Kumar (Migration)

[2020] AATA 3799

Kumar (Migration) [2020] AATA 3799 (8 September 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Raman Kumar

CASE NUMBER:  1912861

DIBP REFERENCE(S):  BCC2019/646272

MEMBER:Margaret Forrest

DATE OF HEARING:  28 August 2020

DATE OF WRITTEN STATEMENT:         8 September 2020

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal remits the application for a Student (Temporary) (Class TU) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 500 (Student) visa:

·Public Interest Criterion 4020 for the purposes of cl.500.217(1) of Schedule 2 to the Regulations.

Statement made on 08 September 2020 at 2:54pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – false or misleading information in visa application – previous visa refusal not declared – visa refusal letter provided by applicant’s brother to agent who prepared application – no element of fraud or deception – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5, 65
Migration Regulations 1994 (Cth), Schedule 2, cl 500.217; Schedule 4, Criterion 4020

CASES
Arora v MIBP [2016] FCAFC 35
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 14 May 2019 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 26 February 2019. The delegate refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl.500.217(1) of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the applicant did not meet Public Interest Criteria (PIC) 4020(1) of PIC4020.

3. The applicant appeared before the Tribunal on 28 August 2020 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Kuldeep Kumar, the applicant’s brother. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.

4. The applicant was represented in relation to the review by his registered migration agent and his agent appeared at the hearing and made submissions.

5. The Tribunal exercised its discretion to hold the hearing by telephone. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.

6. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. 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).

8. 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?

9. 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.

10. 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.

11. 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.

12. The Tribunal explained to the applicant that the delegate of the Minister had refused to grant him a student visa because the delegate was not satisfied that PIC4020(1) was met.  The Tribunal explained that the delegate was satisfied that the applicant had provided information that was false or misleading information in a material particular in relation to his student visa application (the relevant information).

13. In the delegate’s decision, the delegate describes the relevant information as follows.  Upon lodgement of their Student (Temporary) (Class TU subclass 500) visa application, the applicant answered “No” 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?

14. Departmental records show that the applicant’s Visitor visa application, which was lodged on 17 January 2018, was subsequently refused on 16 February 2018.  The applicant was provided with 28 days to provide comment on the suspected ‘non-genuine’ information supplied to the Department.  The invitation to comment was sent to the applicant on 9 April 2019. 

15. The applicant uploaded a Form 1023 to their Immi account on 17 April 2019, and on 3 May 2019, the following response was provided to the Department:

    “I have provided the visa refusal letter to [my] agent but they had not ticked the column which is not in my control”

16. The Tribunal told the applicant that if the Tribunal affirmed the delegate’s decision in relation to PIC4020(1), the applicant would be prevented from applying for certain types of visas for three years from the date of the delegate’s decision (from 14 May 2019).

17. In the applicant’s letter to the Department dated 3 May 2019, he went on to say:

    “As the visa refusal information is provided at the time of visitor visa application as well and I have the same agent.  We have attached form 1023 to rectify this answer.  Please consider it as a mistake as we do not provide any bogus information with application.  Please see my previous visitor visa application applied.”

18. The applicant confirmed that he had only ever applied for one visitor visa (which was refused) and that he had the same agent for his visitor visa application and his current student visa application.

19. The Tribunal asked the applicant if he had reviewed his student visa application before it was submitted.  The applicant said no, his agent had prepared his file.  The Tribunal asked the applicant is he asked to review this student visa applicant before it was submitted and the applicant said no.  The Tribunal asked the applicant why he did not ask to review his student visa application before it was submitted.  The applicant said, because his brother had already sent the visa refusal letter to his agent.  The Tribunal asked the applicant if he had ever told his agent that his visitor visa application was refused.  The applicant said no because his visitor visa, which was refused, was prepared by him only (the agent) and the applicant thought his agent already knew. 

20. The applicant submitted a statutory declaration to the Tribunal in which he said:

    “I had engaged Migration Agent, Max International who lodged by student visa application in February last year.

    The migration agent incorrectly ticked ‘no’ 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?.

    This answer by the agent was incorrect because my brother’s who mostly contacted the Agent on my behalf, had advised the agent about the refusal and he had provided a copy of the refusal letter the Migration agent twice.  I say that it was an error on the part of the Agent who despite being fully aware of the refusal, provided incorrect information in the application form.”

21. The applicant also submitted a statutory declaration from his brother, Mr Kuldeep Kumar to the Tribunal.  In his statutory declaration, Mr Kuldeep Kumar said:

    “It was Raman’s Migration Agent, Max International who had lodged Raman’s student visa application in February last year.  I recall that at some stage before Max International asked for a copy of the visa refusal letter and I then forwarded it to Max International on 23 October 2018, and again on 20 November 2019 as requested.  Annexed to this Statutory Declaration is a copy of my emails to the migration agent.”

22. The Tribunal told Mr Kuldeep Kumar, that the emails attached to his statutory declaration did not clearly show that the document “raman refusal letter” was sent to Max International on 23 October 2018 or 20 November 2018.  The documents annexed to his statutory declaration also did not clearly show what the document “raman refusal letter was”.  Mr Kuldeep Kumar told the Tribunal that he could provide additional documents to the Tribunal during the hearing that demonstrated these things. 

23. During the hearing, the applicant’s brother, Mr Kuldeep Kumar sent a screen shot of the email he sent to [email protected] on 23 October 2018 to the Tribunal.  This screen shot shows an attachment titled “raman refusal letter.pdf”.  The email address [email protected] matches the email address for the applicant’s migration agent contained in the Department file.  

24. During the hearing, Mr Kuldeep Kumar also sent a copy of the document titled “raman refusal letter.pdf” to the Tribunal.  This document is the applicant’ visitor visa refusal letter dated 16 February 2018. 

25. The Tribunal is satisfied that the applicant’s brother sent a copy of the applicant’s visa refusal letter to the applicant’s then migration agent, at least on 23 October 2018. 

26. Based on the available evidence, the Tribunal cannot be satisfied that there was an element of fraud or deception involved on the part of the applicant’s migration agent when he submitted the false information to the Department.

27. The Tribunal is satisfied and finds that the relevant information was both false and misleading as it was incorrect as to whether the applicant had ever had a visa refused.

28. However, the Tribunal is not satisfied that there was an element of fraud or deception on the part of the applicant or his agent, as required by Trevedi v MIBP [2014] FCAFC 42. Although it is of concern to the Tribunal that applicant did not his student visa application before it was submitted, the Tribunal accepts the applicant’s explanation as to why the relevant information he provided was incorrect. Based on the available evidence, the Tribunal cannot be satisfied that there was an element of fraud or deception involved on the part of the applicant’s migration agent when he submitted the false information to the Department.

29. In making these findings, the Tribunal has taken into account Departmental Policy (PAM3) Guidance on PIC 4020 which states in effect, in order to refuse the visa on the basis of PIC4020 it is necessary that the information or document have the quality of “purposeful falsity” whether or not the visa applicant can be shown to have personal knowledge of that fact.  In the circumstances where an applicant could explain an innocent mistake, and the delegate believes the applicant’s claims, then it would be open to the delegate to find that there is no purposeful falsity, and that the applicant meets PIC 4020.  The Tribunal has also taken into account the applicant’s migration agent’s submissions in this regard.   

30. Therefore, the applicant meets PIC 4020(1).

    Has a visa previously been refused on the basis of a failure to satisfy PIC 4020(1)?

31. 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). 

32. There is no evidence before the Tribunal that the applicant has 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.

33. Therefore, PIC 4020(2) is met.

    Has the applicant satisfied the identity requirements?

34. PIC 4020(2A) requires an applicant satisfy the Tribunal as to his or her identity.  There is no evidence before the Tribunal to support a conclusion that the Tribunal ought not be satisfied of the applicant’s identity.

35. Therefore, the applicant meets PIC 4020(2A).

    Has a visa previously been refused on the basis of a failure to satisfy PIC 4020(2A)?

36. PIC 4020(2B) requires that neither the applicant nor any family unit member have been refused a visa because of a failure to satisfy the identity requirements in PIC 4020(2A) during the period starting 10 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(2BA).

37. There is no evidence before the Tribunal the applicant has been refused a visa because of a failure to satisfy the identity requirements in PIC 4020(2A) during the period starting 10 years before the application was made and ending when the visa is granted or refused.

38. Therefore PIC 4020(2B) is met.

    Concluding paragraphs

39. On the basis of the above, the applicant does satisfy PIC 4020 for the purposes of cl.500.217(1).

    DECISION

40. The Tribunal remits the application for a Student (Temporary) (Class TU) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 500 (Student) visa:

    ·Public Interest Criterion 4020 for the purposes of cl.500.217(1) of Schedule 2 to the Regulations.

    Margaret Forrest
    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. 

    …