Park (Migration) - [2019] AATA 5440

Park (Migration) [2019] AATA 5440 (20 November 2019)

DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Seong Ho Park
CASE NUMBER:  1802388
HOME AFFAIRS REFERENCE(S):          CLF2017/11439
MEMBER:Helena Claringbold
DATE:20 November 2019
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a Child (Residence) (Class BT) visa.
Statement made on 20 November 2019 at 2:44pm

CATCHWORDS
MIGRATION – Child (Residence) (Class BT) – Subclass 802 (Child) – dependent child of sponsor – director of business – applicant undertaking work activities – false and misleading information provided – did not intentionally provided documents – information provided to assist with visa – no compelling circumstances – lack of evidence – no evidence of incapacitation – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 5(1)
Migration Regulations 1994 (Cth), Schedule 2 cls 802.212, 802.214, 802.223, rr 1.03, 1.05A, Public Interest Criterion (PIC) 4020
CASES

Braun v Minister for Immigration Local Government and Ethnic Affairs [1991] FCA 611
Huynh v MIMA [2006] FCAFC 122
Plaintiff M64/2015 v MIBP [2015] HCA 50

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

On 19 January 2017, Mr Seong Ho Park (the applicant) applied for a Child (Residence) (Class BT) visa. The application was made on the basis that the applicant is a dependent child of Ms Eui Hang Cho, the sponsor. At the time this application was lodged, the applicant held a Bridging (Subclass WE 050) visa.
On 10 January 2018, a delegate of the Minister for Immigration and Border Protection refused to grant the visa. The delegate was not satisfied that the applicant is a dependent child of the sponsor or that he is incapacitated for work due to the total or partial loss of his bodily or mental functions. Therefore, the applicant did not meet cl.802.212 of and cl.802.214 of Schedule 2 to the Migration Regulations 1994 (the Regulations) made under the Migration Act 1958 (the Act). The delegate was also not satisfied that the applicant met Public Interest Criteria 4020. Therefore, he did not meet cl.802.223 of Schedule 2 to the Regulations.
On 15 August 2019, the applicant provided the Tribunal with a copy of the delegate’s decision record. This is a review of the delegate’s decision.
On 2 September 2019, the applicant appeared before the Tribunal to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor and her partner.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The Tribunal has taken into consideration, individually and as a whole, all the evidence in the Department of Immigration and Border Protection’s (the Department’s) case file and the Tribunal’s case file and the evidence at the Tribunal hearing.
ISSUE
The issue in the present case is whether the applicant is the dependent child of the sponsor or her partner and whether the applicant meets PIC 4020.
BACKGROUND ON THE EVIDENCE
The applicant was born in 1992 in Gang Nam, Republic of Korea. He was 24 years of age on the date he lodged the application. His father is deceased and his mother, step-father and one sibling live in Australia and his other sibling lives in Singapore.
The sponsor was born in1964 in Korea. She lives in Australia with her de facto partner. She has two children, one being the visa applicant and another child who lives in Singapore.
Dependent child criteria
The criterion in cl.802.212 essentially requires that at the time of application, the applicant is a ‘dependent child’ of an eligible person, and is under 25 years of age or incapacitated for work. These requirements must continue to be met at the time of decision, or if they are not
met, it is only because the applicant has turned 18 (or if already 18, only because the applicant has turned 25): cl.802.221(1) or (2)(a) of Schedule 2 to the Regulations.
Dependent Child
At the time of application, the applicant must be a ‘dependent child’ of an Australian citizen, permanent visa holder, or eligible New Zealand citizen: cl.802.212(1)(a). ‘Dependent child’ is defined in r.1.03 of the Regulations, which is extracted in the attachment to this decision. Essentially, the child must not be engaged or partnered, and if 18 or older, must be reliant on the parent for financial support to meet certain basic needs, or be incapacitated for work due to loss of bodily or mental functions.
In this context, for there to be the necessary element of dependency, there need not be a necessity to provide the relevant support. The question to be addressed is whether, as a matter of fact, the first person is relying for support on the other person: Huynh v MIMA [2006] FCAFC 122 at [39], [44].
The word ‘dependent’ is defined in r.1.05A
1.05A (1) Subject to subregulation (2), a person (the first person) is dependent on another person if:
(a)    at the time when it is necessary to establish whether the first person is dependent   on the other person:
(i)    the first person is, and has been for a substantial period immediately before that time, wholly or substantially reliant on the other person for financial support to meet the first person’s basic needs for food, clothing and shelter; and
(ii)    the first person’s reliance on the other person is greater than any reliance meet the first person’s basic needs for food, clothing and shelter; or
(b)    the first person is wholly or substantially reliant on the other person for financial support because the first person is incapacitated for work due to the total or partial loss of the first person’s bodily or mental functions.
On the 19 January 2017, the applicant lodged the application for a Child (Subclass 802) visa. The application was based on him being the dependent of the sponsor, who is his mother. He provided a letter from a bank dated 31 October 2016, for the sponsor, recording a credit balance of $22,796.08. He also provided telephone screen images which list various numbers against dates in 2016. The images are in a language other than English and cannot be read any further by the Tribunal. In a post Tribunal hearing submission the applicant provided four pages of translated documents for the telephone screen shots. These are headed ‘Saving Deposit’. They list various debit entries for 2016/2017 including as Seong Ho Airplane Debit 300,000 won, multiple entries of Land Tax (property) with varying amounts recorded alongside the entries. Other entries are recorded as Seong Ho living allowance 500,000 won, monthly rent, Mom rent 300,000. Deposit entries include private education pension payments for 1,328.700 won. There is no information on the translations about the owner of the saving deposit account or the person/s responsible for the debits or deposits. He also provided a translation of a ‘Family Relation Certificate’ dated June 2017, detailing the applicant’s birth details and parents’ details.
On the form 80 on 5 June 2017, the applicant declared that he worked as a bartender from March 2013 to August 2013. He stated that he was in Korea from March 2014 to February 2015. The delegate’s decision record informs that the applicant resided in Korea from 28 March 2016 to 11 August 2017. However the applicant told the Tribunal that this is incorrect and he was in Korea from March 2016 to August 2016. The Tribunal accepts that the applicant departed Australia on 28 March 2016 and entered Australia on 11 August 2016 because this is substantiated by the Department’s movement records.
In an email dated 6 May 2017, the applicant stated that the following: his mother has supported him financially since he turned 18. She provided for him since birth and especially since he attended University of Technology (UTS). She provided tuition fees, housing fees and daily expenditure and sent him allowances each month. He has lived with his mother for the last 12 months and was given cash allowances. He went to Korea but didn’t do anything for several months and his mother sent him money monthly. In an email dated 16 June 2017, the applicant stated the following: since he withdrew from academic study he accompanies his mother and uses her car. He does not have a bank account and tried to obtain bank statements (for the sponsor) but the bank can only provide yearly statements.
The sponsor told the Tribunal the following: the applicant was born in Korea and lived there for nine years. He then travelled with her and his siblings to Canada and lived there until 2013 when he came to Australia. She has supported him financially since his birth regardless of where he has lived.
The Tribunal told the applicant that there is little independent evidence before the Tribunal to support his claims of being financially reliant on the sponsor. The Tribunal provided the applicant with additional time to provide further independent information.
The Tribunal told the applicant the following: there are two non-disclosure certificates issued pursuant to s.376 of the Act on the Department of Immigration and Border Protection’s case file CLF2017/11439. The applicant was told of the relevance of the information the subject of the certificates to the review. He was also told that the Tribunal considered the certificates to be valid. The applicant was invited to comment on the validity of the certificates. The applicant did not comment on the validity of the certificates.
The Tribunal put the core of the information the subject of the s.376 certificates to the applicant under s.359AA of the Act. He was told of the relevance and consequence of the information. He was invited to comment on or respond to the information and told that he could seek additional time to do so. The information is as follows:
- On 21 August 2018, the Department of Home Affairs, Border Watch Allegations Team received information relating to its file CLF2017/11439. The core of the information is that the applicant has been working out of premises at Suite 401/80 Mount Street, North Sydney and using the name Sean Park. This information relates to the s.376 certificate issued on 3 December 2018.
- On 22 May 2019, the Department of Home Affairs, Border Watch Allegations Team received information relating to its file CLF2017/11439. The core of the information is that the applicant has been working with Mr Edward Kang who is also known as ‘Eddie’ and ‘Ted’. That the applicant and Mr Kang have been providing fraudulent immigration advice and assistance to other people relating to their visa applications and the applicant received payment for the service he and Mr Kang provided. The organisation the applicant has been working for is Australian RAVS, trading as Goldmans Pentex Hedge Funds Developer and the applicant has been working out of premises at Suite 401, 80 Mount Street, North Sydney. The applicant is also known by the names of Y Choi, Sean Parc and Ken Parc. This information relates to the s.376 certificate issued on 24 May 2019.
The Tribunal put other information to the applicant under s.359AA of the Act. The applicant was told of the relevance and consequence of the information. He was invited to comment on or respond to the information and told that he could seek additional time to do so. The information is as follows.
- On 13 December 2018 the NSW Government Finance Services and Innovation issued a public warning which stated the following:
‘Do not deal with ARVS or sole director Mr Seong Ho “Sean” Park and Mr Edward ‘Ted’ Kang.’
The NSW Fair Trading Commissioner issued a public warning against ARVS after it was found the business offering visa and immigration services to consumers, but not delivering the service despite being paid.
‘Fair Trading has received a number of complaints after consumers entered into contracts, in some cases for amounts up to $60,000, and received no service,” the Commissioner said.
Mr Park’s company trades from the same location in North Sydney as Goldman Pintex Management Pty Ltd. That company is already subject to a public warning from NSW Fair Trading in December 2017 for similar conduct.
Mr Park has also been found to have an association with Edward ‘Ted’ Kang. Kang was convicted of multiple immigration-related fraud offences in Parramatta Local Court in March 2017, a matter which is currently on appeal before the District Court.
“Based on Fair Trading’s evidence, Mr Kang is actively involved with Mr Park’s business. He presents himself to consumers as the CEO or General Manager of ARVS, yet neither of these men hold Migration Agent Licenses in Australia,” Ms Webb said.
“It is vital that consumers do not deal with either individual, or the businesses associated with them.’ ( type="disc">
On 19 December 2017 The NSW Government Department of Fair Trade issued a public warning which stated the following:
Consumers have been warned not to deal with North Sydney based migration agency, Goldman Pintex Management Pty Ltd, trading as Goldman Pintex Migration at Suite 401, Level 4/80 Mount Street, North Sydney.
The warning also applies to the company's sole director, Yoon Seok 'Joseph' Choi. The company targets consumers seeking a Temporary Work Visa (subclass 457). Choi and his associates claim they will find a business sponsor for clients and lodge a work visa application with the Department of Immigration and Border Protection in exchange for a hefty fee of up to $60,000, which is to be paid in installments by the consumer. In several cases, where an application was denied, the trader failed to refund installments already paid.
Fair Trading inquiries have revealed one of the company's associates is Edward 'Ted' Kang, who was convicted on 28 March 2017 of multiple fraud offences and sentenced to up to 12 months jail. Kang is on conditional bail awaiting a District Court appeal against his sentence and conviction.’ ( type="disc">
Other information is taken from the Department of Home Affairs Record of Decision of Whether to Cancel under Section 116 of the Migration Act, dated 1 November 2018, a Bridging A visa held by Mr Seong Ho Park date of birth 26 September 1992. The information is as follows:
‘An extract dated 25 September 2018 from the Australian Security and Investments Commission (ASIC) database states that Mr Park was appointed as the Director of Australian RSMS Visa Service Pty Ltd (ARVS) (Australian Company Number 627379588 on 8 July 2018. Included in this extract is information stating that ARVS is an Australian Proprietary Company that is limited by shares with a principal business at Suite 401/80 Mount Street, North Sydney NSW 2060. The extract further states Seong Ho Park (DOB 26 September 1992) as the sole Director and only member of the Company with all shares of the company issued to Mr Park and beneficially held by Mr Park.
On 26 September 2018 ABF officers attended Suite 401/80 Mount Street, North Sydney NSW 2060 where Mr Park was located. When asked by the team leader about his presence at the premise Mr Park stated that he is the Director of the company operating at the premise. When Mr Park was presented with the ASIC extract reflecting his Directorship of ARVS, he agreed this is the case.’
·The Delegate recorded that he/she was satisfied that Mr Park has engaged in an activity in Australia that would normally attract remuneration, namely, registering a company in Australia with all shares in that company issued to Mr Park, beneficially held by Mr Park and Mr Park being remunerated with shares of that company as the sole Director and Member of the Company. It is noted in the decision record that Mr Park applied for a Subclass 802 visa which was refused and is currently at merits review before the Administrative Appeals Tribunal (AAT). The delegated recorded that all visas held by Mr park on or after 11 November 2016 have and had condition 8101 (no work) imposed on them and all notices of grant of those visas sent to Mr Park indicated that 8101 was imposed on them.
·Additional information is that on 8 January 2019, the Tribunal, differently constituted upheld the cancellation of Mr Park’s, Bridging A visa. The following information is provided in the AAT decision of 8 January 2019.
In his oral evidence to the Tribunal, Mr Park did not dispute that he was the Director of the Company. Rather he contended that he had not considered that operating a business constituted ‘work.’ He had thought of work more in terms of paid employment. When it was put to him at the hearing that work constituted an activity that attracts remuneration, he stated that his business had not made money.
·The Tribunal went onto find that:
‘the fact the applicant claims that he performed the duties of a Director without receiving remuneration does not take his conduct outside of the category of ‘work’. It is sufficient that the activities performed by the applicant are activities that a person would normally receive remuneration for.[1]
The Tribunal is satisfied that the activities undertaken by the applicant normally attract remuneration and, accordingly, constitute ‘work’ for purposes of r.1.03. Accordingly, the Tribunal finds that the applicant is in breach of condition 8101.’
[1] Braun v Minister for Immigration Local Government and Ethnic Affairs [1991] FCA 611 at [156].
The applicant responded to the information the subject of the certificates and the other information put to him at the Tribunal hearing. The applicant was belligerent in his response to the Tribunal and stated the following: all of the allegations of fraud are absurd. The allegations against Mr Kang are absurd. They have been trying to put Mr Kang in jail since 2013. The applicant admires Mr Kang. He went to see Mr Kang to learn about the property business and became involved with him in 2016. He learnt from Mr Joseph Choi about immigration and the property business. He went to the North Sydney office three to four days a week and attended meetings with prospective clients.
He told the Tribunal ‘they’ accuse us of everything and are trying to break us apart because we are immigrants. They bring fake reporters and people and make things up. They attacked the applicant with media and take taxes. The Government watchdog needs to be in jail and are against immigrants and are ignorant. All of the information is bogus. He established the business one week prior to the warning of 13 December 2018. He did not know that establishing a company would be considered as work. What was he supposed to do he has been waiting for a visa for two years and has not had work or study rights. He does not have any money and has been financially supported by his mother since his birth.
The Tribunal does not accept that the applicant established a company one week prior to the warning of 13 December 2018. The information before the Tribunal is as follows: the applicant was appointed as the Director of Australian RSMS Visa Service Pty Ltd (ARVS) (Australian Company Number 627379588) on 8 July 2018. ARVS is an Australian Proprietary Company that is limited by shares with a principal business at Suite 401/80 Mount Street, North Sydney NSW 2060. The applicant is the sole Director and only member of the Company with all shares of the company issued to the applicant and beneficially held by the applicant. Other information is that ABF officers attended the North Sydney address on 26 September 2018 where Mr Park was located and the applicant stated that he is the Director of the company operating at the premises and that he agreed with the ASIC extract reflecting his Directorship of ARVS. Other information the subject of the certificates is relied upon because it provided detailed and exact information. That information places the applicant working out of the North Sydney premises and receiving payment for the services he provided. The notice of December 2018 issued by the NSW Government, the Fair Trade Commissioner warns against ARVS stating that the business offered immigration services to consumers, but did not deliver the service despite being paid.

On the evidence before the Tribunal, it is satisfied that the applicant has been undertaking activities that constitutes work and has been renumerated for those services. Although the applicant and the sponsor claim that the applicant has been supported financially by the sponsor, there is little independent evidence to support this. Having considered the evidence individually and as a whole and because of evidence to the contrary, the Tribunal is not satisfied that for a substantial period immediately before the time of application and the time of decision, the applicant, was wholly or substantially reliant on the sponsor or her partner for financial support to meet his basic needs for food, clothing and shelter or that his reliance on the sponsor or her partner is greater than any reliance by him on any other person, or source of support, for financial support to meet the his basic needs for food, clothing and shelter because he has not provided little independent evidence to support that claim.
Is the applicant incapacitated?
The applicant claimed that due to lower back pain he is incapacitated and unable to study. In an email dated 6 May 2017, the applicant stated the following: His grades were low at UTS. He was depressed mentally and physically and feels that since his father died (2009) he had a mental breakdown. He had a herniated disc and depression. He left study and went to Korea and did not do anything for several months. Military service was delayed and several more months passed. Because of the uncertainty of when he would begin military service he was reluctant to find employment. He found ‘that paths to Korea’ were not what he wanted and decided to return to Australia and hopefully study. He had a medical condition and withdrew from study. In an email dated 16 June 2017, the applicant stated that he was going to the consulate to receive his birth certificate and renew his passport and was waiting on approval from the military government (Korea).
In an email dated 21 July 2017, the applicant stated the following: in 2009 he had surgery in Korea for testicular torsion and remained in hospital for several weeks. In 2009 he came to Australia with the sponsor. He has been going to a psychologist, medical practitioner and chiropractor from 2011 to 2014. He left Australia in 2014 to leave school and was going through depression. He has trouble with cramping when sitting or standing. In support of incapacity the applicant provided the following:
·A letter dated 26 July 2017, where the doctor wrote that the applicant complained of lower back pain with left sided sciatica since 2010. The applicant would benefit from regular physical therapy and a rehabilitation program and his prognosis is fair depending on how he responds to treatment.
·A copy of a request from the applicant to UTS Health service for the entire contents of the applicant’s medical record dated 10 June 2017.
·A UTS health service record as at 19 June 2017. This recorded information about various medical requests the applicant made and other information including as follows: the applicant’s medication to be for asthma with the last script dated 18 June 2012. On 8 January 2014, Dr C noted ‘exam 11 November 2013, failed and now appealing, states he had sciatica, no radiological proof, s/c and letter given stating his claims, he needs to back it up with further evidence’. On 8 November 2013, Dr C noted ‘letter of withdrawal rejected, needs further evidence was significantly affected and occurred after census date, states now that his pain had affected him all this time since June apt, maybe earlier, states debilitating, discussed with him at length no objective evidence to support this i.e. no regular /ongoing visits or imaging to support this, long chat about difference between objective Vs subjective evidence, now c/o of L sided sciatica, has been researching this, offered CT/MRI, will consider, seeking amendments/further support letter to letter AL provided, advised only AL can do this but given the lack of objective evidence to support this, low probability, see how he goes’. On 22 March 2013 Dr C noted ‘letter of support of withdrawal declined on existent condition, not shown to have significantly worsened after census date of March 2012-pt vehemently stated this occurred but no medical records to correlate this between period 31 December 2012 and 18 June 2012, states that apt with Dr V on 13 April 2012 he reported symptoms of anxiety etc.-clinical record doesn’t support this advised I cannot write this letter for him as I did not attend to him. On 11 March 2013 and 18 June 2012 Dr C noted letter created letter re mental health. Other notes by various physicians dating to 2011 details requests for letters from the applicant and of him being anxious about his health.
·Letter dated 29 August 2012 and 22 February 2013 refers about to the applicant’s depression and anxiety and inability to study and wanting to withdraw from subjects. The letters are unsigned by the practitioner. GP Mental Health Care Plan and Review forms dated 2012 are unsigned by the applicant and the practitioner.
·Other letters dated 2012 and 2013, refer the applicant for various tests.
·In a letter dated 8 January 2014 Dr C stated that the applicant stated that the applicant consulted him on 8 November 2013 and 8 January 2014 and stated that he had sciatica and had been seeing a chiropractor and had a scan to confirm this and this condition affected his exam. Dr C ticked a box indicating ‘unable to assess’. Other letters ‘dated 2014 are unsigned by Dr C.
·Ad hoc notes dated January 2012 to September 2013 from psychologist A, informs as follows: the applicant seeking support to reduce subject load or support for withdrawals from subjects. The applicant stating that he has difficulty concentrating and feeling anxious. He is concerned his girlfriend will leave him. The applicant stated that he suffered chest pain and was referred for assessment. He stated that he suffers from twitching but did not perceive his anxious worry as being excessive so did not continue the assessment of GAD. Applicant did not attend appointment of 11:00 am on 12 July 2012, he stated he had to work at 3:00pm. In July 2012 late withdrawal without penalty was discussed with applicant but he was advised he would need to get a clear diagnosis. Referred to practitioner for diagnostic clarification. In August 2012 psychologist A’s opinion is that the applicant most likely meets generalised anxiety disorder and recommended ongoing therapy. In August 2013 psychologist A noted that the applicant was evicted from UTS housing for punching a hole in the wall. In September 2013, psychologist stated applicant didn’t want to attend any of the three sessions offered to him.
·Ad hoc notes dated from January 2014 to March 2014 from psychologist V, informs of the following: applicant reporting ongoing pain severely impacting his concentration. Applicant preparing application for a late withdrawal without penalty. Applicant stated suffering panic attacks.
·A letter dated 26 June 2017, stating the applicant was a patient at their clinic first presented on 13 September 2010 complaining of lower back pain and his last appointment was 6 May 2014.
·A letter dated June 2011, details the results of an ultrasound on the applicant’s right wrist demonstrating mild synovitis of the extensor carpi ulnaris tendon sheath. A letter dated June 2011 refers the applicant for examination of head pain.
The Tribunal considered the evidence individually and as a whole about whether the applicant is wholly or substantially reliant on the other person for financial support because of him being incapacitated for work due to the total or partial loss of the applicant’s bodily or mental functions. The information before the Tribunal is that the applicant underwent surgery in 2009. In the following years he complained of left sided sciatica, back pain and incapacity to sit or stand for extended periods of time and of suffering from anxiety and depression and requested withdrawal and or reduction of the subjects he was studying. In March 2013, Dr C stated that, although the applicant claimed his condition had worsened there was no medical record to correlate his claims. In November Dr C stated that, the applicant needed further evidence that he was significantly affected and that there was no evidence such as regular ongoing visits or imaging to support his claims. He offered the applicant CT/MRI and the applicant is recorded as considering the offer. In 2014 Dr C stated that, the applicant needed to support his claims with further evidence. Psychologists’ reports also talk of the applicant seeking to reduce his workload and of him having back pain and difficulty concentrating and of him most likely meeting generalised anxiety disorder and recommended ongoing therapy. However there is information that the applicant was offered ongoing testing to establish diagnoses of his condition and of him being offered ongoing therapy and that his condition would improve with regular physiotherapy and rehabilitation.
The applicant told the Tribunal that he last had treatment for his back in 2015 and saw a psychologist in 2013 between one to three times. There is evidence in the psychologist’s notes that the applicant was working in July 2012. There is no independent information before the Tribunal about the applicant’s physical or mental health since 2014. However in June 2017, the applicant stated that he was waiting approval and preparing to enter the military in Korea. The other evidence before the Tribunal is as follows: the applicant has been learning about immigration and the property business since 2016. The applicant attended meetings with prospective clients since 2016. The applicant provided fraudulent immigration advice and assistance to other people relating to their visa applications and the applicant received payment for the service. On 8 July 2018, the applicant was appointed as the Director of Australian RSMS Visa Service Pty Ltd (ARVS) (Australian Company Number 627379588) on 8 July 2018. ARVS is an Australian Proprietary Company that is limited by shares with a principal business at Suite 401/80 Mount Street, North Sydney NSW 2060. The applicant is the sole Director and only member of the Company with all shares of the company issued to the applicant and beneficially held by the applicant.
As detailed in the psychologist’s notes the applicant did not attend an appointment in 2012 because he had to work. As detailed in the Form 80, the applicant stated that he worked as a bar tender in 2013. On the applicant’s evidence he became involved in the property business in 2016 and attended the North Sydney office three to four days a week and attended meetings with prospective clients. He became the sole Director of Director of Australian RSMS Visa Service Pty Ltd (ARVS) with shares in the company issued to and beneficially held by the applicant. Other evidence relates to him providing services through ARVS but not delivering those services despite being paid.
The Tribunal is satisfied that the applicant has undertaken activities that constitute work since 2012 and more recently from 2016 onwards. Having considered the evidence individually and as a whole, the Tribunal is not satisfied that the applicant is wholly or substantially reliant on the sponsor or her partner for financial support because of him being incapacitated for work due to the total or partial loss of the first person’s bodily or mental functions, because there is no evidence to support that claim.
As a result the applicant does not meet cl. 802.212 and cl.802.214 and cl.802.221 of Schedule 2 to the Regulations.
Public Interest Criterion 4020
Public Interest Criterion 4020 (PIC 4020), as required by cl.802.223(a) 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 visa 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.
On the visa application form dated 16 January 2017, the applicant claimed that he commenced secondary education in June 2006 (13 years old) at Saunders SS Ontario Canada and completed his secondary education in December 2010 (18 years old).
However on the form 80 dated 5 June 2017, the applicant stated that he commenced study in February 2010 at Holmes College and completed study in December 2010. In support of this claim he provided the following:
·A Certificate IV in Business from the Holmes Institute reissued in October 2014 for study starting on 8 February 2010 and finishing on 10 December 2010.
·A Certificate of Diploma of Management from the Holmes Institute reissued in October 2014
·An Academic Transcript issued by the Holmes Institute recording the applicant’s units of study from 8 February 2010 to 10 December 2010
As detailed in the delegate’s decision record the applicant’s claims about this study were checked with the Australian Government Department of Education and Training website, confirming the applicant’s study from 8 February 2010 to 10 December 2010. This information is supported by the Academic Transcript issued by the Holmes Institute.
On the visa application form dated 16 January 2017, the applicant stated that he commenced study in February 2011 at UTS and Kings Own College (KOI), Ultimo studying for a Bachelor of Business degree with an estimated date of completion to be December 2018. Note University of Technology Sydney (UTS) and Kings Own Institute (KOI).
On the form 80 dated 5 June 2017, the applicant stated that he commenced study in February 2011 at UTS studying for a Bachelor of Business degree and studied until December 2014 and withdrew from the study. In support of this claim he provided the following:
·An Overseas Student Confirmation of Enrolment (CoE) – issued by UTS for study in a Bachelor of Biotechnology with a commencement date of 11 February 2011 and a completion date of 21 December 2013.
·Academic Records issued by UTS on 5 December 2016 for the applicant informing that in the 2011 Autumn Session-he was enrolled for four units of study, and failed two of the units of study. In the 2011 Spring Session-he was enrolled for four units of study and withdrew from two units of study. In the 2012 Autumn Session-he was enrolled for three unites of study and failed one unit of study. In the 2012 Spring Session-he was enrolled for three unites of study and failed one unit of study. In the 2013 Autumn Session-he was enrolled for three units of study and failed two units of study. In the 2013 Spring Session-he was enrolled for two unites of study and he withdrew.
·A CoE dated 17 January 2014 issued by UTS for study in a Bachelor of Business degree with a commencement date of 4 April 2014 and a completion date of 31 December 2015 31/12/2015 UTS Bachelor of Business issued 17/1/2014
·Academic Records issued by UTS on 5 December 2016 record the course of study for a Bachelor of Business as withdrawn for the 2014 Autumn session.
As detailed in the delegate’s decision record the applicant’s claims about this study were checked with the Australian Government Department of Education and Training website: This confirmed that the applicant studied a Bachelor of Biotechnology at UTS from 14 February 2011 to 31 December 2013. However, it also recorded that the Bachelor of Business at UTS was cancelled on 6 May 2014 due to a cessation of study. This information is also in agreement with the information provided on the UTS Academic Records for the 2014 Autumn session as withdrawn. It was also noted that no CoE had been issued to the applicant since his last CoE was cancelled. The Tribunal accepts that the applicant studied for a Bachelor of Biotechnology at UTS from 14 February 2011 to 31 December 2013.
On the form 80 dated 5 June 2017, the applicant stated that he commenced study in September 2016 at KOI and finished the study in January 2017 and withdrew from the study.
Also stated in the delegate’s decision record is that on 30 August 2017, the Department contacted KOI and were advised that the applicant had not studied with them and was not a current student. KOI advised that the applicant commenced enrolment in December 2016 and withdrew in February 2017. This is contrary to the applicant’s claims on form 80 that he commenced study in September 2016.
In an email dated 31 August 2017, the applicant stated the following: he did not intentionally provide false and misleading information. What he wrote was in fact ‘enrol or study’ however he withdrew from UTS because of back pain. He did not study at all at KOI but thought he was enrolled and considered paying. He apologised for the miscommunication. In an email on 8 December 2017, the applicant stated the following: he did not submit bogus documents, it was only miscommunication. In 2009 when his father died his discomfort/disability occurred. In the same year he had a six-hour operation. He suffered severe back pain and since the surgery he has been depressed and weak. He failed several courses at UTS and could only sit and stand for a few minutes. He is strongly committed to countries like Australia and Canada. He cannot leave and especially cannot go into the Korean army.

The applicant told the Tribunal that he completed year 11 at Saunders SS Ontario Canada. He stated that he completed the equivalent of year 12 at the Holmes College in Australia. He studied at UTS for three to four years and withdrew from Kings Own College. He is sorry but did not lie about his study and the (misleading) information he provided was a mistake.
The Tribunal finds that the information the applicant provided on 16 January 2017 that he completed his secondary education in December 2010 at the Saunders SS Ontario Canada; and the information that he commenced study in February 2011 at UTS/KOI, Ultimo studying for a Bachelor of Business degree with an estimated date of completion to be December 2018 and the information the applicant provided on the form 80 dated 5 June 2017, that he commenced study in September 2016 at KOI and finished the study in January 2017 to be information that is false or misleading in a material particular in relation to the application for the visa.
The applicant initially provided evidence that he completed his secondary education at the Saunders SS Ontario Canada in 2010. However the applicant told the Tribunal that he completed the equivalent of year 12 at the Holmes College in Australia as he initially claimed. The evidence that the applicant provided on 16 January 2017, that he commenced study in February 2011 at UTS/KOI, Ultimo studying for a Bachelor of Business degree with an estimated date of completion to be December 2018 is not supported by the information provided by the applicant or by the information recorded in the delegate’s decision record as checked on the Australian Government Department of Education and Training website, which confirmed that the applicant studied a Bachelor of Biotechnology at UTS from 14 February 2011 to 31 December 2013 and that the Bachelor of Business at UTS was cancelled on 6 May 2014 due to a cessation of study. As recorded in the delegate’s decision record this information is also in agreement with information from the Department’s movement records that the applicant departed Australia on 31 May 2014. The information that the applicant provided on 5 June 2017 that he commenced study in September 2016 at KOI and finished the study in January 2017 and withdrew from the study is not supported by the information provided by KOI that the applicant commenced enrolment in December 2016 and withdrew in February 2017. The Tribunal is satisfied that collectively this information is false and misleading information in a material particular at the time it was given and was provided by the applicant to assist the visa application and to meet cl.802.214 of Schedule 2 to the Regulations.
Therefore, the visa applicant does not meet PIC 4020(1).
Should the requirements of PIC 4020(1) or (2) be waived?
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 of the Regulations), 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.
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.
There is no evidence of compelling circumstances that affect the interests of Australia.
Are there compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident, or an eligible New Zealand citizen that justify the granting of the visa?
Prior to and at the Tribunal hearing the sponsor provided information for consideration against compassionate or compelling circumstances that justify the granting of the visa as follows.
The applicant previously stated that he cannot leave (Australia). In Korea they ask men to go into the army and he especially cannot go into the Korean army. His mother would be worried as she knows he would not cope. His mother’s partner has been caring for him and sees him as his own son. His brother and his girlfriend are also concerned about the visa applicant. In September 2017 the applicant stated that his family are permanent residents in Australia and worry tremendously about him as are the friends and acquaintances he has made in the past seven years. His best option would be to obtain a permanent visa. However in June 2017, the applicant wrote ‘I am going to the consulate and receiving my birth-certificate as well as renew my passport (I was not able to on [in] Jan. Since I was renewing my purpose of stay oversea [overseas] and was waiting for approval from the military government)’.
In a letter dated 12 July 2018 a clinical psychologist stated the following: the sponsor was referred by her general practitioner for assessment and management of her depression and anxiety which has escalated since the applicant’s visa was refused. The applicant decided to return to South Korea after four years as he became depressed due to the pressure to perform at university and the pressure to maintain his visa status. The applicant missed his family and was not used to the culture in South Korea. The sponsor supported the applicant financially while he was in South Korea. The applicant returned to Australia and the sponsor found she was unable to sponsor him and became depressed. She does not want her son to return to South Korea as he has no family there. The psychologist’s opinion is that given that the sponsor has become depressed as a result of not being able to sponsor the applicant it is recommended that her sponsorship be reconsidered.
The sponsor was passionate in the evidence she gave at the Tribunal hearing as follows. The applicant’s father died in 2009 when the applicant was 17 years old. The applicant was close to his father and his father’s death had a detrimental effect on the applicant. He suffered a lot. She supported her children through their studies. The applicant is part of her life and she does not want to be apart from him. She has suffered because he has not been granted a visa. After the visa was refused she had about six consultations with a psychologist who helped her with the depression she was experiencing. The applicant attended one or two of the psychologists counselling sessions. The Tribunal encourages the sponsor to seek assistance from her health care professionals during any separation from the applicant.
The applicant’s step-father told the Tribunal that the applicant would be a great asset to Australia. He said that initially he experienced study difficulties and was not handling studies well. He has seen a psychologist who helped him and he can probably go on with his studies. The applicant is smart and a good decision maker.
This decision is a synopsis of the information before the Tribunal. The Tribunal considered the evidence individually and as a whole. The Tribunal accepts the following: that the death of the applicant’s father may have presented and present him with difficulties. The applicant departing Australia may offer challenges for the applicant, the sponsor, the applicant’s family and the applicant’s girlfriend and his step-father sees him as a son and believes he is an asset to Australia. The applicant may be required to fulfil military Service in Korea and that living in Korea without immediate family and the culture may be difficult for him. The Tribunal encourages the applicant and the sponsor to seek assistance from their health care professionals during any periods of separation. However, on balance, the Tribunal is not satisfied on the evidence before it, that there are compelling circumstances that affect the interests of Australia, or that there are compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident, or an eligible New Zealand citizen that justify the granting of the visa.
For the reasons above, the Tribunal is not satisfied that the requirements should be waived
Accordingly cl.802.223 is not met at the time of decision.
For the reasons above, the criteria for the grant of a Subclass 802 visa are not met. There have been no claims advanced in respect of the other visa subclass in Class BT (Subclass 837).
DECISION
The Tribunal affirms the decision not to grant the applicant a Child (Residence) (Class BT) visa.
Helena Claringbold
Member
ATTACHMENT – RELEVANT LAW
Migration Regulations 1994
1.03 Definitions
…
dependent child, of a person, means the child or step-child of the person (other than a child or step-child who is engaged to be married or has a spouse or de facto partner), being a child or step-child who:
(a)has not turned 18; or
(b)has turned 18 and:
(i)     is dependent on that person; or
(ii)     is incapacitated for work due to the total or partial loss of the child’s or step-child’s bodily or mental functions.
…
step-child, in relation to a parent, means:
(a)a person who is not the child of the parent but who is the child of the parent’s current spouse or de facto partner; or
(b)a person who is not the child of the parent but:
(i)     who is the child of the parent’s former spouse or former de facto partner; and
(ii)     who has not turned 18; and
(iii)     in relation to whom the parent has:
(A)a parenting order in force under the Family Law Act 1975 under which the parent is the person with whom a child is to live, or who is to be responsible for the child's long-term or day-to-day care, welfare and development; or
(B)guardianship or custody, whether jointly or otherwise, under a Commonwealth, State or Territory law or a law in force in a foreign country.
1.05A Dependent
(1)Subject to subregulation (2), a person (the first person) is dependent on another person if:
(a)at the time when it is necessary to establish whether the first person is dependent on the other person:
(i)     the first person is, and has been for a substantial period immediately before that time, wholly or substantially reliant on the other person for financial support to meet the first person’s basic needs for food, clothing and shelter; and
(ii)     the first person’s reliance on the other person is greater than any reliance by the first person on any other person, or source of support, for financial support to meet the first person’s basic needs for food, clothing and shelter; or
(b)the first person is wholly or substantially reliant on the other person for financial support because the first person is incapacitated for work due to the total or partial loss of the first person’s bodily or mental functions.
…