Gaddam (Migration)
[2022] AATA 3870
•7 September 2022
Gaddam (Migration) [2022] AATA 3870 (7 September 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT: Mr Mahendhar Reddy Gaddam
REPRESENTATIVE: Mr Surender Reddy Thimapuram (MARN: 1795597)
CASE NUMBER: 2115576
HOME AFFAIRS REFERENCE(S): BCC2020/1392949
MEMBER:Margaret Forrest
DATE AND TIME OF
ORAL DECISION AND REASONS: 7 September 2022 at 10:33 am (QLD time)
DATE OF WRITTEN RECORD: 17 October 2022
PLACE OF DECISION: Brisbane
DECISION:The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.
CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – false or misleading information – bogus documents – term deposit certificate and overseas education loan records – compassionate or compelling circumstances – impact on the applicant’s employer – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 359
Migration Regulations 1994, Schedule 2 cl 500.217; Schedule 4, Public Interest Criterion 4020; r 1.03CASES
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 42APPLICATION FOR REVIEW
This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 18 October 2021 to refuse to grant the visa applicant a Student (Temporary) (Class TU) Subclass 500 visa under the Migration Act 1958 (Cth) (the Act).
At the hearing on 7 September 2022 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
The applicant applied for the visa on 19 April 2020. The delegate refused to grant the visa on the basis that the applicant did not satisfy the requirements of clause 500.217(1) of schedule 2 to the Migration Regulations because the delegate was not satisfied that the applicant met Public Interest Criteria 4020(1).
The applicant appeared before the Tribunal by telephone on 7 September 2022 to give evidence and to present arguments. The applicant was represented in relation to the review and the applicant’s representative attended the telephone hearing and made oral submissions.
The Tribunal exercised its discretion to hold the hearing by telephone. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick and the delay to the matter if the hearing was not to be conducted by telephone. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.
In the week prior to the Tribunal hearing the Tribunal sent the applicant a copy of his records from the Provider Registration and International Student Management system known as PRISMS. The Tribunal indicated that the Member may refer to the applicant’s PRISMS record during the hearing. Because the information in the applicant’s PRISMS record is not relevant to the matters presently before the Tribunal, the Tribunal did not put the applicant’s PRISMS record to him during the hearing.
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 Tribunal told the applicant that if the Tribunal affirmed the delegate’s decision in relation to PIC 4020(1) the applicant would be prevented from applying for certain types of visas for three years from the date of the delegate’s decision, which was 18 October 2021.
The Tribunal reminded the applicant that in the delegate’s decision the delegate had indicated that:
a.the applicant submitted his current student visa application on 19 April 2020 and in support of this application the applicant provided financial documents to evidence his ability to fund his studies and stay in Australia;
b.a term deposit certificate and letter from the branch manager confirming an Overseas Education Loan from Syndicate Bank in the name of his father - Mr GADDAM MAHENDAR REDDY was included as part of this evidence;
c.the student visa application was assessed on 23 July 2020 during which Departmental checks revealed that the term deposit certificate and overseas education loan from the Syndicate Bank was non-genuine;
d.the Department provided the applicant with an opportunity to comment on the suspected bogus documentation on 24 July 2020;
e.the applicant responded on 19 August 2020 with:
i.a statement dated 18 August 2020;
ii.as well as an affidavit of support from his father for the funds he intended to provide his son while in Australia; and
iii.a new letter from the Kotak Mahindra Bank confirming a fixed deposit amount.
Ultimately, the delegate of the Minister was not persuaded by the applicant’s response and found that the applicant had purposely given a bogus document and, therefore, the applicant did not meet Public Interest Criteria 4020(1).
The Tribunal asked the applicant if he accepted the documents were bogus. The applicant said “No”, he did not accept this and whatever he had done, it was genuinely done.
The Tribunal explained that in his response to the Department, the applicant had suggested that the broker his family had approached for the loan may have provided fake documents. The Tribunal asked the applicant if he still considered this was possible. The applicant said “No” and this was a mistake from his agent.
The Tribunal asked the applicant why he submitted a letter to the Department that included information he did not agree with. The applicant said his agent sent the letter and he did not send him the reply. The applicant said he told something to his agent and his agent miscommunicated it.
The Tribunal asked the applicant if his present representative was his agent back in April 2020 when the student visa application was submitted and the applicant said “No”.
The Tribunal asked the applicant if he was aware of his obligation to ensure that all documents submitted to the Department were correct and he said “Yes”.
The Tribunal asked the applicant how come he let his agent submit a document to the Department without the applicant checking it. The applicant said his agent told him he was submitting a formal reply.
The Tribunal asked the applicant why he did not insist on checking the reply. The applicant said he was really in a confused state.
The Tribunal then put to the applicant that the Tribunal had information in its possession covered by a certificate under section 375A of the Act. This certificate indicates that disclosure other than to the Administrative Appeals Tribunal of ‘Stream 2 referral to New Delhi office’, would be contrary to the public interest because it would disclose or enable a person to ascertain the existence or identity of a confidential source of information.
The Tribunal sent the applicant and his representative a copy of the section 375A certificate on the morning of the hearing and the applicant confirmed he had received a copy of the certificate and it was in front of him.
The Tribunal told the applicant that it considered the certificate was a valid certificate. The Tribunal asked the applicant if he had any submissions to make about this and the applicant said he accepted it was a valid certificate. The Tribunal asked the applicant’s representative if he had any submissions to make about the validity of the certificate and the applicant’s representative said he accepted it was a valid certificate.
Therefore, adopting the procedure in section 359AA of the Act, the Tribunal then gave the applicant the gist of the information covered by the section 375A certificate because it is information that the Tribunal considers would be the reason or a part of the reason for affirming the decision that is under review.
The Tribunal indicated to the applicant that the gist of the information is that checks with the relevant bank revealed that the term deposit certificate was not valid and was not issued by the relevant bank. The Tribunal indicated that the information was relevant to the review because it indicates that the applicant has submitted a bogus document to the Tribunal. The applicant confirmed that he understood why the information was relevant to the review.
The Tribunal indicated to the applicant that the consequences of this information being relied on may mean that the Tribunal forms the view that the applicant does not meet the criteria for the visa for which he has applied. The applicant indicated that he understood the consequences of this information being relied on.
The Tribunal indicated to the applicant that he may seek additional time to comment on or respond to the information and asked the applicant if he required additional time or if he wished to comment on or respond to the information now. The applicant said he was happy to respond now.
The applicant said on 6 April 2020 he made a fixed deposit into the Syndicate Bank. He said he needed to lodge his new student visa application and he could not go to India at the time and get his financial documents, so he called his father who approached a loan broker. He suggested the Syndicate Bank and the applicant said that at the time it was in the middle of the COVID-19 pandemic and in India you could not go to a bank because they were only open for three to four hours every day. The applicant said everything was locked down in India.
The applicant said he got the loan documents ready and deposited the money and got the fixed deposit letter on 6 April for 20 lakhs from the Syndicate Bank. The applicant said the Syndicate Bank was then merging with another bank and many people were loading their money and going away. He said the Syndicate Bank was merging and he was worried his money was going to go, so his dad panicked and put the money in another bank.
The Tribunal asked the applicant when his father moved the money. The applicant ultimately said before 24 July 2020, which is when he received the natural justice letter from the Department.
The Tribunal asked the applicant why he did not put this information in his response to the Department, which he provided in August 2020. The applicant said he did tell his agent and his parents panicked.
The Tribunal confirmed with the applicant that the check with the relevant bank occurred on 5 October 2020 and it occurred with the Kothaguda Whitefields Branch of the Canara Bank. The Tribunal also confirmed that it was the Canara Bank that the Syndicate Bank had merged with. The applicant said that the Syndicate Bank had changed to the Canara Bank and there could be a miscommunication. He said his father went to the same bank and moved the money.
The applicant’s representative said there was a miscommunication with the applicant’s agent and the applicant and for now he can see the applicant has got funds.
The Tribunal also notes that the applicant submitted an article to the Tribunal about the merger of the Syndicate Bank with the Canara Bank and the Tribunal does accept that the Syndicate Bank has merged with the Canara Bank.
However, based on the information covered by the section 375A certificate and the applicant’s explanation provided to the Tribunal today and in light of the fact that the applicant’s explanation given today was not included in the applicant’s response to the Department in August 2020, when all of this is taken together the Tribunal is satisfied and finds that the term deposit certificate submitted to the Department in April 2020 is a bogus document.
The Tribunal is satisfied that the applicant gave the Department the bank statement in relation to the application for the visa.
Therefore, the applicant does not meet PIC 4020(1).
Should the requirements of PIC 4020(1) or (2) 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 reg 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 is not satisfied that the requirements should be waived.
The Tribunal asked the applicant if he had any submissions to make about compelling circumstances that affect the interests of Australia and the applicant said “No”. The applicant’s representative said that the applicant was working for a restaurant as a chef and there is a shortage of skills in this profession at this stage and the applicant is helping the restaurant to run properly.
The Tribunal asked the applicant what would happen at the restaurant if he was not working there. The applicant responded that he wanted to finish his studies and go back to India to start a restaurant of his own and he had gained much experience working in Australia.
The Tribunal later pushed the applicant to respond to this question and the applicant indicated that it could be possible that there would be a shortage of chefs. He said he was playing a prominent role in the restaurant assisting the head chef. He said he helped in all the closings and openings and worked the breakfast, lunch and dinner shifts. He said the restaurant could possibly close one to two days during the week. He said the restaurant was an Italian restaurant.
Based on all of this evidence, and especially given the applicant’s ultimate plans to return to India to start his own restaurant after he completes his studies, the Tribunal is not satisfied that there are compelling circumstances that affect Australia in this case.
The Tribunal asked the applicant if he had any submissions to make about compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen. The applicant said “No”.
The Tribunal asked the applicant if he had any family members who were Australian citizens or residents and he said “No”. He also said he did not have a partner or a child who is an Australian citizen or resident.
The Tribunal asked the applicant’s representative if he had any submissions to make and he simply said that the restaurant that the applicant is working for have staff who are Australian citizens or residents.
Based on all of this evidence the Tribunal is not satisfied that there are compassionate or compelling circumstances that affect an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen that force or drive the Tribunal irresistibly to be satisfied that the visa should be granted such that PIC 4020(1) should be waived.
The Tribunal has taken into account all of the circumstances raised on the evidence and in submissions both individually and cumulatively.
Therefore, the requirements of PIC 4020(1) should not be waived.
Concluding paragraphs
On the basis of the above, the applicant does not satisfy PIC 4020 for the purposes of clause 500.217(1).
DECISION
The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.
Margaret Forrest
MemberATTACHMENT
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.
…
Key Legal Topics
Areas of Law
-
Immigration
-
Administrative Law
Legal Concepts
-
Judicial Review
-
Procedural Fairness
-
Statutory Construction
-
Natural Justice
0
5
0