Musa (Migration)

[2022] AATA 1030

Musa (Migration) [2022] AATA 1030 (1 March 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Muhammad Musa

REPRESENTATIVE:  Ms Preeti Dahal (MARN: 1796232)

CASE NUMBER:  2114089

HOME AFFAIRS REFERENCE(S):          BCC2020/1035500

MEMBER:Tim Connellan

DATE AND TIME OF

ORAL DECISION AND REASONS:         1 March 2022 at 1:38 pm (VIC time)

DATE OF WRITTEN RECORD:                8 April 2022

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision under review.

Statement made on 08 April 2022 at 3:17pm

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – bogus document – education qualifications – higher degree course cancelled – claims against education agent – compelling or compassionate circumstances – decision under review affirmed     

LEGISLATION

Migration Act 1958, ss 57, 65
Migration Regulations 1994, Schedule 2 cl 500.217; Schedule 4, Public Interest Criterion 4020

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 23 September 2021 to refuse to grant the visa applicant a Student (Temporary) (Class TU) Subclass 500 visa under the Migration Act 1958 (Cth) (the Act).

2. At the hearing on 1 March 2022 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. Mr Muhammad Musa you have been in Australia on a Student Visa since 19 November 2017. You lodged this application for a Student Visa on 6 March 2020.  To be eligible for the grant of a student visa an applicant must satisfy a range of criteria set out in the regulations.

4. Your application was refused on 23 September 2021 because the delegate found you did not meet a criterion in clause 500.217, which deals with what are known as Public Interest Criteria, which we abbreviate to PIC and pronounce PIC. 

5. One of those is PIC 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 the application for the visa, or a visa the applicant has held in the period of 12 months before the application was made.

6. Reading from your decision it says that on 6 October 2017 you lodged an application for a Student Visa, and with that application you submitted a copy of a Bachelor of Computer Science and Information Technology supposedly obtained in 2016 from NED University of Engineering and Technology in Pakistan.

7. Investigations conducted by the department concluded that the Bachelor of Computer Science and Information Technology certificate is a bogus document, and it is your evidence today at the hearing you have said, 'I did not complete that degree', despite the fact that that Bachelor's Degree was provided with your application.

8. On 16 September 2020 you were sent a section 57 ‘natural justice’ letter, inviting you to comment on the suspected bogus document provided to the department.

9. You did not respond and so the delegate found you had purposely misled the department. 

10. Furthermore, the decision states that you confirmed that your enrolment in a Masters of Information Technology from the University of Melbourne was cancelled due to fraudulent admission documentation. 

11. In the applicant's statement it was submitted to the department on 11 June 2020 the applicant declared:

    The University of Melbourne notified that my confirmation of enrolment was cancelled on 22 January 2018 due to fraudulent document, as my previous agent provided the documents that were fraudulent, and that agent has refunded the money from the University of Melbourne stating that.

    You therefore have acknowledged that fraudulent documents were submitted in support of your previous Student Subclass 500 Visa.  You continued to hold that visa until 10 March 2020, which is within 12 months before lodging this Student Visa application.

12. The delegate was not satisfied with your response and refused your application which you then appealed to this Tribunal.  You told the Tribunal you read and understood the decision, and from our discussions it was apparent that you did understand why the decision had been made.

13. However, you say, 'Well, yes, but I had no idea what was lodged, the documents were lodged by my consultant in Pakistan', which was somebody you say you engaged and paid $3,000 to lodge your application.  So, you had engaged an agent to act on your behalf, and that agent lodged what you now know to be fraudulent documents, and clearly what the agent knew to be fraudulent documents at the time. 

14. When asked where you believe they came from or how they were created, you provided no satisfactory answer, but clearly someone had a very clear understanding that fraudulent documents were being provided, and, therefore, there was knowing falsity involved in the provision of documents to the Tribunal.

15. It was in the period you held that visa until March 2020 up until you lodged this application.  And, so, on the evidence presented, the Tribunal finds that in support of a visa that you held in the 12 months immediately before this application, you had lodged a bogus document in support of that application, and therefore you do not satisfy PIC 4020.

16. As I explained to you, the decision as to whether or not a visa application is refused when an applicant fails to meet PIC 4020 may be waived if there are compelling circumstances that effect the interests of Australia, or compassionate or compelling circumstances that effect the interests of an Australian citizen, permanent resident, or an eligible New Zealand citizen which justify the granting of a visa.  When I explained that to you and asked you whether such circumstances exist, you responded you did not believe that such circumstances did exist.

17. The Tribunal is not satisfied that therefore there are compelling or compassionate circumstances that might lead to the waiver of the criterion.

18. In the circumstances, the Tribunal is satisfied you have breached PIC 4020.  You do not satisfy PIC 4020(4).  You do not satisfy clause 500.217.

19. And it is therefore the decision of this Tribunal to affirm the decision under the review.

    DECISION

20. The Tribunal affirms the decision under review.

    Tim Connellan
    Member