Federal Court of Australia

Happi v Minister for Immigration and Citizenship [2026] FCA 889

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the costs of the first respondent, to be taxed if not otherwise agreed.

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

REASONS FOR JUDGMENT

COLLIER J:

1    Before the Court is an appeal from a decision of a Judge (primary Judge) of the Federal Circuit and Family Court of Australia (Division 2) in Happi v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 1334 (FCFCOA Decision). The FCFCOA Decision dismissed an Amended Application for Review from a decision of the former Administrative Appeals Tribunal by the appellant, Mr George Belmond Mouapi Happi (AAT Decision). The AAT Decision, in turn, had affirmed a decision of the Minister’s delegate not to grant Mr Happi a Partner (Temporary) (Class UK) (subclass 820) Visa (Temporary Partner Visa).

2    The appellant, who was the applicant in the Court below, relies on the following grounds of appeal:

1.     The Court below erred by failing to find that:

(a)     The Tribunal, in its decision dated 17 January 2024, failed to discharge its statutory obligation to make findings on the prescribed matters in regulation 1.15A(3)(b)(i), (3)(b)(iii), (3)(c)(ii), 3(c)(iii), (3)(d)(iii) and (3)(d)(iv) of the Migration Regulations 1994 (Cth) (Regulations).

(b)    The Tribunal failed to respond to a respond to substantial and clearly articulated arguments relying upon established facts regarding the matters in regulation 1.15A(3)(b)(i), (3)(b)(iii), (3)(c)(ii), (3)(d)(iii) and (3)(d)(iv) of the Regulations.

(c)    The Tribunal’s conclusions on the PIC4020 criterion was based on an illogical or irrational process of reasoning.

3    For the reasons that follow, the appeal should be dismissed with costs.

Background

4    Mr Happi is a citizen of Cameroon. He originally arrived in Australia in October 2014 on a Vocational Education and Training Sector (subclass 572) visa.

5    Mr Happi is the father of five children, born of different relationships. In the interests of privacy (to the children in particular) I will refer to Mr Happi’s various partners by pseudonyms.

6    On the material before the Court it appears that Mr Happi originally had a longstanding relationship with Ms A. Three children were born from that relationship in Cameroon in 2004, 2008 and 2012.

7    Mr Happi subsequently fathered a child born of a relationship with Ms B. That child was born in South Africa in 2012.

8    Mr Happi later fathered a fifth child, born in Australia in 2016 (the mother of whom, I understand, was Ms C).

9    Mr Happi met Ms D (his visa sponsor) in November 2014 and commenced a relationship with her in May 2015. They became engaged in October 2016, commenced living together at the sponsor’s residence in January 2017 and were married in February 2017.

10    The sponsor is not the biological mother of any of Mr Happi’s children.

11    On 12 April 2017, the appellant applied for the Temporary Partner Visa and a Partner (Residence) (class BS) (subclass 801) visa (Residence Partner Visa) on the basis of his relationship with Ms D (the Visa Application).

12    Importantly for this appeal, the visa application form contained several questions about Mr Happi’s relationship history. In response to the question “has the applicant been in any relationship with persons other than the sponsor”, Mr Happi stated “yes”. When asked to “give details of previous relationships”, in his visa application form, Mr Happi identified a previous relationship in 2016 with Ms C. However Mr Happi did not identify any previous relationships he had with the mother of his children born in Cameroon or with the mother of his child born in South Africa.

13    On 13 June 2019, the appellant notified the Department of Home Affairs that his relationship with his sponsor Ms D had broken down, citing domestic violence that Ms D had committed against him. On 19 June 2019, the sponsor provided the Department with a letter withdrawing her sponsorship.

14    On 26 June 2019, the appellant was provided with a natural justice letter advising him of adverse information which had been received by the Department, being evidence that the appellant had provided a bogus document, or false or misleading information, in relation to his visa application. Specifically, the Department alleged that the appellant, inter alia:

    was, at the time of his partner visa application, engaged to Ms B living in South Africa; and

    failed to declare one of his children, born to Ms B in South Africa, on the Visa Application.

15    The Department warned the appellant that he could fail to satisfy the criteria in Public Interest Criterion 4020 (PIC 4020) in sch 4 of the Migration Regulations 1994 (Cth) (Migration Regulations).

16    On 5 September 2019, a delegate of the Minister refused Mr Happi’s applications for the Temporary Partner Visa and the Residence Partner Visa (being the Minister’s Decision). In the Decision Record, the delegate made various findings about the appellant, including, inter alia, that:

    the appellant did not meet the definition of de facto partner under s 5CB of the Migration Act 1958 (Cth) (Migration Act) or the definition of “spouse” in s 5F of the Migration Act; and

    the appellant did not meet the criteria in PIC 4020.

DECISION OF THE TRIBUNAL

17    On 16 September 2019, the appellant applied to the (then) Administrative Appeals Tribunal (Tribunal) for a review of the Minister’s Decision. For reasons that are not apparent on the material before me, the Tribunal’s Acknowledgment of Application letter only referred to the Minister’s Decision to refuse to grant the Temporary Partner Visa (and not the Minister’s Decision to refuse to grant the Residence Partner Visa). On 17 January 2024, the Tribunal affirmed the decision not to grant Mr Happi the Temporary Partner Visa.

18    The Tribunal noted, in summary:

    Where the Tribunal is considering a criterion that requires the definition of spouse or de facto partner to be met at the time of the visa application, the information supplied in relation to the reg 1.15A(3) matters may relate to circumstances after the time of application.

    The Tribunal must consider all relevant evidence, which may include evidence of events after the date of application insofar as it assists in the task of determining whether the visa applicant and the sponsor were in a spousal relationship at the time of the application.

    The issues in the present case were whether at the time of the visa application and the time of this decision, the review applicant was the spouse of the sponsor and further, whether the review applicant gave information that was false and misleading in a material particular and whether or not the review applicant met PIC 4020 and if not, whether the review applicant established grounds to justify the waiver of PIC 4020.

19    The Tribunal found that, on the evidence, Mr Happi and Ms D were married to each other under a valid marriage. The Tribunal found that they did not have joint ownership of any assets, had no joint liabilities, and had provided no evidence of the pooling of financial resources or the sharing of day-to-day household expenses. The Tribunal was not satisfied that the financial arrangements were consistent with the financial situation of a committed and genuine spousal relationship. The Tribunal concluded (at [32]) that there was no persuasive evidence the parties lived together as a married couple, or that they had living arrangements consistent with that of a genuine and committed spousal relationship.

20    In respect of PIC 4020 the Tribunal found, in particular:

    The requirement in PIC 4020(1) not to provide a bogus document, or false or misleading information, applies whether or not the Minister became aware of the bogus document or information that is false or misleading in a material particular because of information given by the applicant: PIC 4020(3). It also applies whether or not the document or information was provided by the applicant knowingly or unwittingly (at [53]).

    While PIC 4020 refers to information that is false, in the sense of purposely untrue, it is not necessary for the Minister (or the Tribunal on review) to conclude that the applicant was aware the information was purposely untrue in order for PIC 4020 to be engaged. However an element of fraud or deception by some person is necessary to attract the operation of the provision.

    Mr Happi had given conflicting evidence concerning his relationships with Ms A and Ms B, and further had failed to declare that he had been in those relationships (at [77]).

21    The Tribunal continued:

78.     Therefore, the Tribunal finds that the review applicant provided information as referred to in paragraph 77 above which was false or misleading in a material particular: namely, that it was false and misleading at the time it was given (PIC 4020(5)(a)); and that it was relevant to the criteria that the Minister may consider when making a decision on an application (PIC 4020(5)(b)) namely, as to whether the review applicant was in a mutually exclusive, ongoing and genuine relationship with the sponsor.

79.     Therefore, the visa applicant does not meet PIC 4020.

22    The Tribunal was further not satisfied that the requirements of PIC 4020(1) or (2) should be waived, noting that they may be waived where there are compelling circumstances that affect the interests of Australia, or where there are compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident, or an eligible New Zealand citizen (as defined in reg 1.03), that justify the granting of the visa.

PRIMARY JUDGE’S DECISION

23    On 25 October 2024 the appellant filed an Amended Application – Migration Act in which the appellant applied for a remedy to be granted in exercise of the jurisdiction of the Federal Circuit and Family Court of Australia (FCFCOA) under s 476 of the Migration Act. The grounds of review on which Mr Happi relied were:

1.     The decision maker failed to discharge its statutory obligation to make findings on the prescribed matters in regulation 1.15A(3)(b)(i), (3)(b)(iii), (3)(c)(ii), 3(c)(iii), (3)(d)(iii) and (3)(d)(iv) of the Migration Regulations 1994 (Cth).

2.     The decision maker failed to respond to substantial and clearly articulated arguments relying upon established facts regarding the matters in regulation 1.15A(3)(b)(i), (3)(b)(iii), (3)(c)(ii), (3)(d)(iii) and (3)(d)(iv).

3.     The decision maker failed to apply the correct statutory test, or ask the correct questions, when purporting to apply to public interest criteria 4040 in schedule 4 of the Regulations.

24    The grounds of review in the FCFCOA largely mirrored the grounds of appeal before this Court, except the third ground which is now framed in a slightly different manner.

25    I understand that the reference to “PIC 4040” in Ground 3 before the FCFCOA, which was reproduced from the appellant’s written submissions before this Court and matched what was written on his application in the FCFCOA, was a typographical error that should instead have read “PIC 4020”.

26    Before the primary Judge Mr Happi submitted that the Tribunal failed in its statutory duty to properly consider his claims, and relied on He v Minister for Immigration and Border Protection [2017] FCAFC 206; (2017) 255 FCR 41 at [51] where the Full Court discussed the meaning of “spouse” within s 5F of the Migration Act. In finding that it was nonetheless incumbent on Mr Happi to substantiate his ground concerning the application of PIC 4020, his Honour continued:

18.    … The Court finds that there was no ambiguity in the question to be answered by the applicant. It was a simple question requiring details of prior relationships. The applicant could hardly have forgotten the fact of his having fathered a child in South Africa, as well as his having fathered three other children in Cameroon not previously referred to by him. For it to be submitted that such was open to oversight, or otherwise considered of no consequence by the applicant, was implausible and otherwise without merit. Where other incomplete information capable of conveying an entirely different past relationship scenario had been provided to the Department by the applicant, and where the applicant allowed that incomplete information to stand alone, the provision of such information clearly constituted the provision of false or misleading information.

27    His Honour further held:

21.    The purposely untrue argument advanced on behalf of the applicant was without merit. The Tribunal at [54]-[55] of its reasons clearly appreciated the relevant criteria which had to be satisfied under PIC 4020. It correctly cited Trivedi and Singh. It did not err in that regard.

22.    As to the irrelevancy argument, the Court rejects the submission made on behalf of the applicant, albeit that the Court considers it unnecessary to do so. PIC 4020 considerations are quite separate and apart from a consideration of the criteria as set out in r 1.15A. The Tribunal correctly considered in a logical and rational way the evidence before it which disclosed that the applicant had failed to provide information to the Department which was relevant to an appreciation of all the applicant’s relevant circumstances. The failure to provide such relevant information was a serious deficiency on the part of the applicant in his visa application process, and was false or misleading.

23.    It was rightly found by the Tribunal that such deficiency precluded the applicant from the grant of a visa …

28    On 5 December 2024, the FCFCOA dismissed the application. In dismissing the application, the primary Judge dealt with ground 3 first, and found that Mr Happi failed to establish jurisdictional error in respect of the PIC 4020 finding. The primary Judge then decided that it was unnecessary to consider review grounds 1 and 2.

Appeal TO THIS COURT

29    On 20 December 2024, the appellant lodged a Notice of Appeal of the FCFCOA Decision in this Court. On 28 January 2025 the Minister filed a Notice of Contention in this proceeding, contending that, further or in the alternative to the reasons given by the primary Judge, the FCFCOA Decision ought to be affirmed on the following bases:

(1)     The learned primary judge ought to have held that amended ground one did not establish jurisdictional error in the Tribunal’s decision as the Tribunal did not err in respect of its findings regarding the matters in reg 1.15A of the Migration Regulations 1994 (Cth).

(2)     The learned primary judge ought to have held that amended ground two did not establish jurisdictional error in the Tribunal’s decision as the Tribunal did not fail to consider any of the appellant’s arguments or evidence regarding the matters in reg 1.15A of the Migration Regulations 1994 (Cth).

30    On 7 October 2025, I granted the appellant leave to file an amended Notice of Appeal containing the grounds of appeal reproduced at the beginning of this Judgment.

31    The FCFCOA dismissed Mr Happi’s appeal before that Court on the basis that Mr Happi failed to establish jurisdictional error in respect of the PIC 4020 finding (ie ground 3), without making any findings on appeal grounds 1 and 2. In his submissions the appellant first addressed the Court on the manner in which the primary Judge had dealt with ground 3 (concerning PIC 4020) in the FCFCOA.

32    I note that, at the hearing, both parties accepted that, in order to meet the test of materiality, it was necessary for Mr Happi to establish both error in respect of the public interest criterion (namely referable to PIC 4020), as well as error in respect of “the spouse issue” (the subject of grounds 1 and 2 before the FCFCOA). I further note that the Minister’s Notice of Contention filed on 28 January 2025 related only to grounds 1 and 2 before the FCFCOA.

33    For those reasons, it is convenient to first address the arguments of the parties in respect of ground 1(c) of the appeal – referable to ground 3 before the primary Judge – on the basis that if Mr Happi fails in this respect, he accepts that the entirety of his appeal fails (see transcript 7 October 2025 page 4 lines 1-18).

“GROUND 3”: PIC 4020

34    Relevantly PIC 4020 provides as follows:

(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).

(2AA)     However, subclause (2) does not apply to the applicant if, at the time the application for the refused visa was made, the applicant was under 18.

…

(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.

(emphasis in original)

Submissions of the Appellant

35    In relation to PIC 4020 Mr Happi submitted, in summary:

    The application of PIC 4020 was discussed in Trivedi v Minister for Immigration and Border Protection [2014] FCAFC 42; (2014) 220 FCR 169 at [32].

    There has not been any suggestion that a bogus document existed, and as such the PIC 4020 issue is confined to whether Mr Happi provided false and misleading information in relation to the visa application.

    There is a difference between a statement that is wrong, as opposed to a statement that is false. It is insufficient for the statement to simply be untrue – the statement must be purposely untrue. An element of fraud or deception is necessary to attract the operation of PIC 4020.

    The Tribunal fell into error by failing to make findings that the applicant had given “information that is false or misleading”. The Tribunal simply noted that Mr Happi had failed to declare that he had been in previous relationships with previous partners, and then jumped to the conclusion that the failure to provide that information was false or misleading. There was no path of reasoning between the Tribunal’s finding that the Applicant did not declare the existence of the past relationships, and the conclusion that it was false or misleading.

    The question put to Mr Happi in the partner visa application was “Has the applicant been in any previous relationships with persons other than the sponsor?” Mr Happi’s response was “yes”. Mr Happi was then asked to “give details of previous relationships”. Mr Happi provided the details of one (but not all) of his previous relationships. The answer was neither false nor misleading. Mr Happi did not declare or indicate that he had not had any other previous relationships.

    The question did not ask Mr Happi to provide details of all of his previous relationships. The ambiguity surrounding the question provoked a need for an applicant to assess the previous relationships that the Minister would consider relevant to the application. If the Minister wanted the details of all of Mr Happi’s previous relationships, that could have been specified that in the question. In the absence of that specificity, it cannot be said that the information provided by the appellant was false or misleading.

    A second error made by the Tribunal was its failure to make any findings that the information provided was purposely untrue, in the sense that there was an element of fraud or deception. The Tribunal simply found that the failure to disclose the prior relationships was false or misleading. It did not make any findings or provide any reasoning to support a conclusion that Mr Happi intentionally withheld that information.

    The primary Judge found that the Tribunal “… clearly appreciated the relevant criteria which it had to be satisfied under PIC 4020” and “correctly cited Trivedi and Singh”. However the general citing of relevant case law did not obviate the requirement of the Tribunal to make findings of fact which show the logical path of how the Tribunal concluded that the information provided was purposively untrue.

    A third error made by the Tribunal, even if Mr Happi was found to have given false and misleading information, was the finding that Mr Happi’s failure to declare previous relationships was relevant to the criteria that the Minister may consider when deciding an application. The factors in s 5F of the Migration Act and r 1.15A(3) of the Migration Regulations are voluminous and comprehensive, yet none of those factors are directed to past relationships.

    The information requested by the Department, the response to which was said to be false or misleading, was limited to the existence of previous relationships. Information about previous relationships was not relevant to the criteria that the Tribunal had to apply.

    The primary Judge erred in finding that “… PIC 4020 considerations are quite separate and apart from a consideration of the criteria as set out in r 1.15A”. For the purposes of PIC 4020, the false or misleading information must be 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 Tribunal erred in concluding that the false or misleading information was relevant to the question whether Mr Happi was in a mutually exclusive, ongoing and genuine relationship with the sponsor. The Tribunal failed to provide any logical basis as to how it found that information about past relationships had any relevance to that question.

    Ultimately, for the reasons above, the primary Judge was in error for not finding that the Tribunal’s conclusions on the PIC 4020 criterion were based on an illogical or irrational process of reasoning.

Submissions of the Respondent

36    In relation to PIC 4020 the Minister submitted in summary that:

    The issue before the Tribunal was whether Mr Happi had provided false or misleading information. That inquiry had both objective and subjective components.

    It was necessary for the Tribunal to consider first whether the information provided by Mr Happi was false or misleading in an objective sense. The Tribunal was then required to consider, in effect, whether the author of the information intended for the information to be false and misleading. The Tribunal did, in fact, consider both the objective and subjective elements of the public interest criterion.

    Mr Happi was asked to provide “details” of “previous relationships with persons other than the sponsor”. In response to that question, Mr Happi provided details of only one previous relationship, being his 40-day relationship with Ms C. Mr Happi failed to disclose two other far more significant relationships, one of which produced three children, the other of which produced a child.

    There was evidence before the Tribunal that, in fact, Mr Happi had been maintaining another relationship at the same time as he had a relationship with the sponsor. On any view, the relationship history provided by Mr Happi on his application form was incomplete in a material way.

    It was open for the Tribunal to find that, in an objective sense, there was information that was false or misleading. For the purposes of resisting an allegation of jurisdictional error, that was all that was required. The Tribunal could not have committed an error, at least in terms of logicality of reasoning, if there was an evidentiary foundation for the conclusions it reached.

    Mr Happi’s submission that the information he provided was not false or misleading (because he did not declare that he had not had any other previous relationships) clearly disregarded the context in which Mr Happi was asked that question. It failed to account for the fact that, in certain settings or conditions, a representation that was literally true may nevertheless be misleading if other important information was omitted. In this case, Mr Happi’s omissions had the effect of making his answer false or misleading, as the clear inference to be drawn from Mr Happi’s answer was that, other than the one previous relationship he disclosed, there were no other “previous relationships”. It was open for the Tribunal to construe Mr Happi’s answer in this way.

    Mr Happi’s submission that there was some ambiguity in the way the relationship history question was asked must be rejected. The question on the application form was simple, and required Mr Happi to disclose details of previous relationships. On any view, the two other relationships of Mr Happi should have been disclosed because they were relatively recent relationships, and there should have been no ambiguity that they fell within the category of relationships for which information was being sought by the Minister. The mere absence of the word “all” did not entitle Mr Happi to determine, by himself, what relationships were relevant for the Minister to consider.

    To the extent that Mr Happi contended that his answer to the question on the application form should not have been construed as being false or misleading in the objective sense, such contention constituted an invitation for (impermissible) merits review. Generally, an error in fact finding will not give rise to jurisdictional error unless the finding was “not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn”. The present case fell within neither category.

    Mr Happi’s submission that the Tribunal failed to provide reasoning to support its conclusion that Mr Happi intentionally withheld relevant information was incorrect – see in particular paragraphs [54], [65]-[67] and [73]-[75] of the Tribunal’s reasons.

    Mr Happi’s submission that information about his previous relationships was not “relevant to the criteria that the Tribunal had to apply” and thus was not information that was false or misleading “in a material particular” in PIC 4020(5) must be rejected. Mr Happi’s relationship history was directly relevant to the Tribunal’s assessment of the nature of his relationship with the sponsor, and was especially relevant to the question of whether the appellant and sponsor had “a mutual commitment to a shared life … to the exclusion of all others”.

Consideration

37    It is well established that a Court will only disturb a decision of an administrative body if that decision is affected by jurisdictional error. In order to succeed in his appeal, Mr Happi must establish that the primary Judge erred in not finding jurisdictional error on the part of the Tribunal.

38    In respect of ground of appeal 1(c), Mr Happi’s appeal is confined to the contention that the primary Judge erred by failing to find that the Tribunal’s conclusions on the PIC 4020 criterion were based on an illogical or irrational process of reasoning.

39    The circumstances in which illogicality or irrationality in the reasoning process might give rise to jurisdictional error were discussed by McKerracher J (Reeves J agreeing) in SZOOR v Minister for Immigration and Citizenship [2012] FCAFC 58; (2012) 202 FCR 1:

[82]     It is well established that not all errors of law made by a decision-maker will be jurisdictional errors. A court reviewing for jurisdictional error must not stray into the area of merits review rather than jurisdictional review. Nevertheless, there are various categories of error which have been held to constitute jurisdictional error and illogicality, as argued in this appeal, is one of those areas. The meaning of illogicality in SZMDS has been discussed in [54] above.

[83]    The appellant is correct in observing that the remarks made by Crennan and Bell JJ in SZMDS (at [124]) concerning Wednesbury unreasonableness are part of their Honours’ analysis of the extent to which the process of fact finding might be regarded as unreasonable. As the appellant also notes, it has been made clear by the High Court that Wednesbury unreasonableness applies only to determining the validity of discretionary decisions rather than the fact finding leading to those decisions. The fact finding itself can only be impugned where the factual determination is “illogical, irrational or lacking a basis in findings or inferences of fact supported on logical grounds”. This is the test developed from S20 (at [52]) per McHugh and Gummow JJ and with whom Callinan J agreed.

[84]    In SZMDS, none of the three majority judges discerned illogicality in the reasoning of the Tribunal. The test which emerged as to the circumstances in which illogicality would give rise to jurisdictional error emphasises that a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable simply because one conclusion has been preferred to another possible conclusion (Crennan and Bell JJ at [131]). As stated subsequently (at [135]):

Whilst there may be varieties of illogicality and irrationality, a decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material before the decision maker. A decision maker might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if a decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn.

[85]     What was said by Heydon J at [78], cited above (at [54]), in my view, while differently expressed, is not at odds with what was said by Crennan and Bell JJ. Illogicality such as to amount to jurisdictional error will not be shown where the point is merely one upon which reasonable minds may differ or where it cannot be said that there is no evidence before the Tribunal upon which the decision could be based. Illogicality will not amount to jurisdictional error in every case. It must be such as to affect the decision. See, for example, SZOCT (at [84]) per Nicholas J and SZMWQ (at [55]) per Rares J.

(emphasis added)

(see also CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146; (2016) 253 FCR 496 at [60]-[61]).

40    As I noted earlier, it was not contended by either Mr Happi or the Minister that a bogus document had existed in relation to Mr Happi’s Visa Application. The PIC 4020 issue in the present appeal is confined to whether Mr Happi provided information that was false or misleading in a material particular.

“information that is false or misleading”

41    The phrase “information that is false or misleading” has both an objective and subjective component. In relation to the subjective component, it must be proven that the false or misleading information was “purposely untrue”: Trivedi v Minister for Immigration & Border Protection [2014] FCAFC 42; (2014) 220 FCR 169 at [33], [49]; Patel v Minister for Immigration & Border Protection [2015] FCAFC 22 at [7], [32]; Sun v Minister for Immigration & Border Protection [2016] FCAFC 52; (2016) 243 FCR 220 at [44]; Chen v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2022] FCAFC 41; (2022) 288 FCR 218 at [18]. In particular I note the following observations of Buchanan J (Allsop CJ and Rangiah J agreeing) in Trivedi:

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

[33]     In my view, it should be accepted that an element of fraud or deception is necessary in order to attract the operation of PIC 4020. To take the example of bogus documents, a counterfeit document is not produced accidentally. Similarly, to charge that a statement is false is not to say only that it is wrong. The accusation potentially imports some element of knowledge or intention on somebody’s part, and in my view does so in the present context.

42    In the present case I am satisfied that the primary Judge did not err in not finding that the Tribunal’s conclusions were based on an illogical or irrational process of reasoning. I have formed this view for the following reasons.

43    First, in his Visa Application Mr Happi declared as follows:

Has the applicant been in any previous relationships with persons other than the sponsor? Yes

Give details of previous relationships.

Family name: [Ms C]

Given names: [Ms C]

Relationship status: Separated

Date relationship began: 21 Mar 2015

Date relationship ended: 29 Apr 2015

Number of children from this relationship: 01

44    Subsequently in written submissions provided to the Tribunal dated 7 December 2023, Mr Happi stated that:

Given the centrality of the applicant's relationship history to the subject application, and the complexities thereof, we begin by providing the below summary of each romantic relationship of significance in a chronological order. We first provide a table for your easy reference …

(emphasis added)

45    At this point Mr Happi set out, in tabular form, his relationships with Ms A, Ms B, Ms C, and Ms D, as well as a fifth relationship (Ms E), by reference to their names, the years of commencement and conclusion of his relationships with them, and the names of the children he had fathered with them.

46    In these circumstances, it was plainly open to the Tribunal to find that the omission of material by Mr Happi concerning his relationships with Ms A and Ms B was misleading in the objective sense. In particular, it was misleading because the information provided by Mr Happi on his Visa Application could create the perception that Mr Happi had no significant relationship history, when in fact that was not the case.

47    Second, it was open to the Tribunal to find that the information provided by Mr Happi in his Visa Application was purposely untrue for the purposes of PIC 4020. In his submissions to the Tribunal it was clear that Mr Happi appreciated the “centrality” of his relationship history to his Visa Application. Mr Happi further admitted that each of the relationships listed was a “romantic relationship of significance”.

48    Third, the Tribunal did in fact set out its reasoning process for reaching its conclusions. The Tribunal made reference to Trivedi as well as the following observation of Griffiths and Moshinsky JJ in Singh v Minister for Immigration and Border Protection [2018] FCAFC 52; (2018) 261 FCR 556:

144.    The following general principles may be derived from the analysis of the above case law.

…

(4)     Where an issue of the proper construction or application of PIC 4020 is raised, Trivedi and Patel authoritatively state that where a visa applicant has given or caused to be given to a relevant decision-maker a document which is a “bogus document” as defined, or information that is false or misleading in a material particular as defined, to determine whether PIC 4020 is satisfied or not, it is not necessary to show knowing complicity by the visa applicant as long as the material is purposely untrue.

49    The Tribunal set out in some detail its train of reasoning concerning Mr Happi’s declaration and omission. So, for example, in respect of Ms B, the Tribunal said:

64.    Subsequently, on 26 June 2019 the Department sent a natural justice letter to the review applicant providing him with the opportunity to comment on what it considered to be false or misleading information in a material particular in relation to the Partner visa application, namely, that the review applicant's marriage to the sponsor was not mutually exclusive, ongoing and genuine as he was still having a relationship with Ms [B] whilst in a relationship to the sponsor.

65.     The review applicant provided a Statutory Declaration dated 16 September 2019. In this document, the review applicant states that at the time of completing the application form he was merely dating Ms [B] but there was no "dating option" (as he described it) on the application form in late 2014 therefore he referred to himself as being "engaged".

66.     However, at the Hearing the review applicant gave further conflicting evidence, namely that his relationship with Ms [B] actually ended about one year after the birth of his child, which is approximately June 2013. He stated that at this time, he left the building where they each lived in a unit and there was no further personal relationship between them.

67.     When questioned about these conflicting matters during the hearing, the review applicant could provide no explanation.

50    Similarly in respect of Ms A, the Tribunal said:

68.    As noted above, the review applicant also failed to declare his previous relationship with Ms [A] in the 820 application. When questioned during the Hearing as to why he did not do so, the review applicant's response was that he did not think about it and that this information was not important to him.

69.    In his submissions to the Tribunal, the review applicant refers to entering into a 'romantic relationship' with Ms [A] in Cameroon in around 2003. He states that this relationship resulted in his three children being born into 2004, 2008 and 2012. Further, he submits that he and Ms [A] were never married and that:

“... Despite having several children together, the relationship remained highly casual in nature, with limited cohabitation and frequent periods of separation.”

70.    However, at the Hearing of this matter, the review applicant gave conflicting evidence, namely, that he began living with Ms [A] about 5-7 years prior to the birth of his first child in 2004. This puts the commencement of the relationship between 1997-1999.

71.     His evidence is that they lived together until 2009/2010 or in his words "more than 12 years", when he left Cameroon to study in South Africa. His intention was that he would study, obtain the right to work in South Africa and have Ms [A] and the children move to South Africa to live with him.

72.     Additionally, the review applicant gave evidence that when he did return to Cameroon from South Africa to visit, he would stay for a few weeks or a month with Ms [A] and referred to her as his "long-term partner".

73.     The Tribunal put to the review applicant, in light of his reference to Ms [A] as his long-term partner and his evidence that they lived together for more than 12 years, that she was in fact his de facto partner. The review applicant agreed with that Ms [A] was his de facto partner.

74.     When the review applicant was questioned as to why he did not list Ms [A] on the 820 application, he stated that he had completed the application form on his own without any assistance and that his interpretation of the questions may not have been correct. He also could not recall whether he was given the option to list previous de facto relationships on his application form in addition to previous marriages. However, the form only refers to previous relationships, which would encompass marriage, de facto and other relationships.

75.     The Tribunal notes that whilst the review applicant listed his 40-day relationship with Ms [C] in the application form, he failed to refer to his de facto relationship with Ms [A] which extended more than 12 years, or his relationship with Ms [B] which led to his engagement to her.

51    It was this reasoning which led to the Tribunal’s conclusion at [77] that Mr Happi had provided false or misleading information, the Tribunal plainly being satisfied that Mr Happi’s account of his previous relationships was purposefully untrue in circumstances where he had disclosed a 40-day relationship with Ms C, but not the other two previous, and apparently more significant, relationships. In my view it was open to the Tribunal to decline to accept any suggestion by Mr Happi that he did not anticipate the Minister finding relevant Mr Happi’s earlier relationships with Ms A and Ms B.

52    Fourth, I accept the submission of the Minister that Mr Happi’s relationship history was directly relevant to the Tribunal’s assessment of the nature of his relationship with the sponsor. In particular, that relationship history was especially relevant to whether the appellant and sponsor had “a mutual commitment to a shared life as a married couple to the exclusion of all others” within the meaning of s 5F of the Migration Act. Whether Mr Happi was – or had been – engaged to or in a relationship with someone other than the sponsor, at or around the same time he asserted that he was in an exclusive relationship with the sponsor, was plainly relevant to the assessment that the Tribunal was required to undertake concerning whether Mr Happi and the sponsor were in a spousal relationship at the time of his Visa Application.

CONCLUSION

53    Mr Happi has not established that the Tribunal adopted an illogical or irrational process of reasoning in concluding that Mr Happi had provided information that was misleading for the purposes of PIC 4020. Accordingly, I am not satisfied that the primary Judge erred in failing to find that the Tribunal’s conclusions on the PIC 4020 criterion were based on an illogical or irrational process of reasoning. Ground of appeal 1(c) is not substantiated.

54    In the circumstances it is unnecessary for me to consider grounds of appeal 1(a) or (b), or the Minister’s Notice of Contention.

55    The appeal is dismissed, with costs.

Associate:

Dated:    10 July 2026