Kong (Migration)
[2020] AATA 6073
Kong (Migration) [2020] AATA 6073 (17 September 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS: Mrs Hui Kheng Kong
Mr Say Kai OoiCASE NUMBER: 1903878
DIBP REFERENCE(S): BCC2018/4906075
MEMBER:Mark Bishop
DATE:17 September 2020
PLACE OF DECISION: Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicants Student (Temporary) (Class TU) visas.
Statement made on 17 September 2020 at 9:59am
CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) visa – false and misleading information in visa application – information on previous visa non-compliance and family members was not declared – applicant claimed incorrect information was provided by migration agent – decision under review affirmedLEGISLATION
Migration Act 1958 (Cth), ss 5, 65, 359
Migration Regulations 1994 (Cth), r 1.03; Schedule 2, cl 500.217; 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
Plaintiff M64/2015 v MIBP [2015] HCA 50
Trivedi v MIBP (2014) 220 FCR,169
Trivedi v MIBP [2014] FCAFC 42
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 7 February 2019 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 6 November 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(1) of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the delegate found that the applicant had provided false or misleading information to the Department and therefore did not satisfy the PIC 4020 criterion.
The applicant was invited under s.359(2) of the Act to provide information in writing, addressing the criteria in Schedule 4 to the Regulations. The Tribunal advised that this information should be provided by a certain date. The applicant’s representative provided a response to this request on 14 July 2020.
The applicants appeared before the Tribunal by telephone on 17 September 2020 to give evidence and present arguments. The applicants were represented in relation to the review by a registered migration agent who also appeared at the scheduled hearing by telephone. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages. The secondary applicant declined to provide evidence to the Tribunal.
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.500.217(1) 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.
Evidence before the Tribunal
The applicant applied for a Student Subclass 500 visa while onshore on 6 November 2018, the applicant provided with her application various document in support, including, identity documents, a written statement, a written statement from the second named applicant and a certificate of overseas student health care for herself and the second named applicant.
On 7 January 2019, a delegate of the Minister wrote to the applicant inviting her to comment on information that was suspected to be false or misleading and specify whether there are any compassionate or compelling circumstances to justify the waiver of PIC 4020. The letter advised that upon conducting routine checks, Departmental records indicated that the first and second named applicant had provided false or misleading information in relation to the visa application.
The letter outlined that the first and second named applicant first arrived in Australia on 12 September 2007 as holders of Visitor (Class UD Subclass 976) visas that expired on 12 December 2007. The first and second named applicants remained in Australia after the expiry of the visa for approximately 5 years as unlawful non-citizens. The first and second named applicant departed Australia on 4 July 2012 and upon departure the first named applicant was interviewed and advised a Departmental officer that she and the second named applicant had worked in Victoria. As the first and second named applicant had overstayed their Visitor visa, they were excluded from Australia until July 2015.
In November 2015, after the exclusion period, the first and second named applicant returned to Australia as holders of Visitor (Class UD 601) visas. The first named applicant was interviewed on arrival and advised a Departmental officer that she was travelling to Australia with the second named applicant for 5 days to attend an interview. Departmental records indicated that the first named applicants two daughters also travelled with her. Departmental records also indicated in the first named applicants previous Student (Class TU Subclass 572) visa application which she was a dependant and in her current student visa application, the first named applicant did not declare her two daughters as accompanying family members.
Departmental records indicated that in the first named applicant’s current student visa application she did not declare her previous non-compliance, that her two daughters were travelling with her to Australia or her overstay period. In response to this letter the applicant’s representative provided to the Department a statutory declaration declared by the first named applicant on 29 January 2019.
The delegate refused the applicants application for a student visa on 7 February 2019 as they found the applicant provided false or misleading information to the Department. The applicant applied for review of the delegates decision to this Tribunal on 20 February 2019.
On 6 July 2020, the Tribunal invited the applicant under s.359(2) of the Act to provide information addressing the requirements that the applicant is enrolled in a registered course of study and that they satisfy the PIC 4020 criterion. On 14 July 2020, the applicants representative provided the Tribunal with a written submission, copy of a Letter of Offer from SIBN college for a Diploma of Leadership and Management and Advanced Diploma of Leadership and Management with a start date of 5 July 2021 and 4 July 2022 respectively and a copy of a Confirmation of Enrolment (COE) for a General English course and a copy of the statutory declaration declared by the first named applicant on 29 January 2019.
Prior to the scheduled the hearing, the Tribunal was provided with a copy of a letter dated 7 September 2020 confirming the first named applicant’s enrolment from 20 July to 7 May 2020 and academic progress in a General English course at International Education Specialist College.
The written response of 14 July 2020 did not address compassionate or compelling circumstances as outlined in PIC 4020. In evidence to the Tribunal the applicant and her MA both advised they did not wish to address compassionate or compelling circumstances.
The written response of 14 July 2020 made reference to Trivedi v MIBP (2014) 220 FCR,169 and that the “…information or document have the necessary quality of purposeful falsity, whether or not the visa applicant can be shown to have knowledge of that fact.”
On 17 September 2020, at the scheduled hearing the applicant advised she had informed her then MA of non-disclosure matters and the lengthy overstay. She advised he provided incorrect information to the Department without her knowledge. Her evidence was consistent with her written statement and statutory declaration.
The written submission and accompanying statutory declaration of January 2019 are focused in substance on previous non-disclosure and significant overstay as a result of a previous migration agent not declaring such information despite the applicant so instructing the migration agent. The Tribunal has considered this submission. Incorrect information was provided to the Department. The evidence is that the relevant incorrect information was uploaded by the MA of the applicant as part of an online process. No reason has been advanced as to why an MA would provide incorrect information. The Tribunal cannot conceive that a MA would deliberately provide incorrect information or not provide correct information after express instructions have been received. The Tribunal is not persuaded that the MA acted in a manner as outlined by the applicant. The Tribunal does not consider this submission and statutory declaration to be persuasive in any way. It is essentially self-serving. The Tribunal considers it more likely that the applicant purposely misled the Department as a result of not declaring their adverse immigration history in Australia including a substantial overstay and non-compliance issue. The Tribunal finds that the information as supplied by the applicant had the quality of purposeful falsity.
Therefore, the applicant does not meet PIC 4020(1).
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.
The applicant has not provided any material to the Tribunal that addresses compelling or compassionate circumstances. In evidence the MA and applicant both declined to address these matters.
For the following reasons, the Tribunal is not satisfied that the requirements should be waived.
Therefore, the requirements of PIC 4020(1) should not be waived.
Concluding paragraphs
On the basis of the above, the applicant does not satisfy PIC 4020 for the purposes of cl.500.217(1).
Decision
The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.
Mark Bishop
MemberATTACHMENT
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.
…
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
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Statutory Interpretation
Legal Concepts
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Judicial Review
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Procedural Fairness
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Statutory Construction
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Jurisdiction
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