Enkhtur (Migration)

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 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.
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 unfavourable
information 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 the
following question under the heading of ‘Character Declarations’:
“Has any applicant ever been charged with any offence that is currently awaiting legal
action?"
You declared the following related information,
Offence type: “Domestic or family violence”, Date of offence: “31 Dec 2019”, and Description
of 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 the
following question under the heading of ‘Offence Details’:
“Has any applicant ever been the subject of a domestic violence or family violence order, or
any other order, of a tribunal or court or other similar authority, for the personal protection of
another person?”
You declared the following related information in relation to the ‘Domestic violence order
details’,
Date order raised: “16 Jan 2020”, and Give details of domestic violence order: “Domestic
violence order is attached for your kind perusal. Thank you.”
You were previously granted a Student (Subclass 500) visa on 19 March 2020. This visa
ceased on 25 May 2022.
As you held a Student (TU 500) in the period of 12 months before the current Student visa
application was made, I have taken into consideration the information you have given to the
Department in relation to your previous Student (subclass 500) visa application lodged on 6
February 2020, as per Public Interest Criteria (PIC) 4020(1)(b).
In the Form 157A (Internet) Application for a Student Visa from your previous Student visa
application lodged on 6 February 2020, you answered, “No” to the following question under
the 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 have
given or caused to be given, to the Minister,
information that is false or misleading in a material particular in relation to your previous
application for a Student visa.
The information is of a material particular as it directly relates to the assessment of PIC 4001
and 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.
On 13 February 2023 the applicant provided several documents to the Department. A document from the applicant headed “explanation letter”. This document is unsigned, undated and without page or paragraph numbers. The letter states as follows:
I, GANTULGA Enkhtur, am writing this explanation letter for I received a Natural Justice Letter on January 17, 2023 which asked me to give an elaboration on my answer to the question “Has any applicant ever been charged with any offence that is currently awaiting legal action?” in the previous Student Visa 500 application I submitted on February 06, 2020 with an assistance of my authorized Bridge Blue Mongolia agency.
On December 30, 2019 I quarreled with my wife DONIDDONDOG Byambadorj, and I was called by the Campsie Police Station to come to the station on January 01, 2020 to give a report on what happened the other day. At the scheduled date, I duly got to the police station and gave the report, and there I was detained for 8 hours. Moreover, the trial for my case was scheduled to be held on February 27, 2020. However, the visa I was holding was about to be expired on February 28, 2020; thus, I decided to further study – which was an inspiration I had obtained from my previous study at Mercury Colleges – while waiting for the trial and court decision. So, for assistance with my English language and VET course enrollment and student visa application, I reached Bridge Blue Mongolia agency – which had helped me with my first Student Visa application submission. Explaining all my situations and telling the fact that I was waiting for the trial and court decision, I asked them for assistance. They helped me fill in my Student Visa 500 application form and submit it online again, and finally, on February 06, 2020, my application was submitted. At that time, due to English language skill boundary, I couldn’t well double check how the Bridge Blue Mongolia agency’s assigned staff filled in my online Student Visa 500 application form and I just believed that they filled it correctly, thinking that I had already given them all necessary information about myself. (For my trial had been scheduled at a later date than my visa application submission and didn’t have any paper-based documents relevant to my case, I just gave them an oral explanation.) Then, on March 19, 2020, I was granted the Student Visa 500, allowing me to further study at my chosen Australian education provider for pursuit of world-class English language programs at SCOTS English College and VET program at SIBC.
Then, upon successfully finishing my planned programs at the chosen Australian education providers, I wanted to continue to further develop my skills with an extended English language program and Graduate Diploma program in the area of learning management, which could be a durable and worthy investment into my future. Thus, on May 06, 2022, I applied for the Student Visa 500 second time here in Australia with help from Bridge Blue Mongolia, by providing them with my court decision and all that for use for my second visa application.
However, on January 17, 2023, I have just received a Natural Justice Letter which asked me why I gave an answer “Yes” to the question “Has any applicant ever been charged with any offence that is currently awaiting legal action?” in the previous Student Visa 500 application I submitted on February 06, 2020 with an assistance of my authorized Bridge Blue Mongolia agency. Puzzled at this request, I immediately contacted the Bridge Blue Mongolia agency regarding this matter, asking for explanation, and in response, they admitted that they made a technical mistake during their assistance with my first onshore Student Visa 500 application submitted on February 06, 2020 even though they had already been aware of my case. (They apologized to me, saying that they got used to filling in applications of the students who had never been committed to such a case like mine; so, I didn’t have a heart to blame them fiercely, already knowing that it was all because of my own irresponsibility and unsmart actions from the beginning on, no matter how much an explanation I gave them.)
So, through this explanation letter, I, hereby, demonstrate that I have never ever had an intention to give a false and misleading information on myself in the visa application and it is same with the one I had got in submitting my previous visa application on February 06, 2020. Therefore, in applying for the second Student Visa 500 here in Australia in May 2022, I brought all my trial-and-court decision-related documents to be used in support of my visa application. If I had got any ill intention to mislead you, I wouldn’t have attached my court decisions to my second visa application for your kind reference, answering “Yes” to the questions “Has any applicant ever been the subject of a domestic violence or family violence order, or any other order, of a tribunal or court or other similar authority, for the personal protection of another person?”, and ”Has any applicant ever been charged with any offence that is currently awaiting legal action?".
(emphasis added)
The applicant also provided a letter dated 23 January 2023 from Bridge Blue Mongolia. The letter is signed by a person described as “General Director”. The letter states as follows:

I, ENKH-OD Dashnyam, am writing this apology letter, on behalf of all Bridge Blue Mongolia staff, with regard to our unintentionally-made technical mistake during assistance with the first Student Visa 500 application of the aforementioned client submitted on February 06, 2020.
Upon receiving from you a Natural Justice Letter kindly requesting our client Gantulga to provide a comment on his unfavorable answer of "NO" to one of the character-related questions "Has any applicant ever been convicted to an offence in any country (including any conviction which is now removed from official records)?" in his preceding visa application, regardless his offence committed in Australia, I have just noticed that my staff and I made a technical mistake during our assistance with his previous Student Visa 500 application.
Through this apology letter of mine, I, hereby, confirm that at the time of counseling the client had already given me all information in detail about his accidentally-committed offence and reminded me to include this information in his visa application for him. (At that time, this client of ours didn't have any documentation to be attached in support of his visa application since his trial hadn't be held yet and any decisions and orders hadn't been made yet. Therefore, we just automatically answered to the relevant question "No" as we always did in assisting our other clients. So, this was a mistake accidentally made by us.)
All this misunderstanding and inconvenience with our client's visa application is because of our carelessness and lack of our focus on work; thus, hereby I'm sincerely apologizing to you and our client for our undeliberate mistake and irresponsibility made during our assistance with the client's previous visa application, thereby immediately writing this apology letter of mine to correct this mistake.
I'm terribly sorry for this technical mistake of ours because it has caused a lot of misunderstanding and confusion regarding our client's purpose of applying for Student Visa 500 only for academic pursuit as an investment in his future.
(emphasis added)
The delegate refused the application for the student Visa on 28 March 2023 on the basis that the applicant had provided false and misleading information in the first student Visa application namely the impugned response. The delegate stated as follows:
On 6 May 2022, the applicant lodged a Vocational Education sector (TU 500) student visa
application whilst in Australia.
The applicant was previously granted a Vocational Education sector (TU 500) student visa
on 19 March 2020, which was effective until 25 May 2022, this application was lodged
onshore on 6 February 2020.
As the applicant held the Student visa in the period of 12 months before this Student visa
application was made, I have taken into consideration the information they have given to
the Department in relation to their initial Student visa, as per Public Interest Criteria (PIC)
4020(1)(b).
In the Form 157A (Internet) Application for a Student Visa from the applicant’s previous
Student visa application lodged on 6 February 2020, the applicant answered, “No” to the
following question under the heading ‘Character Declarations’:
Has any applicant ever been charged with any offence that is currently awaiting legal action?
With their current application the applicant provided evidence they were charged on 1
January 2020 with 2 Common Assault domestic violence related charges.
Each visa applicant is responsible for the authenticity of documents and accuracy of
information provided with their application. The applicant declared ‘Yes’ to the following
questions under ‘Declarations’ in the application form:
The applicants declare that they:
·    Have read and understood the information provided to them in this application.
·    Have provided complete and correct information in every detail on this form, and on any attachments to it.
·    Understand that if any fraudulent documents or false or misleading information has been provided with this application, or if any of the applicants fail to satisfy the Minister of their identity, the application may be refused and the applicant(s), and any member of their family unit, may become unable to be granted a visa for a specified period of time.
On 17 January 2023 the applicant was provided with 28 days to provide comment on the
suspected information that is false or misleading in a material particular in relation to their
previous student visa application.
On 13 February 2023 the applicant provided the following documents
·    Gantulga Enkhtur_Court Orders.pdf
·    Gantulga Enkhtur_Mongolian Police Certificate.pdf
·    Gantulga Enkhtur_Australian Police Certificate.pdf
·    Gantulga Enkhtur_Form 80.pdf
·    Bridge Blue Mongolia_Apology Letter.pdf
·    Gantulga Enkhtur_Explanation Letter.pdf
The applicant states they did declare to their agent that they had been charged but didn’t
have paper evidence of the charge, the agent provided an apology stating the applicant did
state they were charged, the applicant’s agent stated in their apology letter that they made a
technical mistake during the previous student visa application, they were aware of the charge but did not enter it in the previous application.
I note the applicant provided evidence they were convicted on 27 February 2020 but did not
notify the department before the student visa was granted on 19 March 2020.
I have considered and assessed all the information before me. This includes the information
provided in this student visa application, previous student visa application, the results of the
departmental investigations and the response provided by the applicant.
Based on the evidence and information before me, I find that the applicant has given or
caused to be given information that is false or misleading in a material particular in relation
to their previous class TU Subclass 500 Student Visa, and therefore, does not satisfy PIC 4020(1)(b) and consequently, Clause 500.217 of the Migration Regulations.

On 5 April 2023 the applicant applied to this Tribunal for a review of that decision.
The applicant provided various documents to the Tribunal in support of his application for review including the letter dated 23 January 2023 from Bridge Blue Mongolia, the undated document from the applicant and a submission dated 5 April 2023 from the applicant’s current representatives. The submissions concede that the applicant made the impugned response in the first student visa application, that he made the second student visa application on 6 May 2022 and “with this application the applicant provided evidence that he was convicted on 27 February 2020 of domestic violence related charges”, that the applicant “advised the agency about his charges, however, the agency later informed making a technical mistake and did not include this information in the applicant’s application”. After receiving the invitation to comment on the impugned response by the Department the applicant provided a form 80 and police clearance certificates through “his agency and also provided a letter explaining the previous conviction record.” The submissions acknowledges a visa might be refused if the applicant provides information that is false or misleading in the visa application, but that the applicant innocently provided incorrect information and did not purposefully try to mislead the department, the applicant sought the assistance of a professional agency and believe the agents would do a proper job in terms of preparing and lodging his application and that he had no recollection of checking the student visa application and he relied on the agency. The submissions also contended that relevant and compassionate and compelling circumstances exist as follows, all “the post pandemic situation as well as there are significantly fewer international students in Australia than prior to the pandemic and as a result the Australian education sector was hit hard. These circumstances are compelling circumstances affecting the interests of Australia under PIC 4020 that justify granting the applicant a student visa. The applicant is also a skilled welder which is in the skilled occupation list of Australia and has more than one year of professional experience” and finally the “Migration Act permits notification of incorrect answers. The applicant did disclose the conviction in a form 80 that was provided before he received the refusal notification letter. Therefore the mistake was corrected before decision had not been made yet.”
(grammatical errors and omissions unchanged)
The Tribunal observes that the applicant identified Bridge Blue Mongolia as his education agent in the second student visa application. Secondly that the details provided for the street address, email address and telephone number of Bridge Blue Mongolia in the second student visa application are identical to those which appear on the letterhead of the letter dated 23 January 2023 from Bridge Blue Mongolia.
The hearing
In the hearing the applicant stated that he had not read the delegate’s decision dated 28 March 2023. However he said that he understood that the issue for determination was whether he had provided false and misleading information in the previous student visa application in the form of the impugned response.
The Tribunal proceeded to ask the applicant several questions the substance of which and his responses were as follows.
The applicant agreed that he made the student visa application on 6 February 2020. When asked to identify the education agent used that time he said “Bridge Blue”. He was asked whether he was referring to Bridge Blue Mongolia. He said “yes”. He confirmed that he made the second student visa application on 6 May 2022 and that the education agent was “Bridge Blue”.
The applicant was asked to state his location when he launched the first student visa application. He said “Sydney”. When asked to state where his education agent was located he said that the office was located in Sydney. He gave the same answers in respect of his second student visa application and the location of the education agent for the service.
The applicant agreed that the time of the first student visa application he had been charged with criminal offences. He was asked to state why and when he was charged. He said “On 1 January 2020 I had an argument with my wife and she called the police and she lodged a complaint”. When invited to answer the question directlyhe said “ by police and the court finalised my matter on 26 February 2020”. He was asked when the police told him he was going to be charged. He said “on 1 January 2020”. The applicant was asked when he received documents informing him that he had been charged with that offence. He said “on 1 January 2020”. He was asked to describe the documents which he received. He said “first notice asked to come to the police, the police station on the same day, and then I found out I had to attend court”. He was asked when he found out he had to attend court. He said “on the same day”.
He was asked to state when he received papers informing him that he had to attend court. He said “because it happened four years ago and I remember when, but I recall in the day I attended the police station I was told to come to court to finalise my matter point”.
He was asked to state when he attended the education agent, did he give instructions about the first student visa application. He said “I remember I went to the education agent in mid January 2020, maybe 12 or 13 January”.
He was asked if he informed the education agent about the impending criminal charges. He said “I cannot remember clearly but I think I told them verbally”.
The Tribunal observed that in the letter titled “explanation letter” he stated that he did tell the agent about this and invited the applicant to clarify the inconsistency. He said “yes I told them verbally but at the time there was not any court decision and I didn’t know I couldn’t explain in detail what I was charged for”.
The applicant was asked to inform the Tribunal what he did tell the education agent at the time. He said “I told them I had an argument, with my wife and my wife called the police and I was not sure exactly what happened”.
He was asked whether he informed the education agent of anything else. He said “no”. He was asked whether he informed them about a forthcoming court hearing. He said “at the time I didn’t know when the court hearing would be held”. He was asked whether the police had informed him that he was to be charged with assault. He said “Yes”. He was asked whether he informed the education agent of that fact. He said “no”. It was asked whether he remembered that when he received papers informing him that he had to attend court. He said “I don’t recall, I think the beginning of February”.
The applicant was asked when he attended the education agent to give instructions in relation to the second student visa application. He said “March 2022”. He was asked whether he informed the education agent about the assault proceedings. He said “yes I told them everything”. He was asked to explain what he informed the education agent. He said “I told them I had an argument with my wife then there was a case, and I was called to court, it has been finalised, I told everything to my agent, I explained my opinion that I was interested to find out what was the outcome of the student visa in this case”.
The applicant was asked whether he provided the education agent any documents regarding the court proceedings and charges. He said “I gave them everything”. He was asked whether he recalled what he gave them. He said “yes”. He was invited to share that with the Tribunal. He said “I gave them a copy of the court decision and the court decision for me to do 20 hours community service”.
He was asked whether he checked the first student Visa application prior to it being launched. He said “no”. He was asked why he did not do that. He said “I have trust in the education agency, that is why I did not check”. He was asked whether he understood that the student Visa application was an important document. He was asked whether his trust in the education agent was the only reason why he did not check the student Visa application. He said “yes”. He was asked whether there was no other reason why he did not check the student Visa application. He said “correct”. The Tribunal observed that in the document headed “explanation letter” he said that the reason why he did not check the student Visa application was because his English language proficiency was inadequate. In framing the question the Tribunal read aloud the relevant passage from the document titled “explanation letter”. The applicant responded, “that is so, first I have trust in the agency, the second I couldn’t verify the application because of English”. He was asked why he was changing his evidence on this point. He said “because it happened four years ago I have no recollection”. He was asked whether he looked at the documents prior to the hearing to refresh his memory. He said “I don’t have a copy of the letter”. The Tribunal pointed out that his representative had a copy of the letter and had provided to the Tribunal. The applicant did not respond.
The Tribunal observed that it had been provided with a letter from Bridge Blue Mongolia stating that the agency had made a mistake in relation to information included in the first student Visa application in respect of pending criminal charges. He was asked whether he has seen a copy of that letter. He said “my representative has”. When the question was repeated he said “I’ve seen it”. The Tribunal identified the signatory to the letter and invited the applicant to state whether he had ever met that person. He said “no”.
The Tribunal asked the applicant whether he went back to see Bridge Blue Mongolia when he became aware of the inconsistency between the two student Visa applications. He said “yes”. He was asked to state whom he had seen at the education agent and what he had told that person. He said “I saw a person who was in charge of ongoing operations and then everything that happened was the truth”. The Tribunal observed that his answer was vague and invited him to provide more detail. After some confusion he said “I went to the agency, I told them I had a fight with my wife and my wife called the police, and then there was a court decision, then I told them there was a court decision involving me to work 20 hours service, I told the agency should notify the Department about this”. He was asked to inform the Tribunal what the education agent had told him once it had been informed about the previous criminal proceedings. He said “the agency told me I had to inform this because it was required by law”. He was asked whether he recalled attending the agency and informing the agent that he had received a letter from the Department pointing out the two different responses in the two different student Visa applications needed to be explained. He said “I’ve explained my agent in relation to the first answer in the first student Visa, and on the second answer I have told the explanation”.
The applicant was asked whether anyone from Bridge Blue Mongolia had ever informed him that the agency had made a mistake in respect of the first student Visa application. He said “no”. The Tribunal asked if he was sure. He said “yes”.
The Tribunal put a passage from the document headed “explanation letter” to the applicant in which he stated that not only had the agency admitted the mistake but it also apologised. In so doing the passage was read aloud to the applicant and translated into his native language. He was asked why he was now saying in evidence that the agency had never admitted making a mistake. He said “during the first student Visa application I couldn’t inform Mongolia about the details of the case, because of the time because the court case had not been finalised, and when I at the time I made the second student Visa application was a court decision already made”. He was again asked whether he was saying that the education agency never apologised to him about a mistake made in relation to the first student Visa application. He said “at the time I didn’t check what kind of letter was sent to me”. The Tribunal informed the applicant that the difference between his evidence at the hearing and the statements contained in the document titled “explanation letter” caused some concern. He was invited to comment. He said “I’m sorry for what happened and don’t have anything to comment”.
The applicant was invited to say anything further in relation to his application for review he said “I am intention to study.”
The applicant’s representative was invited to make any submissions. First point she made was that problem in relation to the interpretation of the questions and answers was an issue. She did not identify with precision any particular questions and answers. However the Tribunal informed the representative that there had been some issues with the interpreter, the representative had pointed to several exchanges alleged to be inaccurate. However the Tribunal had either repeated, or retraced the questions and the applicant had been consistent in his responses. The Tribunal informed the representative that it did not accept that translation issues were a factor in the hearing. The applicant’s representative proceeded to make general submissions in relation to the materiality of the information in the student Visa applications which was now impugned. The submissions were not developed to a great extent. In the Tribunal’s view it is untenable to suggest that the impugned answer, namely that there were no pending charges, is not material to a consideration of a student Visa application. The Submissions are not accepted. Next it was asserted that the difference between the two responses in each student Visa application was an innocent mistake, that the applicant had informed the agent of the correct information and the agent “did not take it seriously”. The Tribunal has taken into account the broad submissions made by the representative and given the appropriate weight.
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.
The question in the student Visa application was whether the applicant “has ever been charged …” with a criminal offence. The applicant’s evidence is more consistent with receiving a notice requiring him to attend the police station, and being informed that he would or may be charged with offences during the course of the interview. Accordingly it is tolerably clear that he had been informed that he may be charged or would be charged but not that he had been charged. The Tribunal’s presumption is that details of the charge would be in writing and provided to him rather than put to him orally. This document would be the charge sheet or notice of information sometimes described. In the circumstances the Tribunal is not satisfied the applicant had been charged when he attended the agent in mid-January.
However if the Tribunal’s assessment of the evidence is incorrect then the Tribunal turns to consider whether the applicant made an innocent mistake. The applicant’s evidence on an aspect of this point is relevant. He stated that he visited the agent when he became aware of the issue. Further the agent admitted the mistake and apologised. This is contained in the so-called “explanation letter”. This version of events is consistent with the Bridge Blue Mongolia letter. However at the hearing he said that he received no admission and no apology from the person whom he visited at the education agency office in Sydney. Indeed he said that he had never met the author of the letter from Bridge Blue Mongolia. This inconsistency may be explained by the generally poor quality of the applicant’s evidence, perhaps the stress of giving evidence at the hearing, or even some translation issues. Nonetheless it was clear in his statement and the Bridge Blue Mongolia letter is also clear. On balance, and not without some misgivings, the Tribunal concludes that the agency did not act upon instructions given to it by the applicant in relation to the first student Visa application and did not advert to the assault issue. This was not the fault of the applicant.
Accordingly the Tribunal is satisfied that the applicant meets PIC 4020(1).
On the basis of the above, the applicant does satisfy PIC 4020 for the purposes of cl 500.217.
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
Peter Booth
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.
…

[2024] AATA 1654

17 April 2024

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Immigration

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Judicial Review

Procedural Fairness

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