GILL (Migration)

GILL (Migration) [2017] AATA 164 (30 January 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Harpreet Singh GILL
CASE NUMBER:  1514949
DIBP REFERENCE(S): BCC2014/1751876 BCC2014/2568790
MEMBER:Gina Towney
DATE:30 January 2017
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.
Statement made on 30 January 2017 at 4:09pm

CATCHWORDS
Student (Temporary) (Class TU) visa – Subclass 572 Vocational Education and Training Sector – Public Interest Criteria (PIC) 4020 – False or misleading information – Evidence of financial support from Applicant’s brother – Denial of sponsorship – Element of fraud or deception – Compelling circumstances
LEGISLATION
Migration Act 1958, ss 5, 65
Migration Regulation 1994, Schedule 2 cl 573.224, 572.224, Schedule 4
CASES
Arora v MIBP [2016] FCAFC 35
Batra v MIAC [2013] FCA 274
Trivedi v MIBP [2014] FCAFC 42
Plaintiff M64/2015 v MIBP [2015] HCA 50

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 Immigration on 19 October 2015 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s.65 of the Migration Act 1958 (the Act).
The applicant applied for the visa on 4 October 2014.
The courses listed in the application were a Diploma of Business (30 June 2014 to 25 January 2015) a Diploma of Management (16 March 2015 to 10 October 2015), and Advanced Diploma of Business (16 November 2015 to 19 June 2016), and an Advanced Diploma of Management (18 July 2016 to 5 March 2017).
The delegate refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl.573.224 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because he provided misleading information to the Minister in a material particular.
More specifically, the Department found that the applicant had submitted that he had financial support from his brother, in the form of an affidavit of support, and letter from Punjab National Bank dated 25 June 2015 sanctioning a loan secured against a fixed deposit and a ‘sale of land deed’ in favour of his brother, however, when inquiries were made by the overseas post it was found that although the overdraft facility had been available on 25 June 2015, his brother indicated that he had no knowledge of sponsoring the applicant or anyone in their studies in Australia.
The delegate also recorded that when this information was raised with the applicant, he responded by saying that his brother had gone into a dispute with him regarding ancestral property and had withdrawn his support, and his brother had intentionally advised the that he was not aware of the applicant’s doings in Australia and had not sponsored him.
The applicant’s submission continued by saying his brother wanted the applicant’s Student Visa to be refused so that the applicant would return to India to sort out the dispute. The same submission recorded that the applicant was a victim of his brother’s greed, as his brother had falsified information in order to pause the applicant’s career. The applicant then submitted documents in the name of his father in support of his application.
The delegate found the applicant’s statement was not credible.
The applicant appealed to the Tribunal, and provided a copy of the departmental decision. Prior to the hearing the applicant’s representative made submissions, the crux which was the applicant had applied for a 572 Visa (Vocational Education and Training sector), and had been incorrectly assessed under a 573 Visa (Higher Education sector) by the Department.
The delegate also submitted that the applicant’s education provider was listed in the Eligible Education Providers and Educational Business Partners, and therefore was not subject to the same clauses regarding financial capacity.
HEARING
The applicant appeared before the Tribunal on 12 January 2017 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages. The applicant was represented in relation to the review by his registered migration agent.
In hearing the Tribunal noted that the Eligible Education Providers and Educational Business Partners regulations came into effect for visas made on or after 21 November 2015, and the applicant had applied for the relevant student Visa on 4 October 2014. Therefore the Eligible Education Providers and Educational Business Partners regulations did not impact on the applicant’s application.
At the commencement of the hearing the applicant said he was not currently studying or subject to an offer of enrolment, (as is required for the grant of a student Visa), but said he had currently applied for a letter from the Australian College of Business and Management in relation to an Advanced Diploma in Management.
The migration agent submitted that the applicant had never applied for a Higher Education Level course (573), but when his application for a student Visa was previously refused by the department he was told to obtain enrolment in a 573 course and had done so.
During the hearing both the applicant and the migration agent reiterated the evidence before the Tribunal was that the applicant’s brother had knowingly provided false and misleading information to the Department, in that he had denied that he had sponsored the applicant’s education in Australia. This included the migration agent submitting that the brother intentionally gave false information, so that the applicant’s student Visa would be refused.
Both the applicant and the agent also made submissions that the applicant and his brother and have now reconciled, and the applicant is currently receiving financial support from his brother and father, and that the applicant’s brother is willing to provide an affidavit confirming that he had provided untrue information.
During the hearing the Tribunal explained that financial capacity was no longer the issue, the issue was whether or not PIC 4020 applied. The Tribunal also explained that for the criteria to be applied an element of fraud or deception by somebody is necessary, and that in the current circumstances behaviour of the applicant’s brother appears to fall into this category.
That is, if the tribunal accepts the applicant’s evidence on face value, in the applicant’s brother’s telephone call with the Australian authorities the brother knowingly and willingly provided false and misleading information. That is, his brother provided false or misleading information in saying he did not know about his sponsoring the applicant.
During the hearing the Tribunal invited both the applicant and the agent to make submissions under the relevant waiver provisions. The applicant submitted that he would like another chance to complete his studies, and the migration agent asked for additional time. The Tribunal allowed two weeks for further submissions, noting that the application of PIC 4020 was the issue both before the Department and the Tribunal, and that the applicant and agent had sufficient notice.
POST-HEARING SUBMISSIONS
In post-hearing submissions the agent stated the departmental investigation lacked methodical approach, and that it was unclear whether evidence was produced to the sponsor about the claimed deposit in the bank. It went on to submit there was no evidence to show that the financial institution was contacted to establish if the brother or their agent had secured the funds. In addition the agent reiterated previous submissions in relation to the family dispute, and submitted there was a strong possibility of a family argument and that support may have later been withdrawn.
As noted during hearing, the issue currently before the tribunal is whether or not PIC 4020 applies, not whether or not the applicant’s finances are currently in order. The Tribunal is not satisfied that the department failed to investigate properly, or that it failed to provide evidence in support of its’ findings.
In addition, the representative stated there were considerable differences between the application of 572 and 573 criteria, and the applicant should be assessed under the 572 criteria, (although during the hearing it was submitted that the applicant had provided an enrolment for a 573 course). The Tribunal has assessed the matter under the 572 criteria, however for the sake of argument it notes that PIC 4020 applies to both 572 and 573 applications made on 4 October 2014, (and it has attached the relevant regulations for completion).
The representative also referred to legislative provisions in 2014 and 2015, however the Tribunal notes the date of application has not changed, as in date of application is 4 October 2014, and this is the date the applicant will be assessed against.
All of the submissions made have been considered by the Tribunal.
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.573.224 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: cl.4020(1); and
·the applicant and each member of the family unit has not been refused a visa because of a failure to satisfy cl.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: cl.4020(2) and (2AA); and
·the applicant satisfies the Minister as to his or her identity: cl.4020(2A); and
·neither the applicant nor any family unit member has been refused a visa because of a failure to satisfy cl.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: cl.4020(2B) and (2BA).
The requirements in cl.4020(1) and (2) can be waived if there are certain compelling or compassionate reasons justifying the granting of the visa: cl.4020(4). However, this waiver does not apply to the identity requirements in cl.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 cl.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 cl.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 cl.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: cl.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.
In the current matter the Tribunal finds there is evidence that the applicant has caused to be given to the Minister, an officer, the Tribunal, a relevant assessing authority or a Medical Officer of the Commonwealth, information that is false or misleading in a material particular’ as defined in cl.4020(5). That is, information that was false or misleading at the time it was given, and relevant to 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.
The Tribunal finds this in the form of the information provided by the applicant’s brother that he did not sponsor the applicant in his Student Visa application, during a telephone call made by the overseas post.
In addition, the Tribunal finds the applicant caused this information to be given, by listing his brother as his sponsor.
The Tribunal finds information was deliberately false or misleading at the time it was given, and it was done through deception or fraud. The Tribunal has based these findings on evidence provided by the applicant both before and during the hearing, being that his brother knowingly provided incorrect information, and that he did so due to a land dispute in India, and to force the applicant to return to India. It is also based on submissions by the applicant’s migration agent that the applicant’s brother knew the information was false and misleading at the time it was given, and again that he did so out of jealousy against the applicant. The Tribunal notes that the applicant may not have known that the information was false or misleading, but this is not a requirement for the application to be captured by PIC 4020.
Therefore, the applicant does not meet cl.4020(1).
Should the requirements of cl.4020(1) or (2) be waived?
The requirements of cl.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 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. Although the Tribunal directly raised this issue during hearing, and it is clear from the relevant regulations, there was an omission of submissions specifically addressing the waiver provisions. However, whilst noting there is no definition of compelling and/or compassionate circumstances, the Tribunal has considered the applicant’s circumstances, including his overall submissions, his family background, the length of time he has spent in Australia, and his claimed wished to continue to study in Australia.
However, after taking these into account, the Tribunal is unable to make a finding that there are compelling circumstances that affect the interests of Australia, or compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen, that justify the granting of the visa.
Therefore the requirements of cl.4020 should not be waived.
On the basis of the above, the applicant does not satisfy PIC 4020 for the purposes of cl.573.224.
DECISION
The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.
Gina Towney
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.
…
572.224
[572.224] The applicant:
(a) satisfies public interest criteria 4001, 4002, 4003, 4004, 4005, 4012A, 4013, 4014 and 4020; and
(b) if the applicant seeks to stay in Australia for 12 months or more, satisfies publicinterest criterion 4010; and
(ba) if the applicant had turned 18 at the time of application, satisfies public interest criterion 4019; and
(c) if the applicant is applying outside Australia and the applicant has previously been in Australia, satisfies special return criteria 5001, 5002 and 5010.
….
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 Migration Review Tribunal, 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 the application;
the applicant and each member of a family unit of the applicant has not been refused a visa because of a failure to satisfy the criteria in subclause (1).
(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 the application;
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).

(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.
Note      Regulation 1.03 defines bogus document as having the same meaning as in section 97 of the Act.
573.224
[573.224] The applicant:
(a) satisfies public interest criteria 4001, 4002, 4003, 4004, 4005, 4012A, 4013, 4014 and 4020; and
(b) if the applicant seeks to stay in Australia for 12 months or more, satisfies public interest criterion 4010; and
(ba) if the applicant had turned 18 at the time of application, satisfies public interest criterion 4019; and
(c) if the applicant is applying outside Australia and the applicant has previously been in Australia, satisfies special return criteria 5001, 5002 and 5010.
….
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 Migration Review Tribunal, 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 the application;
the applicant and each member of a family unit of the applicant has not been refused a visa because of a failure to satisfy the criteria in subclause (1).
(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 the application;
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).

(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.
Note      Regulation 1.03 defines bogus document as having the same meaning as in section 97 of the Act.

[2017] AATA 164

30 January 2017

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice

Remedies