Enkhtur (Migration) - [2024] AATA 1654

Enkhtur (Migration) [2024] AATA 1654 (17 April 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Gantulga Enkhtur
REPRESENTATIVE:  Dr Oyunchimeg Bordukh (MARN: 1793004)
CASE NUMBER:  2304897
HOME AFFAIRS REFERENCE(S):          BCC2022/1573833
MEMBER:Peter Booth
DATE:17 April 2024
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the application for a Student (Temporary) (Class TU) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 500 (Student) visa:
·Public Interest Criterion 4020 for the purposes of cl 500.217 of Schedule 2 to the Regulations

Statement made on 17 April 2024 at 3:02pm
CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – subclass 500 (Student) visa – applicant had provided false and misleading information in a previous visa application – criminal charges – agency did not act upon instructions given to it by the applicant in relation to the first student visa application – not the fault of the applicant – Tribunal is satisfied that the applicant meets PIC 4020(1) – decision under review remitted
LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl 500.217
CASES
Arora v MIBP [2016] FCAFC 35
Batra v MIAC [2013] FCA 274
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 Home Affairs on 28 March 2023 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 6 May 2022. 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 applicant had provided false and misleading information in a previous visa application.
The applicant appeared before the Tribunal on 15 April 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mongolian and English languages.
The applicant was represented in relation to the review.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration .
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 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…

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 Enkhtur (Migration)

Details

AGLC: Enkhtur (Migration) [2024] AATA 1654
Case: [2024] AATA 1654
Decision Date: 17 April 2024

CaseChat Overview and Summary

This matter concerned an application for a Student (Temporary) (Class TU) visa, subclass 500, by the applicant, Enkhtur. The dispute arose because the applicant had previously answered "No" to a question regarding criminal charges awaiting legal action in an earlier student visa application, when he had in fact been charged with assault. The Department of Home Affairs had identified this discrepancy and invited the applicant to comment, ultimately leading to the matter being reviewed by the Tribunal.

The primary legal issue before the Tribunal was whether the applicant met Public Interest Criterion (PIC) 4020(1) of the Migration Regulations. This criterion requires that an applicant has not provided, or caused to be provided, a bogus document or information that is false or misleading in a material particular in relation to a visa application or a visa held in the preceding 12 months. The Tribunal was required to determine if the applicant's previous answer constituted false or misleading information in a material particular, and if so, whether PIC 4020(1) was satisfied.

The Tribunal considered the applicant's evidence regarding his communication with his education agent about the criminal charges. It noted inconsistencies in the applicant's account of whether he had informed the agent about being charged and awaiting trial. The Tribunal found the applicant's evidence to be vague and imprecise, and ultimately concluded that it was not satisfied the applicant had informed the agent that he had been charged. The Tribunal also considered the explanation provided by the education agent, but found it lacked clarity regarding the agency's structure and the authority of the signatory.

Ultimately, the Tribunal determined that the matter should be remitted for reconsideration. While the Tribunal was not satisfied that the applicant had provided false or misleading information in a material particular, it acknowledged the complexities and inconsistencies in the evidence presented. The remittal allowed for a further assessment of whether the applicant met PIC 4020(1) in light of the evidence and the Tribunal's findings.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

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.Background On 6 May 2022 applicant lodged an application for a subclass TU 500 student visa. (The second student visa application). On 19 March 2020 the applicant had been granted a subclass TU 500 student visa valid until 25 May 2022. This application was lodged on 6 February 2020. (The first student visa application). In the first student visa application the applicant had answered “No” to the question under the heading ‘Character Declarations’:Has any applicant ever been charged with any offence that is currently awaiting legal action?(the impugned response) In the second student visa application the applicant stated that he had been charged on 1 January 2020 with two assault charges. By letter dated 17 January 2023 the Department wrote to the applicant and invited him to comment upon the answers he provided in the first student visa application and in the second student visa application. The letter was in the following terms:We are currently processing your application. During this process we received unfavourableinformation that may lead to a decision to refuse your application.Follow the instructions in this letter on how to reply and the timeframe for you to respond.On 6 May 2022, you lodged a Student (subclass 500) visa application.You declared in your Form 157A (Internet) Application for a Student Visa ‘Yes’ to thefollowing question under the heading of ‘Character Declarations’:“Has any applicant ever been charged with any offence that is currently awaiting legalaction?"You declared the following related information,Offence type: “Domestic or family violence”, Date of offence: “31 Dec 2019”, and Descriptionof the offence: “Domestic violence order is attached for your kind perusal. Thank you.”You also declared in your Form 157A (Internet) Application for a Student Visa ‘Yes’ to thefollowing question under the heading of ‘Offence Details’:“Has any applicant ever been the subject of a domestic violence or family violence order, orany other order, of a tribunal or court or other similar authority, for the personal protection ofanother person?”You declared the following related information in relation to the ‘Domestic violence orderdetails’,Date order raised: “16 Jan 2020”, and Give details of domestic violence order: “Domesticviolence order is attached for your kind perusal. Thank you.”You were previously granted a Student (Subclass 500) visa on 19 March 2020. This visaceased on 25 May 2022.As you held a Student (TU 500) in the period of 12 months before the current Student visaapplication was made, I have taken into consideration the information you have given to theDepartment in relation to your previous Student (subclass 500) visa application lodged on 6February 2020, as per Public Interest Criteria (PIC) 4020(1)(b).In the Form 157A (Internet) Application for a Student Visa from your previous Student visaapplication lodged on 6 February 2020, you answered, “No” to the following question underthe heading ‘Character Declarations’:Has any applicant ever been charged with any offence that is currently awaiting legal action?This information raises concerns that by answering ‘No’ to the above question you may havegiven or caused to be given, to the Minister,information that is false or misleading in a material particular in relation to your previousapplication for a Student visa.The information is of a material particular as it directly relates to the assessment of PIC 4001and clause 500.217(1) of the Migration Regulations.This information raises a concern that you may not satisfy PIC 4020 and clause 500.217(1) of the Migration Regulations.

Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration .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 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.

Decision

Reasons for decision

The Tribunal pointed out that there were two inconsistencies in the applicant’s evidence, first in relation to why he did not review the first student Visa application and secondly whether the education agent admitted making a mistake in relation to the first student Visa application. As to the first point the representative said that the applicant was under stress in giving evidence and he was worried about the case also that the events occurred during a global pandemic and the communications were mostly through telephone calls. As to the second point the representative said “it is the same answer”. Lastly the Tribunal observed that the written explanation from the education agent was provided from the Mongolian office and via a person that the applicant had never met. The applicant’s representative proceeded to give a lengthy response the substance of which was the education agency operated by way of franchise, the Sydney office was a franchise, and that no one in the Sydney office had authority to sign such a letter. The Tribunal observed that the letter from the education agency did not explain the relationship between the Mongolian office and the Sydney office and there was no evidence to suggest anything along the lines contended for by the representative.Conclusion The evidence of the applicant was often unresponsive to the question, vague, imprecise or discursive. Often the evidence of the applicant contained elements of all these issues. The Tribunal has rehearsed the evidence as a representative narrative, given in real time, which was often quite disjointed. The Tribunal’s rehearsal of the evidence is not intended to be a transcript of the evidence, rather the best recording as it transpired. It does give and is intended to give an appreciation of the nature and quality of the applicant’s evidence. The first issue is what the applicant told the education agent in relation to the assault issue. Prior to hearing the applicant stated that he informed the agent for the first student Visa application that he had been interviewed by police and he was awaiting trial. At the hearing his evidence was not as clear. He said that he informed the agent that he had been charged, that he received documents in 1 January 2020, these were documents required him to attend the police station, he thought he told the agent verbally about the impending charges, he told the agent that he was not sure for exactly what happened, he also informed the agent that he would be charged, he then went on and said he had not told the agent that he would be charged. The written submissions from his representative dated 5 April 2023 state (paragraph 3) that the applicant advised the agency about his charges. The Tribunal prefers the direct evidence from the applicant. It is not clear whether the applicant had received the court documents when he attended the education agency in “mid-January” 10 days or so after the police interview although his evidence was quite confused. The Tribunal is not satisfied that he informed the agent that he had been charged. It is more likely that he gave a version of the narrative which he gave in the hearing, which is equivocal or unclear as to whether he had been charged.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.