Nansaljav (Migration)

[2021] AATA 2685

Nansaljav (Migration) [2021] AATA 2685 (11 June 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Surenjav Nansaljav

CASE NUMBER:  1926436

HOME AFFAIRS REFERENCE(S):          BCC2019/1327738

MEMBER:David Barker

DATE:11 June 2021

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.

Statement made on 11 June 2021 at 1:58pm

CATCHWORDS
MIGRATION –Student (Temporary) (Class TU) visa – subclass 500 (Student) visa – false or misleading information– failed to meet the criteria in PIC 4020(1) – requirements of PIC 4020 can not be waived – compelling circumstances doesn’t justify the granting of the visa – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 359, 375, 376
Migration Regulations 1994, r 1.03, Schedule 2, cl 500.217

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
Trivedi v MIBP [2014] FCAFC 42
Sun v MIBP [2015] FCCA 2479

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 4 September 2019 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 15 March 2019. The delegate refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl 500.217 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) because they determined the applicant had provided false and misleading information in association with the visa application.

3. The applicant appeared before the Tribunal by teleconference on 12 May 2021 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mongolian and English languages.

4. The applicant was represented in relation to the review.

5. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   BACKGROUND

6. The applicant is a national of Mongolia and is 33 years of age. She first came to Australia on 12 February 2019 on a FA-600 Visitor visa, granted 29 January 2019 and valid to 12 May 2019. The decision record of the delegate, a copy of which was provided with the review application, indicates that the applicant, on 15 March 2019, applied for a Student (Subclass 500) visa. She has a husband and two children in Mongolia, and they were not included in the current application. Information provided by the applicant indicates she came to Australia on a holiday and after being here and talking to people she decided to apply for the Student visa so that she could enrol in English languages.

7. In support of her visa application, the applicant declared that she had been employed since 3 April 2018 as a safety engineer at Junson Construction LLC in Mongolia. The applicant provided an employee support statement from Junson Construction LLC confirming her employment as a construction safety engineer.

8. The delegate noted that the Department sent the applicant a natural justice letter on 24 July 2019, inviting her to comment on unfavourable information which did not support her application, namely that in her application for the Subclass 500 Student visa application, she declared ‘Yes’ in the Future Employment section to the question ‘Has the applicant been offered a job at the completion of their course?’.

9. The delegate noted that it appeared the applicant may fail to satisfy the criteria in PIC 4020(1) and (2), as the aforementioned response in her visa application form was information that was false or misleading in a material particular. This was because whilst the Department’s initial investigations with the applicant’s employment with Junson Construction LLC confirmed she had been employed with the company, further contact with the employer indicated her possible return employment with the company was not discussed with her. In response to the natural justice letter, the applicant provided the Department with a written statement and further copies of documents provided previously with her visa application.

10. Notwithstanding this response, 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 the criteria in PIC 4020(1) and also that there were not 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 justify the granting of the visa.

11. Prior to the hearing, the applicant provided the Tribunal with written submissions and attached annexures. Where relevant, the submissions and annexures are discussed below, as is the oral evidence provided by the applicant at hearing.

    Particulars of information put to the applicant pursuant to s 359AA of the Act

12. During the hearing, the Tribunal put particulars of information to the applicant from the Department file pursuant to s 359AA of the Act, after first explaining to her this information would, subject to her comment and response, provide the reason, or part of the reason, for affirming the decision under review. The Tribunal explained to the applicant that she could request time to consider her response and that the Tribunal would consider any such request.

13. The information was not covered by a Certificate issued by the Department under either s 376 or s 375A of the Act, which act to restrict access to information on Departmental files.

14. The particulars of information were that officers from the Department of Home Affairs, with the assistance of a Mongolian interpreter, contacted the owner of the company where the applicant was employed in Mongolia and the business owner confirmed the applicant’s employment. However, the owner stated that he had given the applicant leave to travel to Australia for a wedding and did not provide leave to complete studies in Australia. The owner also stated that the applicant had stolen a significant sum of money from the company before she left for Australia.

15. The Tribunal explained that this information was relevant as if the Tribunal was to rely on that information, it raises concern as to the reliability of the applicant’s claim to have an offer of employment upon her return to Mongolia and as to the reliability of documents she has provided in support of those claims.

16. The applicant requested further time to consider her response and the Tribunal consented to this request, giving her 14 days to provide her comments and response. The Tribunal subsequently received further submissions from her representative, dated 24 May 2021. Where relevant, these submissions are discussed below.

    CONSIDERATION OF CLAIMS AND EVIDENCE

17. The issue in this review is whether the visa applicant meets Public Interest Criterion 4020 (PIC 4020) as required by cl 500.217 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).

18. 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.

19. 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.

20. 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.

21. 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.

22. The Tribunal has reviewed the Student visa application lodged on 15 March 2019 and finds that the question in the Future Employment section ‘Has the applicant been offered a job at the completion of their course?’ was answered ‘Yes’.

23. In the statement provided in response to the natural justice letter sent to her by the Department in July 2019, the applicant claimed that only two people within the business where she had worked prior to coming to Australia were aware of her decision to study in Australia. This was Enkhtugs Galbadrakh, her senior engineer, and Bat-Ochir M, the company’s executive director and business owner.[1] The applicant stated that she asked that this information not be disclosed, as she is a private person and was at that stage unsure if she would be granted a visa allowing her to remain in Australia for the purpose of study. Her claim that she had conveyed the intention to only travel to Australia for a short period of time when she applied for a Visitor visa is consistent with some of the information gained through the Department’s liaison with her employer, who indicated that leave was approved for the purpose of attending a wedding in Australia. The employer reported that leave for the purpose of completing study was not approved.

    [1] Applicant at hearing confirmed Bat-Ochir M is the business owner, which is consistent with information on the company website >

    In her response to the natural justice letter, the applicant claimed that she was unable to get an updated work reference after receiving the natural justice letter, as the executive director was at that time overseas and other company directors were unwilling to provide her with the requested letter until the executive director returned to Mongolia. She claimed that a company policy, in response to a recent incident, was that they do not issue official work references for anyone temporarily. When asked at hearing about the nature of the incident which resulted in employees not being able to get work references, the applicant said that it was the executive director’s absence from Mongolia.

24. At hearing, the Tribunal asked the applicant if she had, since her visa was refused in September 2019, sought further documentation from Junson Construction LLC verifying the employment offer and thereby corroborating her claim to have completed the visa application honestly and accurately. The applicant said that she had not. When asked why she had not, the applicant provided an explanation for why she decided to seek a Student visa to undertake English language studies in Australia and steps she took to seek the employment reference in support of her visa application. When asked to address the question put to her, the applicant claimed that the executive director from the company remained offshore from Mongolia, in association with construction work the company had in the United States. In response to a question as to whether she could now seek a letter or similar official document attesting to her employment having being kept open for her, the applicant gave evidence that she would seek something from the senior engineer, who had provided her with previous documentation and passed on her request to the executive director who had signed the work reference.

25. The submissions received by the Tribunal in response to the particulars of information put to the applicant pursuant to s 359AA did not include any further documentary evidence from Junson Construction LLC attesting to an offer of employment at the completion of her studies in Australia being open to her at the time she applied for the visa in March 2019. The Tribunal considers this unfortunate, as it reflects a lack of third party evidence which may otherwise have significantly corroborated her claims. The Tribunal also considers it implausible that with the availability of email and other electronic communication mediums, which surmount geographical distance, it would be impractical for the applicant to seek documentation which would, as discussed, corroborate her claims in relation to her expectation that employment would be offered to her on completion of her studies. As to her claim Junson Construction LLC is a large company, which would make it difficult for an individual employee to request documentation, the Tribunal is not persuaded by this contention as her ability to get documentation from a distance and at relatively short notice appears evidenced by the documents sourced, as she claimed in her statement of purpose[2] ‘spontaneously’ in support of her Student visa application.

    [2] Statement of purpose provided with Student visa application.

26. The resubmitted documents provided to the Department in response to the natural justice letter include:

    ·A Certificate of Award, signed by the company executive director, which appears to have been awarded to the applicant in 2019, and associated photographs, which in the view of the Tribunal supports her claim that she was prior to her departure from Mongolia viewed as a valued employee;

    ·A copy of an employee support statement, on company letterhead, dated 11 March 2019, which states the applicant is employed as a permanent full‑time construction engineer. The letter states that her acquisition of English language skills would be of benefit in her employment role and confirmed ‘that her employment position will be available for her while she returns from studies in Australia’. The Tribunal notes that unlike most other documents provided by the applicant, this letter is written in English and does not appear to be a translation. It is signed, but there is no indication on the letter who has signed it;

    ·A translation of an undated handwritten note, not on the company letterhead, states that it is from the applicant’s senior engineer in the safety department at Junson Construction LLC and certifies that the request for a work reference was passed along to the company executive director;

    ·A translation of an undated brief reference, on the company letterhead, states that the senior engineer has been working as a head of the company’s safety engineering department;

    ·A pamphlet providing company information.

27. The Tribunal is unaware of conventions in letters and references provided in Mongolia. In the view of the Tribunal, it is of concern that two of these documents, a work reference from the applicant’s senior engineer and a brief reference regarding the employment status of that engineer at Junson Construction LLC, are undated. In the view of the Tribunal, it is unlikely business conventions would be that dissimilar to Australia such that such documents would ordinarily be undated. This has diminished the weight accorded to these documents. As to the employee support statement, the Tribunal is not persuaded it can have confidence as to who has signed this document. This is because the person is not identified, it is not apparent from the handwritten signature and the Tribunal is not persuaded that it can accept the applicant’s claims with regard to this issue without there being credible third party evidence to support her claim that this document is signed by the executive director of Junson Construction LLC.

28. The representative’s submissions provided to the Tribunal prior to the hearing reiterated the claims made by the applicant in her natural justice letter response and submitted that the signature on the work reference provided in association with the visa application is that of the company executive director. It was submitted that:

    In the support statement that our client has obtained from Junson Construction LLC, dated 11 March 2019, it was attested to that Ms Nansaljav is a permanent, full-time employee of the company with a position of construction safety engineer. In the said statement, it was further averred that:

    “Ms Nansaljav has expressed an interest in taking leave from her employment for up to one year to undertake English language studies in Australia.

    As her employer, we support Surenjav’s intention to undertake English language studies.

    Our company’s current and future construction projects involve English speaking workers. The ability to communicate through English will enhance Surenjav’s role as a construction safety engineer particularly when engaging with English speaking professionals and therefore benefit our organisation.

    I also confirm that her employment position will be available for her while she returns to Mongolia from studies in Australia.”

    Against the backdrop of the support statement that Junson Construction LLC favourably issued to Ms Nansaljav, and exclusively relying on that, she affirmatively answered the question that there has been a job offer at the completion of her course.

    The support statement speaks for itself. Res ipsa loquitur.

    Consider the following:

    1. Junson Construction LLC explicitly stated in the support letter that it supports Ms Nansaljav’s intention to undertake English language studies;

    2. The ability to communicate through English will enhance Ms Nansaljav’s role as a construction engineer when engaging with English speaking professionals and, therefore, would benefit the organization of Junson Construction LLC;

    3. The availability of the employment position is confirmed when Ms Nansaljav returns to Mongolia from her studies in Australia.

    There is no doubt, based on the foregoing, that the information contained in the support statement would lead any reasonable man to believe that Ms Nansaljav has been offered a job after the completion of her course in Australia.

29. The representative noted that the delegate had not asserted the employment support letter was bogus, rather focusing on the response in the visa application regarding future employment was false and misleading. The representative poses the question:

    If Ms Nansaljav based her answer on the support statement that was favourably issued to her by Junson Construction LLC, could she be faulted if it was later on disowned by an anonymous person whom the delegate spoke with about it?

    To Ms Nansaljav’s “knowledge,” she was of the understanding, and rightly so, that she did not forfeit her role at the company by virtue of her overseas studies in Australia because the company supported her in her endeavour due to its benefit to the organization. In fact, the company confirmed that her employment would still be available upon her return to Mongolia from her completion of her studies in Australia. If the company had reneged on the support letter, it is no longer the fault of Ms Nansaljav because, at the time that she answered the crucial question about an outstanding job offer after completion of studies, she merely faithfully relied upon the entries in the support statement which positively confirmed that she would be able to return to her role after her completion of her studies in Australia.

1. With respect to the sequence of events, the Tribunal notes the employee support statement is dated ‘2019 3 11’. The Tribunal has taken this date to be 11 March 2019. Officers from the Department first contacted a representative of Junson Construction LLC on 12 June 2019 and further contact was made with the owner of the company on 19 June 2019. Whilst these Departmental investigations took place some 3 months after the date on the employment support letter, the Tribunal is not persuaded the provision of information to Departmental officers on those later dates establishes that an earlier offer of employment was subsequently disowned by an anonymous person.[3] This is because the person with whom the Departmental officers spoke was not anonymous, as they report it was the owner of Junson Construction LLC, and the Tribunal has no reason to disregard the reporting of the Departmental officers with regard to the identity of this person. The information provided to the Department did not disown or disavow earlier information in an implausible way, it was merely different to the claim on the employment support letter, in that whilst confirming the applicant had been an employee and had been granted leave for a trip to Australia to attend a wedding, the business owner indicated that leave to undertake study was not approved.

   [3] Submissions received from the applicant’s representative, dated 5 May 2021.

2. The content of information provided by the business owner suggests he was aware of the applicant and her travel to Australia prior to her departure on the Visitor visa, which in the view of the Tribunal makes implausible a contention that an earlier job offer was made, on the basis of absence from work for an extended period whilst the applicant completed studies in Australia, which the business owner was unaware of and did not authorise.[4] This is because the business owner and the executive director are the same person, and it is he who is claimed to have signed the employment support letter.

   [4] Submissions received from the applicant’s representative, dated 5 May 2021, refer to an anonymous person, which the information put to the applicant pursuant to s 359AA makes apparent is the business owner.

3. The s 359AA response contends that the applicant has been ‘unkindly accused of a non‑existent commission of a criminal act’, which ‘has prompted the Tribunal to shift the burden to Ms Nansljav to disprove the malicious charge of theft’. The Tribunal notes that the purpose of putting the information provided to the Department by the owner of Junson Construction LLC was to invite her to comment on adverse information that would, subject to her comment or response, provide the reason, or part of the reason, to affirm the decision under review. In this respect, it invited the applicant to respond to concerns about how this information reflected on the reliability of her claims and her general credibility. She has provided the Tribunal with two documents which in the words of the representative ‘demonstrate her righteousness’,[5] which the Tribunal has taken to be documents that discredit allegations against her that she stole money from her employer. These are a Mongolian Police Agency Reference on Criminal Liability, dated 12 May 2021, stating that there is no criminal record on the State database in relation to the applicant; and the equivalent of a credit check issued by the Mongolian authorities, also dated 12 May 2021, indicating that the applicant has never received any debt to any legal entities or individual.

   [5] 359AA response received 24 May 2021.

4. The s 359AA response contends that the applicant would not have taken the risk of undergoing these checks with the Mongolian authorities if there was substance to the allegation she stole money from her employer. The Tribunal has given some weight to this evidence, but does consider the credit check to show only that there was no formally registered debt or contractual obligation involving the applicant in her home country and is not persuaded money stolen by an employee would be so registered by a legal entity such as the company where she worked. The Tribunal has given weight to the criminal record check as an indication the applicant has no recordable criminal convictions in Mongolia and is likely to have no outstanding criminal charges there.

5. Whilst the Tribunal has given some weight to the evidence the applicant has provided in relation to the criminal record and credit checks in her home country, the Tribunal is not satisfied these discredit the results of Departmental investigations, as the Tribunal considers the information provided by the business owner which displayed their awareness of the applicant’s overt reason for travel to Australia, to attend a wedding, is an indicator this information is reliable. If the Tribunal accepts this information as reliable, it can see no reason to not accept the other information, regarding the alleged theft of money, provided to Departmental officers by the business owner. The lack of formal charges or registration of a contractual debt with the Mongolian authorities does not in and of itself make the business owner’s claims implausible.

6. In terms of the relevance of the alleged theft, the Tribunal does not consider any such action to be a determinative issue, rather it is a particular of information the Tribunal considers relevant because of the implication it holds as to the reliability of the applicant’s claims and as to the genuineness of the documents she has provided in support of these claims.

7. The Tribunal considers the submissions received to have appropriately identified the distinct questions to be asked by a decision-maker when considering whether PIC 4020 is satisfied for the purpose of cl 500.217, namely whether either bogus documents or information that is false and misleading in a material particular was given, or caused to be given, in association with the Student visa application lodged on 15 March 2019. The Tribunal acknowledges the representative’s submission that the delegate only considered the question as to whether the applicant’s response on the visa application was false and misleading. With respect to this question, the Tribunal is satisfied that the submissions put forward a reasonable argument in support of the applicant, provided the employment support letter is genuine, but notes that the scope of the current review encompasses both questions, as the decision before the delegate was whether cl 500.217 was satisfied and was not restricted to consideration of only whether information that is false and misleading in a material particular was given, or caused to be given, in association with a visa application.

8. The Tribunal notes the submission that the applicant ‘exclusively’ relies on the employee support statement to support her claim that at the time it was given, her response in the affirmative on her visa application, as to whether she had an offer of employment on completion of her course of study, was an accurate and therefore not false and misleading response. With respect to this factor, the Tribunal considers the Department’s investigations to raise concern as to whether the employee support statement is genuine. This is because whilst the employment support letter explicitly discusses support for the applicant’s intention to study in Australia, the Department’s investigations indicate approval for the applicant’s study in Australia was not provided by the business owner.

   Has the applicant given, or caused to be given a bogus document, or information that is false or misleading in a material particular?

9. In relation to whether a work reference provided in association with the Student visa application is a bogus document, the Tribunal notes that the phrase ‘bogus document’ for the purpose of PIC 4020(1) is defined in s 5(1) of the Act, which provides the meaning to be a document that the Minister reasonably suspects [emphasis added] 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.

10. To meet the definition of ‘bogus document’, there need only be a ‘reasonable suspicion’ of a document being bogus, not probative evidence. In Sun v MIBP [2015] FCCA 2479 at [45] the Court stated that the primary issue in terms of a person’s authority to alter documents under paragraph (b) of the definition of ‘bogus document’ is whether the decision‑maker reasonably suspects there was a lack of authority, not whether that authority was lacking as a matter of fact. It flows from this that the relevant test is whether the Tribunal reasonably suspects the document is a document that falls within one of the 3 reasons as set out above,[6] not whether one or more of the 3 reasons is satisfied as a matter of fact.

    [6] The 3 limbs as defined in s 5(1) of the Act.

11. In the circumstances of this case, the Tribunal has a reasonable suspicion the employment support letter purported to be signed by Bat-Ochir M, executive director of Junson Construction LLC, is counterfeit, as the Tribunal is not satisfied the evidence has established it was signed by him. In forming this suspicion, the Tribunal is not satisfied the applicant has provided an adequate explanation for why the Tribunal should disregard the Departmental investigations with the business owner, that is, Bat-Ochir M, which contradict significant aspects of information detailed in the employment support letter.

12. On the basis of the evidence before it, the Tribunal finds that the employment support letter, dated 11 March 2019, given by the applicant in association with the Student visa application, is a bogus document as defined in s 5(1).

13. As to whether the applicant’s response to the question in the visa application is false and misleading in a material particular as defined in PIC 4020(5), the Tribunal finds that the “yes” response was false or misleading at the time it was given. The Tribunal makes this finding on the basis that the bogus, non-genuine employment support letter, provided in support of the application, creates the circumstance where the applicant’s claim to have an expectation that she would have employment with Junson Construction LLC is not plausible, as it is based on an unsubstantiated claim that this expectation flowed from the approval of the business owner for her studies in Australia. The available evidence does not in the view of the Tribunal support this claim.

14. The Tribunal is satisfied the response provided on the visa application, with respect to the offer of employment on completion of her studies, has a deceptive quality, as it is associated with a document which the Tribunal has found to be counterfeit. The Tribunal also considers the response to be material to the assessment of the applicant’s qualification for a Student visa, in that it is relevant to consideration of cl 500.212, which provides for required consideration of whether the applicant is a genuine temporary applicant for entry to Australia for the purpose of study.

15. On the basis of the evidence before it, the Tribunal finds that the response “Yes” in the Future Employment section to the question ‘Has the applicant been offered a job at the completion of their course?’ is false or misleading in a material particular as defined in PIC 4020(5).

16. Therefore, the applicant does not meet PIC 4020(1).

    Should the requirements of PIC 4020(1) or (2) be waived?

17. 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.

18. 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.

19. For the following reasons, the Tribunal is not satisfied that the requirements should be waived.

20. In relation to whether there are compelling circumstances that affect the interests of Australia that justify the granting of the visa, the applicant gave evidence that she completed the English language courses in which she had enrolled and is now studying project management. She said her decision to enrol in further courses was influenced by the coronavirus pandemic and her wish to gainfully occupy herself whilst in Australia. She said she is not working in paid employment in Australia and that the economy here benefits from the funds she spends on her education and other living expenses, with these funds coming from her savings or sent to her by her husband in Mongolia. The Tribunal acknowledges the benefit to the Australian education industry and broader economy from overseas students studying in Australia. However, the Tribunal is not persuaded this benefit constitutes a compelling circumstance that justifies the grant of the visa.

21. In relation to whether there are compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen that justify the granting of the visa, the applicant identified no such circumstances. The Tribunal has considered the available evidence and has not itself identified any compassionate or compelling circumstances that justify granting the applicant’s visa.

22. Therefore, the requirements of PIC 4020(1) should not be waived.

23. On the basis of the above, the applicant does not satisfy PIC 4020 for the purposes of cl 500.217.

24. There is no evidence before the Tribunal that the applicant meets the criteria for any other subclass within the class of visa sought.

    DECISION

25. The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.

    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.

    …