1514547 (Migration)

[2016] AATA 3409

1514547 (Migration) [2016] AATA 3409 (29 February 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Suet Tai

CASE NUMBER:  1514547

DIBP REFERENCE(S):  CLF2015/76171

MEMBER:Christopher Smolicz

DATE:29 February 2016

PLACE OF DECISION:  Adelaide

DECISION:The Tribunal affirms the decision not to grant the applicant a GC – Training and Research (Class GC) visa.

Statement made on 29 February 2016 at 11:22am

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 7 October 2015 to refuse to grant the applicant a GC – Training and Research (Class GC) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 21 April 2015.

3. The criteria for a Subclass 402 visa are set out in Part 402 of Schedule 2 to the Migration Regulations 1994 (the Regulations).

4. The primary criteria must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria. 

5. Applicants seeking to satisfy the primary criteria must meet the ‘Common criteria’, as well as the criteria of one of three alternative visa streams: the Occupational Trainee stream, the Research stream, or the Professional Development stream.

6. In the present case, the applicant is seeking the visa in the Occupational Trainee stream. This stream is for persons who want to improve their occupational skills (including in the field of sport) through participation in workplace-based training in Australia. The delegate refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl.402.216(1) of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the applicant did not satisfy Public Interest Criteria (PIC) 4020.

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

   Consideration of claims and evidence

8. The issue in this review is whether the applicant meets PIC 4020 as required by cl.402.216(1) for the grant of the visa.

9. 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).

10. The Tribunal finds that in the visa application form (form 1402) the applicant answered “NO” in response to the following questions:

    ·Part B Your Details Q.13 Are you or have you been known by any other name?

    ·Part D Visa Details Q.29 Have you or any other person included in this application previously travelled to or applied to travel to Australia?

    ·Part M Character Details: Have you or any other person included in this application overstayed a visa in any country (including Australia)?

11. The Tribunal finds that information on the Departmental system contradicts the information provided by the applicant in her visa application form.

12. According to the Department’s records the applicant has in fact previously been known as “Xiaoquin Qui” and has previously travelled to Australia and has previously overstayed her visa in Australia.

13. The information on the Departmental system is relevant because it suggests that the applicant has provided to the Minister information that is false or misleading in a material particular to the application for the visa.

14. The Tribunal wrote to the applicant on 8 February 2016 pursuant to sections 359A of the Act and advised her of the relevance and consequences of the adverse information detailed above. The letter also informed the applicant that 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). Pursuant to s.359(2) of the Act the Tribunal invited the applicant to provide information in accordance with the requirements of cl.4020(4) justifying the granting of the visa.

15. The applicant has not responded to the Tribunal’s letter by the due date, nor has she sought an extension of time to do so.  More importantly, the applicant has not provided the information that was requested and therefore s.359C applies and the applicant is not entitled to appear before the Tribunal. In the circumstances the Tribunal has proceeded to decision. 

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

16. 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.

17. 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.

18. 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.

19. Having regard to the information provided by the applicant in her signed Application for a Training and Research visa (form 1402) detailed above, the Tribunal finds the applicant has given, or caused to be given, to the Minister information that is false in a material particular.

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

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

21. The requirements of cl.4020(1) 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.

22. The Tribunal notes the applicant is a citizen of Hong Kong Special Administrative Region, People’s Republic of China. She is single. Most recently she arrived in Australia on 18 February 2015 as the holder of tourist visa which was valid until 18 May 2015. 

23. The applicant has provided no information regarding (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.

24. As detailed above the Tribunal wrote to the applicant on 8 February 2016 seeking information on why the requirements of cl.4020(1) can be waived. The Tribunal finds that there is no information justifying why the requirements of cl.4020(1) should be waived.

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

26. On the basis of the above, the applicant does not satisfy PIC 4020 for the purposes of cl.402.216(1).

    DECISION

27. The Tribunal affirms the decision not to grant the applicant a GC – Training and Research (Class GC) visa.

    Christopher Smolicz
    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. 

    …