Patel (Migration)

Patel (Migration) [2022] AATA 5187 (5 October 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mr Yasmin Amrutbhai Patel
Mrs Denisaben Yasmin Patel
REPRESENTATIVE:  Mr Kamaljeet Singh (MARN: 2015736)
CASE NUMBER:  2118655
HOME AFFAIRS REFERENCE(S):          BCC2020/1087003
MEMBER:Margaret Forrest
DATE AND TIME OF
ORAL DECISION AND REASONS:         5 October 2022 at 1:33 pm (QLD time)
DATE OF WRITTEN RECORD:                29 March 2023
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decisions not to grant the applicants Student (Temporary) (Class TU) visas.

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – false or misleading information provided with visa application – previous visa refusal not declared – claimed misunderstanding of question to mean refusal of entry on arrival – onus on applicant to ensure understanding and seek clarification if necessary – signed declaration – no compassionate or compelling circumstances to waive criterion – study and work history – member of family unit – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), s 5(1)
Migration Regulations 1994 (Cth), Schedule 2, cls 500.212, 500.217(1), 500.311, Schedule 4, criterion 4020(1), (5)
CASES
Arora v MIBP [2016] FCAFC 35
Batra v MIAC [2013] FCA 274
Kaur v MIBP [2017] FCAFC 184
Pandey (Migration) [2021] AATA 2253
Plaintiff M64/2015 v MIBP [2015] HCA 50
Singh (Migration) [2019] AATA 2158
Trivedi v MIBP [2014] FCAFC 42

APPLICATION FOR REVIEW

This is an application for review of decisions made by a delegate of the Minister for Home Affairs on 23 November 2021 to refuse to grant the visa applicants Student (Temporary) (Class TU) Subclass 500 visas under the Migration Act 1958 (Cth) (the Act).
At the hearing on 5 October 2022 the Tribunal made an oral decision and gave an oral statement of decision and reasons. The following is the written record of those reasons.
STATEMENT OF DECISION AND REASONS
The applicants applied for the visas on 10 March 2020. The delegate refused to grant the visas on the basis that the first named applicant, (the applicant), did not satisfy the requirements of clause 500.217(1) of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) because the delegate was not satisfied that the applicant met Public Interest Criteria PIC 4020(1).
The applicants appeared before the Tribunal 5 October 2022 by telephone to give evidence and present arguments. The applicants were represented in relation to their review and the applicants’ representative, Mr Singh, attended the telephone hearing and made oral submissions.
The Tribunal exercised its discretion to hold the hearing by telephone. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick and the delay to the matter if the hearing was not to be conducted by telephone. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.
In the week prior to the Tribunal hearing the Tribunal sent the applicant a copy of his records from the Provider Registration and International Student Management System known as PRISMS. The Tribunal indicated that the member may refer to the applicant’s PRISMS record during the hearing. Because the information in the applicant’s PRISMS record is not relevant to the matters presently before the Tribunal, the Tribunal did not put the applicant’s PRISMS record to him during the hearing.
On 3 October 2022, the applicant submitted two cases to the Tribunal, Singh (Migration) [2019] AATA 2158 (4 March 2019) and Pandey (Migration) [2021] AATA 2253 (3 June 2021). The Tribunal has considered both of these cases. However, the Tribunal notes that the applicant’s case has been determined on its merits based on the information before the Tribunal, including the applicant’s submissions at the hearing.
For the following reasons the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this review is whether the visa applicant meets Public Interest Criterion 4020 (PIC 4020) as required by clause 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 Medical officer of the Commonwealth, a bogus document or information that is false or misleading in a material particular in relation to the application for the visa or a visa that the applicant held in the 12 months before the application was made: PIC 4020(1); and
·the applicant and each member of the family unit has not been refused a visa because of a failure to satisfy PIC 4020(1) during the period starting 3 years before the application was made and ending when the visa is granted or refused, unless the applicant was under 18 at the time the application for the refused visa was made: PIC 4020(2) and (2AA); and
·the applicant satisfies the Minister as to his or her identity: PIC 4020(2A); and
·neither the applicant nor any family unit member has been refused a visa because of a failure to satisfy PIC 4020(2A) during the period starting 10 years before the application was made and ending when the visa is granted or refused, unless the applicant was under 18 at the time the application for the refused visa was made: PIC 4020(2B) and (2BA).
The requirements in PIC 4020(1) and (2) can be waived if there are certain compelling or compassionate reasons justifying the granting of the visa: PIC 4020(4). However, this waiver does not apply to the identity requirements in PIC 4020(2A) and (2B). PIC 4020 is extracted in the attachment to this decision.
Has the applicant given, or caused to be given a bogus document, or information that is false or misleading in 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.
The Tribunal told the applicants that if the Tribunal affirmed the delegate’s decision in relation to PIC 4020(1) the applicant would be prevented from applying for certain types of visas for a period of three years from the date of the delegate’s decision, which was 23 November 2021.
The applicant provided a copy of the delegate’s decision record to the Tribunal. The Tribunal reminded that the applicant that the delegate of the Minister had refused to grant him a visa for the following reasons:
On 10/03/2020, the applicant provided information within the current student visa application for that was considered to be false or misleading.
The applicant answered “No” to the following question on the student visa application form:
Has the applicant or any person included in this application ever had an application for entry or further stay in Australia or any other country refused or had a visa cancelled?
However, Departmental records indicate that on 25/02/2019 the applicant was refused a RSMS Migrant (RN 187) visa application.
The delegate found:
It is clear from this information that the applicant has provided false or misleading information within the student visa application form. I consider the non-declaration of such a refusal to be significant to the assessment of the genuine temporary entrant criterion under regulation 500.212 and, therefore, find the false information given is relevant to a material particular.
The applicant was provided with the opportunity to comment on the suspected false information on 21 May 2020. He was given 28 days to comment. On 16 June 2020 the applicant provided a response from his migration agent Girishkumar J Patel (MRN 1794078).
In summary, the letter explained the applicant misunderstood the context of the question. He misunderstood the question as to if he has ever been refused to “enter” a country, which he interpreted as being refused to enter a country at an airport while travelling and that is why he did not mention the visa refusal. The letter also mentions that the applicant is aware of the fact that the Department has access to the visa history of all applicants and he did not try to hide anything intentionally but only did so mistakenly by misunderstanding the contents of the question.
Nevertheless, the delegate of the Minister mentioned that the onus is on the applicant to ensure that he understands the questions being asked and if unsure or not clear to seek clarification from his appointed migration agent. The delegate stated that ultimately it is the applicant’s responsibility to ensure that all the information provided to the Department is correct.
The delegate found that in answering “No” when the applicant had an RSMS Migrant visa application refused on 25/02/2019, the applicant has clearly provided false or misleading information to the Department.
The delegate also noted that the declarations on the application form clearly state giving false or misleading information is a serious offence. The applicants have declared that they have read and understood the information provided to them in this application, have provided complete and correct information in every detail in this form and on any attachments to it. The response of the applicant to both these questions on the application is affirmative, which indicates the applicant’s confirmation of the information provided as correct.
Ultimately the delegate found that the applicant had provided false or misleading information to the Department and that the information is relevant in a material particular to the assessment of the genuine temporary entrant criterion under clause 500.212 of Schedule 2 to the Regulations, which includes a consideration of the applicant’s immigration history.
The Tribunal asked the applicant if he remembers answering “No” to the relevant question and he said, yes, he did say “No” to that question but he misunderstood the question.
The Tribunal asked the applicant if he accepted he had an RSMS Migrant visa application refused on 25 February 2019 and the applicant said “Yes”.
The Tribunal then asked the applicant if he accepted that his answer “No” to the relevant question was, therefore, not correct and he said “Yes”. He said the question was tricky and he accidentally pressed no.
The Tribunal asked the applicant if he remembered making the declaration, that he had read and understood the information provided to him in the application and he had provided complete and correct information in every detail on this form and on any attachments to it. The applicant said at the moment he cannot recall that. He forwarded all his details and documents to his migration agent.
The Tribunal put to the applicant that it was difficult for the Tribunal to accept this was a mistake in circumstances where:
a.the question clearly refers to an application for entry or further stay in Australia being refused; and
b.the applicant had signed the declaration when he submitted his student visa application.
The applicant said he was on a 485 Student visa and he went back to his home country. He said he thought if he had to go onto his country and come back if they stopped him at the airport in Australia when he came back, that’s what the question meant.
The Tribunal asked the applicant if he had got help from his migration agent for the visa and he said “Yes”.
The Tribunal asked the applicant’s representative if he had any submissions to make about the alleged false or misleading information and the applicant’s representative said the applicant has misunderstood. The applicant’s representative said the applicant was not aware of the migration regulations and the applicant’s representative did not believe that there was any type of benefit the applicant was trying to achieve by answering “No”. The applicant’s representative said from the letter the applicant submitted to the Department, it was clear the applicant got confused. The applicant’s representative said he had spoken to his client about his previous applications and the applicant had never given any other misleading statements.
The Tribunal confirmed that the only misleading statement it was concerned with was the misleading statement in relation to the current student visa application referred to in the delegate’s decision.
Based on the information from the Department and the applicant’s submissions to the Department and the Tribunal, including the applicant’s oral submissions, the Tribunal is satisfied and finds that the information was both false and misleading as it was incorrect as to whether the applicant had ever had an application for entry in Australia refused and it was provided to mislead an assessment of whether the applicant met the criteria for a student visa.
The Tribunal is satisfied that the information was in relation to a material particular, that being the genuine temporary entrant criterion in clause 500.212 of Schedule 2 to the Regulations, which requires a consideration of the applicant’s immigration history.
In making this finding the Tribunal has placed significant weight on the fact that the applicant’s visa application included a declaration that he had read and understood the information provided to him in this application and that he had provided complete and correct information in every detail in this form and on any attachments to it. Also, that he had the assistance of a migration agent in preparing his visa application.
Therefore, the 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 reg 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.
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.
For the following reasons the Tribunal is not satisfied that the requirements should be waived.
The applicant’s evidence at the hearing in relation to whether there are compelling circumstances that affect the interests of Australia was as follows.
The Tribunal asked the applicant if he was currently working and he said “Yes”, he was working as a stock controller.
The Tribunal asked what he was currently studying and he said he was starting an Advanced Diploma of Hospitality Management.
The Tribunal asked if the applicant had hospitality experience and the applicant said “Yes”, he worked as a chef between January 2018 and September 2019, however, he was not currently working as a chef.
The Tribunal asked the applicant if he had recently attempted to find work in hospitality and he said he was still looking and he was not able to get a job recently.
The applicant’s representative said the applicant was qualified as a chef, he had a Certificate IV in Commercial Cookery and he has more than one year experience as a chef. The applicant’s representative said “chef” was on the skilled migration occupation list and the applicant had not been able to secure a job as a chef. The applicant’s representative said the applicant had been working in 2019 as a chef but the pandemic happened in 2020 and we are coming out of that situation. He submitted that it will not be that hard for the applicant to secure experience in the future.
The applicant’s representative also submitted that the applicant’s current visa situation, meaning the fact he is on a bridging visa, has made it difficult for the applicant to acquire work as a chef. He said people try to take workers on a visa with fulltime working rights and because of the bridging visa, it is not easy for the applicant to secure a job. The Tribunal asked the applicant if this was correct and he said “Yes”.
The Tribunal asked the applicant if at any interviews he had been asked about his visa status and he said the first question they ask is “Are you an Australian citizen or permanent resident?”
The Tribunal asked if at interviews he had been asked about being on a bridging visa rather than a student visa and the applicant said “They have not specifically asked this question”. The applicant said he tells them he is on a bridging visa whenever they ask his visa status at an interview.
The Tribunal asked if he had ever been given the fact he was on a bridging visa as a reason for why he did not get a job and he said “No, they just say they will contact me”.
Based on all of this evidence, the Tribunal is not satisfied that there are compelling circumstances that affect the interests of Australia in this case. In making this finding the Tribunal has placed significant weight on the fact that the applicant is not presently working as a chef nor in the hospitality industry. The Tribunal also accepts that the applicant’s current visa status may make it more difficult for him to acquire work in the hospitality industry. However, there are not compelling circumstances that affect the interests of Australia in this case given the applicant is not, in fact, working as a chef in Australia even though this occupation is on the skilled migration occupation list.
The applicant’s evidence in relation to whether there were compassionate or compelling circumstances that affect an Australian citizen, permanent resident or New Zealand citizen were as follows. The applicant said he had no submissions and that he had no family members who were Australian citizens, permanent residents or eligible New Zealand citizens. The applicant’s representative said his only submission was that businesses related to hospitality would be affected.
Based on all of this evidence the Tribunal finds that it is not satisfied that there are compassionate or compelling circumstances that would affect an Australian citizen, permanent resident or New Zealand citizen that justify the granting of the visa in this case.

The Tribunal also gave the secondary applicant Mrs Patel the opportunity to say anything she wished and she said she had nothing to say.
Therefore, the requirements of PIC 4020(1) should not be waived.
Concluding paragraphs
On the basis of the above, the applicant does not satisfy PIC 4020 for the purposes of clause 500.217(1).
Clause 500.311
Clause 500.311 in Schedule 2 of the Regulations requires as follows:
The applicant is a member of the family unit of a person (the primary person) who holds a student visa, having satisfied the primary criteria for that visa, and either:
(a) the applicant became a member of the family unit of the primary person before the grant of the student visa to the primary person, and was included in:
(i) the primary person’s application under subregulation 2.07AF(3); or
(ii) information provided in relation to the primary person’s application under subregulation 2.07AF(4); or
(b) the applicant became a member of the family unit of the primary person:
(i) after the grant of the student visa to the primary person; and
(ii) before the application was made.
Conclusion on cl.500.311
As the applicant was found not to meet clause 500.212, the Tribunal finds that secondary applicant Mrs Denisaben Yasmin Patel does not satisfy clause 500.311. As secondary applicant Mrs Denisaben Yasmin Patel has been found not to satisfy clause 500.311, no further assessment with regard to this applicant has been undertaken. Accordingly, in relation to the secondary applicant, Mrs Denisaben Yasmin Patel, the decision under review must be affirmed.
DECISION
The Tribunal affirms the decisions not to grant the applicants Student (Temporary) (Class TU) visas.
Margaret Forrest
Member

ATTACHMENT
Migration Regulations 1994
Schedule 4
4020(1) There is no evidence before the Minister that the applicant has given, or caused to be given, to the Minister, an officer, the Tribunal during the review of a Part 5 reviewable decision, a relevant assessing authority or a Medical Officer of the Commonwealth, a bogus document or information that is false or misleading in a material particular in relation to:
(a)the application for the visa; or
(b)a visa that the applicant held in the period of 12 months before the application was made.
(2)The Minister is satisfied that during the period:
(a)starting 3 years before the application was made; and
(b)ending when the Minister makes a decision to grant or refuse to grant the visa;
the applicant and each member of the family unit of the applicant has not been refused a visa because of a failure to satisfy the criteria in subclause (1).
(2AA)However, subclause (2) does not apply to the applicant if, at the time the application for the refused visa was made, the applicant was under 18.
(2A)The applicant satisfies the Minister as to the applicant’s identity.
(2B)The Minister is satisfied that during the period:
(a)starting 10 years before the application was made; and
(b)ending when the Minister makes a decision to grant or refuse to grant the visa;
neither the applicant, nor any member of the family unit of the applicant, has been refused a visa because of a failure to satisfy the criteria in subclause (2A).
(2BA)However, subclause (2B) does not apply to the applicant if, at the time the application for the refused visa was made, the applicant was under 18.
(3)To avoid doubt, subclauses (1) and (2) apply whether or not the Minister became aware of the bogus document or information that is false or misleading in a material particular because of information given by the applicant.
(4)The Minister may waive the requirements of any or all of paragraphs (1)(a) or (b) and subclause (2) if satisfied that:
(a)compelling circumstances that affect the interests of Australia; or
(b)compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen;
justify the granting of the visa.
(5)In this clause:
information that is false or misleading in a material particular means information that is:
(a)false or misleading at the time it is given; and
(b)relevant to any of the criteria the Minister may consider when making a decision on an application, whether or not the decision is made because of that information.
…
Migration Act 1958
s 5 Interpretation
(1) In this Act, unless contrary intention appears:
…
bogus document, in relation to a person, means a document that the Minister reasonably suspects is a document that:
(a)purports to have been, but was not, issued in respect of the person; or
(b)is counterfeit or has been altered by a person who does not have authority to do so; or
(c)was obtained because of a false or misleading statement, whether or not made knowingly.

[2022] AATA 5187

5 October 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Natural Justice