CHEN (Migration) - [2020] AATA 3255

CHEN (Migration) [2020] AATA 3255 (5 August 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Ying-Chu CHEN
CASE NUMBER:  1821754
DIBP REFERENCE(S):  BCC2018/1700041
MEMBER:P. Wood
DATE:5 August 2020
PLACE OF DECISION:  Melbourne, Victoria
DECISION:The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.

Statement made on 5 August 2020 at 9:40am
CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – false or misleading information in previous visa application – claimed work for an employer for three months – no response to tribunal’s s 359(2) letter – no compelling or compassionate circumstances justifying grant of visa – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 65, 359(2), 359A, 359C, 36(3), 363A
Migration Regulations 1994 (Cth), Schedule 2, cl 500.217(1), Schedule 4, criterion 4020
CASES
Arora v MIBP [2016] FCAFC 35
Batra v MIAC [2013] FCA 274
Hasran v MIAC [2010] FCAFC 40
Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617
Kaur v MIBP [2017] FCAFC 184
Manna v Minister for Immigration and Citizenship [2012] FMCA 28
Plaintiff M64/2015 v MIBP [2015] HCA 50
Singh v MIBP [2018] FCAFC 52
Trivedi v MIBP [2014] FCAFC 42

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 Immigration on 11 July 2018 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s.65 of the Migration Act 1958 (the Act).
The applicant applied for the visa on 17 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 they did not satisfy Public Interest Criterion 4020 (‘PIC 4020’) and there were no compassionate or compelling circumstances to warrant waiver of this criterion.
On 8 July 2020, the Tribunal wrote to the applicant pursuant to s.359(2) of the Act. In the s.359(2) letter, the Tribunal invited the applicant to give the following information in writing:
Information about whether you gave 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.a bogus document; or
b.information that is false or misleading in a material particular in relation to:
i.the visa application which is the subject of the review; or
ii.a visa you held in the period of 12 months prior to that application.
Information about whether you or a member of your family unit has had a visa refused because of a failure to satisfy PIC 4020.
If the Tribunal finds that you have given a bogus document or information that is false or misleading in a material particular, then it will need to consider whether to waive the requirements in PIC 4020(1) and (2), including considering whether certain circumstances exist which justify the…

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 CHEN (Migration)

Details

AGLC: CHEN (Migration) [2020] AATA 3255
Case: [2020] AATA 3255
Decision Date: 5 August 2020

CaseChat Overview and Summary

This matter concerned an application for a Student (Temporary) (Class TU) visa (subclass 500) by the applicant, CHEN. The decision under review was the refusal to grant this visa. The Tribunal was required to determine whether the applicant met Public Interest Criterion (PIC) 4020, which is a mandatory requirement for the grant of the visa.

The central legal issue before the Tribunal was whether the applicant had provided false or misleading information in relation to a previous visa application, thereby failing to satisfy PIC 4020(1). This criterion requires that an applicant has not given, or caused to be given, a bogus document or information that is false or misleading in a material particular in relation to a current visa application or a visa held in the preceding 12 months. The Tribunal also considered whether there were any compelling or compassionate circumstances that would justify waiving the requirements of PIC 4020(1).

The Tribunal reasoned that the definition of "bogus document" in the Migration Act 1958 does not require the document to be relevant to a criterion for the grant of the visa, unlike the definition of "information that is false or misleading in a material particular" in PIC 4020(5). It was noted that PIC 4020(1) applies regardless of whether the applicant knowingly provided the false or misleading information, although an element of fraud or deception by some person is necessary for the provision to be engaged. The Tribunal concluded that the requirements of PIC 4020(1) should not be waived, and therefore affirmed the decision not to grant the applicant the visa.

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 the Act. 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.

Decision

Reasons for decision

Following careful consideration, the Tribunal finds that the requirements of PIC 4020(1) should not be waived.DECISION The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.P. WoodSenior MemberATTACHMENTMigration 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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