HE (Migration) - [2024] ARTA 844

HE (Migration) [2024] ARTA 844 (20 November 2024)
DECISION AND
REASONS FOR DECISION
Applicant:Mr Jinling HE
Respondent:  Minister for Home Affairs
Tribunal Number:  2305955

Tribunal:Senior Member G. Cullen
Place:Sydney
Date: 20 November 2024
Decision:The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.

Statement made on 20 November 2024 at 10:14am
CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – bogus document – identity documents – proceedings can be adequately determined without hearing – claims against education agent – financial hardship – impact on employer – decision under review affirmed
LEGISLATION
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth)
Administrative Review Tribunal Act 2024 (Cth), s 106
Migration Act 1958 (Cth), ss 5(1), 65
Migration Regulations 1994, Schedule 2 cl 500.217; Schedule 4, Public Interest Criterion 4020; r 1.03
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
STATEMENT OF REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 12 April 2023 to refuse to grant the visa applicant a Student (Temporary) (Class TU) Subclass 500 visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The delegate refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl 500.217(1) of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) because he did not meet Public Interest Criterion 4020 (PIC 4020) as he had given or caused to be given a bogus document.
Specifically, the delegate noted that on 11 July 2018 the applicant was granted a Student visa valid to 10 March 2021. When applying for this visa in 2018 he provided a copy of his National ID card with number 350111199601055273. In August 2022, the Department contacted a representative of the Pingtan County Public Security Bureau who advised that the National ID card with number 350111199601055273 could not be found in the household registration system.
On 9 March 2023, the Department sent to the applicant an invitation to comment on the above-mentioned adverse information received raising with him that there is evidence suggesting he has provided, or caused to be provided, a bogus document which would result in a failure to satisfy PIC 4020(1). The delegate also referred to PIC 4020(4) and requested information as to whether 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, that justify the granting of the visa.
On 4 April 2023 the applicant responded that the number is not his ID number but he trusted his family…

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.

Continue reading HE (Migration)

Details

AGLC: HE (Migration) [2024] ARTA 844
Case: [2024] ARTA 844
Decision Date: 20 November 2024

CaseChat Overview and Summary

The case involves HE, a visa applicant, who sought a Student (Temporary) (Class TU) visa under subclass 500. The dispute centred on whether HE met the Public Interest Criterion 4020 (PIC 4020) necessary for the visa grant. This criterion requires that the applicant has not provided false or misleading information or bogus documents to the relevant authorities in relation to their visa application or any previous visa applications within a specified period. Additionally, the applicant must satisfy the Minister of their identity. The matter was heard by the Administrative Appeals Tribunal (AAT), which had the authority to review decisions made by the Department of Home Affairs.

The primary legal issue was whether HE had provided any bogus documents or false or misleading information to the Minister or relevant authorities, which would disqualify them from meeting PIC 4020. The Tribunal examined the definition of 'bogus document' and 'information that is false or misleading in a material particular', as outlined in the Migration Act and its regulations. It considered whether HE's actions, knowingly or unknowingly, constituted a breach of these provisions. Additionally, the Tribunal had to determine whether HE's identity had been satisfactorily established, given the non-disclosure of certain documents under section 376 of the Act.

In its decision, the AAT determined that the case could proceed without a hearing, as HE had explicitly requested a decision without appearing before the Tribunal. The AAT noted that HE had been provided with an opportunity to present further evidence and arguments but chose not to do so. The Tribunal found that the issues could be adequately determined based on the existing material. The AAT also upheld the validity of the section 376 certificate, which prevented the disclosure of certain sensitive information to HE. Ultimately, the Tribunal affirmed the decision not to grant HE a Student (Temporary) (Class TU) visa, finding that HE had failed to meet the requirements of PIC 4020.

The AAT's decision was based on the existing evidence and HE's failure to provide additional information or evidence to support their application. The Tribunal concluded that the criteria for granting the visa had not been met, and therefore, the decision under review was affirmed. No further orders were made, as the primary issue of visa eligibility had been conclusively addressed.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

The information covered is the Department notes as to the assessment of the visa criterion. As there is nothing in these notes other than what is already outlined in the Department decision, the Tribunal has decided not to disclose the information to him.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 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 circumstances 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.

Decision

Reasons for decision

The Tribunal for the reasons that follow has decided to make a decision without a hearing. Section 106 of the Administrative Review Tribunal Act 2024 (Cth) (the ART Act) outlines the circumstances in which the Tribunal may make a decision without a hearing. Section 106(3)(b)(ii) of the ART Act provides that the Tribunal may make a decision without holding a hearing if the applicant requests the Tribunal to do so. In this matter the applicant was invited to attend a hearing to give evidence and present arguments. The hearing invitation letter noted that the Tribunal had considered the material before it but is unable to make a favourable decision on the information before it. This was an opportunity for the applicant to provide further evidence and information. He did not take up that opportunity. Instead, he consented to a decision being made without appearing and later to the Tribunal making a decision without holding a hearing. The Tribunal accepts it is a request to make a decision without holding a hearing. The Tribunal is therefore satisfied that the information provided in the response to hearing invitation form and his written email received on 4 November 2024 indicates the applicant has made a request to make a decision without holding the hearing of a proceeding within the meaning of s 106(3)(b)(ii) of the ART Act . However, under section 106(3)(c) the Tribunal may only make a decision without holding a hearing if it appears to the Tribunal that the issues for determination in the proceedings can be adequately determined in the absence of the parties to the proceeding. The Tribunal has considered that the applicant has been provided with an opportunity as outlined above by the Department to provide further evidence and information. He took up the opportunity. He was invited to attend a hearing to give evidence and present arguments. The hearing invitation letter noted that the Tribunal had considered the material before it but is unable to make a favourable decision on the information before it. This was an opportunity for him to further present his case and to provide further evidence. He chose not to attend. He confirmed he was requesting a decision be made without a hearing. He provided no further information and the Tribunal is of the view he has requested a decision on what was already before the Tribunal. The Tribunal is of the view there is nothing further relevant or material that he wishes the Tribunal to consider. For these reasons it finds that the issues for determination in the proceeding can be adequately determined in the absence of the parties to the proceeding.Section 376 certificate of non-disclosure A certificate was issued by the Minister for Immigration under s 376 of the Act certifying that disclosure of certain documents on his file would be contrary to the public interest. On 31 July 2024 the Tribunal wrote to the applicant attaching a copy of the certificate, advising him that it considered the certificate to be valid, inviting him to comment on its validity, and on whether it should exercise its discretion to disclose the documents to him. It attached the s 376 certificate. The applicant responded that he has no information about this matter and is unsure about its validity. He asked the Tribunal to disclose the details.

Ratio Decidendi

Legal Principle Established

The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.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.…