FARIA DE CARVALHO (Migration)

[2018] AATA 2046

FARIA DE CARVALHO (Migration) [2018] AATA 2046 (13 February 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Edmar FARIA DE CARVALHO

CASE NUMBER:  1717322

DIBP REFERENCE(S):  BCC2017/1081069

MEMBER:Geraldine Hoeben

DATE AND TIME OF

ORAL DECISION AND REASONS:        13 February 2018 at 2:35 pm (NSW time)

DATE OF WRITTEN RECORD:               13/04/18

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision under review.

Statement made on 13 April 2018 at 1:50pm

CATCHWORDS
Migration – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – Bogus document – Public Interest Criterion 4020 – No compassionate or compelling circumstances exists for PIC 4020 waiver – Decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5, 65, 97
Migration Regulations 1994, Schedule 2, cl 500.217

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.

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 20 July 2017 to refuse to grant the visa applicant a Student (Temporary) (Class TU) Subclass 500 visa under the Migration Act 1958 (the Act).

2. At the hearing on 13/02/18 the Tribunal made an oral decision and gave an oral statement of decision and reasons. The following is the written record of those reasons.

   STATEMENT OF DECISION AND REASONS

3. This is an application for review of a decision made by a delegate of the Minister for Immigration on 20 July 2017 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s.65 of the Migration Act 1958 (the Act).

4. The applicant applied for the visa on 20 July 2017. The delegate refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl.500.217(1) of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the applicant had given a bogus document within the meaning of s 97 of the Act .

5. The applicant was represented in relation to the review by his registered migration agent (MA) who also attended the hearing via telephonic link.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. 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).

8. 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?

9. 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.

10. 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.

11. 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.

12. The Tribunal needs to consider the following:

    ·whether there is evidence before the Tribunal that the applicant has given, or caused to be given, to the Minister, an officer, the Tribunal, a relevant assessing authority or a Medical Officer of the Commonwealth:

    §a ‘bogus document’, as defined in s.5(1), i.e. a document that the Tribunal reasonably suspects is a document that:

    ·purports to have been, but was not, issued in respect of the person, or

    ·is counterfeit or has been altered by a person who does not have authority to do so, or

    ·was obtained because of a false or misleading statement, whether or not made knowingly.

    and/or

    §‘information that is false or misleading in a material particular’ as defined in PIC 4020(5), i.e. information that is:

    ·false or misleading at the time it is given, and

    ·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.

    in relation to the visa application or a visa held in the 12 months before the visa application was made.

13. The Tribunal asked the applicant to explain, in his own words, why he believed he was at the Tribunal today. He replied that that the department did not believe that that the Brazilian bank documents he submitted to prove his financial capacity were genuine. The response is a fair appraisal of the issue and the tribunal is satisfied as to the applicant’s appreciation of the significance of the matter presently before the Tribunal.

14. The applicant’s evidence was that he would never give a false document or make a misleading statement. He claimed that the document he gave to the department was true. The Tribunal drew the applicant’s attention to the following concerns: there was no name or signature on the relevant covering bank document, no date, the document was uncertified either by an Australian JP or Brazilian equivalent, there were no contact details on the document such as e-mail address, facsimile, physical address or indeed any other identifier. It continued that the documents did not demonstrate that they related to the financial capacity of him which one might have assumed could have been in the form of an original statement or in affidavit form. The Tribunal stressed its concern in relation to these very significant omissions in the applicant’s visa application.

15. As a result, the Tribunal emphasised that the bank documents he submitted to the department to prove his financial capacity to support his residence in Australia while studying had a significant question over the integrity of his visa application.

16. The Tribunal continued its concern that given the applicant had prior notice both in terms of the delegate’s decision dated 20/07/17 some 8 months ago and which he had attached to his review application, the hearing invitation dated 29/01/18 as well as his own stated understanding of the issue at the commencement of the hearing, that he knew the significance of the issue presently before Tribunal to be determined today was the issue revolving around the authenticity of the bank documents. The Tribunal continued that given his clear understanding of the implications flowing from this hearing and ultimately his status in Australia it was surprised that he had not submitted any further information of any sort or, indeed, evidence to demonstrate that the documents he submitted were genuine. It continued that he could have achieved this in a number of ways such as obtaining certification of the questionable bank documents or an affidavit from the Brazilian bank to declare the document’s authenticity. 

17. He replied initially that he did not know he was required to provide certification for the department. The Tribunal acknowledged this, however, it reminded him that his student visa application was his application, not the department’s and that the burden was on him to provide all the relevant supporting documentation/information and in the circumstances of his case, that he had the relevant financial capacity for his period of stay in Australia while studying. The form or manner in which he decided to do this was his formal decision not he department’s. It did not lie with the department to always be obliged to request certification or supporting documents except in cases where there were real questions over the authenticity of supporting evidence/documentation. How, he, as the applicant decided to provide this information was his responsibility.

18. The applicant asked for more time to produce the relevant information that he had the relevant authentic financial capacity evidence. The Tribunal then referred him to the departmental delegate’s decision dated 20 July 2017 which clearly identified the PIC 4020 issue and the Tribunal hearing invitation dated 29/01/18 which again reminded the applicant to bring to the Tribunal all documents upon which he wished to rely including originals or certified copies of originals. He did not reply.

19. The applicant then declared that that he had actually again sought certification from Brazil. This was at odds with his earlier evidence when he stated he did not think he had to obtain certification. The Tribunal then asked for the written evidence which demonstrated his certification request to the relevant Brazilian Bank but he could not produce any such evidence.

20. The Tribunal then asked the applicant that if he had time, what sort of information could he produce which was so compelling and persuasive that it would convince an independent arbitrator, such as the Tribunal, that he could produce authentic information as to genuine financial capacity. The applicant replied that he had a telephone number but did not provide any further information written or otherwise that this telephone number would provide the relevant evidence as to genuine financial capacity. As a result, the application for more time was, therefore, rejected as nothing more than a delaying tactic to disrupt the smooth flow of the hearing and an expeditious outcome.

21. The applicant continued to repeat that the department did not ask him to provide certification. The Tribunal reminded him again that the department did not have to, that it was his visa application and it was he who was required to provide all relevant and authentic supporting documentation. The Tribunal continued that it was the department’s role to assess his application as he submitted it. There was no reply.

22. Even though the Tribunal informed the MA at the commencement of the hearing that if she wished to make any submissions the appropriate time would be after the giving of the applicant’s evidence, there were constant interruptions by the MA during the course of the applicant’s evidence. This was not helpful to either the Tribunal or the applicant.  

23. Nevertheless, towards the end of the hearing the Tribunal asked the MA if she wished to make any submissions. As it did this the Tribunal  informed the MA that it had already read her sparse submissions which appeared to be no more than the earlier brief documents she had submitted to the department but had been simply re-submitted and documents re-dated. The MA raged with indignation and replied that in her some 11 years as a MA she had hardly ever been asked to provide certification of anything. She claimed that that her client’s supporting documents were legitimate but she could not produce any information which could prove this assertion. Her submissions were repetitive and obstructive. In the end her submissions contained no substance and the Tribunal has given them no weight.

24. The cumulative affect of the above omissions and lack of supporting information and evidence to promote the assertion that the relevant bank documents were authentic, is that they were not. There has been nothing persuasive put forward by the applicant or the submissions by the MA to indicate that the bank documents submitted in support of the visa application were anything other than bogus documents.

25. Therefore, based on the above, the applicant does not meet PIC 4020(1).

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

26. 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.

27. 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.

28. No submissions or information was submitted, in the circumstances of this case, on this issue.

29. Therefore, the requirements of PIC 4020 (1) should not be waived.

    Concluding paragraph

    DECISION

30. The Tribunal affirms the decision under review.

    Geraldine Hoeben
    Member