2303211 (Migration)

2303211 (Migration) [2024] AATA 1172 (29 April 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE: Mrs Vaneet Kaur Chadha (MARN: 1686379)
CASE NUMBER: 2303211

MEMBER:Wendy Banfield
DATE:29 April 2024
PLACE OF DECISION: Canberra
DECISION:The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.

Statement made on 29 April 2024 at 3:46pm
CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – incorrect information – bogus documents – identity details – previous visa application – passports – mental health issues – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 57, 65
Migration Regulations 1994, Schedule 2 cl 500.217; Schedule 4, Public Interest Criterion 4020; r 1.03
CASES
Arora v MIBP [2016] FCAFC 35
Batra v MIAC [2013] FCA 274
Kaur v MIBP [2017] FCAFC 184
Plaintiff M64/2015 v MIBP [2015] HCA 50
Trivedi v MIBP [2014] FCAFC 42
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

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 20 February 2023 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant applied for the visa on 15 March 2022. The delegate refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl 500.217(1) of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) because there was evidence before the Minister that the applicant provided, or caused to be provided, bogus documents or false or misleading information in relation to the visa application.
The applicant appeared before the Tribunal on 16 November 2023 to give evidence and present arguments.
The applicant was represented in relation to the review. The representative attended the Tribunal hearing.
The Tribunal considered the evidence provided to the Tribunal and the Department in its assessment of the applicant’s case.
The applicant submitted a copy of the Department’s decision record dated 20 February 2023. The delegate made the following findings:
There is evidence before the Minister that the applicant has provided, or caused to be provided, a bogus document or false or misleading information in relation to this visa application.
On 15/03/2022, the applicant provided evidence to the Department that was considered to be of a ‘non-genuine’ nature.
The department had adverse information about the applicant’s application. The department suspected that they used another identity, namely [Alias A] (Date of birth [DOB 1]). The basis for this suspicion was as follows:
✃biometric match from facial images obtained by the department;
✃parental information on the passports for each identity being nearly identical, including their names and address as follows:
[Alias A]
Passport number: [PN1]
Father: [Father A]
Mother: [Mother A]
Address: [Address 1]
PIN: [Postal ID 1], Haryana, India
File No: [File 1]
[the applicant]
Passport number: [PN2]
Father: [Father A]
Mother: [Mother A]
Address: [Address 1 variant]
PIN: [Postal ID 1], Haryana, India
File No: [File 2]
The identity [Alias A] lodged a Student TU-500 visa application on 30/3/2018.
On 9/4/2018, the application was refused, as the decision maker was not satisfied the applicant was a genuine applicant for entry and stay as a student.
The identity [the applicant] ([DOB 2], M) was granted a Student TU-500 visa on 17/2/2020 that was valid until 15/3/2022.
[In February] 2020, [the applicant] arrived in Australia and has not departed since.
On 15/3/2022, [the applicant] applied for a further Student TU-500 visa. In their application form, [he] answered the following questions:
Other names / spellings:
Is this applicant currently, or have they ever been known by any other names?
No
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?
No
Declarations
The applicants declare that they:
Have read and understood the information provided to them in this application.
Yes
Have provided complete and correct information in every detail on this form, and on any attachments to it.
Yes
Understand that if any fraudulent documents or false or misleading information has been Provided with this application, or if any of the applicants fail to satisfy the Minister of their identity, the application may be refused and the applicant(s), and any member of their family unit, may become unable to be granted a visa for a specified period of time.
Yes
The department suspected [the applicant] is the same person as [Alias A], and that the applicant provided false or misleading information with their application for this visa, in that they answered falsely that they have never been known by any other name or been refused a visa. This was considered to be in a material particular as the visa history could have been relevant to the genuineness criteria when making a decision on the application.
On 8/7/2022, the applicant was given Natural Justice under section 57 and provided 28 days to submit a response to the adverse information.
On 08/08/2022, the following response was provided to the Department:
The applicant submitted a response letter, national ID and family information card by government. In their letter, the applicant claimed that the passport they provided with their application was genuine and that they checked with their parents, who in turn checked with the passport office but they did not receive any convincing explanation. The applicant did not provide any evidence of correspondence with the passport office.
Based on the evidence and information before me, I find that the applicant has given information that is false or misleading in a material particular. Therefore, I am not satisfied that the applicant meets Public Interest Criterion (PIC) 4020, subclause 4020(1).
The applicant provided the following evidence:
·     Psychological Reports by [Psychologist A], Consultant Psychologist dated 28 February 2022 and 15 November 2023.
·     Affidavit and identity documents of [Father A] dated 3 November 2023.
·     Affidavit and identity documents of [Mother A] dated 3 November 2023.
·     Affidavit of [Leader A] dated 14 November 2023.
·     Indian Citizen Resource Information Department document dated 31 October 2023.
·     Statutory declaration of the applicant dated 6 November 2023.
The applicant submitted evidence to the Department in support of his student visa application. He also provided a response to the Department’s natural justice letter of 8 July 2022 inviting him to comment on adverse information.
Evidence at the hearing
The applicant confirmed he is aware of the reason for his student visa being refused. It was put to him that based on a biometric information; it appears he provided information that was not genuine. The applicant stated he had not submitted misleading information. He said he believed someone had used his photo from his passport, and was using his identity, but he does not know how it is possible. The Tribunal asked the applicant about [Alias A]. He said he does not know that person and believes [Alias A] is using his family information. When the Tribunal advised him there was an application made for a student visa in the name of [Alias A], the applicant repeated that person is using his family’s details.
The applicant claimed a friend of his had applied for a visa to Canada and faced the same problem. He alleged that in his area of India, this happens to people because others use their identities. The applicant said he did not how he could prove anything. The representative advised the Tribunal that they had submitted affidavits from the applicant’s parents and the head of his village, details of his family makeup and psychologist’s reports.
The Tribunal put to the applicant that according to the Department delegate, he had not explained how biometric information was found to be a match between two identities, his and [Alias A]. The applicant claimed he did not know anything about it or who had used his identity. The Tribunal then put to him that the Department had found the two photos used in two identities matched, and that he was the person who presented himself on those occasions. He said someone using his identity must have “scanned everything” and that in his country there is lots of corruption. According to the applicant, people use this information to get money.
The Tribunal explained the waiver criteria to the applicant and invited him to make submissions. The applicant said he wants to get out of this situation because he is very depressed, and he is alone while his family are in India. The applicant said he is struggling because he came here to study and if he can complete that he will go back to his home country for a good career. The applicant claimed he cannot currently concentrate on study and has been to the doctor several times due to depression. The Tribunal explained again that the applicant’s own circumstances could not be considered and repeated the criteria with the use of the interpreter. The applicant said there is no relevant information to submit in his case. The applicant referred the Tribunal to the written submissions provided.
The applicant’s representative advised it was her view the applicant has been the victim of fraudulent activity and has been a genuine student. She said the applicant has witnessed this before in his village and he should not suffer because of it. It was submitted the applicant has been caught up in circumstances and requested he be allowed to continue studying. The Tribunal was advised the applicant had to see doctors and psychologist and wants peace of mind so he can study. The representative claimed that in the applicant’s home village, people engage in fraudulent activity for a few thousand dollars. She said the applicant will lose his qualifications and his visa history will be affected in Australia and elsewhere.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this review is whether the visa applicant meets Public Interest Criterion 4020 (PIC 4020) as required by cl 500.217(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).
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?
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.
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.
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.
At the time the applicant applied for the visa which is the subject of this review, the Department undertook checks to verify his identity. The Department found there were two identities with the same biometric match from facial images and with parental information on the passports for each identity being nearly identical. The other identity in the name of [Alias A] had been refused a visa. In his application form, the applicant was found to have falsely stated he has never been known by any other name, and never had a visa refused. He also signed a declaration indicating he understood the consequences of providing fraudulent documents or false or misleading information.
When the adverse information was put to him by the Department, the applicant provided a response letter, a national ID and family information document. The applicant claimed the passport he provided with his application was genuine and his parents had checked with the passport office but received no explanation for the duplicate identity. The Department delegate was not satisfied with the response and found the applicant did give information that is false or misleading in a material particular.
The Tribunal considered the written submissions as well as the information the applicant provided at the hearing.
The affidavits of the applicant’s parents state their son’s name is [the applicant’s name] and they have no relationship with [Alias A] and do not know anyone of that name. The affidavit of [Leader A], said to be a village head, states [the applicant] lived with his parents and [Alias A] is no relation. In his own statutory declaration, the applicant stated he has always been known as [the applicant’s name] and gave his parent’s names and address. He said he does not know [Alias A] who used his identity, he believes his biometric information may have been stolen and before 2020 he never applied for or was refused a visa. The applicant also provided a document setting out his family makeup.
The applicant submitted two reports prepared by psychologist [Psychologist A]. The first dated 28 February 2022 relates to the applicant’s study difficulties in Australia. The second dated 15 November 2023 gives information in relation to the applicant’s visa refusal due to false and misleading information being provided. The applicant advised his psychologist that he is distressed about the allegations he received from the Department regarding his identity. The report states the applicant wants to resume his studies but has not been able to focus. The psychologist gave an opinion the applicant presented as honest and had provided evidence of his identity. His recommended treatment plan included “the grant of a visa extension”.
In his evidence to the Tribunal, the applicant denied providing false and misleading information when he applied for a student visa. He suggested someone may have scanned his identity information and used it fraudulently. The applicant said in his country there is corruption and people use information this way to obtain money. The applicant alleged a friend of his faced the same problem when applying for a visa to Canada.
The Tribunal considered the evidence provided aimed at establishing the applicant’s identity. As was claimed by the applicant at the hearing, corruption and fraud is not uncommon. The Tribunal is aware that it is not difficult to obtain fraudulent documents in India and verifying them can be unreliable. The Tribunal is unable to determine if the applicant’s real identity is [the applicant’s name] based on the documents available to it. However, the issue to be considered is whether the applicant provided false and misleading information in a material particular when he declared he had never been known by another name and had not been refused a visa. The Tribunal finds the applicant has not explained how his biometric information, including his photograph could have been used to create another identity in the name of [Alias A] without his knowledge. The Tribunal does not accept the applicant’s claims that another person must have stolen his identity by scanning all his information. The applicant claimed he contacted his parents who in turn made inquiries with the passport office. The applicant did not provide any evidence of having contacted the passport office either to the Department or the Tribunal. It would have been open to him to contact the Indian Embassy in Australia and make inquiries but there is no evidence he did so. The Tribunal is not satisfied the applicant’s photo and family information was used without his knowledge. The applicant’s own evidence was that corruption is not uncommon in his home country and people engage in fraudulent activities for money, which could equally apply to the applicant.
Regarding the psychologist’s reports by psychologist [Psychologist A], the Tribunal accepts the applicant has sought help for his mental health due to study difficulties and has discussed the issue of his visa being refused with his psychologist during consultations in 2023. However, the Tribunal does not find the reports to add weight to the applicant’s claims that he did not provide false or misleading information in a material particular. The false and misleading information was contained in the application for a student visa when the applicant declared he had not applied for a visa previously and has not been refused a visa. The false and misleading information was material because if the applicant had answered truthfully, it is likely the delegate would have made a different decision in assessing his visa application.
Based on the applicant’s evidence, the Tribunal finds 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 or a visa that the applicant held in the 12 months before the application was made.
Therefore, the applicant does not meet PIC 4020(1).
Should the requirements of PIC 4020(1) or (2) be waived?
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.

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.
For the following reasons, the Tribunal is not satisfied that the requirements should be waived.
The Tribunal considered the Department of Home Affairs Migration Policy and Operational Contents in determining whether the requirements of PIC 4020(1) should be waived. According to departmental policy, there may be compelling circumstances affecting the interests of Australia if:
·     Australia’s trade or business opportunities would be adversely affected were the person not granted the visa
·     Australia’s relationship with a foreign government would be damaged if the person is not granted the visa or
·     Australia would miss out on a significant benefit that the person could contribute to Australia’s business, economic, cultural or other development (for example, a special skill that is highly sought after in Australia) if the person was not granted the visa.
It is departmental policy that compelling circumstances affecting the interests of Australia would not include circumstances where the applicant merely claims that, if granted the visa, they would:
·     work and pay taxes in Australia,
·     pay fees to an education provider; or
·     spend money in Australia.
The Tribunal also considered whether there are compassionate or compelling circumstances that affect the interests of an Australian citizen, Australian permanent resident or eligible New Zealand citizen in the applicant’s case. According to Departmental policy, compassionate or compelling circumstances that affect the applicant are not relevant unless they also directly affect an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen. Factors for considering a waiver of any or all of PIC 4020(1) and/or (2), can include:
· whether there are any significant health or welfare issues affecting an Australian citizen, Australian permanent resident or eligible New Zealand citizen and there is an absence of other carers in Australia.
· whether the illness of the Australian citizen, permanent resident or New Zealand citizen is debilitating, permanent and requires ongoing care (that is, it is not a temporary illness, or an illness that does not require continuous care).
In response to the waiver provisions, the applicant stated he is depressed and wants to resolve the issue before the Tribunal so he can continue to study. He said he has been struggling because he came to Australia as a student and wants to complete his studies before going back to his home country. The applicant did not give any evidence to the Department or the Tribunal to indicate that there are 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 in his case. The applicant only referred to his own circumstances which the Tribunal cannot give weight to in deciding whether to exercise its discretion to waive the requirements of PIC 4020(1).
Therefore, the requirements of PIC 4020(1) should not be waived.
On the basis of the above, the applicant does not satisfy PIC 4020 for the purposes of cl 500.217(1).
There is no evidence the applicants meet the criteria for any other subclass within the class of visa.
DECISION
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.
…

[2024] AATA 1172

29 April 2024

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice