Majeed (Migration) - [2021] AATA 4722

Majeed (Migration) [2021] AATA 4722 (24 November 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Abid Majeed
CASE NUMBER:  2110327
HOME AFFAIRS REFERENCE(S):          BCC2020/1076726
MEMBER:Gabrielle Cullen
DATE:24 November 2021
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.

Statement made on 24 November 2021 at 9:33am

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – bogus document – education certificates – mental health issues – claims against education agent – threats of being deported – impact on employer – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 65
Migration Regulations 1994, Schedule 2 cl 500.217; Schedule 4, Public Interest Criterion 4020; r 1.03
CASES
Arora v MIBP [2016] FCAFC 35
Batra v MIAC [2013] FCA 274
Kaur v MIBP [2017] FCAFC 184
Mudiyanselage v MIAC [2012] FMCA 887
Plaintiff M64/2015 v MIBP [2015] HCA 50
Trivedi v MIBP [2014] FCAFC 42
Vyas v MIMAC [2013] FCCA 1226

STATEMENT 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 4 August 2021 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 9 March 2020. 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 the delegate found he provided with his application a bogus document within the meaning of s.5(1).
Specifically, the evidence including from the Department decision[1] indicates the applicant with his application for the visa on 9 March 2021 provided to the Department education certificates from the Federal Board of Intermediate and Secondary Education, Islamabad, bearing Roll No. 102040 of SSC Annual Examination 2004 and Roll No. 557089 of HSSC Annual Examination 2007. On 4 June 2020, a Departmental officer conducted investigations into these education documents and contacted the Board of Intermediate and Secondary Education who confirmed that the photocopies of certificates bearing Roll No.102040 of SSC Annual Examination 2004 and Roll No. 557089 of HSSC Annual Examination 2007 were bogus.
[1] Submitted with the Application for Review
The Department decision submitted by the applicant to the Tribunal records that on 24 June 2020 the applicant was requested to comment on the information in the above paragraph. The letter referred to PIC 4020 and raised with him that the provision of a bogus document may lead the Department to refuse his application. He was given 28 days to respond and granted an extension of time to respond.
In response the applicant provided the following to the Department.
I am writing this statement to comment and justify the false detail about my bogus academic history in my visa file.
Educational Background
I have a strong background in…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Majeed (Migration)

Details

AGLC: Majeed (Migration) [2021] AATA 4722
Case: [2021] AATA 4722
Decision Date: 24 November 2021

CaseChat Overview and Summary

The Administrative Appeals Tribunal (Cth) considered an appeal by Abid Majeed against the Department of Home Affairs' decision to refuse him a Student (Temporary) (Class TU) visa, subclass 500. The applicant had provided educational certificates that were found to be bogus, leading to the refusal.

The primary legal issue before the Tribunal was whether the applicant satisfied the criteria under paragraph 4020(1)(a) of Schedule 4 of the Migration Regulations 1994, which relates to the provision of bogus documents or false or misleading information in relation to a visa application. The Tribunal also considered the applicant's claims regarding mental health issues, threats from an education agent, and the impact of his potential deportation on his employer.

The Tribunal reasoned that the applicant had provided bogus educational documents in support of his visa application. Despite the applicant's explanations concerning the influence of an education agent and his mental health, the Tribunal found that these circumstances did not negate the fact that a bogus document was presented. The Tribunal applied the definition of a "bogus document" as provided in section 5 of the Migration Act 1958, which includes documents obtained because of a false or misleading statement. The Tribunal concluded that the applicant had failed to satisfy the requirements of PIC 4020.

Consequently, the Tribunal affirmed the decision of the Department of Home Affairs not to grant the applicant a Student (Temporary) (Class TU) visa.

Orders

Orders of the court

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Background

Background to the litigation

In response the applicant provided the following to the Department.I am writing this statement to comment and justify the false detail about my bogus academic history in my visa file.Educational BackgroundI have a strong background in the Electrical field, I did SSC in 2007 from i-14 school Islamabad (Copy of certificated attached) after which I got admission into Diploma of Associate Engineering in Electrical and completed in 2010 (copy attached). In 2013 I took admission in B tech Electrical in Preston University Islamabad campus. In 2015, I finished B-Tech, my head of department gave me option to get B-Tech pass degree or continue studies in B-Tech (Hons), I chose B-Tech (Hons) instead of B-Tech pass degree which I could not complete unfortunately. From June 2010 to Dec 2017 I worked with a company named A3 solutions which is located in Blue area Islamabad. I worked with most of international organisations. You can see in my experience letter (copy attached). It is humble request to you that to allow me to study in electrical field and allow me to acquire my qualification from an AustralianJustificationBefore I chose to come to Australia for studies, I met an education consultant who advised me that Australia would be the best option for studies. The Consultant told me that I would be able to get admission in University of Melbourne and he assured that he would do all the required paperwork for the admission and student visa as well. I trusted him and paid his consultancy service charges and provided him with all the documents he requested. He applied for my visa. I was only aware of my immi account login details; however, I was assured that I do not need to worry about anything as I was in good hands.In the following month, I received my student visa (Subclass 500) 4 January 2018.On 9 January 2018, I arrived in Australia, I landed in Sydney and stayed for one week in Sydney after that my friend took me to Melbourne in his car and arranged for my accommodation. Few days later, when I was crossing a street near my residence I was exposed to harassment from a number of students. They looked like they belonged to Indian background. I was mentally disturbed by that incident and I was forced to leave Melbourne as I did not feel safe there anymore. I called my friend who was in Sydney and informed him that I do not want to stay in Melbourne anymore I then moved back to Sydney. I was not feeling too well at that time, my friend took me to a doctor and after examining my condition Dr. Virk advised me to see a psychiatrist.In the meantime, I spoke to another friend about my classes and university he helped me to send an email to university regarding the change of my address and residence details. On 29 March 2018, I visited the psychiatrist and discussed my entire situation. After the incident in Melbourne, I made up my mind that I want to stay and study in Sydney. My Psychiatrist also understood my trauma and reasoning as to why I wanted to move to Sydney.On 16 April 2018, I applied for release of admission from University of Melbourne. Fe days later, I checked my uni portal and I noticed that my fee has been withdrawn, I was really surprised when I saw that as I did not expect a deduction as I had applied for a release. I don’t recall if I have a receipt for that transaction, but I have a proof showing that fee was withdrawn by account holder who paid my fee. I then contacted my agent to discuss this situation, he said that he had no information at that moment, however he assured me that he would find out and let me know that the earliest. I asked him to help me to get admission in Sydney, when he applied for my admission I reviewed the documents file and realised that it was totally different from my actual educational record, as I had already lost $10,000, this was another surprise which added to my mental stress.I asked him, as to why these documents are on my file as I was really furious at that moment. I told him that I will take legal action against him. He then threatened me that he would email immigration and get my visa cancelled and also trouble my family back home. I was scared and definitely not in the right mental state and believed whatever he said to me.I got enrolled into AIBT college to study ELICOS and Certificate III, Certificate IV and Advanced Diploma in Electrotechnology Electrician study. On 23 October 2019, I received an email from immigration department regarding the intent of cancellation of my visa due to downgrading of my study level. I consulted with my friends, who told me that I have to maintain my AQF level. I then applied for admission in The Institute of International studies (TIIS) and got enrolled into MPA. The Department accepted my justification and allowed me to continue with my studies. I started MPA classes as per college schedule.On 9 March 2020 I applied for extension of visa using same documents. I did not intend to mislead the Department of Home, but I was advised by the agent that changing my documents at this stage would result in a refusal straight away. I was stressed about the entire situation which resulted in depression and anxiety. I am not able to sleep well from a long time and I take medications in order to sleep. It was never my intention to mislead the Department of Home Affairs, the entire situation evolved as I was advised wrongly by the Consultant and later threatened by him as well.ConclusionIn conclusion, I was not aware of the bogus statement which was included in my initial visa application. By the time, I found out, it was too late as I was threatened that my visa would be cancelled, and my family back home would face troubles. I genuinely want to complete my studies in Australia and return to my home country. I have invested time and efforts into acquiring this qualification and I am not too far from its completion.

Evidence

Evidence Before The Court

On 30 October the applicant provided the following statement from Syed Faisal Qaiser who claims to be an Australian citizen.I am the Director and head of overall operations here at O'Leary Electrical, based in The PondsMr. Abid Majeed (Date of Birth: 15 December 1988 is a Pakistani citizenPlease be advised that Mr. Abid Majeed has been employed here with us in the capacity of Electrician since 28 January 2018We are pleased to inform that Abid Majeed is a highly skilled, consistent and responsible individual, having worked very hard to maintain his exceptional professional standardsThe whole management and fellow staff have always been highly appreciative of him due to his consistency, sincerity and dedication.As a result of his code of conduct and adeptness, he always seamlessly followed organization procedures, guidelines and directions.Having such a reliable and competent individual is a must for our business in current uncertain economic cycle.:As evident from last year, the onset of covid-19 pandemic and resulting economic downfall and restrictions have been a huge challenge for businesses all over the world.Abid Majeed is an integral part of our team since a considerable time period of around 3 and a half years now. His skill set, academic proficiency, technical ability and cordial relations with staff and management are crucial in out path.Not having Abid Majeed does in fact rob the business of the huge potential and growth possibilities.We firmly believe that this vital combination of professional competence and personal attributes is the right catalyst for our expansion process and smooth operations.Having such huge and critical responsibility, with respect to national economic activities, we feel that it is also not in best interest of the business to seek other replacements under such uncertain business climate and economic times.It is my sincere request towards the Department for acknowledging and considering our business and professional circumstances, in combination with the prevalent economic and market conditions.Kindly contact me on +61 41,8244393 if any further information is required.The applicant also provided a statement dated 27 October 2021 summarised as follows:·He has been a continuous support to Australian businesses and the Australian economy though his rigorous efforts, adaptability and professional proficiency.·Due to the unpresented events of last year accompanied by the impact of Covid 19 a huge number of business are close to closing down.·Due to the onset of Covid -19 there have been extremely high rates of vacancies, declining customer base and reduced profit margin to tackle.·He believes countless skilled and qualified workers such as himself are the key to bringing the downed economy to fresh highs and to help the economy recover.·He has been employed at O’Leary Electrical since 28 Janaury 2018 and he also possesses an Official Construction Occupation License for the occupation of electrician.·He is academically proficient having completed the AQF Certificate III in Electrotechnology Electrician and he outlined what he learned from studying the course.·His on-going employment, professional competence and personal attributes are a giant leap towards the path of economic recovery, especially in unsure economic times.·He has an on-going commitment to be a respectable and supportive member of the Australian community and respective and supportive attitude towards the Australian social values and cultural norms.CONSIDERATION OF CLAIMS AND EVIDENCE

Decision

Reasons for decision

On the basis of the above, the applicant does not satisfy PIC 4020 for the purposes of cl 500.217.DECISION The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.Gabrielle CullenMemberATTACHMENTMigration Regulations 1994Schedule 44020(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 1958s 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.…

Ratio Decidendi

Legal Principle Established

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