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

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).
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.
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.
The applicants were represented in relation to the review by their registered migration agent.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
BACKGROUND
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.
The second…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: GURUNG (Migration) [2021] AATA 1728
Case: [2021] AATA 1728
Decision Date: 25 May 2021

CaseChat Overview and Summary

The Administrative Appeals Tribunal reviewed a decision to refuse a Student (Temporary) (Class TU) visa (Subclass 500) to the applicant, a national of Nepal. The applicant had declared "No" to having any previous visa refusals when applying for the Subclass 500 visa. However, Departmental records indicated a previous refusal of a Subclass 457 Temporary Skilled Work visa for both the applicant and her husband on 5 June 2015. The applicant claimed ignorance of this refusal, attributing it to a third party, Eddie Kang, who had assisted with the application and used an email address to which they allegedly had no access.

The primary legal issue before the Tribunal was whether the applicant met Public Interest Criterion (PIC) 4020, which requires that an applicant has not provided false or misleading information in relation to a visa application or a previously held visa, and has not had a visa refused due to a failure to satisfy PIC 4020(1) within a specified period. The Tribunal was required to determine if the applicant had provided false or misleading information by failing to declare the previous visa refusal, and whether there were any compassionate or compelling circumstances that would justify a waiver of this requirement.

The Tribunal considered the definition of "information that is false or misleading in a material particular" and "bogus document" under the Migration Regulations 1994. It noted that the requirement to not provide false or misleading information applies regardless of whether the applicant provided it knowingly or unwittingly, and whether the Department became aware of it through the applicant's own disclosure. The Tribunal found that the applicant's claim of unawareness of the 457 visa refusal, despite the Department's notification being sent to an email address associated with her application and the applicant's husband having engaged the third party for assistance, did not negate the fact that false or misleading information had been provided in the current application.

Ultimately, the Tribunal affirmed the decision not to grant the visa. It found no evidence that the applicants met the criteria for the visa sought, and specifically that there were no compassionate or compelling circumstances that would justify waiving the requirements of PIC 4020.

Orders

Orders of the court

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Background

Background to the litigation

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

Evidence

Evidence Before The Court

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 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). 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? 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.

Decision

Reasons for decision

There is no evidence before the Tribunal that the applicants meet the criteria for any other subclass within the class of visa sought.DECISION The Tribunal affirms the decision not to grant the applicants Student (Temporary) (Class TU) visas.David BarkerMemberATTACHMENTMigration Regulations 1994Schedule 44020(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 1958s 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.…

Ratio Decidendi

Legal Principle Established

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