Narayanasamy (Migration)

[2021] AATA 3910

Narayanasamy (Migration) [2021] AATA 3910 (13 July 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Jothipriya Narayanasamy
Mr Karthik Shanmugam

CASE NUMBER:  2000606

DIBP REFERENCE(S):  BCC2019/3810223

MEMBER:Tim Connellan

DATE AND TIME OF

ORAL DECISION AND REASONS:         13 July 2021 at 3:15 pm (VIC time)

DATE OF WRITTEN RECORD:                26 July 2021

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decisions under review.

Statement made on 26 July 2021 at 2:07pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – bogus document in previous visa application – academic transcript – waiver of requirement – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 500.217; 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 30 December 2019 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 13 July 2021, 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. Mrs Narayanasamy, to be eligible for the grant of a student visa, an applicant must satisfy a range of criteria set out in the Regulations (1994).  You applied for a student visa on 1 August 2019.  Your application was refused on 30 December 2019 because the delegate found you did not meet a criterion in 500.217 which deals with what are known as public interest criteria that we abbreviate to PIC.  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 an application for a visa or a visa that the applicant held in the period of 12 months before the application was made.

4. In your case, the delegate found that you had been granted a Skilled Recognised Graduate Visa - a subclass 476 visa - in February 2018, that was valid until 11 September 2019.  So, it was the visa that was current when you applied for this current visa application and therefore was a visa that you held in the period of 12 months before the current application was made.  The delegate found that in that application, you had provided an academic transcript issued from Anna University Chennai, and Department investigations concluded that the academic transcript provided was a bogus document.

5. In response to an invitation to comment or respond to the suspected non-genuine information you provided a statement from your migration agent that we will go through shortly.  You also provided a letter from your employer of a business who said you played an important role in managing the day to day operations of the business.  The delegate was not satisfied with your response and refused your application and you appealed that decision to be reviewed by this Tribunal

6. As I said, the role of the Tribunal is to take a fresh look at your application and consider whether you are eligible for the grant of a student visa.  There are two steps in the process.  Firstly, the Tribunal must consider whether you have provided evidence that may be in breach of PIC 4020, and if satisfied that such a breach has occurred, it must consider whether the requirement to meet PIC 4020 should be waived

7. It can be waived if there are compelling circumstances that 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 justify the granting of the visa.

8. The situation is the Tribunal looks at the evidence provided which indicates that with your Skilled Recognised Graduate application you provided an academic transcript from Anna University in Chennai.  The Department contacted the university, provided them with evidence of the document provided, and the university advised that it was a bogus document

9. The submission from your migration agent is the argument you maintain here today. That submission was dated September 2019 and the agent has today told the Tribunal that your position is detailed completely in that statement and there is nothing further. The statement says you signed up with a local agent having completed your Bachelor of Engineering at Anna University.  And it says you were eligible for a 476 visa.  However, statement says: the agent has been involved in malpractice where they have misused information provided to them and used for other applicants who were not eligible for this visa.  This is how our client’s information has been misused, and this has led to our clients being sent a PIC 4020 notification stating that the client has provided bogus information to obtain their 476 visa.  The visa holder had no control how their agent would have used the information in their absence.

10. You say that, yes, the agent that you engaged used your information for applications of other applicants not you.  You also say that your application was lodged in June 2017, which was more than two years after you had completed your Bachelor of Engineering, and you say,  that is why the agent changed the college name and changed the arrangements of the documents that were submitted in support of your application.  And you say, ‘I had no idea that this is what was happening, or this is what was going on.’

11. The problem and as I have explained to you, is that all applications require an applicant to sign that they know and understand that the evidence provided in support of their application is genuine, and that they attest to the fact that it is the correct information.  It is only now, some considerable time later, that it has been discovered that this information is bogus that you say, ‘Yes, that was done by an agent, and I knew nothing about it.’ I am afraid that the problem is that is why we ask you to sign that ‘I know what is in this application, and it is all true and correct.’

12. The situation is, that there is no denying that the evidence provided was bogus.  You just say, ‘Yes, but it was done by an agent, not me.’ Your explanation does not satisfy me the information was provided by mistake, and I find it more likely that you were intending to purposely mislead the Department in an attempt to be granted a visa.  The fact that you provided evidence that on investigation was found to be non-genuine leads the Tribunal to find that you have breached PIC 4020.

13. In considering whether the requirement to satisfy PIC 4020 should be waived, you have provided evidence in the form of a letter from your employer, as I said.  Your agent has made the comment that your employer may have difficulty finding another worker like you should you have to leave Australia due to your visa refusal under PIC 4020.  The agent also says that people in India would treat you differently once you return home with a visa cancellation - this is, I suspect, cut and pasted from a submission made for one of his previous clients, because he refers to you in the male gender - and would affect your capacity to mingle with friends and relatives.  More importantly, unable to seek employment in your nominated field.

14. The situation is that you left Australia and returned home on 22 July last year, so you have been back in India for a year and with the current travel restrictions due to Covid19 have no prospect of returning to Australia in the immediate future.  And so, I presume that your previous employer has found someone else or has made alternative arrangements.  So I do not believe that constitutes a valid reason, and indeed, I do not believe that it satisfies the threshold that is quite a high threshold, where it refers to compelling circumstances that affect the interests of Australia or an Australian citizen.

15. You say your husband has remained in Australia, and he works as a machine operator for a company called Reliance Worldwide in Dandenong.  And they would have trouble replacing him.  I am not satisfied that a machine operator would be someone particularly difficult to replace.  But even if that were, I do not believe that lack of employment, or the removal of an employee of such a nature, is a compelling circumstances that affects the interests of Australia, or compassionate or compelling circumstances that affect the interests of an Australian citizen.

16. On the evidence presented, I am not satisfied there are compelling or compassionate circumstances that meet the definition that would lead to the waver of the criterion. 

17. In the circumstances, having found that you are in breach of PIC 4020 and that there are no compelling or compassionate circumstances, I find that you do not satisfy clause 500.217.  It is therefore the decision of the Tribunal to affirm the decision under review, which means the primary decision to refuse your application stands.

18. And this decision was made at 3.15 pm on 13 July 2021.

    DECISION

19. The Tribunal affirms the decisions under review.

    Tim Connellan
    Member