Kaur (Migration)

Kaur (Migration) [2019] AATA 3141 (14 March 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Ms Gurpreet Kaur
Master Ekamjot Singh
Mr Harnek Singh
Miss Manjot Karu
CASE NUMBER:  1728292
DIBP REFERENCE(S):  BCC2014/1075471
MEMBER:Mark Bishop
DATE:14 March 2019
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicants Student (Temporary) (Class TU) visas.
Statement made on 14 March 2019 at 11:57am

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 572 Vocational Education and Training Sector – Federal Court remittal – false or misleading information – bogus document – fraudulent IELTS test report – compassionate or compelling circumstances – citizenship and residency of applicant's daughter – separation of daughter from her family – efforts to obtain citizenship for daughter – decision under review affirmed
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth), s 2A
Australian Citizenship Act 2007 (Cth), s 12
Migration Act 1958 (Cth), ss 5, 65, 359AA, 360, 362A
Migration Regulations 1994 (Cth), r 1.03; Schedule 2, cl 572.224; Schedule 4, Public Interest Criterion 4020
CASES
Arora v MIBP [2016] FCAFC 35
Batra v MIAC [2013] FCA 274
Kaur v MIBP [2017] FCAFC 184
MIAC v Li (2013) 249 CLR 332
Plaintiff M64/2015 v MIBP [2015] HCA 50
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

This is an application for review of a decision made by a delegate of the Minister for Immigration on 18 November 2014 to refuse to grant the applicants Student (Temporary) (Class TU) visas under s.65 of the Migration Act 1958 (the Act).
The applicants applied for the visas on 28 April 2014. The delegate refused to grant the visas on the basis that the first named applicant (the applicant) did not satisfy the requirements of cl.572.224 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the delegate was not satisfied that the applicant satisfied PIC4020 as the delegate found that a “bogus document” in the form of a fraudulent IELTS test report form had been provided with the applicant’s student visa application.
This matter was originally heard before the Tribunal (differently constituted) on 4 February 2016. A decision to affirm the decision of the Department was made on the same day. The applicant subsequently applied for judicial review. The application was dismissed by the Federal Circuit Court on 3 July 2017. The applicant appealed the decision to the Federal Court of Australia. The matter was settled by consent with the Minister accepting that “… the application must be allowed on the basis that the conduct of the Tribunal hearing on 4 February 2016 demonstrates that the decision of the second respondent is affected by apprehended bias…”
On 5 February 2019 the applicant requested access to documents under s.362A of the Act. On 6 February 2019 the Tribunal made available those documents to the applicant. Those documents included the applicant’s PRISMS record, past Confirmation of Enrolments (COEs) and the Movement records of the applicants.
The applicants appeared before the Tribunal on 1 March 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.
The applicants were represented in relation to the review by their registered migration agent.
The applicant advised the Tribunal she had read the written submission and it was correct.
The applicant was represented by Mr [A], solicitor from [Law Firm 1]. Mr [A] participated in the review hearing. At the beginning of the hearing the Tribunal asked the applicant if she had read and understood her written submission. The applicant responded in the affirmative.
Upon request the Tribunal provided a copy of the applicant’s and her daughter’s Movement record to the applicant on 6 February 2019. Later in the review hearing the Tribunal provided a copy of the applicant’s Movement record and her daughter’s Movement record to the applicant and her solicitor as part of adverse information disclosure under s.359AA. The Tribunal was concerned the submission of the applicant was potentially misleading because it contained material errors. Examples are as follows:
·    At paragraph 27 of her submission the applicant submitted “…Manjot Kaur, Ms Kaur’s daughter …has maintained residence in Australia throughout the 10-year period since her birth, with some travel to India during this period. Her movement records are contained in the Tribunal file” The movement records in the Tribunal file showed Manjot Kaur spent almost six (6) years resident in India in the period from her birth until her return to Australia on 2 July 2018. This latter absence was of 46 months duration and followed two large absences in 2009/2010 and 2010/2011. In evidence the applicant advised her daughter lived with her mother and participated in the Indian education system as is normal for any school age child;
·    At paragraph 32 of her submission the applicant submitted “as an Australian citizen, and noting that she is a small child, it would be entirely improper for Manjot to be separated from her mother…” In evidence the applicant advised her daughter Manjot Kaur is not an Australian citizen.
·    At paragraph 3 of her submission the applicant advised “Manjot has been in Australia nearly all her life…’ This is not correct as is outlined above.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
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.572.224 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 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.
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.
The decision record outlines the applicant applied for a Student Subclass 572 visa onshore on 28 April 2014. The applicant provided several documents in support of her application. One of which was an IELTS result. This test was purported to have taken place on 21 September 2013 with a band score of 7.0. The test had a reference number of 131NO37279TG1200A. Upon entering this reference into the IELTS verification website it was revealed that the score assigned to this test was an overall band score of 0.5 with the other details such as name, date of birth and date of exam remaining the same. It appeared as though a non-genuine document had been provided to the department with this application. Upon a request to comment on this information the applicant provided a statement indicating compelling and/or compassionate reasons as to why the department should waive the requirements of PIC4020.
The applicant via her solicitors ([Law Firm 1]) provided a written submission to the Tribunal. It outlined the following:
·The issue before the Tribunal for consideration is the application of Public Interest Criterion (“PIC”) 4020;
·The applicant is currently enrolled in a Bachelor of Tourism and Hospitality Management. The course commenced 13 November 2017 and is scheduled to conclude 8 November 2019. The applicant provided a copy of a Confirmation of Enrolment (COE) (COE number A0B0DF48) dated 11 October 2018 in this degree. She provided a copy of a letter from Academies Australasia Polytechnic that showed as at 8 February 2019 she had completed 79% of her degree.
·The applicant completed VET level studies at Certificate, Diploma and Advanced Diploma level in Business, Management, Hospitality Management, Production Horticulture and Management in the period July 2008 until March 2015. The applicant did not advise of completing any studies since this time.
·The visa applications were refused as the delegate was not satisfied that the applicant satisfied PIC4020, as the delegate found that a “bogus document” in the form of a fraudulent IELTS test report form had been provided with the applicant’s application;
·Relevant issues for determination (paragraphs 13 and 14);
·Matter background:
oPrior to the expiry of a previous subclass 572 visa the applicant received an offer of sponsorship through the 457 visa scheme. Her agent at the time (Mr Pawan Bhambi) advised the applicant she did not meet the English language criteria for the 457 visa, put her in contact with a Mr Gurjinder Singh in India who Mr Bhambi said would assist with the sitting of an IELTS test. The applicant accompanied by her father-in-law subsequently met with Mr Singh at his office in India. Mr Singh undertook to arrange for her to sit a IELTS exam in India;
oMr Bhambi lodged the applicant’s 457 nomination and visa application. The nomination was successfully approved. The Department wrote to Mr Bhambi with an invitation to comment stating that the Department suspected that the IELTS test report form provided was bogus. Mr Bhambi proceeded to withdraw the 457 visa application;
oMr Bhambi proceeded to lodge the applicant’s subclass 572 visa application. Mr Bhambi provided the fraudulent IELTS test report to the Department. The applicant advises she gave explicit instruction to Mr Bhambi not to provide the IELTS test report. The applicant advised she said the document was false and not to be lodged. He had saved all the documents in a single file and without reading submitted them again. He did not know what he had submitted. After receipt of email from the department and a list of documents he admitted he had submitted the document. The visa application was subsequently refused by the Department as the applicant was not able to satisfy PIC4020;
· Consideration and waiver provisions:
oThe applicant concedes that the IELTS test report form is a “bogus document” and that she failed to satisfy the PIC4020 criterion;
oThere is no need to consider the nature of the fraud and the events leading to it. Such consideration is not legally required and it is not an element to be considered under the PIC4020 provisions. There was no malicious intent on the part of the applicant to obtain a visa through fraudulent documentation;
oIt is important to take into account the circumstances leading to the provision of the bogus document to the Department. The applicant followed the instructions of her migration agent. This is not sufficient to find the applicant does satisfy PIC4020;
oThe applicant submitted that s.12 of the Australian Citizenship Act 2007 provides that a person born in Australia is an Australian citizen if and only if (1)(a) a parent of the person is an Australian citizen, or a permanent resident, at the time the person is born; or (b) the person is ordinarily resident in Australia throughout the period of 10 years beginning on the day the person is born.
oThe applicant’s daughter Manjot Kaur was born in Australia on 20 November 2008. She has maintained residence in Australia since her birth “with some travel to India during this period”. This statement is perhaps best described as an “overstatement”;
oThe applicant is currently applying for evidence of her daughter’s Australian citizenship;
oThe applicant referred to PAM3 and specific reference to the “interests of minors that are Australian citizens/permanent residents”.
oThe applicant submitted “[A]s an Australian citizen and noting she is a small child it would be entirely improper for Manjot to be separated from her mother if the waiver provisions for PIC4020 are not enlivened. Manjot’s best interests would dictate that the applicant be entitled to the waiver of the PIC4020 criteria…”
oThe applicant submitted Manjot Kaur has been in Australia nearly all her life and is currently studying at an Australian primary school…We again note that her period of stay in Australia has been protracted due to the judicial review proceedings…”
oThe applicant submitted Manjot Kaur has a limited understanding of written Punjabi.
oThe applicant instructed her solicitor that Manjot Kaur “developed anxiety due to her separation from her parents during her most recent stay in India”
oDelays in the applicant’s matter have been completely beyond her control.
oThe three-year bar under PIC4020 provisions have now passed. The applicant is in a worse position than she would have previously. The unnecessary delays involved in this matter to this point have resulted in undue prejudice to the applicant.
The applicant submitted to the Tribunal her daughter (Ms Manjot Kaur) born in Australia on 20 November 2008 “…has maintained residence in Australia throughout the 10-year period since her birth with some travel to India…” The applicant advised this was correct and her daughter had travelled to India on a few occasions and “Manjot has been in Australia nearly all her life…”
In evidence the applicant advised the Tribunal this written submission was correct. The Tribunal proceeded to test this submission. See hereunder at paragraphs 30 to 34 re adverse information.
The Movement record for Ms Manjot Kaur (DOB 20 November 2008) discloses in the period 3 August 2009 until 14 August 2018 a period of 9 years or 108 months she spent 70 months away from Australia in India. This period of time includes 1 September 2009 until 3 June 2010, 20 August 2010 to 15 November 2011 and 26 September 2014 until 28 July 2018. The Tribunal is of the view the applicant’s daughter Ms Manjot Kaur spent the overwhelming majority of her life in India and not in Australia. In evidence the applicant advised her daughter attended school in India in the period 2014 until 2018.
The applicant advised she was not an Australian citizen or permanent resident of Australia. The applicant advised her husband is also not an Australian citizen or permanent resident of Australia. The applicant agreed her daughter had spent over 70 months of her life in India in the period 3 August 2009 until 14 August 2018. The applicant agreed her daughter had spent the period 26 September 2014 until 28 July 2018 in junior school in India.
The applicant advised the Tribunal her daughter was not an Australian citizen. The applicant advised the Tribunal she could not provide any proof her daughter was an Australian citizen. The applicant advised that within the last week she had sought legal advice concerning Australian citizenship for her daughter, had provided documents to her legal advisor and she thought he had or would make application. The applicant did not provide copies of any documentation to the Tribunal. The applicant did not advise or provide any further detail to the Tribunal.
The applicant’s daughter is currently not an Australian citizen or permanent resident. Hence the considerations of PAM3 as referred to above are not relevant to the deliberations of the Tribunal.
The Tribunal notes that Manjot Kaur is not an Australian citizen. The Tribunal agrees the applicant’s daughter is currently ten years and three months of age. The Tribunal notes the applicant (and presumably the father of the child) has made repeat arrangements over time for her daughter to be raised in India for the overwhelming majority of her life.
The Tribunal notes Manjot Kaur has been in Australia for a minority of her life and was not resident in Australia in the period 26 September 2014 until 2 July 2018. Manjot Kaur has lived in Australia from 2 July 2018 until the present time.
The Tribunal is prepared to accept that a child who has spent only a limited period of time in the Indian education system may have a “limited understanding of written Punjabi”. A limited understanding may well be a function of limited time to date in the education system and the normal processes of learning for children.
In evidence the applicant advised her stress and depression stopped after the return of her daughter to Australia. The Tribunal notes that her most recent stay was almost four years and occasioned by a decision of the parents one of whom is the applicant in this review application. The Tribunal notes further the applicant did not lead any evidence of this stress. She advised she had been taking medication. She did not provide any copies of medical reports or medical documentation that addressed the issue of stress and or depression. There was no evidence before the Tribunal of such stress. The applicant also advised her daughter developed anxiety when separated from her parents. The applicant did not lead any evidence of this anxiety. She did not provide any copies of medical reports or medical documentation that addressed issues of anxiety. The applicant did not provide any copies of letters, notes, other correspondence, and advice from her parents in India as to the condition of her daughter, advice from her parents as to their concerns, if any, about the stress of her daughter, texts or other forms of modern social exchange that may have addressed this issue. There was no evidence before the Tribunal of such anxiety and there was no evidence the anxiety, if any was linked to the separation of her daughter whilst in the care of her maternal grandmother for separate long periods of time amounting to years.

The Tribunal notes that any delays in the resolution of this matter were relatively normal in this jurisdiction. Those delays were not exceptional. The applicant did not apply at any time to have proceedings brought on for determination as a matter of urgency or priority. The applicant continued her residence in Australia.
The applicant did not outline details of her “worse position”. She advised she went into depression because it had upset her plans for study. She advised she was taking some medication. She felt under stress. She relaxed when daughter returned from India. She advised the Tribunal she worked in the period March 2015 until the present time and earned $26,000 per annum. She advised the Tribunal her husband worked in the same period and earned $20,000 per annum. The applicant was able to send daughter to India for four years for her education. The applicant had the opportunity to study in this period and complete her studies which were the original reason for coming to Australia. The applicant pursued studies from November 2017.
ADVERSE INFORMATION
Adopting the procedure in section 359AA of the Act, the Tribunal provided adverse information in the form of a summary sheet and relevant source documentation to the applicant and her solicitor in writing. The Tribunal explained the adverse information was derived from the Movement record of the applicant’s daughter. The Tribunal explained the meaning Movement record. The Tribunal explained the relevance of the Movement record. The Tribunal by way of example explained an entry to the applicant so that she had a full understanding of the detail contained in the Movement record and its relevance.
The Tribunal outlined particulars of the information, explained its relevance, advised the information would be a reason, or part of a reason for the Presiding Member to affirm the decision of the Department in his case and refuse the application for a visa. The Tribunal explained the Movement record was relevant because it contained detail of when Manjot Kaur departed Australia and when she returned to Australia. It provided departure port, flight details, arrival port, visa details and legal status. In short the Movement record shows the period of time and number of occasions Manjot Kaur spent offshore.
The adverse information was as follows:
1.The applicant’s daughter (Ms Manjot Kaur DoB 20 November 2008) departed Australia 1 September 2009 and returned to Australia 3 June 2010, an absence of approximately 9 months;
2.The applicant’s daughter (Ms Manjot Kaur DoB 20 November 2008) departed Australia 20 August 2010 and returned to Australia 15 November 2011, an absence of approximately 15/16 months;
3.The applicant’s daughter (Ms Manjot Kaur DoB 20 November 2008) departed Australia 26 September 2014 and returned to Australia 2 July 2018, an absence of 46 months;
The Tribunal inquired if the applicant wanted to seek additional time to consider the adverse information. The applicant sought additional time of fifteen minutes and the Tribunal granted the request.
The Tribunal requested the applicant address each of the numbered summary points as outlined in paragraph 32 above. In evidence the applicant advised that each of the numbered points detailed in paragraph 32 above were correct.
The Tribunal now turns to consider PIC4020.
The applicant conceded the IELTS test report was a false document. In evidence the applicant advised she never sat the IELTS test in India, knew the relevant document was bogus when received in Australia and knew she provided a bogus document to her then migration agent, Mr Bhambi. The applicant attempted to justify her agent’s forwarding of the bogus document as being done without authority and contrary to her express instruction. She felt compelled to provide the document. The Tribunal rejects this explanation. The Tribunal is of the view the applicant was engaged in a deliberate and sustained process of deception in the creation, receipt and forwarding of a known bogus document to her agent done for the purpose of her own advantage.
The Tribunal finds the IELTS test result, for a test undertaken on 21 September 2013, which was provided to the Department in relation to the applicant’s student visa application is a bogus document which falls within s 5.(1)(b) of the Migration Act – that the document is counterfeit or has been altered by a person who does not have authority to do so. The Tribunal is satisfied the applicant has given, or caused to be given, to the Department, a bogus document in relation to the visa application. Therefore, the applicant does not meet PIC 4020(1).
The Tribunal now considers the issue of waiver.
Should the requirements of PIC 4020(1) or (2) be waived?
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.
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.
For the following reasons, the Tribunal is not satisfied that the requirements should be waived.
The applicant or her husband are not Australian citizens or permanent residents of Australia. The applicant’s daughter is not an Australian citizen or permanent resident of Australia. The applicant advised the Tribunal at the hearing that within the last week she had commenced processes for her daughter to be considered for Australian citizenship.
The Tribunal considers whether there are compelling circumstances. In response to a question from the Tribunal as to her compelling circumstances the applicant advised she was ashamed of what had happened and she had learned a lot from that. She wished to complete her studies. The Tribunal accepts that the applicant now regrets past events. The Tribunal has made a finding that the applicant’s past behaviour was a deliberate and sustained process of deception in the creation, receipt and forwarding of a known bogus document to her agent for the purpose of her own advantage. The Tribunal is of the view the applicant’s “regret” for her prior behaviour is not sincere and occasioned primarily by fear of possible adverse consequences. The Tribunal is of the view the response to questions from the applicant and her written submission (as discussed in detail above) do not amount to compelling circumstances that affects the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen, and that there are no compelling circumstances that affect the interests of Australia.
The Tribunal considers whether there are compassionate circumstances. In response to a question from the Tribunal as to her compassionate circumstance the applicant advised she was a genuine student, she was misguided in process and she should be given a chance to completer her studies leading to a Bachelor degree. The Tribunal notes that applicants for student visas need to be genuine students. It is a routine consideration. It is not out of the ordinary. The Tribunal notes the applicant came to Australia in 2008 to pursue studies in the Higher Education (HE) system. She provided evidence of completion of courses in the VET sector. She did not provide evidence of completion of any courses in the HE sector. She did not provide any evidence of participation in the education system in Australia in the period 2015 until late 2017 when she commenced a bachelor degree. The Tribunal is of the view the applicant has had many years to prove she is a genuine student. The Tribunal does not need to make a determination as to whether the applicant is a genuine student or not. The Tribunal is of the view the response to questions from the applicant and her written submission (as discussed in detail above) do not amount to compassionate circumstances that affects the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen.
The Tribunal now considers paragraph 29 of the applicant’s submission that “should the Tribunal be inclined to find there are compelling and (sic) compassionate circumstances that affect the interests of an Australian citizen (being Ms Manjot Kaur), we should ask that no decision be made until evidence of her citizenship can be provided to the Tribunal”. The Tribunal notes that cl.4020 (4) of Schedule 4 of the Migration Regulations expresses “compassionate or compelling circumstances” not “compassionate and compelling circumstances”. In essence the applicant seeks a delay in Tribunal decision making until a government department has made a decision concerning Manjot Kaur’s application for evidence of her Australian citizenship.
Ms Manjor Kaur is currently not an Australian citizen. At the hearing, her mother has advised of seeking citizenship for her daughter in the last week. The solicitor for the applicant used the phrase “deemed citizen”. There is no such provision in the relevant Act. The solicitor for the applicant did not explain what a “deemed citizen” might be. There is not any reference to “deemed citizens” in PIC4020. The Tribunal has not been made aware of the processes of application for Australian citizenship and the likely or expected time for decision making. In any event the Tribunal is of the view the processes inherent in consideration of s.12 of the Australian Citizenship Act (see paragraph 28 of the applicant’s submission) are not a relevant consideration under PIC4020.
The Tribunal is aware s.2A of the AAT Act provides that in the carrying out its functions, the Tribunal must pursue the objective of providing a mechanism for review that is “… (b) fair, just, economical, informal and quick…”The use of the word “quick” is a somewhat unusual word to use when outlining the objective of providing a mechanism. It is not found in the objectives of like Tribunals or review agencies. It is a direction to the Tribunal from the Parliament as is all of s.2A. The Tribunal gives it no particular significance. The Tribunal notes it is one of many considerations in the Act. The Tribunal is not minded to delay its decision making processes concerning the review applicant on the basis her daughter might be made an Australian citizen at some future time.
Finally the Tribunal has given lengthy consideration to the primary submission of the applicant at paragraph 33 of her submission. It states “As an Australian citizen, and noting that she is a small child, it would be entirely improper for Manjot to be separated from her mother if the waiver submissions for PIC4020 are not enlivened. Manjot’s best interests would dictate that Ms Kaur be entitled to the waiver of PIC4020 criteria…” Putting aside the error of fact as to the child’s current Australian citizenship status this is not a submission devoid of substance. If Manjot had been resident in Australia from birth and her absences only short term or of a holiday nature as is customary it would have considerable strength. In those circumstances the child would have lived continuously in Australia for ten years and would be significantly acculturated to Australia and its life-style, mores and habits. This is not the case in this review application. The child has spent the majority of her life in India, living with her maternal grandparents and participating in the Indian education system and arguably the culture of that country. Of some consequence her parents made that decision to send their child for extensive periods of time, including the last period of almost four years.
In addition the separation of mother from child (if it should occur) is only temporary. The applicant seeks a temporary student visa. She advised the Tribunal she has almost completed her Bachelor degree. She advised the Tribunal she would complete the degree in November 2019 and return home to India to open a restaurant. The time period of potential separation is very limited and much more limited than the recent examples of separation voluntarily occasioned by decision of the applicant.
Section12 of the Citizenship Act provides citizenship to applicants who meet the definition by operation of law. The Department’s Citizenship Policy states that, ‘Children born in Australia on or after 20 August 1986, who did not acquire Australian citizenship at birth, automatically acquire it if they have been ordinarily resident in Australia throughout the 10 year period beginning on the day of their birth (s.12(1)(b)). In such cases, the child will become an Australian citizen on their 10th birthday.’ It also provides, ‘Due to operation of law, there is no decision to be made, but rather a finding of fact will be made as to whether the provisions have been met (and when that occurred).’ Given the circumstances that she has spent the majority of her life in India, it is unclear to the Tribunal whether she has been ordinarily resident in Australia and has in fact automatically acquired citizenship. However, the Tribunal will give the applicants the benefit of the doubt and accept that Manjot Kaur is an Australian citizen for the purposes of PIC 4020(4). In paragraph 32 of the applicant’s written submission and in paragraph 17 above the Tribunal summarised submissions of the applicant as to difficulties the applicant might experience if PIC 4020 was not waived by the Tribunal. The Tribunal has given considerable thought to these submissions.
The applicant did not advise the Tribunal that it was likely there might be a separation of Manjot Kaur from her family. The Tribunal is not aware that Manjot Kaur would be left in Australia. There is no evidence before the Tribunal Manjot Kaur would be left by herself. It is highly improbable. There is no evidence before the Tribunal the family would be separated. There is no evidence before the Tribunal that such separation might occur. The Tribunal is not satisfied the family would be separated.
Manjot Kaur has spent many years in India for protracted periods of time being raised by her maternal grandmother. The Tribunal was not made aware of any difficulties faced by Manjot Kaur during her lengthy periods of residence with her family in India. The Tribunal is aware that the applicant and her husband made repeated decisions to send Manjot Kaur to India for lengthy periods of time. The Tribunal is not satisfied Manjot Kaur will face difficulties if she returns to her home country.
For the reasons outlined above the Tribunal is not persuaded the requirements of PIC 4020(1) should be waived. Therefore the requirements of PIC 4020(1) should not be waived.
At.9.12am on 4 March 2019 the applicant provided a further written submission to the Tribunal. It outlined the following:
We refer to the above-mentioned application for review and the hearing held today. [1 March 2019].
This email is provided in support of our request for the matter to be adjourned until the Applicant has had the opportunity to provide the Tribunal with evidence of her daughter’s citizenship.
We note that at today’s hearing the Tribunal clearly stated that any evidence confirming that Ms Manjot Kaur was an Australian citizen would be “effectively determinative” and that the member would be interested in reviewing this information. Noting this, we find it concerning that the Tribunal has indicated that it will be in a position to make a decision in this matter “early next week” (indicating that a decision is likely to be made on a Monday or a Tuesday) and that a request for an extension of time to provide the information regarding Manjot’s citizenship was not granted.
We note that the Tribunal has indicated that it will consider all material put to it prior to making a decision. Nevertheless, and as the Tribunal would be acutely aware, the provision of the relevant citizenship evidence by the start of next week is a logistical impossibility. Respectfully, we continue to submit that an extension of time to provide this information is therefore necessary and reasonable in the circumstances to ensure that the Tribunal is able to conduct an effective review of this matter. A failure to do so could be considered unreasonable and constitute a jurisdictional error (as per Minister for Immigration & Citizenship v Li [2013] HCA 18).
Furthermore, the fact that the Tribunal has indicated that a decision will be made early next week may indicate such an approach as being unreasonable in the circumstances. Given that this matter has been remitted for reconsideration by the Tribunal on apprehended bias grounds, we respectfully submit that this matter should be given careful consideration so that Ms Kaur is given the full benefit of a fair and just assessment of her case. We already note that the Tribunal refused to adjourn the hearing so that Ms [B] of our office (who had carriage of the matter at the Federal Circuit Court and was the representative on file) could attend, even though the Tribunal was aware she had another AAT Migration hearing around the same time. This alone could be seen to be unreasonable given the circumstances.
Further, the issue of whether or not the child is an Australian citizen goes directly to the issue at hand namely whether the waiver as outlined in sub-reg PIC4020 (4)(1)(b) requires consideration of whether or not there are compassionate or compelling circumstances that affect the interest of an Australian citizen or Permanent resident or an eligible New Zealand Citizen.
As was alluded to during closing submissions, the fact of whether Ms Manjot Kaur is an Australian citizen is an essential piece of evidence in determining whether the waiver provisions of PIC4020 should be enlivened. As such, we respectfully submit that it is essential that evidence of this can be adduced to the Tribunal. We submit that making a decision without evidence of this, given these circumstances would be a breach of procedural fairness and would constitute jurisdictional error.
Thank you for your consideration.
The Tribunal has considered this late submission. The Tribunal made a reference to “effectively determinative”. This, of course meant it would be determinative that the Tribunal has to consider the exercise of the waiver in PIC4020 (4)(b). It did not mean it would be determinative of the applicant’s review application.
The late submission refers to the fact that “Miss Kaur is currently in the process of applying for evidence of her [daughter’s] Australian citizenship”. However in evidence the applicant advised her daughter is not an Australian citizen and had instructed a separate law firm or migration agent to apply for citizenship for her daughter. This is materially different from the post hearing submission of the applicant’s representative that an adjournment was sought to provide evidence of already existing Australian citizenship. In oral evidence both in English and translation (audio tape approximately 1.05.10 - 1.06.30) the applicant advised the Tribunal her daughter was not an Australian citizen and was taking steps to achieve same. In oral submission the applicant’s solicitor advised the Tribunal (audio tape approximately 1.07.40) the applicant’s daughter may be potentially eligible for citizenship. The Tribunal prefers the oral evidence of the applicant and her solicitor during the review hearing that her daughter is not an Australian citizen and is in the process of applying for Australian citizenship.

At 6.15pm on 4 March 2019 solicitors for the applicant provided a copy of an application for evidence of Australian citizenship (TRN EGOL18QUUO) for the applicant’s daughter. The online application was lodged on 4 March 2019.
The Tribunal turns to consider this material. The High Court of Australia (HCA) in MIAC v Li (2013) 249 CLR 332 gave consideration to the factors relevant in a request for adjournment. The High Court held that the Tribunal must not arbitrarily exercise its discretion whether or not to grant an adjournment but rather must do so by reference to the facts and circumstances of the individual case and in a manner which is reasonable and has regard to the statutory purposes of s.360. In this case the applicant has put a number of requests for adjournment.
Initially on 4 February 2019 the applicant sought an adjournment as the applicant’s solicitor, Ms [B], the Managing Partner of [Law Firm 1] advised she [would] be unable to attend the hearing as currently scheduled, as I have a separate hearing [scheduled] that I must attend on the listed date” The Tribunal has considered this request. [Law Firm 1] is a medium sized law firm. Its website advises it has [number] solicitors and appropriate support staff. It has multiple [offices]. The firm advises it is a [full-service] Australian firm … and their legal team offers a diverse skill set including immigration and administrative law. The Tribunal is satisfied the firm would provide more than adequate legal representation to the applicant in this matter irrespective of legal personnel. Secondly the Managing Partner of the firm Ms [B] made a decision her presence in the Tribunal was required in another matter. That is her right. Tribunal scheduling processes are not dependant on the availability of particular solicitors or solicitors who make a decision to allocate a particular time to another matter that is deemed to have greater priority. Thirdly the legislative scheme governing the Migration and Refugee Division (MRD) of the Tribunal gives only a limited role to advisers at the Tribunal hearing. In practice, advisers are generally permitted to be present and to participate at the hearing. This is usually limited to the making of oral submissions at the end of the hearing. In the review application the Tribunal gave extensive time to the applicant and her solicitor to engage in the proceedings. The fact the applicant requested a particular solicitor “attend with her” and necessarily play a limited role in the review proceedings was a matter considered by the Tribunal. It was not sufficient to persuade the Tribunal to adjourn the hearing to a later date.
On 4 March 2019 (after the conclusion of the review hearing on 1 March 2019) the applicant made a further submission seeking an adjournment to provide proof of evidence of citizenship of Manjot Kaur. Attached was copy of an application for evidence of Australian citizenship. The evidence of citizenship has not been provided to date. The Tribunal is not aware of if and when the applicant will be able to provide this evidence. The applicant did not make any submissions to the Tribunal as to the time-lines involved in making such an application and when the relevant department might make a decision. The Tribunal is aware of other fact situations where an applicant has sought an adjournment on the basis of providing relevant information such as an IELTS test, a resit of an IELTS test or the provision of material from a relevant Skills Testing Authority. In those cases the applicant advised the Tribunal of a definite time-frame to obtain and provide the information. In this review application and request for adjournment the applicant has not provided any detail of a definite time-frame. It may be 18 months as is the case of applications for review of delegate’s decisions. It may be two years as is the current case for directions hearings arising out of appeals from decisions of the Tribunal to the Federal Circuit Court of Australia. The Tribunal is simply not aware of the period of time involved in an application for evidence of Australian citizenship and the applicant has not provided submissions on this point or guidance to the Tribunal. The Tribunal is aware the applicant has had at least since 20 November 2018 to make such application. The applicant has chosen to make such application only after the review application was concluded on 4 March 2019. Along with being reasonable in its approach the Tribunal is required to be quick in its decision making. The Tribunal was not persuaded by the correspondence of 4 March 2019 to delay its decision making.
On the basis of the above, the applicant does not satisfy PIC 4020 for the purposes of cl. 572.224.
DECISION
The Tribunal affirms the decision not to grant the applicants Student (Temporary) (Class TU) visas.
Mark Bishop
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.
…

[2019] AATA 3141

14 March 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice