1502920 (Migration)

[2016] AATA 4360

1502920 (Migration) [2016] AATA 4360 (12 September 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Gurmukh Singh

CASE NUMBER:  1502920

DIBP REFERENCE(S):  BCC2014/1195899

MEMBER:Adrian Ho

DATE:12 September 2016

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.

Statement made on 12 September 2016 at 5:41pm

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 20 February 2015 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 13 May 2014. The delegate refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl.572.224 of Schedule 2 to the Migration Regulations 1994 (the Regulations) which requires that Public Interest Criterion 4020 (PIC 4020) is met.

3. The applicant appeared before the Tribunal on 8 September 2016 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.

4. The applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing.

5. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The issue in this review is whether the visa applicant meets Public Interest Criterion 4020 (PIC 4020) as required by cl.572.224 for the grant of the visa. Broadly speaking, this requires that:

   ·there is no evidence that the applicant has given, or caused to be given, to the Minister, an officer, the Tribunal, a relevant assessing authority, or Medical officer of the Commonwealth, a bogus document or information that is false or misleading in a material particular in relation to the application for the visa or a visa that the applicant held in the 12 months before the application was made: cl.4020(1); and

   ·the applicant and each member of the family unit has not been refused a visa because of a failure to satisfy cl.4020(1) during the period starting 3 years before the application was made and ending when the visa is granted or refused, unless the applicant was under 18 at the time the application for the refused visa was made: cl.4020(2) and (2AA); and

   ·the applicant satisfies the Minister as to his or her identity: cl.4020(2A); and

   ·neither the applicant nor any family unit member has been refused a visa because of a failure to satisfy cl.4020(2A) during the period starting 10 years before the application was made and ending when the visa is granted or refused, unless the applicant was under 18 at the time the application for the refused visa was made: cl.4020(2B) and (2BA).

7. The requirements in cl.4020(1) and (2) can be waived if there are certain compelling or compassionate reasons justifying the granting of the visa: cl.4020(4). However, this waiver does not apply to the identity requirements in cl.4020(2A) and (2B). PIC 4020 is extracted in the attachment to this decision.

   Has the applicant given, or caused to be given a bogus document, or information that is false or misleading in material particular?

8. The term ‘information that is false or misleading in a material particular’ is defined in cl.4020(5) and the term ‘bogus document’ is defined in s.5(1) of the Act (see the attachment to this decision). In contrast to the definition of ‘information that is false or misleading in a material particular’ in cl.4020(5), the reference in the definition of bogus document to a document that was obtained because of a ‘false or misleading’ statement has no requirement that it be relevant to a criterion for the grant of the visa: Arora v MIBP [2016] FCAFC 35; Batra v MIAC [2013] FCA 274.

9. The requirement in cl.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: cl.4020(3). It also applies whether or not the document or information was provided by the applicant knowingly or unwittingly.

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.

    Findings

11. The applicant provided a copy of the Department’s decision to the tribunal and in that document the delegate notes the following, which was put to the applicant at hearing:

    a.The applicant gave to the delegate financial documents in the name of his father from the Punjab and Sind Bank, Purain Branch, as to deposits held by his father with the bank;

    b.The documents were given in relation to the visa application of the applicant;

    c.The Australian High Commission in India contacted the Punjab and Sind Bank, Purain Branch in July 2014 and the bank advised that it had not issued the documents;

    d.The applicant was invited to comment and procured from the Bank statements from September 2014 to the effect that the documents were issued by the bank and that an upgrade of the bank’s systems had led the bank not to be able to confirm the issuance of the documents when contacted by the Australian High Commission;

    e.In December 2014, the Australian High Commission again contacted the Punjab and Sind Bank, Purain Branch and the bank again advised that it had not issued the documents in question;

    f.The applicant was again invited to comment on this information and asserted that the deposits existed as claimed in the documents and also provided evidence of financial holdings in a separate bank: the Punjab National Bank.

12. All of the information put to the applicant above was taken from the copy of the delegate’s decision given to the tribunal (f.15).

13. The applicant did not dispute this history of events as recorded by the delegate.

14. The applicant proffered that the bank branch was located in a rural area and surmised that due to the bank’s upgrade of its systems, it could not confirm the existence of the deposits and the issuance of the documents on the two occasions it was contacted by the Australian High Commission.

15. It was made plain to the applicant that the documents were bogus documents as defined in s.5 if there was a reasonable suspicion they purport to have been, but were not, issued in respect of the person named in them or were counterfeit.

16. Having been given a summary of the requirements of PIC 4020, it was emphasised to the applicant that the question in this case was whether there was no evidence the applicant had given a bogus document to an officer of the Department or the Minister in relation to the visa application.

17. It was suggested that the response of the bank on two occasions to the Australian High Commission, as noted at f.15, was evidence establishing a reasonable suspicion that the bank documents the applicant gave to the delegate from the Punjab and Sind Bank were counterfeit and/or were not issued in respect of the person named in the documents although they purported to be so issued, and that therefore they were bogus documents as defined.

18. It was further suggested that for these reasons there was evidence the applicant had given at least one bogus document to the Minister’s delegate, an officer of the Department, and that by doing so PIC 4020(1) might have been breached.

19. The applicant lamented that the bank had been unable to confirm issuance of the documents and unable to confirm, when asked to do so by the Australian High Commission, the deposits that he claims were in place.

20. The tribunal observed that it appeared curious that the bank was able to give the applicant’s father the necessary confirmations, but not on two occasions, the Australian High Commission; including in December 2014 some months after apparently confirming the documents and deposits in September 2014.

21. As suggested, the tribunal finds that neither the applicant’s protestations that the deposits were in place and the documents were issued by the bank, nor the bank’s own confirmation of this in September 2014, displace the fact that the bank was again unable to confirm issuance of the documents in December 2014. 

22. As suggested therefore, there remains a reasonable suspicion that the bank documents the applicant gave to the delegate from the Punjab and Sind Bank were counterfeit and/or were not issued in respect of the person named in the documents although they purported to be so issued, and that therefore they were bogus documents as defined.

23. The applicant gave those documents to the Minister’s delegate in relation to the visa application, and by doing so breached PIC 4020(1).

24. As suggested, the provision of bank documents from the Punjab National Bank might be one way for the applicant to demonstrate access to funds; however, that does not address the question of whether PIC 4020(1) is met.

    Should the requirements of cl.4020(1) or (2) be waived?

25. The requirements of cl.4020(1) and (2) 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 r.1.03), that justify the granting of the visa.

26. The expressions ‘compelling circumstances’ and ‘compassionate or compelling circumstances’ are not defined for these purposes. To be compelling, the circumstances must force or drive the decision-maker irresistibly to be satisfied: see Plaintiff M64/2015 v MIBP [2015] HCA 50. The ordinary meaning of ‘compassionate’ relates to feelings of sympathy, sorrow, pity or concern for others.

27. The requirements of the ‘waiver’ were explained to the applicant at hearing and he and his migration agent indicated that he did not wish to raise any circumstances relevant to an exercise of the waiver.

28. The tribunal cannot identify any circumstance based on which the waiver might be exercised, and in particular cannot identify any circumstances affecting the interests of Australia, an Australian permanent resident or citizen, or a New Zealand citizen, and therefore the Tribunal is not satisfied that the requirements of PIC 4020(1) should be waived.

    On the basis of the above, the applicant does not satisfy PIC 4020 for the purposes of cl.572.224.Genuine Temporary Entrant

29. The applicant was invited to provide information relevant to the Genuine Temporary Entrant criterion contained in cl.572.223(1)(a) prior to the hearing, and also provided a copy of Direction 53.

30. Where used in this decision:

    a.The applicant refers to the first-named applicant;

    b.COE refers to Certificate of Enrolment;

    c.PRISMS refers to the Provider Registration and International Students Management System of the Department of Education and Training;

    d.VET refers to Vocational Education and Training;

    e.The Department refers to the Department of Immigration and Border Protection;

    f.Direction 53 or the Direction refer to Direction No.53, Assessing the genuine temporary entrant criterion for Student visa application; and

    g.IELTS refers to the International English Language Testing System.

31. In considering whether the applicant satisfies this criterion, the Tribunal must have regard to Direction No.53, Assessing the genuine temporary entrant criterion for Student visa applications, made under s.499 of the Act. This Direction requires the Tribunal to have regard to a number of specified factors in relation to:

    ·the applicant’s circumstances in their home country, potential circumstances in Australia, and the value of the course to the applicant’s future;

    ·the applicant’s immigration history, including previous applications for an Australian visa or for visas to other countries, and previous travel to Australia or other countries;

    ·if the applicant is a minor, the intentions of a parent, legal guardian or spouse of the applicant; and

    ·any other relevant information provided by the applicant, or information otherwise available to the decision maker, including information that may be either beneficial or unfavourable to the applicant.

32. The Direction indicates that the factors specified should not be used as a checklist but rather, are intended to guide decision makers to weigh up the applicant’s circumstances as a whole, in reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion.

33. At hearing, the applicant was:

    a.Given a summary of the mandatory criterion that the applicant is a genuine applicant for entry and stay as a student as required by the Regulations;

    b.Informed that a major issue on review was whether the applicant was a genuine applicant for entry and stay as a student because the applicant intends genuinely to stay in Australia temporarily having regard to the applicant’s circumstances and immigration history, the considerations laid out in Direction No.53 as relevant to the applicant, and any other relevant matter;

    c.Informed that the criterion has as its focus an examination of the intentions of the applicant: whether they are for stay as a student, whether they are genuine, and where they are for a temporary stay in Australia;

    d.Given an overview of the considerations laid out in Direction No.53 as summarised above;

    e.Informed that a complete copy of Direction No.53 had been provided to the applicant along with the invitation to the tribunal hearing;

    f.Informed that all subclasses of the Class TU visa have equivalent ‘genuineness’ criteria, and that if the criterion was not met, it would likely not be met for each of those subclasses.

34. The tribunal then had a discussion with the applicant regarding the issue which focused on the considerations laid out in Direction 53.

    Findings

35. The applicant gave evidence that:

    a.He came to Australia in 2009 on a student visa;

    b.At that time, he already had a career ambition to open one or more restaurants in India;

    c.He completed in Australia VET sector certificate II and III in commercial cookery and a diploma of hospitality by 2011, and went on to complete a diploma of management in 2012, and diploma of business in 2013;

    d.He made the visa application now under consideration in 2013 seeking to study a certificate IV in business administration (completed in 2015), a diploma of business administration (completed in August 2016), and the course he now wishes to study, a diploma of management (now called, a diploma of leadership and management).

36. On the applicant’s evidence, and by reference to relevant considerations laid out in Direction 53, the applicant’s oral evidence, and written material provided by the applicant to the Department and tribunal, the applicant has had, and continues to have, incentive to cease residence in Australia:

    a.The applicant had reasonable explanations for why the applicant chose Australia as a study destination, for valuing Australian education and the experiences that brings, and for having made a selection of education providers;

    b.The applicant has close family members and friends outside Australia, which include his parents and sister in India ;

    c.The applicant’s family own land in India which was income producing and upon which he might open a restaurant;

    d.The applicant is the only son;

    e.The applicant does not have close family members in Australia;

    f.The applicant has articulated a plan to utilise the skills and knowledge gained in Australia in pursuits outside Australia.

37. The tribunal suggested to the applicant that the diploma of hospitality took in subjects which had to do with the management and running of one or more hospitality establishments such as the restaurants he already intended to open in India which he obtained that diploma in 2011, and by 2013, he had also added additional VET sector management and business qualifications. 

38. In a long discussion, the tribunal suggested that by 2013, the applicant had had, objectively, sufficient skills, knowledge and qualifications in order to embark upon the opening of one or more restaurants in India.  The tribunal suggested that since completing the diploma of hospitality the applicant had spent much of the last five years studying general business and management VET sector courses which had significant similarity with each other, and each of which did not appear to offer significant incremental value to the applicant’s stated career objective when placed next to the other general business and management VET sector qualifications held by the applicant.  As suggested, this is also true of the only course left in the proposal: the diploma of management (now called, a diploma of leadership and management).

39. The applicant’s response was to insist that each of these VET sector courses was integral to his plan to open a chain of restaurants in India.

40. While acknowledging that different people may have different levels of confidence, the tribunal considers that if that applicant intends to stay in Australia temporarily, and intended to stay in Australia temporarily, he would have considered himself sufficiently skilled and qualified to open restaurants in India by the completion of the diploma of business and diploma of management in 2013 and as suggested, he would not have made (in 2013) the visa application now under consideration.

41. Overall, the tribunal finds that despite having very real personal incentives to cease residence in Australia (noted above), the applicant has by his conduct shown that he is unwilling to depart Australia after having acquired qualifications and acumen in fields objectively sufficient to embark upon the overseas enterprise he claims for himself where he claims his wish is to study in Australia to acquire acumen which he will take overseas.

42. The tribunal therefore discounts the weight claimed for the various incentives (noted above) the applicant has to cease residence in Australia.

43. For all of the above reasons, the tribunal finds that the applicant does not wish or intend to leave Australia and wishes to remain in and live in Australia.

44. On the basis of the above, and having considered the applicant’s circumstances, immigration history, and other matters it considers relevant, the Tribunal is not satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant does not meet cl.572.223(1)(a) and, as suggested, the equivalent criterion for each other subclass in Class TU.

45. The Tribunal has found the applicant does not meet an essential requirement of cl.572.223. With the exception of Subclass 580, the other subclasses within visa Class TU all contain an identical requirement. For reasons given above, the Tribunal also finds that the applicant does not meet the requirements of these subclasses. In respect of Subclass 580 (Student Guardian) visa, there is no material before the Tribunal that suggests the applicant meets the prescribed criteria for that subclass.

46. As the Tribunal has found that the applicant does not meet multiple criteria for the grant of a student visa, it must affirm the decision under review.

    DECISION

47. The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.

    Adrian Ho
    Member

    ATTACHMENT

    Migration Regulations 1994

    Schedule 4

    4020(1)         There is no evidence before the Minister that the applicant has given, or caused to be given, to the Minister, an officer, the Tribunal during the review of a Part 5 reviewable decision, a relevant assessing authority or a Medical Officer of the Commonwealth, a bogus document or information that is false or misleading in a material particular in relation to:

    (a)the application for the visa; or

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

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

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

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

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

    (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.

    (2A)The applicant satisfies the Minister as to the applicant’s identity.

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

    (a)starting 10 years before the application was made; and

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

    neither the applicant, nor any member of the family unit of the applicant, has been refused a visa because of a failure to satisfy the criteria in subclause (2A).

    (2BA)However, subclause (2B) 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.

    …

    Migration Act 1958

    s.5      Interpretation

    (1) In this Act, unless contrary intention appears:

    …

    bogus document, in relation to a person, means a document that the Minister reasonably suspects is a document that:

    (a)purports to have been, but was not, issued in respect of the person; or

    (b)is counterfeit or has been altered by a person who does not have authority to do so; or

    (c)was obtained because of a false or misleading statement, whether or not made knowingly. 

    …