Kola (Migration)

[2019] AATA 6002

Kola (Migration) [2019] AATA 6002 (3 September 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Ardian Kola

CASE NUMBER:  1917753

DIBP REFERENCE(S):  BCC2019/2354254

MEMBER:Tim Connellan

DATE AND TIME OF

ORAL DECISION AND REASONS:         3 September 2019 at 2:48 pm (VIC time)

DATE OF WRITTEN RECORD:                23 September 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision under review.

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – false or misleading information in visa application – previous application for entry into Australia – six months validity on passport – decision under review affirmed       

LEGISLATION

Migration Act 1958
Migration Regulations 1994, Schedule 2 cl 500.217; Schedule 4 Public Interest 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 24 June 2019 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 September 2019 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. Mr kola, you have been in Australia since 14 January 2019 this year.  This application for a student visa was lodged on 2 May 2019 and your application was refused on 24 June 2019.  The delegate found you did not meet a criterion in clause 500.217, which deals with what are known as Public Interest Criteria abbreviated to PIC.

4. To be eligible for the grant of a student visa an applicant must satisfy a range of criteria set out in the Regulations.  One of those is PIC 4020, which states there is no evidence before the Minister, or in this case the Tribunal, that the applicant has given or caused to be given a bogus document or information that is false or misleading in a material particular in relation to an application for a visa.

5. And that applies to the visa that you are currently applying for or a visa that has been held in the period of 12 months immediately before the current application.  The delegate found that in completing the application for the visa on which you had originally come to Australia, in response to the question: Has the applicant or any person included in this application ever had an application for entry or further stay in Australia or any other country refused or had a visa cancelled?  You answered “No”.  The primary decision, a copy of which you provided with your review application, states that you had an eVisitor subclass 651 visa application to Australia refused on 19 September 2018.

6. You were sent an email inviting you to comment on this potentially adverse information that you had provided information that was false or misleading in a material particular. You responded saying “I did apply for a visa in August 2018 and the visa was refused because the passport had less than six months validity and I thought this is removed from the system.  I was not aware that to apply for a visa to Australia you needed to have your passport more than six months validity”.

7. The delegate was not satisfied with your response and therefore refused your application.  You appealed that decision to this Tribunal for a review. 

8. The role of the Tribunal is to take a fresh look at your application and consider whether you are eligible for the grant of a student visa.  There are two steps in the process.  Firstly, the Tribunal must consider whether you have provided information that created a breach of PIC 4020 and if satisfied that such a breach has occurred it must consider whether the requirement to satisfy PIC 4020 should be waived.

9. The requirement to satisfy PIC 4020 may be waived if there are compelling circumstances that affect the interests of Australia or compassionate or compelling circumstances that affect the interests of an Australian citizen, a permanent resident or an eligible New Zealand citizen.  When I asked you about whether there were such circumstances you did not provide any evidence that such circumstances exist.

10. So when I consider your case in support of your previous application in response to the question: Has the applicant ever had an application for entry to Australia refused? You answered “No”.  And that was in the application prior to your current application.  You had a previous visa application refused in September 2018.  And with this current application when asked whether you had had a visa refused you answered “No”.  At the start of today’s hearing you said “I forgot about the fact that I had had an application refused”.

11. When I questioned you about this you said “I do not know why it was refused” and you repeated that answer on a number of occasions.  You said that somebody told you “Just leave it and apply for another one”.  And when I asked you about that you say that is what the department told your brother to do who was making inquiries on your behalf because he lives in London and speaks English.

12. Your migration agent says, well, people can forget things, you know, and it’s not unusual after 10 years if people forget and just overlook things.  I accept there occasions on which that happens.  However, the situation here is that your application was refused on 19 September 2018 and you lodged an application for a new visa, not 10 years later but eight months later.  You have previously applied for a visa that was refused.  You say you don’t know why it was refused.  You decide to lodge another application and say “I forgot to mention that I previously had an application refused”.  The Tribunal does not accept that statement as being reasonable.  I do not believe this was an innocent mistake.

13. I believe that it is not unreasonable to think that if I put that I have had an application refused in the past they might more than likely refuse me again.  So I believe that that answer was provided knowingly and knowing that it was not a statement of fact in an attempt to be granted a visa. 

14. The fact that you provided evidence that on investigation was found to be non‑genuine leads the Tribunal to find that you do not satisfy PIC 4020.  As you provided no evidence of circumstances under which the need to satisfy PIC4020 might be waived, you therefore do not satisfy clause 500.217.  In the circumstances it is the decision of this Tribunal to affirm the decision under review.

    DECISION

15. The Tribunal affirms the decision under review.

    Tim Connellan
    Member