Li (Migration)

[2022] AATA 760

Li (Migration) [2022] AATA 760 (27 February 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Haohui Li

CASE NUMBER:  2113387

HOME AFFAIRS REFERENCE(S):          BCC2021/43409

MEMBER:Jennifer Cripps Watts

DATE:27 February 2022

PLACE OF DECISION:  Sydney

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

Statement made on 27 February 2022 at 4:20pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – bogus documents given with previous visa application – notarised copies of birth certificate, ID card and household register – department’s check with notary office found certificates not issued by them – reliance on agent – current enrolment not relevant to review – no claim of compassionate or compelling circumstances to waive criterion – consent to decision without hearing – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 5(1), 65

Migration Regulations 1994 (Cth), Schedule 2, cl 500.217, Schedule 4, criterion 4020(1)

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 14 September 2021 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s.65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 22 March 2021. The delegate refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl 500.217 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) because there applicant gave to the Minister a bogus document, as defined in the Act, in relation to a visa that the applicant held in the 12 months period before the student visa application that is the subject of this review was made.

3. On 1 October 2021 the applicant applied for merits review and provided the Tribunal with a copy of the primary decision record.  He was invited by the Tribunal, in writing, to attend a hearing scheduled on 16 March 2022.  The applicant responded to the invitation in writing, confirming that he would not take part in the hearing and that he consented to the Tribunal making a decision on the papers without taking further steps to allow him to appear.  The form was signed by the applicant and dated 9 February 2022.  In these circumstances, the scheduled hearing was cancelled.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. The issue in this review is whether the visa applicant meets Public Interest Criterion 4020 (PIC 4020) as required by cl 500.217 for the grant of the visa.

6. Broadly speaking, and relevant in this case, 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 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).

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 ‘bogus document’ is defined in s 5(1) of the Act as follows:

   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.

9. The requirement in PIC 4020(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: PIC 4020(3).  It also applies whether or not the document was provided by the applicant knowingly or unwittingly.

10. The documents in question (the documents), provided by the applicant when he made his previous subclass 500 student visa application in 2018, are:

    ·A Notarial Certificate (2018) Zhang Zheng Zi, No.1858 – Notarial Item:  Household Register (Hukou) issued to Li Haohui born on 23 November 1996, ID Card No. 350602199611232270.  Certificate issued Hong Xulan from the Zhangzhou City Public Office on 25 April 2018

    ·Notarial Certificate (20178) Zhang Zheng Zi, 1857 – Notarial Item:  Birth Certificate issued to Li Haohui born on 23 November 1996, Id Card No. 350602199611232270.  Certificate issued Hong Xulan from the Zhangzhou City Public Office on 25 April 2018

    ·ID Card No.350602199611232270 for Li Haohui born on 23 November 1996, issued by Zhangzhou City Public Security, Xiangcheng Branch

11. It is included in the primary decision record, consistent with information on the Department file, that on 8 July 2021 a Department officer investigated the genuineness of the documents.  They record that they contacted the Notary Office and spoke to a Notary Officer.  The Notary Officer examined a copy of the documents, which had been sent beforehand.  They confirmed, referring to the serial numbers on the notarial certificates, that the documents were not issued by their office in 2018 and that the serial numbers of the documents do not exist.

12. On the basis of the information obtained by the Departmental officer during their investigation in July 2021, on 12 August 2021 they wrote to the applicant inviting him to comment on these adverse findings; that is, that the documents appeared to be non-genuine.  The applicant was invited to respond within 28 days.  On 19 August 2021 the applicant and his migration agent assisting with the visa application responded in writing.

13. The applicant’s former migration agent provided a written submission, in response to the Department’s natural justice letter sent to the applicant on 12 August 2021, claiming that the applicant’s migration agent who had assisted the applicant with the student visa application granted in 2018 lodged the documents without the applicant’s consent.  It was not until 12 August 2021 that the applicant, when he received the Department’s natural justice letter, ‘knew that the former agent might have submitted bogus documents for him’.  It is included in the written submission that the applicant expressed regret and morse for his negligence, he made a mistake, but that he deserves a chance to be ‘forgiven and reformed’.  The applicant’s cultural background was cited a contributing factor; he had never been to Australia before, or experienced Australian ‘life, transportation, culture, customs, and even laws’.  It is claimed that the applicant had no knowledge of how to submit a visa application or of Australian laws, but that he had trusted the agent he used and had no intention of breaking any Australian laws.  Duplicates of these two documents have been provided to the Tribunal.

14. The applicant has provided the Tribunal with some additional documents, including:

    ·Windsor College, General English certificate 5 weeks to 3 May 2019

    ·Change of details form, signed by the applicant and dated 14 February 2022

    ·Confirmation of enrolment letter from Choice Business College dated 14 February 2022, Advance Diploma of Leadership and Management from 10 January 2022 to 18 December 2022, 49 weeks

15. This additional information is acknowledged, but is not relevant to the material issue on review. 

16. On 9 February 2022, the Tribunal sent the applicant a written invitation to attending a hearing scheduled on 16 March 2022.  The applicant has provided the above information, but has made no further written submission since responding to the Department’s natural justice letter in 2021 (noting that he has provided duplicates of the statements, as mentioned earlier).

17. The Tribunal is satisfied that a Department officer appears to have diligently and reliably verified the documents (above at paragraph 11), and recorded their findings from the investigation which was undertaken on 8 July 2021.   The written response and submission to the Department’s natural justice letter, from the applicant and his migration agent who previously assisted him in relation to the visa application, have been considered.

18. The Tribunal has considered the evidence and other relevant information, individually and cumulatively, and gives greater weight to the findings of the Department officer, following the investigation on 8 July 2021 relating to the documents, than to the statements and information provided by the applicant and his previous migration agent, in response to the applicant being informed in writing by the Department that the documents appeared to be non-genuine.

19. The Tribunal finds that there is evidence before the Tribunal that the applicant 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 within the meaning  in s.5(1).  And that the document was given in respect of a person in relation to the student visa the applicant held in the 12 months before the visa application that is the subject of this review was made.

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

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

21. 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 reg 1.03), that justify the granting of the visa.

22. There is no evidence before the Tribunal and the applicant has made no claim that there are 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 granting of the visa.

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

24. On the basis of the above, the applicant does not satisfy PIC 4020 for the purposes of cl 500.217.

25. There is no evidence before the Tribunal that the applicant meets the criteria for any other subclass within the class of visa sought.

    DECISION

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

    Jennifer Cripps Watts
    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.

    …