Dhevirianita (Migration)

[2018] AATA 5545

Dhevirianita (Migration) [2018] AATA 5545 (20 November 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Nyta Dhevirianita

CASE NUMBER:  1712986

DIBP REFERENCE(S):  BCC2017/1002228

MEMBER:Penelope Hunter

DATE:20 November 2018

PLACE OF DECISION:  Sydney

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

Statement made on 20 November 2018 at 12:46pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – bogus document – false or misleading information – letter of offer of employment – not expressed to be conditional or subject to any limitations – no record of applicant being offered the position – waiver of requirement – no compelling reasons – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 94
Migration Regulations 1994 (Cth), Schedule 2, cl 500.217, Schedule 4, PIC 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 30 May 2017 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 14 March 2017. 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 (the Regulations) because she was found to have provided a bogus document within the meaning of s. 94 of the Act.

3. The applicant appeared before the Tribunal on 24 October 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Indonesian and English languages.

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

   BACKGROUND AND CHRONOLOGY OF EVENTS

5. The applicant is a citizen of Indonesia. She applied for the visa in order to undertake study in a Bachelor of Business Information Systems.

6. With her application, the applicant provided to the Department a letter of job offer from PT Metropolitan Land Tbk dated 27 January 2017, at Metland Cileungsi. The letter stated that the applicant had been offered the position of Business Analyst Manager upon the completion of her study. The letter was signed by Mr Mahmud Ikhfan of the HR Department. The letter referred to the applicant’s study which would take two years, and that the study would be completed at the applicant’s expense.

7. The Department conducted checks via the overseas post to verify the employment with PT Metropolitan Land Tbk and, on 28 April 2017, wrote to the applicant and set out that as a consequence it was considered that the applicant had provided false and misleading information to support the visa application. The applicant was invited to respond.

8. On 26 May 2017, the applicant sent a response to the Department in which she claimed that the employment letter was genuine, that the job offer letter was issued and that according to them no one had contacted Metland Cileungsi HR.

9. In their decision of 30 May 2018, the delegate noted that the applicant’s purported employer had confirmed that there was no available positions as a business analyst manager within the company. Furthermore the Department was informed that the company does not usually offer employment to individuals two years in advance. Further information was provided that there was no record of the applicant being offered a position at Metland Cileungsi as stated in the letter of offer.  The delegate set out that they had considered the submissions of the applicant but placed greater weight on the information obtained by the Department and was not satisfied that the applicant’s submissions had addressed the concerns.

10. The applicant applied to the Tribunal for a review of the delegate’s decision and submitted a copy of that decision.

    Tribunal hearing

11. The Tribunal drew to the attention of the applicant that a certificate pursuant to s. 375A of the Migration Act 1958 had been issued by the Department, in relation to folios 60 to 64 of file number BCC2017/1002228, specifically that the information was provided in confidence by the informant and the disclose may lead to the review applicant identifying the information and danger or injury to that person

12. The applicant was invited to make any submissions regarding the validity of the certificate and the information it contained and was advised that if further time was required to consider the certificate, she could request it and the Tribunal will consider the request. The applicant made no submissions in respect of the documents covered under the 375A Certificate.  The Tribunal explained to the applicant that it had determined the certificate was valid and that it would put to her the gist of the information covered by the certificate in a manner which would not identify the source of the information.

13. The substance of the information was contained in the decision of the delegate. Specifically, it  related the verification of her letter of offer of employment via the overseas post. Further following enquiries with her prospective employer information was provided that they do not usually offer employment to a future employee two years in advance. There was no HR record showing that the applicant had been offered a position at the Metland Cileungsi project and there was no business analyst position for the Cileungsi project. There was the additional information that Mahmud Ikhfan was confirmed to be the HR officer for the Cileungsi project.

14. The applicant told the Tribunal that the letter was truly from PT Metropolitan Land Tbk. If she had wanted to provide a fake letter she claimed that she could have gotten one from a company that she had previously worked for, she did not have to submit the letter from PT Metropolitan Land Tbk.

15. The Tribunal discussed with the applicant how she came to obtain the letter of offer and she gave evidence that she had a friend who worked for PT Metropolitan Land Tbk as a finance manager. She had come to know this friend during her studies in Australia. When she was thinking of undertaking her further studies in Business Information Systems her friend had told her that the company was planning an expansion in two years time and that the branch in Cileungsi had the authority to recruit directly. Her friend put her in contact with Mr Mahmud Ikhfan with whom she had a phone interview. The Tribunal asked the applicant what Mr Ikhfan had explained about the position. The applicant replied that he said that they were planning on developing some projects and expanding and that if in the next two years a position was still available that she could be considered for it. In response to questions from the Tribunal she said that she understood that the position would be providing information to the business with a focus on computerised information. The Tribunal asked that applicant if she was aware of the nature of the expansion in the Cileungsi project, and she claimed that she thought it related to property. She was not sure if it involved anything else. The applicant conceded that she did not have any experience in property, but claimed that she had in the past had experience working with information systems in Indonesia. The applicant had also last worked in her country in 2006.

16. The Tribunal put to the applicant that it had concerns about the genuineness of the job offer that an employer would leave open in circumstances where it was dependent on projected company expansion, for an applicant that did not have any experienced in property and had not worked in information system for over a decade in her country. The applicant conceded that in her conversation with Mr Ikhfan she was not guaranteed employment, rather he would look at a further application from her. The Tribunal discussed with the applicant that the information contained within the letter indicated that she had been offered an actual position of Business Analyst Manager in two years, it was not expressed to be conditional in any way. The applicant submitted that in her mind she still had a chance of employment in the future.

17. The Tribunal then discussed with the applicant whether she had any further information corroborating her submissions to the Department. She advised that when the Department had asked her to comment she had tried to contact Mr Ikhfan but he was on annual leave. The Tribunal considered that considerable time had passed since the Department first raised issues with the letter in April 2017, and enquired further of the applicant what other steps she had taken to verify the offer of employment. The applicant told the Tribunal that the general manager of PT Metropolitan Land Tbk had passed away in March 2018, and Mr Ikhfan had now resigned. Her friend had also told her that she was planning to resign too. In these circumstances the applicant no longer wished to work for the company and she had not obtained additional information to support her application for review.

    CONSIDERATION OF CLAIMS AND EVIDENCE

18. 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).

19. 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?

20. 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.

21. 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.

22. 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.

23. In the current matter the Tribunal finds there is evidence that the applicant has caused to be given to the Minister, or an officer, information that is false or misleading in a material particular’ as defined in cl.4020(5).  That is, information that was false or misleading at the time it was given. The Tribunal is satisfied that the Department made the relevant enquiries with the applicant’s potential employer. The applicant’s evidence does not contradict the information that the Department had obtained from the company that they do not usually offer employment to a future employee two years in advance and that there was no HR record showing that the applicant had been offered a position at the Metland Cileungsi project. In her evidence to the Tribunal the applicant was clearly aware that she had not secured an offer of employment  with PT Metropolitan Land Tbk in the position of Business Analyst Manager at the completion of her course. As a consequence of her discussions with Mr Ikhfan at the highest she had the chance of being considered for a position subject to the company expanding and a position being vacant when she had completed her studies. While the Tribunal is not satisfied that the document is bogus. The Tribunal is satisfied that the information conveyed to the Department in the letter of offer dated 27 January 2017, was false as the applicant had not yet been offered employment, and it was misleading as it was not expressed to be conditional or subject to any limitations.

24. The Tribunal further finds that the information was relevant in a material particular in relation to the application for the student visa. Such information is relevant to the assessment of cl.500.217, particularly as to whether the applicant meets the genuine temporary entrant requirement, and the considerations that the Minister may consider when making a decision on the applicant’s visa application, whether or not the decision would have been made because of that information in relation to the visa application within the relevant time.

25. The applicant did not dispute that she submitted the letter to be given to the Department as part of her visa application. The Tribunal accepts that the letter was written by Mr Ikhfan and not the applicant. The applicant told the Tribunal that she did not know why he had not written information consistent with her understanding that she may be considered for a position in the future, and instead has claimed this was the letter she received so she submitted it. While the applicant may not have been the author of the letter she was aware that she had not actually been offered a position on the conclusion of her studies, she therefore knew that the information was false and misleading at the time it was given. With this knowledge the applicant still submitted the letter to the Department. The Tribunal therefore finds the applicant has caused to be given information that is false or misleading in a material particular in relation to a visa application.

26. Based on the above, the Tribunal finds that the applicant does not meet cl.4020(1).

    Should the requirements of PIC 4020(1) or (2) be waived?

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. The Tribunal explained the waiver requirements to the applicant at the hearing and invited submissions from the applicant. She did not submit that she had any circumstances relevant to the waiver but claimed that she was very depressed because she had spent so much money and in the end she was unable to continue her studies. In response to further questioning from the Tribunal the applicant confirmed that she had sought medical treatment. She was diagnosed with acid reflux and given medication. While she has been awaiting the review by the Tribunal she has continued to work as a cleaner.

30. The Tribunal does not accept that that the reasons advance by the applicant are sufficient to amount to compelling circumstances affecting Australia’s interests, or compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident, or an eligible New Zealand citizen that would justify the grant of the visa.  It is accepted that the applicant has paid fees for her studies in Australia, yet spending money in Australia while studying for living and education expenses are not circumstances any different to any other applicant on a student visa. Therefore the payment of these expenses is not considered to be compassionate or compelling circumstances. Although not bound by the policy the Tribunal notes that the direction included the Department Procedural Advice Manual,  PAM3, also  specifically identifies that compelling circumstances affecting the interests of Australia were not include circumstances where the applicant merely claims that they would pay fees to an education provider and spend money in Australia. The Tribunal accepts that the applicant will be adversely affected by the refusal of her visa, but PIC 4020(4) is specifically worded to require that the compassionate or compelling circumstances are those that affect Australia, an Australian citizen or permanent resident or an eligible New Zealand citizen, and not the applicant themselves

31. Having considered the applicant’s case, the Tribunal is not satisfied that, singly or cumulatively, there are compelling circumstances affecting Australia’s interests, or compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident, or an eligible New Zealand citizen that justify the grant of the visas.

32. For the above reasons, the Tribunal is not satisfied that the requirements of PIC 4020(1) should be waived pursuant to PIC 4020(4).

33. On the basis of the above, the applicant does not satisfy PIC 4020 for the purposes of cl.500.217.

    DECISION

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

    Penelope Hunter
    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. 

    …