LIM (Migration)

[2017] AATA 1921

LIM (Migration) [2017] AATA 1921 (12 October 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms SHEI YIN LIM
Mr Sing Wee Low

CASE NUMBER:  1700982

DIBP REFERENCE(S):  BCC2016/2803057

MEMBER:Wendy Banfield

DATE:12 October 2017

PLACE OF DECISION:  Sydney

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

Statement made on 12 October 2017 at 9:25pm

CATCHWORDS

Migration – Student (Temporary) (Class TU) – Subclass 500 (Student) – Bogus documents – False or misleading statements – Conflicting statements

LEGISLATION

Migration Act 1958, ss 5(1), 65

Migration Regulations 1994, r 1.03, Schedule 2, cl 500.217, Schedule 4, cl 4020

CASES

Arora v MIBP [2016] FCAFC 35

Batra v MIAC [2013] FCA 274

Trivedi v MIBP [2014] FCAFC 42

Plaintiff M64/2015 v MIBP [2015] HCA 50

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 16 January 2017 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 24 August 2016. The delegate refused to grant the visas on the basis that the first named applicant (the applicant) did not satisfy the requirements of cl.500.217 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because it was determined bogus documents had been provided in support of the application.

   Background

3. The applicant is a citizen of China aged 28, the secondary applicant is her husband and is currently

4. The applicants appeared before the Tribunal on 10 July 2017 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

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

   The hearing

6. The Tribunal discussed with the applicant the Department’s findings that some of the documents provided with her application were non-genuine. In particular, documents from an education provider for a Diploma and Advanced Diploma of Management said to have been undertaken by the secondary applicant.  The Tribunal noted the Department had found the secondary applicant did not commence the Advanced Diploma as indicated in the documents, seemingly because he had not completed the first Diploma.

7. The applicant said her husband’s results were low but he had attended the college, and had also looked for a part-time job. She said he did start the Diploma of Management in 2014 but after some time he did not return because he could not follow the course. The Tribunal asked how long he attended and the applicant said he went to college for one year. She said he did complete the course and attempted the final exams, however, he failed them.

8. Regarding the Advanced Diploma, the Tribunal asked the applicant whether the secondary applicant studied between July 2015 and 2016. She said he did not go but she went to study English. The applicant claimed the college had not given her husband any notice that he should begin his studies. She confirmed that her husband did not finish the Advanced Diploma of Management, and when asked, she said he did not start it either.

9. As the applicant appeared to be confused, the Tribunal explained again why the Department had refused her visa application. She reiterated that the secondary applicant finished the Diploma of Management but had not started the Advanced Diploma. She said she had submitted evidence of his completion. The Tribunal put it the applicant that she had also submitted a letter indicating her husband had been attending the Advanced Diploma with an 82% attendance record. The applicant was advised the Department had information that he never started that course.

10. The applicant claimed the documents in question were submitted by her previous agent and she did not check them, however, she said they had come from the college.

11. The Tribunal then spoke to the secondary applicant, Sing Wee Low. The Tribunal explained to the secondary applicant why Ms Lim’s visa had been refused. Mr Low said he did not have the courage to attend the college, however, by then he said his wife wanted to study. He claimed he asked his agent if he could renew his visa as he had paid the tuition fee. He said he had no idea his CoE had been cancelled. The Tribunal asked the secondary applicant where the letters came from that stated he had completed the Diploma of Management and was studying for the Advanced Diploma. He claimed the college gave it to him and he handed it to his agent. The Tribunal asked the applicant whether he ever started and attended classes for the Advanced Diploma and he said he did not.

12. The primary applicant was then asked about her response to the Department’s invitation to comment on adverse information in which she had claimed the secondary applicant had continued to attend classes but lost his motivation. The applicant said she had provided the correct information to her (former) agent, that her husband had never commenced the Advanced Diploma. The applicant was then asked to make submissions about the Department’s findings that bogus documents had been submitted. The secondary applicant said he did not know what had happened but he had hoped his wife could study. He said he had just asked his previous agent to make the application for Ms Lim.

13. The secondary applicant said it was him that obtained the letters about his studies from the college. He was asked why the documents gave his attendance at the Advanced Diploma at 82% if he did not commence the course and he said he just handed the documents to his agent to apply for his wife. He claimed he did not know what was happening and said all the problems came from his previous agent. When asked if the former agent changed the documents, he said yes, but claimed he had not been aware of false information until contacted by the Department. The Tribunal put it to the secondary applicant that the primary applicant had told the Department he had started the Advanced Diploma but lost motivation. It was claimed the agent had created the substance of the letter.

14. The Tribunal invited the applicants to make submissions in relation to compassionate or compelling circumstances. The applicant asked that she be given another opportunity to have a visa. The secondary applicant also asked for an opportunity for his wife to study.

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 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: cl.4020(1); and

    ·the applicant and each member of the family unit has not been refused a visa because of a failure to satisfy cl.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: cl.4020(2) and (2AA); and

    ·the applicant satisfies the Minister as to his or her identity: cl.4020(2A); and

    ·neither the applicant nor any family unit member has been refused a visa because of a failure to satisfy cl.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: cl.4020(2B) and (2BA).

17. The requirements in cl.4020(1) and (2) can be waived if there are certain compelling or compassionate reasons justifying the granting of the visa: cl.4020(4). However, this waiver does not apply to the identity requirements in cl.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 cl.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 cl.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 cl.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: cl.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. The Tribunal has considered the evidence as a whole when assessing whether bogus documents were given, and in deciding whether the requirements of cl.4020 should be waived.

22. The primary applicant explained that her husband, the secondary applicant had undertaken the Diploma course he was enrolled in and had attempted the final exams but had not been successful. She said he had not commenced the Advanced Diploma because he had not been told to by the education provider. The parties both claimed the secondary applicant lost motivation and did not have the courage to start the advanced course. When the Tribunal put it to the applicant that documents submitted in support of her application indicated Mr Low had attended the Advanced Diploma course with an 82% attendance record, she claimed the college documents were submitted to a former migration agent who submitted them to the Department.

23. The secondary applicant stated the problems were because of him but also that the former migration agent had been responsible for the documents. He claimed he had not been aware of any issue with the documents until contacted by the Department but said that he was the one who had obtained them from the education provider. Regarding her response to the Department about the adverse information, the primary applicant declared her former representative wrote the substance of the response for her. This included claiming that the secondary applicant began studying the Advanced Diploma and commenced classes but he lost motivation and was depressed.

24. The Tribunal is satisfied the primary applicant knowingly provided false and misleading information/bogus documents in her student visa application. She was aware her husband, the secondary applicant had not commenced his Advanced Diploma course as he had not successfully completed his initial Diploma. Despite this, documents were submitted that indicated the secondary applicant did complete his first Diploma and at the time of application, had been attending classes for the Advanced Diploma. The parties provided some explanation or suggestion of what might have occurred; however, the Tribunal found the evidence to be vague and is not satisfied a former migration agent submitted fraudulent documents without the knowledge of the applicant.

25. For these reasons, the applicant does not meet cl.4020(1).

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

26. The requirements of cl.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.

27. 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.

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

29. The applicants requested that the Tribunal give the primary applicant another chance to study; however, neither applicant is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen. No submissions were made in relation to any person in that category or in regards to the interests of Australia.

30. The Tribunal has assessed the claims made by the parties and has also had regard to Departmental policy in considering the waiver of cl.4020(1). The Tribunal is not satisfied the evidence discloses any compelling circumstances that affect the interests of Australia, or any compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen that justifies the granting of the visa. Therefore the requirements of cl.4020(1) should not be waived.

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

32. There is no evidence the visa applicant meets the criteria for any other subclass within the class of visa sought.

    DECISION

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

    Wendy Banfield
    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. 

    …