PEDROSO (Migration)

[2018] AATA 1564

PEDROSO (Migration) [2018] AATA 1564 (11 April 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Celine Ricksy Jane Pedroso

CASE NUMBER:  1703140

DIBP REFERENCE(S):  CLF2016/36714

MEMBER:Helena Claringbold

DATE:11 April 2018

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a Child (Residence) (Class BT) visa.

Statement made on 11 April 2018 at 1:31pm

CATCHWORDS

Migration – Child (Residence) (Class BT) visa – Subclass 802 (Child) visa – Full-time study – Requirements of PIC 4020(1) not met – bogus documents/misleading information – Inconsistent evidence – cl.802.214(1)(c) not met at the time of application

LEGISLATION

Migration Act 1958, s. 65

Migration Regulations 1994, Schedule 2, cl 802.214(1)(c), cl.802.214(2), cl.802.214,, cl.802.221(2)(b), cl.802.223, r.1.03

CASES
Arora v MIBP [2016] FCAFC 35
Batra v MIAC [2013] FCA 274
Kaur v MIBP [2017] FCAFC 184.
Plaintiff M64/2015 v MIBP [2015] HCA 50
Trivedi v MIBP [2014] FCAFC 42

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. On 16 June 2016, Miss Celine Ricksy Jane Pedroso, the applicant, applied for a Child (Residence) (Class BT) visa.  The application was made on the basis of her dependent child relationship with Ms Synthia Dee Restar, the sponsor.

2. On 1 February 2017, a delegate of the Minister for Immigration and Border Protection refused to grant the visa. The refusal was based on the applicant not satisfying cl.802.214(1)(c), cl.802.214(2), cl.802.214, and cl.802.223 of Schedule 2 to the Migration Regulations 1994 (the Regulations) made under Migration Act 1958 (the Act). This is a review of the delegate’s decision.

3. At the time of application, the Child (Residence) (Class BT) visa contained Subclass 802 (Child) and Subclass 837 (Orphan Relative). In this case, claims have only been made in respect of Subclass 802 (Child).

4. On 26 March 2018, the applicant appeared before the Tribunal to give evidence and present arguments. She provided the Tribunal with a copy of the delegate’s decision record. The Tribunal also received oral evidence from Ms Restar. The applicant was represented in relation to the review.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The Tribunal considered the information in the Department of Immigration and Border Protection’s file and the Tribunal’s file and the evidence at the Tribunal hearing.

   ISSUES

7. The first issue in this case is whether the visa applicant was undertaking full-time study at the time of application and at the time of this decision, and if not, whether at the time of application and at the time of decision the applicant was incapacitated for work due to the loss of bodily or mental functions. The second issue is whether the visa applicant meets the Public Interest Criterion (PIC) 4020 at the time of decision and If not, whether the requirements of PIC 4020 be waived?

   BACKGROUND ON THE EVIDENCE

8. The applicant was born in the Philippines in December 1996.  Her mother lives in Australia.  On 14 March 2015, the applicant entered Australia as the holder of a Subclass 600 Visitor visa. The applicant told the Tribunal that her three siblings are in Australia and have applied for Subclass 802 visas.  She said that the sponsor came to Australia in 2005.  From 2005 to 2008, the applicant and her siblings lived with their father and his family in the Philippines.  In 2008, her parents separated.  From 2008 to 2014 the applicant and her siblings lived with their maternal grandmother in the Philippines. In July 2014, the applicant and her siblings travelled to New Zealand with their mother.  The sponsor told the Tribunal that they liked New Zealand.  However, she was unable to meet the financial criterion for the grant of visas in New Zealand.   

9. The Tribunal put information to the applicant under the relevant provision.  The information before the Tribunal is as follows: 

10. The sponsor is involved in providing unregistered immigration assistance and also involved in the provision of fraudulent documents.

11. Other information is that the applicant claimed to commence study at Northwestern Visayan Colleges in July 2014 and provided letters from the college confirming enrolment. However the applicant travelled to New Zealand in July 2014 and lived there until 14 March 2015.

12. The applicant responded at the Tribunal hearing.  She stated that she didn’t know anything about her mother providing immigration advice. She enrolled at Northwestern Visayan College in July 2014, but didn’t attend any classes.  At that time, she travelled to New Zealand with her mother and her siblings and they liked New Zealand.  Her mother tried to obtain a long term visas for the family in New Zealand and the applicant and her siblings wanted to study there. 

    Additional criteria for applicants over 18

13. At the time of application the applicant was 19 years old. Therefore, there are additional requirements relating to relationships, work and study to be satisfied if, at the time of application, the applicant has turned 18: cl.802.214 of Schedule 2 to the Regulations. These requirements must continue to be met at the time of decision: cl.802.221(2)(b) of Schedule 2 to the Regulations.

    Full-time study (or incapacitated for work)?

14. At the time of application, the applicant must have, since turning 18, or within six months or a reasonable time after completing the equivalent of year 12 in the Australian school system, been undertaking a full-time course of study at an educational institution leading to the award of a professional, trade or vocational qualification: cl.802.214(1)(c) of Schedule 2 to the Regulations. However, this requirement does not apply in the case of applicants who, at the time of making the application, were incapacitated for work due to the loss of bodily or mental functions: cl.802.214(2) of Schedule 2 to the Regulations. This requirement must continue to be met at the time of decision: cl.802.221(2)(b) of Schedule 2 to the Regulations.

    Is the visa applicant incapacitated for work?

15. There is no evidence before the Tribunal that the at the time of application or this decision, the applicant was or is incapacitated for work because of loss of bodily or mental functions.

    Was the visa applicant undertaking full-time study?

16. At the time of application, during the visa process and at the Tribunal hearing the applicant provided information about her study.  She stated that she completed high school on 29 March 2014. Other information is detailed below.

17. A letter from Northwestern Visayan Colleges, Philippines, dated 1 July 2014.  This letter records the applicant as being enrolled as a first year student in the four-year Bachelor of Science in Business Administration course as of the first semester in 2014-2015. At the time of application the applicant gave evidence that she was enrolled at the college in July 2014, with study to be completed in October 2016. The letter from Northwestern Visayan Colleges was referred to the Australian Embassy in Manilla, in the Philippines for verification. On 12 December 2016, information received by the Department that the applicant was only enrolled for the first semester in 2014-2015.  There were no records of the applicant attending any of the classes during that semester or of her grades or dropped subjects. The applicant told the Tribunal that she left the Philippines before classes began and decided to study in New Zealand. The sponsor, in a written statement dated 26 March 2018, stated that the applicant did not attend the college.  She added that the information on the visa application form that the applicant is currently enrolled is correct as she did not withdraw or cancel the applicant’s enrolment.  

18. A letter from Academic Colleges Group (ACG) (New Zealand) dated 10 October 2014. The letter records an offer a conditional place for the applicant in the University of Auckland Foundation Studies from 13 October 2014 to July 2015. This letter was referred to the Australian Consulate in Auckland for verification.  On 17 November 2016, information was received by the Department that the offer was conditional on the applicant providing the college further information.  The college advised that as the relevant information had not been provided by the applicant the offer had lapsed. The applicant told the Tribunal that she attended ACG for one week; however, because the fees were not paid she didn’t appear on any roll. The sponsor in a written statement dated 26 March 2018, stated that the applicant attended a couple of class sessions at ACG.  However the offer lapsed because of lack of payment.                  

19. A letter from Sure Oceania Group of health Training Australia (SOG), dated 19 June 2015, recorded that the applicant commenced a Business Service BSB30115 Certificate lll in Business on 30 March 2015 and completed this course 15 June 2015. Another document, dated 12 November 2015, certifies that the applicant fulfilled the requirements for the Business Service BSB30115 Certificate lll in Business on 8 November 2015. At the time of application and at the Tribunal hearing the applicant gave evidence that she began this online course of study in March 2015 and completed the course in November 2015. Departmental checks conducted in October 2015 found no evidence of this organisation conducting training.  Other information is that the trainer registration for this organisation was cancelled on 1 February 2016. Ms Synthia Restar, the applicant’s mother, is the registered Chief Executive Officer for this organisation. The sponsor, in a written statement dated 26 March 2018, stated that the course was a distance learning course and the applicant completed the study at home.  However, the practical component for the course was completed in the office of the training organisation. She told the Tribunal that she would like additional time to obtain more information about the dates provided by SOG. She claimed that because SOG is not a training organisation, at this time, records are not readily available. She stated that the applicant didn’t receive any special treatment because she was the sponsor’s daughter.  She also claimed that the certificate issued to the applicant was dated November 2015, prior to the organisation closing on 1 February 2016. The Tribunal told the sponsor that the application for review had been lodged with the Tribunal more than a year ago and the Tribunal is of the view that both the applicant and sponsor have had ample time to provide information to the Tribunal.  However, the Tribunal provided additional time for the provision of additional information. In a post hearing submission, the applicant provided information about her studies with Australian Pacific College (APC) as detailed below.  At the time of this decision the applicant has not provided any further information about her claimed study at SOG.

20. A letter from Wise Education Group advising that the applicant was currently enrolled to study a Certificate lV in Hospitality.  It stated that the course commenced on 5 October 2016 and was due for completion on 4 October 2017.  It stated that the application should be lodged with the Administration Centre.  At the time of application the applicant gave evidence that she was currently enrolled. The applicant told the Tribunal that she didn’t pursue this course of study.

21. Documents from Australian Pacific College (APC) records showing that the applicant applied for a Diploma in Hospitality Management with APC on 24 July 2017; study timetables for July 2017– September 2017, October 2017-December 2017, February 2018 – April 2018 and a work placement for February and March 2018.  

22. The Tribunal considered all of the evidence and is not satisfied that at the time of application on 16 June 2016, the applicant was undertaking full-time study. Neither is the Tribunal satisfied that the applicant has undertaken fulltime study since completing high school in March 2014. The applicant’s evidence to the Tribunal is that she did not study at the Northwestern Visayan Colleges in the Philippines in 2014.  She stated that in 2014 she attended study at the ACG for one week.  The evidence she provided about her study for  a Business Service BSB30115 Certificate lll in Business is inconsistent. On one hand she stated that she commenced in August 2015 and was completed in November 2015 and providing a document claiming to be a ‘Certificate lll Business’ from SOG to support this evidence. On the other hand, she provided evidence that she commenced this study on 30 March 2015 and completed the study in June 2015.    In addition, she told the Tribunal that in 2016/2017, she did not pursue study with Wise Education Group, while her study with APC is not full-time study.

23. This evidence when considered with the evidence resulting from the verification checks, as detailed in the delegate’s decision record which was provided to the Tribunal by the applicant, led the Tribunal not to be satisfied that at the time of application, the applicant, since turning 18, or within six months or a reasonable time after completing the equivalent of year 12 in the Australian school system, had been undertaking a full-time course of study at an educational institution leading to the award of a professional, trade or vocational qualification. Therefore the applicant does not satisfy cl.802.214(1)(c) of Schedule 2 to the Regulations.

24. As the Tribunal has determined that the applicant does not satisfy cl.802.214(1)(c) of Schedule 2 to the Regulations, it has not gone onto consider the other criteria for the grant of the visa.

25. Accordingly, cl.802.214(1)(c) is not met at the time of application, and does not continue to be met at the time of decision.

    Does the applicant meet PIC 4020?

26. 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 three years before the application was made and ending when the visa is granted or refused, unless the applicant was under 18 at the time the application for the refused visa was made: PIC 4020(2) and (2AA); and

    ·the applicant satisfies the Minister as to his or her identity: PIC 4020(2A); and

    ·neither the applicant nor any family unit member has been refused a visa because of a failure to satisfy PIC 4020(2A) during the period starting 10 years before the application was made and ending when the visa is granted or refused, unless the applicant was under 18 at the time the application for the refused visa was made: PIC 4020(2B) and (2BA).

27. 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?

28. 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.

29. 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.

30. 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.

31. As discussed above the applicant gave evidence that since completing high school in 2014, she has been enrolled in study. She provided statements and supporting documentation to support her claims. Verification checks support the applicant’s claims of enrolment.  It was found that the University of Auckland Foundation Studies conditional offer lapsed.  While other information supports the applicant’s enrolment at Northwestern Visayan Colleges there were no records of the applicant attending classes.  The information from Sure Oceania Group of Health Training (Australia) (SOG) is inconsistent as it details the applicant completing two periods of study and two grants of the same certificate.  While other information is that SOG didn’t conduct training as was claimed and their trainer registration was cancelled on 1 February 2016.

32. Based on the applicant’s evidence the Tribunal is satisfied that the applicant was enrolled in study at the University of Auckland Foundation Studies and Northwestern Visayan Colleges as she claimed.

33. The Tribunal will now consider the information provided by the applicant about her study with SOG.  The applicant stated on form 80 that she began study for a ‘Certificate lll Business’ with SOG in August 2015 and completed that study in November 2015. In her statutory declaration dated 4 November 2016 she confirmed these details.

34. The applicant provided a letter from SOG dated 19 June 2015, which recorded that the applicant commenced the Business Service BSB30115 – Certificate lll in Business on 30 March 2015 and the completion date was 15 June 2015. She also provided certification from SOG that she completed the Business Service BSB30115 – Certificate lll in Business on 8 November 2015.

35. In October 2015, Departmental checks found no evidence that SOG was conducting training.  They also found that the trainer registration for this organisation was cancelled on 1 February 2016 and that the sponsor is the registered Chief Executive Officer for SOG.

36. The applicant told the Tribunal that the study with SOG began in March 2015 and was completed in October or November 2015. The sponsor in a written statement provided by the applicant, dated 26 March 2018, stated that the Business Service BSB30115 – Certificate lll in Business course was a distance learning course and the applicant completed the study at home.  She stated that the practical component for the course was completed in the office of the training organisation. She claimed that because SOG is not a training organisation, at this time, records are not readily available. She stated that the applicant didn’t receive any special treatment because she was the sponsor’s daughter.  She also claimed that the certificate issued to the applicant was dated November 2015, prior to the organisation closing on 1 February 2016. In her statement and at the Tribunal hearing the sponsor stated that she would like to get more information about the dates provided by SOG.

37. The Tribunal told the sponsor that the application for review had been lodged with the Tribunal more than a year ago and the Tribunal is of the view that both the applicant and sponsor have had ample time to provide information to the Tribunal.  However, the Tribunal provided additional time for the provision of information. At the time of this decision the applicant had not provided further information about her claimed study with SOG.

1. The applicant provided inconsistent information about her study with SOG.  She stated on the visa application form and in a statement that the study commenced in August 2015 and was completed in November 2015 and providing a document claiming to be a ‘Certificate lll Business’ from SOG to support this evidence. She also provided evidence that she commenced this study on 30 March 2015 and completed the study in June 2015. Even after the Tribunal provided the applicant additional time to provide information about this study, no other information was provided. This led the Tribunal not to be satisfied that the applicant completed any study at SOG and not to be satisfied that the certificates issued by SOG are genuine. The Tribunal reasonably suspects that the certificates provided by the applicant as part of the visa application purports to have been, but were not, issued in respect of the person.

2. The Tribunal is not satisfied 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).

3. As a result the applicant fails to meet the requirements of PIC 4020(1). 

   Should the requirements of cl.4020(1) be waived?

4. 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.

5. 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.

6. The visa applicant told the Tribunal that, the sponsor faced difficulties trying to support the applicant and her siblings. She said that she wants to be with her mother and to help her. She told the Tribunal of the difficulties she and her siblings and their mother have been through and their reliance on each other.

7. The Tribunal considered the information about the difficulties the sponsor faced and the reliance the applicant and sponsor have on each other.  The sponsor entered Australia in 2006 as the holder of a Subclass 457 visa.  In June 2011, the sponsor was granted a Subclass 121 visa. The applicant lived separately from the sponsor for approximately nine years.  During that time the applicant lived in the Philippines and completed her high school studies.  In July the applicant, her siblings and the sponsor travelled to New Zealand and lived there until the applicant entered Australia in March 2015.   During this time the sponsor spent some of her time in Australia and some of her time in New Zealand. The Tribunal is of the view that the applicant and sponsor have lived apart a significant time and they would like to live together as mother and daughter. The Tribunal is satisfied that there are compassionate circumstances that affect the interests of the sponsor, who is an Australian permanent resident.

8. For the reasons above, the Tribunal is satisfied that the requirements of PIC 4020 (1) should be waived.

9. On the basis of the above, the applicant satisfies PIC 4020 for the purposes of cl.802.223.

10. As detailed above, at the time of application, the applicant does not meet cl.802.214(1)(c) of schedule 2 to the Regulations and it continues not to be met at the time of decision.

11. For the reasons above, the criteria for the grant of a Subclass 802 visa are not met.

    DECISION

12. The Tribunal affirms the decision not to grant the applicant a Child (Residence) (Class BT) visa.

    Helena Claringbold
    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. 

    …