Ahmed (Migration)

[2020] AATA 1689

Ahmed (Migration) [2020] AATA 1689 (19 February 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Kazi Almas Ahmed

CASE NUMBER:  1821942

DIBP REFERENCE(S):  BCC2015/1159373, CLF2014/70691

MEMBER:Penelope Hunter

DATE:19 February 2020

PLACE OF DECISION:  Sydney

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

Statement made on 19 February 2020 at 2:20pm

CATCHWORDS
MIGRATION –Student (Temporary) (Class TU) visa –Subclass 573 (Higher Education Sector visa) – Federal Circuit Court remittal – bogus documents provided  – breach of PIC 4020 – no compelling circumstances – requirements of PIC 4020(1) should not be waived –decision under review affirmed  

LEGISLATION
Migration Act 1958, ss 5, 65, 359
Migration Regulations 1994, r 1.03, Schedule 2, cl 573.224

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

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 20 May 2014 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 27 September 2013. The delegate refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl.573.224 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the delegate found that the applicant did not meet Public Interest Criterion (PIC) 4020.

3. The Tribunal received an application for review of the delegate’s decision on 10 June 2014. On 16 June 2016, the Tribunal, differently constituted, affirmed the decision under review.

4. The applicant appealed this decision to the Federal Circuit Court and on 5 July 2018, orders were made remitting the matter back to the Tribunal for redetermination.

5. The applicant appeared before the Tribunal on 31 October 2019 to give evidence and present arguments. The hearing was conducted with the assistance of an interpreter in the English and Bengali languages.

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

   RELEVANT LAW

7. The issue in this review is whether the applicant meets PIC 4020 as required by cl.573.224(a) 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.

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.

    Summary of material and information before the Tribunal

12. The information in the Department’s file indicates that the applicant provided with his application for the student visa, as evidence of his financial capacity in accordance with the requirements of Schedule 5A of the Regulations, two statements of account dated 27 November 2013, for Fixed Deposit accounts numbered 2005 and 2106 held with the Bangladesh Krishi Bank, Zlanagar branch, Perojpur, in the name of his sister Afsana Akter.

13. The Department referred the documents to the Australian post in Dhaka for investigation. A bank representative advised the post that neither of the accounts existed in their system, and the advice from the post to the Department was that the documents were non-genuine.

14. In December 2013, the Department wrote to the applicant and advised of the outcome of this investigation and the applicant was invited to comment on the information that was considered non-genuine and whether he met the requirements for a waiver of PIC 4020 and the grant of the visa.

15. On 19 January 2014, the applicant provided to the Department an email in response and a further letter and statement of account dated 12 January 2014, for account number 2668, from the Bangladesh Krishi Bank, Chondipur Branch, Perojpur, in the name of his sister Afsana Akter. The applicant’s email set out the following relevant information:

    I came to know that my sister had that FDR but later on she changed her mind and put everything into her savings account that she has been maintaining for more than a year. She changed her mind because to send me money she has to access her account and if she put everything in a FDR she can not be able to access the fund until it become matured. In that case i might face some issues to bring money to Australia. For my betterment she withdrew her FDR, close that account and put everything into the savings account so that she readily can access fund for em and also compliance the immigration rules properly.. In addition she fortgot to notify me her decision due to busyness and thought that Immigration will find fund automatically when they call to Bank bur later she came to know that Bank will provide only that much info what Immigration will ask about one account, nothing else. That’s why the misunderstanding happened. As I am pretty sure if you call to the Bank and will find the fund properly and I am assuring you that I have not provider neither anything misleading document nor any fraud document to misguide Immigration… (sic)

16. The Department again referred the financial documents, being the bank letter and statement for account number 2668, to the Australian post in Dhaka to verify the documents. The Dhaka office contacted the Bangladesh Krishi Bank and after checking bank records for account number 2668, on 3 February 2014, the Department again wrote to the applicant inviting comment on the advice that it had received that the bank documents were suspected as non-genuine. The Department advised that the documents may be considered to be bogus documents, or information that is false or misleading. The applicant was again invited to provide comment on the information, and specify whether he met the requirements for a waiver of PIC 4020, and the grant of the visa.

17. The applicant emailed the Department on 6 February 2014, and 23 February 2014. The emails contain similar information. The applicant stated in each email “it is fair enough to say, I can not understand all those papers that my sister sent to me. Anyway I’ve a good news that my elder brother is financial sounds at the moment and he is an Australia citizen.” The applicant further set out that his brother would sponsor him. With his email of 23 February 2014, the applicant attached a statutory declaration of his brother to support this and relevant financial documents such as bank statements and wage slips. After consideration of the information provided by the applicant, on 20 May 2014, the delegate refused the visa.

18. In the previous Tribunal proceedings, on 25 August 2015, the representative for the applicant submitted a Departmental Form 1023, in which the applicant sought to withdraw the bank statement for account 2668 with the Bangladesh Krishi Bank dated 12 January 2014. In submissions to the Tribunal, the representative for the applicant claimed that the applicant ceased to rely upon the document, and sought to withdraw it from the records of the Department/Tribunal. Further it was argued that if the document is withdrawn then it has no longer been given. The Tribunal has considered this submission and does not accept that the documents in question can be withdrawn. The Form 1023 in question is a Departmental form and has no function or place in Tribunal proceedings. The application to withdraw the relevant documents was made after the Department had already exercised its function, made a finding on the relevant documents and a determination on the visa application. Furthermore, even if the applicant no longer relied on the relevant bank documents, the material issue in PIC 4020 was whether he had given them, or caused them to be given.

    Tribunal hearing

19. At the Tribunal hearing on 31 October 2019, the applicant provided a Confirmation of Enrolment in a Diploma of Hospitality Management, with course dates from 11 November 2019 to 8 November 2020. He confirmed that he understood the reason why the visa had been refused, he told the Tribunal that his brother had previously been his sponsor for his student visa and that in 2013 his sister had offered to assist. She had relied upon a broker and the broker had given her a false statement and she did not know that, and he did not know that. He claimed that when things happened he was very upset with his sister and did not talk with her for a while. He also told the Tribunal that his sister had the money in the account and his father had talked with the bank and found out that the account was genuine, but he was not sure about it.

20. The Tribunal pursuant to the provisions of s.359AA of the Act put to the applicant, that there was information before it, being comments made by a representative of the Bangladesh Krishi Bank, that the statement he had supplied dated 12 January 2014, for account number 2668, were fantasy documents. The applicant was further advised that this information was important because it suggested that not only did the account not exist at the time, but that the documents themselves were fantasy documents or fraudulent documents. He was informed that the consequences of relying on the information were that the Tribunal may find that was a breach of PIC 4020 and the information was contrary to his evidence that the account was genuine and did exist. The applicant was advised that he could seek additional time to comment or respond and he elected to respond immediately. He told the Tribunal that his sister was going through her husband so it was difficult to find information, and the bank was in Bangladesh. He claimed that although the documents might be a bogus statement, that he and his sister were not in error with the statement. He wished to say that it was an honest mistake and he was extremely sorry that it had ever happened.

21. Again pursuant to the provisions of s.359AA of the Act, the Tribunal put to the applicant that there was information before it contained in a letter of submission that the applicant had provided to the Tribunal in a different matter, proceedings 1415830, in relation to a later refusal of a Subclass 457 visa. The applicant was further informed that particulars of that information as read from his statement were that when this migration issue arose he was “really upset with her then she decided to transfer all the money to my brother so that he could be my sponsor. Then my brother asked her to transfer the money to pay of the house for our parents”. The applicant was informed that the reason this was relevant was because it appeared that he had previously suggested that the money in the account was transferred by his sister to his brother and this was why the money was not found by the Department to be in the account. It was further identified to the applicant that the reason that it was important was that it was considered inconsistent with the advice from the Bangladesh Krishi Bank they were fantasy documents and it was difficult to reconcile with his evidence at hearing that the account actually existed and that it was just the broker’s documents that were incorrect. The applicant was again invited to comment and requested additional time. The Tribunal asked him how long he would like and he did not respond. The Tribunal did not press the applicant for response and advised he would be granted a short adjournment to consider his response. When the hearing resumed the applicant indicated he did not have a further comment.

22. On the resumption of the hearing the Tribunal provided the applicant with a further opportunity to respond to the information before it pursuant to s.359AA of the Act. The applicant was informed that the relevant information was that when documents he supplied to the Department in the name of his sister Afsana Akter, relating to account number 2668 held with the Bangladesh Krishi Bank, Chondipur Branch, Perojpur, dated 12 January 2014 were sent to the Australian embassy in Dhaka for verification, following relevant checks with the bank, the Australian embassy in Dhaka advised the Department that the documents were assessed as non-genuine. The applicant was advised that the relevance of the information was that if it was relied upon by the Tribunal it may find that the statement he provided was a bogus document or false and misleading and it would be a reason or a part of a reason for affirming the decision under review. The applicant indicated that he had nothing further to say. The applicant was also granted a further 14 days following the hearing to submit any documents in support of the application that he wished the Tribunal to consider.

23. The Tribunal discussed with the applicant the waiver provisions and he claimed that there were two relevant considerations for the Tribunal. Firstly he lived with his brother and sister-in-law and that they had a child who was an Australian citizen and he was helpful to them as they did not have any other relative in Sydney to look after their child. Additionally he submitted that he was currently working as a chef and his employer relied upon him and he was important to the business. Under further questioning from the Tribunal the applicant gave evidence that his nephew was six years old and enrolled full time in school. His brother also worked as a chef and his sister-in-law in aged care. The applicant’s employer was the Australian Hotel Motel and it was situated in Yass and he had been working there for one month as a casual as at the date of the hearing. The Tribunal raised with the applicant that this was a considerable distance from Sydney and his brother’s residence, and his proposed study. The applicant confirmed that he lived on premises while working at the Australian Hotel Motel, but he claimed that his employer was seeking to set up a business in Sydney and the applicant would relocate and assist him with this. The Tribunal questioned the ability to manage the proposed full-time study and his employment commitments. The applicant told the Tribunal that his employer would provide him with time to study and he would work weekends. He indicated that he could provide a letter from his employer to support his submissions and his importance to the business. The Tribunal granted a further 14 days to submit this material.

24. On 11 November 2019, the Tribunal received submissions from the applicant including a letter from the applicant’s brother, Kazi Mohammed Nowshad, photographs, and screenshots of text messages purporting to be between the applicant and Fraser Haughton of Harvest Hotels, in which the applicant advises that he cannot continue to work at the Australian Hotel Motel in Yass as his course will be starting from 11 November 2019 in Sydney.

    CONSIDERATIONS, FINDINGS AND REASONS

25. Having assessed the totality of the material before it the Tribunal is satisfied that there is sufficient evidence to found a reasonable suspicion that the certificate that was submitted by the applicant is a bogus document. This finding is based on the following considerations.

26. The document in question purports to be issued in respect of the applicant’s sister Afsana Akter, setting out that as at 12 January 2014 she had the listed amount of funds held in her account 2668 with the Bangladesh Krishi Bank. The material before the Tribunal reveals that Departmental investigations, with the Bangladesh Krishi Bank, via the post in Dhaka, record that the documents were reported to be fantasy documents and assessed as non-genuine. The Tribunal considers that direct enquiries with the issuing authority for the documents, the Bangladesh Krishi Bank is sufficiently probative to lead to a reasonable suspicion that the documents are bogus within the meaning of s.5(1)(a) of the Act. That is they purport to have been issued by the Bangladesh Krishi Bank in respect of Afsana Akter, but were not issued.

27. The Tribunal has considered the information provided by the applicant that he was not involved in the production of the relevant documents, and his evidence that he only became aware that there may be a problem with the documents after the Department checked the documents and he was asked to comment. This may be the case, however the applicant has been provided with several opportunities before the Department and the Tribunal to demonstrate the authenticity of the documents in question. The applicant has made oral claims that the bank account existed, but that the broker engaged provided incorrect documents, or that the money was transferred to his brother in Australia. However he has not produced any documents to corroborate this submission or confirm the existence of account 2668 held with the Bangladesh Krishi Bank and that the documents produced were genuine. The Tribunal has considered the claim that the applicant had difficulties communicating with his sister due to his distress at the time of the Departmental decision in 2014, and that there are delays in obtaining documents from Bangladesh, yet by the time of the hearing in October 2019, years had elapsed for the applicant to demonstrate the authenticity of the documents in question. At best his evidence is that it might be a bogus statement but that he and his sister were not at fault. For the purposes of PIC 4020 the Tribunal is not required to consider whether the applicant was involved in the production of the document. It is not the case that there is no evidence to the contrary that the documents in question were bogus.

1. A further requirement is that the applicant gave or caused that information to be given to the Department. The Tribunal is satisfied that he gave bank statements in the name of Afsana Akter, relating to statement number 2668 held with the Bangladesh Krishi Bank, Chondipur Branch, Perojpur, dated 12 January 2014, to the Department in the course of the processing of his student visa application filed 27 September 2013. The applicant has also claimed that his brother could have been an alternate form of sponsorship and that he would have been able to satisfy the visa criteria with the alternate sponsorship from this relative. That is immaterial to the consideration of whether there is no evidence to the contrary that the documents were bogus or that the subject documents were given.

2. Accordingly, the applicant does not meet the requirements in PIC 4020(1).

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

3. PIC 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 PIC 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: PIC 4020(2AA).

4. At the time the applicant applied for this visa, there is no material before the Tribunal to indicate that the applicant had previously been refused a visa in the relevant period because of a failure to satisfy PIC 4020. There were no other members of the applicant’s family unit at the time of the application.

5. Therefore, PIC 4020(2) is met.

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

6. 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 r.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.

7. 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.

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

9. At the hearing the applicant told the Tribunal that he lived with his brother, sister-in-law and nephew. His brother was an Australian citizen and he claimed to be important to his brother’s family. He said that his brother worked as a chef and his sister-in-law worked in aged care, and that due to their work commitments they required him to assist with the care of their nephew, aged six years.

10. Additionally, the applicant said that his Australian employer relied upon him as an important part of his business. He claimed that he was working as a chef and that his employer intended to open a new restaurant in Sydney and the applicant would be integral to developing that and the relevant menu. Upon further questioning from the Tribunal the applicant revealed that he was currently employed at the Australian Hotel Motel in Yass. He confirmed that his employer was a new employer and that he had been working there for a month. His employer had not yet acquired any new business in Sydney. The applicant also provided to the Tribunal a copy of a Confirmation of Enrolment in a Diploma of Hospitality Management at Strathfield College for a course commencing on 11 November 2019. He told the Tribunal that he required the student visa to obtain formal qualifications to match his work experience, and his employer supported this. His previous studies had been in accounting.

11. Following the hearing the documents submitted by the applicant including his statement, screenshots of text messages with his employer Fraser Haughton of Harvest Hotels, and the letter of support from his brother, Kazi Mohammed Nowshad, reveal that the applicant ended his employment at the Australian Hotel Motel in Yass on 9 November 2019. In these circumstances the Tribunal can attribute little weight to his submissions that he was integral to his employer’s Australian business in Yass, or that he would be engaged in the setting up of a new business in Sydney or that his employer was supportive of his study.

12. The Tribunal accepts that the applicant has a close relationship with his brother, his sister-in-law and nephew. It is also accepted that he has been involved in the care of his nephew, and that they have a loving relationship, as is demonstrated in the photographs and copies of schoolwork from his nephew submitted. However as discussed with the applicant at the hearing, his nephew is now attending school full-time, and the applicant intends to study full-time, the opportunity for and requirement of all-day care is not ongoing. While it is accepted that if granted the visa the applicant may provide assistance to his brother and sister-in-law while they also work, it is the case that many Australians juggle work and childcare commitments. The applicant may be the best placed Australian relative to assist with care, yet the Tribunal is not satisfied that in his absence, his nephew will not be appropriately cared for. The Tribunal has considered the submission that the applicant’s brother is the owner of two properties and wishes to continue to work longer hours to service the mortgages on two properties. The visa in question is only a temporary visa, it would enable the applicant to remain in Australia for the duration of his course, until November 2020, not until his nephew ceases to require childcare. The applicant’s brother may have to make some financial adjustments, but he will also be relieved from the burden of financially supporting the applicant. The applicant will continue to be family, and can still maintain a relationship with his brother, sister-in-law and nephew while in his home country, as do his parents and sister. The Tribunal does not consider these are compelling circumstances that affect the interests of Australia, or compassionate or compelling circumstances that affect the interests of an Australian citizen or an Australian permanent resident or an eligible New Zealand citizen, that justify the granting of the visa.

13. The Tribunal has considered that the applicant wishes to complete formal qualifications in Australia, being his Diploma of Hospitality Management. He has been in Australia on a student visa or associated bridging visa since 2008. In addition he has had considerable time while awaiting review of this decision to undertake studies.

14. The Tribunal has also considered cumulatively the circumstances advanced by the applicant, his desire to obtain qualifications in Australia, his loving relationship with his family and his evidence that he was unaware of the origin of the documents when he submitted them to the Department. Yet, having considered the evidence overall, it is not satisfied that there are compelling circumstances that affect the interests of Australia, or compassionate or compelling circumstances that affect the interests of the applicant’s brother, his sister-in-law or his nephew that justify the granting of the visa.

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

16. When the applicant applied for his student visa he was seeking to study at the tertiary level, and the relevant visa subclass was 573. The applicant is currently proposing study at the vocational education and training level, and the relevant visa subclass at the time of the application under review was Subclass 572. On the basis of the above, the applicant does not satisfy PIC 4020 for the purposes of cl.572.224(a) or cl.573.224(a).

    DECISION

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

    Penelope Hunter
    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.

    …