Giri (Migration)

[2021] AATA 958

Giri (Migration) [2021] AATA 958 (26 February 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Kabita Giri
Mr Gokarna Giri

CASE NUMBER:  1919268

HOME AFFAIRS REFERENCE(S):          BCC2019/1218773

MEMBER:Peter Haag

DATE:26 February 2021

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicants Student (Temporary) (Class TU) visas.

Statement made on 26 February 2021 at 9:05am

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – false or misleading information – failure to disclose previous visa refusals – intention of the applicant – waiver of requirement – compassionate and compelling circumstances – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 500.217; Schedule 4, PIC 4020

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

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 Home Affairs on 28 June 2019 to refuse to grant the applicants Student (Temporary) (Class TU) visas under s.65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants applied for the visas on 11 March 2019. The delegate refused to grant the visas on the basis that the first named applicant (the applicant) did not satisfy the requirements of cl.500.217(1) of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) because the delegate was not satisfied the applicant met the requirements of Public Interest Criterion 4020.

3. The applicants appeared before the Tribunal on 19 February 2021 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Gokarna Giri, the applicant’s husband. The Tribunal hearing was conducted with the assistance of an interpreter in the Nepali and English languages.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. 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).

6. 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 a material particular?

7. 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.

8. 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.

9. 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.

10. The issue for determination is:

    ·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:

    §‘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.

11. In this review, the applicant provided to the Tribunal a copy of the record of the delegate’s decision. The Tribunal has read that decision.

12. There is no dispute in this review that on 11 March 2019 the applicant applied to the Department of Home Affairs for a Student visa.

13. In the application form, the applicant answered “NO” to this 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?

14. According to the record of the delegate’s decision, while assessing the visa application, an officer of the Department ascertained from Departmental records that the applicant applied for a Student (Subsequent entrant) (Subclass 572) visa on 2 March 2015. On 22 September 2015 the application was refused. This information called into doubt the accuracy of the applicant’s answer of “NO” to the question reproduced above in this decision.

15. The officer informed the applicant of the details of the prejudicial information that impugned the accuracy of her answer to the question about her visa history. The applicant was informed of the negative relevance of the impugned answer to her application and invited to comment on the information.

16. According to the delegate’s decision record, the applicant responded to the invitation to comment. In response, the applicant declared in a statutory declaration dated 31 May 2019 that she did not intend to provide false or misleading information to the Department. She also declared “I did not notice the visa refusal question.” The applicant relied on the same statutory declaration in this review.

17. The applicant also declared in her statutory declaration that in a previous Student visa application she made in 2017, that she disclosed she had been refused a Student visa in 2015. The 2017 visa application was successful.

18. In a statement dated 31 May 2019 that the applicant submitted to the Department, she claimed that because she declared the prior visa refusal in her 2017 Student (Subsequent entrant) visa application and that visa was granted, the Tribunal should accept her evidence that she failed to accurately declare her visa history in the current application because she failed to notice the visa refusal question. The applicant provided a copy of the 2017 visa application to the Tribunal.

19. The applicant’s husband, Mr Giri, a secondary applicant for the Student visa in issue, provided a signed statement to the Department dated 31 May 2019. In substance, Mr Giri confirmed and repeated the applicant’s explanations for inaccurately answering the question that is in issue. Mr Giri stated “she [the applicant] did not notice the Refusal question so did not mention anything about the refusal.”

20. In a statement dated 15 July 2019, and further statements dated 19 January 2021 and 9 February 2021, the applicant essentially adopted her earlier explanations for providing the impugned answer and asserted that she gave the answer unintentionally and said it was a “human error.”

21. In evidence to the Tribunal, the applicant claimed she gave the impugned answer unintentionally, that it was a mistake, and that she will not repeat the error. The applicant also relies on the explanations she provided in writing to the Department and the Tribunal along with her husband’s written explanations.

22. The applicant also relies on the evidence given by Mr Giri to the Tribunal. In substance, Mr Giri adopted and repeated his earlier written explanations for the applicant’s failure to accurately disclose her visa history. He asserted the incorrect answer was an innocent mistake and that the applicant would not intentionally provide a false answer to a question she had answered correctly in a prior visa application. Mr Giri also asserted the false answer was made unintentionally and resulted from the applicant’s failure to pay proper attention to the question before she answered it. The Tribunal finds Mr Giri’s evidence, when considered in the context of the applicant’s evidence, to be unpersuasive.

23. The applicant’s answer “NO” to the visa history question is a false answer and it is also a misleading answer. It is difficult to accept that the applicant was able to answer the question relating to her visa history without noticing the question. This aspect of the applicant’s evidence is inherently implausible.

24. The Tribunal has also considered what the applicant has said in the written statements she provided to the Department and the Tribunal and her written and oral submissions, and her various explanations for answering “NO” to the visa history question in the Student visa application form, and the Tribunal finds her explanations to be unpersuasive.

25. On balance, the Tribunal is satisfied the answer “NO” to the visa history question was purposefully false or misleading at the time it was given. The Tribunal is also satisfied the applicant gave or caused the false answer about her visa history to be included in the Student visa application form that was submitted to the Department on 11 March 2019.

26. The Tribunal is also satisfied that there is evidence before the Tribunal that the applicant has given, or caused to be given to the Minister, an officer, or the relevant assessing authority, information that is false or misleading in a material particular as defined in PIC 4020(5). The Tribunal is also satisfied the false or misleading information is relevant to the criteria the Minister may consider when making a decision on the application, whether or not the decision is made because of that information.

27. Therefore, the applicant does not meet PIC 4020(1).

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

28. 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.

29. 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.

30. The applicant provided compelling evidence to the Tribunal that she is a contentious fee‑paying student who is progressing well in her nursing course of study. The applicant also provided evidence of the amount of money expended on studying in Australia and that completing the course of study is important to her family and her home country, Nepal.

31. The Tribunal is not satisfied the applicant’s academic record; the financial cost of her studies; or the impact on her family’s feelings or future, or the potential benefit of her course of study to Nepal, considered individually or cumulatively, is evidence of compelling circumstances affecting the interests of Australia that justify the requirements of PIC 4020 being waived and the granting of the visa; or compassionate and compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen that would justify the requirements of PIC 4020 being waived and the granting of the visa.

32. Based on the totality of the evidence, the Tribunal is not satisfied the requirements of PIC 4020(1) should be waived.

33. Based on the above, the applicant does not satisfy PIC 4020 for the purposes of cl.500.217(1).

34. The applicant does not claim to meet the criteria for any other visa subclass. Consequently, her application has not been assessed against any other subclass.

35. As the applicant Kabita Giri was found not to satisfy the requirements of PIC 4020 and cl.500.217(1) in Schedule 2 to the Migrations Regulations, no further assessment in respect of the dependent applicant Gokarna Giri has been undertaken because no further assessment is required.

    DECISION

36. The Tribunal affirms the decision not to grant the applicants Student (Temporary) (Class TU) visas.

    Peter Haag
    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.

    …