Khaja (Migration)

[2015] AATA 3982

Khaja (Migration) [2015] AATA 3982 (9 December 2015)

DECISION RECORD

DIVISION:  Migration & Refugee Division

APPLICANTS:  Mr Raziuddin Sabri Khaja Mrs Rayeesa Begum Master Aliuddin Sabri Khaja

CASE NUMBER:  1502375

DIBP REFERENCE(S):  BCC2014/3254444

MEMBER:  Sean Baker

DATE OF ORAL DECISION:                   9 December 2015

TIME OF ORAL DECISION:  11:25 am (VIC time)

DATE:  22 December 2015

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicants Student (Temporary) (Class TU) visas.

Statement made on 22 December 2015 at 11:45am

CATCHWORDS
Migration –Student (Temporary)(Class TU) – Subclass 572 – Bogus documentation – High Commission assessed fixed deposit documents as “non genuine” – Inflated financial capacity – Significant movement of funds – Unable to provide information to the Tribunal within required timeframes – Decision under review affirmed

LEGISLATION
Migration Regulations 1994 (Cth), Schedule 2 cls 572.223, 572.224 PIC 4020

CASES
Batra v MIAC [2013] FCA 274
Trivedi v MIBP [2014] FCAFC 42

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 5 February 2015 to refuse to grant the applicants Student (Temporary) (Class TU) visas under s.65 of the Migration Act 1958 (the Act).

1. The applicants applied for the visas on 28 November 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.572.223 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the applicant did not provide the evidence required to demonstrate they were a genuine student as required by cl.572.223 of Schedule 2 to the Regulations.

1. The applicants appeared before the Tribunal on 5 June 2015, 24 July 2015 and 9 December 2015 to give evidence and present arguments. The applicants were represented in relation to the review by registered migration agents.

1. At the conclusion of the hearing on 9 December 2015, the Tribunal delivered an oral decision. These are the reasons for that decision.

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

CONSIDERATION OF CLAIMS AND EVIDENCE

1. Despite it not being the basis on which the delegate refused the application, 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: cl.4020(1); and

·the applicant and each member of the family unit has not been refused a visa because of a failure to satisfy cl.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: cl.4020(2) and (2AA); and

·the applicant satisfies the Minister as to his or her identity: cl.4020(2A); and

·neither the applicant nor any family unit member has been refused a visa because of a failure to satisfy cl.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: cl.4020(2B) and (2BA).

1. The requirements in cl.4020(1) and (2) can be waived if there are certain compelling or compassionate reasons justifying the granting of the visa: cl.4020(4). However, this waiver does not apply to the identity requirements in cl.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 cl.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 cl.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: Batra v MIAC [2013] FCA 274.

1. The requirement in cl.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: cl.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 delegate set out in the decision that the applicant lodged an application for a Student subclass 572 visa on 28 November 2014. The applicant was assessed as assessment level 3 and was requested to provide evidence of funds sufficient to meet the calculated expenses, and evidence of the source of the funds submitted. The applicant provided to the Department a letter from the Central Bank of India dated 17 December 2014 as evidence of a loan against fixed deposits in the name of his mother (Df. 125). The letter stated that the applicant’s mother had loan funds available and that this amount was secured against a fixed deposit in the name of the sponsor and also held with the bank.

1. This information was sent for verification to the Australian High Commission in India. The High Commission advised that the documents had been found to be genuine, but that the arrangement in the documents was ‘non-genuine’ – according to the advice, this view resulted from enquiries with the bank which indicated that all of the loan funds had been withdrawn and deposited in the account of a third party. The high Commissions concluded that this indicated that the fixed deposit and resulting loan were procured for the sole purpose of meeting the student visa criteria for the applicant and to demonstrate inflated financial capacity.

1. When invited to comment the applicant provided a letter of explanation, copies of his mother’s Central Bank of India account and the applicant’s Australian bank account. This showed a deposit from the sponsor on 27 January 2015, which the delegate noted was approximately three weeks after the natural justice letter was sent to the applicant.

1. The applicant provided an explanation, which was that his mother had withdrawn all the money to send it to the applicant visa Western Union, but that whilst this was in progress the applicant had received the natural justice letter from the Department which indicated that the funds were not in his mother’s account. He had then told his mother not to send the money to him via western Union but to deposit it back in her account. She then sent him $7000 for his first course, as evidenced by the deposit in his Australian bank account of 27 January 2015.

1. The delegate found that this explanation did not seem plausible and placed no weight on it. the delegate went on to find that they placed no weight on the documents from the bank as providing evidence of the applicant’s financial capacity, and affirmed on this basis.

1. The applicant provided a copy of the delegate’s decision with his application for review.

1. Prior to the first hearing the applicant’s representative submitted further documents under cover of a submission including a bank statement for the applicant, which showed regular deposits with transaction details “Hameeda Sultana’ … towards tuition fee”; SWIFT interbank transmissions from the applicant’s mother’s account to the applicant’s; the original loan letter from the Central Bank of India; a letter from the central bank of India dated 23 May 2015 noting that there had been remittances on the loan but there was still a balance of INR 6,37,691.00; a death certificate for his father and educational certificates, letters and CoEs, and a letter of explanation from the applicant.

1. The letter of explanation stated that the funds are from savings, being his father’s savings, his brother’s contribution to their mother, and savings of her mother. The applicant notes that his mother is not educated and withdrew the amount to transfer to his account. She ignorantly asked some people and friends who advised her to send the money via western Union. She then transferred it to his commonwealth account part by part,

1. The submission reiterated the above and noted the applicant has paid fees for his courses.

1. At the first hearing the Tribunal discussed the applicant’s finances but also raised concerns with PIC 4020 with him. The applicant said that he had arrived in Australia on 29 July 2009. The applicant described the letter from the bank and said that this whole sequence of events was because his mother is uneducated. He said she is a housewife and did not know what to do and what not to do. He said that some colleagues told her to take out the money and send to him, as they believed it would be the easiest and quickest way. The applicant said that when he got that news, he told her she could not do that with Western Union, you could not send that much money and it was not a proper way to show the funds and transfer from that account to his account.

1. The Tribunal asked him when his mother had withdrawn the money. He said he did not remember the date, but when immigration checked they saw that the funds were not there. He said when he had got the information from his mum he had told her to put it back again. The Tribunal asked the applicant if he had evidence of his mother’s withdrawals from her account and he said he could provide that. The Tribunal asked where his mother had put the money that she had withdrawn and he said she had put it in a third party account. The Tribunal asked whose account and he said he did not know, someone who was helping her, they deposited it in that account, as it is better for him if they do that, as his mother is uneducated. I asked again whose account this was and he said he did not know.

1. I asked why his brothers had not helped and he said that the other brother recently joined a company and he did not have enough time and when he did he was not helping her.

1. I explained PIC 4020 to the applicant and noted to the applicant that I needed to consider whether he had provided information that is false and misleading in a material particular, and identified the material particular in his case as being cl.572.223(2)(a) financial capacity.

1. The applicant noted that he had provided his Australian bank statement which showed the amounts that had now been transferred from there to him, and his account shows the money coming in in $7, 000 amounts.

1. I noted that in the most recent deposit on this record, it appeared to show he had withdrawn four lots of $1,000 and one lot of $2,000 in a short space of time, $6,000 in all, which may indicate that money was being deposited and then he was taking it out to repay whoever was providing the money. He said this was not the case, that it was like that because he moved house and had a lot of expenses to pay. The applicant said that his father had passed away and this was his retirement money plus money from his brother overseas and his own savings.

1. The hearing was adjourned for the applicant to provide further documentation and discuss the issue I had raised at the first hearing.

1. At the second hearing I discussed the provisions of PIC 4020 once more. At this hearing the applicant provided a bank statement for his mother’s account, showing the transaction details around the period in question, December 2014 (Tf. 112-108).

1. I asked the applicant to explain the bank account. He said that it showed his mother had transferred from her account to the account of the person who was helping so that that person could then pay western union. I noted that in December money was deposited in, and then was withdrawn. I noted that around the time of the letter from the bank dated 17 December 2014 relating to the original loan against FDR (Df. 125), the amount in her account had been at the required figure, and then had been moved from the account to the account of M Dharmanand. I asked who this person was. The applicant said that this was a neighbour who was helping his mother as his father had passed away. I asked why his brothers were not assisting his mother and he said that they were little and you needed a big person for this. I noted that this transaction history caused me concern as it might appear that this money is M Dhamanand’s money who has provided the security for the loan and then this money has been transferred back to him. The applicant said that they have transferred into this account as he was the one who was going to send money to the applicant through western union transfer. Then when the applicant found out he told them they could not do this. I asked him who K Sudhakar was, who had earlier deposited money into the account, and also who P Prashanth was, who had deposited a significant amount just before the applicant provided a further statement for his mother’s account (Df. 169) showing a transfer to the visa applicant’s Australian account.

1. The applicant said that he needed more time to explain all of these details, they had sent him the bank statement but he needed to ask why they had deposited these amounts and withdraw.

1. I noted that the timing caused me real concern, the money was withdrawn the day after the statement of the loan was provided, which made it appear that the money had been deposited in the loan account and then withdrawn, possibly to pay back the person who had provided the initial security.

1. I clarified to the applicant that I required an explanation from him in relation to who k sudharkar is, who m dharmanand is, who P Prashanth is, why none of this was handled by his brother, and where the amounts deposited on the 17th and 18th into his mother’s account come from, and if he was saying these came from the FDRs and accounts of him, his brother and father’s estate, to provide more evidence and detail of this would be helpful.

1. I provided until 21 August 2015 for the applicant to provide this information. He did not do so.

1. I invited the applicant to a further hearing. At this hearing the applicant provided medical letters and certificates indicating that his mother had had cataract surgery on 14 November 2015, for which she was discharged the next day, that she was under acute observation/ medication to manage post-operative complications and was advised to take complete bed

rest for 8 weeks. He indicated that this was why he had not provided the requested documents or information by 21 August and why he needed more time. I indicated that on this evidence I may not provide more time. I asked why he had not been able to provide the information and documents requested. He said that his mother had cataracts and the bank would not provide information to his brother’s without his mother being there. I asked why her cataracts had stopped her going to the bank. He said that some water coming out from the eye and the Doctors had recommended to put some ointment in her eyes. I noted that the documents and information had been due prior to the operation and I still did not understand how her post-operative symptoms would stop her going to the bank. I noted that many people lived their lives with cataracts. I noted that I may not accept that his mother having cataract surgery after the date the information and documents were requested was an explanation of why he had not been able to get the information.

1. I noted to the applicant the questions I needed explained at the last hearing and that he had undertaken to provide evidence or information about. I asked if he could tell me anything about these or answer these questions. He said he could not because the bank would not tell his brothers about these things, and his mother has cataracts. I noted that I may not accept this explanation.

1. After a break I asked the applicant if there was any reason I should not make a decision now. He requested more time, and said that he wanted to complete his course which would help his future, and if the visa is refused it would spoil his whole future. He said he is a family person. He said that if he had certificates he could help his family.

1. As discussed with the applicant at hearing, the evidence in this case may indicate that he has provided false and misleading information in a material particular.

1. The applicant claims that the money was not available to him on the date the High Commission made inquiries with the bank because his mother was in the process of transferring this money to the applicant’s Australian account, and the verification of the account happened to fall across the period when the money had been withdrawn. On further probing the story, the applicant claimed that the money had been transferred to the account of M Dharmanand, who he said was a neighbour.

1. The applicant’s mother’s account has a significant movement of funds back and forth. K Sudhakar makes a number of transfers bringing the account up to around the figure required to be shown by the applicant for his visa application. These amounts appear to then be transferred on 16 December 2014 to the three term deposits provided as evidence (Df.124- 122). As above, the balance is then increased at the date of the loan, and then drops again significantly after this date to the account of M Dharmanand. It then increases significantly from a deposit by P Prashanth just before a further statement is provided of his mother’s account showing a deposit to the applicant’s Australian account.

1. This sequence of events on the accounts is of great concern. When I weigh this with the High Commission investigation, which according to the decision record, indicated that the arrangement in the documents was “non genuine”, this causes me real concerns. I give considerable weight to the High Commission investigation.

1. These concerns have been fairly and repeatedly made clear to the applicant over the course of the hearings. The applicant has not displaced these concerns, despite considerable opportunities to do so. I have not ever received a clear explanation for the transactions on the applicant’s mother’s account. He has not provided any detail of who the people identified above are, what the various accounts paying money in and out relate to, and why this was apparently handled by neighbours rather than his brother.

1. I do not accept the applicant’s explanation for the movement of money in and out of the account which he claims is the reason that the High Commission investigation found that the arrangement was non-genuine. There are too many unexplained factors to make his explanation, that the money was withdrawn by a neighbour who was helping his mother so that the money could be sent to him via Western Union. The applicant has not explained the timing of this event, why the money remained out of his mother’s account, but was not sent to him via western union for some considerable period, who M Dharmanand was, and why, if he was a trusted third party, the applicant appeared to know almost nothing about him, or the other people named on the statement of account. Despite giving him considerable time to provide answers to my concerns, he did not do so. I find that the applicant has not explained the movement of money into and out of his mother’s account, and on the weight I give to the High Commission investigation, and my concerns with his mother’s statement of account and his inability to explain my concerns, I find his explanation implausible, and I find that the applicant and his family have engaged in a contrived arrangement to provide false and misleading evidence that the applicant has access to funds.

1. I do not accept that his brother, who the applicant gave evidence was working, was too young to handle this for his mother, nor that it required a ‘big’ person to do this, nor that his brother was too busy with starting out working to help with this arrangement or that when he was not busy he was not helping her. When looked at with my other concerns, above and below, I find that these are invented reasons to fit the explanation of why the money has gone to other people’s accounts.

1. In making these findings I have had regard to his claims and the evidence provided at the last hearing that he was not able to get information from the bank because the bank would not give this information to his brothers and his mother was not able to go there because she has had cataract surgery. I do not accept these claims as an explanation for why he was unable to provide further information and displace my concerns, nor do I accept that this is a reason for providing further time for him to provide further information. I accept that his mother had cataract surgery on one eye on 14 November 2015, and that there may have been complications and she may have required bed rest. I do not accept that this medical evidence either explicitly or implicitly provides a reason why his mother was unable to go to the bank prior to the operation and seek the information, or why she would be unable to give some form of authority to the applicant’s brothers to seek the information after the surgery. I note that I requested, and he undertook, to provide the information by 21 August 2015. He said at hearing that his mother had cataracts and so she was not able to go even before the surgery. I do not accept this for two reasons – the medical evidence does not support this, and I do not accept the applicant’s claims that this was the case, and secondly he did not provide information and request further time to the Tribunal before or after 21 August 2015 on this or any basis, and only raised this as an impediment to getting the information at the last hearing. I find that the applicant has attempted to delay and prolong the process.

1. I find that there is an element of fraud present in this case –the contrived arrangement engaged in by the applicant and his family as evidenced by the movement of money on the account, which I find was designed to falsely represent that the applicant had access to funds which are not, in fact, his or his mother’s or families funds, but funds provided by an unrelated third party for the specific purpose of providing the false and misleading impression that the funds were available to the applicant when in fact they were not.

1. I find that at the time that the applicant declared in his student visa application process that he had access to the funds required, this information was false and misleading at the time it was given, given my findings above.

1. I find that this false and misleading information related to a material particular, that is, the requirement that the applicant give evidence, in this case evidence of funds, in accordance

with the requirements in Schedule 5A for Subclass 572 and assessment level 3, which as the Department decision makes clear that applicant was subject to, as required by r.572.223(2)(a) and therefore r.572.223(2).

1. I find that there is evidence before me that the applicant has given, or caused to be given, to the Minister, information that is false or misleading in a material particular in relation to the application for the visa.

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

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

1. The requirements of cl.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.

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

1. I raised with the applicant the waiver provisions, explained their scope and asked if he wished to make any claims under the waiver provisions. He said that there were no compelling circumstances, no family who were Australian or permanent residents, and that he did not wish to say anything further.

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

1. On the basis of the above, the applicant does not satisfy PIC 4020 for the purposes of cl.572.224(a) and therefore cl.572.224.

1. The other subclasses of the class of visa sought all contain a similar provision to cl.572.224, requiring the satisfaction of PIC 4020. As the applicant does not satisfy PIC 4020, he does not satisfy key criteria for the grant of any other subclass within the class of visa sought.

1. There is no evidence before me that the secondary applicants in this case would satisfy the primary criteria for the grant of any subclass of visa within the class of visa sought. As the secondary applicant are not members of the family unit of a person who satisfies the primary criteria for the grant of a 572 student visa nor is there evidence that they are members of the family unit of a person who holds another subclass of student visa or certain other classes of visa, they do not meet secondary criteria for the grant of the visa and their applications must be refused also.

DECISION

1. The Tribunal affirms the decision not to grant the applicants Student (Temporary) (Class TU) visas.

Sean Baker Member

ATTACHMENT

Migration Regulations 1994

Schedule 4

1. (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 a 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.

…