Shaik (Migration) - [2024] ARTA 222

Shaik (Migration) [2024] ARTA 222 (28 November 2024)
DECISION AND
REASONS FOR DECISION
Applicant:Ms Amrin Noor Shaik
Respondent:  Minister for Immigration and Multicultural Affairs
Tribunal Number:  2306916

Tribunal:Senior Member G. Cullen
Place:Sydney
Date: 28 November 2024
Decision:The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.

Statement made on 28 November 2024 at 10:32am
CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – bogus document provided with visa application – completion certificate for diploma course found to be non-genuine – discretion to waive criterion – non-compliance conceded – claim that application prepared by agent – no agent’s name appears and claim not made in notification of incorrect information to department – successful study history not compassionate or compelling circumstances – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5(1), 65, 359A, 375A
Migration Regulations 1994 (Cth), r 1.03, Schedule 2, cl 500.217(1), Schedule 4, criterion 4020(1), (5)
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
STATEMENT OF REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 28 April 2023 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant applied for the visa on 27 February 2020. At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The applicant applied for the visa to undertake study in Australia and does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa.
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 she did not meet Public Interest Criterion 4020 (PIC 4020) as she had given or caused to be given a bogus document. Specifically, when applying for the Student visa on 27 February 2020 attached to the application was a Diploma of Business completion certificate issued on 11 November 2019 by HB Training Trading as Grace Training Institute. The Department noted that investigations undertaken by it revealed the document to be non-genuine.
The Department file indicates that on 27 January 2021 the applicant appointed an authorised migration agent, Sheikh Mohhamad Akheel, and all correspondence to the applicant from the Department was then sent to this agent’s email including the Department’s decision .
On 29 September 2021 the Department sent to the applicant an invitation to comment on the above-mentioned adverse information raising with her that there is evidence suggesting she has provided, or caused to be provided, a bogus document which would result in a failure to satisfy PIC 4020(1). The delegate also referred to PIC 4020(4) and requested information as to…

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 Shaik (Migration)

Details

AGLC: Shaik (Migration) [2024] ARTA 222
Case: [2024] ARTA 222
Decision Date: 28 November 2024

CaseChat Overview and Summary

In the matter of Shaik, the applicant appealed against the refusal to grant a Student (Temporary) (Class TU) visa. The decision under review was made by a delegate of the Minister for Immigration, Citizenship and Migrant Services. The primary issue was whether the applicant met the requirements of Public Interest Criterion 4020 (PIC 4020) for the grant of the visa. This criterion includes the prohibition on providing a bogus document or false or misleading information in relation to the visa application. The applicant conceded that a document provided with the visa application, a completion certificate for a diploma course, was found to be non-genuine. The Tribunal needed to determine whether the non-compliance with PIC 4020 could be waived due to compelling or compassionate circumstances.

The Tribunal considered whether the non-compliance with PIC 4020 could be excused on the basis of compelling or compassionate circumstances. The applicant claimed that the application was prepared by a migration agent and that her intention was to study in Australia for her future. However, no name of a migration agent appeared on the application, and the claim was not made in the notification of incorrect information to the department. The Tribunal found that the applicant's study history was not sufficiently compelling or compassionate to warrant a waiver of the non-compliance with PIC 4020. The Tribunal concluded that the applicant did not satisfy PIC 4020 and affirmed the decision not to grant the visa.

The Tribunal's reasoning was that the non-compliance with PIC 4020 was significant, as it involved the provision of a bogus document. The Tribunal did not find the applicant's circumstances compelling or compassionate enough to warrant a waiver of the non-compliance. The Tribunal also noted that the identity requirements in PIC 4020(2A) and (2B) could not be waived, even if there were compelling or compassionate circumstances. The Tribunal held that the decision not to grant the visa was correct and affirmed the decision under review. The Tribunal did not make any additional orders.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The applicant responded at hearing that she has not provided a bogus document and her migration agent provided the document. She referred to wanting to study in Australia for her future. CONSIDERATION OF CLAIMS AND EVIDENCE 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). The requirements in PIC 4020(1) and (2) can be waived if there are certain compelling or compassionate circumstances 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? 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. 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.

Decision

Reasons for decision

Based on the above, the applicant does not satisfy PIC 4020 for the purposes of cl 500.217(1).DECISION The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.Dates of hearing(s): 25 November 2024 Migration Act 1958s 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.…

Ratio Decidendi

Legal Principle Established

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