Deng (Migration)

[2019] AATA 2174

Deng (Migration) [2019] AATA 2174 (5 March 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Rongrong Deng

CASE NUMBER:  1822696

DIBP REFERENCE(S):  BCC2018/1300684 PNJ

MEMBER:Stephen Witts

DATE:5 March 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 05 March 2019 at 9:49am

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) visa – false and misleading information in visa application – applicant provided bogus document – evidence of financial support not genuine – no evidence to support claim that document was forged – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 5, 65

Migration Regulations 1994 (Cth), r 1.03; Schedule 2, cl 500.217; Schedule 4, Public Interest Criterion 4020

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 20 July 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 19 March 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 satisfied that the applicant had provided false and misleading information to the Department in relation to her visa application.

3. According to the delegate’s decision record, provided to the Tribunal by the applicant, the applicant was granted a Tourist (Class FA subclass 600) visa offshore on 27 September 2017, which was valid until 25 March 2018. The applicant subsequently arrived in Australia on 25 December 2017. According to the delegate since the applicant’s initial arrival onshore she has held either a tourist visa or associated bridging visa.

4. According to the delegate’s decision, the applicant applied for a Student (Temporary) (Class TU) Student (subclass 500) visa on 19 March 2018. According to the delegate at the time of application there was insufficient information to satisfy the Department that the applicant met the requirements for the grant of a Student (Temporary) (Class TU) Student (subclass 500) visa.

5. According to the delegate’s decision, on 3 May 2018, as part of the assessment process, the certificate of bank deposit that was provided by the applicant as evidence of financial support was referred to the Department’s overseas post in Shanghai for integrity checking. The delegate has contended that the referral was concluded as being not genuine by the overseas post. Based on this information it was determined by the Department that a bogus document had been provided by the applicant which purports to have been, but was not issued in respect of their financial sponsor. On that basis the Department found that the applicant failed to satisfy the requirements of clause 4020 (1) (a). In particular, the Department has contended (delegate’s file Folio 51) that on 18 May 2018 the Department’s offshore post contacted the Agricultural Bank of China who confirmed that the applicant had an account at the Agricultural Bank of China Tianjin, but that the account number was different to the information on the personal certificate of deposit provided by the applicant and that the bank never issued a deposit certificate to the applicant on 11 January 2018. In addition, according to the delegate, it was confirmed by the bank that the deposit certificate provided by the applicant with this student visa application was fraudulent. This information was conveyed to the applicant via email and by letter on 15 June 2018 and is contained in the delegate’s file Folio 48-51.

6. According to the delegate the applicant was then given a period of 28 days to submit information and documentation in regard to this matter and that as of the date of the delegate’s decision, 20 July 2018, no response had been received by the department. On that basis the delegate found that the applicant had provided a bogus document within the meaning of s 97 of the Act that is false or misleading in a material particular and that therefore the delegate was not satisfied that the applicant meets Public Interest Criterion (PIC) 4020, subclause 4020 (1) (a).

7. According to the delegate the applicant has not presented any claims as to compelling circumstances affecting 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, and that therefore the requirements of clause 4020(1)(a) cannot be waivered as the provisions of 4020(4) are not met, and that therefore clause 500.217 is not met.

8. The applicant appeared before the Tribunal by phone from Perth, Western Australia, on 21 February 2019 to give evidence and present arguments.

9. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

10. The applicant was represented in relation to the review by her representative.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. 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).

13. 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?

14. 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.

15. 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.

16. 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.

17. As is relevant to the present case, the criteria for the grant of a student 500 visa includes the requirement that the applicant satisfy Public Interest Criteria 4020, which requires that there be no evidence before the Tribunal that the applicant has given, or course 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 Minister 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 held in the 12 months before the visa application was made.

18. At hearing the applicant stated that she had never actually sighted the document alleged by the delegate as bogus as she had “entrusted the entire matter to my agent.” She stated that the matter was the fault of her agent as she entrusted to the agent the responsibility of providing a series of documents for her student visa application and this included material regarding her financial status including her bank deposit material. She stated that she had no idea that this material was provided to the delegate and that she had never looked at it. She also stated that she had not seen any invitation by the delegate to respond to the delegate’s initial request for further information within 28 days.

19. The applicant and her advisor asked for some additional time to provide evidence in regard to the applicant’s knowledge of this document. The Tribunal gave the applicant and her representative until the following Tuesday, 26 February 2019 at 5pm to provide any such material.

20. At hearing, the applicant’s representative, on behalf of the applicant, stated that the applicant could provide further information that was relevant to the status of this particular document if she was able to travel back to her home country of China to visit the bank and identify such material which she would then provide to the Tribunal. The applicant’s representative stated that she is not able to travel to China because of her bridging visa requirements. The Tribunal does not accept that the applicant could not provide relevant material from her bank without personally travelling back to her bank in China and visiting the relevant bank branch. The applicant also stated that she had to be physically present at her bank branch in China to provide information that would suggest that the document in question was not bogus, or alternatively, had been altered by another party, in her submission, her agent.

21. The Tribunal does not find it plausible that if there was such relevant evidence in existence that the applicant could not provide such information to the Tribunal through some other means other than the applicant herself travelling back to China to retrieve it. On that basis, the Tribunal nevertheless noted to the applicant and her representative that the Tribunal would expect any further relevant information regarding this matter is available to the Tribunal by Tuesday, 26 February 2019 at 5pm.

22. The applicant’s representative, on behalf of the applicant, also stated that as the department had incorrectly determined that the applicant was not in the migration zone during the time of her original application for review to the Tribunal that she did not have the time or ability to provide the information necessary to resolve this matter. The Tribunal noted that the department had originally provided material to the Tribunal that indicated that the applicant was not in the migration zone, and that this was accepted by the Tribunal in originally making a no jurisdiction decision in this matter, that this was not relevant to this matter as it now stands and that in any case the Tribunal would give the applicant some further time to provide any additional information that the applicant felt was relevant to her merit review application.

23. The Tribunal did not receive any further submissions by the date specified and has therefore made a decision based on the material before it.

24. The Tribunal is concerned that the applicant has not provided any evidence to support her contention that the document in question was forged or altered by a third party, specifically her then migration agent. In any case the Tribunal is of the view that it is the applicant’s responsibility to ensure that the material she provides as evidence in her student visa application is genuine.

25. The Tribunal does not find it plausible that the applicant’s migration agent provided such a false document. The Tribunal finds that the applicant did provide a bogus document as contended by the delegate.

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

    Should the requirements of cl.4020(1) or (2) be wavered?

27. 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.

28. 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.

29. For the following reasons, the Tribunal is not satisfied that the requirements should be waived.

30. At hearing the Tribunal explained to the applicant that the applicant could provide evidence to the Tribunal that there were compelling circumstances that affect the interests of Australia, or that there were compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident, or an eligible New Zealand citizen to amount to compassionate and compelling circumstances that support the waiver of PIC 4020(1) requirement in this visa application.

31. The applicant did not provide any evidence that there were such circumstances that might affect the interests of Australia or that there were compassionate or compelling circumstances that affect the interests of an Australian or other relevant citizen. When specifically asked by the Tribunal if there was any evidence that she wished to provide in regard to this matter she replied “no”.

32. Based on the evidence and information before the Tribunal, The Tribunal is satisfied that the applicant has provided a bogus document in relation to this visa application and that there were no compelling or compassionate circumstances that would support the waiver of PIC 4020 requirements in this visa application.

33. Therefore the requirements of PIC 4020(1) should not be waived.

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

    DECISION

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

    Stephen Witts
    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. 

    …