Amanuel (Migration)

[2020] AATA 5554

Amanuel (Migration) [2020] AATA 5554 (15 October 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Daniel Amanuel

CASE NUMBER:  1825744

DIBP REFERENCE(S):  BCC2018/1719615

MEMBER:Peter Haag

DATE:15 October 2020

PLACE OF DECISION:  Melbourne

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

Statement made on 15 October 2020 at 5:04pm

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – bogus document or false and misleading information – availability of sufficient funds – brother’s bank statements – brother used funds for own purposes and conspired with bank employee to create bogus statements – genuine statements not provided – brother’s purposefully false statutory declaration – applicant likely aware of brother’s financial position and actions – adverse information provided to department anonymously given no weight – discretion to waive criterion – marriage to Australian citizen – wife withdrew documents from evidence and did not give oral evidence – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 5(1), 65

Migration Regulations 1994 (Cth), Schedule 2, cl 500.217(1), Schedule 4, criterion 4020(1), (5)

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 22 August 2018 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 18 April 2018. 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 (the Regulations) because the delegate was not satisfied that the applicant meets Public Interest Criterion (PIC) 4020(1).

3. The applicant appeared before the Tribunal on 28 September 2020 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s brother, Mr Isaac Amanuel.  The Tribunal hearing was conducted with the assistance of an interpreter in the Akan (Ghana) and English languages.

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

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The issue in this review is whether the visa applicant meets 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).

7. 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?

8. 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.

9. 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.

10. 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.

11. The issues for determination in this review are:

    ·whether there is evidence before the Tribunal that the applicant has given, or caused to be given, to the Minister, an officer, the Tribunal, a relevant assessing authority or a Medical Officer of the Commonwealth:

    §  a ‘bogus document’, as defined in s.5(1), i.e. a document that the Tribunal reasonably suspects is a document that:

    ·     purports to have been, but was not, issued in respect of the person, or

    ·     is counterfeit or has been altered by a person who does not have authority to do so, or

    ·     was obtained because of a false or misleading statement, whether or not made knowingly.

    and/or

    §  ‘information that is false or misleading in a material particular’ as defined in PIC 4020(5), i.e. information that is:

    ·     false or misleading at the time it is given, and

    ·     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.

    in relation to the visa application or a visa.

12. In this review, the applicant provided a copy of the record of the delegate’s decision to the Tribunal and the Tribunal has read that decision.

13. According to Departmental records and the record of the delegate’s decision, on 9 July 2018, during the process of assessing the applicant’s visa application, Departmental officials commenced inquiries into the authenticity of banking records the applicant provided to the Department in support of his application. The inquiries were made with GCB bank in the applicant’s home country, the bank that purportedly issued bank statements the applicant provided to the Tribunal in support of his visa application. The inquiries disclosed the bank account that is the subject of the bank statements exists, but the transactions and balances that appear on the statements do not correspond with bank records; and the bank statements were not issued by the bank. The bank account is held by, and in the name of, the applicant’s brother, Isaac Amanuel.

14. The Departmental file discloses that the bank statements comprise three pages; each page is exhibited to a Statutory Declaration solemnly declared in the High Court of Justice, Accra, Ghana, by the applicant’s brother Isaac Amanuel for the purpose of assisting his brother, the applicant, to meet the financial requirements for the grant of a Student visa.

15. The detailed information contained in the Declaration, and the fact that the information was put into the form of a Statutory Declaration, a form that was not required by the Department, and that the bank statements were exhibited to the Declaration, are a matter of concern to the Tribunal.  It is obvious from a straight forward reading of the Declaration that the contents were intended by the applicant’s brother, and the applicant, to persuade the Department that the applicant has available to him funds sufficient to meet the financial requirements for the grant of a visa. The form and contents of the Statutory Declaration demonstrate a significant degree of forethought and planning went into the making of the document, and the formulation of the its contents. Furthermore, it is evident to the Tribunal that a high level of purposeful criminal forethought and planning was devoted to the creation of the Statutory Declaration and the accompanying impugned bank statements.

16. That applicant’s brother acknowledged, in evidence given by telephone from Ghana, that his Statutory Declaration, declared in Ghana on 3 April 2018, was riddled with purposeful falsities, including: the declaration that the bank statements were genuine documents; that he held on deposit in his bank account at GCB Bank, Ghana, AU$35,444.411; and, that each month he would transfer funds to his brother for his use while he was studying in Australia. Clearly, the applicant’s brother also accepted that the bank statements are not true and accurate records of financial transactions that occurred between 29 December 2017 and 28 March 2018, the period covered by the bank’s statements.

17. Isaac Amanuel gave evidence about the circumstances that led to the making of the false bank statements. In summary, he informed the Tribunal that sometime in 2017, his brother, the applicant, asked him to provide him with financial support because his own funds were not enough to meet the financial requirements for the visa. The applicant’s brother claimed in evidence that at the time the applicant made the request he had enough funds to provide the necessary financial support, and he told his brother he would make the funds available to him. Something after making that promise to his brother, but before declaring the Statutory Declaration on 3 April 2018 and without informing his brother, he invested the funds he promised to his brother in his own motor bike parts business in Ghana.

18. The applicant, and his brother, without explanation, did not provide any concrete evidence to the Tribunal, such as a genuine 2017 GCB bank statement for his brother’s bank account, or other documentary evidence, capable of confirming that his brother had sufficient funds to meet any promise he may have made to provide financial support, and that the applicant’s brother invested the promised funds in his own business sometime after the request for assistance was made in 2017.  This is a significant unexplained failure to provide obviously relevant documentary evidence that it is reasonable to expect would be readily available to the applicant’s brother and the applicant, if the evidence about the promised funds being in the bank at the time the promise was made, and subsequently invested by the applicant’s brother in his business, is to be accepted as truthful evidence.

19. The significance of the failure to provide evidence that the applicant held the promised funds in 2017, and that he put those funds into his business arises from the fact that the linchpin of the applicant’s claim that his brother told him he had the funds, and his brother’s claim that he truthfully told his brother he had the funds at the time he promised them to his brother, is acceptance by the Tribunal that the applicant’s brother had in his bank account the promised funds at the time he promised them to the applicant.

20. In the unexplained absence of verifiable documentary evidence that established the funds were available in 2017, the Tribunal may more readily infer from the evidence of the close and loving relationship between the applicant and his brother Isaac, that it is likely Isaac did not have the necessary funds to meet his brother’s request, and it is also likely he would have informed his brother that he did not have the requisite funds, and therefore, at the time the applicant provided the bank statements to the Department, it is likely he (the applicant) was aware the impugned bank statements did not truly state his brother’s financial position.

21. In oral evidence and documentation, the applicant’s brother justified his impugned conduct on the basis that he loved his brother, and wanted to assist him to obtain the visa, so without telling him, he invested the promised funds in his own business, and then conspired with a bank employee to substitute the bank records of another bank customer for his own bank records, and by using that information, the bank employee and the applicant’s brother created the bogus bank statements without the knowledge or consent of his brother[1].  

    [1] Tribunal file, a statement dated 27 July 2018.

22. Turning to the material aspects of the applicant’s evidence: according to the applicant’s evidence to the Tribunal and various filed documents, the applicant sought to distance himself from the impugned bank statements. He claimed his brother untruthfully informed him he had the funds and he would make them available to him; he had a good and trusting relationship with his brother; his brother has never before lied to him or misled him about anything important; consequently, he believed, without inquiry, the bank statements to be genuine.  It was only after the authenticity of the bank statements was challenged by the Department that his brother informed him the bank statements were false. Up to that time, he thought the bank statements were genuine.

23. Giving regard to the foregoing matters, and in particular, the trusting nature of the relationship between the applicant and his brother, on balance, the Tribunal doubts the applicant’s brother would promise to make the funds available to his brother in 2017, and then in a relatively short period thereafter, break his promise and invest the funds in his own business, and then carry out this elaborate criminal scheme including, making the false solemn declaration rather than inform his brother the funds were not available.  The Tribunal’s doubt is significantly amplified by the failure, without explanation, of the applicant to provide concrete supportive evidence such, as authentic bank statements and other documentation to show his brother in fact had the promised funds in 2017, and that he invested the funds in his own business rather than keep his promise to the applicant to make the funds available to him.

24. On the available evidence, and in the absence of concrete supportive documentary evidence that it is reasonable to expect would be readily available to the applicant if in truth the relevant funds were available to Isaac, the Tribunal is satisfied it is more likely the applicant’s brother never had access to sufficient funds to meet his brother’s request, and that he would have said so to his brother at the time the request the was made. The Tribunal is satisfied it is likely the applicant was aware at all material times his brother did not have access to the requisite funds, and that the bank statements did not truly state his brother’s financial position. The applicant has not satisfied the Tribunal that he is the non-complicit, innocent victim of the elaborate deception executed by his brother for the purpose of advancing the applicant’s Student visa application.

25. The Tribunal was provided with information adverse to the applicant, that is the subject of a non-disclosure certificate (the Certificate) issued pursuant to s.376 of the Act. The Tribunal is satisfied the Certificate is valid. The applicant was informed of the existence of the Certificate and that the Tribunal is satisfied it is valid.  The contents of the Certificate were described to the applicant and the applicant was invited to comment on the validity of the Certificate, but he did not do so.

26. The Tribunal was informed the adverse information that was the subject of the Certificate may form part of the reason or the reason for affirming the decision under review, subject to anything the applicant may say about the information. The applicant was informed the information may be relevant to determining whether the applicant satisfied the requirements for the grant of the visa. The Tribunal also informed the applicant of the gist of the adverse information.  To summarise: the applicant was informed the person who provided the information resides overseas.  The informant reported that the applicant was involved in bribing a bank official in Ghana to create and provide a false bank statement ostensibly issued by a bank in Ghana. The Tribunal did not provide additional detail to the applicant on the grounds that to do so would be contrary to the public interest, including protecting the anonymity of the informant.

27. The Tribunal is satisfied the applicant was made sufficiently aware of the contents of the information, whilst also acting consistently with the terms of the non-disclosure certificate.  The applicant was asked if he wanted additional time to comment on the information or whether he wanted to comment now.  The applicant was provided with two separate invitations to comment on the information and asked whether he wanted additional time before commenting on the information. On both occasions, the applicant launched straight into his response to the information. To summarise, the applicant reiterated his evidence that he was not involved in the fabrication of the bank statements, he did not know they were false documents, and he was misled by his brother. Without having more information about the informant who provided the information, and some satisfactory capacity to assess the informant’s motivations for providing information, the Tribunal has determined it would be unfair to the applicant to have regard to the information that is the subject of the s.376 non-disclosure certificate. Accordingly, the Tribunal has decided to completely disregard the information that is the subject of the s.376 non-disclosure certificate, and to give it no weight whatsoever in this review.

28. Nevertheless, on balance, the Tribunal is satisfied the impugned bank statements are purposefully bogus documents. The Tribunal is also satisfied Isaac Amanuel’s Statutory Declaration dated 3 April 2018 contains information about his financial capacity and ability to provide financial assistance to the applicant that is purposefully untrue. Therefore, the Tribunal is satisfied there is evidence before the Tribunal that the applicant gave to the Minister, or a relevant assessing authority, being the Department, financial information contained in the Statutory Declaration that is purposefully untrue, and false and misleading in material particulars as defined in PIC 4020; and that the bank statements are bogus documents. The contents of the Statutory Declaration and the bank statements are relevant to the criteria the Minister may consider when deciding whether to grant the Student visa pursuant to cl.500.212 of Schedule 2 to the Regulations.

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

    Non-publication direction made pursuant to s.378 of the Act, directing that certain information contained in case notes and email correspondence in the Tribunal file must not be published by the Tribunal

30. The Tribunal received certain information from an informant that is summarised in case notes that form part of the Tribunal file and email correspondence received from an anonymous informant by the Tribunal in on 24 September 2020 at 3:26pm. This information makes various adverse allegations against the applicant. The Tribunal has read the relevant case notes and email and decided to put the adverse information contained in those documents completely out of mind, and to give to it no weight whatsoever in this review.

1. The Tribunal has decided the adverse information contained in the case notes and the email should not form any part whatsoever of the reasons for decision in this review, and it does not form any part of the Tribunal’s reasons for decision. Nevertheless, the Tribunal directs that the adverse information contained in the case notes to the Tribunal file and the email identified above, must not be published by the Tribunal because the information contained in those documents is likely to disclose the identity of the person or persons who provided the information; the information was given and accepted on the basis that it would not be disclosed by the Tribunal; the information asserts matters that are unproven; and the Tribunal has completely disregarded the information. Accordingly, the applicant was not told about the details of the information or invited to comment on it.  On balance, the Tribunal is satisfied disclosure of the information would be contrary to the public interest and directs the information must not be disclosed by the Tribunal.

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

2. 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.

3. 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.

4. For the following reasons, the Tribunal is not satisfied that the PIC 4020 requirements should be waived.

5. The applicant claimed in evidence that his marriage to an Australian citizen, Ms Tarisai Vushe, constitutes compassionate or compelling circumstances that affect the interests of an Australian citizen that justify the grant the of a Student visa. The applicant relies heavily on the fact of his marriage to an Australian citizen to substantiate his claim that compassionate and compelling circumstances exist that justify granting him a Student visa.

6. The applicant stated in evidence that he is currently living with his wife. In proof of the marriage, the applicant provided a copy of his marriage certificate to the Tribunal after the review was heard; this came about because, according to the oral evidence the applicant provided to the Tribunal – and various documents - his wife required him to withdraw from evidence documents relevant to her relationship with him, and informed the applicant she would not give evidence in the review. Consequently, the marriage certificate was one of the documents that was not available to the applicant to rely on in this review. In fairness to the applicant, the Tribunal invited the applicant to provide the marriage certificate to the Tribunal and he did so, thereby establishing he married Ms Tarisai Enert Vushe in Sydney on 6 July 2020, less than 3 months before the review hearing. It is evident therefore that the applicant is currently married to an Australian citizen.   

7. The Tribunal has given no regard to the documents listed below because the documents were withdrawn from evidence. The applicant, in withdrawing the documents, did not ask the Tribunal to disregard the fact that his wife demanded of him that he not call on the documents or her in aid of his visa application, and that she, in effect withdrew her support for the visa application; and the Tribunal has not done so.

8. The fact that the applicant’s wife did not give evidence, and that she required the documents regarded by the applicant and his agent (in his written submissions) as supportive of the visa application, to be withdrawn from evidence, and she required of the applicant that he not rely on them to support his application, are facts relevant in this review, and the Tribunal has given regard to those facts.  

9. For the sake of clarity and completeness, the Tribunal now lists the documents that were withdrawn from evidence:

   ·Medical certificate relating to Ms Vushe;

   ·Ms Vushe’s Australian citizenship document;

   ·Certificate of Marriage between the applicant and Ms Vushe;

   ·Statement of Ms Vushe’s income;

   ·Documents relevant to Ms Vushe’s taxation circumstances;

   ·Statutory Declaration declared by Ms Vushe on 5 August 2020.

10. The applicant explained in his oral evidence that he did not call his wife as a witness because she did not want to be part of the hearing, thereby indicating, as the Tribunal understood the evidence, that his wife had decided she would not provide any evidence that may support the applicant’s application for a Student visa. 

11. Later in evidence, the applicant advanced a materially different reason for not calling his wife to give evidence: to summarise, he claimed he and his wife decided she would not give evidence because the review was concerned with what his brother had done, and not his wife.  This evidence suggests a mutual decision as distinct from the decision that is reflected in emails discussed below, that the applicant’s wife decided unilaterally to disassociate herself from the review by not giving evidence, and by requiring the applicant to withdraw from evidence all the documents concerning her.

12. Evidence indicative of the applicant’s wife deciding on her own not to give evidence in support of the applicant’s visa application is found in two emails that form part of the Tribunal file. The first email was sent by the applicant to the Tribunal on 14 September 2020 at 5:54am, and it relevantly stated:

    Hi

    Good morning, I ask that you withdraw any supportive documents of Tarisai my wife from my application as she decides not to be part of the hearing anymore. I would call today.

    Thanks regards, Daniel Amanuel.

13. The second email was sent by the applicant’s agent to the Tribunal on 15 September 2020 at 11:13am, confirming the contents of the applicant’s email in the following terms:

    Dear Member,

    We refer to the above mentioned applicant.

    Please be advised that the applicant's wife does not wish to attend the hearing and requests to withdraw all her documents provided to the Tribunal.

14. These emails were preceded by an email received by the Tribunal at 12 September 2020 at 2:05am from Ms Vushe, the applicant’s wife. The email stated:

    Good evening Ted how are you? I am great. I know I was meant to be one of Daniel Amanuel's witnesses in his tribunal case. Unfortunately circumstances have risen that I am unable to explain much. I will kindly request to be removed off the case including all my documentation e.g citizenship certificate, marriage certificate etc that I provided. I wish to no longer want to be attached to this case at the present moment. I am not sure if he had emailed you to alert you but nevertheless I thought I should send an email to follow it up. Your assistance is greatly appreciated and I wish you the best in this hearing. Thank you for all the assistance.

15. According to the applicant’s oral evidence, and the fact that Ms Vushe addresses the applicant’s agent in the email, and the responsive emails quoted above that were sent by the applicant and his agent to the Tribunal, Ms Vushe sent her email to both the applicant’s agent and the Tribunal. The applicant made clear in his evidence he was aware his wife had sent the email and that he was also aware of the contents of the email - by implication before he sent his above quoted responsive email to the Tribunal -  but he had not read it prior to the review; nevertheless, in the email he sent to the Tribunal on 14 September 2020 and his agent’s email sent to the Tribunal on 15 September 2020, the applicant responded to the demands Ms Vushe articulated in her preceding email. The applicant demonstrated in his email, and via his agent’s email, that he was aware of the information, intention and purpose Ms Vushe articulated in her email of 12 September 2020 by 14 September 2020, the date he sent the first responsive email to the Tribunal.

16. In the hearing, the Tribunal read Ms Vushe’s email to the applicant, and informed him that it may form part of the reason for affirming the delegate’s decision, and that the information is relevant to determining whether the applicant satisfied the requirements for the grant of the visa. The Tribunal, having regard to the applicant’s oral evidence and the contents of the emails he and his agent provided to the Tribunal in relation to withdrawing Ms Vushe’s documents, is satisfied that the applicant knew what information was contained in the email Ms Vushe sent the Tribunal on 12 September 2020, and that the email and information it contained was relevant to the review. The Tribunal invited the applicant to comment on the information contained in the email, but before doing so, the applicant was asked if he wanted additional time to consider the information before commenting on it. The applicant did not ask for more time, and he informed the Tribunal that he had no comment to make on the information in the email.

17. It is evident that Ms Vushe is an Australian citizen currently married to the applicant, who, after marrying the applicant, supported his application for a Student visa. However, she subsequently informed the applicant and his representative that she no longer supported his visa application, and consistently with this stance, she refused to give evidence in the review and required the applicant to withdraw various documents that the applicant relied on to support his visa application. The Tribunal is satisfied Ms Vushe made the decision to withdraw her support for the applicant’s visa application independently of the applicant, and the Tribunal rejects the applicant’s claim that Ms Vushe disassociated herself from the proceedings because both she and the applicant were of the view that her participation in the review was unnecessary since the visa refusal resulted from the impugned actions of the applicant’s brother. 

18. The Tribunal infers from the fact that Ms Vushe refused to give evidence in the proceedings, and required of the applicant that he not rely on certain documents – identified above - relating to her to support his application and, in effect, she withdrew her support for the visa application, it is unlikely Ms Vushe regards the grant of the Student visa as something that would positively affect her interests. On balance, the Tribunal is not satisfied the applicant’s marriage to Ms Vushe and his relationship with her amounts to compassionate or compelling circumstances that affect the interests of an Australian citizen, which justifies the grant of a Student visa to the applicant. 

19. The applicant claims the fact that he gained qualifications in Australia relating to working with children in Australia, and that he has gained experience working in Australia with children, constitute compelling circumstances that affect the interests of Australia. While accepting, on the basis of documents provided to the Tribunal, that the applicant is well regarded by his employer and the children he has worked with, the Tribunal is not satisfied the applicant’s past work, or his prospects of working in childcare in Australia as the holder of a Student visa , constitute 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 a Student visa to the applicant.   

20. Therefore, on balance, the Tribunal is not satisfied the requirements of PIC 4020(1) should be waived.

21. On the basis of the above, the applicant does not satisfy PIC 4020 for the purposes of cl.500.217(1).

22. The Tribunal also finds there is no evidence that satisfies the Tribunal that the applicant meets the criteria for any other subclass within the class of visa sought.

    DECISION

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

    Peter Haag
    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. 

    …