Mah (Migration)
[2023] AATA 3481
•28 September 2023
Mah (Migration) [2023] AATA 3481 (28 September 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT: Ms Siew Ching Mah
REPRESENTATIVE: Mr Xiao Wang (MARN: 1466166)
CASE NUMBER: 2302113
HOME AFFAIRS REFERENCE: BCC2021/366291
MEMBER:Lilly Mojsin
DATE:28 September 2023
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.
Statement made on 28 September 2023 at 11:53am
CATCHWORDS
MIGRATION –Student (Temporary) (Class TU) visa – subclass 500 (Student) visa – false or misleading information– 2nd applicant had a court conviction recorded against him – applicant didn’t disclose the conviction – not satisfied that the evidence and submissions advanced by the applicant demonstrate compelling circumstances –– failed to meet the criteria in PIC 4020(1) – requirements of PIC 4020 can not be waived – decision under review affirmedLEGISLATION
Migration Act 1958, ss 65, 499
Migration Regulations 1994, Schedule 2, cl 500.217CASES
Arora v MIBP [2016] FCAFC 35
Batra v MIAC [2013] FCA 274
Trivedi v MIBP [2014] FCAFC 42
Kaur v MIBP [2017] FCAFC 184STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW
This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 30 January 2023 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant applied for the visa on 11 March 2021. The delegate refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl 500.217(1) of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) because the delegate found that the applicant has provided, or caused to be provided, a bogus document or false or misleading information in relation to a visa which the applicant held in the 12 months before this visa application and therefore, the applicant did not meet Public Interest Criterion (PIC) 4020, subclause 4020(1).
The applicants appealed that decision to the Tribunal, annexing a copy of the Department decision to the review application.
The applicant appeared before the Tribunal on 21 September 2023 via Teams video to give evidence and present arguments.
The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments in the format which was utilised. The applicant confirmed that the applicant could hear and see the Tribunal Member and interpreter. The Tribunal was able to interact with the applicant and was able to maintain line of sight and appropriate communication throughout the proceedings.
The applicant was represented in relation to the review.
The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
The applicant was represented in relation to the review.
CONSIDERATION OF CLAIMS AND EVIDENCE
On 11/03/2021, the applicant lodged an application for a Student (Class TU Subclass 500) visa electronically via the internet, with Lee Chung Shun (date of birth: 14/03/1983) included as the 2nd applicant.
On the application form, the applicant answered ‘No’ to the following question:
‘Has any applicant ever been convicted of an offence in any country (including any conviction which is now removed from official records)?’
The 2nd applicant, Lee Chung Shun (date of birth: 14/03/1983) the applicant’s husband, had a court conviction recorded in Australia on 8 February 2021, prior to the lodgement of this application. The conviction has been verified by the National Police Check issued by the Australian Federal Police.
The applicant advised the Department, when requested to respond to a Natural Justice letter providing her with information about the conviction:
The main reason is in late 2020 my partner had known some friends outside and kept running out and stayed with them all the time. At the beginning I felt something was wrong, but I never thought he takes drugs, and he didn’t tell me he had been caught until I received AFP on 16 July 2021.'
The applicant submitted, to the Tribunal, a Decree Nisi dated 23 January 2023 and a Certificate IV in Marketing and Communication issued 13 February 2022.
At the Tribunal hearing the applicant said she came to Australia in December 2015 in order to study. She studied Marketing and Communication and completed a Diploma in Marketing and Communication on 10 September 2023. She would like to study more.
She divorced Lee Chung Shun in March 2023. The divorce application was made by her ex-husband as the marriage broke down in 2021. Her then husband returned to Malaysia in September 2021 because he finished his time in prison, he was in for 10-11 months. He was in prison from the beginning of 2021 for using a substance. He appeared in court multiple times. At the time she made the application for the visa her husband was in prison. She said she did not know what happened.
The Tribunal asked the applicant why she joined him in her application, and she said because he was her husband. It was put to her that when she filled out the visa application she knew he was in prison. She said that her migration agent informed her when the AFP certificate was brought to her attention. Asked why she did not know he had a criminal record she said that she does not know how to check the record and police did not come to check their house. It was put to her that she had previously stated that her husband went to prison for 10-11 months and she knew nothing about it. She said that when he was in prison he asked her to find a lawyer after a month in prison at the beginning of 2021. He had been missing for about a month. She found him a lawyer just once and she paid the lawyer. He told her that he was using drugs and that was the first time she found out he was using drugs. She did not visit him in prison. When he was not in prison he hit her.
The Tribunal asked the applicant if her husband was in prison and he had been beating her why she still applied for a visa for him. She repeated she did not know he was in prison when she made the application. The Tribunal put to her that she had stated he contacted her after a month in prison and she had stated he was imprisoned for 10-11 months.
The Tribunal put to the applicant that her evidence to the Tribunal is inconsistent with her evidence to the Department that “he didn’t tell me he had been caught until I received AFP on 16 July 2021”. The applicant responded that her migration agent told her he was in prison, she said it was a few times that he was in prison. She then said he was in prison just once and was caught by the police a few times.
It was explained that the requirements of PIC 4020 may be waived where there are compelling circumstances that affect the interests of Australia, or an Australian citizen, or an Australian permanent resident. She said that even when he is in Malaysia her husband has been harassing her and asking for money.
The adviser explained that the applicant lodged the application in 2021 and at that time the husband could not be found. She may have misunderstood.
CONSIDERATION OF CLAIMS AND EVIDENCE
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).
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.
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.
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.
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.
The applicant lodged an application to Department for a student visa on 11 March 2021 and she named her former husband as the 2nd applicant. A National Police Check issued by the Australian Federal Police indicated the 2nd applicant, her then spouse, had a court conviction recorded against him in Australia on 8 February 2021. The Tribunal accepts that the 2nd applicant had a conviction recorded on 8 February 2021, that was not declared by the applicant in her visa application.
The Tribunal does not accept that the applicant is a witness of truth. The applicant’s explanation for not disclosing the conviction, to the Department and to the Tribunal, was that she was not aware of her husband’s conviction until July 2021 as he was out of the house from late 2020, she had no contact with him and was unaware of his conviction. She also told the Tribunal that he had been imprisoned 10-11 months prior to his release in September 2021 and he had contacted her after being in prison for a month. When put to her that at the time she made the visa application she knew he was in prison, she said she did not know what happened.
As the Tribunal does not accept that applicant is a witness of truth, the Tribunal does not accept that the applicant was not aware that the 2nd applicant, her then husband, had a conviction recorded at the time of the visa application, on 11 March 2021.
The Tribunal is satisfied that there was an element of deception by the applicant as is necessary to attract the operation of the provision of PIC 4020.
The Tribunal finds that the response given to the Department is ‘information that is false or misleading in a material particular’ as defined in cl.4020(5), ie it is information that is false or misleading at the time it is given, and 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 in relation to the visa application or a visa held in the 12 months before the visa application was made. Therefore, the applicant does not meet cl.4020(1).
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.
The applicant told the Tribunal that her ex-husband, even when in Malaysia, continues to harass her for money. These are not circumstances that 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. The requirements of cl.4020(1) and (2) are not waived.
As the applicant does not satisfy PIC 4020 for the purposes of cl.500.217 and there is no evidence before the Tribunal to suggest that the applicant meets the equivalent provisions in other subclasses of the Student Class TU visa, the Tribunal must affirm the decision under review.
Given the above findings, the Tribunal finds that the criteria for the grant of a Subclass 500 (Student) visa are not met. The applicant does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa. Accordingly, the decision under review must be affirmed.
DECISION
The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.
Lilly Mojsin
MemberATTACHMENT
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.
…
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
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Statutory Interpretation
Legal Concepts
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Judicial Review
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Natural Justice
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Procedural Fairness
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Statutory Construction
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Jurisdiction
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