2303211 (Migration) - [2024] AATA 1172

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading 2303211 (Migration)

Details

AGLC: 2303211 (Migration) [2024] AATA 1172
Case: [2024] AATA 1172
Decision Date: 29 April 2024

CaseChat Overview and Summary

The Administrative Appeals Tribunal, with Member Wendy Banfield presiding, considered an application for a Student (Temporary) (Class TU) visa, subclass 500. The applicant sought review of a decision not to grant the visa. The core of the dispute revolved around whether the applicant met Public Interest Criterion (PIC) 4020, which encompasses requirements related to the provision of genuine documents and accurate information, as well as satisfying identity requirements and a history of visa refusals.

The Tribunal was required to determine if the applicant had provided, or caused to be provided, a bogus document or information that was false or misleading in a material particular in relation to the current visa application or a previous visa held within the preceding 12 months. Additionally, the Tribunal had to assess whether the applicant and their family unit had a history of visa refusals due to failing PIC 4020(1) within the preceding three years, and whether the applicant satisfied the Minister as to their identity, with a corresponding assessment of past visa refusals related to identity within the preceding ten years. The Tribunal also considered whether any waiver provisions under PIC 4020(4) were applicable, noting that such waivers do not extend to identity requirements.

The Tribunal's reasoning focused on the applicant's failure to meet the requirements of PIC 4020. It was found that the applicant had provided a bogus document or information that was false or misleading in a material particular. The Tribunal applied the definitions of "bogus document" under section 5(1) of the Migration Act 1958 and "information that is false or misleading in a material particular" under PIC 4020(5). The Tribunal noted that the definition of a bogus document does not require the false or misleading statement to be relevant to a visa grant criterion, referencing case law such as *Arora v MIBP* and *Batra v MIAC*. Furthermore, the Tribunal observed that the provisions of PIC 4020(1) and (2) apply regardless of whether the applicant provided the document or information knowingly or unwittingly, and irrespective of how the Minister became aware of it. The waiver provisions in PIC 4020(4) were not applicable to the identity requirements.

Consequently, the Tribunal affirmed the decision not to grant the applicant the Student (Temporary) (Class TU) visa, finding that the applicant did not meet the necessary criteria.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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.

Decision

Reasons for decision

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 BanfieldMemberATTACHMENTMigration Regulations 1994Schedule 44020(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 1958s 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.…

Ratio Decidendi

Legal Principle Established

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