Shabbir (Migration)

[2022] AATA 3350

Shabbir (Migration) [2022] AATA 3350 (18 August 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Mohammed Shabbir

CASE NUMBER:  2116438

HOME AFFAIRS REFERENCE(S):          BCC2020/1175764

MEMBER:Meredith Jackson

DATE:18 August 2022

PLACE OF DECISION:  Brisbane

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

Statement made on 18 August 2022 at 4:21pm

CATCHWORDS
MIGRATION –Student (Temporary) (Class TU) visa – subclass 500 (Student) visa– applicant has given a bogus document – bank letter was materially altered intentionally by someone and is a falsified document – no compassionate and compelling circumstances – requirements of PIC 4020 should not be waived– decision under review affirmed

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl 500.217

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. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 25 October 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 15 March 2020. The delegate refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl 500.217(1) of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) because the delegate found that the applicant has given a bogus document and did not satisfy Public Interest Criterion (PIC) 4020; and the delegate had not identified any compelling circumstances affecting the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen that would justify the grant of the visa. The delegate was therefore not satisfied that the applicant met PIC 4020(1) of PIC 4020 and accordingly, cl 500.217 of the Regulations was not met.

3.    The applicant appeared before the Tribunal on 9 August 2022 to give evidence and present arguments.

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

BACKGROUND

5.    The review applicant is Mohammed Shabbir, who was born in India in 1990. Mr Shabbir arrived in Australia as the holder of a student visa in February 2018. He lodged an application for a second student visa in March 2020. As evidence that he had the funds to provide for his study costs and expenses, Mr Shabbir submitted a bank account letter for his mother from State Bank of India in Hyderabad, indicating an available balance on 24 March 2020 of INR 21,00,000 (currently around AUD 37,100). Departmental checks of the bank account letter confirmed that the bank account had a balance on that date of INR 1823/- (currently around AUD 32). The applicant claims the document was not bogus as the funds available were in the larger amount. He states the bank has apologised for making an error which arose due to staff issues resulting from COVID-19.

ISSUES AND LAW

6. The issue in this review is whether the visa applicant meets Public Interest Criterion 4020 (PIC 4020) as required by cl 500.217(1) 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).

7.    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?

8.    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.

9.    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.

1. 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. The departmental file in this matter contains documents that show that, as part of his application for the visa, the applicant provided a letter issued by State Bank of India (SBI) for an account held by his mother at Hyderabad, Telangana branch. The letter stated that the applicant’s mother, Mrs Saheeda Begum, held a savings account with the bank with an available balance on 24 March 2020 of INR 21,00,000 which it calculated to be equivalent to AUD 46,000 at that time. The letter was accompanied by an affidavit of support from Saheeda Begum, also dated 24 March 2020, in which Mrs Begum declared that she had a savings deposit of (INR) 21,00,000 at SBI and that she had adequate funds to provide for the applicant’s educational and other expenses in Australia.

2. The applicant provided a copy of the delegate’s decision to the Tribunal. It records that on 30 June 2021, departmental verification checks of the bank letter were conducted and it was confirmed to the Department that the amount showing for 24 March 2020 was “only Rs. 1823/-“,  rather than the greater sum of INR 21,00,000 that appeared in the letter submitted to the department as part of the visa application. The delegate stated that the bank letter appeared to have been altered and that the applicant had provided a bogus document in support of his student visa application. The decision records that on 15 July 2021 the Department wrote to the applicant inviting him to comment on the relevant adverse information.

3. On 9 August 2021, the applicant briefly responded to the Department, stating, in summary, that he needed further time to respond in full, due to an accident he had suffered. He was provided with a further 28 days to respond. On 19 August 2021, the applicant provided documents including a further affidavit of support from Mrs Begum, wherein she claimed that she had changed banks, withdrawn her funds from SBI and placed them with a different bank. She had a fixed deposit of INR 21,00,000 ((AUD 43,919) in an account at Axis Bank at the Banjar Hills Branch in Hyderabad; and she had adequate financial capacity to provide for her son’s education and living expenses.

4. Also, on 9 August 2021, the applicant provided a personal response to the adverse information concerning the SBI bank document. He stated, in summary, that his mother was a very active person but depended on him for technical activities. When she had sought the letter from the bank, she encountered an employee who was new to the bank and who had made a mistake with the date of the letter and balance. The applicant had assured the Department that his mother had “actual funds” of INR 21,00,000. He stated that investigations by his own family resulted in an apology letter. His mother was worried and angry, withdrew all her funds from SBI and deposited the same amount with Axis Bank (account number provided). The delegate’s decision records that no supporting evidence was provided to support the claim that the funds were withdrawn and deposited in the other bank. The applicant’s account was considered not to align with the outcome of the Department’s investigations and on that basis, the delegate found the applicant had given a bogus document as defined in s 97 of the Act and the visa was refused. The applicant sought review of the decision in the Tribunal.

5. On 8 August 2022, the applicant provided a bundle of submissions to the Tribunal, including a psychologist’s report dated 6 August 2022 wherein the practitioner refers to the applicant’s mother having transferred the funds to Axis Bank without his knowledge. The Tribunal notes the applicant’s submission was that the funds were in the account and were moved after his mother learned of the alleged SBI error.

6. At the hearing, the applicant stated he had not provided a bogus document in support of his visa application. He stated that at the time he was submitting his application, his mother had had the SBI account for a long time, but when she went to the branch she was attended to by inexperienced staff. The bank’s CEO, the applicant said, had stated there was a shortage of staff. The applicant referred to a media article he provided to the Tribunal in support of the staffing claim. He claimed that he had no written evidence of this error or apology, because the bank was not admitting its error and that his mother, at one stage accompanied by his brother, had spoken to the bank several times in vain. He stated the bank did verbally apologise at the time to his mother but now they are not admitting it; however, he said, hedid not supply a bogus document.

7. The Tribunal asked the applicant whether he or any other person without authority to do so, had altered the SBI letter and provided it in that altered form to the Department. The applicant denied he or anybody else had altered the letter.

8. The applicant stated that his mother became angry with the bank and in August 2021, she closed the SBI account and opened the account at Axis Bank:

   “They apologised but they are not giving us that (written evidence) because it was an error and they are not admitting that. The staff changed and the manager changed and that is a problem now. No-one altered the document,” he stated.

9. The Tribunal asked the applicant whether he stood by his claim that the sum of INR 21,00,000 had been in the SBI account when the SBI letter was generated. The applicant confirmed the funds were in the account at the time the letter was issued.

10. The Tribunal asked the applicant whether he could provide evidence to support his claim that his mother had what he called “actual funds” of INR 21,00,000, rather than the sum of INR 1823/- in her account, or whether he could provide evidence that the funds had been transferred to Axis bank. The applicant stated he had already provided Axis bank evidence to the Department at the time of his response to the natural justice letter. The Tribunal explained a number of times to the applicant that the issue in this matter is whether the applicant has given, or caused to be given, a bogus document when he provided the SBI bank letter to the Department. Therefore, the Tribunal indicated, the Axis Bank information may not necessarily support his argument, but any evidence of relevant bank accounts at SBI or Axis Bank would be taken into account. The Tribunal said an extract of the Axis account did not appear on the Department and Tribunal files; however, the Department file did contain a statement from the applicant that made reference to the account number at Axis bank. The applicant undertook to provide an Axis bank statement to the Tribunal after the hearing. This information was provided after the hearing and is considered more fully later in these reasons at paragraph [23].

11. The Tribunal stated in the hearing there appeared to be a discrepancy afoot in the applicant’s evidence, in that a statement from his psychologist stated that he had said that there were insufficient funds in his mother’s account at the time (of his visa application); and that his mother had transferred the funds “without his knowledge”. The applicant responded that he had no idea what he said, because he was depressed at the time, as he had a bad traffic accident. The applicant supplied a copy of a discharge summary from Prince of Wales Outpatient Department for injuries incurred during a fall from a motorbike. He stated that things are coming “one after one”.

12. On the morning of the hearing, the applicant supplied the Tribunal with a copy of a deposit receipt at the Indian Overseas Bank, for INR 21,00,000 invested until maturity on 8 February 2023. On 13 August 2021, the applicant provided to the Tribunal an Affidavit of Support from Saheeda Begum stating that she has a fixed deposit of INR 21,00,000 or AUD 38,222.16 in an Indian Overseas Bank account in Telangana, earmarked for the applicant’s higher education support. A deposit receipt dated 8 August 2022 for INR 21,00,000 from Indian Overseas Bank was provided and showed a 6-month term. The applicant also provided a statement from Axis Bank dated 12 August 2021 showing a term deposit of INR 21,00,000 with a maturity date of 13 November 2021.

13. The Tribunal has carefully considered the documents provided on the morning of the hearing and after the hearing and is satisfied that a sum of INR 21,00,000 was invested by the applicant’s mother on 8 August 2021 at Axis Bank and reinvested on 8 August 2022 at Indian Overseas Bank.

14. The applicant also provided a Statutory Declaration dated 11 August 2022 in which he broadly repeats his sworn evidence in the hearing that his mother had approached SBI seeking an apology for their error and was informed that the manager of the time had been transferred to another state and no apology letter would be issued “for his mistakes”. The applicant offered to travel back to India to “take all necessary avenues” if he were granted a Bridging visa B to do so.

Was the bank letter a bogus document?

1. In forming a view as to whether a bogus document was provided with the visa application, the Tribunal has considered the matters raised by the delegate in the primary decision concerning its discovery that the letter from the bank had been altered without the authority of the bank; and the submissions of the applicant on review, including those before the hearing, in the hearing and after the hearing. The Tribunal considers that there is evidence before the Tribunal that the SBI bank letter was a bogus document.

2. The progression of funds from State Bank of India to Axis Bank to Indian Overseas Bank is recorded earlier in these reasons. While the Tribunal accepts that the funds were in the Axis and Indian Overseas banks in 2021 and 2022, there is no corroborating evidence before the Tribunal for the existence of funds in the amount of INR 21,00,000 in State Bank of India at the time claimed.  Axis and Indian Overseas bank documents provided after the hearing do not assist the applicant’s argument as to whether the funds existed in the amount of INR 21,00,000 on 24 March 2020 or in the lesser amount referred to above of INR 1823/-. It is reasonable to expect that if the funds did exist, it should be a relatively easy demonstration for the applicant. The applicant’s swift action after the hearing managed to produce two other banks’ documents in the space of days. Yet the applicant has at no stage secured a statement from SBI to correct a record he says is wrong, yet he claims his family tried repeatedly to do so. By contrast, SBI quickly informed the Department’s investigators that the document appeared to be incorrect as the balance in the account on 24 March 2020 was 1823/-. In the absence of this crucial piece of evidence, and in light of the information given to the Department, the Tribunal finds that the document submitted was materially altered intentionally by someone and is a falsified document.

Does the applicant accept that the letter was altered and is a bogus document?

1. The applicant does not accept that he 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 a ‘bogus document’, as defined in s 5(1).  

2. That is, he denies he has given or caused to be given a document that purports to have been, but was not, issued in respect of the person, or is counterfeit or has been altered by a person who does not have authority to do so, or was obtained because of a false or misleading statement, whether or not made knowingly, in relation to the visa application or a visa held in the 12 months before the visa application was made.

Conclusion

1. For the reasons above, the Tribunal is satisfied that the bank letter from State Bank of India was deliberately falsified, is purposefully untrue, and is a bogus document as defined in s 5(1).

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

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

1. 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.

2. 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.

3. For the following reasons, the Tribunal is satisfied that the requirements should be waived.

4. At the hearing, the Tribunal asked the applicant whether there are any 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.

5. The applicant considered the question and made no claim to compelling and compassionate circumstances that may enliven the waiver. The Tribunal has no evidence before it that the waiver is justified.

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

2. On the basis of the above, the applicant does not satisfy PIC 4020 for the purposes of cl 500.217(1).

3. There is no evidence before the Tribunal that the applicant meets the criteria for any other subclass within the class of visa sought.

decision

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

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.

…