Martinaj (Migration)

Case [2025] ARTA 925

MARTINAJ (MIGRATION) [2025] ARTA 925 (14 MAY 2025)

DECISION AND  

REASONS FOR DECISION

Applicants:Mrs Mare Martinaj
Mr Fatmir Martinaj
Miss Luna Martinaj
Miss Ellie Martinaj

Respondent:  Minister for Immigration and Multicultural Affairs

Tribunal Number:  2425663

Tribunal:General Member T. Quinn

Place:Melbourne

Date:  14 May 2025

Decision:The Tribunal affirms the decision not to grant the applicants Student (Temporary) (Class TU) visas.

Statement made on 14 May 2025 at 1:12pm

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – incorrect information in the visa application – multiple previous refused applications – no compelling circumstances – decision under review affirmed           

LEGISLATION

Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024
Migration Act 1958, ss 5(1), 65, 338, 347
Migration Regulations 1994, Schedule 2 cls 500.212, 500.217; Schedule 4, Public Interest Criterion 4020; r 1.03

CASES

“T” v Minister for Immigration and Multicultural Affairs [2000] FCA 467
Arora v MIBP [2016] FCAFC 35

Batra v MIAC [2013] FCA 274
Chand v Minister for Immigration and Ethnic Affairs (unreported, Federal Court of Australia, von Doussa, Moore and Sackville JJ, 7 November 1997)
Kaur v MIBP [2014] FCCA 1264
Kaur v MIBP [2017] FCAFC 184
Kumar v Minister for Immigration and Border Protection  [2020] FCAFC 16
Minister for Immigration and Multicultural Affairs v Rajalingham (1999) 93 FCR 220
Mudiyanselage v MIAC [2012] FMCA 887
Nejad v Minister for Immigration and Multicultural Affairs [1999] FCA 1827
Nejad v Minister for Immigration and Multicultural Affairs [2000] FCA 741
Plaintiff M64/2015 v MIBP [2015] HCA 50
Sein v Minister for Immigration and Multicultural Affairs (2001) 114 FCR 370
Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALR 347
Singh v MIAC [2012] FMCA 145
Singh v MIBP [2018] FCCA 1136
Trivedi v MIBP [2014] FCAFC 42

Vyas v MIMAC [2013] FCCA 1226

Wang v Minister for Immigration and Multicultural Affairs [2000] FCA 963  

STATEMENT OF REASONS

APPLICATION FOR REVIEW

  1. On 28 November 2022, the first three applicants applied for Student visas (the visa) with the first named applicant (’the applicant’) proposing to undertake study in Australia as the primary visa holder and the second and third named applicants as secondary visa holders (‘the application’).[1]

    [1]Specifically, a Student (Temporary) (Class TU) visa (‘the visa’) under section 65 of the Migration Act 1958 (‘the Act’).  At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian).  The primary applicant applied for the former and none of the applicants claim to meet the criteria for a Subclass 590 (Student Guardian) visa.

  2. On 6 February 2023, a delegate of the Minister for Home Affairs refused to grant the application on the basis that the primary applicant did not satisfy the genuine temporary entrant requirements in relation to student visas.[2]

    [2]See clause 500.212 of Schedule 2 to the Migration Regulations 1994 (‘the Regulations’) which requires that student visa applicants be genuine applicants for entry and stay as a student.

  3. On 6 November 2023, the fourth…

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Details
AGLC
Martinaj (Migration) [2025] ARTA 925
Case
[2025] ARTA 925
Decision Date

CaseChat Overview and Summary

The case involves the applicants, who applied for Student (Temporary) (Class TU) visas under subclass 500. The applicants' visa applications were refused due to the failure to disclose previous visa refusals in their application forms. The applicants appealed this decision, which was subsequently reviewed by the tribunal. The tribunal's task was to determine whether the applicants provided false or misleading information, and if so, whether there were any compassionate or compelling reasons to waive the public interest criterion.

The key legal issues before the tribunal were whether the applicants had provided false or misleading information in their visa applications and, if so, whether there were compelling or compassionate circumstances to waive the public interest criterion. The tribunal considered the applicants' submissions, including their explanation that they did not understand the requirement to declare all previous visa refusals due to their limited English proficiency. The tribunal also examined the statutory provisions governing the waiver of public interest criteria.

The tribunal found that the applicants had indeed failed to declare all their previous visa refusals, which constituted false or misleading information. The tribunal held that the applicants' poor English proficiency did not sufficiently excuse their failure to understand the application requirements. Consequently, the tribunal affirmed the delegate's decision not to grant the applicants the visas. Given that the primary applicant's application was denied, the secondary, dependent applicants' applications also failed.

The tribunal's decision was to uphold the refusal of the applicants' visa applications. The applicants' appeal against the decision to refuse their visas was dismissed.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The issues for determination in this case are whether the applicant has given, or caused to be given, to the Department a bogus document or information that is false or misleading in a material particular and, if so, whether there are compassionate or compelling reasons for this public interest criterion to be waived.CONSIDERATION OF CLAIMS AND EVIDENCEBackground The delegate’s decision sets out the history in this matter which revolves around a failure to declare that the first applicant has had five visitor visa applications to Australia refused and the second applicant has had one visitor visa application to Australia refused in the application form at page 17, filed in November 2022. The application form for student visas includes the question ‘[h]as 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?’. The applicant has responded ‘yes’ to this question but then only disclosed the second applicant’s student visa refusal in September 2018. Pages 20 and 21 of this application form, under the headings ‘Student declarations’ and ‘Declarations’ (respectively) state (inter alia) ‘Warning: Giving false or misleading information is a serious offence. or documents is a serious offence’. In the latter section, the applicants declare they:a.have ‘read and understood the information provided to them in the application’;b.have ‘provided complete and correct information in every detail on this form, any on any attachments to it’; andc.understand that if any ‘false or misleading information has been provided with this application… the application may be refused and the applicant(s), and any member of their family unit, may become unable to be granted a visa for a specified period of time.’ The first applicant has been refused five visitor visa applications: in July and October 2019, in January and February 2020 and in April 2022. The second applicant has been refused a visitor visa in June 2019. These visa refusals were not disclosed to the Department prior to the Department sending the applicant a natural justice letter about this issue. On 6 March and 3 June 2024, the Department sent the applicant a natural justice letter indicating that Department received unfavourable information which may lead to a decision to refuse the application. This letter set out the relevant PIC4020 provisions and referred to the false and misleading information set out in the immediately preceding paragraphs regarding the non-disclosure of visitor visa refusals. This letter invited the applicant to comment on this information and to specify if they believed there were any compelling or compassionate circumstances (in the terms set out in the PIC4020 provisions). On 3 April 2024, the applicants responded to the aforementioned natural justice letter stating that they did not know a tourism visa refusal needed to be declared and thought they only had to declare student visa refusals. They claimed that their English was poor at the time of application and that they did not understand the question properly. Accompanying legal submissions were filed which suggest that if the applicant intended to give purposely untrue answers there is no reason she would have disclosed the student visa refusal and not the visitor visa refusal.Has the applicant given, or caused to be given a bogus document, or information that is false or misleading in material particular?

Decision

Reasons for decision

On the basis of the above, the first named applicant does not satisfy PIC 4020 for the purposes of clause 500.217 of Schedule 2 of the Regulations. Therefore, the second, third and fourth applicants’ applications must also fail because the primary application has failed, and they are secondary, dependent applicants to that application.DECISION The Tribunal affirms the decision not to grant the applicants Student (Temporary) (Class TU) visas.Date(s) of hearing: 14 May 2025Representative for the Applicant: Mr Nigel James DobbieATTACHMENTMigration 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 ART during the review of a reviewable migration 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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