Desai (Migration)

[2018] AATA 3766

Desai (Migration) [2018] AATA 3766 (24 July 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Ishan Rajendrabhai Desai

CASE NUMBER:  1709277

DIBP REFERENCE(S):  BCC2016/3072919

MEMBER:Tim Connellan

DATE AND TIME OF

ORAL DECISION AND REASONS:          24 July 2018 at 3:34 am (VIC time)

DATE OF WRITTEN RECORD:                10 August 2018

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision under review.

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – False or misleading information – No financial sponsors – Financial sponsors denied support – Self-funded studies – No access to claimed funds – Misleading financial documents – Decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 375A
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 6 April 2017 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 24 July 2018 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. Mr Desai you've been in Australia since 15 July 2014.  You lodged your student visa application on 15 September 2016, and to be eligible for the grant of a student visa applicants must satisfy a range of criteria set out in the regulations.

4. Your application was refused on 6 April 2017 because the delegate found you to not meet a criterion in 500.217 which deals with what are known as Public Interest Criteria, (PIC) and the public interest criteria the delegate found you to not meet was PIC 4020, which states that to satisfy that criterion there is no evidence before the Minister that the applicant has given or caused to be given to the Minister or an officer of the Administrative Tribunal 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 a visa.

5. In your case, you provided evidence of funds which included evidence of fixed deposits held by your mother and your aunt. 

6. In the primary decision, a copy of which you provided with your application, it indicates that an investigation officer contacted your mother who advised that she was not supporting you financially but that you were funding your own studies, that you were working in Australia.  The officer then spoke to your aunt on the same day, who repeatedly advised that she was not providing you with financial support.  She stated that you were in Australia working and not studying. 

7. You were advised of the verification outcome and invited to respond to the concerns that had been raised by the phone calls to your sponsors.  You responded stating that your financial sponsors included yourself, your mother, your aunt and your cousin, all of whom have sufficient finances to support you. 

8. You stated that your parents paid your initial course fees but you worked part time at McDonalds and saved for your tuition fees. 

9. You stated that when your aunt was called she was anxious and believed it was a hoax call as scams are common and people are asked to reveal financial information over the phone.  As was stated in the primary decision, the departmental officer clearly identified himself at the commencement of the call and the purpose of the call was clear.

10. Today I have put to you information that was provided with a Certificate in accordance with section 375A of the Migration Act. As I said to you, I do not believe it is a valid certificate because it does not identify any public interest criteria, and we discussed the content of that document which are the notes made by the department officer who called your aunt and your mother. Your aunt had no hesitation in answering his questions.

11. You said today she thought it was a fraud call, straight away she refused that call.  You say she said, "I'm not supporting Ishan and I'm not giving any information to you."  That is not supported by this document that records the discussion that she had.  She had no hesitation in answering his questions and confirming towards the end that she had money in a specific bank, which is not the information that someone would give if they perceived that it was a fraud call and she was concerned to give away financial information. 

12. She was not asked to reveal any financial information, but on a number of occasions she stated she was not sponsoring you for your studies in Australia.  She said she was aware you were in Australia, but believed you had a job and were not studying.

13. Regarding your mother's call, you stated you never felt the need to ask your mother for tuition fees but she has always supported you for living and other expenses.  You said here today to the Tribunal the documents that are provided are genuine and the money is there, and I suspect that that is the truth, the money probably is there. 

14. The difficulty that I have is that you've provided these documents as your financial support claiming that you had access to these funds and when an officer rang and spoke to the owners of those funds, they denied that you had access to them, and therefore on the evidence provided, the Tribunal finds you have provided evidence of fixed deposits held by your mother and your aunt which they denied provided you with financial support, and therefore I find the Tribunal believes you provided documents that were misleading in a material particular in relation to this application for a student visa.

15. Therefore on the available evidence, the Tribunal finds you do not meet public interest criteria 4020.  As I said to you, the requirement to meet 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 eligible New Zealand citizen which would justify the granting of a visa.

16. Do you believe that there are such circumstances?  Are there compelling circumstances that says this need to satisfy 4020 should be waived?

17. MR DESAI:  No.

18. MEMBER:  No.  There is no evidence before the Tribunal there are compelling or compassionate circumstances that meet the definition that would lead to a waiver of the criterion. 

19. In the circumstances, it's the decision of the Tribunal to affirm the decision under review.  This means the decision made by the delegate strands.

    DECISION

20. The Tribunal affirms the decision under review.

    Tim Connellan
    Member