Manjit Kaur (Migration)

[2019] AATA 3149

Manjit Kaur (Migration) [2019] AATA 3149 (28 February 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs  Manjit Kaur
Mr Jatinder Singh

CASE NUMBER:  1822196

DIBP REFERENCE(S):  BCC2018/1856431

MEMBER:Tim Connellan

DATE AND TIME OF

ORAL DECISION AND REASONS:         28 February 2019 at 10:58 am (VIC time)

DATE OF WRITTEN RECORD:                13 May 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decisions under review.

Statement made on 13 May 2019 at 3:29pm

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) – Subclass 500 (Student) – previous visa refusal – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth)
Migration Regulations 1994 (Cth), Schedule 2 cl 500.217, Public Interest Criterion (PIC) 4020

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

APPLICATION FOR REVIEW

1. This is an application for review of decisions made by a delegate of the Minister for Immigration on 13 July 2018 to refuse to grant the visa applicants Student (Temporary) (Class TU) Subclass 500 visas under the Migration Act 1958 (the Act).

2. At the hearing on 28 February 2019 the Tribunal made an oral decision and gave an oral statement of decision and reasons. The following is the written record of those reasons.

   STATEMENT OF DECISION AND REASONS

3. MEMBER:  Ms Kaur, the situation is you have been in Australia since 3 February 2018.  You came here on a subclass 600 Visitor visa. 

4. You lodged an application for this student visa on 27 April 2018.  Your application was refused on 13 July 2018 because the delegate found you did not meet a criterion in clause 500.217 which deals with what are known as Public Interest Criteria (PIC). 

5. To be eligible for the grant of a student visa, applicants must satisfy a range of criteria set out in the Regulations. 

6. One of those is Public Interest Criteria 4020 which states that to satisfy this criterion there is no evidence before the Minister, or in this case the Tribunal, that the applicant has given or caused to be given a bogus document or information that is false or misleading in a material particular in relation to an application for a visa. 

7. In your case, the delegate found that in your application under the question:

   Q: Has the applicant or any person included in this application ever had an application for entry or further stay in Australia or any other country refused or had a visa cancelled?

   You answered “No.” 

8. Investigations indicated you had previously had an Australian visa application refused and so you were invited to comment on this adverse information. 

9. You provided a statement in which you said you had applied for your student visa through a consultant.  You said you gave him all the required documents and information and he told you your case was in process.

10. You say you waited but after a long time you got concerned and followed up with the consultant.  He told you your case was stuck and you had a very less chance to get an approval. 

11. You say you were still hoping because you were genuine.  You say while you waited you contacted the consultant several times, then got worried and asked advice from him.  As he was getting all the correspondence from the Immigration Department you say you were unaware of where your case stood at that time. 

12. You say he then told you he had withdrawn the application but did not show us any proof of withdrawal or any further information of our case.  You say you were unaware of the visa refusal.

13. The delegate did not accept your explanation and so refused the application and you appealed that decision to be reviewed by this Tribunal. 

14. As I have said, the role of the Tribunal is to take a fresh look at your applicant and consider whether you are eligible for the grant of a visa. 

15. So the situation is that you said you had read and understood the primary decision and when I asked you about it you went through and told me the story that basically mirrored what you had said to the Department with some changes.  You said you had applied for the student visa through an agent.  You said:  We submitted all our documents.  We had absolutely no knowledge of what was going on, he did not tell us anything and then he told us that he thought we should withdraw and he sent us withdrawal forms and asked us to sign and return those forms. You then said:  For a long time he gave us no information and then he said he had withdrawn the file.  He gave us no evidence it had been refused.

16. I then read to you from the decision, a copy of which you provided with your application which goes through and says:  The explanatory email provided by the applicant advises that the previous student visa they employed a consultant.  The applicant claims their consultant provided them with misleading advice and as a result the applicant was not aware of their previous student visa refusal.

17. The delegate speaks about the investigation that then took place that discloses that within the relevant application form, which is an application that was lodged on 2 February 2017:  The applicant has not authorised another person to receive written correspondence on their behalf, has nominated a personal email address to receive all correspondence.  Furthermore, on 16 February 2017 I have been able to ascertain that a refusal decision record was sent directly to the visa applicant via email to [details deleted].  It is clear from this information that the applicant was directly notified of their previous student visa refusal.

18. So the situation is the evidence indicates that (a) there was no agent or consultant involved and (b) that you were advised personally by email of that decision. 

19. The Tribunal believes that to be the case.  You speak about the fact that you do not know what happened with what is going on with the withdrawal and you did not know that the application had been refused.  The Tribunal does not accept that as an honest statement.

20. The fact you have provided evidence in your application form where you answered “No” to that question leads the Tribunal to find that you have provided evidence that was false or misleading in a material particular and, therefore finds you do not satisfy Public Interest Criteria 4020 and therefore do not satisfy clause 500.217.

21. You have told the Tribunal there are no compelling or compassionate circumstances that might lead to the waiver of the criterion.

22. In the circumstances it is the decision of this Tribunal to affirm the decision under review which means the primary decision to refuse the application stands and this decision was made at 10.58am on this, 28 February 2019.

    DECISION

23. The Tribunal affirms the decisions under review.

    Tim Connellan
    Member