Ozols v Minister for Home Affairs

[2019] FCCA 1358

FEDERAL CIRCUIT COURT OF AUSTRALIA

OZOLS v MINISTER FOR HOME AFFAIRS & ANOR [2019] FCCA 1358

Catchwords:
MIGRATION – Migration Act 1994 (Cth) – application for a Student visa – application for judicial review of decision of Administrative Appeals Tribunal which affirmed the decision of a Delegate of the Minister for Home Affairs not to grant the Student visa to the applicant because he did not satisfy Public Interest Criterion 4020 in that he had provided false or misleading information on his Student visa application form in denying in his visa application that he had ever been convicted of an offence in any country when he had been convicted at Burwood Local Court in Australia some five months previously – applicant fails to establish jurisdictional error affecting the decision of the Administrative Appeals Tribunal – application dismissed.

Legislation:

Migration Act 1958 (Cth)

Migration Regulations 1994 (Cth)

Applicant: LEO OZOLS

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2457 of 2018

Judgment of: Judge Dowdy

Hearing date: 12 April 2019

Delivered at: Sydney

Delivered on: 12 April 2019

REPRESENTATION

The Applicant appeared in person

Counsel for the Respondents: Ms A Zinn

Solicitors for the Respondents: Mills Oakley

THE ORDERS OF THE COURT ARE AS FOLLOWS:

1. The Application filed in this Court on 31 August 2018 is dismissed.

2. The Applicant is to pay the First Respondent’s costs in the proceeding in the sum of $5,400. 

3. Pursuant to Rule 36.03(b) of the Federal Court Rules 2011 (Cth) the Applicant have up to and including 12 June 2019 to file any Notice of Appeal from orders 1 and 2 above in the Federal Court of Australia.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2457 of 2018

LEO OZOLS

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

EX TEMPORE

(Revised from Transcript)

Introduction

1. The Applicant in this proceeding is a male citizen of Latvia aged 42 years, having been born on 18 March 1977. 

2. By Application filed in this Court on 31 August 2018, he seeks to quash and impliedly have re-determined the decision of the Second Respondent, the Administrative Appeals Tribunal (Tribunal), dated 6 August 2018 which affirmed the decision of the Delegate (Delegate) of the First Respondent, then the Minister for Immigration and Border Protection (Minister), dated 3 October 2017 refusing to grant to him a Student (Temporary) (Class TU) (Subclass 500) visa (Student visa).

Background

1. The Applicant applied for the Student visa on 23 March 2017.  He had earlier come to Australia on a Visitor visa.  In his Student visa application form, he responded to the question “Has any applicant ever been convicted of an offence in any country (including any conviction which is now removed from official records)?” unequivocally in the negative. 

2. It was a requirement for the grant of the Student visa that the Applicant satisfy cl.500.217 of Sch.2 of the Migration Regulations 1994 (Cth) which, relevantly for the present proceeding, required him to satisfy Public Interest Criterion 4020 (PIC4020). 

3. PIC4020(1) required that there be no evidence that the Applicant had “given, or caused to be given, to the Minister… a bogus document or information that is false or misleading in a material particular in relation to the application for the [Student] visa”.  PIC4020(4) provided that the requirements in PIC4020(1) may be waived if there were “compelling circumstances that affected the interests of Australia” or “compassionate or compelling circumstances that affected the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen”. 

4. On 26 June 2017 the Applicant was requested by the Department (Department) of the Minister to provide further information in support of his Student visa application including, amongst other things, an Australian Federal Police National Police Check Clearance Certificate (AFP clearance certificate). Then on 29 July 2017 the Applicant provided an AFP clearance certificate to the Department dated 22 July 2017, which indicated that on 20 October 2016 he had been convicted of four offences, or possibly three offences, and sentenced to imprisonment for 14 months suspended on him entering into a good behaviour bond. 

5. Then by letter dated 4 August 2017 the Applicant was invited to comment on unfavourable information known to the Department, namely that in his Student visa application form he had indicated that he had never been convicted of an offence in any country, but his AFP clearance certificate stated that on 20 October 2016 he had been charged with various offences and imprisoned and as a result had an imprisonment for 14 months. The letter went on to explain the requirements of PIC4020. 

6. The AFP clearance certificate appears at page 64 of the Court Book and indicates on my reading that the Applicant was convicted of four offences at Burwood Local Court on 20 October 2016, with the first and second offence each leading to imprisonment for 14 months; the third offence leading to imprisonment for 12 months and the fourth being taken into account, with both terms of imprisonment being suspended on entering into good behaviour bonds. 

7. On 30 August 2017, the Applicant responded to the letter inviting comment and provided certain documents, in particular a letter dated 29 August 2017 signed by him which set out his explanation in response to the invitation to comment. 

   Client name Leo OZOLS
   Date of birth 18 March 1977
   Date of visa application 23 March 2017
   Application ID 2145606974
   Transaction reference number EGODTWP71A
   File number BCC2017/1132449

   29 August 2017

   Dear DIBP officer,

   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 accidence 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. 

Decision of Delegate

1. On 3 October 2017, the Delegate refused to grant the Student visa to the Applicant. The Delegate was not satisfied that the Applicant met PIC4020(1) because there was evidence that he had provided false or misleading information in relation to the Student visa application. 

2. The Delegate went on to note that no information had been submitted to indicate that the Applicant was seeking waiver of PIC4020 and the Delegate ultimately found that the Applicant did not satisfy cl.500.217 and refused to grant the Student visa to the Applicant.

Decision of Tribunal

1. The Applicant applied for merits review of the Delegate’s decision with the Tribunal on 19 October 2017 and appeared with his migration agent at a hearing before the Tribunal on 4 July 2018 to give evidence and present arguments.

2. In its Decision Record the Tribunal, from [6] to [15], set out the basic relevant facts.  Then at [16] it recorded that the Applicant acknowledged at the hearing that he had answered “no” to the question as to whether he had ever been convicted of an offence in any country. 

3. At [16] the Tribunal further recorded that the Applicant told it that he had lodged his application for the Student visa before he got into trouble with the police and therefore had no criminal offences to declare on his Student visa application form, and he denied that he had attempted to hide anything or mislead anyone.

4. At [17] of its Decision Record the Tribunal recorded that it had put to the Applicant that his claim that he had not been in trouble with the police prior to lodging his Student visa did not appear plausible, as the AFP clearance certificate indicated that he had been convicted in October 2016 of three offences resulting in a sentence of imprisonment of 14 months, suspended on entering into a bond to be of good behaviour. The Tribunal recorded that it put to him that it was not plausible that he was unaware of these convictions at the time he lodged his Student visa application. Apparently in answer to this the Applicant said that he understood that it was his fault that he did not check the Student visa application more thoroughly before he signed it and submitted it.   

5. At [18] of its Decision Record the Tribunal recorded that the Applicant had confirmed that the information in the AFP clearance certificate was correct and the Tribunal found that the convictions had resulted in concurrent sentences amounting to 14 months imprisonment which had been suspended on entering into the said bond to be of good behaviour. 

6. At [21] the Tribunal recorded that it had asked the Applicant whether there were any compelling circumstances that affected Australia that would justify a waiver, and the Applicant responded that he 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” and “he would also be able to do voluntary work at a church that that a friend attends.”

7. At [22] the Tribunal recorded that it had asked the Applicant whether there were any “compassionate or compelling circumstances” that might affect the interests of an Australian citizen, permanent resident or New Zealand citizen that would justify the granting of a Student visa, and the Applicant indicated that he had recently formed a relationship with a lady approximately two months before the hearing and that he thought she was an Australian citizen and that she was worried about the uncertainty of his Student visa status. 

8. At [23] of its Decision Record the Tribunal noted that the migration agent for the Applicant submitted that the Applicant had already been sentenced for the crimes he was charged with, did not have a previous criminal record and that the crimes were serious, but not as serious as killing someone.  From [24] – [28] the Tribunal set out the legal requirements concerning bogus documents and information that was false or misleading material particular in relation to visa applications.

9. Then from [29] – [32] the Tribunal considered whether or not the Applicant met PIC4020(1) and ultimately at [30] – [31] concluded as follows: 

   [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.

10. Then from [33] – [38] of its Decision Record the Tribunal considered whether PIC4020(1) and (2) should be waived, but ultimately found at  [35] that it was not satisfied that the requirements should be waived for the reasons set out at [36] and [37]. 

11. Accordingly, the Tribunal affirmed the decision of the Delegate not to grant the Student visa to the Applicant. 

Ground of Attack on Tribunal Decision in this Court

1. In his Application filed in this Court, the Applicant asserts only one Ground, namely: 

   1.I met all the conditions to grant the student visa. 

Consideration

1. Unfortunately for the Applicant, this is not a proper ground for review and basically seeks impermissible merits view of the decision of the Tribunal. 

2. Plainly, the Tribunal found that the Applicant did not satisfy the requirements for the grant of the student visa comprised in cl.500.217, as he did not satisfy PIC4020.

3. The Applicant in his oral submissions today in Court basically has repeated the explanation he gave to the Tribunal which was recorded by the Tribunal at [16] and [17] of its Decision Record. 

4. Unfortunately for the Applicant he has not identified any jurisdictional error in the Tribunal’s approach or in its decision. I accept the Minister’s submissions that the Tribunal’s approach indicated that it correctly understood and applied the test prescribed by PIC4020 and that its findings are not open to any finding that they were legally unreasonable or lacking in an intelligible justification or otherwise capricious or illogical.  They seem to me to have been legally open to the Tribunal on the evidence that was before it. 

Conclusion

1. The Applicant has failed to establish that the decision of the Tribunal is affected by jurisdictional error and accordingly the Application filed in this Court is to be dismissed.

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Judge Dowdy

Associate: 

Date:  22 May 2019