Shareef (Migration)

Case [2023] AATA 1954

Shareef (Migration) [2023] AATA 1954 (26 May 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Mohammed Riyaz Shareef

REPRESENTATIVE:  Mr Mohammed Ismail Saud (MARN: 1909826)

CASE NUMBER:  2206107

HOME AFFAIRS REFERENCE(S):          BCC2021/480108

MEMBER:Peter Booth

DATE:26 May 2023

PLACE OF DECISION:  Melbourne

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

Statement made on 26 May 2023 at 9:05am

CATCHWORDS
MIGRATION –Student (Temporary) (Class TU) visa – subclass 500 (Student) visa – false or misleading information– provided a false and misleading response regarding the whereabouts of his family members – failed to meet the criteria in PIC 4020(1) – requirements of PIC 4020 can not be waived – no compelling circumstances – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 499
Migration Regulations 1994, r 1.03, Schedule 2, cl 500.217

CASES
Arora v MIBP [2016] FCAFC 35
Batra v MIAC [2013] FCA 274
Kaur v MIBP [2017] FCAFC 184
Maharjan v Minister for Immigration and Border Protection [2017] FCAFC 213
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 12 April 2022 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 31 March 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).

  3. The applicant appeared before the Tribunal on 19 May 2023 to give evidence and present arguments.

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

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

  6. 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…

Continue reading Shareef (Migration)

Sign in free to access the full text

Details
AGLC
Shareef (Migration) [2023] AATA 1954
Case
[2023] AATA 1954
Decision Date

CaseChat Overview and Summary

This matter concerned an appeal by a visa applicant against a decision to affirm the refusal of a Student (Temporary) (Class TU) visa, subclass 500. The core of the dispute revolved around whether the applicant met Public Interest Criterion (PIC) 4020, a mandatory requirement for the visa grant. The decision was made by the Tribunal.

The Tribunal was required to determine whether the applicant had provided false or misleading information in relation to their visa application, thereby failing to meet the requirements of PIC 4020(1). Specifically, the Tribunal had to consider the definition of "information that is false or misleading in a material particular" and "bogus document" as relevant to the applicant's circumstances. The Tribunal also considered whether any waiver provisions under PIC 4020(4) were applicable, noting that such waivers do not extend to identity requirements.

The Tribunal found that the applicant had admitted to providing a false and misleading response regarding the whereabouts of his family members. While the applicant attempted to attribute this error to his migration agent, the Tribunal emphasised that the responsibility for the accuracy of the application rests with the applicant. The Tribunal noted the lack of corroborating evidence from the applicant's brother, which cast doubt on the applicant's assertions. Applying the principles from cases such as *Trivedi v MIBP*, the Tribunal concluded that an element of knowledge or intention on someone's part was necessary for PIC 4020 to be engaged, and that the applicant's admission was sufficient to satisfy the first limb of PIC 4020(1). The Tribunal also considered that the information provided was objectively false or misleading, and that there was no requirement for the information to have actually misled anyone.

The Tribunal affirmed the decision under review, concluding that the applicant failed to meet the requirements of PIC 4020. The applicant's request for consideration based on his agent's fault and his assertion of telling the truth were not accepted as overcoming the failure to meet the criterion. No compelling or compassionate circumstances were identified that would justify a waiver.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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

The Tribunal asked whether the applicant claimed that there were any compassionate or compelling circumstances which affected the interests of an Australian citizen, an Australian permanent resident or eligible New Zealand citizen. The applicant said “I want to say I don’t have a problem with his details, when I apply first time I had no information about Australian policy, or that a problem, I want you to consider I am telling the truth, not my fault I declare anything false in 2019 was my agent’s fault”.CONCLUSIONS The applicant has admitted that he provided a false and misleading response regarding the whereabouts of his family members. He has sought to blame the falsity of the document on the migration agent who assisted him in completing the application. It is the responsibility of the applicant to make sure that all the information in the student visa application is true and correct. The Tribunal notes that the applicant’s brother has not given evidence to verify the applicant’s assertions. This raises significant doubts as to the veracity of the applicant’s assertions. However, the applicant has admitted that he supplied the document and that it contained false and misleading evidence regarding the whereabouts of his family members. That is sufficient for the Tribunal to be satisfied that the first limb of PIC 4020 is made out unless there are any other relevant issues. The question of what constitutes false or misleading information involves several considerations. Most importantly, PIC 4020 is directed at information which is false, in the sense of purposely untrue, rather than information which lacks the necessary element of fraud or deception (e.g. in the case of an innocent or unintended mistake).[1] While it is not necessary for a visa applicant to know of, or be directly involved in, any falsehood for PIC 4020 to be engaged, there must have been knowledge or intention on somebody’s part.[2] [1] Trivedi v MIBP (2014) 220 FCR 169 at [32] and [54]. [2] Trivedi v MIBP (2014) 220 FCR 169 at [28], [33] and [49]. In order to be misleading, the information must convey or contain a misrepresentation. The misrepresentation may be about an existing state of facts or a future state of affairs such as in circumstances where an applicant must satisfy a criterion with a prospective aspect. What constitutes false or misleading information is a question of fact for the decision-maker to determine having regard to the circumstances of the case.[3] However it is important to correctly characterise the purported false or misleading information when considering whether PIC 4020 is satisfied. [3] Kaur v MIMAC [2013] FCCA 933 (Judge Driver, 23 August 2013) at [63]. Undisturbed on appeal: Kaur v MIBP [2014] FCA 281 (Wigney J, 27 March 2014). There is no requirement that the information in question has in fact misled anybody and it may be the case that the information is ‘objectively’ false or misleading.[4] However, an element of fraud or deception by somebody is also necessary in order to attract the operation of PIC 4020.[5] [4] Kaur v MIMAC [2013] FCCA 933 (Judge Driver, 23 August 2013) at [65]. Undisturbed on appeal: Kaur v MIBP [2014] FCA 281 (Wigney J, 27 March 2014). In Singh v MIBP [2014] FCCA 510 (Judge Emmett, 18 March 2014) the applicant provided a letter of reference to TRA which was found to have erroneously stated that the applicant worked 900 hours. In these circumstances the Court held it was open for the Tribunal to find that the applicant did not satisfy cl 4020(1)(a) on the basis the letter of reference submitted to TRA was false and misleading.[5] Trivedi v MIBP (2014) 220 FCR 169 at [33].

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.