Nalwanga (Migration) - [2020] AATA 5660

Nalwanga (Migration) [2020] AATA 5660 (24 September 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Ms Priscilla Bbosa Nalwanga
CASE NUMBER:  1901882
DIBP REFERENCE(S):  BCC2018/4624654
MEMBER:Mark Bishop
DATE:24 September 2020
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.

Statement made on 24 September 2020 at 12:41pm
CATCHWORDS
MIGRATION –Student (Temporary) (Class TU) visa – subclass 500 (Student) visa – false or misleading information– requirements of PIC 4020 can not be waived – compelling circumstances don’t justify the granting of the visa –decision under review affirmed
LEGISLATION
Migration Act 1958, ss 65, 359
Migration Regulations 1994, r 1.03, Schedule 2, cl 500.217, Schedule 4
CASES
Arora v MIBP [2016] FCAFC 35
Batra v MIAC [2013] FCA 274
Kaur v MIBP [2017] FCAFC 184
Plaintiff M64/2015 v MIBP [2015] HCA 50
Singh v Minister for Immigration & Anor (2016) FCCA 774
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 Immigration on 22 January 2019 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s.65 of the Migration Act 1958 (the Act).
The applicant applied for the visa on 22 October 2018. The delegate refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl.500.217(1) of Schedule 2 to the Migration Regulations 1994 (the Regulations) because they found that the applicant had provided false or misleading information to the Department and therefore did not satisfy the PIC 4020 criteria.
The applicant applied for review of the delegates decision to refuse to grant the visa on 28 January 2019. On 7 July 2020 the applicant was invited under s.359(2) of the Act to provide information to the Tribunal in writing addressing the criteria in Schedule 4 to the Regulations. The Tribunal advised that the requested information should be received by a certain date. The applicant requested an extension of time on 19 July 2020, the request for an extension of time was refused and on 20 July 2020 the applicant provided information to the Tribunal.
On 24 September 2020, the applicant appeared before the Tribunal by telephone to give evidence and present arguments. The applicant was represented in relation to the review by a registered Migration Agent who also attended the hearing by telephone. The Tribunal also received oral evidence from two of the applicant’s colleagues from her current place of employment, the service manager and care coordinator.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this review is whether the visa applicant meets Public Interest Criterion 4020 (PIC 4020) as required by cl.500.217(1) for the grant of the visa. Broadly speaking, this requires that:
·there is no evidence that the applicant has given, or caused to be…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2020] AATA 5660
Decision Date

CaseChat Overview and Summary

This matter concerned an application for review by Ms. Nalwanga of the refusal of her Student Subclass 500 visa by the delegate of the Minister. The Administrative Appeals Tribunal (AAT) was required to determine whether the applicant met Public Interest Criterion (PIC) 4020, which is a mandatory requirement for the grant of the visa.

The primary legal issue before the Tribunal was whether the applicant had provided a "bogus document" or "information that is false or misleading in a material particular" in support of her visa application, thereby engaging PIC 4020(1). This criterion requires that an applicant has not 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 or information that is false or misleading in a material particular in relation to the application for the visa or a visa held in the 12 months prior. The Tribunal also considered the definition of "bogus document" and "information that is false or misleading in a material particular" as provided in the Migration Act 1958 (Cth) and relevant case law.

The Tribunal affirmed the delegate's decision to refuse the visa. The delegate had found that the applicant had provided a bogus bank statement and supporting letter from her uncle, Musaazi Isaac, in relation to her financial capacity. Investigations by the Australian High Commission, Nairobi, revealed that the United Bank of Africa had stated that while the account belonged to the named holder, the transactions and balances did not correspond with bank records, and the statement was not issued by an authorised signatory. Although the applicant responded by stating her uncle had advised the funds were used for a building project and that she had provided the documents on his word without knowledge of their falsity, the Tribunal placed strong weight on the departmental investigations. The Tribunal concluded that the applicant had given or caused to be given a bogus document, and therefore was not satisfied that she met PIC 4020(1).

Orders

Orders of the court

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Background

Background to the litigation

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.Background to Review Application The Tribunal has prepared the following timeline based upon information provided by the applicant and evidence given to the Tribunal:Jan 2014·Applicant arrived in Australia (TU 576 visa)Nov 2014 ·Employed as Personal Care Worker, Murray Mudge Residential Aged Care, Glenelg SA (worked until Aug 2015)Jul 2015·Completed Master of Public Health, University of AdelaideAug 2015 ·Applicant departed AustraliaOct 2015·Employed as Registered Nurse Consultant, Makerere University-John Hopkins University, Kampala Uganda (worked until January 2016)Apr 2016·Employed as a Registered Nurse Study Coordinator, Makerere University-John Hopkins University, Kampala Uganda (worked until June 2018)Jan 2017·Applicant’s son bornJul 2018·Applicant arrived in Australia (600 Visitor visa)·Completed IELTS test overall test score 7.5Jul 2018 ·Employed as Registered Nurse Bridging Student Placement Townsville Hospital Health Service (worked until 7 September 2018)Sep 2018·Employed as Registered Nurse Bridging Student Placement St Jude’s Hostel Guildford WA (worked until 14 September 2018)·Completed Initial Registration for Overseas Registered Nurses, Institute of Health and Nursing Perth WA22 Oct 2018 ·Applied for student visaNov 2018 ·19 Nov 18 applicant obtained APHRA ·Commenced Graduate Diploma of Nursing (1-year course that the applicant did not complete. See in addition paragraph 34 below.)Jan 2019·22 Jan 19 - Student visa application refused by delegate·28 Jan 19 – applicant applied to AAT for review of the delegates decision4 Jun 2019·Applicant commenced employment with Amana Living15 June – 16 July 2019·Applicant travelled to Uganda to see her sonJun 2020·Obtained AHPRA registration (until May 2021)Aug 2020·Commenced Diploma of Community Services at Western Australia Institute of Further Studies·8 Aug 20 - Applicant moved to Kalgoorlie WA to work as a registered nurse at Edward Collick Care HomeSep 2020·WAIFS confirmed applicant can continue to study onlineAug 2021·Due to commence Advanced Diploma of Community Sector Management at Western Australia Institute of Further Studies In evidence to the Tribunal the applicant advised the timeline outlined in paragraph 11 above was correct in all respects.Evidence before the Tribunal The applicant applied for a Student Subclass 500 visa on 22 October 2018 while onshore. The applicant provided with her application for a student visa various documents in support of her application including, identity documents, a statement for Genuine Temporary Entrant, a copy of a Certificate of Overseas Health Cover dated 19 October 2018, academic transcripts for Bachelor of Science in Nursing from Makerere University, Master of Public Health from University of Adelaide, a certificate of competition for Initial Registration for Overseas Registered Nurses from Institute of Health and Nursing Australia, letter of offer and Overseas Student Confirmation-of-Enrolment for a Graduate Diploma of Nursing at the Institute of Health and Management. The applicant also provided evidence of financial capacity including a supporting statement from the applicant’s aunt and uncle and a bank statement from the United Bank of Africa for the period 16 May 2018 to 18 October 2018 in the applicant’s uncles name.

Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.CONSIDERATION OF CLAIMS AND EVIDENCE The issue in this review is whether the visa applicant meets Public Interest Criterion 4020 (PIC 4020) as required by cl.500.217(1) 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.Has the applicant given, or caused to be given a bogus document, or information that is false or misleading in material particular? The term ‘information that is false or misleading in a material particular’ is defined in PIC 4020(5) and 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.

Decision

Reasons for decision

The Care-Coordinator and Clinical Nurse also gave evidence to the Tribunal. She advised she was the head of the clinical team and the facility in Kalgoorlie was 89 beds and provided both high and low care. She advised there was a shortage of registered nurses in Kalgoorlie and her facility relied on agency staff to work in Kalgoorlie. She advised the facility was actively looking to fill vacancies.Delegate’s Decision The delegate made a set of findings. The Tribunal reproduces those findings and background without amendment: There is evidence before the Minister that the applicant has provided, or caused to be provided, a bogus document or false or misleading information in relation to this visa application. In support of their TU 500 Higher Education student visa application lodged on 22 October 2018, the applicant submitted a letter from United Bank of Africa. The bank letter indicates the account holder is Musaazi Isaac, who the applicant has declared is their uncle who will be supporting them financially during their studies. The letter dated 18 October 2018 indicates that Musaazi Issac, who holds account no. 0280012887, has an account balance as at 13 October 2018 of Uganda Shilling (UGX) 186,337,814.00 which is approximately AUD $68,826. I note that the applicant also provided a Statement of Account from United Bank of Africa dated 18 October 2018. The statement shows Musaazi Isaac’s bank transactions from 16 May 2018 to 13 October 2018 with the last account balance being UGX 186,337,814.60. On 13 December 2018, a Departmental Officer from the Australian High Commission, On 13 December 2018, a Departmental Officer from the Australian High Commission, Nairobi emailed United Bank of Africa. A response was received from the bank the same day. A representative of the United Bank of Africa stated that the bank account belongs to the said account holder. However, the transactions and balances did not correspond with the bank records and that the statement was not issued by an authorised signatory. The bank representative also added that the current bank balance is not available and that the account holder has not informed the bank of the said sponsorship. This information raises serious concerns that the applicant has provided “bogus” documentation in support of their application. The applicant was provided with 28 days to provide comment on the suspected ‘bogus’ documentation supplied to the department. I acknowledge the response received from the applicant on 12 January 2019. The applicant has provided a statement claiming that they spoken with their uncle who provided the bank statement and that their uncle had advised them the funds were used to finance a building project. The applicant has written that had they submitted the bank statement and transaction accounts on the word of their uncle as they had no way of proving their authenticity. The applicant added they would never had provided the bank documents form their uncle had they known they were falsified. In addition, the applicant provided a bank statement in their own name from the National Australia Bank Limited dated 10 January 2019 with a closing balance of AUD $3,615.20. I have considered and assessed all the information before me. This includes the information provided in the applicant’s higher education student visa application, the results of the departmental investigations and the information the applicant provided in response to the outcome of the investigations. I do not find that the information provided by them allays the concerns held, and I place strong weight on the information obtained during the course of the Departmental investigations. Based on the evidence and information before me, I find that the applicant has given or caused to be given a bogus document. Accordingly, I am not satisfied that the applicant meets Public Interest Criterion (PIC) 4020, subclause 4020 (1).

Ratio Decidendi

Legal Principle Established

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