Deuba (Migration) - [2021] AATA 4753

Deuba (Migration) [2021] AATA 4753 (9 December 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Bharat Deuba
CASE NUMBER:  2005665
HOME AFFAIRS REFERENCE(S):          BCC2019/4525704
MEMBER:Penelope Hunter
DATE:9 December 2021
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.

Statement made on 09 December 2021 at 10:59am
CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 600 (Student) – bogus document or false or misleading information in visa application – statement of mother’s account provided as evidence of sufficient funds – verification checks found statement not issued by bank and balance not as claimed – discretion to waive criterion – concession that information incorrect and document bogus – claim of fraud by bank employee – funds available from other sources – study and work history – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5(1), 65
Migration Regulations 1994 (Cth), Schedule 2, cl 500.217, Schedule 4, 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
Vyas v MIMAC [2013] FCCA 1226
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 Home Affairs on 5 March 2020 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 10 September 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 the delegate found that Public Interest Criterion (PIC) 4020 was not met. Further, the delegate found that there were no compelling or compassionate reasons that would justify the grant of the visa and as such did not waive the requirements of PIC 4020(1) under PIC 4020(4).
The Tribunal received an application for review from the applicant on 20 March 2020, together with a copy of the delegate’s decision record.
On 7 October 2021, the Tribunal invited the applicant to attend a hearing on 2 November 2021, to give evidence and present arguments.
On 19 October 2021, the representative for the applicant requested that the hearing be postponed for eight weeks on the basis of their recent appointment, and that documents had been requested from the Department.
On 20 October 2021, the Tribunal wrote to the applicant and advised that an eight-week postponement was refused, but that the hearing was postponed to 17 November 2021.
On 25 October 2021, the Tribunal received a further request for postponement from the representative for the applicant, enclosing correspondence from the Department regarding the applicant’s Freedom of Information request. The Tribunal again rescheduled the hearing to 7 December 2021.
The applicant appeared before 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 Deuba (Migration)

Details

AGLC: Deuba (Migration) [2021] AATA 4753
Case: [2021] AATA 4753
Decision Date: 9 December 2021

CaseChat Overview and Summary

This matter concerned a review by the Administrative Appeals Tribunal of a decision to refuse a Student (Temporary) (Class TU) visa, subclass 600. The applicant had provided a bank statement for their mother’s account as evidence of sufficient funds to meet visa requirements. However, verification checks revealed that the statement was not issued by the bank and the balance claimed was inaccurate. The applicant contended that the funds were available from other sources and alleged fraud by a bank employee.

The primary legal issue before the Tribunal was whether the applicant met Public Interest Criterion (PIC) 4020, as required by clause 500.217 of the Migration Regulations 1994. Specifically, the Tribunal had to determine if the applicant had provided a bogus document or false or misleading information in relation to their visa application, and whether any such failure could be waived. The Tribunal also considered the definitions of "bogus document" and "information that is false or misleading in a material particular" as provided in the Migration Act 1958 and the Migration Regulations 1994, respectively.

The Tribunal reasoned that the provided bank statement was a bogus document as it was not issued by the bank and did not reflect the true balance. It was also considered information that was false or misleading in a material particular, as it was relevant to the criterion of financial capacity. The Tribunal noted that while an element of fraud or deception by some person is necessary for PIC 4020 to be engaged, the applicant's awareness of the falsity of the information was not a prerequisite for the provision to be engaged. The Tribunal found that the applicant had failed to satisfy PIC 4020 and that the circumstances did not warrant a waiver under PIC 4020(4).

Consequently, the Tribunal affirmed the decision not to grant the applicant the Student (Temporary) 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 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 a 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.

Decision

Reasons for decision

On the basis of the above, the applicant does not satisfy PIC 4020 for the purposes of cl 500.217.DECISION The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.Penelope HunterMemberATTACHMENTMigration 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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