1513328 (Migration)

[2016] AATA 3493

1513328 (Migration) [2016] AATA 3493 (9 March 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms WAN SIN LU

CASE NUMBER:  1513328

DIBP REFERENCE(S):  BCC2015/1140648

MEMBER:Suzanne Carlton

DATE:9 March 2016

PLACE OF DECISION:  Adelaide

DECISION:The Tribunal affirms the decision not to grant the applicant a Working Holiday (Temporary) (Class TZ) visa.

Statement made on 09 March 2016 at 9:45am

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 8 September 2015 to refuse to grant the applicant a Working Holiday (Temporary) (Class TZ) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 16 April 2015. The delegate refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl.417.221(2)(b) of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the delegate found that the applicant did not meet Public Interest Criterion 4020 (PIC 4020) and the delegate was not satisfied that there were compelling reasons to justify the waiver of PIC 4020.

3. Following the application to the Tribunal for review of the delegate’s decision, the Tribunal wrote to the applicant pursuant to s.359(2).  That letter asked for the applicant to provide specified information within two weeks, by 8 March 2016.  That letter advised the applicant that if she did not provide the specified information in that time period, she may lose her right to a hearing.

4. As at the date and time of writing, no response from the applicant was received and no information provided.

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.417.221(2)(b) 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: 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.

11. The delegate found that the applicant had amended the start date for the specified work she was required to complete on the form 1263 she had provided to the Department.  The supporting documentation provided by the applicant indicated that she had completed only 56 days of specified work, rather than the 101 days claimed on the form 1263. Finally, an officer of the Department contacted the employer who confirmed that the applicant had not completed at least 88 days in their employ. 

12. The delegate provided the applicant with an opportunity to comment.  The applicant claimed that the modification to the form 1263 was made by the employer and that her supervisor for her specified work had since left the company. 

13. The delegate did not accept this explanation.  Further, the delegate noted that no evidence of compelling reasons was provided by the applicant.  Accordingly, the delegate refused the application, finding that the applicant had provided false and misleading information in a material particular to the Department and did not therefore meet PIC 4020.

14. Having considered the correspondence on the file between the Department and the employer, as well as between the Department and the applicant, the Tribunal invited the applicant to provide information as to compelling reasons to justify the waiver of PIC 4020 or, in the alternative, to provide information as to why the delegate’s findings as to the provision of false and misleading information was incorrect.  As noted, no response was provided within the timeframe.

15. The Tribunal considers that the applicant has given to the delegate information that is false or misleading in a material particular as defined in clause 4020(5), that is information that is:

    ·false or misleading at the time it is given - the number of days of specified work claimed to have been undertaken, and

    ·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 – a minimum amount of three months’ specified work is a requirement for this visa.

    in relation to the visa application or a visa held in the 12 months before the visa application was made.

16. Therefore, the applicant does not meet cl.4020(1).

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

17. 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.

18. For the following reasons, the Tribunal is not satisfied that the requirements should be waived. The applicant has not provided any information to the Tribunal that there are either:

    ·compelling circumstances that affect the interests of Australia, or

    ·compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen,

    that justify the granting of the visa.

19. Therefore the requirements of cl.4020[(1) should not be waived.

20. On the basis of the above, the applicant does not satisfy PIC 4020 for the purposes of cl.417.221(2)(b).

    DECISION

21. The Tribunal affirms the decision not to grant the applicant a Working Holiday (Temporary) (Class TZ) visa.

    Suzanne Carlton
    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 a 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.  

    …