Chaudhary (Migration)

[2022] AATA 3667

Chaudhary (Migration) [2022] AATA 3667 (16 August 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Renu Chaudhary
Mr Amit Kumar
Miss Ariana Rulhan

REPRESENTATIVE:  Mrs Aarti Khatri (MARN: 1791220)

CASE NUMBER:  2116951

HOME AFFAIRS REFERENCE(S):          BCC2020/1168908

MEMBER:Tim Connellan

DATE AND TIME OF

ORAL DECISION AND REASONS:         16 August 2022 at 1:53 pm (VIC time)

DATE OF WRITTEN RECORD:                11 October 2022

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decisions under review.

Statement made on 11 October 2022 at 1:15pm

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – bogus document – financial documents – invalid fixed deposit numbers – purposeful falsity – decision under review affirmed 

LEGISLATION

Migration Act 1958
Migration Regulations 1994, Schedule 2 cl 500.217; Schedule 4, Public Interest Criterion 4020

APPLICATION FOR REVIEW

1. This is an application for review of decisions made by a delegate of the Minister for Home Affairs on 10 November 2021 to refuse to grant the visa applicants Student (Temporary) (Class TU) Subclass 500 visas under the Migration Act 1958 (Cth) (the Act).

2. At the hearing on 16 August 2022 the Tribunal made an oral decision and gave an oral statement of decision and reasons. The following is the written record of those reasons.

   STATEMENT OF DECISION AND REASONS

3. Renu Chaudhary, you applied for subclass 500 student visa on 14 March 2020 and on 10 November 2021 a delegate for the Minister made the decision to refuse your application on the basis she found you had provided evidence in support of your application that created a breach of PIC 4020. There is no evidence you had sought a waiver of PIC 4020 and consequently the delegate found you did not satisfy clause 500.217 which is a pre-requisite for the grant of a visa.

4. You appealed that decision to be reviewed by this Tribunal and with your appeal you provided a copy of the primary decision which you told the Tribunal you had read and understood.  As I read from that decision today and it became clear that you did understand why the Department had made the decision that they made.

5. As I explained to you, the role of the Tribunal is to conduct what is referred to as a ‘de novo’ hearing which means I consider your case afresh and make a new decision about your eligibility for a visa.  While it is my role to consider your case completely afresh, I must do so applying the same law as that that was used by the Department.  The Tribunal is independent of the Department of Home Affairs meaning the Department does not tell us how to conduct our business or decide cases.

6. I have before me the Department file which includes the material you provided with and in support of your application, and the Tribunal file which contains all the information that has come in since you lodged your review application.  In making this decision I have relied on the information in the files and what you and your migration agent have told me here today.

7. The question is whether you satisfy clause 500.217 in Schedule 2 of the Migration Regulations which requires that there is no evidence before the Minister or in this case the Tribunal, the applicant has given or caused to be given a bogus document or information that is false or misleading in a material particular in relation to an application for a visa.

8. If there is such evidence, PIC(4) provides that PIC 4020(1) will nonetheless be satisfied if the Minister is satisfied 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.

9. To enable the Tribunal to make a decision in this matter, therefore, there are two steps that need to be followed.  The first is to make a finding as to whether in support of your application you have given or caused to be given a bogus document or information that is false or misleading in a material particular in relation to the application, creating a breach of PIC 4020.  Secondly, if the Tribunal finds you have provided evidence in breach of PIC 4020 it must decide whether there are compelling circumstances that would lead to the granting of a visa.

10. Reading from your primary decision of which you provided a copy, it says that on 14 March 2020 you provided the Department with evidence considered to be non-genuine including several documents, including financial documents from the ICICI bank, statement of fixed deposits in the name of Sumit Kumar, who you have told me is your brother.  Those account numbers were accounts ending in zero-four-three-one; three-two-zero-six; and three-two-nine-zero.  Those accounts were deposits for a total of 21 lakh rupees only which is 2,100,000 rupees.  The decision goes on to say:

    The Department conducted checks to confirm the veracity of the financial documents and found the fixed deposit numbers for Sumit Kumar are not genuine.  Based on the outcome of the Department’s investigations the applicant was suspected of having provided bogus documents.

11. You were sent a natural justice letter and provided 28 days to respond and in response the decision letter says:

    While the applicant did not comment on the adverse information, she submitted a letter issued by the ICICI bank dated 25 September 2020 advising that the fixed deposit certificates issued in the name of Sumit Kumar were genuine and could be verified.

12. The decision goes on to say:

    While I acknowledge the letter, the documents presented initially with her student visa were confirmed to be non-genuine and, therefore, bogus.  Based on the evidence before me, I find the applicant has provided information that is false or misleading and, therefore, in breach of PIC 4020.

13. The decision record goes on to say:

    The referral outcome is based on the fact that the details attached by you are not correct, as per the attached document.  Details below.  The fixed deposit numbers mentioned for Sumit Kumar are invalid.  Details of all deposits held by the sponsor were sent for verification yielding an invalid result.  Given the above the Department is satisfied that the applicant has provided a fraudulent document.

14. Today you have told the Tribunal that you have never intentionally provided a bogus document, and it has been said by you and on your behalf that you are honest and innocent of these allegations that are made against you.  You did not know the documents were bogus and your migration agent, Ms Khatri, has said, “There is no question the documents were bogus, there is no doubt about that,” were her words.  However, she said, “There has never been any intention by the applicant to mislead the Department.  There has never been any purposeful falsity.  The family is self-sufficient.  They have paid for themselves to be here and to study here without having ever called on funds from home and she has blindly trusted her brother.” 

15. She makes the point that nobody would have re-submitted documents that the Department had already told you were bogus and so her agent says the only explanation is that she blindly trusted her brother.  And she said, “I do not know the internal family problems or what is going on,” however, she goes back to the claim that there was never an intention by the applicant to provide false documents. 

16. Well, the Tribunal considers this element of purposeful falsity and notes that purposeful falsity does not require that the applicant to be personally aware of the submission of bogus documents.  What is necessary is that somebody was aware the documents were bogus. Given the circumstances of this case, the Tribunal is satisfied that someone involved in submission of the documents was aware that they werebogus.

17. With the Tribunal satisfied that you have provided evidence that created a breach of PIC 4020 it must turn its mind to the question of whether or not there should be a waiver.  It was a provision that was outlined to you in considerable detail with explanation of the circumstances in which a waiver may be available. In response your migration agent, Ms Khatri, said, “She is studying to become a chef.  If she completes her studies and stays on, she will contribute to the Australian economy, to the skills shortage that is currently widely advertised and well-known in the hospitality industry.” 

18. That conflicts with an earlier claim in which it was stated that you intended to return home as doon as you finished your studies.  However, I can see that both of those arguments could be put and I do not believe that either of those circumstances achieve the required level to be considered compassionate or compelling circumstances.

19. Having found you have breached PIC 4020(1), the Tribunal finds you do not satisfy PIC 4020(4). You, therefore, do not satisfy PIC 4020 for the purposes of clause 500.217 and consequently it is the decision of this Tribunal to affirm the decision under review.

    DECISION

20. The Tribunal affirms the decisions under review.

    Tim Connellan
    Member