Le (Migration)

[2018] AATA 5874

Le (Migration) [2018] AATA 5874 (22 November 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Nhu Tung Le

CASE NUMBER:  1803701

DIBP REFERENCE(S):  BCC2017/2815666

MEMBER:Tim Connellan

DATE:22 November 2018

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.

Statement made on 22 November 2018 at 2:26pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – failure to attend Tribunal hearing – false or misleading information – time elapsed since application refused – waiver of requirement – no compelling reasons – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 94
Migration Regulations 1994 (Cth), Schedule 2, cl 500.217, Schedule 4, PIC 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] FCAFC 42

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

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 23 January 2018 to refuse to grant the applicant Mr Nhu Tung Le, a Student (Temporary) (Class TU) visa under s.65 of the Migration Act 1958 (the Act).

2. Mr Le applied for the visa on 7 August 2017. The delegate refused to grant the visa on the basis that Mr Le did not satisfy the requirements of cl.500.217(1) of Schedule 2 to the Migration Regulations 1994 (the Regulations) because 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? Mr Le had answered “No”.

3. Departmental records indicated Mr Le had been refused an Employer Nomination Scheme application on 12 December 2016 and had a [permanent visa] application refused on 20 April 2012.

4. The delegate found that Mr Le had provided or caused to be provided false or misleading information in a material particular in regards to an application for a student visa thereby breaching public interest criteria 4020.

5. On 18 December 2017 a natural justice letter was sent to Mr Le inviting him to respond to the findings on the information provided and asking whether there existed any compelling or compassionate circumstances that would satisfy the definition to justify the waiver of public interest criteria 4020 (1).

6. Mr Le responded that he had not mentioned the [permanent visa] application as it had been more than three years ago and he believed that immigration history was cleared after three years. He stated that the employer nomination scheme refused on 12 December 2016 related to a restaurant and he did not believe it would impact on a personal visa application.

7. The delegate was not satisfied with the responses and found that based on the evidence and information available, Mr Le had given information that was false or misleading in a material particular which led the delegate to be not satisfied Mr Le met public interest criteria 4020 and therefore did not satisfy regulation 500.217.

8. The delegate found there was no information provided that Mr Le was seeking a waiver of public interest criteria 4020.

9. Mr Le applied for review of that decision with the Tribunal and with his application provided a copy of the primary decision.

10. On 22 October 2018 the Tribunal sent Mr Le an invitation by email to attend the hearing scheduled for 22 November 2018.

11. The hearing invitation letter also requested Mr Le to provide a range of evidence including evidence of current enrolment and documents that showed past studies in Australia.

12. Mr Le provided a signed response to the hearing invitation dated 15 November 2018 in which he advised he would not take part in the hearing scheduled for 22 November 2018. No other evidence or information was provided.

13. Mr Le did not attend the scheduled hearing.

14. The Tribunal has therefore made this decision on the available evidence, mainly the primary decision, a copy of which Mr Le provided this review application.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

16. 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).

17. 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?

18. 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.

19. 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.

20. 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.

21. In the character declaration section of his visa application, 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?

    Mr Le responded “No”.

22. Departmental records indicate that:

    ·Mr Le had an Employer Nomination Scheme (ENS186) application refused on 12 December 2016, and

    ·A [permanent] application refused on 20 April 2012.

23. When this adverse information was put to Mr Le by the Department, he responded, as stated earlier in this decision, that the [permanent visa] application had been in 2012 and therefore he believed was no longer relevant as it was more than three years ago, and the employer nomination scheme related to a business and therefore he did not believe was relevant to him personally.

24. The fact Mr Le chose not to attend the hearing meant the tribunal did not have the opportunity to question him and consider his views about these issues.

25. Without the opportunity to consider Mr Le’s answers to questions the Tribunal would have asked, the Tribunal believes the wording of the question is specific where it states

    has the applicant…ever had an application… refused.

26. The Tribunal finds it difficult to believe that someone could interpret this to mean in the last three years.

27. In the circumstances, the Tribunal finds there is evidence that Mr Le has provided false or misleading information in a material particular in relation to his visa application and therefore does not meet PIC 4020(1).

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

28. 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.

29. 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.

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

31. Again without the opportunity to hear whether Mr Le believed there were compelling or compassionate circumstances that would meet the definition for the condition to be waivered, the Tribunal looks to the primary decision which indicates that Mr Le was asked to detail any such circumstances but failed to do so.

32. There is no evidence before the tribunal that there are compassionate or compelling circumstances that would lead to consideration of the waiver of public interest criteria 4020.

33. Therefore the requirements of PIC 4020(1) should not be waived.

34. On the basis of the above, the applicant does not satisfy PIC 4020 for the purposes of cl.500.217(1).

    DECISION

35. The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.

    Tim Connellan
    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. 

    …