Kim (Migration)

[2020] AATA 4712

Kim (Migration) [2020] AATA 4712 (6 November 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Jinbum Kim
Ms Thi Huyen Trang HOANG

CASE NUMBER:  1823346

DIBP REFERENCE(S):  BCC2018/1586775

MEMBER:Peter Haag

DATE:6 November 2020

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

Statement made on 06 November 2020 at 3:48pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – secondary applicant refused a visa within three years before application made – no compassionate or compelling circumstances to waive criterion – member of family unit – no response to tribunal’s invitation to comment – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359(2), 359C, 360(3), 363A
Migration Regulations 1994 (Cth), r 1.12, Schedule 2, cls 500.217, 500.311, Schedule 4, criterion 4020(1), (2), (4)

CASE
Hasran v MIAC [2010] FCAFC 40
Kaur v MIBP [2017] FCAFC 184
Plaintiff M64/2015 v MIBP [2015] HCA 50

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 25 July 2018 to refuse to grant the applicants Student (Temporary) (Class TU) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 9 April 2018. The delegate refused to grant the visas on the basis that the first named applicant (the applicant) did not satisfy the requirements of cl.500.217 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because a member of the family unit of the applicant being the second name applicant, was refused a visa pursuant to the provisions of PIC 4020, thereby the provisions of PIC 4020(2) serve to prevent the grant of the Student visa to the applicant.

   BACKGROUND

3. Pursuant to s.359(2) of the Act, on 22 July 2020 the Tribunal requested the applicant in writing to respond in writing to the issue of whether the applicant gave or caused to be given to the Minister a bogus document; information that was false or misleading in a material particular in relation to the visa application which is the subject of the review; or, whether the applicant or a member of his family unit has had a visa refused because of a failure to satisfy PIC 4020. The applicant was informed that if he failed to respond to the s.359(2) request by 5 August 2020, or within any extended period that was requested and granted within the specified period, he may lose his right to a hearing. The Tribunal is satisfied the s.359(2) request was sent to the applicant’s last authorised address of correspondence. The applicant failed to respond within the specified period, and he did not seek an extension of time.

4. In these circumstances, s.359C of the Act applies and pursuant to s.360(3) of the Act the review applicants are not entitled to appear before the Tribunal. The effect of s.363A of the Act is that if a review applicant has no entitlement to a hearing, the Tribunal has no power to permit him or her to appear: Hasran v MIAC [2010] FCAFC 40.

5. In the circumstances the Tribunal has decided to proceed to a decision on the information that is available.

6. The applicants were represented in relation to the review by their respective registered migration agents.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in this review is whether the visa applicant meets Public Interest Criterion 4020 (PIC 4020) as required by cl.500.217 for the grant of the visa. Broadly speaking, this requires that:

   ·there is no evidence that the applicant has given, or caused to be given, to the Minister, an officer, the Tribunal, a relevant assessing authority, or Medical officer of the Commonwealth, a bogus document or information that is false or misleading in a material particular in relation to the application for the visa or a visa that the applicant held in the 12 months before the application was made: PIC 4020(1); and

   ·the applicant and each member of the family unit has not been refused a visa because of a failure to satisfy PIC 4020(1) during the period starting 3 years before the application was made and ending when the visa is granted or refused, unless the applicant was under 18 at the time the application for the refused visa was made: PIC 4020(2) and (2AA); and

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

   ·neither the applicant nor any family unit member has been refused a visa because of a failure to satisfy PIC 4020(2A) during the period starting 10 years before the application was made and ending when the visa is granted or refused, unless the applicant was under 18 at the time the application for the refused visa was made: PIC 4020(2B) and (2BA).

9. 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 a visa previously been refused based on a failure to satisfy PIC 4020(1)?

10. In this review the applicant provided to the Tribunal a copy of the record of the delegate’s decision; it was made on 25 July 2018. The Tribunal has read that decision.

11. PIC 4020(2) requires the Tribunal to be satisfied that the applicant and each member of the family unit have not been refused a visa because of a failure to satisfy PIC 4020(1) in the period commencing 3 years before the application was made and ending when the visa is granted or refused. This requirement does not apply to a person who was under 18 at the time the application for the refused visa was made: PIC 4020(2AA). 

12. For present purposes, a person is a member of the family unit of another person if the person is the spouse of that person. According to the record of the delegate’s decision and information contained in the Department file, the applicant and the secondary applicant, Ms Thi Huyen Trang HOANG married in Australia on 29 March 2016. The marriage was evidenced by a marriage certificate, photographs and other materials that were submitted to the Department in support of the Student visa application.

13. On 5 November 2020 at 5.08pm the secondary applicant’s representative, Oliver Sun, informed the Tribunal by email that his client, the secondary applicant, had informed him “that her marriage relationship with Mr Jinbum KIM (the main review applicant) had broken down, and she intends to apply for [a] student visa herself.”  The Tribunal has given regard to this information. 

14. The indication by the applicant’s representative that the Applicant’s present intention is to apply at some unspecified time in the future for a Student visa, does not satisfy the Tribunal that the applicant will in fact make that application: the applicant may or may not make the application.

15. Furthermore, the applicant, whilst being actively assisted by her representative, has not informed the Tribunal that it is her intention to withdraw the visa application that is currently under review; and, the applicant has not applied to withdraw the application.

16. The applicant’s claim that it is her present intention to apply for a Student visa at some unspecified time in the future; and, by informing the Tribunal the applicant claims that at some unspecified time in the past her marriage to the applicant broke down, does not constitute an application to withdraw, or a withdrawal, by the applicant, of the present visa application. Relevantly, the representative has not stated, and he has not established by concrete, verifiable evidence that he has been authorised by the secondary applicant to withdraw her visa application, and he has not applied to do so.

17. Neither the primary applicant nor the secondary applicant claims they are no longer legally married to each other; and, the information before the Tribunal does not satisfy the Tribunal that the applicants are no longer legally married to each other. Based on the available information, the Tribunal is satisfied the primary applicant is currently the spouse of the secondary applicant and, that the primary and secondary applicants are currently members of a family unit as defined in regulation 1.12.

    Has the applicant or any member of the family unit (as defined in regulation 1.12) been refused a visa in the relevant period, being in the period commencing 3 years before the application was made and ending when the visa is granted or refused?

18. According to the delegate’s decision, the Student visa application currently under consideration in this review was made on 9 April 2018.

19. It is not disputed that, according to the delegate’s decision in respect of the applicant’s Student visa application, on 25 July 2018, but prior to the delegate deciding on the same date to refuse to grant the applicant a visa, the delegate refused to grant Ms Thi Huyen Trang HOANG, the secondary applicant, a Student visa on the basis she did not satisfy the requirements of PIC 4020. Accordingly, the Tribunal is satisfied the secondary applicant was refused a Student visa during the period starting three years before the application was made; and, ending when the visa is either granted refused. It is convenient for the Tribunal to repeat here: the Tribunal is satisfied the secondary applicant and the primary applicant are currently members of the same family unit.

20. The Tribunal is satisfied the applicant was born on 30 October 1988, and that he was not under 18 years of age at the time the application for the refused visa was made.

21. Therefore, PIC 4020(2) is not met.

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

22. 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.

23. 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.

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

25. There is no information before the Tribunal capable of establishing the existence of compelling circumstances that affect the interests of Australia, or compassionate and compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen, that would justify the granting of the visa. 

26. Therefore, the requirements of PIC 4020(2) should not be waived.

27. Based on the above, the applicant does not satisfy PIC 4020 for the purposes of cl.500.217.

28. The applicant does not claim to meet, and the information before the Tribunal does not satisfy the Tribunal that he meets the criteria for any other subclass within the class of visa sought.

29. The secondary applicant, indicated to the Tribunal a present intention to apply for a Student visa at some unspecified time in the future, nevertheless, the information before the Tribunal does not satisfy the Tribunal that she meets the criteria for any other subclass within the class of visa sought.

    DECISION

30. As the main applicant, Mr Jinbum Kim was found not to meet cl.500.217 the dependent applicant, Ms Thi Huyen Trang HOANG, does not satisfy 500.311. Accordingly, no further assessment regarding Ms Thi Huyen Trang HOANG is required, and no further assessment has been undertaken.

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

    Peter Haag
    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. 

    …