1912112 (Migration)

[2021] AATA 2448

1912112 (Migration) [2021] AATA 2448 (8 May 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1912112

MEMBER:Wendy Banfield

DATE:8 May 2021

PLACE OF DECISION:  Sydney

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

Statement made on 08 May 2021 at 6:13pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) – Subclass 500 (Student) – subsequent entry – dependant on wife’s visa – false or misleading information in visa application – previous visa refusals and overstay not declared – provision of some correct information about later overstay – no documents or memory about details of earlier and later refusals – reliance on agent – compassionate or compelling circumstances justifying grant of visa – care for child while wife studies – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5(1), 65
Migration Regulations 1994 (Cth), Schedule 2, cl 500.317(1), Schedule 4, cl 4020(1)

CASES
Arora v MIBP [2016] FCAFC 35
Batra v MIAC [2013] FCA 274
Kaur v MIBP [2017] FCAFC 184
Trivedi v MIBP [2014] FCAFC 42
Plaintiff M64/2015 v MIBP [2015] HCA 50

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

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 Home Affairs on 24 April 2019 to refuse to grant the applicant a Student (Temporary) (Class TU) (Subsequent Entrant) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 9 November 2018. The delegate refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl 500.317(1) of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) because it was determined the applicant had provided false and misleading information when applying for the visa therefore the requirements of cl.4020(1) were not met.

   Background

3. The applicant is a national of Taiwan and is currently [Age] years old. He applied for the visa which is the subject of this review as a student dependent. His wife is enrolled as a student and holds a Student (Temporary) (Class TU) visa. She is enrolled to study in Australia until 2022. The applicant and his spouse also have a daughter with them in Australia.

4. The applicant appeared before the Tribunal on 2 November 2020 to give evidence and present arguments.

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

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in this review is whether the visa applicant meets Public Interest Criterion 4020 (PIC 4020) as required by cl 500.317(1) 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: PIC 4020(1); and

   ·the applicant and each member of the family unit has not been refused a visa because of a failure to satisfy PIC 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: PIC 4020(2) and (2AA); and

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

   ·neither the applicant nor any family unit member has been refused a visa because of a failure to satisfy PIC 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: PIC 4020(2B) and (2BA).

8. The requirements in PIC 4020(1) and (2) can be waived if there are certain compelling or compassionate reasons justifying the granting of the visa: PIC 4020(4). However, this waiver does not apply to the identity requirements in PIC 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?

9. The term ‘information that is false or misleading in a material particular’ is defined in PIC 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 PIC 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.

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

11. 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.

12. The Department had based their decision on the following circumstances:

    On 09/11/2018, the applicant lodged a Student visa application wherein, they answered ‘NO’ to the question below:

    Has the applicant, or any person included in this application, ever had an application for entry or further stay in Australia or any other country refused, or had a visa cancelled?

    On 14/11/2018, the applicant provided a Form 1023 - Notification of Incorrect Answer(s) through their authorised representative and stated: "The correct answer should be 'Yes' to the following question under 'Visa History': 'Has the applicant, or any person included in this application, ever had an application for entry or further stay in Australia or any other country refused, or had a visa cancelled?"

    They further stated, “The applicant was aware that he overstayed his student visa which was expired on 10 Oct 2007. After that, the applicant might have applied for a further visa application and been refused which the applicant was not aware of. The applicant had appointed an agent to apply for visa application and act on his behalf; however, the applicant did not receive any communications from that agent regarding his visa applications and later  the applicant lost contact with this agent and could not find this agent. So to his own knowledge, the applicant has no idea whether he had been refused any visa application after 2007 while he was in Australia."

    Departmental records confirm that the visa applicant has had a Student (Class TU Subclass 500) visa refused on 30/06/2000 and a Protection (Class XA Subclass 866) visa refused on 24/11/2000.

    At time of application, the visa applicant has therefore provided or caused to provide false and misleading information in a material particular in relation to this application.

    On 15/01/2019, a natural justice letter was sent to visa applicant, providing them with an opportunity to comment on the information suspected to be false or misleading in a material particular. The applicant was provided with 28 days to provide comment on the suspected false information supplied to the department.

    On 12/02/2019, the applicant submitted the following documents to the department:

    ·A Notification of incorrect answer(s) Form

    ·A submission from the Migration Agent

    In the submission, the Migration Agent mentioned “The reasons visa applicant didn’t provide his year 2000’s visa refusals, are that they were done by his then migration agent in Sydney, and he didn’t have any record of those refusals letters, nor could he remember the details of those after 19 years”. I do not consider this information to be strong evidence demonstrating an innocent mistake was made. I find it is more likely that the applicant purposely misled the department because of not declaring previous visa refusals.

13. The delegate found the applicant had provided false information in relation to his visa application with an intention to mislead.

14. At the Tribunal hearing the applicant was asked about the circumstances that led to his Student (dependent) visa being refused. According to the applicant, when his wife applied for a Student visa, an agent applied on his (the applicant’s) behalf and he just signed the papers. During the Tribunal hearing, the representative claimed that the correct information had been provided before any decision was made. For this reason, the applicant did not accept he had provided misleading information.

15. The Tribunal considered the information the applicant provided at the time of application as well as the Department’s findings in the matter and the applicant’s response. The Tribunal notes that in his original application form, and in the subsequent correction, the applicant only referred to having overstayed his 2007 visa. Until the Department wrote to him, he did not disclose that he had applied for and been refused visas in 2000. It appears the Department’s letter of 15 January 2019 inviting him to comment or respond to the adverse information was the only reason it was disclosed. The reason given was that the applications were done by a former agent, he did not have any records and could not remember the details. The Tribunal notes the Department’s letter prompted the applicant (through his representative) to submit another notice of incorrect information that included the visa refusals in 2000. However, this does not change the fact that the misleading information was provided at the time of application. The information was material to the delegate’s assessment of whether the applicant met the criteria for the grant of a Student (dependent) visa.

16. The Tribunal concludes that there is 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, information that is false or misleading in a material particular in relation to the application for the visa that is the subject of this review.

17. Therefore, the applicant does not meet PIC 4020(1).

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

18. The requirements of PIC 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 reg 1.03), that justify the granting of the visa. The decision-maker must first be satisfied that there are such circumstances, then must consider whether to exercise the discretion to waive the requirements, having regard to those circumstances: Kaur v MIBP [2017] FCAFC 184.

19. 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.

20. For the following reasons, the Tribunal is not satisfied that the requirements should be waived.

21. The applicant submitted reasons why he wants to remain in Australia until his wife completes her studies. In the representative’s submission of 26 October 2020 it was claimed “The applicant wishes to accompany his wife and daughter in Australia while his wife Mrs Nam is still studying in Australia, so that his wife can focus on study and he can look after their daughter”. During the Tribunal hearing, the applicant also advised he needs to be able to take his daughter to school while his wife is studying and working.

22. The Tribunal considered the applicant’s claims in this regard but is not satisfied he has demonstrated 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.

23. Therefore, the requirements of PIC 4020(1) should not be waived.

24. On the basis of the above, the applicant does not satisfy PIC 4020 for the purposes of cl 500.317(1).

25. There is no evidence the visa applicant meets the criteria for any other subclass within the class of visa.

    DECISION

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

    Wendy Banfield
    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.

    …