Lhamo (Migration)

[2020] AATA 3246

Lhamo (Migration) [2020] AATA 3246 (30 July 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Yezer Lhamo
Mr Jambay Yeshi

CASE NUMBER:  1820577

DIBP REFERENCE(S):  BCC2018/1195733

MEMBER:Peter Haag

DATE:30 July 2020

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicants Student (Temporary) (Class TU) visas.

Statement made on 30 July 2020 at 8:52am

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – incorrect information in visa application – second applicant twice refused visa as accompanying family member – first applicant claimed misunderstanding of question due to mental and emotional stress – no compassionate or compelling circumstances justifying grant of visa – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 1.03, Schedule 2, cl 500.271(1), Schedule 4, criterion 4020(1)

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

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 26 June 2018 to refuse to grant the applicants Student (Temporary) (Class TU) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 13 March 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.500.271(1) of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the delegate was not satisfied the applicant met the requirements of Public Interest Criterion (PIC) 4020(1) contained in cl.4020 in Schedule 4 of the Regulations.

3. The applicants appeared before the Tribunal on 27 July 2020 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s spouse Mr Jambay Yeshi.

4. The applicants were represented in relation to the review by their registered migration agent. The representative attended the Tribunal hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The issue in this review is whether the visa applicant meets PIC 4020 as required by cl.500.271(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 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: 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).

7. 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?

8. 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.

9. 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.

10. PIC 4020 contemplates information that is false or misleading in the sense that it is information that is 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.

11. There was no dispute that the applicant gave a false answer to a question in the application she made for the Student visa.  The visa application also applied to Mr Jambay Yeshi who was included in the application as an accompanying member of the applicant’s family unit. The question and answer in the visa application that is of concern is this: “Has the applicant, or any person included in this application, ever had an application for entry or further state in Australia or any other country refused, or had a visa cancelled?” The applicant’s answer to that question was “No”.

12. In a written submission the applicant provided to the Tribunal the applicant admitted Mr Jambay Yeshi was twice refused a visa as an accompanying family member of the applicant who was to study in Australia. The applications were refused in April and November 2014. The applicant’s admission that the Department refused the visas was in line with the facts that are central to the delegate’s reasons for decision; the applicant provided a copy of the decision record to the Tribunal. There is no dispute that the visa refusals occurred before the applicant submitted the impugned application for the Student visa to the Department of Immigration and Border Protection (the Department) on 13 March 2018.

13. In substance the applicant accepted she was aware the visa refusals had occurred and that she failed to declare them in the relevant section of the Student visa application that related to the visa history of both the applicant and any person included in the application, namely Mr Jambay Yeshi.

14. The applicant and Mr Yeshi in their oral evidence to the Tribunal, in written submissions the applicant provided to the Department and the Tribunal and written submissions provided to the Tribunal by the applicant’s representative contended that the applicant, whilst negligent in failing to declare the relevant visa refusals, and lacking in presence of mind when the impugned answer was given, the applicant, because of that state of mind, misunderstood the question[1]. Additionally, the applicant claims in written submissions and in the evidence before the Tribunal, that she believed the fact that her visa history included the successful grant of an Australian visa after the visa refusals occurred, there was no requirement to declare the prior visa refusals. This response defies the ordinary meaning of the question to which the applicant gave the false answer, and the Tribunal finds this aspect of the explanation for giving the false answer to be unpersuasive.

    [1] Undated submissions signed by the applicant and her spouse, Mr Yeshi, starting with the words, “In reply: - Comment, with regard to non-compliance of OIC 4020(1)”.  

15. Furthermore, the applicant contends the Tribunal can be satisfied the failure to declare the past visa refusals was not a purposeful falsity because she declared the visa refusals in a past successful visa application.

16. Overall, the applicant claims the false answer does not constitute a failure to meet the requirements of PIC 4020 because the answer is not the result a purposeful falsity: it was unintentional, albeit negligent, and it resulted from the applicant misunderstanding the question. Therefore, according to the applicant, the impugned answer “no” was not information that is false or misleading in a material particular as defined in PIC 4020(5) because the information was not a purposeful falsity: Trivedi.

17. According to the evidence the applicant’s lack of presence of mind and inability to understand the question was a result of several distressing circumstances and various personal pressures.

18. The first stressor relied upon by the applicant revolved around the birth of her first child on 17 June 2017. The applicant was expecting her mother to spend time in Australia to assist her to manage the new baby. On 9 May 2017 the Department refused to grant a visa to the applicant’s mother. The visa refusal and managing the new baby caused the applicant to feel emotionally and mentally disturbed, and she found it difficult to managing her new baby without the assistance of her mother.

19. The second stressor was the tragic news that the applicant’s sister died prematurely. On 4 June 2017 the applicant was informed that her sister - with whom she enjoyed a close relationship - committed suicide. This news added to the burden of the applicant’s pregnancy and caused great distress to the applicant. Subsequently, the applicant applied again for a visa to enable her mother to spend time with her and her baby in Australia. The application was made on 19 July 27; it was successful, and the applicant’s mother arrived in Australia on 12 August 2017.

20. The applicant informed the Tribunal the presence of her mother in Australia caused her to feel relieved to the extent that: “finally it seemed that life is back on track with many responsibilities to take on ahead, as mother and as student. This further help me to feel enthusiastic with regard to my goals to achieve and complete the purpose of getting education from Australia.”[2] In the absence of medical evidence, such as evidence of the applicant attending counselling, or other credible evidence independent of the applicant and her spouse, that the applicant in August 2017 and thereafter was unable to apply her mind to managing the day-to-day affairs of her life, the Tribunal infers from the applicant’s quoted written statement, that after her mother arrived in Australia in August 2017, the applicant was enthusiastic about, and focused upon her goals and had sufficient presence of mind to feel that way, and that she was able to carry on accordingly.  The evidence given by the applicant and her spouse does not satisfy the Tribunal that the applicant’s stated feelings of enthusiasm to achieve her goals and complete her education in Australia, should not be taken literally by the Tribunal and treated as evidence that the applicant was unable to consistently focus her mind on and properly address matters of importance after her mother arrived in Australia in August 2017.

    [2] Written submissions submitted by the applicant and her spouse to the Tribunal for the purposes of this review.

21. The evidence satisfies the Tribunal that after the applicant’s mother arrived in Australia in August 2017, the applicant was enthusiastic about and focused upon achieving her goals, and continuing her studies; and, the evidence does not satisfy the Tribunal that the applicant was unable to focus on and manage the important aspects of her day to day life.

22. Consistent with the Tribunal’s view that from August 2017 the applicant had sufficient presence of mind to be able to competently attend what was important to her, the applicant travelled to her home country Bhutan, with her mother and baby, and was able to make all the necessary arrangements for her daughter to be cared for in Bhutan whilst the applicant returned to Australia in February 2018 for the purpose of undertaking a course of study. In that context the applicant applied for the Student visa that is now in contention. In these circumstances the Tribunal is satisfied the application for the Student visa was very much a focus of the applicant’s attention. The Tribunal is not persuaded that the stressors the applicant relies upon to explain her lack of presence of mind when she provided the impugned answer were so influential at the time she provided the answer, and submitted the application to the Department, that she was unable to properly understand the question to which she provided the false answer “no”, and that she gave the false answer because she misunderstood the question.

23. On balance, the Tribunal is satisfied the impugned answer “no” was given by the applicant, and there is evidence before the Tribunal that the applicant gave to the Minister, or a relevant assessing authority, being the Department, information that is a purposeful falsity, and that the impugned answer is false or misleading in a material particular as defined in PIC 4020; and, the answer is relevant to the criteria the Minister may consider when deciding whether to grant the Student visa pursuant to cl.500.212 of Schedule 2 to the Regulations.

24. Therefore, the applicant does not meet PIC 4020(1).

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

25. 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 of the Regulations), that justify the granting of the visa. The Tribunal 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.

26. 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.

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

28. Giving regard to the totality of the evidence of the applicant and Mr Yeshi, secondary applicant, and the written submissions they provided to the Department and the Tribunal, and the written submissions provided by the applicant’s representative, there is no evidence that satisfies the Tribunal of the existence of:

    §compelling circumstances that affect the interests of Australia, or

    §compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen,

    that justify the grant of the visa.

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

30. On the basis of the above, the applicant does not satisfy PIC 4020 for the purposes of cl.500.271(1).

31. The Tribunal also finds there is no evidence that satisfies the Tribunal that the primary applicant or the secondary applicant meet the criteria for any other subclass within the class of visa sought.

    DECISION

32. The Tribunal affirms the decision not to grant the applicants Student (Temporary) (Class TU) visas.

    Peter Haag
    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. 

    …