OZOLS (Migration)

[2018] AATA 3880

OZOLS (Migration) [2018] AATA 3880 (6 August 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Leo Ozols

CASE NUMBER:  1725529

DIBP REFERENCE(S):  BCC2017/1132449

MEMBER:David Barker

DATE:6 August 2018

PLACE OF DECISION:  Sydney

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

Statement made on 06 August 2018 at 5:23pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – False and misleading information – criminal convictions – lack of disclosure of offences – contribution to Australian economy – impact on third parties – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 6, 65 501
Migration Regulations 1994 (Cth), Schedule 2 cl 500.217, Schedule 4 PIC4020

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

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 Immigration on 3 October 2017 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 23 March 2017. The delegate refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl.500.217(1) of Schedule 2 to the Migration Regulations 1994 (the Regulations), because they were not satisfied that the applicant meets Public Interest Criterion (PIC) 4020, subclause 4020(1), as he gave answers on the visa application form that were false and misleading in a material particular.

3. The applicant appeared before the Tribunal on 4 July 2018 to give evidence and present arguments. The hearing was conducted with the assistance of an interpreter in the Latvian and English languages.

4. The applicant was represented in relation to the review by his registered migration agent.

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

   BACKGROUND

6. The applicant was born in Latvia and is 41 years of age.  He resided in the United Kingdom from August 2005 to September 2015, at which time he came to Australia on a visitor visa.  He subsequently applied for and was granted a Subclass 570 student visa in February 2016, which was valid until May 2017.

7. The decision record of the delegate, a copy of which was provided with the review application, indicates that the applicant, on 23 March 2017, applied for a Student (Subclass 500) visa.  As part of their processing of the application, the Department, on 26 June 2017 sent the applicant's migration agent an email requesting the applicant provide a range of documentation and information including Police Clearance Certificates.

8. The Department sent the applicant’s migration agent a natural justice letter on 4 August 2017, giving the applicant a 28-day period to respond to that letter.  This letter noted the applicant’s ‘no’ response to the question on his visa application as to whether he had ever been convicted of an offence in any country, including any conviction which is now removed from official records. The letter invited him to comment on unfavourable information which did not support his application, namely that the information on the Australian Federal Police Clearance Certificate he had uploaded to the Department on 29 July 2017 contained information regarding criminal charges resulting in convictions and imprisonment of 14 months, commencing on 20 October 2016, which was suspended on entering a bond to be of good behaviour.

9. The letter from the department indicated it appeared the applicant may fail to satisfy the criteria in PIC 4020(1) and (2). The Department invited the applicant to comment on this issue and as to whether the applicant would meet the exception for the waiver of that requirement.

10. In response to this natural justice letter, the applicant provided the Department with:

    ·     a written submission from the applicant dated 29 August 2017;

    ·     a Statement of a Witness, prepared by the applicant and provided to the NSW Police Force, dated 6 June 2016;

    ·     medical records pertaining to the applicant.

11. The applicant’s written submission stated:

    2 points submitted to grant my student visa.

    1)The background of my offense.

    Aug 2016, one of my friend who borrowed the money for me asking me to take his bank card to withdraw the money because he is busy to withdraw it, after I withdraw the money to give it to him then he can deduct some money I borrowed from him.
    I had 6 years old son who is with my ex-partner in UK, I borrowed some money from this friend to send to my son. Therefore, when my friend asked me to withdraw some money for him with his card and his pin, I am not hesitated to do it because he will deduct some money from the money I borrowed from him. But when I use his card and pin number to withdraw the money, the policeman caught me that the bank card doesn't belong to the friend.

    Oct 2016, my lawyer asked me to pay the money for the bail and told me my case is suspend in the court and maximum I will be sentence for 7 months suspend sentence, therefore, around Mar 2017 I thought the 7 months suspend sentence passed, I thought the case is over and I am free from this case .Then I came to my immigration agent to renew the student visa in March 2017.

    2)There are 6 reasons that I am not intentionality to not disclose the offence.

    ·     I only want to help my friend to withdraw some his money to deduct money which I borrow from him for my son's living in UK.

    ·     I didn't suppose my friend give me the doggie card (not his card) to withdraw the money, if I knew it in advance, I should not do it for him.

    ·     I had brain infection in Latvia in 2011 and I had car accident in May 2016 in Sydney which made my brain sometimes can't think properly that is also one reason I didn't think carefully to help my friend to withdraw the money from the card he gave it to me.

    ·     I didn't have any criminal record in my home country —Latvia and UK which I lived before I came to Australia.

    ·     I didn't have any the other offense except this offense used by my friend in Australia.

    ·     After I improve my English and finish the Diploma of Systems Analysis and Design in Australia, I can get better job in Latvia to support my self and my son.

    Please consider all that I am innocent person to suffering this offense and grant my student visa.

12. Based on their consideration of the issues, 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).

13. The delegate noted no information had been submitted by the applicant indicating he was seeking a waiver of PIC 4020(1).  Accordingly, the delegate was not satisfied that there were 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.

14. The delegate found that the applicant did not meet the criteria in PIC 4020 and therefore did not satisfy cl.500.217 for the grant of the visa.

15. At the hearing, the applicant provided the Tribunal with further documentary evidence regarding his medical history.

    THE HEARING

    The applicant’s evidence

16. The applicant acknowledged he said ‘no’ to the question as to whether he had ever been convicted of an offence in any country (including any conviction which is now removed from official records). The applicant told the Tribunal he lodged his application for the Subclass 500 visa before he got into trouble with the police and therefore had no criminal offences to declare on his visa application.  He said that he had provided the Australian Federal Police Clearance Certificate when asked to do so and has not attempted to hide anything or mislead anyone.

17. The Tribunal put to the applicant that the aforementioned claim did not appear plausible, as the information on the Australian Federal Police Clearance Certificate indicated he was, in October 2016, convicted of three offences, resulting in a sentence of imprisonment of 14 months, suspended on entering a bond to be of good behaviour.  The Tribunal put to the applicant that it is not plausible he was unaware of these convictions at the time he lodged his application for the visa in March 2017.  In response to these comments, the applicant claimed he did not know about his criminal convictions when he applied for the visa and also said that he is not very good at doing paperwork.  He said he just signed the application after it was prepared at the office of his migration agent.  The applicant conceded that he discussed his circumstances with the migration agent and read the application before he signed it but now thinks he did not check it properly.  He said he understands it is his fault that he did not check the application thoroughly before he signed it and submitted it.

18. The applicant confirmed that the information in the Australian Federal Police Clearance Certificate is correct. This document states the applicant was, on 20 October 2016, convicted of: dishonestly obtaining financial advantage by deception; possess identity information to commit an indictable offence; deal with property suspected to be the proceeds of crime; and goods in personal custody suspected of being stolen. These convictions resulted in concurrent sentences amounting to 14 months’ imprisonment, which was suspended on the applicant entering into a bond to be of good behaviour.

19. As to the concern that the response he gave on the visa application, where he failed to declare these criminal convictions, was false and misleading and relevant to the consideration of whether he meets the character requirements for the grant of Subclass 500 student visa, the applicant reiterated that he did not hide any information and had provided the Australian Federal Police Clearance Certificate when requested.  He conceded it was his fault he did not check the application properly but that he had not intended to mislead the Department.  He said he was in a rush at the time he lodged the application.

20. As to why he has provided the Tribunal with medical evidence, the applicant said this was to demonstrate why he had gaps in his study history for the past year or so.

21. The Tribunal asked the applicant if there were any compelling circumstances that affect Australia that would justify the granting of the student visa to him, in the event he did not meet the PIC 4020 requirements.  In response to this question, the applicant said that he has had long term interests in music and computing and because of his skills in these areas he would be able to get a job and thereby contribute to the Australian economy.  He said that if he is allowed to remain in Australia he would also be able to do voluntary work at a church that a friend attends.

22. The Tribunal asked the applicant if there are compassionate or compelling circumstances that affect the interest of an Australian citizen, permanent resident or New Zealand citizen that would justify the granting of the student visa.  In response to this question the applicant said both he has recently formed a relationship with a woman, approximately two months before the hearing.  He said he thinks this woman is an Australian citizen and that she is worried about the uncertainty of his current visa status.

    The representative’s oral submissions

23. The applicant’s representative submitted that the applicant has already been sentenced for the crimes he was charged with and that he did not have a previous criminal record. She submitted the crimes were serious, but not as serious as killing someone.

    CONSIDERATION OF CLAIMS AND EVIDENCE

24. The issue in this review is whether the visa applicant meets PIC 4020 as required by cl.500.217(1) 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 a 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 three 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).

25. 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 material particular?

26. 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.

27. 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.

28. 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.

29. The Tribunal has considered the written submissions from the applicant, which were provided to the Department in response to their natural justice letter.  The Tribunal notes a number of points in these submissions pertain to the circumstances whereby the applicant was charged with criminal offences.  These circumstances are not central to this Tribunal’s considerations, as the relevant issue is whether the applicant provided information on his student visa application which was false and misleading.  It is apparent from these written submissions that the applicant may have not fully understood the length of time he was on a good behaviour bond and at risk of imprisonment if he did not comply with the conditions of that bond.  However, the relevant question on the visa application was whether he had ever been convicted of an offence, not whether he thought he was still serving a sentence associated with a criminal conviction. The Tribunal has reviewed the witness statement provided to the department and for similar reasons to those previously discussed, does not consider this evidence relevant to whether the applicant has provided information on his visa application which is false and misleading.   

30. The Tribunal is not persuaded by the applicant’s claim he did not provide a false and misleading response on his visa application, where he answered ‘no’ to the question as to whether he had ever been convicted of an offence.  He claims that he lodged his application for the student visa before he ‘got into trouble’. This claim is just not supported by the relevant dates, namely his criminal convictions of October 2016 and his visa application of March 2017.  The Tribunal is also not persuaded by the applicant’s claim he was unaware of his criminal convictions, given the serious nature of the charges brought against him and of the sentences resultant from the criminal conviction.  The Tribunal is also not persuaded by the applicant’s claim he did not knowingly try to mislead the Department through failing to declare his criminal convictions.  Whilst accepting he may have been in a rush to get the visa application lodged in a timely manner and that someone from his migration agent’s office filled out much of the form, he has conceded he read the application, including the section dealing with questions relevant to the character requirements and then signed the application, including the acknowledgement that the information provided in the application was true.

31. On the basis of the evidence before it, the Tribunal finds the applicant applied for a Subclass 500 student visa, on 23 March 2017, which contained false and misleading information, at the time it was given, in relation to whether he had ever been convicted of an offence in any country (including any conviction which is now removed from official records). The Tribunal is of the view that the false and misleading responses provided by the applicant to the question were relevant in assessing the character test in PIC 4001.  The character test is set out in s.501(6) of the Act. Section 501(6) prescribes the circumstances in which an individual does not pass the character test.  Section 501(6)(c) states a person can fail the character test through a decision maker, such as the Tribunal, having regard to the person’s past and present general conduct.  The Tribunal finds that there is therefore evidence that the applicant has given, or caused to be given, to the Minister or an officer, ‘information that is false or misleading in a material particular’ in relation to the application for a Subclass 500 student visa, dated 23 March 2017.

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

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

33. 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 r.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.

34. 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.

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

1. The Tribunal accepts the applicant could make a contribution to the Australian economy should he successfully gain work using his music and/or computer skills.  However, the Tribunal is not satisfied this constitutes a compelling circumstance affecting the national interest that would justify waiving the PIC 4020 requirements and the granting of the visa. 

2. In relation to how his current girlfriend would be impacted by his departure from Australia, the Tribunal accepts the applicant’s evidence that he has very recently commenced a relationship with a woman who is an Australian citizen.  The Tribunal is not, however, persuaded that the applicant has demonstrated that any impact on this woman or her children from the application of the PIC 4020 requirements provide a compassionate and or compelling circumstance that would justify the granting of the visa.  This is because there is no suggestion this woman is financially or otherwise dependent on the applicant, or that he provides a degree of support and care to her or her children such that they would be significantly impacted if he is not granted the visa. 

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

4. On the basis of the above, the applicant does not satisfy PIC 4020 for the purposes of cl.500.217(1).

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

   DECISION

6. 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  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. 

   …