MAHARJAN v Minister for Immigration
[2016] FCCA 3029
•25 November 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MAHARJAN & ORS v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 3029 |
| Catchwords: MIGRATION – Application for judicial review of decision of Migration Review Tribunal (Tribunal) affirming decision that applicant did not satisfy PIC4020 – whether in finding that documents the applicant had submitted in support of a visa application were “bogus documents” the Tribunal directed its mind to whether the documents fell within one or more of the classes of bogus documents specified in s.97 of the Migration Act 1958 (Cth) – whether in finding the applicant had provided information that was false or misleading in a material particular the Tribunal turned its mind to whether the information it found was false or misleading was in fact false or misleading in a material particular – whether Tribunal assumed that any document given or caused to be given by the applicant in support of a visa application was a bogus document – whether in considering whether to waive PIC4020 the Tribunal failed to consider applicant’s submission that the bogus documents were created as a result of the fraud of a third party of which the applicant had no knowledge – whether in any event the material on which the applicant relied for claiming the bogus documents were created as a result of the fraud of a third party of which the applicant was not aware was capable of satisfying a reasonable decision maker that they disclosed compelling circumstances that affect the interests of Australia – no jurisdictional error. |
| Legislation: Migration Act 1958 (Cth), s.97 Migration Regulations 1994 (Cth), reg.1.03 |
| Cases cited: Chaudhary v Minister for Immigration and Ethnic Affairs (1994) 49 FCR 84 Talukder v Minister for Immigration & Citizenship [2009] FCA 916 Trivedi v Minister for Immigration and Border Protection [2014] FCAFC 42 |
| First Applicant: | SHRAMIKA MAHARJAN |
| Second Applicant: | RAJU MAHARJAN |
| Third Applicant: | SARAD MAHARJAN |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 2717 of 2014 |
| Judgment of: | Judge Manousaridis |
| Hearing date: | 20 October 2015 |
| Delivered at: | Sydney |
| Delivered on: | 25 November 2016 |
REPRESENTATION
| Counsel for the Applicant: | Mr J R Young |
| Solicitors for the Applicant: | Shamser Thapa & Associates |
| Counsel for the Respondents: | Mr T Reilly |
| Solicitors for the Respondents: | DLA Piper Australia |
ORDERS
The application is dismissed.
The Administrative Appeals Tribunal is substituted for the Migration Review Tribunal as the second respondent.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2717 of 2014
| SHRAMIKA MAHARJAN |
First Applicant
| RAJU MAHARJAN |
Second Applicant
| SARAD MAHARJAN |
Third Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This application for judicial review relates to the manner in which the second respondent (Tribunal) applied Pubic Interest Criterion 4020 (PIC4020) in affirming the decision of a delegate of the first respondent (Minister) not to grant the applicants Student (Temporary) (Class TU) visas (Student visa).
Background
The first applicant (applicant) applied for a Student visa on 11 March 2013. To have been entitled to such visa, the applicant had to satisfy, at the time of decision, cl.572.224(a) of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations). That clause required, among other things, the applicant satisfy Public Interest Criterion 4020. That is a reference to item 4020 of Part 1 of Schedule 4 to the Regulations.
Relevant to the matters I am required to determine in this application for judicial review are the following extracts from PIC4020:
(1)There is no evidence before the Minister that the applicant has given, or caused to be given, to the Minister, an officer, the Migration Review Tribunal, 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.
. . . .
(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.
Reg.1.03 defines “bogus document” as having the same meaning as in s.97 of the Migration Act 1958 (Cth) (Act). Section 97 of the Act, as it applied to the applicant’s application for review, defined “bogus document” as follows:
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.
In support of her application for a Student visa, the applicant submitted what purported to be a bank statement from Nabil Bank of an account apparently in the name of the applicant’s mother, who was the applicant’s sponsor for the Student visa. The bank statements were fraudulent.
By email sent on 9 July 2013 to the applicant’s agent, the delegate invited the applicant to comment on information set out in his email that suggested the bank statement was “non-genuine”.[1] The applicant’s agent responded by email sent on 5 August 2013.[2] The agent said the applicant was unaware of the fraud, and said that the applicant’s mother had engaged an agent to obtain documents in support of the applicant’s application for a Student visa, but the agent did not do the right thing.
[1] CB57-59
[2] CB60-61
The applicant’s agent provided a written submission to the Tribunal dated 27 August 2014 and 1 September 2014.[3] The agent submitted that neither the applicant’s mother, nor the applicant, was aware the agent “had provided them with fake documents”; that the applicant did not intentionally submit bogus documents to the Department of Immigration and Border Protection (Department); and that the agent “is under police investigation in Nepal”. The applicant repeated these matters at the hearing before the Tribunal.[4]
[3] CB187, [10]
[4] CB187, [11]
Tribunal’s decision
The Tribunal first noted that the requirement under PIC4020 not to provide a bogus document, or false or misleading information in a material particular, applies whether or not the Minister became aware of the bogus document or of the false or misleading information. The Tribunal also noted that PIC4020 applies whether or not the applicant provided the document knowingly or unwittingly.[5] In support of that proposition, the Tribunal referred to the Full Federal Court decision in Trivedi v Minister for Immigration and Border Protection.[6]
[5] CB186, [7]
[6] [2014] FCAFC 42
The Tribunal noted it had put to the applicant the matters the Tribunal considered indicated the bank statements were not genuine. The Tribunal’s reasons record that in March 2013 the applicant provided bank statements from Nepal that the Department considered to be “of a ‘non-genuine’ nature”; that immigration staff from the Australian High Commission in New Delhi contacted Nabil Bank; and that Nabil Bank verified the purported bank statements were fraudulent.[7] The Tribunal also recorded that it informed the applicant that the issue before the Tribunal “was whether [the applicant] had given or caused to be given, in respect of the visa application which is the subject of this review, a bogus document or information which was false or misleading, which the applicant had confirmed she had”.[8]
[7] CB187, [11]
[8] CB187, [12]
The Tribunal concluded the applicant did not satisfy PIC4020(1):[9]
Based on all the evidence before it and the considerations and reasoning above, the Tribunal finds that there is evidence that the applicant has given, or caused to be given, to the Department a ‘bogus document’ . . . and ‘information that is false or misleading in a material particular’ in respect of the visa application which is the subject of this review.
[9] CB187, [13]
The Tribunal then considered whether the requirements of PIC4020(1) and PIC4020(2) should be waived on the grounds set out in PIC4020(4). The Tribunal recorded that the applicant’s adviser submitted there were compelling circumstances that affect the interests of Australia, namely, the applicant has been a genuine student in Australia since 2008, she had successfully completed a number of courses, and she was currently enrolled in colleges. The adviser submitted that it is in the public interest of Australia to continue to promote the “lucrative industry” of providing education services to international students in Australia.[10]
[10] CB188, [15]
The Tribunal did not accept the adviser’s submission. Although it acknowledged that, as a fee-paying student, the applicant may bring value to the Australian education market, the Tribunal did not consider that factor rose to the level of compelling circumstances that affected the interests of Australia, or that it affected the interests of an Australian citizen, an Australian permanent resident, or an eligible New Zealand citizen.[11] The Tribunal, therefore, concluded PIC4020 should not be waived.
[11] CB188, [16]
Grounds of application
The applicants raise five grounds of application in their amended application.
Ground 1
The first ground of review is as follows:
The Second Respondent made jurisdictional error by finding that the applicant had given or caused to be given information that was false or misleading in a material particular without making any finding as to:
a)The falsity or misleading nature of the information
b)The materiality of any information it found to be false or misleading
The applicant submits the “jurisdictional task” of the Tribunal was to make necessary findings; that the necessary findings the Tribunal had to make included at least one of the three “quite different alternatives” by which a document will be a “bogus document” within the meaning of s.97 of the Act; yet the Tribunal made no such finding.[12] The Tribunal simply concluded the purported bank statements were bogus documents.
[12] Applicant’s Written Submissions, [10]-[12]
Before the Tribunal can be satisfied there is no evidence an applicant has given a bogus document, it has to be satisfied there is some evidence in relation to a document that is sufficiently probative to lead to the conclusion that the document is bogus for any one of the three reasons specified in s.97 of the Act.[13] That at the very least requires the Tribunal be aware of the existence of the document said to be bogus, and of information that could reasonably be characterised as evidence that is sufficiently probative to lead to the conclusion that the document is bogus for any one of the three reasons specified in s.97 of the Act. If, therefore, a court on judicial review is satisfied the Tribunal was aware of evidence that was sufficiently probative to lead to the conclusion that a document was bogus for one of the three reasons specified in s.97 of the Act, that the Tribunal was aware of the definition of “bogus document” contained in s.97 of the Act, and the Tribunal concluded, on the basis of that evidence, that the document was a bogus document, the court would, at least in most cases, be entitled to infer the Tribunal was satisfied that evidence was sufficiently probative to support the conclusion that the document was bogus, and that it was so satisfied for one or more of the reasons specified in s.97. That the Tribunal may have so concluded without identifying for which of the three reasons specified in s.97 of the Act the document was bogus, does not prevent the Court from inferring that the Tribunal addressed its mind to s.97 of the Act.
[13] Talukder v Minister for Immigration & Citizenship [2009] FCA 916 (Edmonds J)
In the case before me, the Tribunal was aware of s.97 of the Act; it identified evidence that unarguably was sufficiently probative to lead to the conclusion that the purported bank statements were counterfeit; and the Tribunal concluded that the purported bank statements were bogus documents. On the basis of these matters, it may reasonably be inferred, and I do infer, that, in concluding the purported bank statements were bogus documents, the Tribunal directed its mind to the three ways specified in s.97 of the Act in which the purported bank statements could be a “bogus document”, and in particular, to whether the purported bank statements were counterfeit.
The applicant further submitted that the Tribunal was required, but failed to make a finding about, the materiality of the false information conveyed by the purported bank statements. The applicant submits it was necessary for the Tribunal to make such finding because the applicant’s agent had submitted to the Tribunal that the criterion in support of which the applicant had provided the purported bank statements could have been satisfied by another means, namely, by providing proof of the existence of a bank loan. The agent submitted to the Tribunal evidence of a loan approval from the same Nabil Bank.[14]
[14] CB166-167
That the applicant may have been able to satisfy the relevant criteria through means different from the means by which she in fact sought to satisfy the criterion, namely, the submission of the purported bank statements, does not deny the purported bank statements the character of being relevant to the criteria the Minister or his delegate was required to consider. The falsity of the information conveyed by the purported bank statements, therefore, was and remained a falsity in a material respect within the meaning of PIC4020(5). In these circumstances, given:
a)the Tribunal was aware that under PIC4020(1) it was a requirement that an applicant not provide information that is false or misleading in a material particular;
b)the Tribunal was aware that the purported bank statements were relevant to a criterion the Minister had to consider in relation to the applicant’s application for a Student visa, and hence material to whether the Student visa should be granted;
c)the Tribunal identified evidence that was unarguably sufficiently probative to support the conclusion that the purported bank accounts were information that was false or misleading; and
d)the Tribunal found the information was false and misleading in a material particular,
it is reasonable to infer, and I do infer, that, in concluding the purported bank statements were false or misleading in a material particular, the Tribunal directed its mind, not only to whether the bank accounts were false or misleading, but also to whether they were relevant to the criteria the Minister was required to consider, and hence, to whether the information conveyed by the purported bank statements was misleading in a material particular.
The second answer to the applicant’s submission is that the Tribunal had also concluded that the purported bank statements were bogus documents. That by itself meant that the applicant did not satisfy PIC4020(1).
Ground 1, therefore, fails.
Ground 2
Ground 2 is as follows:
The Second Respondent made jurisdictional error by assuming without any relevant finding as required by s368 of the Migration Act 1958 that any document given or caused to be given by the Applicant to the Department was a bogus document.
This ground cannot succeed. The Tribunal did not make the assumption claimed in the ground. As I have already noted, the Tribunal identified in its reasons the inquiries that had been made of Nabil Bank, and the response of that bank which had verified the purported bank statements were fraudulent. Further, the Tribunal concluded the purported bank statements were bogus documents based on “all the evidence before it”. That included evidence that Nabil Bank had verified the purported bank statements to be fraudulent. That represents a finding made on the basis of evidence, not an assumption.
Ground 2, therefore, fails.
Ground 3
Ground 3 is as follows:
The Second Respondent made jurisdictional error by failing to consider whether fraud by a third party vitiated the visa application process of that fraud had been perpetrated on the Applicant as well as on the First and The Second Respondents.
The applicant did not, either in her written submissions, or in her counsel’s oral submissions, address this ground. It is not apparent, therefore, why the applicant claims the Tribunal ought to have considered whether the fraud involved in the submission by the applicant’s agent of fraudulent bank statements also constituted a fraud against the applicant. Such inquiry would not have been relevant to whether the fraudulent bank statements were “bogus documents”. As the Full Federal Court held in Trivedi, a document will be counterfeit within the meaning of s.97 of the Act if the document is purposely untrue, even if the visa applicant was unaware the information was purposely untrue.[15] Nor would such inquiry have ben relevant to determining whether the purported bank statements conveyed information that was false or misleading in a material respect.
[15] [2014] FCAFC 42 at [54] (Buchanan J; Allsop CJ and Rangiah J agreeing)
Ground 3, therefore, also fails.
Ground 4
Ground 4 formally challenges the correctness of the Full Court’s decision in Trivedi. The applicant accepts that this ground cannot succeed in the light of Trivedi.[16]
[16] Applicant’s Written Submissions, [9]
Ground 5
Ground 5 is as follows:
The Second Respondent made jurisdictional error by failing to take into account a relevant consideration in relation to the issue of waiver of PIC 4020 under PIC 4020(4)(a).
Particulars
a) The Second Respondent failed to take into account any consideration of whether the Applicant (and/or her mother) were complicit or innocent in relation to the provision to the First Respondent of documents found by the Second Respondent to engage PIC 4020(1).
The applicant submits she, through her agent, made a number of submissions in support of the Tribunal waiving PIC4020 which the Tribunal ignored.[17] The matters on which the applicant relied were the assertion the applicant did not intentionally submit the bogus documents; the assertion that the agent who had submitted the documents is under police investigation; the applicant spent a considerable amount of money on tuition fees; the existence of another Tribunal decision in which a visa applicant was held not to have provided a bogus document, even though she signed the application for the relevant visa;[18] the assertion that the applicant, although involved in the visa application, was not involved at all in the preparation of the financial documents; and she genuinely believed the documents were genuine.
[17] CB146-147
[18] [2013] MRTA 3315
The applicant relies on the decision of the Full Federal Court in Chaudhary v Minister for Immigration and Ethnic Affairs.[19] The principal issue in that case was whether the administrative decision maker, in determining whether to grant permanent residence visas to a family for whom there existed strong compassionate or humanitarian grounds for the granting of such visas, made an error of law by applying a notion of Australia’s interests that was based solely on material burden on the Australian community. The Full Federal Court held the decision-maker erred because the notion of the national interest was capable of extending beyond the avoidance of a material burden.
[19] (1994) 49 FCR 84
The Minister, on the other hand, submits that, on the material that was before it, the Tribunal could not reasonably have found there were “compelling circumstances that affect the interests of Australia”, or that there were “compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen”.
It is true, as the applicant submits, that the Tribunal did not refer to the submissions for waiver contained in the applicant’s agent’s written submissions dated 27 August 2014 that relied on the applicant’s assertions that she did not prepare, and was not involved in preparing the bogus documents. The Tribunal did refer, however, to the applicant’s (agent’s) response of 5 August 2013 in which the applicant said that “her mother was a busy working woman and did not have details of when the account was opened or the funds available in the account for her to use; nor had any idea of the documents that were submitted to the Department, as they were submitted by an agent whom she paid”.[20] The applicant’s adviser’s submission of 27 August 2014 only repeated the applicant’s explanation the agent previously communicated to the Department in his email of 5 August 2013. It is nevertheless true, however, the Tribunal did not expressly deal with the applicant’s explanation when considering whether the Tribunal should waive PIC4020(1). The question that arises is whether from that fact I should infer the Tribunal did not take into account or otherwise consider this part of the applicant’s submissions.
[20] CB186, last bullet point
That the Tribunal did not expressly consider this part of the applicant’s agent’s submissions does not necessarily mean the Tribunal did not consider the applicant’s assertions about the fraud and her ignorance of it. It is possible the Tribunal did not do anything beyond recording the applicant’s assertions about this because it considered the assertions to be unworthy of serious consideration. It is also possible, however, that the Tribunal did not expressly deal with this part of the applicant’s submissions because the Tribunal considered that the applicant’s assertions, and the matters on which she relied for those assertions, were lacking in any detail, and were incapable of reasonably being given any credit. I am not satisfied that it was not for these reasons the Tribunal did not consider the applicant’s assertion.
The first occasion, on the evidence that is before me, on which the applicant gives an explanation of the fraudulent bank statements is the email from the applicant’s agent sent to the delegate on 5 August 2013.[21] This is the explanation the agent gave:[22]
My client is in Australia and she requested to sponsor who is her mother [GM]. As the information I received from my client . . . her mother [GM] is really busy person because of her job with employer and household job as well. Her husband is also busy person because of work and her only one daughter who is also in Australia. [GM] had not enough time to manage these things in Nepaland she gave to another person who used to work as agent for this type of job and used to take service fee. [GM] gave this job to Mr [SS] with his service fee whose mobile number is … including Nabil Bank detail information and other supportive documents from Nepal Investment Bank. Agent [SS] took all bank statements of Nepal Investment Bank and made sure to [GM] that she didn’t have to worry at all because he could arrange Bank balance certificate and statement from Nabil Bank as per the request of case officer. My client further stated that [GM] trusted agent but agent didn’t do the right thing though everything could be in right way. [GM] had provided the Bank statement from Nepal Investment Bank for more than 6 months transactions and some amounts which were withdrawn from Nepal Investment Bank were deposited at Nabil Bank.
[21] CB60-61
[22] CB60
What is missing from this explanation is any information about the communications between the applicant’s agent and the applicant and any other person in relation to the provision of the fraudulent bank statements. In that regard, the following chronology is relevant.
a)The applicant lodged her application for the Student visa on 11 March 2013.[23] The application form stated the applicant had a migration agent.
b)On 12 March 2013 the Department sent to the applicant’s migration agent an email setting out information the applicant was required to provide to the Department.[24] The email stated, among other things, that all “applicants must demonstrate at least a 3 month saving history of their funds . . . calculated for the 3 month period immediately before the lodgement of the application on 11/03/2013”.[25]
c)By email sent on 21 March 2013, the agent sent to the Department the fraudulent bank statements.[26]
[23] CB1
[24] CB38
[25] CB41
[26] CB44-56
Any credible explanation about how the applicant’s migration agent came to provide to the Department fraudulent bank statements would have had to give details of the chain of communication flowing in two directions. The first would be the chain of communication beginning with the migration agent and ending with the person who was requested to provide bank statements and who provided the fraudulent banks statements. The second flow of communication would be the chain beginning with the person who provided the fraudulent bank statements and ending with the applicant’s migration agent who provided the fraudulent bank statements to the Department. The submissions the applicant’s agent gave did not provide any such details. The explanation given by the applicant suggests the errant agent in Nepal was aware of the Department’s request for financial information. Yet there was no attempt to show how the Department’s request found its way from the applicant’s migration agent in Sydney to the errant agent in Nepal; or to whom the errant agent first provided the fraudulent bank statements and the circumstances in which they were communicated by the errant agent to that person, and how, from that person, the fraudulent bank statements found their way to the applicant’s migration agent in Sydney.
Also relevant is the evidence the applicant, through her agent, gave to the Tribunal, over one year later, to support her assertion that the purported bank statements had been prepared without her knowledge by an errant agent in Nepal. In his submission to the Tribunal dated 27 August 2014, the applicant’s agent submitted the “agent who arranged the documents is under police investigation in Nepal. It has been an ongoing problem, which is being investigated by the concerned authorities in Nepal. Please see the attached”.[27] The attachments are two documents, both of which are translated into English.
[27] CB146, [1]
The first document is purportedly made by the applicant’s mother and is dated 18 August 2014.[28] That is almost 17 months after the applicant’s agent provided to the Department the purported bank statements. The document is addressed to the “Chief District Officer District Administration Office Lalitpur” and states:
In relation of the matter who declared his name as [SS] who declared his home at Bhaktaput but saying his [sic] is residing at Kupondole, age 27, who is holding the phone number . . . and presently working in NABIL Bank, Durbar Marg Kathmandu made a forgery document after taking NRS 45,000.00 in the name of my daughter & son-in-law and when I came to know about this forgery activities then I tried to talk to him about his wrong doing, then he became angry and used bad words and threatened me to kill so I would like to lodge this complaint application to your office. Mr [SS] used his phone and threatened me to kill thus I would like your office to ask him to be present in your office and I request your office to take necessary action so that I can be protected and I would like you to request to give me the proper justice. All the above written statement is true.
[28] CB172
There are a number of matters that are apparent from this document. First, the gist of the complaint is not so much about the errant agent’s having forged documents; the complaint is about the errant agent threatening to kill the applicant’s mother because, at some unspecified time, the applicant’s mother tried to talk about the errant agent’s wrongdoing. Second, the complaint does not identify what it is the applicant’s mother discussed with the agent about his wrong doing. Third, the letter does not identify the forgery the applicant’s mother claims the agent committed, and it does not contain any information about the circumstances in which the forgery occurred. If the letter is taken to be a complaint about the agent having forged bank statements, it does not state when the applicant’s mother approached the errant agent, what instructions and information the applicant’s mother gave the errant agent, what information the errant agent gave to the applicant’s mother, or any evidence of payment by the applicant’s mother for the services the errant agent provided. Fourth, the letter says that as soon as the applicant’s mother came to know of the forgery activities, she spoke to the errant agent about it. The letter does not say when the applicant’s mother became aware of the fraud. It may reasonably be inferred from the agent’s email of 5 August 2013 to the Department that the applicant’s mother had by that time become aware of the fraud, if it had occurred. If that is so, no explanation is apparent from the letter why the applicant’s mother waited for over one year to make the complaint, which was nine days before the applicant’s agent prepared his submissions to the Tribunal dated 27 August 2014. In short, the complaint is not reasonably capable of being given any credit.
The second document referred to in the applicant’s agent submissions of 27 August 2014 purported to be a letter dated 18 August 2014 from the Police Chief to “Municipality Police Office Pulchowk, Lalitpur”, and states as follows:[29]
In relation to the matter of an Original Application which has been attached with this letter, as per the instruction received from District Administration Office about the letter with registration number 920 dated 2071/05/12BS (28th August 2014 AD) which requests the necessary action to be carried out for Mr [SS], who presently resides in your district, he needs to be called at your office and be investigated and the report to be submitted to this office as soon as possible.
[29] CB174
Given that the initial complaint is not capable of reasonably being given any credibility, none can be given to this second document. That is, it is not reasonably open to infer from the nature of the complaint that a letter of the nature of the second document would have been prepared.
In my opinion, given the inherent lack of credibility of the applicant’s assertions that the fraudulent bank statements were the work of an errant agent the applicant’s mother had engaged in Nepal, and the inherent lack of credibility of the means by which the applicant sought to support her assertions, I am not prepared to accept the Tribunal did not consider the applicant’s assertions and the matters on which she relied to support them as a ground for the Tribunal waiving PIC4020.
If I am incorrect in not being prepared to accept the Tribunal did not consider the applicant’s explanation for the fraud when considering whether to waive PIC4020(1), is the Minister correct in his submission that it would not reasonably have been open to the Tribunal to conclude there were “compelling circumstances that affect the interests of Australia”? That question must be answered, not on the assumption that the applicant’s assertions about the fraud were true, but on the basis of whether, given the assertions the applicant made, and the matters on which the applicant relied, it was reasonably open to the Tribunal to conclude there were compelling circumstances that affected the interests of Australia. In my opinion, it was not reasonably open to the Tribunal to have so concluded.
For the reasons I have already given, the applicant’s assertions, and the matters on which the applicant relied for those assertions, were not reasonably capable of satisfying a reasonable decision maker in the position of the Tribunal that the fraud had been committed by an errant agent, without the knowledge of the applicant. In the absence of the Tribunal having before it material on the basis of which it could reasonably have found that the fraud was committed by a third party without the knowledge of the applicant, it is impossible to imagine the Tribunal could rationally have concluded there were compelling circumstances that affected the interests of Australia.
Nor was it reasonably open to the Tribunal to have concluded there exist compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen. There is nothing in the material that was before the Tribunal that could indicate that the interests of an Australian citizen, an Australian permanent resident, or an eligible New Zealand citizen, could have been impacted by the Tribunal’s decision not to grant the Student visa.
Ground 5, therefore also fails.
Disposition
I propose to order that the application be dismissed. I also propose to order that the Administrative Appeals Tribunal be substituted for the Tribunal as the second respondent.
I certify that the preceding forty-eight (48) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis
Date: 25 November 2016
3
5