Pervez (Migration)

[2018] AATA 5570

Pervez (Migration) [2018] AATA 5570 (22 November 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Khalid Mohammad Pervez

CASE NUMBER:  1726743

DIBP REFERENCE(S):  BCC2016/3284538

MEMBER:Tim Connellan

DATE AND TIME OF

ORAL DECISION AND REASONS:          22 November 2018 at 10:45 am (VIC time)

DATE OF WRITTEN RECORD:                30 November 2018

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision under review.

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – bogus document – false or misleading information – loan document purportedly from the Habib Bank – account records could not be located – waiver of requirement – no compelling reasons – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 500.217, Schedule 4, PIC 4020

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 24 October 2017 to refuse to grant the visa applicant a Student (Temporary) (Class TU) Subclass 500 visa under the Migration Act 1958 (the Act).

2. At the hearing on 22 November 2018 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

3. MEMBER:  Mr Pervez you have been in Australia since November 2012.  You have been granted three student visas in Australia and this application for a student visa was lodged on 4 October 2016.  The application was refused on 24 October 2017 because the delegate found you did not meet a criterion in clause 500.217, which deals with what are known as Public Interest Criteria.(PIC)

4. To be eligible for the grant of a visa, applicants must satisfy a range of criteria set out in the Regulations.  One of those is PIC 4020, which says that to satisfy the criteria, and there is no evidence before the Minister, or in this case the Tribunal, that the applicant has given or caused to be given a bogus document or information that is false or misleading in a material particular in relation to a visa application.

5. In your case the delegate found that in support of your application you had provided financial evidence in the form of a document from the Habib Bank dated 13 October 2016, which is headed ‘Sanction of Loan for Study Purpose’, which states that your father had been granted a loan of 3.7 million rupees for your education expenses.

6. The primary decision, a copy of which you provided with your review application, states that on 14 November 2016 this document was referred to the offshore post in Islamabad for integrity checking.  Now, your bank was contacted on 17 November 2016 and provided with a copy of the loan letter.  A bank representative advised the document was fabricated and non-genuine.

7. He specified that the branch code provided on the letter did not correspond to the branch that the letter was purportedly sent from.  Furthermore, he attempted to locate the account with both the nominated branch code and the appropriate branch code and could not locate any account.

8. The referral was concluded as non-genuine by post and based on this information it was determined that a bogus document had been provided by the applicant, which purports to have been but was not issued in respect of your financial sponsor.  The delegate therefore found you failed to satisfy clause 4020(1) and therefore failed to satisfy clause 500.217.

9. On 6 January 2017 an email was forwarded to your migration agent providing the opportunity to comment on the department's findings and supply a statement indicating compelling or compassionate circumstances why the department should grant the visa under the provisions of clause 4020(4) despite the fact you had failed to satisfy the requirements of 4020(1).

10. In response you submitted a new series of financial documents claiming you were unsure how the bogus documents came to be submitted but that your father would be investigating with the bank.

11. The delegate was not satisfied with your response and refused your application and you appealed that decision to be reviewed by this Tribunal. 

12. As I said, the role of the Tribunal is to take a fresh look at your application and to consider whether you are eligible for the grant of a student visa.

13. As discussed, there are two steps in the process.  The Tribunal must first consider whether you have provided evidence that created a breach of public interest criteria 4020 and, if so, it must consider whether the requirement to meet 4020 should be waived.

14. The decision to refuse a visa application when an applicant fails to meet 4020 maybe waived if there are compelling circumstances that affect the interests of Australia or compassionate or compelling circumstances that affect the interests of an Australian citizen, Australian permanent resident or an eligible New Zealand citizen, which justify the granting of the visa.

15. In your case in support of your application there is no doubting, and you concede that you provided a letter from the HBL Bank addressed “To whom it concern” and another headed ‘Sanction of Loan for Study Purposes’, which document was found to be fraudulent.

16. You tell the Tribunal today that the reason is that your father arranged for the documents to be obtained by a third person and you did not know that it was a fraudulent document.

17. I am surprised that your father, an intelligent man, who you say is retired military after 35 years' service and a school teacher, so he clearly is literate, would not have been able to read and notice that the account number that it was listed with did not exist.

18. But the other thing that absolutely staggers me is that you initially provide evidence from the HBL Bank. When you were advised that that the documents were not genuine you then provide evidence of a loan from the Bank of Punjab. 

19. Now, my question is that if your father banks with the Bank of Punjab, which is what the bank says because it says he is a long running client with good accounts with us and whatever, why he would not have been very surprised in the first place when the agent comes back with a loan from the Habib Bank not the Bank of Puinjab.

20. However, you say it is your fault. You say you were unaware of how it could have happened and how it was provided.  However, you say you have now provided documents that show that you do have money and they are genuine and you ask can we use the new documents.

    
    
    

21. The issue for the Tribunal is not whether there are new documents that might satisfy the regulations but whether in support of your application you have provided documents that were false or misleading in a material particular. On the available evidence the Tribunal finds that you have provided documents that breach PIC 4020.

22. Having found you have breached condition 4020, the tribunal must consider whether there are any compelling or compassionate circumstances that might lead to a waiver of 4020. When I ask you whether such circumstances exist you say No, not really.  I have finished my studies and I would like to stay here and do 12 months work experience before I go back home.

23. I do not believe there is any evidence before the Tribunal of compelling and/or compassionate circumstances that would meet the definition for the requirement to satisfy PIC 4020 to be waived.

24. Therefore, on the available evidence the Tribunal finds that in support of your application you provided a bogus document, evidence that was false or misleading in a material particular creating a breach of PIC 4020.  There is no evidence before the Tribunal that the requirement to satisfy this requirement should be waived and in the circumstances The Tribunal finds you do not meet cl.500.217. It is therefore the decision of this Tribunal to affirm the decision under review, which means the primary decision to refuse you a visa stands.

    DECISION

25. The Tribunal affirms the decision under review.

    Tim Connellan
    Member