Feng v Minister for Immigration and Citizenship — PIC 4020 False Information Appeal Allowed

Original Word Document (111.5 KB) Federal Court of Australia

Feng v Minister for Immigration and Citizenship [2026] FCA 459

| Appeal from: | Feng v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 1042 |

| File number(s): | NSD 1638 of 2024 |

| Judgment of: | OWENS J |

| Date of judgment: | 21 April 2026 |

| Catchwords: | MIGRATION – appeal from a judgment of the Federal Circuit and Family Court of Australia (Div 2) dismissing an application to review a decision of the Administrative Appeals Tribunal – whether public interest criterion 4020 was satisfied – whether previous visa application had contained information that was purposely untrue – where Ministerial delegate found the appellant to have been “at best indifferent” to the accuracy and completeness of the previous application – construction of Tribunal’s reasons – whether Tribunal’s findings capable of supporting the conclusion of purposeful falsity – error established – appeal allowed |

| Legislation: | Migration Act 1958 (Cth), s 65(1)(a)(ii)

Migration Regulations 1994 (Cth), sch 2 cll 417.211(5), 500.217(1), sch 4 cl 4020 |

| Cases cited: | Gill v Minister for Immigration and Border Protection (2016) 248 FCR 398; [2016] FCAFC 142

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259

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

Trivedi v Minister for Immigration and Border Protection (2014) 220 FCR 169; [2014] FCAFC 42 |

| Division: | General Division |

| Registry: | New South Wales |

| National Practice Area: | Administrative and Constitutional Law and Human Rights |

| Number of paragraphs: | 49 |

| Date of hearing: | 16 March 2026 |

| Counsel for the Appellant: | Ms U Okereke-Fisher |

| Solicitor for the Appellant: | Andy Pham Lawyers |

| Counsel for the First Respondent: | Ms K Hooper |

| Solicitor for the Respondents: | Sparke Helmore Lawyers |

| Counsel for the Second Respondent: | The Second Respondent filed a submitting notice |
ORDERS

| NSD 1638 of 2024 |

| BETWEEN: | CHIU-HE FENG

Appellant | |
| AND: | MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent | |

| order made by: | OWENS J |
| DATE OF ORDER: | 2 1 april 2026 |
THE COURT ORDERS THAT:

1. The name of the first respondent be amended to “Minister for Immigration and Citizenship”.

2. The appeal be allowed.

3. The orders of the Federal Circuit and Family Court of Australia (Div 2) made on 18 October 2024 are set aside, and in lieu thereof order that:

(a) A writ of certiorari issue to quash the decision of the Administrative Appeals Tribunal dated 26 November 2020.

(b) The matter is remitted to the Administrative Review Tribunal for determination according to law.

(c) The first respondent pay the applicant’s costs of the application, to be assessed if not agreed.

1. The first respondent pay the appellant’s costs of the appeal, to be assessed if not agreed.

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

REASONS FOR JUDGMENT

OWENS J:

1 The appellant is a citizen of China.

2 On 5 January 2016 she was granted a working holiday visa and then, on 27 October 2016, she was granted a second such visa. On 28 December 2017 the appellant applied for a Student (Temporary) (Class TU) Student (subclass 500) visa.

3 On 15 August 2018 her application for the student visa was refused by a delegate of the Minister, whereupon she applied to the Administrative Appeals Tribunal for review of that decision. On 26 November 2020 the Tribunal affirmed the delegate’s decision.

4 The appellant then sought judicial review of the Tribunal’s decision in the Federal Circuit and Family Court of Australia (Division 2). That application was dismissed on 18 October 2024: Feng v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 1042. The appellant now appeals to this Court from that decision.

The Delegate’s Decision

5 The delegate refused the appellant’s application for a student visa because she was not satisfied that the appellant met one of the criteria prescribed by the Migration Act 1958 (Cth); namely the public interest criterion set out in clause 4020 of Schedule 4 to the Migration Regulations 1994 (Cth) (see section 65(1)(a)(ii) of the Migration Act, and clause 500.217(1) of Schedule 2 of the Migration Regulations). That criterion, commonly referred to as PIC 4020, is relevantly as follows:

(1)    There is no evidence before the Minister that the applicant has given, or caused to be given, to the Minister … 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.

…

(5)    In this clause:

i nformation 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.

6 The reason that the delegate considered that the appellant did not satisfy PIC 4020 was because, in her application for her second working holiday visa, it had been stated that she had undertaken regional employment with a particular employer during the period of her first working holiday visa. The Department’s investigations in connection with her application for a student visa suggested that she had not, in fact, ever worked for that employer. When given the opportunity to explain, the appellant did not deny that the information in her application for the second working holiday visa was not correct, and did not provide any explanation as to how that information came to be included. Rather, she provided further information to the effect that the true position was that she had worked for a Mr and Mrs Pulera on their farm, in exchange for board and pocket money. The delegate nonetheless found that, in those circumstances, PIC 4020 was not satisfied.

The Tribunal’s Decision

7 The Tribunal was also not persuaded that PIC 4020 was satisfied, and so affirmed the delegate’s decision.

8 The Tribunal identified the issue that it was required to determine in uncontroversial terms and, in particular, said this about the meaning of information that is “false or misleading” for the purposes of PIC 4020 (at [10]):

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: Trivedi v MIBP [2014] FCAFC 42.

9 No challenge was made to the correctness of that statement. It is, nonetheless, useful at this point to quote the passages from Trivedi v Minister for Immigration and Border Protection (2014) 220 FCR 169; [2014] FCAFC 42 (at [32]-[33], 43) that provide the basis for that summary:

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.

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. … [T]o 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.

…

In my view, it is not necessary … to show knowing complicity by a visa applicant. That would impose an impossible task on those administering the visa system. But it is necessary that the information or document have the necessary quality of purposeful falsity, whether or not the visa applicant can be shown to have knowledge of that fact.

10 Although the Tribunal correctly framed the issue, identification of the precise basis upon which the Tribunal then reasoned to its conclusion is not without difficulty. Nevertheless, as is well-established, in seeking to understand the Tribunal’s decision it is necessary to read its reasons fairly, and without an eye keenly attuned to the perception of error: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259. I have kept that in mind in what follows.

11 The Tribunal observed (at [13]) that, in order to be granted a second working holiday visa, it had been necessary for the appellant, pursuant to clause 417.211(5) of Schedule 2 to the Migration Regulations, to satisfy the Minister, amongst other matters, that she had carried out at least three months full-time work in regional Australia.

12 The Tribunal found (at [14]) that the appellant’s application for her second working holiday visa stated that she had worked in a regional area for an employer identified by an Australian Business Number. That ABN was assigned to “Green Wayne Barry”. During the assessment of the appellant’s application for a student visa, however, it was discovered that the appellant had never been employed by Green Wayne Barry (at [16]-[17]). The appellant did not dispute that that information in her application had been untrue (at [23]).

13 Her explanation for how that incorrect information came to be included in her application was recorded by the Tribunal as follows:

(a) She paid an agent to prepare and submit her second working holiday visa application. (At [23]).

(b) She was put in touch with that agent by unnamed friends via an unnamed website. She never met the agent, and either never knew or could not recall the agent’s name or the agency he worked for. Indeed, she could not provide any details about the agent, such as a telephone number or website. Any details that she might once have had were lost to her in an old mobile phone. (At [24]).

(c) When she engaged the agent to prepare her application, the appellant provided him with her name, passport, and telephone number. She told him that when she arrived in Australia on her first working holiday visa, she was supposed to have been met by representatives of an employer she had arranged to work for, but no one turned up. (At [26]).

(d) She said that the agent did not ask her about her employment history. Furthermore, she did not tell him that, after her original employment arrangements had fallen through, she obtained work on a farm owned by Mr and Mrs Pulera. (At [26]-[27]).

(e) In fact, she had worked on the Puleras’ farm for more than three months. She was not paid a wage, but was provided with accommodation, food, and pocket money. (At [20]).

(f) The appellant trusted the agent to prepare her application. She did not speak English, and was unfamiliar with the law and procedures relevant to applying for the visa. She did not check the application for errors and omissions before it was submitted to the Department. She did not ask the Puleras, or any of her friends, or anyone else, to help her check the accuracy of the application. (At [28]-[29]).

14 The Tribunal found that many aspects of the appellant’s evidence about having an agent prepare her application were implausible. In particular, the Tribunal said this (at [25]-[27]):

It became apparent through the course of the [appellant’s] evidence, and the information in her affidavit, that she attributes complete responsibility for the impugned information being submitted to the Department without her knowledge or consent to her unnamed agent. Given the importance of the role played by the agent in preparing the visa application, and the fact that the applicant claims she paid the agent a fee, the Tribunal finds [appellant’s] reasons for being unable to provide even the most basic information about the agent, such as his name, or proof of payment of his fees, to verify her claim that she engaged an agent to prepare the application, and the role they played in preparing the application, to be unpersuasive.

In evidence, the [appellant] accepted that after engaging the agent to submit her application for the second Working Holiday visa, she provided the agent with her name and passport, telephone number, and her history of not being met at the airport by representatives of the potential employer who were supposed to meet her there upon her initial arrival in Australia, and her associated troubles too. Considering the [appellant] was applying for her second Working Holiday visa and that, according to her evidence, she paid her agent to assist her with her application, and she gave the agent her immigration history, biographical information and passport, the Tribunal finds it inherently implausible that the [appellant] would not also tell her agent all about her employment history on the Puleras’ farm, if in fact the [appellant] had performed farm work on the [Puleras’] farm which she believed met her regional work obligations.

In evidence to the Tribunal, the [appellant] claimed her unnamed agent did not ask about her employment history. On the [appellant’s] own case, the agent, rather than ask about her employment history, an obviously critical question in the context of the application, chose unilaterally to fabricate an employment history for her. The Tribunal finds it inherently implausible that the [appellant’s] paid agent, an agent she said she trusted, would not ask about her employment history, but instead, fabricate one for her.

15 Taken together, those findings suggest that the Tribunal did not accept the appellant’s evidence that her application had been prepared by an agent. That is to say, even though some of the conclusions could, read in isolation, be construed as accepting the existence of the agent, but rejecting the appellant’s account of her interactions with that agent, read fairly as a whole it seems to me that the Tribunal was saying that the implausibility of those aspects of the appellant’s account was a reason to doubt that she had dealt with an agent at all.

16 The Tribunal did not, however, give effect to, or act upon, such a conclusion. Rather, the dispositive portion of the Tribunal’s reasons commenced as follows (at [29]):

Assuming without accepting, the [appellant] engaged the unnamed agent to submit the visa application …

17 Having made that assumption, the status of the Tribunal’s earlier findings that aspects of the appellant’s evidence about her interactions with the agent were implausible might be thought to have been left unclear. For example:

(a) Having earlier concluded that it was implausible that, if there was an agent, the appellant would not have told them about her work on the Puleras’ farm (if she had performed work that she believed satisfied the regional work requirements), was the Tribunal now proceeding on the basis that she did tell the agent about that work? (And if she did, what is the explanation for the wrong information being included in the application?) Or did the Tribunal now accept that the appellant did not tell the agent, notwithstanding it found that evidence to be implausible? Or did the Tribunal consider that the appellant did not tell the agent that fact because she had not, in fact, worked on the Puleras’ farm (or, if she had, that she did not believe that it satisfied the regional work requirements)?

(b) Having earlier concluded that it was implausible that the agent would not have asked about the appellant’s employment history, and instead fabricated one, was the Tribunal now proceeding on the basis that that is in fact what had happened? Or was the Tribunal saying that the more plausible finding was that the agent did ask about the appellant’s employment history? In which case, what was the explanation for the inclusion of the incorrect employer name?

18 Ultimately, I consider that the only plausible reading of the Tribunal’s reasons is that it chose deliberately to leave those questions unresolved. That is because the Tribunal evidently considered that it could decide the case on a narrow basis, that did not require those questions to be answered. So much may be seen from the passage containing its dispositive reasoning, which I now set out in full (at [29]-[31]):

Assuming without accepting, the [appellant] engaged the unnamed agent to submit the visa application, it is evident the [appellant] took no active interest in or active responsibility for the accuracy of the information the agent put into the final form of her visa application, after it was completed and before it was submitted to the Department. In other words, the [appellant] was, at best, indifferent to the accuracy and completeness of the information that was provided to the Department in the application that was submitted for the purpose of obtaining her second Working Holiday visa.

On balance, the evidence does not satisfy the Tribunal the [appellant] is not complicit in the provision of false or misleading information to the Department in relation to her original work history because of her evident indifference to the accuracy and truthfulness of all the information provided to the Department in her application for her second Working Holiday visa.

On balance, the Tribunal is satisfied that there is evidence before the Tribunal that the [appellant] gave, or caused to be given to the … Department, information about her regional work history that is purposefully untrue, and that the impugned information is false or misleading in a material particular … .

19 In other words, the critical basis upon which the Tribunal made its decision was that:

(a) it would be assumed that the appellant engaged an agent to prepare and submit her application;

(b) making that assumption, there was no evidence that the appellant had sought, either herself or with the assistance of friends or anyone else, to check the application to be submitted on her behalf to ensure it was accurate and complete;

(c) in those circumstances, the appellant “took no active interest in or active responsibility for the accuracy of the information the agent put into the final form of her visa application, after it was completed and before it was submitted to the Department” and was thus “at best, indifferent” to its accuracy; and

(d) that indifference amounted to evidence that the appellant gave, or caused to be given, to the Minister information that was purposely untrue.

20 Of particular relevance is the fact that the Tribunal relied only on the period “after [the application] was completed and before it was submitted to the Department” as the period of time in which the appellant’s conduct was said to have demonstrated that she was “at best, indifferent”. In other words, the Tribunal was careful to avoid the need to resolve any issue about the precise circumstances in which the application came to be prepared and particular information included within it (beyond making the assumption that an agent was involved in its preparation). The starting point of its analysis was the completion of an application; the quality of purposeful falsity in relation to any incorrect information in that application was to be found solely in the “at best, indifference” of the appellant to its accuracy and completeness from that point onwards.

21 In those circumstances I think it is clear that the Tribunal regarded the fact that the appellant was “at best, indifferent” as sufficient to sustain a finding that there was evidence that the information in her application was “purposely untrue” (with the result that PIC 4020 was not satisfied), and decided the application on that basis.

22 It is clear, in other words, that the Tribunal did not, for example, find that the application contained “purposely untrue” information because of any fraud or deception on the part of the agent (for example, because the agent had fabricated employment details). There is no doubt, in light of its statement of principle at [10] that I have quoted above, that the Tribunal recognised that a finding that the agent had purposely included false information would have been a sufficient basis upon which to find that PIC 4020 was not satisfied, without needing, in addition, to find that the appellant knew or was otherwise complicit. The Tribunal’s explicit focus on the appellant’s “indifference” thus reinforces that the Tribunal was not making or relying on any finding about the conduct of the agent. The entire chain of reasoning by which the Tribunal disposed of the appellant’s case would have been irrelevant if the Tribunal had in fact found that the agent had fabricated information included in the application.

23 Similarly, the Tribunal plainly did not find, or base its decision on any finding, that the appellant knowingly or intentionally gave the agent false information. Once again, if such a finding had been made, then the Tribunal’s focus on the appellant’s “indifference” to the accuracy of the application would make no sense.

The Decision Below

24 In her application for judicial review of the Tribunal’s decision, the appellant raised one ground of review, being:

The AAT found at [31] that it was satisfied that “the [appellant] gave, or caused to be given to … the Department information about her regional work history that is purposefully untrue and [therefore] that the impugned information is false or misleading in a material particular as defined in PIC 4020”. As explained in Trivedi v Minister [2014] FCAFC 42 and noted by the AAT at [10], “an element of fraud or deception by some person is necessary to attract the operation of the provision”. In connection with this element of fraud or deception, the AAT erred in its finding at [31] because:

(a)    The AAT did not make an express finding that, in relation to the incorrect information, there was “an element of fraud or deception”.

(b)    Such a finding is not implicit in any other finding of the AAT.

(c)    The AAT did not consider whether there was, in relation to the incorrect information, “an element of fraud or deception”.

25 I would pause to interpolate that there is a slight infelicity in the expression of that ground, to the extent that it is premised on an assumption that the Tribunal “was satisfied” that the appellant gave, or caused to be given, false or misleading information. By its own terms, whether or not PIC 4020 is satisfied depends on whether “there is no evidence” of that fact, and the Tribunal expressed its conclusion in terms of being satisfied of the existence of evidence (as opposed to being satisfied of the fact). Potentially difficult questions can arise as to the precise way in which the “no evidence” language operates in relation to particular constituent elements of PIC 4020: see, for example, the discussion in Peraj v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 184 at [48]-59. Before me, however, the Minister accepted that the correct application of PIC 4020 required, in order for the criterion to be found not satisfied, the decision maker to be satisfied that the information in question was purposely false (and not just that there was some evidence that it was). Ultimately, though, for reasons that will become apparent, the outcome of this case does not, I think, depend on whichever view is taken of that particular question.

26 In any event, the kernel of the argument advanced below was the proposition that the Tribunal’s consideration of the question whether the incorrect information had the requisite character of being purposely untrue had miscarried. In particular, the appellant was contending that the Tribunal had not properly focussed on the requisite element of fraud or deception that would give the information that character.

27 The critical reasoning of the primary judge is found at [55]-[58] of her Honour’s reasons. At this point I will simply set out that passage without elaboration, and will return to it in more detail below in the context of my consideration of the appeal:

[T]he Tribunal turned its mind to all the evidence, including the [appellant’s] evidence given at the hearing, as to her involvement in the provision of information to her agent for the visa application. At [23] to [29] of the Tribunal’s reasons, the Tribunal looked at the nature of the untrue information provided and the [appellant’s] involvement in that provision, noting there was no issue that the information was untrue. At [29] of the reasons, after its assessment of the evidence given by the [appellant], the Tribunal found that the [appellant] was at best indifferent to the accuracy and completeness of the information that was provided to the department in her application.

At [31], the Tribunal made the ultimate finding that it was “satisfied there is evidence … that the [appellant] gave or caused to be given, … information about her regional work history that is purposefully untrue and that the impugned information is false or misleading in a material particular as defined in PIC 4020.” This finding was reasonably open on the evidence, being as follows:

(a)    On 27 October 2016, the [appellant] lodged an application for a working holiday visa electronically via the internet by her agent. To address the eligibility criteria for a history of regional work, information was included in the visa application, as to the [appellant’s] regional work history.

(b)    The [appellant] gave evidence before the Tribunal that the information as to the regional work history was untrue.

(c)    The [appellant] gave evidence before the Tribunal that her agent completed the form.

(d)    The [appellant] sought to excuse the presence of the impugned information by saying, inter alia, it was put in the visa application without her knowledge or consent by the agent and the [appellant] did not check the visa application for errors or omissions. Based on the evidence given by the [appellant], the Tribunal made a finding at [29], that at best the [appellant] was indifferent to the accuracy and completeness of the information that was provided in the application to the department for the purpose of obtaining the Second Visa. This was evidence of the [appellant’s] state of mind, that she was indifferent as to the information that either her agent or somebody else put in her visa application for the purpose of obtaining a visa.

I note the Full Court in Gill v Minister for Immigration and Border Protection [2016] FCAFC 142, recognised that if a visa applicant is indifferent as to whether an agent’s conduct in assisting the applicant went so far as to include unlawful or dishonest conduct, then the applicant has given the agent authority to lodge the application. In this case the [appellant’s] Counsel at the hearing before me said that at no time has the [appellant], either before the Tribunal or before this court, suggested that the [appellant’s] agent was fraudulent.

Therefore, the evidence identified in [56] of this judgment, has the necessary quality that it is evidence which the Tribunal could reasonably find pointed to the information being purposely untrue, in that it was put in the [appellant’s] visa application for the end of working a deception on the assessment of the [appellant’s] visa. The Tribunal’s finding, based on the [appellant’s] evidence, that the [appellant] was at best indifferent to the accuracy and completeness of information in her visa application, supports the finding by the Tribunal at [31] that the [appellant] gave or caused to be given information that was purposely untrue by somebody. As said the only purpose of putting the information in the visa application was an attempt to work a deception on the assessment of claims for the second visa and designed to meet criteria to obtain a visa.

(original emphasis)

the Appeal

28 The appellant relied on a single ground of appeal, the relevant aspect of which was as follows:

The Primary Judge erred in failing to find that the decision of the Administrative Appeals Tribunal dated 1 December 2020 (sic) was affected by jurisdictional error by reason of the failure to find that the Tribunal erred in its construction and application of the requirements of PIC 4020. The Tribunal’s error is evident in its failure to identify the factual matrix/body of evidence on which it relied on, for the purpose of concluding at [31] of the Decision that the impugned information that the [appellant] gave, or caused to be given to the Minister, an officer of the Department, or a relevant assessing authority, being the Department, information about her regional work history is purposefully untrue. There was no evidence before the Tribunal to suggest that the impugned information had the quality of purposeful falsity. There was no evidence of deception and/or fraud associated with the [appellant] and there was no evidence of a conscious effort to deceive rather than an innocent error.

29 The submissions made on behalf of the appellant were framed on the basis that that ground of appeal encompassed three errors. A crisp articulation of each error proved elusive, but a sufficient encapsulation of them, I think, is as follows:

(a) First, it was submitted that the Tribunal proceeded on an incorrect construction of PIC 4020. It was submitted that for information to be “false or misleading” within the meaning of PIC 4020, it must have the quality of purposeful falsity (meaning that someone must have knowingly or intentionally included incorrect information). It was submitted that the Tribunal did not identify any basis upon which the incorrect information in the appellant’s application could be found to have had that quality.

(b) Secondly, it was submitted that the Tribunal proceeded on a misunderstanding of the appellant’s case. In particular, it was submitted that the Tribunal attributed to the appellant a contention, that she did not make, that her agent had fabricated her employment details. To the extent the Tribunal proceeded on the basis that the agent did fabricate the employment information, it was submitted that there was no evidence to sustain such a finding.

(c) Thirdly, it was submitted that the Tribunal failed to make findings about the appellant’s work on the Puleras’ farm. It was submitted that the Tribunal should have found that, by reason of that work, the appellant had in fact satisfied the regional employment requirement. What was said to follow from that, as I understood the argument, was that the appellant had no reason to include false information concerning her regional work, which fact was said to further undermine the Tribunal’s conclusion that she had provided purposefully false information.

30 With some justification, counsel for the Minister submitted that it was not easy to relate all aspects of the appellant’s submissions to either the ground of appeal advanced in this Court or the ground of judicial review advanced in the Court below. In any event, counsel for the Minister helpfully focussed on the substance of the issue raised both before the primary judge and me.

31 The Minister also relied on a notice of contention, raising a single ground:

In addition to or in the alternative to the reasons given by the primary judge, the application below should have been dismissed because the Administrative Appeals Tribunal did not err in its construction or application of Public Interest Criterion 4020 in Sch 4 to the Migration Regulations 1994 (Cth). Specifically, the Tribunal did not fail to consider or fail to make a finding that the information as to the previous regional work history that was provided in the appellant’s Working Holiday visa application was false or misleading, in the sense of being purposely untrue, and carrying an element of fraud or deception.

32 That contention was raised against the possibility that the result of the appeal might depend on whether it was sufficient for the Tribunal to find that there was some evidence of purposeful falsity, or whether it needed to make an actual finding to that effect. I have already mentioned that, before me, the Minister accepted that it was necessary for the Tribunal to be satisfied that the information in question was purposely false. The primary judge’s reasons do not, with respect, disclose entirely clearly the way in which her Honour approached that issue (compare, for example, [50], [54], and [56] with [55] and [58]) but, as I have already said, I do not think that the ultimate outcome of the appeal would differ either way.

33 Counsel for the Minister submitted, and I agree, that the “main issue” arising on the appeal is whether the Tribunal erred in its construction and application of the requirements of PIC 4020, in that it failed to consider and make an express or implied finding that the incorrect information included in the appellant’s application for her second working holiday visa was false or misleading, in the sense of being purposely untrue, and characterised by an element of fraud or deception.

34 I will turn in a moment to consider the primary judge’s reasoning in relation to that issue. It is first convenient, however, to address the Minister’s submission that there were in fact two findings by the Tribunal in relation to purposeful falsity. In particular, the Minister submitted:

(a) First, that “the Tribunal found the appellant’s agent held the requisite state of mind for PIC 4020 as construed in Trivedi ” (presumably by reference to the following passage (at [27])):

On the [appellant’s] own case, the agent, rather than ask about her employment history, an obviously critical question in the context of the application, chose unilaterally to fabricate an employment history for her. The Tribunal finds it inherently implausible that the [appellant’s] paid agent, an agent she said she trusted, would not ask about her employment history, but instead, fabricate one for her.

(b) Secondly, that the Tribunal (at [29]-[30]) found the appellant had the requisite state of mind because she was “at best indifferent” to the accuracy and completeness of her application, such that the “evidence does not satisfy the Tribunal the [appellant] is not complicit” in the provision of purposely false information.

35 In relation to the first of those submitted findings, I have already explained, in my analysis of the Tribunal’s reasons above, that I do not consider that the passage in question can be construed as a finding by the Tribunal that the agent fabricated the employment history. To summarise, without exhaustively repeating, that analysis:

(a) in terms, the finding is a rejection, as implausible, of the possibility that the agent fabricated the information;

(b) although the Tribunal might have, when it “assumed without accepting” that the appellant engaged an agent to prepare her application, also proceeded on the assumed basis of the other aspects of the appellant’s evidence about her dealings with the agent that the Tribunal found implausible, its reasons, read fairly, reveal that it did not do so:

(i) the Tribunal found the appellant’s evidence about her dealings with the agent implausible in multiple respects, not all of which are capable of being reconciled with one another. It is simply not possible to know from the adoption of an assumption that an agent was engaged what the Tribunal found happened in relation to the preparation of the application;

(ii) if the Tribunal had found that the agent fabricated the employment information, then its subsequent focus on the appellant’s state of mind was completely irrelevant.

36 It follows that I do not accept that the Tribunal made a finding that the agent fabricated the appellant’s employment history.

37 I am satisfied, however, that the Tribunal did make a finding in terms of the second alternative for which the Minister contended (and I think the primary judge also accepted as much: see at [55] and [58]). That is to say, I consider that a fair reading of the Tribunal’s decision is that it was satisfied that the appellant was “at best indifferent” as to the accuracy and completeness of the information in her application (as opposed merely to finding that there was some evidence of that fact). I think that is the only fair way to read the following passage at [29] of the Tribunal’s reasons:

[I]t is evident the [appellant] took no active interest in or active responsibility for the accuracy of the information the agent put into the final form of her visa application, after it was completed and before it was submitted to the Department. In other words, the [appellant] was, at best, indifferent to the accuracy and completeness of the information that was provided to the Department in the application that was submitted for the purpose of obtaining her second Working Holiday visa.

38 The fundamental question is thus whether that finding was capable of sustaining the conclusion that the information had the requisite character of purposeful falsity.

39 It may be accepted, as the primary judge stated at [56(d)], that the finding that the appellant was “at best, indifferent to the accuracy and completeness” of the application was a finding that the appellant was “indifferent as to the information that either her agent or somebody else put in her visa application for the purpose of obtaining a visa”. The question, obviously enough, is whether indifference to the accuracy and completeness of information is capable of rendering inaccurate information purposely false. By her holding, at [56], that the evidence there identified was capable of supporting a finding of purposeful falsity, the primary judge plainly considered that the answer to that question was “yes”.

40 The relevance of the primary judge’s reference to the decision in Gill (at [57]) is not entirely clear. The issue in that case was quite different to that raised here. There, a visa applicant contended that the consequence of his agent’s fraud was that the application that had been submitted on his behalf was invalid. The reason the visa applicant wished to contend that his own application was invalid was because otherwise his agent’s fraud would have been sufficient, on its own, to preclude the satisfaction of PIC 4020 (see at [14]). In other words, consistently with Trivedi, if the agent had fabricated information, then it would be purposely false regardless of whether the applicant had known of that fact or not. The critical question in Gill was thus whether the extent of the applicant’s indifference to his agent’s conduct extended to fraudulent conduct, such that it could be said that the applicant authorised such fraudulent conduct and thus that that conduct did not render the visa application invalid.

41 The appellant here made no claim that her application was invalid. There was accordingly no dispute that the agent had the appellant’s authority to lodge the application. Nor was there any issue about whether the appellant should be responsible for, or bear the consequences of, the conduct of her agent. As I have already explained, if her agent had fabricated information in her application, then it would be purposely false regardless of whether the appellant was aware of it or not. The only issue here is whether the Tribunal’s finding of “indifference” could sustain a conclusion of purposeful falsity. On that question, Gill offers no assistance whatsoever. Perhaps, in those circumstances, the primary judge’s reference to Gill was for the purpose of distinguishing that case from the circumstances before her (and, in that way, emphasising that no question as to any fraud or deception on the part of the agent was involved here).

42 Turning, then, to the primary judge’s ultimate conclusion (at [58]), her Honour’s reasoning has several elements:

(a) First, her Honour held that the evidence to which she had referred at [56] was evidence that “pointed to the information being purposely untrue, in that it was put in the [appellant’s] visa application for the end of working a deception on the assessment of the [appellant’s] visa”. With respect, I do not agree. The high point of the evidence summarised at [56] was that the application was prepared by the agent and that the appellant was indifferent to the accuracy and completeness of the information contained within the completed application. I cannot see how those matters, without more, could ever sustain the conclusion that particular information was included in the application “for the end of working a deception on the assessment of the [appellant’s] visa”.

(b) Secondly, her Honour held that the “finding … that the [appellant] was at best indifferent to the accuracy and completeness of information in her visa application, supports the finding … that the [appellant] gave or caused to be given information that was purposely untrue by somebody”. Again, with respect, I do not agree. The fact of the appellant’s indifference is logically independent of the question whether another person included purposely untrue information in her application. Thus, the appellant’s indifference cannot support a finding that somebody else included purposely untrue information. In any event, the Tribunal did not, for the reasons I have explained, find that somebody other than the appellant purposely included such information. (And again, at the risk of excessive repetition, if somebody else did include purposefully untrue information in her application, then it would not matter at all whether the appellant was indifferent to that fact or not.) If the Tribunal’s conclusion is to be sustained, it can only be because the appellant’s indifference is enough to give the information the quality of purposeful falsity.

(c) Thirdly, her Honour held that “the only purpose of putting the information in the visa application was an attempt to work a deception on the assessment” of the application. Once more, with respect, I do not agree. That may certainly have been the effect of including the information. But it is obviously not true that such a purpose could have been the only explanation for the inclusion of the information in the application. (It is not necessary in this regard to be diverted by the submission made to her Honour, and dealt with at [60]-[62], that the Tribunal failed to consider a positive submission that the information came to be included by an innocent error.) It is enough to note that the Tribunal made no finding as to the purpose of any person in relation to the inclusion of the information. If it had found that some person had such a purpose, then that would have provided a very simple basis upon which to conclude that PIC 4020 was not satisfied. Instead, however, the Tribunal based its conclusion on the “indifference” of the appellant.

43 In argument before me, counsel for the Minister accepted that mere indifference could not support a finding of purposeful falsity, sufficient to render information “false or misleading” for the purposes of PIC 4020. With respect, that must be correct. The very notion of “purpose” (let alone “fraud or deception”) is inconsistent with mere “indifference”.

44 For that reason, the Minister emphasised that the Tribunal’s finding was that the appellant was “at best, indifferent”, with the result that the appellant was “complicit” in the provision of untrue information.

45 Despite the skilful argument of counsel, I am not persuaded that the words “at best” mean that the Tribunal made a finding that there were additional features that took the appellant’s state of mind beyond mere indifference. Rather, read in context, I think it is clear that the words “at best” are connected to the approach that the Tribunal decided to take in “assuming without accepting” that the appellant retained an agent to prepare her application. In other words, by saying “at best”, the Tribunal was making plain that it was deciding the case on the most favourable basis to the appellant. That is, the Tribunal was, in effect, saying that it doubted whether there was an agent at all but, even assuming that in the appellant’s favour, she was indifferent to the accuracy and completeness of the application submitted on her behalf.

46 Nor do I think the finding that the Tribunal was “not satisf[ied] … the [appellant] is not complicit” adds anything (even assuming it was in fact a finding). The notion of complicity in this context might have had several meanings. It could have meant, for example, that the appellant was complicit in some other person’s purposeful falsity. But that is obviously not the meaning that the Tribunal had in mind (both because it made no finding that any other person intentionally included false information and, even if it had, there would have been no need to demonstrate the appellant’s complicity in, or knowledge of, that fact). Or it might imply, as the Minister submitted, some degree of knowledge of falsity rising above mere indifference but short of actual knowledge (in the sense of a person being complicit, suggesting greater culpability, in a state of affairs, being the provision of inaccurate information). The problem with that is I do not see how the Tribunal can be taken to have intended, by that term, to have found some level of knowledge greater than mere indifference, but short of actual knowledge. (Was it wilful blindness, or reckless indifference, or constructive knowledge, for example? And, which of those might suffice to establish purposeful falsity?) The Tribunal made clear (at [30]) that the basis of the finding of complicity was the conclusion of indifference alone (i.e., she was complicit “because of her evident indifference”). For the same reasons that I have given in relation to mere indifference, therefore, I do not consider that the Tribunal’s finding of complicity is capable of supporting a conclusion of purposeful falsity.

47 For all those reasons, therefore, I find that the primary judge erred in dismissing the appellant’s application for judicial review.

48 Because I have found in favour of the appellant on what the Minister described as the “main issue” in the case, it is not necessary that I deal in detail with the other arguments advanced by the appellant. In brief, however:

(a) It will be apparent from my reasoning above that I do not agree that the Tribunal decided the application on the basis that the appellant’s case was that her agent had fabricated the employment details. If the Tribunal had proceeded on such a basis then there would have been no reason for it to consider the appellant’s “indifference”. There is thus no need to consider whether, if the Tribunal had determined the application on that basis, there was some evidence capable of supporting such a finding.

(b) Nor is it necessary to consider the appellant’s arguments that the Tribunal should have found that she satisfied the regional employment requirement by reason of her work on the Puleras’ farm. However, in circumstances where the Tribunal decided that the employment information had the relevant quality of purposeful falsity on the basis of the appellant’s “indifference” alone, it is difficult to see how factual questions relevant to the assessment of conscious motive to lie on the part of the appellant were relevant. In any event, because the issue could only ever have been relevant to the appellant’s subjective belief about whether she had complied with the requirement, it is unlikely that it could have been relevant for the Tribunal to determine objectively whether she had complied with the regional work requirement.

Conclusion

49 For the foregoing reasons, the appeal should be allowed with costs.

| I certify that the preceding forty-nine (49) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Owens. |
Associate:

Dated: 21 April 2026