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 a citizen of Colombia. Mr Roa Gutierrez arrived onshore on 27 November 2016 on a Student visa to study English. He applied for a second student visa in 2017 and in February 2021, applied for the visa under review. The department f that Mr Roa Gutierrez did not declare in his application two criminal convictions recorded against him while in Australia. He was subsequently found to have given or caused to be given false and misleading information in relation to the character requirements for the visa. There were no compelling circumstances identified, and the visa was refused.

ISSUES AND LAW

8. The issue in this review is whether the visa applicant meets Public Interest Criterion 4020 (PIC 4020) as required by cl 500.217 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).

9.    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?

1. 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.

2. 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.

3. 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.

CONSIDERATION OF CLAIMS AND EVIDENCE

1. there is evidence before the Tribunal that the applicant has given, or caused to be given, to the Minister, an officer, the Tribunal, a relevant assessing authority or a Medical Officer of the Commonwealth, ‘information that is false or misleading in a material particular’ as defined in PIC 4020(5), i.e. information that was false or misleading at the time it is given, and 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, in relation to the visa application or a visa held in the 12 months before the visa application was made.

2. The delegate’s decision, provided to the Tribunal for the purposes of the review, indicates that on 12 February 2021, when lodging a Student (Class TU Subclass 500) visa application, the applicant declared a “no” response to each of the following character-related questions:

   Has any applicant ever been charged with any offence that is currently awaiting legal action?

   Has any applicant ever been convicted of an offence in any country (including any conviction which is now removed from official records?

3. On 9 August 2021 the Department found the applicant had provided false information with his application. On 1 October 2021, he was asked to provide Form 80 personal information for character assessment and a police clearance. The applicant provided a a National Police Certificate (NPC) which indicated he had been convicted with a criminal offence on 14 January 2019 and on16 June 2020. In the first instance he was found to have been driving with a high range of alcohol; and in the second, driving during disqualification. In a subsequent response of 10 October 2021, the applicant claimed that he had understood the matters to be traffic offences as opposed to criminal offences. In the Form 80, he repeated the claim that he had not been charged with any criminal offences or convicted, and points out that he enclosed the two court results. This, he claims, verifies that he did not understand the convictions to be criminal in nature.

4. On 1 October 2021 the department invited the applicant to provide details of any relevant compelling or compassionate circumstances that would justify the grant of the visa. The applicant’s response was to repeat the claim that he did not understand the convictions were criminal. He raised no compelling or compassionate circumstances. The visa was refused.

5. Prior to the hearing, the applicant provided the Tribunal with a bundle of documents addressing a wide range of matters pursuant to the applicant’s case. This included a statement from Mr Gutierrez in which he acknowledges that he is ultimately responsible for information provided in relation to a student visa application. He also claims that failure to declare his criminal convictions was an unwitting and innocent omission on his part. He claimed to have acted without purposeful falsity.

6. In the hearing, he stated that the “people representing me”, which he identifies as education counselling service Teduca Group, filled out the form incorrectly, and he did not see the full application, nor did he understand the process.

   They send me an email which I looked through however there were technical words beyond my understanding and I was not able to understand what everything was about, so, he said, he signed everything without understanding it.

7. In a summary submission of 5 January 2023 in support of the review, the applicant states that a Form 80 provided to him by his then representative, the aforementioned education counselling service Teduca Group, had been partially filled out and had answered the character questions in Park K of the form in the negative. The applicant provided a copy of the email and attachment to the Tribunal. He also points out that the NPC provided to the department with the Form 8- listed the convictions and yet the negative answers were unchanged when the documents were submitted.

8. Mr Gutierrez relies on the above, and on evidence of two monetary transfers to him of 8 October 2021 and 16 December 2022 from Teduca Group, which he provides and which he characterises as clear admissions of error on the part of the education agent.

   When they realised they made a mistake they said they wanted to help me contract somebody to assist with the appeal, and this was given, they did not take responsibility for 100 per cent but this was in recognition their poor work.

s359AA: Certificate issued under s375A of the Act

1. Adopting the procedure of s359AA of the Act, in the hearing, the Tribunal put to the applicant that Departmental file number BCC2021231702 contains a Certificate and Notification regarding disclosure of certain information to Administrative Appeals Tribunal under s375A of the Migration Act 1958. The certificate covers documents within file number ADD2021/6545350, CLD2021/13525307 and CLD2021/13289450. The Tribunal provided the applicant with a copy of the certificate and invited him to comment on its validity. The applicant did not challenge the validity of the document.

2. The Tribunal has considered the certificate, which contains a public interest reason why the documents should not be disclosed. The Tribunal is satisfied that the certificate is valid. The Tribunal told the applicant that it would not be disclosing the documents covered by the certificate but that having examined them, is satisfied that they are procedural in nature and contain the name of a departmental officer; and the Tribunal does not intend to place any weight upon them in making this decision. This was conveyed to the applicant in the hearing.

Was the information given purposefully false?

1. The Tribunal has turned its mind to whether there was purposeful falsity in the applicant’s visa application and supporting documents. That is, whether there is evidence before the Tribunal that the applicant has given, or caused to be given, to the Minister, an officer, the Tribunal, a relevant assessing authority or a Medical Officer of the Commonwealth, information that is false or misleading in a material particular’ as defined in PIC 4020(5), i.e., information that is false or misleading at the time it is given, and 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, in relation to the visa application or a visa held in the 12 months before the visa application was made.

2. For the requirements in clauses 4020(1) and (2) to be engaged, it is not necessary to show knowing complicity by the visa applicant.[1] The words ‘given or caused to be given’ do not import a mental element such that an applicant needs to know that the documents or information they are providing are defective in the relevant sense.[2]  All that is necessary is that the information provided was purposefully false.[3] The Court in Trivedi held that there would be an intolerable burden on the administration of the visa system to require that those assessing visa applications not only discover that information or documents are false in a material particular, but also that the visa applicant who provided them knew them to be so.  In many cases that would be impossible and would defeat the apparent intent of the provision. 

   [1] Trivedi v MIBP (2014) 220 FCR 169 at [43]–[44]. Cited with approval in Singh v MIBP [2018] FCAFC 52 at [144].

   [2] Vyas v MIAC [2012] FMCA 92 at [68]. This view was endorsed in Sran v MIBP [2013] FCCA 37.

   [3] Trivedi v MIBP (2014) 220 FCR 169. See also Chung v MIBP [2015] FCA 163 at [25]. In that case the Court found that the inclusion of a skills assessment reference of which the assessing authority had no record, and evidence that the assessing authority had no skills assessment reference referable to the appellants was sufficient for the Tribunal to find there was information associated with the visa application which had the necessary quality of purposeful falsity. It was not necessary for the Tribunal to go further and determine whether the visa applicants had knowingly been involved in the provision of that false information or document before finding that there has been a failure to comply with PIC 4020.

3. The Tribunal notes, and the applicant acknowledges, that there were two instances of non-disclosure in the present matter,  the first in the visa application where the applicant did not declare any criminal convictions. The second was in the provision of the Form 80 and the NPC, documents which it is noted, were provided together. In the first instance, the applicant is relying on having failed to understand the requirement to declare convictions, having believed, however unwisely, on his education agent’s advice on migration, when that agent was not a registered migration agent. In the second instance, he claims he did not fail to disclose the criminal convictions, because while the Form 80 did not acknowledge them, they were declared with the provision of the NPC and submitted alongside the Form 80.

4. The Tribunal considers this a finely balanced matter, one where the applicant made a number of significant errors how he went about applying for a third student visa. The evidence, in the particular circumstances of this case, tends to support the applicant’s account of events, in favour of error and inexperience on the part of both the applicant and his then representative, over a deliberate attempt to conceal two convictions.

5. Failure to declare criminal convictions is a concerning omission, and the Tribunal notes and the applicant acknowledges, that an applicant is ultimately responsible for the provision of true and correct information to the department. However in this matter there are circumstances which counter the finding that the applicant or his representative wilfully intended to conceal a criminal history. it is plausible, as the applicant claims it is, that he did not fully understand what he was being asked to declare; and that his education agent lacked understanding on what she was stating in the application. This is supported by the funds returned to the applicant from the consultancy, in which a degree of  fault on the part of the agent is inferred. The concurrent submission of the Form 80 and the NPC speaks volumes in favour of a clumsy error. A better advised person, acting with the advice of a migration agent or legal practitioner, is unlikely to have made the same errors.

6. The Tribunal is mindful of the authority in Chung v MIBP [2015] FCA 163 at [25], where the Court found that the inclusion of a skills assessment reference of which the assessing authority had no record, and evidence that the assessing authority had no skills assessment reference referable to the appellants was sufficient for the Tribunal to find there was information associated with the visa application which had the necessary quality of purposeful falsity. It was not necessary for the Tribunal to go further and determine whether the visa applicants had knowingly been involved in the provision of that false information or document before finding that there has been a failure to comply with PIC 4020.

7. The Tribunal having carefully weighed the findings of Chung, and assessed the applicant as a credible and truthful witness, taken into account the applicant’s generally good record as a student, emerging skilled worker and member of the community in Australia on balance finds the applicant and his education representative did not act with purposeful falsity in failing to disclose the relevant two offences. Rather, the Tribunal finds this was a case of error in execution. As such, the matter lacks the necessary quality of purposeful falsity and accordingly, the criterion is not engaged. On the basis of the above, the Tribunal finds that the applicant meets PIC 4020(1).

Has a visa previously been refused on the basis of a failure to satisfy PIC 4020(1)?

1. PIC 4020(2) requires the Tribunal to be satisfied that the applicant and each member of the family unit have not been refused a visa because of a failure to satisfy PIC 4020(1) in the period commencing 3 years before the application was made and ending when the visa is granted or refused. This requirement does not apply to a person who was under 18 at the time the application for the refused visa was made: PIC 4020(2AA). There is not evidence before the Tribunal that the applicant or any member of the family unit (as defined in reg 1.12) have been refused a visa in the relevant period because of a failure to satisfy PIC 4020(1).

2. The applicant was under 18 at the time the application for the refused visa was made, such that PIC 4020(2) does not apply

Has the applicant satisfied the identity requirements?

1. PIC 4020(2A) requires an applicant satisfy the Tribunal as to his or her identity. There is no evidence that the applicant does not satisfy the identity requirements.  Therefore, the applicant meets PIC 4020(2A).

Has a visa previously been refused on the basis of a failure to satisfy PIC 4020(2A)?

1. There is no evidence before the Tribunal that the applicant nor any family unit member have been refused a visa because of a failure to satisfy the identity requirements in PIC 4020(2A) during the period starting 10 years before the application was made and ending when the visa is granted or refused. This requirement does not apply to a person who was under 18 at the time the application for the refused visa was made: PIC 4020(2BA).

2. On the basis of the above, the applicant satisfies PIC 4020 for the purposes of cl 500.217.

decision

1. 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

Meredith Jackson
Member

ATTACHMENT

Migration Regulations 1994

Schedule 4

1. (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.

…