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

1. 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).

2. 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).

3. 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

4. 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.

5. 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 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 Australian

   Justification

   Before 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.

   Conclusion

   In 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.

6. The applicant applied to the Tribunal via his representative for review of the delegate’s decision and attached the Department decision.

7. On 11 October 2021 the applicant’s representative submitted an email containing the following statement by the applicant.

   I am very thankful towards the Tribunal for this opportunity to provide this supporting statement in support of my AAT application. My visa application for a Student (Temporary) (class TU) (subclass 500) visa was refused on 4 August 2021.

   The visa application was refused on the grounds that the relevant criteria set out in the Migration Act and the Migration Regulations was not satisfied. The case officer was not satisfied that clause 500.217 in Schedule 2 of the Migration Regulations was satisfied. The decision maker, in their email, also pointed out that in order for grant of the pertaining visa, I as the applicant must satisfy Public Interest Criterion (PIC) 4020 contained in clause 4020 in Schedule 4 of the Migration Regulations 1994, which is a requirement of Regulation Clause 500.217.

   It was entirely to my surprise and shock when I came across the fact that there was evidence before the respective Member, the Department and the Minister that I as an applicant provided, or caused to be provided, a bogus document or false or misleading information in relation to this visa application. I was deeply shocked by this development and was saddened by the fact that my previous migration agent’s sheer negligence and carelessness has brought such turbulent circumstances for me which have my future hanging in the balance.

   As a matter of fact, I have been a very honest, diligent and a hardworking student since beginning. This is why despite of studying to the level of Bachelors (Bachelor of Technology) in my home country Pakistan, I was very excited and thrilled at the prospects of studying in Australia. The migration agent who guided me initially made me aware of peculiarities and advantages of the Australian education system.

   I was amazed to discover how Australia has emerged as a leading global provider of quality education. The well accredited and recognized institutions, advanced and integrated education system which offers a diverse range of accredited and professional/practical courses across various domains. Complemented by an exclusive mix of cultural diversity, friendly natives and a high quality of education, such a productive and supportive learning environment with excellent opportunities and support services is what attracts countless international students to Australian shores.

   Moreover as compared to my home country Pakistan, Australia is a highly developed economy. The industrial potential and academic exposure is far greater than those of developing countries. This also creates way for globally recognised and industry oriented academic qualifications as AQF qualifications are highly focussed on practical skills and expertise. It would help me upgrade in my desired business back home in Pakistan.

   High hopes of acquiring a better academic experience, international level concepts and ideologies is what made me go forward with this decision.

   Unfortunately, I was not aware that the journey ahead would be a very turbulent one.

   Soon after having arrived here in Melbourne, I experienced discrimination and racism from a number of students who appeared to be belonging to Indian background. Such harassment and confrontation, in conjunction with various social-economic factors started to pose risks to both physical and mental health of mine.

   Support from friends and medical consultations and therapies did have a positive effect on me. Still, I relocated to Sydney as I wanted to erase that chapter of my life in Melbourne due to immense stress and trauma.

   It was after this traumatic episode that I was dealt with further blows. After having applied in University of Melbourne, I was shocked to discover after some days that my fees had been withdrawn. It appeared as if there was no boundary to my shock and despair. I immediately contacted my migration agent who did assure me to sort the matter immediately, but till date I have been provided with no information of this monetary fraud of AUD 10,000 which further aggravated my mental stress.

   Furthermore, when I reviewed the documents and statements pertaining to my visa application, I was very disturbed to realise discrepancy in the documents. The provided documents which contained education certificates bearing Roll No. 102040 of SSC Annual Examination 2004 and Roll No. 557089 of HSSC Annual Examination 2007 were bearing wrong serial number/role number and were in fact misleading documents.

   When I queried the discrepancy in my educational records with my migration agent, instead of aiding me in my testing times, I encountered a strangely indifferent and cold attitude of my migration agent towards the whole matter. I was threatened by my migration agent that they would use their influence to not only make my life a living hell in Australian community but would also have my visa cancelled and cause trouble for the family back home as well.

   Being here all on my own and away from family, I was very fearful of these events and was scared to the core. I have been highly stressed ever since and the resulting depression and anxiety is proving to be a barrier to my genuine progress.

   I was also informed that if I proceeded with changing the educational documents now, I would face immediate cancellation of visa and subsequent deportation. My uncertain future, potential threat to my own and my family’s life and sheer greed and deception which my migration displayed quashed my hopes of a positive future and put me in such a miserable state of mind that I was not able to take any firm decision.

   I as an immigrant and international student had been trying to start a new life in Australia, but I have been left thousands of dollars out of pocket and at risk of uncertain future following such deceptive actions of my migration agent, who is a serious risk to countless aspirants like me.

   I am providing the respective department and Tribunal with the original and bona-fide documents which would surely show my genuine stature.

   As a sincere student and a genuine visa applicant, I would never have taken any misleading steps which would be detrimental to my bona-fide stature.

   Every day, I try to battle this anxiety, stress and negativity which have surrounded my life. Still, I have to maintain my genuine academic stature despite all odds. As a result of hard work and dedication, I have successfully completed Certificate III in Electrotechnology Electrician. This course covered the basic requirement to register as an Electrical Worker and I have learnt how to select, install, set up, fault find, repair and maintain electrical systems and equipment. The course also provided competencies to select, install, set up, test, fault find, repair and maintain electrical systems and equipment in building and premises as well. I have become equipped with skills needed to join this growing industry.

   It is my humble and sincere request to the respective member to kindly acknowledge my circumstances due to unfortunate chain of events. I genuinely seek a waiver of PIC 4020 as I believe I am at the receiving end of great deception and intimidation from my previous migration agent which has pushed me into current miserable state.

8. The applicant appeared before the Tribunal on 19 October 2021 to give evidence and present arguments. The applicant was represented in relation to the review by his registered migration agent and he attended the hearing. The Tribunal hearing was conducted with the assistance of an interpreter in the Urdu and English languages.

9. The Tribunal outlined the requirements of PIC 4020 including the waiver provisions and advised the applicant that the issue before the Tribunal is whether there is evidence that the applicant has given, or caused to be given, a bogus document in relation to the application for the visa. It outlined the evidence provided by the Department as to their finding that there appears a reasonable suspicion that the 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. It noted that 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.

10. The applicant confirmed the documents were not genuine.  He said his education agent from Pakistan, called Junid prepared his application in 2018 where he was granted a student visa and submitted the documents. He said he knew he was applying for a student visa and that he instructed his agent Junid to apply for the visa. He confirmed he authorised him to prepare and submit the application and that he gave him a range of documents to prepare the application but not the bogus education certificates. He said he gave him academic documents and any documents he asked for but he did not give the bogus education certificates to Junid to submit. He said in May or June 2018 he realized that his agent had submitted the bogus education documents with his initial student visa application. He said he contacted Junid and Junid threatened him and said that he cannot do anything to him and if he reports him, nothing will happen to him but his, the applicant’s visa will be refused. He also noted that Junid, the education agent said he, the applicant will be in trouble in Pakistan if he reported him.

11. The applicant said while Junid prepared and submitted the application in 2018 he, the applicant submitted the 2020 application. The applicant said and confirmed that he submitted the 2020 application for the student visa knowing these education documents were not genuine but he was very scared and concerned if he reported it his visa would be refused. He said he did not sleep because of it. He confirmed that Junid told him if he tells the Department now he, the applicant will be deported.

12. The Tribunal raised with him that in 2018 it appeared he was indifferent to the acts of his agent to prepare and  submit the application and in 2020 he knowingly has given, or caused to be given, a bogus document in relation to the application for the visa as he applied for the visa. He again repeated that he was fearful to reveal the education certificates were bogus documents as he believed he would be refused and deported.

13. His representative submitted that the first time he submitted the application in 2018, the applicant did not know the bogus documents were submitted as his agent, Junid prepared and submitted them. He referred to the money lost from the University of Melbourne and his agent taking the money. He said once the applicant was in Australia he was concerned that if he did not use the same documents, even though he knew the education certificates to be bogus his visa would be refused and he would be deported. He said the same agent prepared the 2020 application but that the applicant submitted it. He said at the time the applicant was trapped and he was fearful of his father, who has now passed, if he returned without achieving .He said the applicant did not need these documents as he had genuinely passed his SSCS and had completed his Diploma in Electronics which is equivalent to the HSC.

    The Tribunal then questioned the applicant as to whether 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. He said his study period had been affected and the lockdown has restricted his ability to study. He said he is relied upon by his employer as he as a driver in a warehouse furniture company.

1. He said he works for O’Leary Electrical as an electronics contractor and that he is central to that business. He said in Pakistan he learnt how to install CCTV and burglar alarms and that he is now doing this for the business. He said he has been sponsored by this firm and there is a shortage of electricians in Australia. He referred to a statistic where 8,000 electricians are required but only 100 were available.

2. The applicant was given to 26 October 2021 to provide further documents as to his nomination and whether he meets the waiver and any other matter he wished. At the applicant’s request the time to provide further documents was extended to 30 October 2021.

3. 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 Ponds

   Mr. Abid Majeed (Date of Birth: 15 December 1988 is a Pakistani citizen

   Please be advised that Mr. Abid Majeed has been employed here with us in the capacity of Electrician since 28 January 2018

   We are pleased to inform that Abid Majeed is a highly skilled, consistent and responsible individual, having worked very hard to maintain his exceptional professional standards

   The 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

4. 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: 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).

5. 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?

6. 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.

7. 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.

8. 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.

9. In relation to the education certificates in the applicant’s name 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 the Tribunal finds for the reasons that follow that these documents are bogus documents within the meaning of s.5(1) in that they are documents that the Tribunal reasonably suspects are counterfeit documents or have been altered by a person who does not have authority to do so.

10. As outlined above and raised with the applicant 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.

11. Further, at hearing the applicant confirmed that the documents are not genuine.

12. The Tribunal therefore reasonably suspects that the education certificates are counterfeit or had been altered by a person who did not have authority to do so. The Tribunal finds they are bogus documents.

13. The next issue is whether the applicant has given, or caused to be given, to the Department a bogus document in relation to his current visa application. It is the applicant’s claim that his education agent in Pakistan, without his consent prepared the documents and submitted them with his application for a visa which resulted in him being granted a visa in 2018. The evidence he provided was that he gave the education agent agency to complete and submit the application for the student visa in 2018. In 2020 he claimed while Junid prepared the application he, the applicant, submitted it to the Deportment. He claims when he submitted the application he was aware at that time that the education documents were bogus but was scared if he did not again submit them he would be found out by the Department, his visa would be refused and he would be deported. He claimed he was influenced by Junid who threatened him not to reveal they were bogus and advised him that if he did not again submit them or revealed they were bogus his visa would be refused. He also referred to the difficulties he faced in the past, being exposed to harassment in Melbourne, moving to Sydney as a result and seeing a psychiatrist. He also referred to losing $10,000 because of the agent.

14. The Tribunal notes that the applicant subsequently provided to the Tribunal evidence as to his education but the provision of a genuine document does not alter the initial provision of a bogus document (Mudiyanselage v MIAC [2013] FCA 266; (2013) 211 FCR 27).

15. The Tribunal has considered the applicant’s reasons for knowingly submitting the bogus documents including his fear of visa refusal, deportation, fear of his father and threats made against him and his family if he revealed Junid’s actions in submitting the documents, difficulties he faced on account of being harassed in Melbourne and losing the money to the education agent. The Tribunal does not accept from the evidence before it that he was not aware of his actions in submitting the bogus documents due to mental stress or any other mental difficulties. While he claims he was threatened by Junid if he exposed him, the Tribunal is of the view, that there is no evidence that there were any threats against him if he submitted the application without the education documents. The applicant chose to submit the documents as he feared if he did not his visa would be cancelled, he would be deported and he feared his father’s reaction if this happened. Notwithstanding, these concerns the Tribunal finds that the evidence, including that of the applicant at hearing, indicates he, the applicant, knowingly submitted the application form together with the education documents and that there is therefore evidence that the applicant has given, or caused to be given, to the Minister or an officer, bogus documents in relation to their visa application.

16. Having regard to the information and evidence above, the Tribunal therefore reasonably suspects that the education certificates submitted by the applicant are counterfeit or had been altered by a person who did not have authority to do so. The Tribunal finds they are  bogus documents within the meaning of s.5(1). The Tribunal finds that the applicant submitted the application form together with these education documents and that there is therefore evidence that the applicant has given, or caused to be given, to the Minister or an officer, bogus documents in relation to their visa application. The Tribunal finds that the applicant does not meet PIC 4020(1).

    Has a visa previously been refused on the basis of a failure to satisfy PIC 4020(1)?

17. PIC 4020(2) requires the Tribunal to be satisfied that the applicant and each member of the family unit have not been refused a visa because of a failure to satisfy PIC 4020(1) in the period commencing 3 years before the application was made and ending when the visa is granted or refused. This requirement does not apply to a person who was under 18 at the time the application for the refused visa was made: PIC 4020(2AA).

18. There is no evidence before the Tribunal that the applicant has been refused a visa in the relevant period. The is not relevant member of his family unit included in the visa application.

19. Therefore, PIC 4020(2) is met.

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

20. 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. The decision-maker must first be satisfied that there are such circumstances, then must consider whether to exercise the discretion to waive the requirements, having regard to those circumstances: Kaur v MIBP [2017] FCAFC 184.

21. 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.

22. Guidance on circumstances that may amount to compelling or compassionate circumstances may be found in the Explanatory Statement to SLI 2011, No 13 which introduced PIC 4020, and the Department’s policy guidelines.[2] While not binding, the Tribunal may have regard to the Department’s interpretation and examples of what may constitute compelling or compassionate circumstances.[3]

    [2] Policy – [Sch4 4020] – Public Interest Criterion 4020 – The integrity PIC - Compelling and/or compassionate circumstances (re-issue date 1/1/18).

    [3] Mudiyanselage v MIAC [2012] FMCA 887 where the Court noted it was open for the Tribunal to be guided by Department policy

23. According to the Explanatory Statement it was intended that the granting of the waiver would relate solely to compelling circumstances affecting Australia’s interests, or the compassionate and compelling circumstances affecting the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen, not the interests of the visa applicant.[4] The types of circumstances that may involve compelling or compassionate reasons for waiving the requirements of PIC 4020 identified in the Explanatory Statement include:

    ·family reasons (for example, unexpected serious or fatal family situations over which the applicant had no control, such as the incapacitation or death of a partner or child or another member of the family unit);

    ·that family members in Australia would be left without financial or emotional support; and

    ·a parent in Australia would be separated from their child (for example, if the child was removed with their non-resident parent and would therefore be subject to an exclusion period).[5]

    [4] Explanatory Statement to SLI 2011, No 13, at 19. The Court in Vyas v MIMAC [2013] FCCA 1226 found the ES to be of assistance in considering the plain words of the waiver provision such that it could not be said that it would be sufficient for the applicants to demonstrate that their circumstances were compelling or compassionate alone, but that there has to be a connection with Australia or an Australian citizen or permanent resident, or eligible New Zealand citizen, because otherwise there would be no utility in having those words in the clause (at [14]).

    [5] Explanatory Statement to SLI 2011, No 13, at 19-20.

24. In addition, the Department’s guidelines suggest that there may be compelling circumstances affecting the interests of Australia if:

    ·Australia’s trade or business opportunities would be adversely affected were the person not granted the visa (noting that gaining employer sponsorship is not considered sufficient grounds for a waiver); or

    ·Australia’s relationship with a foreign government would be damaged were the person not granted the visa; or

    ·Australia would miss out on a significant benefit that the person could contribute to Australia’s business, economic, cultural or other development (for example, a special skill that is highly sought after in Australia) if the person was not granted the visa.[6]

    [6] Policy – [Sch4 4020] – Public Interest Criterion 4020 – The integrity PIC - Compelling and/or compassionate circumstances – Compelling circumstances affecting the interests of Australia (re-issue date 1/1/18).

25. The policy states that compelling circumstances affecting the interests of Australia would not include circumstances where the non-citizen merely claims that, if granted the visa, they would work and pay taxes in Australia, pay fees to an education provider or spend money in Australia.[7]

    [7] Policy – [Sch4 4020] – Public Interest Criterion 4020 – The integrity PIC - Compelling and/or compassionate circumstances Compelling circumstances affecting the interests of Australia (re-issue date 1/1/18).

26. The applicant has submitted that he works as an electrician at O’Leary Electrical . The evidence from the Director who is an Australia citizen is that the applicant been employed with them since January 2018, that he is highly skilled electrician, a hard worker who is highly appreciated by the other staff. Mr Qaiser, the director, submits that his skill set and academic proficiency are crucial to their path and not having him would rob the business of growth potential and that it is not in their best interest to seek replacements. At hearing the applicant claims he has been nominated for sponsorship by O’Leary electrician. Although requested by the Tribunal no supporting documentation has been provided. The applicant submits that his on-going employment, professional competence and personal attributes are a giant leap towards economic recovery and that 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

27. The Tribunal notes that there was limited substantive evidence provided to support the claim that he is crucial to the business. There was limited evidence that he is crucial to their path and growth potential and questions this when the applicant as a student visa holder could only work 20 hours per week. There is also limited evidence before the Tribunal which suggests that the applicant’s claimed highly regarded skills as an electrician are in high demand or highly sought after in Australia such that Australia would be disadvantaged if the applicant was unable to remain in Australia and continue to work in the trade. While the material indicates that the applicant is an experienced electrician, it does not suggest that the applicant’s skills are in some way unique, in demand or highly sought after in Australia, such that Australia’s interests would be affected if his employment could not be maintained.

28. Further, even  accepting the importance of the applicant to the business as claimed and he has been nominated, the Tribunal considers that any reliance on the applicant by the business to grow or prosper are circumstances which affect the interests of the business and do not constitute compelling circumstances affecting the interests of Australia. The Tribunal acknowledges that the business may be disadvantaged if it is unable to maintain the applicant’s employment, however, the Tribunal is not satisfied that this would amount to compelling circumstances affecting the interests of Australia or compelling and compassionate circumstances as the director of the business is an Australian citizen.

1. The applicant has also referred to the difficulties he faced as a result of being harassed, facing mental difficulty and seeing a psychiatrist to justify the grant of the visa; however these are only circumstances which affect the applicant personally and not compelling circumstances affecting Australia’s interests, 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 grant of the visa.

2. .

3. Having considered the applicant’s case, the Tribunal is not satisfied that, singly or cumulatively, there are compelling circumstances affecting Australia’s interests, 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 grant of the visa.

4. For the above reasons, the Tribunal is not satisfied that the requirements of PIC 4020(1) should be waived pursuant to PIC 4020(4).

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

   DECISION

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

   Gabrielle Cullen
   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.

   …