Mandeep Singh (Migration)

[2023] AATA 523

Mandeep Singh (Migration) [2023] AATA 523 (7 February 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr  Mandeep Singh

REPRESENTATIVE:  Mr Harsh Yadav (MARN: 2117646)

CASE NUMBER:  2200283

HOME AFFAIRS REFERENCE(S):          BCC2020/388283

MEMBER:Meredith Jackson

DATE:7 February 2023

PLACE OF DECISION:  Brisbane

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

Statement made on 07 February 2023 at 9:45am

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – Tourist stream – false or misleading information – criminal history – element of purposeful falsity – not a case of innocent error – acts of the migration agent – duty of the applicant – waiver of requirement – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 500.217; Schedule 4, PIC 4020

CASES
Arora v MIBP [2016] FCAFC 35
Batra v MIAC [2013] FCA 274
Kaur v MIBP [2017] FCAFC 184
Plaintiff M64/2015 v MIBP [2015] HCA 50
Trivedi v MIBP [2014] FCAFC 42

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 30 December 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 11 February 2020. The delegate refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl 500.217(1) of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) because the applicant did not meet the public interest criteria for the visa grant.

3.    The applicant was first invited on 5 August 2022 to appear before the Tribunal on 23 August 2022 to give evidence and present arguments. On 8 August 2022 the applicant advised the Tribunal that he was unable to attend the hearing because he could not cancel travel planned for 16 August 2022. He was granted a postponement.

4.    The applicant appeared before the Tribunal on 8 December 2022 to give evidence and present arguments.

5.    The applicant was represented in relation to the review.

6.    For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

BACKGROUND

7.    The applicant is Mandeep Singh, born in 1992 and a citizen of India. He first arrived in Australia on 31 March 2015 as the holder of a visa for the higher education sector, valid until 19 September 2019. He cancelled his higher education studies and after briefly studying English, enrolled in commercial cookery courses. He was granted a graduate visa on 18 August 2018 and then commenced a bachelor degree in a hospitality field. He is currently studying below that level, in a diploma course in business. On 11 February 2020 Mr Singh applied for a further student visa. In his application for the visa, he answered ‘no’ to the question about whether he had ever been convicted of an offence. On 4 May 2020 the Department wrote to him seeking an Australian Police Clearance Certificate (APCC). The certificate provided revealed a conviction for fraud. The applicant claims the ‘no’ answer was an error made without his knowledge by his representative of the time and that he did not purposefully intend to mislead.

ISSUES AND LAW

8. The issue in this review is whether the visa applicant meets Public Interest Criterion 4020 (PIC 4020) as required by cl 500.217(1) for the grant of the visa. Broadly speaking, this requires that:

·there is no evidence that the applicant has given, or caused to be given, to the Minister, an officer, the Tribunal, a relevant assessing authority, or Medical officer of the Commonwealth, a bogus document or information that is false or misleading in a material particular in relation to the application for the visa or a visa that the applicant held in the 12 months before the application was made: PIC 4020(1); and

·the applicant and each member of the family unit has not been refused a visa because of a failure to satisfy PIC 4020(1) during the period starting 3 years before the application was made and ending when the visa is granted or refused, unless the applicant was under 18 at the time the application for the refused visa was made: PIC 4020(2) and (2AA); and

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

·neither the applicant nor any family unit member has been refused a visa because of a failure to satisfy PIC 4020(2A) during the period starting 10 years before the application was made and ending when the visa is granted or refused, unless the applicant was under 18 at the time the application for the refused visa was made: PIC 4020(2B) and (2BA).

9.    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.

CONSIDERATION OF CLAIMS AND EVIDENCE

Has the applicant given, or caused to be given a bogus document, or information that is false or misleading in material particular?

1. 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.

2. 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.

3. 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.

4. In the present matter, the applicant does not claim that information given to the Minister, an officer, the Tribunal, a relevant assessing authority or a Medical Officer of the Commonwealth, was not information that is false or misleading in a material particular’ as defined in PIC 4020(5). The applicant accepts the information was false or misleading at the time it was given, and that it was relevant to the criteria the Minister may consider when making a decision on an application and therefore material.

Was the information given purposefully false?

1. As referred to earlier, in response to the question in the visa application as to whether any applicant for the visa has ever been convicted of an offence in any country (including any conviction which is now removed from official records), he answered ‘no’. The delegate’s decision, provided to the Tribunal by the applicant on review, states that on 4 May 2020 the Department wrote to the applicant seeking an Australian Police Clearance Certificate (APCC). The applicant provided an Australian National Police Certificate dated 12 May 2020, which states he was convicted of an offence “Gains Benefit By Fraud, Criminal Code (Wa) 409(1)(C)” on 8 November 2019 in the Perth Magistrates Court. The Department put this as adverse information to the applicant in a s.57 natural justice letter sent on 16 June 2020. The applicant responded to the letter, stating that he had genuinely made an innocent mistake or data entry error. The delegate did not accept the applicant’s explanation and found that he had given information that is false or misleading in a material particular in relation to his application for a student visa.

2. The Tribunal notes that the delegate’s finding that information is of a material particular as it “directly relates to the assessment of Public Interest Criteria 4001 and Clause 500.217(1) of the Migration Regulations.” The Tribunal has a different view, and considers materiality is in the relevance to the Minister’s assessment of the Genuine Temporary Entrant criteria in cl.500.212 of the Regulations.

3. While the applicant does not dispute the finding that the information provided with his application was false and misleading at the time it was given; he claims it was given as the result of error and delegation on the part of his then migration agent, Mr Reddy Singareddy, when completing the application on his behalf. Mr Singh stated at the hearing that he had fully informed the agent of his (quite recent) conviction, provided him with the Notice of Conviction and with a receipt for payment of the related penalty of $1,118.50. He had also answered all questions and queries for the application in a timely way. He believes the error occurred because the agent delegated the file to a staff member and failed to communicate the issue of the conviction to them. The agent then did not send him a full draft of the application, rather he sent just the last page of the form to him and asked him to sign it, which he did, because it was a day from deadline, he states.

4. The Tribunal indicated to Mr Singh that it may be concerned that the information had been concealed by some person involved in the application process to enhance his chances of being granted a visa. The applicant responded that at the time he was very much aware that “nothing can be hidden from the Department”, so he had no intention of misleading anyone. He claims the first he knew of the omission was when he received the s57 natural justice letter on 16 June 2020.

5. The Tribunal has taken into account the applicant’s claim of inadvertent error when he briefed his migration agent to compile the application for his signature and submission; he trusted the agent to do it correctly; and he did not see a full draft of the applicationra. Rather, he claims, he was unaware of what was in the body of the application, including the part where the false declaration was made.

6. The Tribunal indicated to Mr Singh that an applicant for a visa bears the responsibility for what is contained in an application, and it seemed that his agent was acting within the scope of his authority.  He maintained that the Form 1023 application document was sent to him only in part, and he signed it without seeing the full submission. Therefore, he should not be held accountable for the ‘no’ answer in his application, because it was inadvertent error and did not contain an element of purposeful falsity.

7. The Tribunal has considered the applicant’s explanation, which was also provided to the Department and is not satisfied that there is no evidence before the Tribunal of false and misleading information having been given.

8. The applicant also argued through his migration agent in a submission on review that “one could reasonably believe that he did not know he had a conviction”. This claim, while not made in the hearing, is nevertheless argued in written submission, and implies that the applicant may reasonably have been unaware of the conviction at the time of the visa application. On his own evidence, however, it appears he was fully aware of the conviction. He paid the fine imposed and has provided evidence of having done so on 10 November 2019. The Tribunal has duly considered the claim and is satisfied the applicant was aware of his conviction at the time of the visa application.

9. The applicant argues in the same submission that the crime of fraud he committed was a low level offence, evidenced by the fact that the fine was relatively small. He offered to provide to the Tribunal a further national police check showing there has been no repeat offence. The Tribunal has considered the claim that it was a low level, low fine offence and he has had a clear record since. The Tribunal indicated to the applicant in the hearing that the scale of the offence is not the issue in the present matter, rather, the giving of true and correct information is the issue and whether there are grounds for the waiver is a secondary consideration. The Tribunal having considered the applicant’s claim and finds it not capable of mitigating the requirements of PIC 4020(1).

10. As referenced earlier in these reasons, 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.

11. The Tribunal is satisfied that this is not a case of innocent error. An element of fraud or deception by some person is present, in the giving of false and misleading information that was false and misleading at the time it was given. Mr Singh blames his migration agent for the submission of the information. It remains, however, that the agent was acting with the applicant’s authority. The Tribunal acknowledges that the applicant is somewhat contrite, and appears to regret the submission of the false declaration, however it remains that the submission of documents and information in support of a visa application is squarely the responsibility of the applicant. The applicant’s obligation to provide the truth is made very clear in the declarations section of the Application for a Student Visa form where the applicant is required to declare that they have provided complete and correct information and that any fraudulent documents provided with the application may lead to the visa being refused and the applicant becoming unable to be granted a visa for a period of time. Whether or not Mr Singh saw the full application before its submission, he had a duty to do so and he failed himself in not carrying out his obligation not to provide false or misleading information.

12. For the reasons above, the Tribunal finds 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, information that is false or misleading in a material particular in relation to the application for the visa.

13. Therefore, the applicant does not meet PIC 4020(1).

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

1. 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.

2. 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.

3. The applicant claims he is of good character. He states that he has been a diligent student, worked as a chef, has abided by the conditions of his student and graduate visas, and completed a number of courses in Australia. While he did not study at e higher education level as planned when he first came to Australia, he eventually completed a bachelor degree, albeit in a hospitality field, rather than an engineering field.

4. He claims contrition for his “mistakes” and criticises himself for allowing his agent to act without his knowledge.  He stated in the hearing:

   I thought he was handling my case, I thought he was doing the right thing. He did not give me the first page. I was not aware of anything.

5. His representative pointed out that the applicant is contributing to the economy, he has abided by visa conditions, and as a young man, is requesting a second chance or a beneficial consideration because he has learned a lot from the refusal.

Conclusion on the waiver

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

2. There is no evidence before the Tribunal that 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.

3. Therefore the requirements of PIC 4020 (1) OR (2) should not be waived.

4. On the basis of the above, the applicant does not satisfy PIC 4020 for the purposes of cl 500.217(1).

DECISION

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

Meredith Jackson
Member

ATTACHMENT

Migration Regulations 1994

Schedule 4

1. (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.

…