Olee (Migration)

[2022] AATA 3669

Olee (Migration) [2022] AATA 3669 (19 July 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Ashish Olee
Mrs Kabisha Baniya
Mr Ayan Olee

REPRESENTATIVE:  Mr Mark Edward Northam

CASE NUMBER:  2116385

HOME AFFAIRS REFERENCE(S):          BCC2020/2410794

MEMBER:Tim Connellan

DATE AND TIME OF

ORAL DECISION AND REASONS:         19 July 2022 at 2:23 pm (VIC time)

DATE OF WRITTEN RECORD:                11 October 2022

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the decisions under review with the direction that the primary applicant meets the following criteria for a Subclass 500 student visa:

· cl.500.217 of Schedule 2 to the Regulations

Statement made on 11 October 2022 at 4:24pm

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – misleading information in the visa application – applicant charged with an offence – applicant given conditional release order without conviction – legally correct answer – decision under review remitted          

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2 cl 500.217; Schedule 4, Public Interest Criterion 4020

APPLICATION FOR REVIEW

1. This is an application for review of decisions made by a delegate of the Minister for Home Affairs on 22 October 2021 to refuse to grant the visa applicants Student (Temporary) (Class TU) Subclass 500 visas under the Migration Act 1958 (Cth) (the Act).

2. At the hearing on 19 July 2022 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. Mr Ashish Olee, you first arrived in Australia on 23 August 2013 on a student visa. And on 2 October 2020 you applied for a Subclass 500 Student visa. On 22 October 2021 a delegate of the Minister made a decision to refuse you a visa on the basis that she found that you had provided evidence in support of your application that created a breach of PIC 4020, as it is called. It stands for Public Interest Criteria 4020; we abbreviate to and refer to it as PIC. There was no evidence that you had sought a waiver of PIC 4020, and consequently she found you did not satisfy clause 500.217, which is a requirement for the provision of a student visa.

4. You appealed to the tribunal for review of that decision, and with your application you included a copy of the primary decision, which you told the tribunal you had read and understood.  And when we discussed it today, it became apparent that you had a good understanding of why that decision has been made.  As I explained to you, the role of the tribunal is to conduct what is referred to as a de novo hearing, which means I consider your case afresh and make a new decision about your eligibility for a visa.  While it is my role to consider your case afresh, I must do so applying the same laws as those that were used by the Department.

5. As I said, the tribunal is independent on the Department, meaning that they do not tell us how to conduct our cases.  I have before me the Department file which includes all the material you provided with and in support of your application and the tribunal file which contains the information that has come in since you lodged your review application, and specifically a submission that came in from your agent, Mr Northam, who you only engaged very recently in this matter.  But that submission was detailed and most helpful.

6. And so, in making the decision I have relied on the information largely on Mr Northam’s submission and on what you have told me here today. The question is whether you satisfy clause 500.217 in Schedule 2 of the Migration Regulations, which provides that there is no evidence before the Minister - or in this case, the tribunal. The applicant has provided, or caused to be provided, a bogus document or information that is false or misleading in a material particular in relation to an application for a visa.

7. In support of your application and reading from your decision it says on 2 October 2020 you lodged your application and you declared no to the following questions under, “character declarations”: “Has the applicant ever been charged with any offence that is currently awaiting legal action?”  “Has the applicant ever been convicted of an offence in any country, including a conviction which is now removed from official records?”  Or, “Has the applicant ever been the subject of an arrest warrant or an Interpol notice?”

8. Department information indicates that you were charged on 16 October 2019 with assault occasioning actual bodily harm.  As a result, you were given a conditional release order without conviction for two years commencing on 16 October 2019, concluding on 15 October 2021.  The result of the Department information raises concerns that you had given or caused to be given information that is false or misleading in a material particular in relation to the application for a visa.

9. The information is a material particular as it directly relates to the assessment of your character and you are required to satisfy - it says PIC 4001, but I believe it means PIC 4020 - as part of the clause of clause 500.217(1) of the Regulations. Now, they provided you with a natural justice letter, and you provided a response. And there has been a range of information gone back and forth. Now, a submission that came in from Mr Northam that I received this morning says: “The reasons that Mr Olee’s visa application was refused focused on his answer of ‘no’ to the following three questions,” and it goes through those questions again.

10. “Have you been charged, convicted or subject to an arrest warrant?”  The facts of the matter are that you were charged with an offence, you were given a corrections order that lasted for two years commencing on 16 October 2019.  You were conditionally released without conviction.  And so, the question of addressing the separate limbs of that question: “Has the applicant been convicted of an offence?”  The answer is you were given a conditional release order without conviction.  And so, it is argued that there was no conviction and so the answer ‘no’ is a correct answer.

11. “Has the applicant ever been convicted of an offence in any country?”  You have provided a police clearance certificate from Nepal which shows you had no conviction over there.  Because there was no conviction recorded in this instance, the answer ‘no’ is also correct.  And the third arm, “Have you been the subject of an arrest warrant?”  The answer is ‘no’ to either of those.  So, the answer is clearly correct legally in all regards. 

12. From the available evidence then the tribunal finds that in support of your application you have answered that question accurately and have not provided evidence that was false or misleading in a material particular, nor provided bogus documents.  Therefore, the tribunal finds there is no breach of PIC 4020.

13. As the tribunal finds you have not breached PIC 4020, it is my intention to remit this matter to the Department with the direction that there is no breach of PIC 4020, and you therefore satisfy clause 500.217. So, the decision of this tribunal is that the matter is to be remitted to the Department with the direction that there is no breach of PIC 4020 for the purposes of clause 500.217.

    DECISION

14. The Tribunal remits the decisions under review with the direction that the primary applicant meets the following criteria for a Subclass 500 student visa:

    · cl.500.217 of Schedule 2 to the Regulations

    Tim Connellan
    Member