Sadan (Migration)

[2024] AATA 1074

Sadan (Migration) [2024] AATA 1074 (29 April 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Shaikh Muhammad Sadan

REPRESENTATIVE:  Mr Abu Siddque

CASE NUMBER:  2305287

HOME AFFAIRS REFERENCE(S):          BCC2022/666499

MEMBER:Peter Booth

DATE:29 April 2024

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.

Statement made on 29 April 2024 at 2:01pm

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – bogus document – education certificates – claims against education agent – compassionate or compelling circumstances – decision under review affirmed          

LEGISLATION

Migration Act 1958, ss 5(1), 57, 65
Migration Regulations 1994, Schedule 2 cl 500.217; Schedule 4, Public Interest Criterion 4020; r 1.03

CASES

Arora v MIBP [2016] FCAFC 35

Batra v MIAC [2013] FCA 274
Hasran v MIAC [2010] FCAFC 40
Kaur v MIBP [2017] FCAFC 184
Mudiyanselage v MIAC [2012] FMCA 887
Plaintiff M64/2015 v MIBP [2015] HCA 50
Trivedi v MIBP [2014] FCAFC 42

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 24 March 2023 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 17 March 2022. 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).

3. On 12 March 2024 the Tribunal wrote to the applicant pursuant to ss 359(2) and 359A of the Act, inviting the applicant to provide information about the review application in writing. The invitation was sent to the last address provided in connection with the review and advised that, if the information was not provided in writing by the prescribed period, being 22 March 2024  or within any extended time as requested and granted, the Tribunal may make a decision on the review without taking further steps to obtain the information and the applicant would lose any entitlement they might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

4. The review applicant did not provide the information within the prescribed period and no extension of time was requested. In these circumstances, s 359C applies and pursuant to s 360(3) the review applicant is not entitled to appear before the Tribunal. The effect of s 363A of the Act is that if a review applicant has no entitlement to a hearing, the Tribunal has no power to permit him or her to appear: Hasran v MIAC [2010] FCAFC 40. The Tribunal has decided to proceed to a decision without taking further steps to obtain the information.

5. The applicant was represented in relation to the review.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. 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).

8. 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?

9. 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.

10. 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.

11. 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.

    BACKGROUND

12. In the absence of a hearing the Tribunal turns to consider the available material.

13. The applicant lodged the Student Visa application in question on 17 March 2022. In support of which he provided a Certificate of Completion from Mercury College in respect of a Diploma of Community Services dated 8 March 2021 and a record of results from Mercury College in respect of the Diploma of Community Services also dated 8 March 2021. (Together, the impugned documents)

14. The Department undertook a search of the applicant’s study history and which did not disclose any record of him being enrolled in a Diploma of Community Services. On 20 July 20 Department wrote to Mercury College and asked it to confirm the authenticity of the impugned documents. By email email dated 29 July 2022 Mercury College confirmed that the impugned documents were nongenuine. Relevantly the email stated as follows:

    We hereby certify that the Qualification certificate and Record of Results for Shaikh Muhammad Sadan (13/12/1997,M) have not been issued by Mercury Colleges.  

    Our Testamurs and transcripts are equipped with many security features including but not limited to:

    ·             Security paper

    ·             Golden seal

    ·             Unique student number

    ·             CEO Digital signature

    ·             watermark

    The above named person has no records on our student database and on Prisms.
    The supplied documents are fraudulent .

15. The Department concluded that the impugned documents were bogus and non-genuine.

16. By letter dated 4 August 2022 the Department wrote to the applicant and invited in to comment upon is preliminary findings.

17. On 4 September 2022 the applicant provided several documents to the Department including a letter dated 4 September from the applicants representative. It is in the following terms:

    We acknowledge with thanks that we are in receipt of your s57 notice dated 4th August
    2022 with reference to the above-mentioned applicant. Matter pointed out in your letter is that following submitted documents are bogus and therefore non-genuine.

    1.Qualification Certificate from Mercury Colleges issued 08 March 2021 certifying that Shaikh Muhammad Sadan has fulfilled the requirements for CHC52015 – Diploma of Community Services and signed by Jacob Semhat (Chief Executive officer);

    2.Record of Results from Mercury Colleges issued 08 March 2021 to Shaikh Muhammad Sadan, Student Number 5107021 for course CHC52015 – Diploma of Community Services, Certificate Number: 21-510-7021-D signed by Jacob Semhat (Chief Executive officer). Results indicate Competent in all units. However, we submit that:

    1.     Shaikh Muhammad SADAN (my client) had given all true documents in his current student visa application to the best of his knowledge at the time of application.

    2.     He was totally unaware about the above-mentioned matter that his Diploma of Community services Certificate and record of results is not genuine until the time he received the s57 notice from you. Prior to s57 notice, he did not know at all these documents are not genuine.

    3.     The real sequence of events was as follows. Shaikh Muhammad SADAN was employed in the field and he was working for EXPERT CARE SERVICES PTY LTD. As he has experience in the field, He saw an advertisement of turning experience into an RPL certificate.

    4.     Applicant contacted RPL sales person and gave him all required documents for RPL. After assessing all documents, RPL sales person gave him certificate and record of results.

    5.     Applicant was new in Australia and was not aware of scams. He always thought that till he received s57 requests that his certificate and record of results are genuine. He also always thought that in Australia people are honest and their dealing is fair but now he is shocked after finding this out. Hence, he was never aware of the non-genuineness of above-mentioned documents.

    6.     At the time of his current student visa application, he answered all the questions truthfully to the best of his knowledge and belief, and thought that his Diploma of Community Service (obtained via RPL) and record of results is genuine, same as his all other attached documents.

    7.     It was only upon receiving s57 notice, that he was shocked and came to know his Diploma of Community Service (obtained via RPL) and record of results is genuine. He tried to contact the RPL sales person but got no response and is un reachable.

    8.     We also submit that Shaikh Muhammad SADAN is innocent and has not lied, or provided any false or inaccurate documents to the Department of Home affairs because he was not aware of the legitimacy of the documents. He had no intention to provide any false documents to the Department of Home affairs. And he had no reason to provide false document to Department of Home affairs as he is well aware of consequences. Whole world broke down on him after receiving this s57 request.

    9.     Hence, we request that this should be treated as an innocent mistake with no intentional element of fraud or deception involved from the side of the Applicant. It is just a result of human errors which occurred unknowingly due to the sequence of events explained above.

    10.  Furthermore, by providing false documents, Applicant is not trying to take any advantage or favorable outcome. The applicant is aware of the fact that this type of document or enrolments can be verified by Department of Home Affairs using Provider Registration and International Student Management System (PRISMS). The applicant(s) is also fully aware of the fact that providing false or bogus information can have adverse consequences. Hence, had they been aware or in knowledge of any falsity in any documents, they would have not submitted or would have informed department of home affairs immediately.

    We request you to kindly attach in your records the Form 1023 we have now uploaded online in order to correct the wrong information which has now come to the notice of the applicant(s). Also please refer to the attached Statutory declaration by my Shaikh Muhammad SADAN in this regard.
    We want to respectfully submit that my client is very sorry about these erroneous documents he provided in the visa application, and that he had no knowledge about the falsity of the document he had provided, and he had no intention to rely on that information for a positive result from the department.
    We request that any imposition of PIC 4020 or an adverse decision on the basis of this finding will be high handed and contrary to the decision of the honorable Federal Court’s decision of Trivedi v Minister for Immigration and Border Protection [2014] FCAFC 42 (4 April 2014), the Full Court held that “PIC 4020 is not directed to innocent, unintended or accidental matters. It should be accepted that an element of fraud or deception is necessary in order to attract the operation of PIC 4020.” Justice Buchanan in giving the verdict in the case has clearly stated that an element of fraud or deception is necessary to attract the operation of PIC 4020. It is necessary that the information or the document has the necessary quality of Purposeful Falsity for the operation of 4020.
    We respectfully request that this innocent mistake should not be taken more than an innocent mistake. However, we submit that the applicant accepts the responsibility and apologizes for this omission. We request this matter be treated as a human error and not a matter to attract imposition of PIC 4020.

18. The applicant also provided a short statutory declaration to the Department dated 9 August 2022. The handwritten document states: “The certificate of diploma (community services) from the RPL salesperson and eye hand work that time in community working place. I had all the proper documents for getting the RPL certificate, but the RPL provider gave me the fake certificate. Here I was no about this matter. I want to study in Australia and hope for best for my visa”.

19. The Tribunal makes several observations in relation to the representatives letter. The letter purports to give evidence on the behalf of the applicant and goes considerably further in detail than that which is contained in the statutory declaration. It is not the role of representatives to give evidence in proceedings. Ordinarily to the extent that the representative purports to give evidence such matters are given little weight. However, in this instance the applicant and the representative both make statements which are against the applicant’s interests and amount to admissions. The applicant and the representative do not take issue with the conclusion of the Department that the impugned documents are bogus and do not deny that they were provided by the applicant or on his behalf in support of the visa application. These matters are given some weight.

20. On 24 March 2023 the delicate refused the application for the student visa on the basis that the impugned documents were bogus documents. The delegate stated as follows:

    On 17 March 2022, the applicant lodged a Student (subclass 500) visa application.
    In support of their application, the applicant submitted the following documents:

    ·Qualification Certificate from Mercury Colleges issued 08 March 2021 certifying that Shaikh Muhammad Sadan has fulfilled the requirements for CHC52015 – Diploma of Community Services and signed by Jacob Semhat (Chief Executive officer);

    ·Record of Results from Mercury Colleges issued 08 March 2021 to Shaikh Muhammad Sadan, Student Number 5107021 for course CHC52015 – Diploma of Community Services, Certificate Number: 21-510-7021-D signed by Jacob Semhat (Chief Executive officer). Results indicate Competent in all units. Examination of the Provider Registration and International Student Management System (PRISMS) was consulted, however no record of the applicant having undertaken Diploma of Community Services could be found. Further investigations conducted by the Department also revealed that the Qualification Certificate and Record of Results are bogus and therefore non-genuine. Therefore, it is suspected that the applicant has provided a bogus document with their current Student visa application as per s.5 (1) of the Migration Act 1958: 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

    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 make knowingly.

    On 4 August 2022 the applicant was provided with 28 days to comment on the suspected
    bogus documents supplied to the Department and specify if they believe there are any
    compelling circumstances affecting the interests of Australia, or compassionate or compelling circumstances affecting the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen, to justify the waiver of Public Interest Criterion 4020.
    On 4 September 2022 the applicant and their migration agent provided several documents in
    response to the suspected bogus documents supplied to the department. I have considered
    all the information provided however, I find that serious concerns remain regarding
    documentation provided by the applicant.
    After considering all the information available to me, I place greater weight on the
    investigations conducted by the Department, and find the applicant has given a bogus
    document which has not been issued in respect of the applicant. A bogus document in
    relation to a person, means a document that the Minister reasonably suspects is a document
    that is counterfeit or has been altered by a person who does not have authority to do so.
    Based on the evidence and information before me, I find that the applicant has given a
    bogus document within the meaning of section 5(1) of the Migration Act. Therefore, I am not satisfied that the applicant meets Public Interest Criterion (PIC) 4020, subclause 020(1).

21. On 14 April 2023 applied to this Tribunal for a review of that decision.

22. By letter dated 12 March 2024 the applicant was invited to provide all documents upon which he intended to rely in support of his application for review.

23. The applicant did not respond.

    CONCLUSIONS

24. The Department investigations concluded that the impugned documents were bogus documents. The course provider confirmed that the impugned documents were non – genuine and that it had no record of the applicant. The delegate also concluded that that they were bogus documents. The applicant in his statutory declaration did not contend that the impugned documents were genuine. The applicants representative did not contend that the impugned documents were not bogus. Rather he stated that he was unaware that it had been supplied to the Department. The applicant asserted that he gave correct documents to the ‘RPL’ salesperson who promised him certificates of completion. The Tribunal observes that the applicant does not identify the “RPL” firm or the sales person’s identity, disclose any communications he has had with the “RPL” to seek an explanation or advance a theory or reason as to why the unidentified person would falsify academic qualifications in such circumstances. The applicants explanation is given little weight.

25. The applicant asserts that the provision of the impugned documents was an innocent mistake. The Tribunal does not accept that it was an innocent mistake, even if relevant to the provision of documents. Neither of the impugned documents states that they are in respect of recognition of prior learing, indeed the record of results purports to give results for subjects which were not studied. Any reasonable person would have been put on notice and made some inquiries. There is no evidence that the applicant did so.The Tribunal is not satisfied that the impugned documents were submitted by an innocent mistake on the part of the applicant.

1. The Tribunal is satisfied that the impugned documents purport to have been, but were not, issued in respect of the applicant or is counterfeit or has been altered by a person who does not have authority to do so; therefore they are bogus documents within the meaning of that term set out in s 5(1)(a) or (b).

2. Therefore, the applicant does not meet PIC 4020(1).

   Should the requirements of PIC 4020(1) or (2) be waived?

3. 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.

4. 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. First, the Tribunal is not aware of any matters which could amount to compelling circumstances that affect the interests of Australia, or compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen, that justify the granting of the visa. Secondly, the applicant did not provide any evidence or submissions to the Department or the Tribunal that the requirements of PIC4020 should be waived. The applicant was given an opportunity to provide submissions or material in support of his application for review in this Tribunal and chose not to do so.

5. Therefore, the requirements of PIC 4020(1) should not be waived.

6. On the basis of the above, the applicant does not meet cl 500.217(1).

   DECISION

7. The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.

   Peter Booth

   
   

   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.

   …