Moudgil (Migration)

Moudgil (Migration) [2021] AATA 4039 (21 October 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mr Amit Moudgil
Mrs Shelza Mougdil
Ms Tashvi Moudgil
CASE NUMBER:  1906137
HOME AFFAIRS REFERENCE(S):          BCC2017/1620520
MEMBER:David Barker
DATE:21 October 2021
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicants Student (Temporary) (Class TU) visas.

Statement made on 21 October 2021 at 10:01am
CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – false or misleading information provided in visa application – other name known by, previous visa refusal and family members not declared – bogus documents provided with refused application – bank accounts in another name opened for applicant by father – informal, cultural surname – claim that previous application prepared by father and step-mother, and applicant unaware of refusal – applicant’s involvement in application and knowledge of application processes through visa history – step-family – claim of disownment by step-mother and no relationship with step-siblings – some contact with step-siblings, including sponsoring step-sister’s visa application and transferring money to step-brother – country information about disownment – circumstances justifying grant of visa – work and community – members of family unit – Australian-born child not citizen or permanent resident – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5(1), 57, 65, 359AA, 375A
Migration Regulations 1994 (Cth), Schedule 2, cls 500.217, 500.317, Schedule 4, criterion 4020(1), (2), (4), (5)
CASES
Arora v MIBP [2016] FCAFC 35
Batra v MIAC [2013] FCA 274
Plaintiff M64/2015 v MIBP [2015] HCA 50
Trivedi v MIBP [2014] FCAFC 42
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 27 February 2019 to refuse to grant the applicants Student (Temporary) (Class TU) visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants applied for the visas on 5 May 2017. The delegate refused to grant the visas on the basis that the first named applicant (the applicant) did not satisfy the requirements of cl 500.317 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) because the delegate found that there was evidence that the applicant has provided, or caused to be provided, a bogus document or false or misleading information in relation to this visa application. The delegate found that the applicant did not satisfy Public Interest Criterion (PIC) 4020 and refused the visa application on 27 February 2019.
A delegate of the Minister subsequently, on 27 April 2019, refused the applications of the second and third named applicants on the basis that the second and third named applicants did not satisfy the requirements of cl 500.217 of Schedule 2 to the Regulations because subclause 4040(2) of PIC 4020 was not met and that there were no circumstances which would otherwise justify the grant of the visas.
The Tribunal Registry consented to a request from the applicants that their review applications be dealt with in combination, as it was satisfied the review application pertaining to the second and third named applicants was validly made by persons claiming to be members of the same family unit of a person seeking to satisfy the criteria for the grant of a Subclass 500 visa.
The applicant appeared before the Tribunal, by video, on 23 August 2021 to give evidence and present arguments. The Tribunal is satisfied it was reasonable to hold a hearing through video in the context of the coronavirus pandemic, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal was mindful of the need to minimise health risks to the parties and Tribunal staff that could arise at the present time in an in-person hearing. The Tribunal received an indication from the applicant and the representative that they were comfortable with the hearing proceeding utilising this technology platform. The Tribunal also took evidence during the hearing from the second named applicant.
The applicants were represented in relation to the review.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
BACKGROUND
The applicant was born in India and is 39 years of age. He first arrived onshore on 24 December 2007 on a Subclass 456 business (short stay) temporary visa granted 21 December 2007 and valid to 14 February 2008. He departed 14 February 2008. He subsequently arrived back in Australia with his spouse, the second named applicant, on 21 July 2010 on a Subclass 573 student visa, granted 2 June 2010 and valid to 30 August 2012.
The applicant was granted a Subclass 573 student visa on 13 September 2012 as a dependant on his spouse, which was valid to 15 March 2013. He was then granted a Subclass 485 temporary graduate visa on 11 September 2013, which was valid to 5 March 2015, as a dependant spouse. The applicant was granted a Subclass 572 student visa, as a dependent on his spouse, on 5 March 2015 and applied for the Subclass 500 student visa, again as a dependent on his spouse, shortly before this previous Subclass 572 student visa expired on 8 June 2017.
The second and third named applicants are also nationals of India. The second named applicant, spouse of the primary review applicant and principal visa applicant is 38 years of age and their child, aged five years, is the third named applicant.
The decision record of the delegate, a copy of which was provided with the review application, indicates that when the combined application for a Subclass 500 (Student) visa, which is the focus of the current review was lodged on 5 May 2017, the applicants answered “No” to each of the following questions, which pertained to the first named applicant:
· Is this family member currently, or have they ever been known by any other names?
· 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?
The delegate notes that in addition, in a copy of Form 80 completed and signed by the applicant on 29 May 2017, which was subsequently submitted to the Department on 23 June 2017, he declared “No” in answer to the following questions on the form:
·In relation to Question 4. – “Have you been known by any other name(s)?”
·In relation to Question 39. – “Have you ever been refused a visa to any country?”
·In relation to Question 45. – “Do you have siblings? Siblings include full, half and adopted brothers and sisters.”
Further to this, the delegate noted, as was put to the applicant in a natural justice letter,[1] information available to the Department had verified that the applicant has been known by another name, Amit Sharma. Additionally, it had been verified by the Department that the applicant was previously refused a Subclass 573 higher education sector student visa, as a primary applicant, on 4 June 2003. The delegate also noted, in relation to the claimed declaration on Form 80, where the applicant contended that he does not have any siblings including full, half and adopted brothers and sisters, it had been verified by the Department that the applicant does have siblings, including one brother and one sister.
[1] Natural justice letter sent to the applicant on 5 January 2018 and to which he responded on 14 January 2018.
The delegate summarised the applicant’s response to the information put to him in the natural justice letter as follows:
- The applicant claims he has not been known by any other name. He states the name “Amit Moudgil” is his official name in all documents. Although he further mentioned that his father once opened fixed deposit documents in the name of “Amit Sharma” for him by mistake;
- The applicant was not aware of his father’s mistake until his father “handed over” the mistaken fixed deposit documents used with that visa application;
· The applicant confirmed that he had been refused a student visa in 2003, however he claims that as it was some years ago he had forgotten to declare the refusal in his visa application. The applicant touched on personal difficulties he was experiencing at the time as an additional factor why he failed to recall the past visa refusal or declare the refusal in his visa application;
- The applicant confirmed that he did in fact have a stepbrother and stepsister, however claimed that he had not declared them in his visa application because he was never accepted as a part of their family. He mentioned that it was never a brother and sister type relationship between his siblings, so he did not see the need to show the relationship with them to the Department;
- The applicant further touched on the difficulties of being a stepson in that family, which resulted in personal hardships and his impression that he was not properly accepted as part of the family;
- The applicant outlined in his response his desire for him and his family to remain in Australia so as to provide his wife and daughter an opportunity for a better future, as he did not want them to experience the same hardships that he had experienced in his life;
- The applicant concluded his claims by stating that the incorrect answers provided to the Department were genuine mistakes and not an intention to mislead.
Based on their consideration of the issues, the delegate found that the applicant had provided information that was false or misleading in a material particular. Accordingly, the delegate concluded that the applicant did not meet required criteria in PIC 4020(1).
The delegate was not satisfied that there were compelling circumstances affecting the interests of Australia, or compassionate or compelling circumstances affecting the interests of an Australian citizen, Australian permanent resident or an eligible New Zealand citizen that justified the granting of the visa.
The delegate found that the applicant did not meet PIC 4020 and therefore did not satisfy cl 500.317. Further to this the delegate determined that each person included in the decision may be subject to a provision which may preclude them from being granted another visa for a period of three years.
In relation to the visa and review applications, the applicants provided documentary evidence, including but not limited to:
·Record of Responses, Application for a student visa;
·Form 80 Personal particulars for character assessment for the first, second and third named applicants;
·Information regarding the applicant’s identities and marital status;
·Information regarding the second named applicant’s academic studies;
·Response of applicant, of 14 January 2018, to s 57 natural justice letter;
·Response of second named applicant, of 27 February 2019, to s 57 natural justice letter;
·Letter Statement for Genuine Temporary Entrant (GTE) Requirement – applicant;
·Letter Statement for Genuine Temporary Entrant (GTE) Requirement – second named applicant;
·Financial and taxation records;
·Departmental delegate decision records;
·Support letters/character references;
·Representative’s written submissions, dated 27 July 2021;
·Disown Affidavit of Santoshi Rani, dated 17 January 2001;
·Copy of ICICI Home Finance letter to certify that Mr Amit Sharma has two fixed deposits, maturing in March 2011 – nominee Santoshi Rani.
The s 375A Certificate
The Tribunal informed the applicant of the existence of a Certificate issued pursuant to s 375A over certain folios on the Departmental file and invited comment on it prior to the hearing, by way of email communication with their representative, which included a copy of the document. The Tribunal received no submission with respect to the Certificate prior to the hearing, but did receive an indication at hearing that the validity of the Certificate was not contested. The Tribunal has formed the view that the Certificate is valid. The Tribunal has also put the gist of information from the certificated documents that it considers relevant to the issues under review to the applicant for his comment pursuant to the requirements of s 359AA of the Act.
Information put to the applicant pursuant to s 359AA of the Act
The Tribunal put particulars of information from the Department and Tribunal files to the applicant at hearing, which are not favourable to his visa application. In doing so the Tribunal explained to him that under the Act, the Tribunal is required to invite him to comment on or respond to certain information which the Tribunal considers would, subject to his comment or response, be the reason, or part of the reason, for affirming the decision under review. The Tribunal explained that it would set out the particulars of the information, explain why the information is relevant and the implications if the Tribunal relies on that information. The Tribunal explained it would then invite the applicant to orally comment on or respond to the information and advised him that he may seek additional time to comment on or respond to the information and if he were to do so, the Tribunal would consider such a request. The particulars of information put to the applicant were as follows:
Firstly: There is information on the Departmental file that indicates the applicant’s 2003 application for a student visa was refused as he submitted fake documents pertaining to his academic qualifications, namely Class 10 and 12 certificates.
The Tribunal explained that this information is relevant, as, if the Tribunal accepts this evidence, it provides an indication that the applicant has previously provided bogus, non-genuine documents, and false and misleading information in association with a visa application.
Secondly: The gist of the information from the documents restricted under the s 375A Certificate include:
·The applicant failed to declare his step siblings in visa applications lodged in 2003 and 2007;
·The applicant assisted his stepsister, Manita Rani, in relation to a visa application she lodged in 2007, with that support including sponsoring her application and financially supporting her stay in Australia;
·In relation to the assistance provided to his stepsister in her 2007 visa application, the applicant in both sponsorship forms and in an interview failed to disclose his familial connection to her;
·A number of neighbours from the applicant’s home village, when interviewed in 2017, indicated that the applicant is known by the name of Amit Sharma;
·The applicant reported during an interview with Departmental officers in September 2017 that he had maintained contact with his step siblings whilst he has been in Australia and that his relationship with his stepbrother was improving;
·The applicant indicated during the interview with Departmental officers in September 2017 that he had transferred money to his stepbrother, Puneet, amounting to approximately $20,000.
The Tribunal explained to the applicant that this information is relevant as it is not consistent with oral evidence he gave at hearing, which gives rise to concern that he is not a reliable source of information and that he continues to misrepresent his visa history and other circumstances in a misleading and purposeful way.
The Tribunal explained to the applicant that if it was to find he provided information which was false and misleading in a material particular in association with the combined application for a Subclass 500 student visa lodged on 5 May 2017; and there are no circumstances that would otherwise justify the grant of the visa applications, it will affirm the decision under review.
The applicant requested a month in which to consider his response. The Tribunal asked the applicant if he could explain why he needed this amount of time to consider his response and he said that it was because the information put to him was new information. The Tribunal noted this explanation but was not satisfied the applicant had explained why the period requested was necessary. The Tribunal provided the applicant until the close of business on 27 August 2021 to comment on and respond to the particulars of information put to him pursuant to s 359AA of the Act.
On 30 August 2021 the Tribunal received an email submission from the applicant’s representative, along with an affidavit prepared by Darshan Kumar, attested by a public notary in India on 26 August 2021 and a copy of Darshan Kumar’s Punjab State driver’s licence. Where relevant, this evidence is discussed below.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this review is whether the applicant meets PIC 4020 as required by cl 500.317 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).
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.
In submissions provided to the Tribunal in association with the review application[2] the applicant concedes that there were inaccuracies in information the applicant provided in association with the May 2017 combined application for a Subclass 500 student visa. In these submissions, as well as in previous statements[3] and the oral evidence at hearing, contentions are made as to whether responses were accurate and if not, why not. The applicant has not in all instances agreed that his responses were inaccurate and further to this has claimed that where inaccurate information was provided, it was in part provided by third parties and if provided by him, this was not done with the purposeful intent to deceive or misrepresent his circumstances.
[2] Representative submissions dated 27 July 2021.
[3] Applicant’s response, dated 14 January 2018, to Department s 57 natural justice letter of 5 January 2018.
The Tribunal has considered certain responses provided by the applicant on forms associated with the 2017 combined application for the Subclass 500 student visa:
Form 80 – personal particulars for assessment including character assessment
In relation to the “No” response to Question 4: – “Have you been known by any other name(s)? – Include: name at birth; name before or after marriage; adoptive or foster name; alias or pseudonym; cultural or tribal name or clan/sub clan name; preferred name; other spellings of names.”

At hearing the applicant gave evidence that he has never been known by any other name than Amit Moudgil. Further to this he said that he has had no relationship with his step siblings or stepmother since his stepmother officially disowned him in 2001. With respect to this factor, the applicant said that he has provided an affidavit, signed by his stepmother in 2001, detailing her disownment of him. The applicant then reiterated that he has had no relationship with his step siblings or stepmother since 2001.
The submissions received in response to the particulars of information put to the applicant pursuant to s 359AA of the Act responded to the proposition that villagers from the applicant’s home village in India referred to him as Amit Sharma by providing information as to the use of Sharma as a Brahmin surname, contending it is not a surname exclusive to any region of India.[4] These comments expanded on similar information contained in previous submissions received in association with the review application.[5] An affidavit from the applicant’s father,[6] states that the applicant has been always known as Amit Moudgil, but that being a Brahmin, the applicant was also casually known as Sharma, Kumar or Pandits.
[4] 359AA response – ‘Final Submission’ received from representative 30 August 2021 (the 359AA response).
[5] Representative submissions dated 27 July 2021.
[6] Affidavit of Drashan Kumar dated 26 August 2021.
The applicant’s claim at hearing that he has never been known by any other name than Amit Moudgil is consistent with the applicant’s previous submissions in relation to this factor, but it is not in the view of the Tribunal consistent with the evidence that the applicant was identified by villagers from his home village in India, by the name of Amit Sharma. It is also not consistent with information from the affidavit from his father, which makes reference to surnames, including Sharma, by which the applicant was known, albeit on a casual basis.
The applicant’s claim with respect to this factor is also not consistent with evidence that his father has previously opened two fixed deposit accounts for the applicant in the name of Amit Sharma. The applicant has conceded his father opened the accounts in the name of Amit Sharma, but claims that this was a mistake on his father’s part. The Tribunal is not persuaded by this explanation, as his father’s affidavit refers to Sharma as a name by which the applicant is at times known. It is not apparent to the Tribunal why the use of this surname was therefore a mistake on the part of the applicant’s father, rather than a conscious act made on the basis that Sharma was an appropriate surname option to use for the applicant.
In any event this part of the Student visa application in relation to the applicant, asks the question “Is this family member currently, or have they ever been known by any other names [emphasis added]” it does not ask “by what name are you known for official purposes”, or “by which name do you prefer to go”, or “by what name do you refer to yourself”. For this reason the Tribunal is not persuaded by the applicant’s submissions in relation to this factor and finds the question was answered incorrectly on the Student visa application.
In relation to his answer to Question 4 on Form 80, provided in association with the 2017 Student visa application, the Tribunal finds the answer was incorrect.
In relation to the “No” response to Question 39. – Have you ever been refused a visa to any country?
At hearing the applicant initially said that he was in a “bad place” between the years of 2000 and 2004 and that he considers the “No” response on the 2017 Student visa application to be correct because of what was at that time going on in his life. He said that he was not involved in the preparation of a Student visa application lodged on his behalf in 2003 and was unsure if it was withdrawn or not. He said that the 2003 visa application was prepared and lodged by his father and stepmother and that he was unaware it was refused because of bogus documentation until this was brought to his attention when he was interviewed by Border Force officers in 2017. The applicant then requested a brief adjournment to liaise with his representative, which the Tribunal consented to. Following the adjournment the applicant told the Tribunal that he accepts the response provided to this question on the 2017 Student visa application was incorrect.
In relation to this factor, the submissions received in response to the particulars of information put to the applicant pursuant to s 359AA of the Act concede a visa application was refused in 2003 and focus on the applicant’s lack of direct involvement with preparing the visa application and as to whether he was aware non-genuine documents were used in association with the application. Where relevant, these submissions are discussed in the sections dealing with whether the incorrect information was given, or caused to be given by the applicant and whether incorrect information was provided with a purposeful, deceptive motive.
In relation to whether the response provided by the applicant to the question “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?”, the Tribunal finds the applicant’s response was incorrect.
In relation to the “No” response to Question 45: – Do you have siblings? Include full, half and adopted brothers and sisters
At hearing the applicant gave evidence that he does have a stepbrother and stepsister, but contended that a “No” response was however the correct answer because as his stepmother disowned him in 2001 he considered there to be no point providing the information about his step siblings in the 2017 Student visa application. The applicant said that after speaking to other people he decided that he did not need to include information about his step siblings on forms associated with the 2017 Student visa application. In response to a question from the Tribunal the applicant said that the only other occasion in which he failed to declare his step siblings in a visa application was in the business visa he applied for in 2007.
Other evidence provided at hearing and in submissions received, including the s 359AA response, the applicant elaborated on why he did not declare his step siblings and the nature of his difficult connection to them and his stepmother. This evidence is discussed in relevant sections of this decision. For the purpose of this section, the Tribunal finds the applicant’s answer to Question 45 on Form 80, provided in association with the 2017 Student visa application, was incorrect.
The section of the online combined application for a Subclass 500 student visa lodged on 5 May 2017 which requested details about the applicant
In relation to the “No” response to the question: – “Is this family member currently, or have they ever been known by any other names?”
At hearing, in a manner that was somewhat inconsistent with other evidence he gave during the hearing,[7] the applicant conceded the “No” response was incorrect and referred to fixed deposits that were established by his father to show the applicant had sufficient funds to cover his living costs. In relation to these financial documents, his evidence at hearing and in submissions received is consistent with that provided in relation to other responses on the 2017 Student visa application. He explained that this evidence was required in association with the applicant’s 2007 business visa application. He stated that he did not notice his father had opened the fixed deposits in the name of Amit Sharma and that the fixed deposits were not used in any other visa applications other than a 2007 business visa application. The applicant contended that he has not been known by the name of Amit Sharma in any other contexts, or at any other stage of his life apart from the aforementioned fixed deposits.
[7] In relation to a similar question on the Student visa application form, the applicant at hearing contended the “No” response was correct.
For similar reasons as are discussed in relation to the applicant’s answer to Question 4 of Form 80, the Tribunal did not find the applicant’s submission in relation to this factor persuasive.
In relation to whether the response provided by the applicant to the question “Is this family member currently, or have they ever been known by any other names?”, the Tribunal finds the applicant’s response was incorrect.
In relation to the “No” response to the question: – “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?”
At hearing the applicant’s comments on how he answered this question in the 2017 Student visa application emphasised his lack of a relationship with his step siblings and stepmother. He also reiterated his lack of involvement in preparing a 2003 Student visa application and his lack of awareness whether the visa application was refused, or withdrawn and in relation to the use of non-genuine documents in the application. As acknowledged elsewhere this evidence is discussed, where relevant, in other sections of this decision record.
In relation to whether the response provided by the applicant to the question “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?”, the Tribunal finds the applicant’s response was incorrect.
Has the applicant given, or caused to be given, a bogus document or information that is false or misleading in a material particular?
The term “information that is false or misleading in a material particular” is defined in PIC 4020(5), 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.
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.
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.
Is there evidence before the Tribunal that the applicant has given, or caused to be given, to the Minister, an officer, the Tribunal, a relevant assessing authority or a Medical Officer of the Commonwealth a “bogus document”?
In written submissions, received by the Tribunal on 28 July 2021, the applicant’s representative noted that there is no indication that the applicant provided a bogus document in association with the 2017 combined application for the Subclass 500 student visa. The Tribunal accepts this is the case.
Whilst there are references to counterfeit documents regarding academic qualifications, provided in association with the 2003 Student visa application, it is the 2017 Student visa application that is the focus of the current review. The applicant’s answers to questions about whether he had previous visa applications refused or visas cancelled are of concern in the current matter and whilst concern may exist for a related issue if the Tribunal was to find the applicant had knowingly provided non-genuine documents in the past, that would not constitute evidence that a bogus document was provided in association with the 2017 Student visa application.
Were incorrect answers provided in association with the 2017 Student visa application false or misleading in a material particular?
The Tribunal has considered whether the incorrect answers provided by the applicant, as outlined above, were purposely untrue. With respect to this consideration, the Tribunal accepts the contention in submissions received in association with the review application that the word “false” should be strictly construed, in favour of the subject, as meaning purposely or deliberately or intentionally untrue.[8]
[8] Submissions prepared by Jiwanpreet, attested to by the applicant’s signature, dated 27 July 2021 (the July 2021 submissions).
The applicant’s submissions emphasise his estrangement from his stepmother and step siblings in explaining why some of the incorrect answers were provided on the 2017 Student visa application. He contends that other incorrect answers were a consequence of his poor recall of past events and reliance on other parties, such as education consultants, to prepare visa applications on his behalf. For the following reasons the Tribunal finds these explanations unsatisfactory and implausible. In considering these issues the Tribunal’s focus remains on whether responses in the 2017 Student visa application were purposely or deliberately or intentionally untrue.
Known by other names
With respect to failing to acknowledge other names by which he has been known, the Tribunal finds the applicant’s evidence at hearing to be of concern. In response to the Tribunal noting that Question 4 on Form 80 was not a question restricted to names used in official documentation, the applicant contended that he had never been known as Amit Sharma in any context, official or otherwise. In this respect, the oral evidence at hearing was consistent with the answers to this question provided in association with the visa application and the Tribunal has found they are incorrect. In explaining why his father used Amit Sharma rather than Amit Moudgil in relation to fixed deposit accounts taken out to support a business visa the applicant applied for, the applicant claims this was a mistake and he did not notice it had occurred. The s 359AA response, as to why villagers from his home village in India referred to him as Amit Sharma, in the view of the Tribunal concedes that this was a name by which the applicant may have been known, as does the affidavit from his father provided in conjunction with the s 359AA response.
After considering the evidence with respect to this factor, the Tribunal considers it implausible that the applicant was unaware at the time he prepared the 2017 Student visa application that his answers to questions as to whether he had been known by a name other than Amit Moudgil were incorrect. The Tribunal has formed the view that the applicant purposely, deliberately and intentionally answered this question incorrectly.
Previous visa refusal
The Tribunal is not persuaded by the claim that the applicant was unaware non-genuine documents were provided in association with the 2003 Student visa application, as he was a young man at the time the application was lodged and he had no involvement in preparing the visa. In forming this view the Tribunal notes that in his oral evidence at hearing the applicant stated that whilst he thinks his stepmother supplied the non-genuine documents, he also stated that he just gave the education consultant his documents. In the view of the Tribunal this points to some involvement with the application process. There is also an earlier submission in which the applicant contends that after his father advised him to go to Australia in 2003 “in order to get out all the family mess” he found a consultant who applied for the visa on his behalf.[9] In the view of the Tribunal this undermines the applicant’s claim that he would have been unaware of the outcome of this visa application.
[9] the July 2021 submissions.
In the view of the Tribunal it also undermines the claim that the applicant was unaware non-genuine documents were provided in association with the 2003 Student visa application. In forming this view the Tribunal has noted the applicant’s father states that the applicant’s mother burnt his documents, including authentic records of the applicant’s academic qualifications.[10] In light of this circumstance the Tribunal considers it implausible that the applicant, in engaging a consultant to prepare a Student visa application on his behalf, would have been unaware that he lacked authentic documents required to apply for this type of visa.
[10] the 359AA response.
The Tribunal is not persuaded by the contention that simply forgetfulness, vagueness and a confused memory of a 15-year-old incident[11] contributed to the applicant’s failure to declare his past visa refusal, or for the reasons why he was not cognisant of the circumstances of this previous visa application. In forming this view the Tribunal notes that within a year of the 2003 Student visa refusal the applicant was working in India as an education consultant, a role which assists people to apply for visas to travel to overseas countries for purposes such as study. The Tribunal considers it implausible that in such a role he would have been unaware of the outcome of the 2003 Student visa application, or in more recent times being unaware of the need to provide truthful and accurate answers to all questions and requests for information associated with visa applications or related immigration procedures.
[11] the July 2021 submissions.
In relation to his involvement running an education consultancy in India between 2004 and 2010, the Tribunal acknowledges the applicant’s contention he had a managerial role[12] but notes at hearing he conceded in his role as an education consultant he and his spouse provided advice and assistance to people applying for student visas. Since their arrival in Australia the applicant and his spouse have applied for a range of visas. In light of his experience with Australian immigration procedures since his arrival in Australia and previous experience as an education consultant, the Tribunal considers it implausible the applicant would have been unaware of the need to provide accurate and truthful information on the 2017 Student visa application. The Tribunal has concluded the question with regard to past visa refusals was answered incorrectly purposely, deliberately and intentionally. The Tribunal has concluded the motivation for so doing was in an attempt to withhold information which the applicant perceived may have reduced the chance of a positive outcome from the visa application.
Not acknowledging siblings
[12] the 359AA response.
The applicant’s explanation, for why his answers to questions on forms associated with the 2017 Student visa application as to whether he had siblings were incorrect, are of concern and in the view of the Tribunal misleading.
In responding to the natural justice letter sent to him by the Department in January 2018, the applicant conceded he had a stepbrother and stepsister and stated that he answered the questions in the way he did because he was never accepted as part of their family. At hearing the applicant conceded he had step siblings and contended that after discussing the issue with other people decided to answer the questions in what he considered to be a correct way, as everyone suggested he has no relationship with his step siblings. In the view of the Tribunal this demonstrates the deliberate, intentional and purposeful nature of the applicant’s incorrect answers.
As to why the applicant elected to not acknowledge his step siblings, he claims this was because they are estranged and because he was never accepted into their family. At hearing the applicant claimed he has had no relationship with his step siblings since he was disowned by his stepmother in 2001, however, when asked if he has had contact with them since he came to Australia the applicant said he had on occasion, such as birthdays, had phone contact with them. He said that otherwise he has had no relationship with them. In response to the information, put to the applicant pursuant to s 359AA that during an interview with Departmental officers in September 2017 he stated that he had maintained contact with his step siblings whilst he has been in Australia and that his relationship with his stepbrother was improving, the applicant maintained he had only occasional contact with them, but that the relationship had not improved. He does not explain why he claimed otherwise during the Departmental interview in September 2017.

When asked if he had assisted either of his step siblings to apply for visas to come to, or remain in Australia the applicant conceded that he assisted his stepsister in 2005 or 2006, because he was working in an education consultancy. He said the assistance he provided her was limited to just asking a few questions and nothing other than that. In response to the information put to the applicant pursuant to s 359AA that Departmental records show he sponsored his stepsister’s 2007 visa application and financially supported her during her stay in Australia, the applicant has not disputed this occurred and whilst providing reasons why this occurred, provided no explanation as to why he had claimed otherwise at hearing.
When asked if he had at any stage sent money to his home country with the assistance of his stepbrother or stepsister, the applicant stated that he had never done so. In response to the information put to the applicant pursuant to s 359AA that Departmental records indicated he had previously acknowledged transferring approximately $20,000 to his stepbrother, the applicant has not disputed this occurred and whilst providing reasons why this occurred, provided no explanation as to why he had claimed otherwise at hearing.
The extent to which the applicant’s evidence at hearing with respect to this factor was inaccurate and misleading has led the Tribunal to the view that the incorrect responses were deceptive in nature. In the view of the Tribunal the applicant intentionally, deliberately and purposefully misrepresented the extent of the connection he has maintained with his step siblings in order to increase the chance of a positive outcome from the 2017 visa application.
Disownment by stepmother in 2001
In evidence at hearing and in submissions received the applicant has placed significance on being disowned by his stepmother in 2001. He has claimed this act was the basis for his “No” response to questions as to whether he has siblings.[13] He has referred to the 2000 to 2004 period as being a bad time in his life, where his connection to his stepmother broke down due to the disappearance of his stepbrother, apparently due to shame through the applicant’s illegitimate birth status becoming apparent.[14]
[13] the July 2021 submissions.
[14] the July 2021 submissions; the 359AA response.
As to the evidence regarding the disownment of the applicant by the stepmother in 2001, this consists of an affidavit in which the stepmother states, amongst other things that the applicant is her son and beyond her control and that she disowns him from her moveable and immovable property.[15] The Tribunal has reviewed information provided by the applicant in support of the disownment claim and notes that “Disownment” is the formal act or condition of forcibly renouncing or no longer accepting one’s kin child as a member of one’s family or kin.[16] However, upon reviewing the information referred to in the July submissions received from the applicant[17] the Tribunal is not convinced the aforementioned affidavit from the applicant’s stepmother in and of itself reflects a formal procedure as the information referred to in the submissions states amongst other things that:
·a disownment notice does not serve to oust the proprietary rights of a person under any circumstances and in the absence of a will made by a father excluding his son from having a share in his self-acquired property, a disownment notice is a waste of paper.
·a Bedahkal means to disown from property and requires a public notice in local newspapers.
[15] Affidavit, with translation, of Santosh Rani, dated 17 January 2001.
[16] the July 2021 submissions.
[17] Disownment - B&B Associates LLP (bnblegal.com)
There is no indication, beyond the affidavit of the stepmother that further steps were taken in line with the Disownment procedure discussed in the reference provided. The Tribunal is satisfied the applicant has provided a plausible account of how the circumstances of his birth resulted in his not being accepted by his stepmother and complicated his connection to her and his step siblings. The Tribunal is not however persuaded this provides a reason why his incorrect answers, as discussed in this decision record, were anything but intentional, deliberate, purposeful and holding a deceptive quality.
Assessment of whether incorrect answers were false and misleading in a material particular
The Tribunal finds that the incorrect answers were purposely untrue at the time they were given in May 2017 and that there was an element of deception by the applicant in misrepresenting elements of his familial circumstances and migration history. Further to this the Tribunal finds that the information was relevant to consideration of criteria such as the temporary entrant criteria associated with a Subclass 500 student visa and as a consequence the incorrect information was false and misleading in a material particular.
Therefore, the applicant does not meet PIC 4020(1).
Should the requirements of PIC 4020(1) or (2) be waived?
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.
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.
For the following reasons, the Tribunal is not satisfied that the requirements should be waived.
The Tribunal asked the applicant about the letters of support that he has provided in association with the review application. He said that they demonstrate that he is regarded as a person of good character and that he, his wife and child get on well with their neighbours and that they are accepted by their local community. The Tribunal has reviewed these support letters and notes that the letter prepared by Tanya and Andrew Buckland describe the applicants as friendly and courteous neighbours who are an asset to their community. The letter from Nathan Frishna conveys consistent support, as does that of Geoffrey Vears and Allan and Julie Ann Lund. The letter of Kay Millicent Brookes attests to similar positive aspects of the character of the applicants and speaks to the help they give her in needful situations. The letter of Kristy Campbell, Centre Co-ordinator of Forest Lakes Thornlie Family Centre describes the positive contribution the applicants make to their local community and of interest supports their residency in Australia and that of Chloe O’Leary confirms the commencement of the applicant’s daughter at a local school in Thornlie, Western Australia.
With respect to whether the evidence demonstrates that there are compelling circumstances that affect the interests of Australia which justify the granting of the visa, at hearing the applicant gave evidence that he has now resided in Australia for over ten years and has during that time abided by Australian laws and regulations. He stated that he is a person of good character and that through his work as a taxi driver assists disabled people getting to appointments, doing their shopping and attending to their other necessary commitments and in the community he makes a positive contribution to Australian society. He said that his wife pays her course fees and also abides by Australian laws
With respect to whether the evidence demonstrates that there are compassionate or compelling circumstances that affect the interests of an Australian citizen, Australian permanent resident or an eligible New Zealand citizen which justify the granting of the visa, the applicant gave evidence at hearing that amongst the passengers in his taxi there would be Australian citizens and permanent residents.
The second named applicant gave evidence at hearing in relation to the waiver factors which was consistent with that provided by the applicant, emphasising the extent to which the family is accepted by their local community and the extent to which the applicant helps people, through both his work as a taxi driver, but also neighbours. She said that his assistance to people has been important during the period of the COVID-19 pandemic.
The Tribunal accepts the applicants make a positive contribution to their local community and through the applicant’s work role as a taxi driver. The Tribunal accepts they have the positive regard of their neighbours and other community members and that this attests to the good character of the applicant and his spouse. The Tribunal accepts that through paying required course fees the second named applicant makes some contribution to the tertiary education sector during a difficult time in that sector. The Tribunal also accepts that as a person earning an income, the applicant contributes to the Australian economy through paying required taxes. However, when considered singularly, or cumulatively, the Tribunal is not satisfied these factors constitute compelling circumstances affecting the interests of Australia such that they justify granting the applicant’s visa.
In relation to consideration of whether there are compassionate or compelling circumstances that affect the interests of an Australian citizen, Australian permanent resident or an eligible New Zealand citizen which justify the granting of the visa, the Tribunal accepts that the applicant has provided valued assistance to frail and disabled neighbours and passengers in his taxi. The Tribunal acknowledges that neighbours and other members of the community in which the applicant and his family reside are likely to experience distress and a sense of injustice if the visa is not granted. The Tribunal is not however satisfied that these factors constitute compassionate or compelling circumstances such that they justify granting the visa.
The Tribunal acknowledges the applicant’s child was born in Australia and will experience a significant level of disruption in accompanying her parents to India. However, as she is not an Australian citizen or permanent resident of Australia, consideration of her best interests is not a consideration in determining whether the visa should be granted.
Therefore the requirements of PIC 4020(1) should not be waived.
On the basis of the above, the applicant does not satisfy PIC 4020 for the purposes of cl 500.317.
The second and third named applicants
Clause 500.217(1) requires that 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 three 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).
In the particular circumstances of this case, Mrs Shelza Moudgil, the second named applicant, is the spouse of the applicant, who was refused a Subclass 500 student (dependant) visa on 27 February 2019, as he failed to satisfy PIC 4020(1) for the purposes of cl 500.317 in relation to his visa application. As Mrs Moudgil and their child, the third named applicant, are members of the family unit of the applicant, the provisions of PIC 4020(2) prevent the grant of a student visa to her and the parties’ child within 3 years of the date of that decision, unless there are circumstances that would otherwise justify the granting of the visas.
For the reasons discussed in the section dealing with waiver considerations with respect to the applicant, the Tribunal is not satisfied that there are either compelling circumstances that affect the interests of Australia; or compassionate or compelling circumstances that affect the interests of an Australian citizen, Australian permanent resident or an eligible New Zealand citizen which justify the granting of the visas. This means Mrs Moudgil and the third named applicant fail to satisfy PIC 4020(2).
On the basis of the above, the second and third named applicants do not satisfy PIC 4020 for the purposes of cl 500.217.
There is no evidence the applicants meet the criteria for any other subclass within the class of visa.
DECISION
The Tribunal affirms the decision not to grant the applicants Student (Temporary) (Class TU) visas.
David Barker
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.
…

[2021] AATA 4039

21 October 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Natural Justice

Procedural Fairness

Statutory Construction