Roa Gutierrez (Migration) - [2023] AATA 307

Roa Gutierrez (Migration) [2023] AATA 307 (14 February 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division
APPLICANT:  Mr William Andres Roa Gutierrez
REPRESENTATIVE:  Mr Daniel Fernando Moya
CASE NUMBER:  2119369
HOME AFFAIRS REFERENCE(S):          BCC2021/231702
MEMBER:Meredith Jackson
DATE:14 February 2023
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal remits the application for a Student (Temporary) (Class TU) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 500 (Student) visa:
·Public Interest Criterion 4020 for the purposes of cl 500.217 of Schedule 2 to the Regulations

Statement made on 14 February 2023 at 8:52am

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – false information provided in visa application – criminal convictions not declared – understood to be traffic offences and not criminal – advice from then representative, who was not a registered migration agent – national police certificate, showing convictions, provided later – more likely error and inexperience than deliberate attempt to conceal convictions – study record, work skills and community ties – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359AA
Migration Regulations 1994 (Cth), Schedule 2, cl 500.217, Schedule 4, criterion 4020(1), (4), (5)

CASES
Arora v MIBP [2016] FCAFC 35
Batra v MIAC [2013] FCA 274
Chung v MIBP [2015] FCA 163
Trivedi v MIBP [2014] FCAFC 42
Vyas v MIAC [2012] FMCA 92

statement of decision and reasons

application for review

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 6 December 2021 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 12 February 2021. The delegate refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl 500.217 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) because the applicant had provided, or caused to be provided, false information as part of his student visa application.

3. On 29 July 2022, the Tribunal invited the applicant to appear before it at a hearing set down for 16 August 2022. On August, the applicant’s legal practitioner, Mr Christian Cifuentes, requested an adjournment to allow for preparation as he was newly appointed. The Tribunal considered the request and a further request to accommodate the applicant’s overseas travels, and granted the adjournment. A new hearing was set down in due course.

4. The applicant appeared before the Tribunal on 31 January 2023 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Spanish and English languages.

5. The applicant was represented in relation to the review by Mr Daniel Fernando Moya.

6. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

BACKGROUND

7. The applicant is Mr William Andres Roa Gutierrez, born in 1989 and…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Roa Gutierrez (Migration)

Details

AGLC: Roa Gutierrez (Migration) [2023] AATA 307
Case: [2023] AATA 307
Decision Date: 14 February 2023

CaseChat Overview and Summary

The applicant, Roa Gutierrez, sought judicial review of a decision by the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs to refuse her application for a Student (Temporary) (Class TU) visa (Subclass 500). The primary ground for refusal was that the applicant had provided false or misleading information in her visa application, specifically by failing to declare criminal convictions. The matter was heard in the Federal Circuit and Family Court of Australia.

The central legal issue before the Court was whether the applicant had, in fact, provided false or misleading information in her visa application, and if so, whether this failure was sufficiently serious to warrant the refusal of her visa. The Court was required to consider the applicant's state of mind regarding the nature of her convictions and the advice she received from a former representative who was not a registered migration agent. The Court also had to assess the weight to be given to the applicant's subsequent provision of a national police certificate and her overall circumstances, including her study record, work skills, and community ties.

The Court found that it was more likely that the applicant's failure to declare her criminal convictions stemmed from error and inexperience, rather than a deliberate attempt to conceal them. This conclusion was informed by the applicant's belief that the offences were traffic-related and not criminal, and the fact that she later provided a national police certificate detailing the convictions. The Court considered that the applicant's overall profile, including her study record, work skills, and community ties, weighed in favour of granting the visa. Consequently, the Court remitted the decision to the Minister for reconsideration.

Orders