Lacksanangam (Migration)

[2022] AATA 3535

Lacksanangam (Migration) [2022] AATA 3535 (28 September 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Popop LACKSANANGAM

CASE NUMBER:  2201327

HOME AFFAIRS REFERENCE(S):          BCC2019/6541976

MEMBER:Mireya Hyland

DATE:28 September 2022

PLACE OF DECISION:  Sydney

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 28 September 2022 at 8:59pm

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – bogus document – employment letters – mental health issues – applicant’s employment transferred to a subsidiary company – employment verification checks – mistaken identity of employer – decision under review remitted           

LEGISLATION

Migration Act 1958, ss 5(1), 57, 65
Migration Regulations 1994, Schedule 2 cl 500.217; Schedule 4, Public Interest Criterion 4020; r 1.03

CASES

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 Home Affairs on 13 January 2022 to refuse to grant the applicant, Popop Lacksanangam, a Student (Temporary) (Class TU) visa under s.65 of the Migration Act 1958 (the Act).

2. Mr Lacksanangam applied for the visa on 8 December 2019. At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). Mr Lacksanangam applied for the visa to undertake study in Australia and does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa. The criteria for the grant of a Subclass 500 (Student) visa are set out in Part 500 of Schedule 2 to the Migration Regulations 1994 (the Regulations). The delegate refused to grant the visa on the basis that Mr Lacksanangam did not satisfy the requirements of cl.500.217(1) because she was not satisfied that Mr Lacksanangam meets Public Interest Criteria (PIC) 4020 in Schedule 4 to the Regulations. The delegate found that there is evidence that Mr Lacksanangam gave the Minister a bogus document in relation to the application for the visa. That decision was provided to the Tribunal by Mr Lacksanangam with his application for review.

3. The issue in this case is whether Mr Lacksanangam provided the Minister with a bogus document as defined in the Act and, therefore, does not meet PIC4020 as required by cl.500.217(1) of the Regulations. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

4. Broadly speaking, PIC4020, which is set out in the attachment to this decision, 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: PIC4020(1);

   ·     the applicant has not been refused a visa because of a failure to satisfy PIC4020(1) during the period starting three 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: PIC4020(2) and (2AA);

   ·     the applicant satisfies the Minister as to his or her identity: PIC4020(2A); and

   ·     the applicant has not been refused a visa because of a failure to satisfy PIC4020(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: PIC4020(2B) and (2BA).

5. The requirements in PIC4020(1) and (2) can be waived if there are certain compelling or compassionate reasons justifying the granting of the visa: PIC4020(4). However, this waiver does not apply to the identity requirements in PIC4020(2A) and (2B).

   Was a bogus document given in relation to the application?

6. As part of his application for a student visa, Mr Lacksanangam gave the Department of Home Affairs (the Department) two employment letters, both dated 9 August 2019. One letter was from Global Trading & Consulting Co., Ltd. (Global Trading) signed by the director Ms Rurchaneewan Wanta certifying that Mr Lacksanangam was employed as a sales manager by them from 1 February 2004 to 30 April 2017. The other letter was from Seaworld Shipping Limited Partnership (Seaworld Shipping) also signed by Ms Wanta certifying that Mr Lacksanangam was employed as a sales manager by them from 1 May 2017. These letters were referred for verification by the Department.

7. The verification of the two letters concluded that the Global Trading letter was ‘non-genuine’. According to the delegate’s decision, during the verification it was determined that Mr Lacksanangam worked as a sales manager for Seaworld Shipping in May 2017 and was assigned to do that job for Global Trading from time to time while remaining at all times on Seaworld Shipping’s payroll. He never worked for Global Trading before May 2017 and was never employed by them. It was on this basis that the delegate found that Mr Lacksanangam had provided the Minister with a ‘bogus document’ and, so, does not meet PIC4020(1).

8. The Department invited Mr Lacksanangam to comment on the fact that the verification of the Global Trading letter had concluded that it was not a genuine document. In response, Mr Lacksanangam sent the Department an undated letter from Ms Wanta acting as the General Manager for Global Trading on the same Global Trading letterhead, signed and stamped with the company stamp. It states that on 10 March 2020 the Australian Embassy had telephoned to ask for Mr Lacksanangam’s employment details, however the person who answered the call was a new officer ‘just passed the probation’. Ms Wanta suggested that the officer might have misunderstood or been unable to communicate properly with the Embassy on the day and so Global Trading would like to clarify the information provided.

9. In her undated letter, Ms Wanta confirmed that Global Trading employed Mr Lacksanangam between 2004 and 2017. In May 2017, the shareholders and management of Global Trading expanded the business by establishing a new company, Seaworld Shipping, and transferred Mr Lacksanangam’s employment to that company. She confirmed that his employment had been continuous from Global Trading to Seaworld Shipping. These details concur with the details in the Global Trading letter. It is noteworthy that Ms Wanta is the person who signed the 2019 Global Trading letter and while her undated letter does not specifically say so, it may be inferred that she is confirming that she did sign that document, she had the authority to sign the document, and that the Global Trading letter is genuine.

10. There is no indication that the Department sent Ms Wanta’s undated letter for verification. Nor is there any evidence that it is a bogus document. Relevantly, Mr Lacksanangam also sent the Department Certificates from the Department of Business Development in the Thai Ministry of Commerce for both Global Trading and Seaworld Shipping. Of note, Global Trading is a limited partnership established on 13 March 2001 with one company director, ‘Miss Rurchaneewan Wanta’. Seaworld Shipping is also a limited partnership established on 31 May 2017 that has two shareholders, with Rurchaneewan Wanta as the managing partner and owning 80% of the shares. It is clear that Ms Wanta essentially owns both Global Trading and Seaworld Shipping outright. The establishment dates on the Certificates also confirm Ms Wanta’s version of events in her undated letter regarding the relationship between the two companies.

11. The delegate did not make any other finding in refusing to grant Mr Lacksanangam a Student visa and, therefore, the question before the Tribunal is whether or not the Global Trading letter dated 9 August 2019 is a bogus document as defined in the Act.

    Bogus Document

12. The term ‘bogus document’ is defined in s.5(1) of the Act (see the attachment to this decision). It is a document that the Tribunal reasonably suspects: 1) purports to have been issued in respect of a person but was not; 2) is counterfeit or has been altered by a person who does not have authority to do so; or 3) was obtained because of a false or misleading statement whether or not the person knew the statement was false or misleading. The requirement in PIC4020(1) not to provide a bogus document applies whether or not the Minister became aware of the bogus document because of information given by the applicant: PIC4020(3). It also applies whether or not the document was provided by the applicant knowingly or unwittingly. While PIC4020 refers to information that is false, in the sense of purposely untrue, it is not necessary for the Tribunal to conclude that the applicant was aware the information was purposely untrue in order for PIC4020 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.

13. In this case the allegation appears to be that the Global Trading letter dated 9 August 2019 was purported to have been issued in respect of Mr Lacksanangam but was not, or that it is counterfeit or was altered by a person who did not have the authority to do so. The Tribunal notes that the Department’s natural justice letter to Mr Lacksanangam under s.57 states:

    ‘Validation checks undertaken by the Department found that you worked as Sales Manager with Seaworld Shipping Ltd Partnership in 05/2017 and you were assigned to do the same job for Global Trading & Consulting Co. Ltd. from time to time remaining on Seaworld Shippings payroll for 100%. You never worked and were never employed by Global Trading & Consulting Co., Ltd before 05/2017. The Employment certificate, from Global Trading and Consulting Co, LTD stated, you were employed with them from 01/02/2004 to 30/04/2017. However, the Department has confirmed this to be a non-genuine document, as Global Trading and Consulting Co. Ltd. has never employed you.’ [emphasis added]

    The Tribunal also notes that the delegate’s decision states:

    ‘The employment certificates were referred by the Department for verification. This verification concluded that the employment certificate issued by Global Trading and Consulting Co., Ltd is non-genuine … The employment certificate, dated 9 August 2019 issued by Global Trading and Consulting Co., Ltd, was verified and confirmed that the applicant did work as a Sale Manager with Seaworld Shipping Ltd Partnership in 05/2017 and was assigned to do the same job for Global Trading & Consulting Co., Ltd. from time to time (remaining on Seaworld Shippings payroll for 100%). The applicant never worked and was never employed by Global Trading & Consulting Co., Ltd before 05/2017. The employment certificate dated 9 August 2019 issued by Global Trading and Consulting Co., Ltd has therefore been deemed as non-genuine. Based on the evidence and information before me, I find the applicant has provided a bogus document in relation to this application.’ [emphasis added]

    However, the Department’s file did not contain any evidence of any ‘verification checks undertaken by the Department’. Nor was there any evidence of the conclusions from any such checks that might be evidence in the delegate’s finding.

14. Ms Wanta’s undated letter provided with Mr Lacksanangam’s response to the Department’s s.57 natural justice letter refers to ‘a phone call from the Australian Embassy asking for employment details’ on 10 March 2020. However, there was no record of any phone call anywhere in the Department’s file and the Tribunal could not find any details relating to the verification in the Department’s electronic case management system. Nor was there any evidence anywhere of the contents of any such phone call that might have taken place or any explanation why the delegate may have found that content ‘verified and confirmed’ that the 2019 letter from Global Trading is ‘non-genuine’.

15. Therefore, the Tribunal requested that the Department forward to it any evidence that the Global Trading letter dated 9 August 2019 was verified and confirmed to be a bogus document within the meaning of the Act. In response the Department provided the Tribunal with two documents and an email. It also sent the Tribunal a certificate and notification regarding disclosure of the information under s.375A of the Act limiting its ability to disclose what is in the documents and the email. The Tribunal finds that the s.375A certificate is valid.

    The Global Trading Letter

16. According to the Department’s records, on 24 February 2020 a request was sent to the Department’s office in Bangkok requesting verification of the Global Trading and Seaworld Shipping letters. The Bangkok office was asked to verify how long Mr Lacksanangam had worked for the companies and his role. According to the Department’s records, verification was completed on 6 March 2020. An undated note from the Bangkok office states that the letter from Seaworld Shipping is genuine. However, Mr Lacksanangam’s employment with Global Trading from February 2004 to April 2017 ‘has never existed’. It states:

    ‘Phone interview conducted today. The referee, Ms Rutchaneewan WANTA advised that the client commenced his work as Sales Manager at [Seaworld Shipping] in 05/2017. Ms Wanta advised that she is also the owner of [Global Trading] and the client was assigned to do the same job for this business from time to time … Ms WANTA confirmed the client was not employed by or work for [Global Trading] before 05/2017.’

    There are some clear inconsistencies between the Department’s records and the information in Ms Wanta’s undated letter. First, she claims the telephone call took place on 10 March 2020, after the Department’s records show verification was completed on 6 March 2020. Second, she claims an employee, not Ms Wanta, took the call and spoke to the ‘Embassy’. Finally, she confirms that Mr Lacksanangam did work for her before May 2017.

17. In light of these inconsistencies, on 8 September 2022 a Tribunal Officer telephoned Ms Wanta to take evidence from her directly with the assistance of a TIS interpreter in the Thai and English languages. According to a written record of that interview, Ms Wanta provided the following information:

    Did you ever sign a letter stating that Popop Lacksanangam worked for Global Trading date 19 August 2019? Yes.

    Did you personally ever talk to the Australian Embassy by telephone about Popop Lacksanangam's employment in March 2020? No.

    Are you aware of this phone call? Yes. Her secretary told her briefly about it.

    What's your secretary's name? Sukitta Wanta.

    Does she have the same last name as you? Yes.

    Did you ever sign a letter saying that someone who worked for you spoke to the Australian Embassy? It was a long time ago, she doesn't recall.

    The Tribunal Officer read Ms Wanta the relevant parts of her undated letter. That sounds right. If there is the company stamp, it means she has read it.

    Did Popop Lacksanangam ever work for Global Trading before 2017? Popop has worked for her for a very long time, since he finished school. One day he asked her for permission to study abroad, which she gave. Because her business is in logistics import/export, she felt a foreign education would benefit him and her.

    How long ago did he join your company? A long time ago, since he finished his school. He's been working there for a very long time, but sometimes he didn't work from the office because he didn't have to.

    The Tribunal Officer called Ms Wanta on the telephone number that is on the Seaworld Shipping letter that the Department verified as genuine (although the Tribunal notes that the telephone number on the Global Trading letterhead is the same). It is satisfied that the Tribunal Officer was speaking to Rutchaneewan Wanta and it can see no reason why she would tell the Tribunal that she signed the 2019 Global Trading letter if she did not. The Tribunal accepts Ms Wanta’s evidence provided in the 8 September 2022 telephone call.

    Findings

18. The Tribunal is presented with conflicting information about the genuineness of the 2019 Global Trading letter from the Department and Ms Wanta. On the one hand, the Department claims that they spoke to Rutchaneewan Wanta and she told them that Mr Lacksanangam did not work for her before May 2017. From this they determined that the Global Trading letter, in which she ostensibly certifies that he did work for her before May 2017, is a bogus document. Such a finding means the delegate has implicitly found the Global Trading letter purports to have been issued in respect of Mr Lacksanangam but was not, or is counterfeit or been improperly altered by someone without the authority to do so, or was obtained through a false or misleading statement. On the other hand, Ms Wanta gave evidence to the Tribunal that she signed the 2019 Global Trading letter. She told the Tribunal that the Department spoke to a different Ms Wanta and confirmed that Mr Lacksanangam worked for her from when he left school (the application identifies that he graduated in 2003).

19. The delegate is not clear in her decision about why the document meets the definition in the Act of a ‘bogus document’. She finds that Mr Lacksanangam did not work for Global Trading and did not work for Ms Wanta prior to May 2017. But she does not identify which of the three circumstances in the definition is relevant to the document. The decision does not determine whether, although the letter purported to be about Mr Lacksanangam, it was, in fact, not about Mr Lacksanangam. Nor is there any finding on whether Mr Lacksanangam had or had caused the letter to be counterfeited or it had been altered by Mr Lacksanangam or someone else who did not have the authority to do so. And there is no determination on whether the letter was obtained by Mr Lacksanangam or someone else making a false or misleading statement. Since it might be inferred that the most likely implication is that Mr Lacksanangam counterfeited the document, the Tribunal has started by considering the document itself. The Global Trading letter is on Global Trading letterhead, has a signature that could be Ms Wanta’s signature, and has a company seal. Relevantly, the Department determined that the Seaworld Shipping letter is genuine. That letter is on Seaworld Shipping letterhead, has Ms Wanta’s signature (since it is verified genuine), and has a company seal.

20. A comparison of the two documents, one verified as genuine and the other verified non-genuine, is informative. First, because the Tribunal only has electronic copies of the documents, the only thing that can be said about the two letterheads is that they are printed in an identical blue ink. But there is nothing to indicate that the Global Trading letterhead is not genuine, and it is the same in every aspect to the letterhead used by Ms Wanta for her undated letter. As noted, the telephone numbers on the two letterheads are the same, as are the addresses and the email addresses. The Tribunal also notes that the email addresses for both companies are Ms Wanta’s name or Global Trading’s initials using a Hotmail and a Gmail account. As such they are of a more personal, rather than corporate, nature in keeping with the overall evidence about the character of the companies as merely Ms Wanta’s private businesses and separate companies in little more than name. For instance, Ms Wanta advertises the companies through her personal Instagram. While the Tribunal is not an expert in signatures, from a side-by-side comparison it appears that the signatures on both letters are identical, that is, Ms Wanta’s genuine signature on the Seaworld Shipping letter is indistinguishable from the signature on the Global Trading letter. All this is consistent with what is contained in the company certificates provided by Mr Lacksanangam. The Tribunal can find nothing on the face of the 2019 Global Trading letter to indicate that it meets the definition of a bogus document.

1. In weighing up all the conflicting information the Tribunal has taken into account the fact that the Department’s record of the verification provided in the two documents and an email forwarded to the Tribunal is undated and does not include such basic information about the telephone interview as the telephone number called, how they verified they were talking to Rutchaneewan Wanta, the questions she was asked, or the responses that she gave. The Department’s note only records the most basic information before concluding that Mr Lacksanangam did not work for Global Trading prior to May 2017 and, therefore, the Global Trading letter is ‘non-genuine’. Most importantly for the Tribunal’s purposes, nothing in the Department’s records indicates that the person interviewed by the Bangkok office was asked whether she signed a letter dated 19 August 2019 on Global Trading letterhead stating that Mr Lacksanangam had worked for that company. The question before the Tribunal is not whether Mr Lacksanangam worked for Ms Wanta or Global Trading before May 2017. It is whether Ms Wanta signed the 2019 Global Trading letter such that it is not a bogus document as defined in the Act. And unlike Ms Wanta’s interview with the Tribunal, there is no evidence that the Department ever asked that question or even mentioned the letter.

2. The Tribunal has also given weight to the fact that Ms Wanta gave evidence directly to the Tribunal and, therefore, it has reliable, firsthand information from her as opposed to the less than satisfactory notes regarding the Department’s interview. Things it found noteworthy in the interview include that Ms Wanta said at more than one point in the interview that Mr Lacksanangam had worked for her since he left school, a claim made by Mr Lacksanangam as far back as the Genuine Temporary Entrant statement provided with his application. He left school in 2003 which gels with the 2004 start date in the Global Trading letter and that, unlike Seaworld Shipping, Ms Wanta had already established Global Trading, as identified in the company’s certificate. Ms Wanta also gave evidence that if a letter on Global Trading letterhead contains a stamp, then she has read it. The 2019 Global Trading letter does contain a stamp.

3. Also, the Tribunal can think of no reason why Ms Wanta would tell the Tribunal that Mr Lacksanangam did work for her in 2004 but tell the Department that he did not work for her before May 2017. Nor can it see any motive for her to provide consistent information in her undated letter and in her interview with the Tribunal (information that is also consistent with the Global Trading letter and the application) but give the Department directly contradictory information. It also cannot conceive of what added benefit Mr Lacksanangam gained from providing a bogus Global Trading letter citing employment from 2004 to 2017 when he had the genuine Seaworld Shipping letter confirming employment from 2017 and Ms Wanta told the Department that in either case he potentially had a job to return to in Thailand.

4. Finally, from a practical point of view, it is unclear how the letter can be a bogus document. It purports to have been issued in respect of Mr Lacksanangam and there is no indication it was not issued in respect of him or was actually issued in respect of someone else. Given that both Global Trading and Seaworld Shipping are very much Ms Wanta’s personal businesses and it was clear from the interview that she is aware of Mr Lacksanangam, his circumstances in Australia, and that he worked for her, it is difficult to see how the letter could have been obtained through a false or misleading statement from Mr Lacksanangam or anyone else. The Global Trading letter is two sentences: the period during which Mr Lacksanangam was a sales manager and his salary. In this case, if the letter is a bogus document, it will not be because it was altered by a person who did not have the authority to do so, but rather because it is counterfeit in its entirety. But there is nothing about the letter, which is in the identical terms as the genuine Seaworld Shipping letter, to indicate or support that it is counterfeit, being on official letterhead with the correct contact details, signed by the correct person, and stamped.

5. Aside from the technical difficulties of counterfeiting the letter like obtaining letterhead, signatures and stamps, the dates of employment also make it harder to believe that the letter is counterfeit. It is relevant that, consistent with Ms Wanta’s evidence, Mr Lacksanangam started at Seaworld Shipping on the exact day the company started. If Mr Lacksanangam wanted to produce a bogus document showing a longer employment history then two years, the easiest way was surely to simply alter the genuine Seaworld Shipping letter. An assumption that he knew he could not do that, and instead had to manufacture evidence of employment at Global Trading, presupposes that he knew the exact date on which Seaworld Shipping was acquired and that prior to that there was only Global Trading. This may seem to be prima facie evidence that he worked for Ms Wanta before Seaworld Shipping existed.

   Conclusion

6. When all the evidence is looked at as a whole, the more convincing evidence is that given by Ms Wanta to the Tribunal directly on 8 September 2022. She confirmed that she did sign the Global Trading letter and the information in the letter is accurate. Without something more than a note by the Department that she told them on the telephone that Mr Lacksanangam did not work for Global Trading before May 2017, it is difficult to go passed such probative evidence. If the Department had provided some clarity on how it is that they believed the document itself was, in fact, bogus, or explained why Mr Lacksanangam would counterfeit such a document when it is entirely unnecessary for his case, this might have assisted the Tribunal. But the Tribunal has been unable to glean a satisfactory answer to either question.

7. This does, however, leave the Tribunal with what appears to be fairly persuasive evidence that Ms Wanta told the Department in a telephone interview in March 2020 that Mr Lacksanangam did not work for Global Trading before May 2017. The Department’s and the Tribunal’s interviews cannot both be correct. This raises the improbable, but possible, situation that the Department was not speaking to Rutchaneewan Wanta, but to a different Ms Wanta, Ms Wanta’s secretary, one Sukitta Wanta, as claimed in the interview with the Tribunal. Although this seems highly unlikely, the fact is that the preponderance of evidence before the Tribunal supports Ms Wanta’s testimony in her 8 September 2022 interview. In the circumstances, mistaken identity is within the realm of possibility, if unlikely, to explain the discrepancy where no other explanation is readily apparent. Given its somewhat haphazard documentation of the key evidence in the critical issue of this case, the Tribunal cannot be satisfied that the Department could not have been careless about assuming one Ms Wanta for the other and, thereby, made assumptions about what it was being told. Therefore, it has given Mr Lacksanangam the benefit of the doubt and accepts Ms Wanta’s evidence on 8 September 2022 over the Department’s note about the verification of the 2019 Global Trading letter.

8. In considering all the information, and having had the opportunity for the Tribunal to take evidence from Ms Wanta directly, the Tribunal prefers the evidence given by Ms Wanta on 8 September 2022 that she did sign the Global Trading letter to the Department’s assumption that she did not because it had information that was inconsistent with the contents of the letter. The Tribunal finds that the letter does not purport to have been issued in respect of Mr Lacksanangam but was not, is not counterfeit or been altered, nor was it obtained through a false or misleading statement. It is not a bogus document.

9. There is no probative evidence before the Tribunal that Mr Lacksanangam has given, or caused to be given, to the Minister, an officer, the Tribunal, 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 the application for the visa or a visa that he held in the period of 12 months before the application was made. Therefore, it is satisfied that Mr Lacksanangam meets PIC4020(1).

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

10. There is no evidence that Mr Lacksanangam or any member of his family unit have been refused a visa because of a failure to satisfy PIC4020(1) in the period commencing three years before the application was made and ending when the visa is granted or refused. Therefore, the Tribunal finds that PIC4020(2) is met.

    Identity requirements

11. The Tribunal has viewed Mr Lacksanangam’s passport. There is no evidence that the applicant is not Mr Lacksanangam. Therefore, Mr Lacksanangam has satisfied the Tribunal as to his identity. The Tribunal finds that PIC4020(2A) is met.

    Has a visa previously been refused on the basis of a failure to satisfy PIC4020(2A)?

12. There is no evidence that Mr Lacksanangam or any member of his family unit have been refused a visa because of a failure to satisfy the identity requirements in PIC4020(2A) during the period starting 10 years before the application was made and ending when the visa is granted or refused. Therefore, the Tribunal finds that PIC4020(2B) is met.

13. On the basis of the above findings, Mr Lacksanangam satisfies PIC4020 for the purposes of cl.500.217(1) of the Regulations.

    DECISION

14. 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.

    Mireya Hyland
    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.

    …