1516140 (Migration)

[2016] AATA 4358

1516140 (Migration) [2016] AATA 4358 (1 September 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr HARWINDER SINGH

CASE NUMBER:  1516140

DIBP REFERENCE(S):  BCC2014/3130687

MEMBER:Gina Towney

DATE:1 September 2016

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for a Student (Temporary) (Class TU) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 572 Vocational Education and Training Sector visa:

·Public Interest Criterion 4020 for the purposes of cl.572.224 of Schedule 2 to the Regulations.

Statement made on 01 September 2016 at 1:33pm

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 5 November 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 20 November 2014. Initially the delegate refused to grant the Visa on the basis that the applicant did not satisfy cl. 572.223, in that he did not satisfy the genuine temporary entrant requirement. The applicant then appealed the decision to the Tribunal.  On 17 April 2015 the decision was remitted to the department for further consideration with the finding that the applicant satisfied cl. 572.223, and did satisfy the genuine temporary entrant requirements.

3. On 5 November 2015 the delegate again refused to grant the visa. The decision was 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) in that the applicant did not satisfy the Public Interest Criteria (PIC) 4020, because he had provided information that was false or misleading.

4. More specifically, the delegate recorded that the applicant had provided evidence in support of his application, including evidence of an overdraft account in the name of his father, secured against fixed deposits. The delegate recorded that this information was referred overseas, and it was found that on 5 August 2015 the fixed deposit accounts had been closed, and therefore the overdraft facility was no longer available. The delegate also recorded that on 11 August 2015 the applicant had been invited to comment on or respond to this information. 

5. On 19 August 2015 the applicant had responded, and stated that his father had not been aware that he must continue to hold the funds during the appeal process, and had therefore use them for a business or investment purpose.  On the same date the applicant also provided evidence of a second overdraft facility held in his father’s name, secured against fixed term deposits, and dated 18 August 2015.

6. The delegate appeared to have considered these arguments, but did not find them feasible in the overall circumstances. The applicant then appealed to the Tribunal, and provided a copy of the departmental decision.

7. The applicant appeared before the Tribunal on 1 September 2016 to give evidence and present arguments. The applicant was assisted in his oral evidence by Mr Harjeet Singh, the applicant’s cousin.  Mr Harjeet Singh read out written responses written by the applicant, to accommodate the applicant severe stutter.  The Tribunal hearing was conducted with the assistance of an interpreter in the Hindi (Indian) and English languages.  The applicant was represented in relation to the review by his registered migration agent.

8. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. 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).

10. 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?

11. 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.

12. 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.

13. 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.

14. The Tribunal finds that the applicant provided evidence regarding his financial circumstances to the Department on 19 August 2015. This evidence included documents from HDFC Bank, stating that the applicant’s father had an overdraft facility, (the Tribunal notes that although the letter is undated, accompanying documents are dated 17 December 2014).   The Tribunal also understands that the account was closed on 5 August 2015. As such the applicant did provide information that was false or misleading in a material particular in relation to the application for the visa.  This is because the information was false or misleading at the time it is given, and it was also relevant the criteria the Minister may consider when making a decision on an application in relation to the visa application or a visa held in the 12 months before the visa application was made.

15. The Tribunal has accepted the applicant’s evidence that he was unaware that the bank account had been closed at the time he provided the documents to the department on 19 August 2015. However, the Tribunal also notes that this provision applies whether or not the document or information was provided by the applicant knowingly or unwittingly.

16. However, the Tribunal has accepted the applicant’s evidence on face value, being that he did not know that his father had close the account, and his father did not know that he was required to keep the account open during the appeal process. Keeping in mind that an element of fraud or deception by some person is necessary to attract the operation of the provision: Trivedi v MIBP [2014] FCAFC 42, and having accepted the applicant’s evidence as credible, the Tribunal finds that the applicant meets cl.4020(1).

    Has a visa previously been refused on the basis of a failure to satisfy cl.4020(1)?

17. Clause 4020(2) requires the Tribunal to be satisfied that the applicant and each member of the family unit have not been refused a visa because of a failure to satisfy cl.4020(1) in the period commencing 3 years before the application was made and ending when the visa is granted or refused. This requirement does not apply to a person who was under 18 at the time the application for the refused visa was made: cl.4020(2AA). 

18. There is no evidence before the tribunal that the applicant, or any member of the family unit, (as defined in r.1.12) have been refused a visa in the relevant period because of a failure to satisfy cl.4020(1). 

19. Therefore, cl.4020(2) does not apply.

    Has the applicant satisfied the identity requirements?

20. Clause 4020(2A) requires an applicant satisfy the Tribunal as to his or her identity.  There is no evidence before the tribunal that the applicant’s identity is other than as claimed, therefore on the evidence before it, and in the absence of any evidence to the contrary, the Tribunal finds the applicant meets cl.4020(2A).

    Has a visa previously been refused on the basis of a failure to satisfy cl.4020(2A)?

21. Clause 4020(2B) requires that neither the applicant nor any family unit member have been refused a visa because of a failure to satisfy the identity requirements in cl.4020(2A) during the period starting 10 years before the application was made and ending when the visa is granted or refused. This requirement does not apply to a person who was under 18 at the time the application for the refused visa was made: cl.4020(2BA).

22. There is no evidence before the Tribunal that the applicant or any member of the family unit (as defined in r.1.12) have been refused a visa in the relevant period because of a failure to satisfy cl.4020(2A);

23. Therefore cl.4020(2B) does not apply.

24. On the basis of the above, the applicant does satisfy PIC 4020 for the purposes of cl.572.224.

    DECISION

25. The Tribunal remits the application for a Student (Temporary) (Class TU) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 572 Vocational Education and Training Sector visa:

    ·Public Interest Criterion 4020 for the purposes of cl.572.224 of Schedule 2 to the Regulations.

    Gina Towney
    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. 

    …