GURUNG (Migration)

[2021] AATA 1728

GURUNG (Migration) [2021] AATA 1728 (25 May 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Sharmila Gurung
Mr Umesh Ghale

CASE NUMBER:  1921786

HOME AFFAIRS REFERENCE(S):          BCC2019/1043900

MEMBER:David Barker

DATE:25 May 2021

PLACE OF DECISION:  Sydney

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

Statement made on 25 May 2021 at 1:21pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – false and misleading information in visa application – previous refusal of working visa not declared – claim to have been unaware that application had been made and refused – application assisted by third party and department’s notification sent to him – not a registered agent, and no contract with him, but authority expressed or implied – repeated contact seeking information about progress of application – later application for same subclass visa, prepared by themselves, successful – other fraudulent behaviour by third party – no compassionate or compelling circumstances justifying grant of visa – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5(1), 65
Migration Regulations 1994 (Cth), Schedule 2, cl 500.217, Schedule 4, criterion 4020(5)(b)

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
Sran v MIBP [2014] FCCA 37
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 1 August 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 2 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 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) because they determined the applicant had provided false and misleading information in association with the visa application.

3. The applicants appeared before the Tribunal by teleconference on 13 April 2021 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Nepali and English languages.

4. The applicants were represented in relation to the review by their registered migration agent.

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

   BACKGROUND

6. The applicant is a national of Nepal and is 34 years of age.   She came to Australia on a Student visa in July 2009.  She subsequently applied for and was granted further Student visas in November 2012 and May 2014.  She was granted a Subclass 457 Temporary Skilled Work visa in November 2015, before being granted further Student visas in June 2016 and April 2018. The applicant was granted a number of these aforementioned visas as a dependent of the second named visa applicant.

7. The second named visa is also a national of Nepal and is 36 years of age.   He also came to Australia on a Student visa in July 2009.

8. The decision record of the delegate, a copy of which was provided with the review application, indicates that the applicant, on 2 March 2019, applied for a Student (Subclass 500) visa.  The delegate indicated that as part of their processing of the application the Department sent the applicant a natural justice letter inviting her to comment on unfavourable information which did not support her application, namely that in her Subclass 500 student visa application, she declared ‘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?’

9. The delegate noted that the natural justice letter sent to the applicant informed her that it appeared she may fail to satisfy the criteria in public interest criterion (PIC) 4020(1) as Departmental records show that on 5 June 2015, she and her husband, the second named visa applicant, were refused a Temporary Skilled Work Subclass 457 visa (the 457 visa). The Department acknowledged that the second named visa applicant had responded to a natural justice letter sent to him in relation to the 457 visa, but pointed out that as she was a dependent on this application and also refused a 457 visa, comment on this information was also required from her on this issue and as to whether she and her husband would meet the exception for the waiver of that requirement.

10. In response to the natural justice letter, the applicant provided the Department with statements from her and the second named visa applicant.  In summary the applicants claimed that they were unaware that an application for a Subclass 457 visa application was refused in June 2015 and that they did not receive notification of the refusal decision, as it was sent to an email address set up by a third person, Eddie Kang.   It was submitted that the second named visa applicant engaged Eddie Kang to assist with the visa application.  They claim to have not had access to the email address Eddie Kang provided as the applicant’s email address for the purpose of receiving correspondence in relation to the Subclass 457 visa application.  They contend that they have subsequently discovered that along with many other visa applicants, they were disadvantaged by seeking assistance from Eddie Kang, who is known for his involvement with fraudulent visa applications.

11. Based on their consideration of the issues, the delegate found that the applicant had provided information that was false or misleading in a material particular.  Accordingly, the delegate concluded that the applicant did not meet the criteria in PIC 4020(1).

12. The delegate noted no information had been submitted by the applicant indicating she or the second named visa applicant was seeking a waiver of PIC 4020(1).  Accordingly, the delegate was not satisfied that there were compelling circumstances affecting the interests of Australia, or compassionate or compelling circumstances affecting the interests of an Australian citizen, Australian permanent resident, or an eligible New Zealand citizen that justify the granting of the visa.

13. The delegate found that the applicants did not meet the criteria in PIC 4020 and therefore did not satisfy cl 500.217 for the grant of the visas.

14. Prior to the hearing, the applicant provided the Tribunal with further documentary evidence including further written statements, information regarding her academic progress and of a job offer in her home country. Where relevant, information from this documentary evidence will be referred to below.

    THE HEARING

    The applicant’s evidence

15. At hearing the applicant gave oral evidence consistent to that provided in written statements provided to the Department and Tribunal. She claimed that she and her husband were unaware Eddie Kang had opened an email account to which the Department was told to address their correspondence about the visa applications. She claimed that this was why she gave the ‘No’ answer in the current application, as they did not receive notification of the refusal of her husband’s Subclass 457 visa application. She acknowledged that she and her husband were aware Eddie Kang was going to submit a visa application on their behalf but reiterated that they did not know what the outcome of this application was. In response to a question as to why they did not follow up to ascertain the outcome, the applicant claimed that they had repeatedly enquired, but were told not to worry and then they found out Eddie Kang was a fraud and that he may have been taken to gaol.

16. As to what sort of visa the applicant thought provided her with an onshore lawful visa status after the Subclass 457 visa applications were refused on 5 June 2015, the applicant gave evidence that she was at that time covered by her husband’s Student visa, as at that time  she was his dependent.

17. The Tribunal put to the applicant that as she had been a temporary resident in Australia since 2009 and during that time held multiple visas, it was difficult to understand why she would not have been aware of the need to keep track of her visa applications and of her responsibility to ensure visa applications were completed accurately. In response, the applicant said she agreed with the aforementioned contention and explained that her husband had lodged a further Subclass 457 visa application in 2015, without assistance from an agent.  She said this visa application was successful and that she and her husband were at no stage without a valid visa.  She said she did not think further about Eddie Kang and the applications they had asked him to lodge.  She said that she was confused when the Department’s natural justice letter arrived.

18. The second named applicant provided oral evidence consistent with that provided by his wife in relation to their lack of awareness about the visa application, lodged by Eddie Kang, which was refused in June 2015 until the Department sent him a natural justice letter.  He said he was studying a master’s degree in 2015, prior to his successful application for a Subclass 457 visa.  

19. As to their current circumstances, the applicant gave evidence that she is studying a Diploma of Accounting and intends to follow this up with an Advanced Diploma of Accounting.  She said her husband is now a dependent on her application and works part time in a café.

20. The Tribunal asked the applicant if there were any compelling circumstances that affect Australia, or compassionate or compelling circumstances that affect the interest of an Australian citizen, permanent resident or New Zealand citizen that would justify the granting of the student visa to him, in the event he did not meet the PIC 4020 requirements.  In response to this question, the applicant said that it is important people are aware of the fraudulent behaviour of Eddie Kang and of the overseas students who have been adversely impacted by his fraudulent behaviour.

    The representative’s oral submissions

21. The applicant’s representative submitted that there is no evidence to establish the second named applicant authorised or entered into a contract with Eddie Kang for him to apply for a visa on behalf of the applicants.  He submitted that whilst it is conceded the second named applicant paid Eddie Kang money to arrange for visas, he asked Eddie Kang to return the money.  The representative noted that he had provided documentary evidence regarding Eddie Kang from open media sources and requested further time to take further instructions and prepare submissions in relation to the visa assistance requested from Eddie Kang by the applicants.

22. The Tribunal consented to this request, but no further submissions or documentary evidence was received from the Tribunal within the agreed timeframe, or up until the time of this decision.

    CONSIDERATION OF CLAIMS AND EVIDENCE

23. The issue in this review is whether the visa applicant meets PIC 4020 as required by cl 500.217 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).

24. 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?

25. 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.

26. 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.

27. 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.

28. The Tribunal has considered the oral evidence provided at hearing by the applicant and as well, the submissions from her representative, along with documents in the Department and Tribunal files.

29. On the basis of the evidence before it, the Tribunal finds the applicants applied for a Subclass 500 student visa, on 2 March 2019, which contained the response ‘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?’ The Tribunal finds this response was incorrect as Departmental records show that on 5 June 2015, she and her husband, the second named visa applicant, were refused a Temporary Skilled Work Subclass 457 visa (the 457 visa).

30. The Tribunal proceeded to consider whether the incorrect response on the visa application form is information that is false, in the sense of purposely untrue. The applicant submits that it is not, as at the time the answer was given she and her husband were not aware that a visa application had been lodged, as it was lodged by a third person, Eddie Kang.  The applicant concedes that Eddie Kang was paid money by her husband to prepare a visa application on their behalf.  It is submitted that there was however no contract entered into by the applicants with Eddie Kang, authorising him to act on their behalf and that he acted without their authority in lodging a 457 visa application for the applicant’s husband. 

31. The Tribunal is not persuaded by this submission. If there was no expectation a visa application would be lodged, why then would the applicant’s husband have contacted Eddie Kang on a  number of occasions, subsequent to paying him money, seeking information as to the progress and outcome of a visa application?  The Tribunal does not consider it plausible that the applicant’s husband would have sought information about the progress of an application, if he was unaware that application had been lodged by someone acting on his behalf. The Tribunal provided time following the hearing for further submissions and evidence in support of the contention that the applicants had not authorised Eddie Kang to act on their behalf in relation to a 457 visa application in 2015.  No further submissions or evidence was received in support of this claim.

32. Where an applicant lodges a visa application through an agent, the applicant, being a principal, will be bound under the common law principles of agency by the acts of an agent acting within the scope of his or her authority. Actual authority may be expressed or implied  and a principal can be liable for the actions of an agent, even if the agent’s act is unlawful or amounts to fraud. In Sran v MIBP [2014] FCCA the Court found that an agency agreement for the purpose of lodging a visa application was established, in circumstances where the applicant instructed the agent to make an application on his behalf, a fee was discussed, and the applicant was aware the application was to be made. The Court further found that the applicant’s indifference to the detail of the application was such as to make the scope of the authority broad enough to include the provision of false or misleading information to the Department in relation to the applicant’s skills assessment. As such, the validity of the visa application was found not to be vitiated by the agent’s conduct.  In the current matter the Tribunal is satisfied the applicant’s husband engaged the assistance of a third party, Eddie Kang, in relation to an application for a 457 visa, which was refused on 5 June 2015.

33. The definition in cl 4020(5)(b) focuses upon the materiality of the information. It applies to information which goes to something which will or might determine the visa application and is not concerned with information that is irrelevant to the visa requirements. The Tribunal finds that the information is material to consideration of whether the applicant satisfies required genuine temporary entrant criteria (cl 500.212) for the grant of a Student visa. This is because consideration of an applicant’s migration history is a required consideration[1] and is therefore information of a material particular. 

    [1] Ministerial Direction 69.

34. In order to determine the applicant gave, or caused to be given, false and misleading information in a material particular, it is necessary for the Tribunal to be satisfied that the incorrect information provided in association with the Student visa application was purposefully untrue and had the deceptive quality such that there was knowledge or intention on somebody’s part to provide false and misleading information. In the circumstances of the current matter, the Tribunal is satisfied there was a motive to answer the identified question incorrectly. There was a history of a previous visa application and the Tribunal is not convinced the applicants were unaware this application had not met with success.  Whilst they may not have received the emails sent to the email account established on their behalf by Eddie Kang, there is evidence before the Tribunal that the applicant’s husband repeatedly contacted Eddie Kang seeking information about the progress of his application and eventually lodged a further application for a 457 visa. The Tribunal does not consider it plausible that the applicant would have lodged a further application if he had not taken the view the previous application was unsuccessful. Given the period of time the applicants had by 2015, spent in Australia on temporary visas, the Tribunal does not consider it credible that they would have been unaware of their responsibility to clarify the status of visa application they had engaged Eddie Kang to seek on their behalf.  The Tribunal is not persuaded that the applicants would have not perceived they had a reason to try and withhold information about this previous unsuccessful visa application when applying for the Student visas in March 2019.  The Tribunal accordingly finds the incorrect information provided in association with the March 2019 application for a Student visa had a purposely untrue and deceptive quality, such that it is appropriately regarded as false and misleading in a material particular.

1. The Tribunal finds that there is therefore evidence that the applicant has given, or caused to be given, to the Minister or an officer, ‘information that is false or misleading in a material particular’ in relation to the application for a Subclass 500 Student visa lodged on 3 March 2019. 

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

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

3. The requirements of PIC 4020(1) 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.

4. 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.

5. For the following reasons, the Tribunal is not satisfied that the requirements should be waived.

6. The applicant gave evidence at hearing that it is important that the fraudulent behaviour of Eddie Kang be publicised, as it has had such an adverse impact on a number of visa applicants.  The Tribunal accepts this is the case, but is not satisfied this factor in and of itself provides a compelling circumstance which would justify the grant of the visa due to the interests of Australia being enlivened.

7. The applicant made no claim as to there being compassionate or compelling circumstances that would justify the granting of the visa.  In the absence of evidence to the contrary, the Tribunal accepts this claim.

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

9. On the basis of the above, the applicant does not satisfy PIC 4020 for the purposes of cl 500.217.

   The second named visa applicant

10. As the Tribunal does not accept that the first named visa applicant satisfies the primary criteria, the second named visa applicant is unable to meet the criteria because they are not a member of the family unit of, and made a combined application with, a person who satisfies the primary criteria in cl 500.217.

11. There is no evidence before the Tribunal that the applicants meet the criteria for any other subclass within the class of visa sought.

    DECISION

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

    David Barker
    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.

    …