Ou (Migration)

Ou (Migration) [2023] AATA 3837 (20 October 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Yuhao Ou
REPRESENTATIVE:  Ms Cheryl Wong
CASE NUMBER:  2210617
HOME AFFAIRS REFERENCE:               BCC2021/46516
MEMBER:Peter Booth
DATE:20 October 2023
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the application for a Student (Temporary) (Class TU) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 500 (Student) visa:
Public Interest Criterion 4020(2A) for the purposes of cl 500.217 of Schedule 2 to the Regulations.·

Statement made on 20 October 2023 at 9:29am
CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – bogus document – Chinese national identity card – claimed third party fraud – conduct of the migration agent – satisfaction as to the applicant’s identity – time of decision requirement – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 500.217; Schedule 4, PIC 4020
CASES
Arora v MIBP [2016] FCAFC 35
Batra v MIAC [2013] FCA 274
Maharjan v Minister for Immigration and Border Protection [2017] FCAFC 213
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 Home Affairs on 6 July 2022 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 29 March 2021. 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).
The applicant appeared before the Tribunal on 6 September 2023 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s father, Mr Xiaohua Ou. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
The applicant was represented in relation to the review. The representative attended the Tribunal hearing.
For the following reasons, the Tribunal has concluded that the decision under review should be remitted.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this review is whether the 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.
Has the applicant given, or caused to be given, a bogus document or information that is false or misleading in a 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.
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
On 7 June 2018 the applicant was granted a student visa valid until 7 April 2021. In support of that application the Department was provided with several documents including a Chinese identity card in respect of the applicant ending in the numbers 2576 (the first identity card).
On 29 March 2021 the applicant applied for the student visa in question and in support of which provided various documents including a Chinese identity card in respect of the applicant ending in the numbers 1817 (the second identity card).
The Department investigations concluded that the first identity card was counterfeit and the applicant was invited to make comments. On or about 17 May 2022 the applicant wrote to the Department. The letter is unsigned, undated and without page or paragraph numbers. The applicant stated that he was a victim of a “scam” by the migration agent in China who had lodged the first student visa application. He stated that he was unaware of the false document until informed of it by the Department.
The delegate’s decision to refuse the application stated as follows:
Based on the evidence and information before me, I find that the applicant has admitted that the ID documents provided in support of the Student visa application lodged on 07 June 2018, in which the applicant was deemed to have met all relevant criteria including PIC 4020, was bogus. Had the Department identified at that time about the bogus documents submitted in support of their previous application, their Student visa subclass 500 may have been refused (or cancelled if the deceit had been found out after grant).
I acknowledge that the applicant claims that their agent mut have provided false documents to the Department. However, under policy it is the responsibility of the applicant to ensure the documents and information in the application are truthful, even if a migration agent or third party is acting on their behalf. ‘Given, or caused to be given’ refers to a document and/or information provided to the delegate, either directly from the applicant or by a third party on behalf of the applicant. It is not necessary for the Department to show knowing complicity by an applicant in the provision of a document and/or information; it is sufficient that the applicant is aware of the visa application even if they are ignorant of the specific content. It is the responsibility of every applicant to ensure that the documents and information provided in a visa application are truthful, even where an agent or third party acts on the applicant’s behalf.
The Department's concern is that the applicant's identity is non-genuine given their history of providing bogus identity document to affect a positive visa outcome. Based on the available information in this application, the applicant's identity cannot be adequately verified, thus the Department does not know who they really are. Therefore, I am not satisfied that the applicant meets PIC 4020(2A).
Consequently, I am satisfied that clause 500.217 has not been met.” [emphasis added]
On 22 July 2022 the applicant applied to this Tribunal for a review of the delegate’s decision.
At about the time of lodging the application for review the applicant provided a copy of his unsigned and undated letter to the Department referred to above.
By letter dated 14 July 2023 the applicant was invited to comment upon the conclusions of the delegate and provide any evidence upon which he intended to rely in support of his application for review.
On 30 August 2023 the applicant’s representative provided a variety of documents. They were not referred to by the applicant or by the representative at the hearing nonetheless they have been taken into account by the Tribunal and given appropriate weight. The Tribunal makes several observations in relation to those documents. A statement from the applicant’s father dated 30 August 2023 was provided in an English translated form. It is without page or paragraph numbers (the father’s statement). The father’s statement provides a narrative of events, namely, that the applicant decided to study in Australia and after making some enquiries, he (Mr Ou, the applicant’s father) contacted Zheng Yan (Yan), a Chinese migration agent specialising in Australian student visa applications. They agreed on the fee for the service, and he agreed to open a joint account with Yan and deposit the fee in advance. Yan would pay the relevant fees as and when they were due without recourse to Mr Ou. He provided documents to Yan including the applicant’s Chinese identity card, household registration book and the like. He provided original documents to Yan and instructed Yan not to use any illegal or improper means to obtain the student visa. He retrieved the original documents from Yan approximately one week later, thereafter he was informed that the student visa had been granted and he together with the applicant attended Yan’s premises and were provided with relevant documents by Yan. The applicant travelled to Australia and upon his arrival informed his father who in due course attended a bank with Yan’s husband and transferred the money from the joint account into the account of Yan’s husband. Neither he nor the applicant were aware of any fraudulent or bogus documents until informed by the Department sometime later. After the hearing the applicant’s representative provided a short amending statement from Mr Ou dated 11 September 2023, in which he clarifies that after becoming aware of the impugned documents, he attempted to contact Yan but he could not find Yan’s telephone number and therefore was not able to contact her.
A statement from the applicant was also provided, translated from the Chinese, and without page or paragraph numbers. It is dated 30 August 2023. The applicant’s statement mainly deals with his study history. Insofar as it deals with the bogus documents he states that he was unaware of any problem with his student visa application until notified by the Department. Upon being informed by the Department of the problem, he informed his father who tried to contact Yan but was unable to do so. He asserts that Yan was provided with “genuine original documents” however it is clear that he did not provide those documents and he does not assert that he did so. After the hearing was concluded the applicant’s representative provided a short amending statement from the applicant dated 11 September 2023 which clarified the date on which he obtained a vocational qualification. It is irrelevant for present purposes.
Another statement by the applicant was also provided, translated from the Chinese into English, dated 30 August 2023 and without page or paragraph numbers (the applicant’s second statement). However it largely deals with the relationship with Yan and provides a very similar narrative to that of his father. The applicant’s second statement is on the basis that most if not all of the contact with Yan was by the applicant’s father, the applicant having very little contact directly with Yan. His father agreed on the fee and the applicant “followed the instructions and cooperated with my father and Zheng Yan”. He asserts that he never suspected Yan would submit bogus documents, he provided his father with original documents as requested, he did not know what Yan submitted to the Department. She did not provide the applicant with a list or copies of the submitted documents. He was asked to sign documents but cannot recall the details although one document was about an agreement to pay the fee to Yan upon his arrival in Australia. He was provided with the student visa and other relevant documents, he travelled to Australia and upon his arrival informed his father. He was not aware of any issue with the probity of the documents until informed by the Department sometime later. When informed of the issue about the documents he tried to contact Yan but was unable to do so. Upon reviewing the documents which were submitted the applicant states that his Chinese identity card, the notarised birth certificate and the notarised academic certificate are not genuine. He contacted the relevant notary office in China on 16 August 2023 and was informed that they had no record of the two notarised documents. The remainder of the applicant’s second statement traverses issues relevant to his true identity such as his Chinese passport and identity card with numbers ending in 1817, which he states are valid.
Next a copy of the applicant’s first student visa application form was provided. In that document the applicant’s Chinese identity card number is stated to end in the numbers 2576, the point of contact email address is stated to be “[email]” and the document states “no” to the question as to whether the applicant authorised another person to receive any written correspondence on his behalf.
A translated notarial certificate dated 24 August 2023 states that the applicant was born on 11 August 1998, is ID card number ends in the numbers 1817 and that the documents provided were authentic.
A translated notarial certificate dated 22 August 2023 states that the applicant was born on 11 August 1998 and certifies the copy of his birth certificate.
Another translated notarial certificate dated 24 August 2023 certifies that the applicant’s passport is a true document.
A letter dated 30 August 2023 from Cen Construction Pty Ltd confirms that the applicant is a part-time employee and has been since June 2020. His employer is aware of the applicant’s circumstances and of these proceedings, “I have invested significant time and effort in training (the applicant) over the past three years. If he has to leave Australia now it would take me another three years to train a new apprentice to reach the same level of proficiency as him. In the meantime I face the challenge of finding an appropriate replacement for (the applicant) which is particularly difficult given the current employee shortage in the market”.
Other documents were provided but are more relevant to the question of whether the applicant is a genuine temporary entrant, and not relevant to the purposes of the purportedly bogus documents.
The hearing
The applicant gave evidence at the hearing, the substance of which was as follows. The applicant had read the delegate’s decision refusing his application for a student visa dated 6 July 2022.
The Tribunal proceeded to ask the applicant some questions, the substance of which and his responses were as follows.
The Tribunal put to the applicant that he applied for a student visa which was granted on 7 April 2021. He said “I apply for student visa but not approved”. It was further put to him that in support of that application he provided the first identity card. He said “not correct”. It was then put to him that the identity card which was provided to the Department in support of the first student visa application was the first identity card. He replied “what the Department has received I don’t know, but if the ID card provided to Yan was the second identity card”. The Tribunal put to the applicant that the Department received the first identity card in support of the first student visa application and asked him whether he agreed. He said “I’m not sure whether he used the first or the second identity card but if the Department got the first identity card I think I agree”. The Tribunal observed the whole point of the applicant’s case is that the Department was provided with the first identity card, it was not his true identity card and that he had no knowledge of the provision of that document to the Department and asked how he could be equivocal in his evidence about that. He responded “I provided a document in my own identification, the second, the one I provided to Yan ending in 1817. I don’t know how it could end up with the applicant ID to the Department for 2576. It was not provided by me, only got to know that bogus document when I got refusal letter”.
The Tribunal observed that the applicant also provided the agent with other documents including birth certificates and residential details. He agreed. The Tribunal observed that the applicant’s case was that the documents which were then given to the Department were mostly fraudulent. He agreed.
He was asked whether he provided original documents to the agent or someone else gave those documents to the agent. He said “my dad who provide to Yan”.
The Tribunal observed the applicant had no firsthand knowledge of what documents were provided to Yan. He said “yes correct, at the time I am in college, mainly my dad”.
The Tribunal observed the applicant was contending that he attended with his father at the premises of the agent and was informed that he had obtained a student visa. The applicant agreed. He was asked whether he had reviewed or checked the documents which Yan provided to the Department. He said “no didn’t show me”. He was asked whether he reviewed and checked the student visa application. He said “no, at that time he did not provide to me, I did not see them”. The Tribunal asked the applicant why he did not ask to see the student visa application and check it. He said “because this is the first time for us to do this, we don’t know how much, at the time we ask him for help and trusted him to the process, he said he had helped many students, chances are high you do not think much about it. We did not ask him, also because the student visa had been approved, we got a letter, we didn’t ask for more documents”.
The applicant was asked whether he had any documents regarding the retainer of Yan to apply for the student visa application. He said “no we don’t have what document Yan provided to the Department, or email correspondence with them”. When the question was repeated he said “no because I don’t know much of the process of student visa application. I left to instructions from dad”.
The applicant was asked whether he could think of any reason why Yan would provide fraudulent documents to the Department in support of the application for the student visa. He said “I think because for some areas or regions it may be more difficult to get student visa approval, Yan probably want to make sure student visa application is successful so he changed the address”. The Tribunal observed that more than just his residential address had been falsified and that on the applicant’s case Yan had changed a birth certificate, and ID card and other documents, and he was again asked whether he could think of any reason why the agent would do such a thing. He said “no cannot think of reason, don’t understand why provide fraudulent documents”.

The Tribunal observed that he and his father had agreed with the fee that Yan had proposed. The applicant agreed. Further that Yan was paid the amount of money which had been agreed. The applicant agreed. The Tribunal put to the applicant that he had no criminal history or other facts which were detrimental to his student visa application. The applicant agreed. The Tribunal observed that the applicant was asserting that his father gave Yan true and correct documents. The applicant agreed. The applicant was again asked why Yan would fabricate documents in those circumstances. He replied “I don’t know”.
When invited to add anything further to his application for review he said “I want to clarify that all documents are true including ID. Some of the documents are being certified and can be provided”.
The Tribunal proceeded to ask the applicant’s father, Mr Ou, some questions, the substance of which and his responses were as follows.
He agreed that he retained the agent, Yan, on his son’s behalf to obtain a student visa. When asked whether he had any documents regarding the retainer of Yan to undertake the task he said “no don’t have it now”. He was asked whether such documents existed. He said “I think when we got visa approved we sign a payment agreement”. The Tribunal observed that it was asking questions about earlier documents relevant to the retainer of Yan. The witness replied “others know all that I discuss with Yan”.
The Tribunal observed that the evidence was that he had retained Yan and agreed to pay a significant amount of money, more than AU$30,000 and there was no written contract. The witness replied “it is 160,000 RMB”. When invited to answer the question directly he said “no we discuss and we agree and also that trust Yan, because Yan works with others, no agreement, agent will pay for things in advance, money paid, no agreement”.
The witness was asked whether he provided documents to Yan regarding the applicant’s identity and other details. He replied “yes”. When asked whether he provided hard copies of those documents or electronic versions he said “original I bring to Yan, they were returned one week later”. He was asked whether he provided a copy of the applicant’s Chinese identity card. He said “yes, ID card and resident’s booklet”. He was asked whether he recalled the last four digits of the Chinese identity card number which he provided to Yan. He said “1817”. He was again asked whether he provided that Chinese identity card to Yan. He said “yes”.
The witness was asked whether he checked the student visa application which was submitted by Yan, the agent. He said “she asked us to provide documents”. When asked to respond to the question he said “what was the question”. When the question was repeated he said “I gave all documents and checked work on them, she didn’t show us, we got health check”.
The witness was asked whether he had any record of the payment made to Yan. He said “I went into bank and bank said it is already over five years, then not provide more than five years”. The Tribunal observed that he had previously asserted that he had attended the bank and authorised the transfer from the joint account to the account of Yan. He said “transfer to Yan husband account”.
He was asked whether he made a special deposit in order to ensure that funds were available. He said “when we had talked with Yan, in one bank account, I had 830,000 RMB, I submitted document, I had money, I put 160,000 RMB into account under name of me and Yan, then I authorise transfer”. He was asked whether he had any documents to prove the establishment of the joint bank account in his name and in that of Yan. He said “on day we got approval we provide transfer money to her”. When the question was repeated he said “bank could not provide them because a long time ago, she asked me to create joint account”.
The witness was asked whether he could think of any reason why Yan would provide fraudulent documents to the Department. He said “no I don’t know why, I really have provided her with documents, I don’t know why fraudulent documents”.
The Tribunal observed that the witness was asserting that he gave Yan true and correct documents. The witness agreed. Further that he was asserting that he agreed to the fee Yan required and that she was paid that fee. The witness replied “yes, she also trust us, she paid payment upfront”.
The Tribunal observed that the witness was asserting that Yan fraudulently changed the documents and provided false documents in support of the student visa application. The witness replied “yes, we don’t know that before until May 2022, my son told me about it”. The witness was asked whether he could think of a motive for Yan to falsify the documents in those circumstances. He said “I don’t know why, I provided all true information documents, why Yan change, I had a think, maybe for conversion to shorten time for waiting”. The Tribunal informed the witness that it did not understand his response and he should qualify or clarify how forging details in the documents would procure a student visa in a shorter time. He said “I don’t know, I wanted to find her and talk to face-to-face, but we couldn’t find her to come, [that’s] my guess”.
Having heard the oral evidence, the applicant’s representative was invited to make submissions. She did so consistently with the earlier written submissions which had been provided and which are discussed further below.
The applicant’s representative provided a written submission dated 30 August 2023. Other than the first few paragraphs it has no page or paragraph numbers. The representative makes several points as follows. First that the applicant meets the identity requirements contained in PIC 4020(2A). Reliance is placed on an identity card ending in the numbers 1817, a notarised birth certificate, a copy of his previous passport, a copy of his current passport and a copy of his Victorian government learner driver permit. It is contended that these documents are sufficient to satisfy the “100 points of ID” criteria “widely recognised in the Australian community” and the Australian Federal Police requirements. It is further asserted that the applicant’s identity can be established from those documents to satisfy the “three pillars of identity” test, the source of which test is unidentified. The fundamental premise of these contentions, which is unarticulated, is that the Tribunal need be satisfied on the applicant’s identity at the time of decision and that the previous events are not relevant. This is discussed further below.
The representative’s second point is that the student visa application in question was not refused on the specific ground that the applicant failed to satisfy PIC 4020(2A). The Tribunal’s view is that while the decision record reflects that the delegate was not satisfied as to the applicant’s identity it is clear that this decision was arrived at on the basis that the documents provided as to his identity were bogus. The two propositions therefore are inextricably linked and in the Tribunal’s view both need to be dealt with in this review. The representative does not take issue with the fact that the first identity card was provided to the Department but reiterates the applicant did not provide the first identity card in support of his first student visa application. It is contended that Yan acted without the applicant’s “authorisation and motivation and is unbeknown to (the applicant) tampered with the details of (the applicant’s) Chinese national identity card”. This proposition that Yan acted unilaterally is sought to be justified by reference to the applicant’s subsequent provision of his true identity card in a subsequent visa application. In the Tribunal’s view this is not necessarily correct, it is clear that the applicant does not know what documents were provided to Yan and had no contact with Yan in that regard. It follows that the documents provided by the applicant to the Australian agent in respect of the second visa application were provided in ignorance of what had happened before. The conduct of the applicant in providing the second round of documents does not in the Tribunal’s view prove that the correct documents were provided to Yan in the first instance. The representative also asserts that the applicant is not certain as to who submitted his first student visa application because the student visa application form does not identify Yan as the agent and that they have been unable to contact Yan. In the Tribunal’s view the fact that Yan is not identified on the student visa application is not a basis upon which to extrapolate that the application was submitted by someone else. It could have been the agent’s practice not to become a point of contact, the email address could be that of Yan, there is no evidence to the contrary or indeed underway, and Yan could have identified a staff member to be the point of email contact. However it is unlikely the student visa application was provided by a third party and more likely that it was submitted by Yan as instructed by the applicant’s father and to whom the applicant’s father paid a substantial amount of money. In any event the fact remains that the student visa application was submitted, on the applicant’s behalf, and in support of which documents were provided which were bogus.
Next the submissions deal with the authenticity of the first identity card. The representative states that the applicant confirms that the first identity card is not authentic, also that the notarised birth certificate and notarised school transcripts provided in the first student visa application are not authentic documents. The representative reiterates that the applicant and his father state that they did not provide bogus documents to Yan, she was explicitly requested to apply for the student visa “legally and properly”, and at no time did Yan “hint at or explicitly suggest employing any illegal or improper methods”. It is asserted that the applicant had no intention to present bogus documents to the Department and did not provide the Department with bogus documents. The Tribunal observes that the representative’s submissions do not explain the motive for Yan fabricating the documents if she was provided with true documents by the applicant’s father.
Next it is asserted that the applicant had no knowledge of the conduct of Yan, and the applicant did not personally provide bogus documents to the Department. On that basis the representative contends that the applicant had no intention to “defraud the Department or assume a false identity”.
Next reliance is placed on Maharjan v Minister for Immigration and Border Protection [2017] FCAFC 213. The contention, based on that decision, is that “if a third party fraud, like that of a migration agent, is involved there may be no visa application”. The representative correctly identifies three propositions which need to be established: first that the fraud was committed against the applicant, secondly the applicant was not complicit or indifferent to the fraud and thirdly whether the fraud has stultified the application process. This submission is considered further below.
Lastly the submissions deal with compassionate or compelling circumstances. The representative asserts that there are circumstances affecting the interests of an Australian citizen namely the applicant’s employer Mr Cen. It is contended that there is currently an acute shortage of skilled construction workers such as the applicant and that affirming the refusal of the student visa application would be detrimental to the interests of his employer, an Australian permanent resident, or also to that person’s Australian company and to the two other full-time employees of the company who are allegedly Australian citizens.
After the hearing the applicant’s representative provided a further copy of the submissions complete with page and paragraph numbers.
Finally by letter dated 1 September 2023 the applicant’s representative provided another submission dealing with a lack of criminal records for the applicant in China. The submission enclosed a certificate from Chinese authorities translated into English dated 31 August 2023 which confirmed that there are no records of criminal offences by reference to the second identity card in the applicant’s name. This document is presumably relied upon for the purposes of eliminating any motive on the part of the applicant or his father, to falsify his identity for the purposes of his student visa application. The Tribunal has no reason to doubt the veracity of the certificate. However it does not prove that there were no circumstances by reason of which the applicant had motive to conceal his identity, criminality only being one of many possible reasons why a person may wish to conceal their true identity.
CONCLUSIONS
The evidence of the applicant and that of the witness was often unresponsive to the question, vague, imprecise or discursive. Often the evidence of the applicant or the witness contained elements of all these issues. The Tribunal has rehearsed the evidence as a representative narrative, given in real time, which was often quite disjointed. The Tribunal’s rehearsal of the evidence is not intended to be a transcript of the evidence, rather the best recording as it transpired. It does give and is intended to give an appreciation of the nature and quality of the applicant’s evidence. At times there were some translation issues identified by the applicant’s representative. These were clarified as and when they occurred and did not seem to be significant. Other translation issues were not identified by the applicant’s representative but by the Tribunal for example the pronoun to be used in respect of Yan, the agent. At times the agent was referred to by a male pronoun and at other times by a female pronoun. However it has always been clear to the Tribunal from the written evidence from the applicant and the witness that Yan is female. The changing pronoun through the witness’s and the applicant’s evidence is of no significance.
Without diminishing the evidence, it can be summarised as follows. The applicant and his father went to Yan, a Chinese migration agent, for assistance in obtaining a student visa for the applicant in order to travel to Australia and study. There are no documents to prove or corroborate the retaining of Yan by either the applicant or his father. There are no documents to corroborate or prove any dealings with Yan or of Yan’s existence. The applicant’s father provided original documents to Yan necessary for the student visa application. They comprised at least the applicant’s Chinese identity card and residential details. The original documents were returned to the applicant’s father approximately one week later. The applicant’s father asserts that he provided Yan with true documents including, most importantly, the applicant’s Chinese identity card ending in the numbers 1817. The applicant did not participate in the provision of those documents and cannot corroborate his father’s evidence. The applicant’s father asserts that he agreed with Yan as to the fee for the provision of the services, he opened a joint bank account with Yan into which would be deposited the required amount of fees, he transferred money from different accounts into their joint account, he signed a document apparently the effect of which was that Yan could access the funds upon successful completion of the student visa application, and in the event, the funds were transferred not into Yan’s account but into her husband’s account. There are no documents to prove or corroborate these aspects of the dealings with Yan and the applicant has no direct knowledge of these matters. The applicant’s father said he requested documents from the bank but because they were more than five years old the bank did not have such records.
Much time was spent in submissions and at the hearing on the question of the impugned documents. However the issue relied upon by the delegate in refusing the application was the applicant’s identity. The basis for that was the impugned documents. However the question of identity is a time of decision requirement. The Tribunal must be satisfied of the applicant’s identity.
As to his identity, PIC 4020 requires that the decision maker must be satisfied as to the applicant’s identity (PIC 4020(2A)). Further, the decision maker must be satisfied that in the period starting 10 years before the application was made and ending when there is a decision on the visa, the applicant and any family unit member must not have been refused a visa because of a failure to satisfy this identity requirement (PIC 4020(2B)).[1] The Tribunal is satisfied that as at the time of this decision, the applicant has established his true identity. He has produced notarised documents which confirm his identity. His father has confirmed his identity. This is sufficient. However it is clear to the Tribunal that the applicant did not establish his true identity at the date of the first student visa application; this was the conclusion of the delegate and has been conceded by the applicant in this matter. The issue is whether the Tribunal is satisfied as to the applicant’s identity as at the date of this decision. In the Tribunal’s view the language of PIC 4020(2A) makes it clear that this is a time of decision requirement.
[1] These provisions were inserted by SLI 2014, 32 and apply to visa applications not finally determined at 22 March 2014 and visa applications made on or after that date.
Has the applicant satisfied the identity requirements?
PIC 4020(2A) requires an applicant satisfy the Tribunal as to his or her identity. As discussed above the Tribunal is satisfied that the applicant has established his identity as at the time of this decision.
Therefore, the applicant meets PIC 4020(2A).
DECISION
The Tribunal remits the application for a Student (Temporary) (Class TU) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 500 (Student) visa:
·Public Interest Criterion 4020(2A) for the purposes of cl 500.217 of Schedule 2 to the Regulations.
Peter Booth
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.
…

[2023] AATA 3837

20 October 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Appeal