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

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).
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.
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.
The applicant was 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 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.
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…

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.

Continue reading Nansaljav (Migration)

Details

AGLC: Nansaljav (Migration) [2021] AATA 2685
Case: [2021] AATA 2685
Decision Date: 11 June 2021

CaseChat Overview and Summary

This matter concerned an appeal by an applicant, a national of Mongolia, against the decision of a delegate to refuse her application for a Student (Subclass 500) visa. The applicant had declared in her visa application that she had been offered a job upon completion of her course, and she provided an employee support statement to this effect. However, subsequent investigations by the Department indicated that her potential return employment had not been discussed with her employer. The delegate concluded that the applicant had provided false or misleading information in a material particular, thus failing to meet Public Interest Criterion (PIC) 4020(1).

The primary legal issue before the Tribunal was whether the applicant met the requirements of PIC 4020, specifically whether she had provided false or misleading information in a material particular in relation to her visa application. The Tribunal was also required to consider whether any compelling or compassionate circumstances existed that would justify waiving the requirements of PIC 4020(1) and (2), as permitted under PIC 4020(4).

The Tribunal affirmed the delegate's decision, finding that the applicant had indeed provided information that was false or misleading in a material particular. The Tribunal noted that the requirements of PIC 4020(1) and (2) could be waived in certain compelling or compassionate circumstances, but this waiver did not extend to the identity requirements under PIC 4020(2A) and (2B). In this case, the Tribunal found no evidence of compelling circumstances affecting the interests of Australia, nor compassionate or compelling circumstances affecting the interests of an Australian citizen, permanent resident, or eligible New Zealand citizen, that would justify granting the visa despite the failure to meet PIC 4020(1).

Consequently, the Tribunal affirmed the decision not to grant the applicant a Student (Temporary) (Class TU) visa.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

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

Evidence

Evidence Before The Court

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 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). 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. 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

There is no evidence before the Tribunal that the applicant meets the criteria for any other subclass within the class of visa sought.DECISION The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.David BarkerMemberATTACHMENTMigration Regulations 1994Schedule 44020(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 1958s 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.…

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.