Choe (Migration)
[2023] AATA 1241
•23 January 2023
Choe (Migration) [2023] AATA 1241 (23 January 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT: Ms Yumi Choe
REPRESENTATIVE: Mr Chulsung (Charles) Oh
CASE NUMBER: 2119891
HOME AFFAIRS REFERENCE(S): BCC2019/2376581
MEMBER:Wendy Banfield
DATE:23 January 2023
PLACE OF DECISION: Canberra
DECISION:The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.
Statement made on 23 January 2023 at 3:25pm
CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – bogus document – altered employment references – advice of the education agent – ‘in a material particular’ – waiver of requirement – labour shortages – decision under review affirmedLEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 500.217, Schedule 4, PIC 4020CASES
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 42STATEMENT 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 9 December 2021 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 3 May 2019. The delegate refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl 500.217 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, a bogus document or false or misleading information in relation to the visa application.
The applicant appeared before the Tribunal on 12 October 2022 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Korean and English languages.
The applicant was represented in relation to the review. The representative attended the Tribunal hearing.
The applicant provided the following submissions to the Tribunal:
· Department of Home Affairs (the Department) decision record dated 9 December 2021.
· Confirmation of Enrolment (COE) for a Diploma of Project Management from 12 April 2021 to 9 October 2022.
· Applicant’s written statement dated 21 December 2021.
· Representative’s submission dated 5 October 2022.
· Financial documents for HL Pave Pty Ltd.
· Letters of support for the applicant’s spouse, Chulwoo Lee.
· Letter from Pyoung Hwan Lim regarding RUN Education as agent.
· Psychological Report of Dr Jung Sook Kim for the applicant’s daughter, Seunghee Lee dated 4 October 2022.
· Representative’s submission dated 11 October 2022.
The Tribunal took account of the submissions made to the Department at the time of application, including her response to the Department’s natural justice letter.
Evidence at the hearing
The applicant advised she came to Australia in April 2019 with her daughter. She had been working in a hospital in Korea and wanted to study aged care in Australia. The applicant stated that she had prepared documents in Korea but arrived in Australia as a visitor. Her student visa that was refused was the first one she applied for. The applicant confirmed her daughter was a dependent on her student visa. Her husband had been in Australia since 2015 and was also a student. While onshore she applied to study because she loved working around elderly people and wanted to improve her education in aged care. The applicant said her agent had advised her it was better to come to Australia as a tourist with her daughter first.
The Tribunal put to the applicant that the Department had made checks on the employment documents she provided. The Tribunal asked if the documents related to places she had worked and she said they were. She said she had been working as a nursing assistant for two years at a clinic in Korea. The applicant stated she had a qualification as a nursing assistant obtained in Korea. She said she had worked in aged care from November 2014 to sometime in 2015. The Tribunal asked the applicant why she had provided the employment references. The applicant claimed she was advised by her agent that if she wanted to study aged care, she should provide as many employment references as possible. The applicant advised she had worked at the places she gave reference for. She was asked in that case, why she had not provided the correct dates. She said the agent told her it was better to have more experience if she wanted to study aged care. The representative advised the Tribunal the agent was not a migration agent, it was an education consultant who was referring people to education providers.
The Tribunal asked the applicant if everything else in her application was true and correct and she said it was. The Tribunal asked the applicant if she understood that providing information that was false or misleading was a serious issue. The applicant said she understood. She claimed she had only done what the education agent advised her to do, and she only found out it could be a serious problem because of the current situation.
The Tribunal referred to the representative’s submission about whether the information provided was false and misleading in a material particular. The applicant’s representative advised the Tribunal that the applicant had altered the documents that the Department found to be non-genuine, but the employment certificates were not required as part of the primary criteria for the visa. He said she did work for the two employers, but for a shorter period. The representative reiterated the applicant had made the alterations on the misleading advice of the education agent. He said she was in Korea when she prepared the documents and did so purely on the advice of the agent. It was claimed the applicant was not aware at the time that it was serious to alter the documents, and only did so when she was asked to explain by the Department, which she regrets. The representative said she did not alter the whole of the document and they were not required to as they would be in the case of a skilled visa. He said that would be a different story, and in the case of a student visa, even if she did the wrong thing, the documents do not constitute materially wrong information. The representative reiterated the information was not necessary in the same way as health insurance, English language, financial documents, and a genuine temporary entrant statement. He said the agent gave wrong and unnecessary advice.
The Tribunal explained to the applicant the procedure that would be considered if it was determined she had provided a bogus document or false and misleading information in a material particular. The representative referred to the applicant’s husband, Mr Lee, and asked to rely on his written submissions in this regard.
The applicant was asked if she had any other submissions to make. She said her daughter had been having a hard time because of this. Ms Lee, the applicant’s daughter, gave evidence that since last December, her mother has experienced financial hardship due to her legal matters. She said also her father is sick and she has been unable to concentrate on her studies. Regarding how she supports herself in Australia, the applicant said she does some cleaning. She is not studying currently but would like to continue in aged care.
The Tribunal advised it could not take into account the circumstances of the applicant’s daughter Ms Lee as she is not an Australia citizen or permanent resident, but it would consider the other written submissions provided.
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 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.
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.
The Department found the employment reference letters provided by the applicant when she applied for a student visa were bogus within the meaning of s.5(1) of the Migration Act. The Department stated in its decision record:
On 26/07/2019 Departmental investigation found that Certificate of Employment 1- from Inje Aged Care Hospital was found to be non-genuine as the dates of actual employment differ from the Certificate of Employment provided to the Department. Investigations on the certificate of Employment 2 - from Yeongdo-gu Welfare Centre for Seniors Citizens was found to be counterfeit as the employment certificate which had originally been issued by the employer had been altered.
The applicant advised the Department in her written submission of 31 March 2020 that she had wanted to look more experienced and had deliberately changed her employment period to be longer than the actual period. She apologised for her actions and expressed regret for doing it. In her written statements to the Tribunal and the representative’s submissions, the applicant conceded she had changed the dates on her employment references. It was submitted the applicant had only done so because she was advised to by an education agent. The Tribunal accepts the applicant may have acted as she did on the advice of an education agent, but nevertheless, she conceded she had deliberately and knowingly altered her employment references and was thereby providing documents that were not accurate.
The applicant’s representative stated in his 11 October 2022 submission that the employment certificates were not required as part of the primary criteria for the visa. It was further submitted:
(PIC) Subclause 4020(1) requires that there is no evidence before the Minister that the applicant has given, or caused to be given, to the Minister, an officer, the Administrative Appeals Tribunal, 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:
● the application for the visa;“Material” is defined in the Oxford Dictionary as “substantial, important or concerned with the matter of reasoning, not its form”.
Thus, for the non-genuine documents in question to be bogus, they need to be “substantially” false or misleading, or false or misleading “in the matter of reasoning, not its form, but in its nature”.
The Tribunal considered the submission but notes that the term “in a material particular” does not apply to bogus documents. Pursuant to s5(1)(b), a bogus document is one that the Minister reasonably suspects is a document that is counterfeit or has been altered by a person who does not have authority to do so. It was argued that the applicant was not required to provide the documents to apply for a student visa. Nevertheless, she did provide them to improve her chances of being granted a student visa. The applicant advised she did so to include experience related to aged care which is what she wanted to study. The applicant gave, or caused to be given, a bogus document as defined in s.5(1) of the regulations.
Therefore, the applicant does not meet PIC 4020(1).
Should the requirements of PIC 4020(1) or (2) be waived?
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 reg 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.
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.
For the following reasons, the Tribunal is not satisfied that the requirements should be waived.
The Tribunal considered the Department of Home Affairs Migration Policy and Operational Contents in determining whether the requirements of PIC 4020(1) should be waived. According to departmental policy, there may be compelling circumstances affecting the interests of Australia if:
· Australia’s trade or business opportunities would be adversely affected were the person not granted the visa (Note: under policy, gaining employer sponsorship is not considered sufficient grounds for a waiver);
· Australia’s relationship with a foreign government would be damaged if the person is not granted the visa; or
· Australia would miss out on a significant benefit that the person could contribute to Australia’s business, economic, cultural or other development (for example, a special skill that is highly sought after in Australia) if the person was not granted the visa.
It is departmental policy that compelling circumstances affecting the interests of Australia would not include circumstances where the applicant merely claims that, if granted the visa, they would:
· work and pay taxes in Australia,
· pay fees to an education provider; or
· spend money in Australia.
The Tribunal considered the submissions made regarding the applicant’s husband Mr Lee and his business in Australia. The applicant provided tax and company documents regarding HL Pave Pty Ltd. The Tribunal also received letters of support for Mr Lee from business associates that refer to the difficulty in finding skilled workers following COVID-19 and from subcontractors who worked for him. The Tribunal accepts there are labour shortages in the building and construction industry following COVID-19 and that Mr Lee’s business associates would like him to return to Australia for that reason. The Tribunal notes that due to the current market, it is likely the people who worked for Mr Lee as subcontractors would be able to find employment because of the lack of skilled workers in the field. The Tribunal then considered that any compelling circumstances must justify the granting of the visa. The applicant was studying in the field of aged care and advised she then moved into project management. The Tribunal finds the fact the applicant’s husband was in Australia since 2015, several years before the applicant, and had established a paving business does not justify granting a student visa to her.
The Tribunal notes that compassionate or compelling circumstances that affect the applicant and her daughter are not relevant unless they also directly affect an Australian citizen, an Australian permanent resident, or an eligible New Zealand citizen. Submissions were made that the applicant’s daughter Ms Lee had been adversely affected by the decision to refuse her mother’s visa, and a psychological report provided. In her response to the Department, the applicant also set out difficulties concerning her daughter’s schooling in Korea. The Tribunal notes that Ms Lee has since been granted her own student visa in Australia. As they are not Australian citizens, permanent residents or eligible New Zealand citizens, the applicant’s and Ms Lee’s circumstances do not meet the criteria for the Tribunal to waive the requirements of PIC 4020(1).
Therefore, the requirements of PIC 4020(1) should not be waived.
On the basis of the above, the applicant does not satisfy PIC 4020 for the purposes of cl 500.217.
There is no evidence the applicant meets 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 Banfield
MemberATTACHMENT
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.
…
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
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Statutory Interpretation
Legal Concepts
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Judicial Review
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Procedural Fairness
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Statutory Construction
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Natural Justice
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