Dongel (Migration)

Dongel (Migration) [2019] AATA 1335 (2 April 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mr Utku Dongel
Mrs Merve Ayyildiz
CASE NUMBER:  1827625
DIBP REFERENCE(S):  BCC2018/2427427
MEMBER:Tim Connellan
DATE OF ORAL DECISION:  2 April 2019
DATE OF WRITTEN STATEMENT:         8 April 2019
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicants Student (Temporary) (Class TU) visas.
Statement made on 08 April 2019 at 4:41pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – false or misleading information – failure to disclose previous visa refusals – waiver of requirement – physical and moral support to grandmother – no evidence of current enrolment – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cls 500.211, 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

This is an application for review of a decision made by a delegate of the Minister for Immigration on 6 September 2018 to refuse to grant the applicants Student (Temporary) (Class TU) visas under s.65 of the Migration Act 1958 (the Act).
The applicants applied for the visas on 5 June 2018. The delegate refused to grant the visas on the basis that the first named applicant Mr Utku Dongel (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 found that on 5 June 2018 Mr Dongel lodged an application for a student visa which included Ms. Merve Ayyildiz as his dependent spouse.
In the application he answered “No” to the question: Has the applicant or any person included in this application ever had an application for entry or further stay in Australia or any other country refused, or had a visa cancelled? Investigations showed that Ms Ayyildiz had been refused a subclass 500 student visa on 21 February 2017.
Further investigations revealed that Mr Dongel had been refused as a dependent on a 457 Temporary Work (Skilled) visa on 12 April 2007.
On 6 August 2018 Mr Dongel was sent a natural justice letter inviting him to comment on the fact his answer appeared to have provided false or misleading information in support of his visa application.
In response Mr Dongel stated his father had applied for a visa in 2007 and he was a dependent on that application. He therefore did not think that he had a visa refused as he had not applied for it. He said he did not even know what type of visa his father had applied for until he received the invitation to comment.
In regards to his wife’s visa refusal, he said after he had been granted a subclass 485 Visa, he had his wife added to that visa as a dependent. He did not withdraw his wife’s student visa application. The delegate noted that his wife’s application had been refused for failing to provide requested documents. The applicant said the documents were not provided because she had been granted a 485 Visa.
The delegate was not satisfied the response and refused the applicant’s visa application. He applied to this Tribunal for review of that decision.
On 14 February 2000 in 19 the Tribunal wrote to Mr Dongel inviting him to a hearing scheduled for 7 March 2019. The letter with the hearing application requested he provide a copy of his current certificate of enrolment or evidence he was currently enrolled.
On 25 February 2019 the Tribunal received an email from the applicant’s migration agent who advised he had been appointed that day and requested a postponement of the hearing.
The postponement request was granted and on 15 March 2019 an invitation was sent to the further hearing rescheduled to 2 April 2019. The letter accompanying this invitation again requested the applicant to provide evidence of current enrolment.
On 28 March 2019 the Tribunal received the written submission from the applicant’s migration agent which made a number of points including a chronological history of events.
It stated that the question “has the applicant… ever had an application for entry or further stay in Australia… refused, or had a visa cancelled” is obscure and easily capable of misinterpretation and the natural justice letter was devious.
The submission noted the applicant had received two different decision records, one dated 4 September which claimed the applicant had not responded to the natural justice letter the other dated 6 September which acknowledged that a response had been received. The submission referred to this as a shambolic decision-making process and surmised the delegate had acted in too much haste and carelessly informing his decision.
The submission claimed the delegate’s decision was infected by jurisdictional error and consequently advised they would be seeking further instructions to seek judicial review if not successful at the Tribunal.
The submission stated that should the Tribunal find the applicant did not satisfy public interest criteria 4020, they believed there were valid grounds for waiver stating that the applicant had lived with his grandparents for seven years until his marriage and it was only since that marriage in 2016 that he and his wife had found their own accommodation.
Claimed that Mr Dongel drives his grandmother to medical appointments and is responsible for management of her prescription medicines. It stated she was incapable of managing these daily tasks on her own.
The Tribunal gave its decision on the review at the conclusion of the hearing held on 3 April 2019. The following are the reasons for that decision.
The applicants appeared before the Tribunal on 3 April 2019 to give evidence and present arguments. The Tribunal also received oral evidence from Mrs Medine Demir (the applicant’s grandmother - with the aid of an interpreter) and the applicant uncle Mr Haydar Demir.
The applicants were represented in relation to the review by their registered migration agent.
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 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).
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?
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.
The Hearing
The following is a summary of discussions and transcript of the hearing
Member: Mr Dongel you lodged an application on 5 June 2018. An officer in the department looked at the application and decided that in providing the answer “No” to the question whether or not an applicant had previously had a visa refused or cancelled you had provided an answer that was incorrect and therefore provided evidence that was false or misleading in support of your visa application.
On 6 August 2018 the Department sent you a letter advising they believed the information provided was incorrect and they gave you 28 days in which to respond. That 28 day period would have expired on 3 September.
It appears that n 4 September 2018 a delegate named Lawrence from the Department looked at your file and believing there had been no response to the natural justice letter made a decision to refuse the application.
Two days later a further decision was made that recognised a response had been received, it says on 2 September. Interestingly that response includes a letter from a psychologist and a statement from you both dated 2 August 2018 which I believe should have been 2 September 2018.
It appears the decision of 4 September 2018 was made with a lack of facts and what we are reviewing today is the decision made on 6 September 2018 which recognised you had responded to the natural justice letter.
You have provided a copy of that decision and you have given evidence which indicates you understand why that decision was made.
In your statement, reading from the decision, you said your father had applied for a visa in 2007 on which you were included as a dependent. As you had not lodged the application you did not believe you had had a visa refused.
The department found the answer of “No” was incorrect on two counts. Firstly was your application as a dependent visa holder on your father’s application in 2007, and the second was the refusal of your wife’s student visa application in 2017.
In the first instance you say as your father had made the application, you did not believe that you had an application refused for the reasons given previously.
In the second instance you say you applied for a 485 visa and later your wife applied for a student visa. When your 485 visa was granted you applied for your wife to be included as a dependent on that 485 visa. (The Tribunal notes this is different from the evidence provided by your agent.) That application was successful and your wife was therefore added as a dependent on the 485 vias and you therefore thought no more about the student visa application which was subsequently refused.
The Tribunal noted in the written submission you believe that should the Tribunal find that you do not satisfy PIC 4020, you believe there are circumstances that should be considered as to why the requirement to satisfy the criteria should be waived
When I ask why you answered “No” to the question of having a visa refused in 2007, you said it was not your error but that of a migration agent who completed the application and did not ask you the question when filling in the form.
You told the Tribunal that had he asked you, you would have told him to answer “Yes” knowing that you had a visa application refused in 2007.
The Tribunal believes that to be a very different answer from what you have previously provided in your statement where you say your father made the application, you were unaware of the visa class he was applying for and did not realise that you had been the subject of a visa refusal. If you did not realise you had a visa refusal, surely if your agent had asked you the question you would have responded as you did by answering “No”.
When I put to you the fact you had claimed “I actually didn’t know anything about it until this visa refusal” and suggested if that was the case, when your agent asked whether you had a visa refused in 2007 you would have answered “No”. You responded saying that was correct. From that response the Tribunal does not believe it is therefore reasonable to say that the error was made by the agent who did not ask the question, for based on what you have just told me you would have instructed the agent to answer “No” anyway.
You told the Tribunal you first came to Australia for a three month visit in 1996 to visit your maternal grandparents, and three uncles.
You came again in 2002 to visit family of whom you say there are 20-25 including your grandparents, three uncles and cousins. Some were born here, and some have been here 35 years. They are all Australian citizens.
In your statement you said that in 2007 your father wanted to migrate to Australia with his family as a skilled migrant as he was involved in building and construction.
At the time of that application you were 20 years old and studying at university and you agreed your father had discussed his plans for the family to emigrate to Australia and that you were included in your father’s plans for the family to migrate to Australia.
Given you had been involved in the discussions about the family migrating to Australia, you agreed you knew that the visa application which included you, had been refused.
When I ask you about the circumstances surrounding your wife’s visa application you said you applied for a 485 visa which was granted and you stated that was the reason you couldn’t provide the documents for your wife’s student visa.
According to the submission by your agent you completed your studies in May 2016 and then applied for a 485 visa with your wife as a secondary applicant. You have subsequently given evidence that you did not apply to have your wife added to the 485 visa until after it had been granted. It would appear that your 485 visa application was made on 29 May 2016.
You told the Tribunal that in November 2016 your wife was holding a Tourist visa which only allowed her to study for three months and as she was keen to take further studies in English she lodged an application as the primary applicant for a student visa to study in Australia.
You say you did not provide the required evidence for your wife’s student visa because you had applied for the 485 visa with your wife as a dependent.
You provided no satisfactory reason as to why you did not provide the required evidence with your wife’s application.
You say now that you realise you should have withdrawn your wife’s student visa application.
The decision states the visa was refused because she did not provide “requested” documents. When a visa application is lodged, and further evidence is required such as evidence of finances, overseas student health cover et cetera, the standard procedure is for the Department to send a letter requesting the provision of the outstanding evidence. You say there was no such request, which the Tribunal finds implausible.
You say you did not receive any letters from the Department requesting evidence. You say all you received was a letter from the Department in February 2017 advising the application had been refused.
So you agree you knew your application had been refused.
As discussed above, the Tribunal finds that you were aware that a visa application which included you as an applicant was refused in 2007. From your evidence today before the Tribunal from the letter from the Department in February 2017 you were aware that your wife’s student visa application had been refused.
Based on your awareness, the Tribunal is satisfied that having provided the answer “No” to the question: Has the applicant or any person included in this application ever had an application for entry or further stay in Australia or any other country refused, or had a visa cancelled? You have provided information that was false or misleading in a material particular in relation to your visa application. The Tribunal therefore finds that you do not meet PIC 4020(1).
Having found there is evidence of false and misleading information, and the applicant does not meet PIC 4020(1), the Tribunal must consider whether the requirements satisfy PIC 4020 should be waived.
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.
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.
For the following reasons, the Tribunal it is not satisfied that the requirements should be waived.
On the basis of the above, the applicant does not satisfy PIC 4020 for the purposes of cl.500.217(1).
You told the Tribunal you lived with your grandmother for seven years before you got married in April 2016 and after your marriage you and your wife moved into your own accommodation.
You repeatedly stated your grandmother is suffering from Alzheimer’s. The psychological report provided does not mention Alzheimer’s but says she has been diagnosed with mixed anxiety and depression. Her medical conditions are listed as bilateral cataract, osteoarthritis, hypertension, migraine, hypertension and hypercholesterolaemia. The psychologist says she has been informed that your grandmother has been diagnosed with a moderate form of dementia.
You say your grandfather is unable to look after her because he has cancer which is not mentioned anywhere in the supporting evidence. When asked about her other children, you say one of her sons looks after his father but is unable to look after his mother. You say her other children have families and other commitments that prevent them from looking after their mother.
You grandmother gave emotional evidence saying she was scared to leave the house, was reliant on you to take her to the shops and to take her out and that she would not be able to live without you.

Your uncle Mr Haydar gave evidence saying that he was 60 years old and lived at home with his parents which he had done for more than 20 years. He said he looked after both his mother and father who he said were both unwell. He said his mother was unable to go out of the house, to take her medicine or to look after herself and that he was responsible for looking after her and that you had helped him a lot. He said his sister sometimes helped. He said it was not possible for him to get a job because looking after his parents took up all his time
He said you lived with them for about seven years while you were studying and had grown very close to his mother. He believes that you share a very special relationship with his mother.
At the request of the agent, the Tribunal asked the applicant what things he did that could not be done by others in supporting his grandmother. He said he did things that other people could not do because they had other jobs and things to keep them busy. He said his uncle Hayder was not able to look after his mother because he was busy looking after his father.
He said he did not provide any support to his grandfather.
The Tribunal is satisfied the applicant enjoys a special relationship with his grandmother that resulted from his living in her household for seven years prior to his getting married in 2016. The Tribunal is also satisfied the applicant provides significant physical and moral support to his grandmother. Evidence was provided that the applicant’s uncle, his grandmother’s son lives with his parents and is unable to work as he spends his time looking after his parents.
The Tribunal does not believe the applicant’s circumstances are compassionate or compelling to the extent they justify the granting of the visa
With both you hearing invitations you were requested to provide evidence of a current Confirmation of Enrolment or other documents that show you are currently enrolled in a course of study which is a requirement for the grant of a student visa.
You do not provide the requested evidence but you advise the Tribunal you are currently enrolled in a Master of Accounting and Law course at Deakin University. You say you can’t remember when that course started but you think that perhaps it started in June last year.
When asked when you last attended a class, you provide answers that were vague and confused. You said that when you got your visa refusal you deferred your studies until June this year.
The Tribunal put the following information to you pursuant to c.359AA
With both the hearing invitations you were asked to provide evidence of current enrolment and you tell the Tribunal today that you are currently enrolled in a Master of Accounting and Law at Deakin University. The PRISMS records indicate that your CoE for that course (9B73 CE 98) which was scheduled to run between 9 July 2018 and 30 June 2019 was cancelled on 31 July 2018 because you failed to commence your studies.
You have today told the Tribunal you believe that course was scheduled to commence in November and you say you deferred that course once the decision was made to refuse your visa application.
Your visa application was not refused until September 2018.
Your story conflicts with the available evidence which indicates you are not currently enrolled; as the CoE you claim is current, has been cancelled.
The hearing was adjourned to enable you to discuss your response with your migration agent.
Following the adjournment you told the Tribunal you believe the university had cancelled the original CoE because you requested a deferral and they issued another with a course commencement date of November 2018. You say the new CoE should have been provided to the Department by Deakin University. You say you are “pretty sure” they issued a new CoE
Your claims are not supported by the evidence of the PRISMS records dated March 2019 which show your original CoE was cancelled for non-commencement of studies in July 2018 and there is no evidence of a further CoE being issued.
You say the original CoE was cancelled because you deferred, and you say you deferred because you received the decision to refuse your visa application. Your visa application was refused in September, the CoE was cancelled in July. Your claims are contradicted by the evidence.
The agent claims the applicant instructs him the school had issued a new CoE which is not supported by the PRISMS records. The agent suggests that the school had “dropped the ball and misled the applicant by failing to issue a new CoE”. The agent therefore requested further time to make enquiries regarding the situation of the CoE.
The question is whether or not at the time of this decision you are currently enrolled. You have provided no evidence to the Tribunal that indicates that you are currently enrolled.
Considering the history of this case, you were initially invited to a hearing some considerable time ago and with that hearing invitation you were asked to provide evidence of current enrolment. 10 days before that scheduled hearing you advise you have engaged a representative who is going to be overseas at the hearing date and ask for a postponement.
We grant the request and postpone the hearing until today. We sent you another invitation which repeated the request for you to provide evidence of past studies and evidence of current enrolment. You did not provide the requested evidence but come to the Tribunal and ask for further time to gather further evidence. I believe you have had ample time and opportunity to provide the requested evidence but you have failed to do so, and I’m not prepared to grant further time.
On the available evidence the Tribunal finds you are not currently enrolled and therefore do not satisfy clause 500.211.
DECISION
The Tribunal affirms the decision not to grant the applicants Student (Temporary) (Class TU) visas.
Tim Connellan
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.
…

[2019] AATA 1335

2 April 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice