Chuang (Migration)

[2020] AATA 1828

Chuang (Migration) [2020] AATA 1828 (14 January 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Na-Chen Chuang

CASE NUMBER:  1930381

DIBP REFERENCE(S):  BCC2019/3722801

MEMBER:Tim Connellan

DATE AND TIME OF

ORAL DECISION AND REASONS:         14 January 2020 at 3:34 pm (VIC time)

DATE OF WRITTEN RECORD:                10 March 2020

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision under review.

Statement made on 10 March 2020 at 4:26pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – breached PIC 4020 – no compelling circumstances  exist  to waive PIC 400 – provided evidence that was false or misleading – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 500.217

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 9 October 2019 to refuse to grant the visa applicant a Student (Temporary) (Class TU) Subclass 500 visa under the Migration Act 1958 (the Act).

2. At the hearing on 14 January 2019 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. Ms Chuang, you have been in Australia since January 2016, when you arrived on a subclass 417 working holiday visa.

4. Another application for a student visa was lodged on 26 July 2019.  Your application was refused on 9 October 2019 because the delegate found you did not meet a criterion in clause 500.217 which deals with what are known as Public Interest Criteria that we abbreviate to P-I-C or PIC.

5. To be eligible for the grant of a student visa, an applicant must satisfy a range of criteria set out in the Regulations.  One of those is PIC 4020 which states that to satisfy this criterion, 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 the application for a visa, or for a visa that was held in the 12 months immediately before the current visa application.

6. You have provided a copy of the primary decision with your review application and it shows the delegate found that in support of your application for a student visa on 14 December 2016, you provided evidence that you had been employed by Boumbis Orchards in Shepparton East.

7. You provided a work reference signed by Don Boumbis dated 11 July 2016 which stated you were employed to undertake fruit picking and packing from 29 February 2016 to 8 July 2017.

8. You provided two personal payslips for the period 20 June 2016 to 24 June 2016 and 27 June 2016 to 1 July 2016, which verify the employer as Boumbis Orchards.

9. You provided a Form 1263 Working Holiday Visa Employment Verification which you declared you worked for Boumbis Orchards from February 2016 to July 2016.

10. You have today told the Tribunal you worked picking and packing from March until October or November of that year.

    I read from the decision again and it says:

    On 29 January 2019 it was established through Departmental investigations with an employee of Boumbis Orchards that the applicant has never worked for this company.

11. On 3 September 2019 the department provided  you with an opportunity to comment on this adverse information and on 30 September you submitted numerous documents and a submission in which you stated you had prepared all the documents yourself – which are genuine – but you were forced to sign documents before clauses were explained to you by the foreman.

12. The delegate found you did not provide a credible response to the adverse findings and therefore found you had breached PIC 4020.

13. You have today told the Tribunal you do not know who Don Boumbis is or was.  And when I asked you about Boumbis Orchards you said you did not know who they were.  You said you were picked up from Shepparton Station and driven to a property where you were accommodated in converted containers.  You say that someone called to pick you up each day and drove you to various farms - it took between 10 and 20 minutes to get to - where you picked strawberries and peaches and you said you also occasionally packed fruit.

14. You responded to a fellow called Tom who was the foreman, who I think you said was a Malay national.

15. So the situation is that on 14 December 2016 you provided evidence with an application that you had worked for this organisation, and when the Department checked, with your nominated employer, they said you had never worked there.

16. You said, “I never intended to lie or to produce false or misleading information”.  However, you provide no satisfactory explanation for the information that was provided.

17. As I said to you, the role of the Tribunal is to take a fresh look at your application to consider if you are eligible for the grant of a student visa.  There are two steps.  Firstly, the Tribunal must consider whether you have provided evidence that may be in breach of PIC 4020 and, if satisfied that such a breach has occurred, it must consider whether the requirement to meet PIC 4020 should be waived.  The requirement to satisfy PIC 4020 may be waived if there are compelling circumstances that affect the interests of Australia, or compassionate or compelling circumstances that affect the interests of an Australian citizen, permanent resident or an eligible New Zealand citizen.

18. When I asked you whether there are such circumstances and detail exactly what circumstances would lead to a waiver, you provide no satisfactory circumstances.  However, you do go on to say later that you have a boyfriend who you say – I think you said is an Australian citizen.  His name is Chun Ching Lam.

19. The Tribunal notes you have provided a Statutory Declaration from this fellow that you say is your boyfriend.  It is a Statutory Declaration dated 26 September 2019.  So it is less than three months ago.  And in that document – what is your date of birth?

20. MS CHUANG:  August 19.

21. INTERPRETER:  August 19, 1993.

22. 1993.  So this Mr Lam is much older than you?

23. MS CHUANG:  M’mm.

24. Yes.  I see he has provided a copy of his passport that shows he was born in October 1976.

25. And in his statement made less than three months ago, he does not declare any relationship with you other than he says he has known you since the end of 2017, as your immediate supervisor working at Dragon Body Proprietary Limited. He speaks highly of your work ethic but says nothing about you and he being in a relationship outside work. So I do not believe that that would satisfy the requirement – or would meet the definition of compassionate or compelling circumstances.

26. I find that in your student visa application on 14 December 2016, you provided evidence of having worked at Boumbis Orchards.  Investigations by the Department indicate that you never worked there.  You have not provided any satisfactory evidence that would refute the Department’s finding. Consequently, I am satisfied that the Department’s findings were accurate and that you never worked at Boumbis Orchards and therefore that you have provided evidence that was false or misleading and have breached PIC 4020.

27. I find there is no evidence you are eligible for the waiver of PIC 4020 and, in the circumstances, it is the decision of this Tribunal that you do not satisfy cl.500.217 and therefore it is the decision of the Tribunal to affirm the decision under review.  This decision was made at 3.34 pm on this the 14 January 2020.

    DECISION

28. The Tribunal affirms the decision under review.

    Tim Connellan
    Member