference to that subclause. However, in any event, the primary judge found that the Tribunal did not treat its finding that the impugned answer was purposely false as determinative of whether cl 500.212 could be satisfied.

35    The primary judge said:

[43]    The Tribunal did not find the first applicant's answer to the visa refusal question was determinative of the applicant's ability to meet cl 500.212 of the Regulations. The Tribunal correctly identified that the Tribunal's finding was irrelevant to the criteria that the Minister may consider when deciding whether to grant a student visa pursuant to cl 500.212 of the Regulations. Further, it is not the case that the answer to the question had to be determinative of the criteria to succeed in the application.

36    I have emphasised the word 'irrelevant' because in context it is clearly a typographical error, and should read 'relevant'. As extracted above, the Tribunal said at para 23 that 'the answer is relevant to the criteria the Minister may consider when deciding whether to grant the Student visa pursuant to cl 500.212 of Schedule 2 to the Regulations'.

37    This reasoning addresses the distinction between satisfying a particular criteria set out in cl 500.2 and an assessment of whether the impugned answer is 'information that is false or misleading in a material particular' within the definition of PIC 4020(5). As the definition prescribes, in order to be false or misleading in a material particular, the information must be 'relevant' to any of the criteria.

38    The primary judge considered that it was not in issue before the Tribunal that the information was relevant to a criteria, that nominated criteria being cl 500.212, and that instead the focus was on whether or not the information was purposely false. His Honour said:

[44]    The Tribunal's reasoning on PIC 4020(5)(b) did not reflect a jurisdictional error. In that regard, the Tribunal was responding to the way in which the case had been put in the administrative decision-making. In that regard, the Tribunal was addressing the applicants' case, which contended that the information was not purposefully false, which reflected an implicit acceptance of the information being relevant to the criteria for the grant of the Visas, and therefore fell within PIC 4020(5)(b). Accordingly, there was no misconstruction of PIC 4020 as alleged in Ground 2, and no jurisdictional error as alleged in Ground 2 is made out.

39    As neither ground was made out, the application for review was dismissed.

Before this Court

40    The appellants were self-represented before this Court. They rely on one ground of review:

1.    The Federal Circuit and Family Court erred in failing to find that the Second Respondent's decision was affected by jurisdictional error in that it misconstrued subclause 4020(1) of Schedule 4 to the Migration Regulations 1994 (Cth).

Particulars

a.    The primary judge erred in finding that the Secondary Respondent correctly understood and applied the requirements of subclause 4020(1) of Schedule 4 to the Migration Regulations 1994 (Cth).

b.    The primary judge erred in finding that the fact that incorrect information was given in response to a question on a visa application form was itself sufficient to discharge the question of whether that information was material to the visa application.

41    Neither the appellants' written or oral submissions assisted in disclosing any such error (although the Court had provided an interpreter at their request, I note that both appellants chose to make their oral submissions in English).

42    The appellants' submissions focussed on the negligence or 'explicable human error' that led to Ms Lhamo making the mistake in her application form. They sought to reiterate that Ms Lhamo had explained why the impugned answer was overlooked, and that it was a result of personal hardships she faced; that the appellants' migration agent assisted with the visa application process and the fulfilment of genuine temporary entrant requirements 'yet some oversights were made'; and that the fact that they responded to the Department's invitation to comment on the history of visa refusals showed the appellants had 'no intention to provide misleading information deliberately to deceive'.

43    The difficulty with such submissions is that the appellants seek to challenge the factual findings of the Tribunal as to the 'purposeful falsity' of the conduct, a finding made based on the consideration and application of the principles in Trivedi, and they seek to have those parts of the application reconsidered on the merits, a course not open on this appeal. In any event, having carefully considered the Tribunal's reasons, and in particular the matters to which it refers at paras 20-22 of its reasons, I consider it was properly open to it to make the findings that it made in that regard.

44    Turning to the particulars relied upon, it is not necessary to address the first particular in any detail. It does not disclose the manner in which it is said that the Tribunal had misunderstood its task in considering or applying PIC 4020(1). In any event, the Tribunal's reasons do not reveal a misunderstanding as to the legislative provisions or the application of relevant authorities such as Trivedi.

45    As to particular (b), it proceeds on a misunderstanding of the question that the decision maker was obliged to consider. Having determined that the impugned answer was purposely false, the question was not whether the particular false information was material to the visa application. The question, as a matter of construction of the text of PIC 4020, was whether that information was 'relevant to any of the criteria that the Minister may consider'.

46    As I have observed above, because the appellant's migration agent referred to cl 500.212 in the submissions, it is not surprising that the Tribunal identified this criteria in para 23 of its reasons, and identified that the impugned answer was relevant to the criteria. Once its relevance was established, it followed that PIC 4020(1) was not satisfied. There was evidence before the Minister that Ms Lhamo had given information that was false or misleading in a material particular, that evidence being the impugned answer. The contrary position was not established.

47    It is fair to say that the Tribunal did not explain in any detail the basis upon which it considered the impugned answer was relevant to the criteria in cl 500.212 that might be considered by the Minister. However, it is a matter that follows objectively and clearly from the terms of the criteria itself. The definition in PIC 4020(5) does not require the Minister to proceed to determine satisfaction with the cl 500.212 criteria: all that is required is that the impugned answer is relevant to criteria that the Minister may consider. It does not matter whether a decision is made because of that information. On its face, the impugned answer is relevant to subclause (a) of cl 500.212. That is the basis upon which the appellants' migration agent proceeded. That the history was misrepresented to the Department may inform whether the applicant is genuinely intending to stay only temporarily. On its face the fact of multiple applications over time, and an answer which misrepresented that position, is relevant to that question. An applicant's provision of such false or misleading information may also be a 'relevant matter' within the meaning of cl 500.212(c) - but that subclause was not relied upon before the Tribunal and it is not necessary to consider that prospect further.

48    It follows that no jurisdictional error by the Tribunal is disclosed and the primary judge did not err in dismissing the review application. The appeal should be dismissed.

49    By way of supplementary submissions the Minister raised in the alternative that the application should be dismissed in the exercise of the Court's discretion, having regard to the absence of utility in granting the relief requested where the period of study has for all intents and purposes expired or should have expired. In light of my determination as to the grounds of appeal, it is not necessary to address this submission further.

Costs

50    The Minister seeks costs of the appeal, including a hearing that was adjourned due to the appellants requesting an interpreter despite informing the Court in advance that no interpreter was required. In all the circumstances the Minister should have costs. The Minister seeks costs fixed at the scale amount of $7,241 (Item 15 in Schedule 3 of the Federal Court Rules 2011 (Cth)). In all the circumstances I accept that the appellants should pay the Minister's costs fixed in that amount.

Orders

51    There will be orders accordingly.

Associate:

Dated:    30 September 2022