Kao (Migration)

[2020] AATA 3768

Kao (Migration) [2020] AATA 3768 (13 July 2020)

DECISION RECORD

DIVISION:  Migration & Refugee Division

APPLICANT:  Mr Chia-hung Kao

CASE NUMBER:  1821763

DIBP REFERENCE(S):  BCC2018/1716486

MEMBER:  Margaret Forrest

DATE AND TIME OF

ORAL DECISION:  13 July 2020 at 2:32 pm (QLD time)

DATE OF WRITTEN RECORD:                27 July 2020 PLACE OF DECISION:  Brisbane

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

Statement made on 27 July 2020 at 10:04pm

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – enrolment status – not enrolled in a course of study – false or misleading information in previous visa application – Working Holiday (Extension) visa – employment history – waiver of requirement – relationship with Australian citizen partner – emotional support – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), s 65

Migration Regulations 1994 (Cth), Schedule 2, cls 500.211, 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 5
Trivedi v MIBP [2014] FCAFC 42

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

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 Immigration on 9 July 2018 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s.65 of the Migration Act 1958 (the Act).

1. The applicant applied for the visa on 18 April 2018. 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 (the Regulations) because the applicant did not meet Public Interest Criteria (PIC) 4020(1) of PIC4020.

1. The applicant appeared before the Tribunal on 13 July 2020 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Shannon Hurst, the applicant’s partner. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

1. The Tribunal exercised its discretion to hold the hearing by telephone. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.

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

CONSIDERATION OF CLAIMS AND EVIDENCE

1. The criteria for a Subclass 500 (Student) visa are set out in Part 500 of Schedule 2 to the Regulations. The primary criteria in cl.500.211 to cl.500.218 must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need only satisfy the secondary criteria.

1. While the determinative issue before the delegate was whether the applicant met PIC4020(1) of PIC 4020, the determinative issue before the Tribunal changed to become whether the applicant was enrolled in a course of study.

Enrolment (cl.500.211)

1. Clause 500.211 relevantly requires that at the time of this decision the applicant is enrolled in a course of study: cl.500.211(a). The applicant does not claim to meet any of the alternative criteria in cl.500.211.

1. ‘Course of study’ is relevantly defined in cl.500.111 of the Regulations as a ‘full-time registered course’. ‘Registered course’ is defined in r.1.03 of the Regulations as a course of education or training provided by an institution, body or person that is registered, under Division 3 of Part 2 of the Education Services for Overseas Students Act 2000, to provide the course to overseas students.

1. The Tribunal asked the applicant if he was presently enrolled in a course of study and he said no.

2. The day before the hearing, the Tribunal emailed the applicant a copy of his Provider Registration International Student Management System (PRISMS) records. This email indicated that the Tribunal may refer to this document at the hearing. The applicant told the Tribunal that his agent had received the PRISMS records but that he did not have them before him. During the hearing, the Tribunal sent the applicant a copy of his PRISMS records to an alternative email address that the applicant had access to. The applicant then confirmed that he received the PRISMS records and that he had them before him during the hearing.

1. The Tribunal told the applicant that the determinative issue before the Tribunal had changed from whether he satisfied PIC4020 to whether he was enrolled in a course of study.

1. Adopting the procedure in section 359AA of the Act, the Tribunal put to the applicant that it had on the Tribunal file a copy of his PRISMS records. The applicant confirmed that he had his PRISMS records in front of him. The Tribunal explained that the records were relevant to the review because they showed that he was not presently enrolled in a course of study and that he had not been enrolled in a course of study since April 2019. The Tribunal explained to the applicant the consequences of the Tribunal relying on the information, being that it may mean that the Tribunal forms the view that the applicant does not meet the criteria for the visa for which he has applied. The applicant confirmed that he understood why the information was relevant to the review and the consequences of the Tribunal relying on the information.  The Tribunal advised the applicant that he may seek additional time to comment on or respond to the information and the applicant elected to comment on or respond at the hearing.

1. The applicant said that the records were correct and that he had not been enrolled in a course of study since April 2019. The applicant said that this was because at that point he did not have funding to afford to continue his study.

1. The Tribunal finds there is no evidence the applicant is enrolled in an approved course of study as required for the grant of a student visa. Therefore, the Tribunal is not satisfied that at the time of this decision, the applicant is enrolled in a course of study and accordingly cl.500.211 is not met.

1. Given the above findings, the Tribunal finds that the criteria for the grant of a Subclass 500 (Student) visa are not met. The applicant does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa. Accordingly, the decision under review must be affirmed.

PIC 4020 (cl.500.217(1))

1. The secondary 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).

1. 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 material particular?

1. 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.

1. 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.

1. 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.

1. The Tribunal explained to the applicant that the delegate of the Minister had refused to grant him a student visa because the delegate was not satisfied that PIC4020(1) was met. The Tribunal explained that the delegate was satisfied that the applicant had provided false or misleading information in relation to a visa that he held in the period of 12 months before his student visa application was made. The information was a statement by the applicant that he worked for Ren Farm Pty Ltd in regional Australia when he applied for a second TZ417 Working Holiday visa on 5 March 2017. In the delegate’s decision, the delegate stated that subsequent verification checks undertaken by the Department revealed that the applicant was never employed by this company.

1. The Tribunal told the applicant that if the Tribunal affirmed the delegate’s decision in relation to PIC4020(1), the applicant would be prevented from applying for certain types of visas for three years from the date of the delegate’s decision.

1. It was conceded by the applicant that false or misleading information, that was false or misleading at the time it was given, had been provided by the applicant in relation to his

application for a TZ417 Working Holiday visa. The applicant conceded that he never worked at Ren Farm Pty Ltd. The applicant said that he did something wrong.

1. The Tribunal is satisfied and finds that the information was both false and misleading as it was incorrect as to whether the applicant had worked at Ren Farm Pty Ltd and was provided to mislead an assessment of whether the applicant met the criteria for a second TZ417 Working Holiday visa. The Tribunal is satisfied that the information was in relation to a material particular, that is, information relevant to ascertaining whether the applicant met the ‘specified work’ criteria for a second TZ417 Working Holiday visa.

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

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

1. 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.

1. 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.

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

1. The applicant’s evidence at the hearing, in relation to whether there are compassionate or compelling circumstances that would allow for the waiver of the PIC4020(1) requirement, included as follows:

a.he is concerned that PIC4020(1) is not waived, he will not be able to apply for a partner visa for a period of 3 years from the date of the refusal and this period would expire in July 2021;

b.his partner, Shannon Hurst is an Australian citizen;

c.they have been together for not quite one year but they have registered their relationship;

d.they have lived together for more than 6 months;

e.his partner needs him for emotional support because he has [Medical Condition 1] and has a [Medical Condition 2] diagnosis. When Mr Hurst goes through [Medical Condition 1] he wants to support him and be by his side;

f.he needs his partner, Mr Hurst, for emotional support.

1. Mr Hurst’s evidence at the hearing included as follows:

a.he and the applicant are living together;

b.he suffers from [Medical Condition 2] and also [Medical Condition 1];

c.because he and the applicant want to apply for a partner visa, they registered their relationship with Births Deaths and Marriages;

d.his mental health would be detrimentally affected if the applicant was not in Australia to support him;

e.he has other family members in Australia who could support him, but he does not have a relationship with his family where he can talk about [Medical Condition 1] and his [Medical Condition 2];

f.he has friends that he could call on for support but because of the sensitive nature of his health issues, his friends cannot support him in the same way as the applicant can;

g.he is not currently undergoing [treatment] for [Medical Condition 1] because he cannot afford it at the moment, but he has a good relationship with his GP and his GP has a good relationship with [the specialist], so he is still receiving treatment in a broad sense;

h.he is under the care of his GP in relation to his [Medical Condition 2];

i.the applicant does not come into medical appointments with him, but the applicant helps him make sure he does not miss his appointments.

1. The relevant person in relation to this matter, is Mr Hurst, the Australian citizen partner of the applicant.

1. The Tribunal accepts the length of the relationship between the applicant and Mr Hurst, now almost 12 months, is not insignificant. The Tribunal also accepts that the applicant and Mr Hurst have registered their relationship and that they wish to apply for a partner visa for the applicant. The Tribunal accepts that Mr Hurst suffers from [Medical Condition 1] and has been diagnosed [with Medical Condition 2] and that he relies upon the applicant for emotional support.

1. The Tribunal accepts that it is the preference of Mr Hurst and the applicant that they remain living together and they understandably do not wish to be separated for an extended period of time pending expiration of the three year PIC 4020 bar in July 2021, and then for whatever time it would take to process a partner visa application from offshore. The Tribunal also accepts that if the applicant is not granted the visa it would be impact Mr Hurst emotionally.

1. The Tribunal does not accept however, that if the visa is not granted, Mr Hurst would not be able to access medical treatment for his [Medical Condition 1] and his [Medical Condition 2] diagnosis. The Tribunal also does not accept that if the visa is not granted that Mr Hurst will not have any support network in Australia.

1. The Tribunal has taken into account all of the circumstances raised on the evidence and in submissions, both individually and cumulatively.

1. The Tribunal is not satisfied that there are compelling circumstances that affect Australia or compelling circumstances that affect an Australian citizen or citizens, an Australian permanent resident or an eligible New Zealand citizen that force or drive the Tribunal irresistibly to be satisfied that the visa should be granted such that PIC 4020(1) should be waived.

1. The Tribunal accepts and acknowledges that Mr Hurst as an Australian citizen will suffer distress, inconvenience, loneliness, separation from his partner, and other related feelings and impacts, including because of the important of his relationship with the applicant. However, whilst acknowledging these impacts, the Tribunal does not consider these circumstances are such to amount to feeling sympathy, sorrow, pity or concern for Mr Hurst. Having taken all of these matters into account, the Tribunal is not satisfied that there are compassionate circumstances that affect an Australian citizen or citizens, an Australian permanent resident or an eligible New Zealand citizen that justify granting the visa.

1. For completeness, it was not submitted by or on behalf of the applicant that there are compelling circumstances that affect the interests of Australia that justify the granting of the visa. Nor on the evidence before it was the Tribunal satisfied that there are compelling circumstances that affect the interests of Australia that justify the granting of the visa.

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

Concluding paragraphs

1. On the basis of the above, the applicant does not satisfy PIC 4020 for the purposes of cl.500.217(1).

1. The Tribunal has already found that cl.500.211 is not met and the decision under review must be affirmed.

DECISION

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

Margaret Forrest 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.