Kaur (Migration)

[2018] AATA 3103

Kaur (Migration) [2018] AATA 3103 (3 July 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Sandeep Kaur

CASE NUMBER:  1705322

DIBP REFERENCE(S):  BCC2016/3766218

MEMBER:Tim Connellan

DATE AND TIME OF

ORAL DECISION AND REASONS:          3 July 2018 at 2:05 pm (VIC time)

DATE OF WRITTEN RECORD:                27 July 2018

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision under review.

CATCHWORDS

Migration – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – Access to funds – Bogus documentation – False bank account – Discrepancies between migration agent and applicant’s explanations – Decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 97
Migration Regulations 1994 (Cth), Schedule 2 cl 500.217 Schedule 4 Criterion 4020

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 3 March 2017 to refuse to grant the visa applicant a Student (Temporary) (Class TU) Subclass 500 visa under the Migration Act 1958 (the Act).

2. At the hearing on 3 July 2018 the Tribunal made an oral decision and gave an oral statement of decision and reasons. The following is the written record of those reasons.

   STATEMENT OF DECISION AND REASONS

3. You came to Australia in December 2015. 

4. This application for a student visa was lodged on 10 November 2016.

5. To be eligible for the grant of a student visa, an applicant must satisfy a range of criteria set out in the Regulations.

6. Your application was refused on 3 March 2017, because the delegate found you did not meet a criterion in clause 500.217 of the Migration Regulations. That clause deals with what are known as public interest criteria. One of those is public interest criteria 4020 and it states that to satisfy this criterion, there is no evidence before the Minister that the applicant has given or caused to be given to the Minister, an officer, or the Tribunal, a bogus document or information that is false or misleading in a material particular, in relation to an application for a visa.

7. In your case, reading from the primary decision, a copy of which you provided with your application, you provided a bank statement from the State Bank of India, issued to Avtar Singh, who you said was your grandfather. 

8. The documents were referred to the offshore post in New Delhi for integrity checking and the verification report states that while the funds existed, and the name of the account holder was Avtar Singh, the Avtar Singh who owned the account was not a relative of yours and therefore, you did not have access to the funds as claimed in your application.  The delegate therefore determined that a bogus document had been provided and you failed to satisfy the Public Interest Criteria 4020. 

9. You were invited to comment on the Department’s findings and provide a statement indicating if there were compelling or compassionate reasons as to why the Department should grant a visa. 

10. In response, you stated that your grandfather is Avtar Singh, who was a victim of a scam of a bank official, who seems to have taken advantage of his age and his limited knowledge and took the entire money from him and provided him with the details of another person with the same name.  You say he was hoodwinked.

11. The delegate considered your comments but found that you had given or caused to be given a bogus document within the meaning of section 97 of the Act, in that you have provided information that was false or misleading in a material particular and therefore found that you did not meet public interest criteria 4020.

12. You did not present any claims of compassionate or compelling circumstances and consequently, the delegate refused your application and you appealed that decision to this Tribunal, which is why we are here today.

13. Your agent made a submission, detailing relationship problems between yourself and your husband and spoke about the financial documents stating that the education agent in India got confused with some other client, whose father’s name was Avtar Singh, which is the same name as your grandfather and therefore, it was the education agent who had provided the documents that were not genuine in your case.

14. The Tribunal finds this explanation implausible and, different from your explanation. On the evidence presented the tribunal finds you have provided documents that were non-genuine and therefore do not satisfy public interest criteria 4020.

15. The decision as to whether or not a visa application is refused when an applicant fails to meet public interest criteria 4020, may be waived if there are compelling or compassionate circumstances that affect the interests of Australia; or compelling or compassionate circumstances that affect the interests of an Australian citizen, a permanent resident or an eligible New Zealand citizen, which justify the granting of a visa.

16. When you were asked by the Department, you said there were no such circumstances.  I ask you again, are there any compelling or compassionate circumstances that the Tribunal should consider?

17. INTERPRETER:  I did not understand. 

18. I find that you have provided a document that is false.  You therefore do not satisfy public interest criteria 4020.  If there are compassionate or compelling circumstances that meet the definition, the need to satisfy public interest criteria 4020 may be waived, meaning you would not need to satisfy it to be granted a visa. And so, my question to you is: “Are there compassionate or compelling circumstances that I should consider?” 

19. INTERPRETER:  I have already provided what I need to provide, and I have been divorced here.  Nothing can be done.  The agent has told me, unless you have a legal reason, nothing can be done, and he has taken a one-sided divorce from me.  So, that is the evidence.

20. Thank you.  I have read everything that you have said in your statements and I have also considered the document you have provided here today from someone called Manjeet Singh Bir, who claims it was his mistake in sending in the wrong documents.  I give that document little weight.

21. There is no evidence before the Tribunal that there are compelling or compassionate circumstances that meet the definition that would lead to a waiver of the requirement to satisfy public interest criteria 4020. 

22. It is therefore the decision of this Tribunal to affirm the decision under review, because I find you do not satisfy clause 500.217.

    DECISION

23. The Tribunal affirms the decision under review.

    Tim Connellan
    Member