Mushinwa (Migration)

[2018] AATA 4748

Mushinwa (Migration) [2018] AATA 4748 (25 September 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Aina Gloria Mushinwa
Mr Emeka Mushinwa
Miss Praise Excellent Mushinwa

CASE NUMBER:  1704328

DIBP REFERENCE(S):  BCC2016/2856112

MEMBER:Tim Connellan

DATE AND TIME OF

ORAL DECISION AND REASONS:          25 September 2018 at 2:59 pm (VIC time)

DATE OF WRITTEN RECORD:                12 October 2018

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decisions under review.

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) – Subclass 500 (Student) – misleading information – bogus document submitted – no compelling circumstances – decision under review affirmed

LEGISLATION
Migration Regulations 1994 (Cth), Schedule 2 cls 500.217, 500.311 Schedule 4 PIC 4020

APPLICATION FOR REVIEW

1. This is an application for review of decisions made by a delegate of the Minister for Immigration on 16 February 2017 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 25 September 2018 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:  You have been in Australia since 21 February 2014 and you lodged a student visa application on 29 August 2016

4. To be eligible for the grant of a student visa an applicant must satisfy a range of criteria set out in the regulations

5. Your application was refused on 16 February 2017 because the delegate found you did not meet a criterion 500.217 which deals with what are known as Public Interest Criteria.  (PIC)

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 cause 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.

7. In your case you provided certified copies of the Memorandum of Articles of Association, and the Articles of Association under the Companies and Allied Matters Act 1990 for John Fidel Global Concept Ltd.

8. The primary decision, a copy of which you provided with your review application, indicates that an investigation officer contacted the Corporate Affairs Commission of Nigeria and submitted the documents you provided for verification. 

9. An officer of the Corporate Affairs Commission confirmed that the documents provided were not issued by the Commission. 

10. You were advised that the verification process revealed documents were not genuine and were invited to comment.

11. For a range of reasons, you did not respond, and so the delegate was not satisfied and refused the application, which you appealed this decision for review.

12. Ms MUSHINWA:  Can I say something please?

13. MEMBER:  Not at the moment no, I am in the process of giving you a decision. 

14. The role of the Tribunal is to take a fresh look at your application, and consider whether you satisfy PIC 4020. 

15. If the Tribunal finds you have breached PIC 4020, the Tribunal must consider whether there are circumstances that would lead to the waiver of the criteria.

16. 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 are affect the interests of Australia, or compassionate or compelling circumstances that affect the interests of an Australian citizen, permanent resident or an eligible New Zealand citizen which justifies the granting of a visa.

17. In your case, in support of your application you provided the documents that we have referred to being the Memorandum of Association, and the Articles of Association of the company that were sent to the Corporate Affairs Commission of Nigeria for confirmation and the Corporate Affairs Commission confirmed that the documents were not issued by the Commission. 

18. You say those documents were provided to your uncle by his lawyer, and you have no idea of how it could have happened, and you claim there could have been a mistake. 

19. Your agent Mr Goh says that the documents were verified by the company lawyer.

20. In fact the Tribunal notes the stamps on the stamps on the documents indicate they have been verified by the Corporate Affairs Commission. 

21. However, the facts remain that when those documents were sent to the Corporate Affairs Commission for verification the report was that the documents were not provided by the Corporate Affairs Commission.

22. So the fact that you have provided evidence that was found to be not genuine leads the Tribunal to find that you do not satisfy PIC 4020.

23. The Tribunal then asked you a number of occasions whether or not there were compelling circumstances that met the definition that meant PIC 4020 should be waived, you failed to provide a satisfactory answer, and so the Tribunal finds there is no evidence before the Tribunal that there are compelling or compassionate circumstances that meet the definition that would lead to the waiver of the criteria.

24. In the circumstances it is the decision of the Tribunal that you have provided a document that is false or misleading in a material particular, you therefore do not satisfy 500.217. 

25. It is therefore the decision of this Tribunal affirm the decision under review. 

26. Regarding the secondary applicants, the Tribunal finds that they do not satisfy clause 500.311, their applications were dependant on your application and made on no other basis, and having found that you do not meet an essential criteria, their applications must also be affirmed.

27. So the decision of this Tribunal is to affirm the decisions in the review, this decision was made at 2.59 pm on this 25 September 2018.  The decisions will be emailed to you this afternoon.  Thank you for your time here today, Ms Mushinwa, thank you Mr Goh, this hearing is concluded.

    DECISION

28. The Tribunal affirms the decisions under review.

    Tim Connellan
    Member