Ezeuka (Migration)

[2020] AATA 3141

Ezeuka (Migration) [2020] AATA 3141 (24 June 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Valentine Kelechi Ezeuka

CASE NUMBER:  1810138

DIBP REFERENCE(S):  BCC2017/4749245

MEMBER:Michael Ison

DATE:24 June 2020

PLACE OF DECISION:  Melbourne

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

Statement made on 24 June 2020 at 1:07pm

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – false or misleading information – applicant’s undisclosed previous visa refusal – honest oversight or mistake – genuine temporary stay as student – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 57, 65, 379
Migration Regulations 1994, Schedule 2 cls 500.212, 500.217; Schedule 4 Public Interest Criterion 4020

CASES

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 22 March 2018 to refuse to grant the visa applicant a Student (Temporary) (Class TU) Subclass 500 visa under s.65 of the Migration Act 1958 (the Act). The applicant applied for the visa on 12 December 2017.

2. The applicant provided the Tribunal with a copy of the primary decision. The delegate refused to grant the visa on the basis the applicant provided information that was false or misleading in a material particular when applying for the visa. The delegate found this meant the applicant did not meet the requirements of public interest criteria 4020 (PIC 4020) and that there were no relevant compelling or compassionate or compelling circumstances under PIC 4020(4) that justified the grant of the visa. As the applicant was found by the delegate not to have met PIC 4020 the applicant did not meet the requirements of the primary criteria in cl.500.217 of Schedule 2 to the Migration Regulations 1994 (the Regulations). The delegate therefore refused to grant the applicant the Student visa.

3. The Tribunal invited the applicant to attend a hearing of the Tribunal on 12 June 2020. The invitation was sent to the last email address of the applicant provided to the Tribunal. The applicant used this email address to correspond with the Tribunal earlier in this review.

4. On 4 June 2020 and 11 June 2020 the Tribunal sent the applicant SMS reminders about the Tribunal hearing to the last mobile telephone number the applicant provided to the Tribunal. The Tribunal received a message delivery failure for the message sent on 11 June 2020.

5. On 12 June 2020 a Tribunal officer rang the last mobile telephone number the applicant provided to the Tribunal three times before the Tribunal hearing was to commence. The Tribunal officer noted when they rang the number they received a message that the number was disconnected each time.

6. The applicant did not appear before the Tribunal on the day at the scheduled time and place.

7. Having reviewed the Tribunal file, the Tribunal is satisfied the applicant was properly invited to a hearing in accordance with s.379A(5) of the Act and no error message was received in relation to that invitation. No reason for the applicant’s non-appearance has been given.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The issue in the present case is whether the applicant has provided information in support of their visa application that is false or misleading in a material particular.

10. Clause 500.217 of Schedule 2 to the Regulations provides:

    (1)The applicant satisfies public interest criteria 4001, 4002, 4003, 4004, 4010, 4013, 4014, 4020 and 4021. 

11. PIC 4020(1) provides:

    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.

12. The delegate found that the applicant, in his application for the Student visa, 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?

13. The delegate also found that Departmental records showed the applicant applied for a Skilled (Provisional) (Class VF) (Subclass 476) Recognised Graduate visa on 1 May 2015 and that application was refused on 11 June 2015. The Department wrote to the applicant on 21 February 2018 informing him of this information in accordance with the procedure set out in s.57 of the Act.

14. In an undated response, the applicant responded:

    I have just received the correspondence from your office with utmost regret, and I wish to own up to my mistake. I promise it was an honest oversight and I take full responsibility for that.

    I was refused a skilled visa class 476 in June 2015 on the ground that my English score did not satisfy the requirement of the visa. I had since rewritten the English exam and was granted another skilled visa class 476 in 2016. Furthermore I was granted a bridging Visa B in December 2017, which aided me to travel back after I lost my mom.

    Since arriving in Australia, I have been law abiding, as well as living to the conditions of my visa. I have also realized the trade and commerce opportunities abound in this country, which is why I opted to study for diploma in business to help equip me for the challenges of Australia growing economy.

    I will like to reiterate that I take full responsibility for my mistake, as I plead that you tender justice with mercy. It was and will never be my intention to mislead my assessor in any form.

    I sincerely Apologize for this error, and look in anticipation for a favorable response. (sic)

15. On 9 March 2018 the applicant further responded:

    The correct information is Yes. I once had first skilled visa application rejected because I did not meet the English language requirement.

    It was an honest oversight on my part as i did not fully revised all my answers before submitting. I only became aware of this after I got an email from the department asking me to comment. I have also attached my reply to the invitation to comment. I totally regret this and take full responsibility. (sic)

16. PIC 4020(5) provides:

    (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.

17. 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.

18. 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. Put another way, PIC 4020 is not directed at information which lacks the necessary element of fraud or deception such as in the case of an innocent or unintended mistake.

19. The Tribunal did not have the benefit of hearing evidence from the applicant. The applicant has submitted to the Department that his incorrect answer about his visa history was an “honest oversight” and “mistake”. The obligations on visa applicants and those who assist them to provide correct information and not to provide incorrect information is a strict obligation which underpins the integrity of and efficient administration of Australia’s immigration system.

20. Without the benefit of hearing the evidence of the applicant, the Tribunal is not convinced on the information before it that the applicant made an honest oversight or mistake when he answered a question incorrectly on his Student visa application. The Tribunal finds the applicant’s answer to the relevant question was therefore purposely untrue.

21. On the information before the Tribunal, the Tribunal finds that then applicant answered the question about whether he had been refused an Australian visa before in his application for the Student visa incorrectly. This answer was false at the time it was given and was material to the assessment of whether the applicant was a genuine applicant for temporary stay in Australia as a student as required by cl.500.212. The information was therefore false or misleading in a material particular which causes the Tribunal to find that the applicant does not meet PIC 4020(1).

22. The requirements of PIC 4020(1) and (2) can be waived. PIC 4020(4) provides:

    (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.

23. The applicant did not make any claims under PIC 4020(4) to the Department. As there is no information before the Tribunal that the applicant could satisfy the requirements of PIC 4020(4) the Tribunal finds that the requirements of PIC 4020(1) should not be waived.

    Conclusion

24. The Tribunal finds the applicant does not satisfy PIC 4020(1) as required by cl.500.217 of Schedule 2 to the Regulations because the applicant provided false or misleading information in a material particular when the applicant answered a question about his visa history in his application for a Student visa incorrectly.

25. Given the above finding, the Tribunal finds that the applicant does not meet the criteria for the grant of a Student (Temporary) (Class TU) Subclass 500 visa. The applicant does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa. Accordingly, the decision under review must be affirmed.

    DECISION

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

    Michael Ison
    Senior Member