Shareef (Migration) - [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

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).
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).
The applicant appeared before the Tribunal on 19 May 2023 to give evidence and present arguments.
The applicant was represented in relation to the review.
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.
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 (Trivedi).
On 31 March 2021 the applicant lodged a student visa application. In so doing he declared his parents residing in his home country as his only family members. He did not declare any other family members either living in Australia or elsewhere.
By letter dated 16 July 2021 the Department wrote to the applicant in the following terms:
On 31/03/2021 you lodged this Student (Class TU Subclass 500) visa application. In your application, you answered ‘YES’ to the following question:
Does the applicant have any parents or siblings in or outside Australia?
You declared the following as your family members;
✃ Parent: MOHAMMED JAVEED SHAREEF
✃ Parent: WAHAJ SULTANA.
You did not declare any other family member either onshore or offshore. However, investigations conducted by the department reveal that you have a sibling onshore -
MOHAMMED, IMTIYAZ SHAREEF and you are currently residing with this sibling at 66 Bowden Boulevard, Yagoona, NSW.
At time of application, you have therefore provided or caused to provide false and misleading information in a material particular in relation to this student visa application. This information is relevant to the consideration of the Genuine Temporary Entrant requirement 500.212.
The applicant was invited to respond within 28 days. The applicant responded as follows:
He also provided a form to amend incorrect information included in the original application which stated as follows:
Select the applicant(s) to which the incorrect information relates.
Name: MOHAMMED RIYAZ SHAREEF, Mohammed Riyaz Shareef (21 Oct 1993)
Give details of the incorrect information:
Other members of the family unit.
Give details of the correct information:
Need to add my Brother to other member of the family
MOHAMMED IMTIYAZ SHAREEF
D.o.b: 13/11/1988
Reason why incorrect information was provided:
Explanation provided in the statement attached to the Application. [Emphasis in original.]
On 12 April 2022 the delegate refused the application for the student visa on the basis of false and misleading information. The decision record relevantly states as follows:
On 31/03/2021, the applicant lodged his Student visa application. At time of lodgement, the applicant only declared his parents residing in his home country as his only other family members. He failed to declare any other family members either onshore or offshore. However, investigations conducted by the department reveal that the applicant has a sibling in Australia.
On 16/07/2021, the applicant was presented with the above information in a Natural Justice letter by the department with 28 days for the applicant to comment on the information that is suspected to be false or misleading and to provide 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 any or all of PIC 4020(1) to justify the grant of the visa.
On 05/08/2021, the applicant uploaded to his online application a statement, which
✃ acknowledged provision of the false/misleading information in his Student visa application, and
✃ provided the reason that his sibling (brother) ‘is having some issues in life and is afraid of prosecution or harm to his life. I did not declare to avoid any type of impact on my visa due to his circumstances.‘
I find that the applicant did provided false and misleading information in his application deliberately with the aim to obtain an Australian visa. I have considered the applicant’s claims. I am satisfied that the applicant purposefully provided misleading information in a material particular to Genuine Temporary Entrant requirements (GTE) criteria of regulation 500.212. While assessing the application against Genuine Temporary Entrant requirements (GTE) criteria of regulation 500.212, the misleading information provided by the applicant, because it is false or misleading, would underpin or at least contribute to a decision to be made which might not have been made had the true information been known to the decision maker.
By letter dated 2 May 2023 the Tribunal wrote to the applicant’s representative and invited the applicant to provide comment on adverse information and to provide information relevant to his application as follows:
The particulars of the information from the delegate of the Minister of Home Affairs’ decision record are that:
 You advised the Department that your family consisted of your parents, who reside in your home country. You did not declare any other family members. The Department discovered that you have a sibling who resided in Australia at the time of your application.
This information suggests that you may have provided information that is false or misleading in a material particular in support of your visa application. It is relevant to the review because it indicates that you may not satisfy Public Interest Criterion 4020 in Sch 4 to the Migration Regulations 1994 (Cth) (‘the Regulations’), as required by cl 500.217 of Sch 2 to the Regulations, which is a primary criterion for the grant of a student visa.
The applicant was invited to respond by 16 May 2023. On 16 May 2023 the applicant provided evidence that he was enrolled in a registered course of study in Australia. No further evidence or materials were provided in response to the false or misleading information issue.
The applicant gave evidence at the hearing the substance of which was as follows. The applicant had read the delegate’s decision refusing his application for a student visa dated 2 May 2022. The applicant understood that the issue for determination was whether he had provided false and misleading information in relation to a previous visa application.
The applicant responded to various matters put to him by the Tribunal and agreed as follows:
a)    he applied for a student visa on 31 March 2021.
b)    in that application he stated that his relatives resided in India and did not include the fact that his brother resided in Australia.
c)    on 16 July 2021 the delegate wrote to him about the information and put to him that he was residing with his brother in Australia.
d)    he responded to the delegate’s letter and admitted that he had failed to include the fact that his brother resided in Australia. He said that his brother did not want his whereabouts disclosed.
e)    he received a copy of the delegate’s decision dated 12 April 2022 in which his student visa application was refused on the basis that he had supplied false and misleading information as to the whereabouts of his family members.
f)     he received the Tribunal’s letter dated 2 May 2023 regarding the false and misleading information issue.
g)    he responded to the Tribunal’s letter by providing confirmation of enrolment in a registered course of study but provided no further information regarding the false and misleading information issue.
The Tribunal asked the applicant whether he agreed with the delegate’s decision that the information regarding his family members and their whereabouts was false and misleading. He responded “no”. When invited to explain this he said “it was not my mistake, when I applied for visa, my agent did not ask me about my brother, he asked me about blood relatives and any documents, I mentioned mother and father, he didn’t ask me about brother, I did not know it was a big issue until I came here, agent when I applied for visa he didn’t say was important thing, he asked me about blood relatives, documents which I had, I had father and mother documents it was his mistake”. It was asked whether he read the student visa application form. He said “no”. When asked whether he signed the document he said “yes”. He was asked whether he read it before he signed it. He said “no”. The Tribunal asked at the time of this application whether he could read and understand English. He said “not very much but I did”. It was then asked whether the level of his English language comprehension was sufficient that he could read the student visa application and understand it. He said “yes”.
He was asked whether he had a copy of the student visa application. He said that he did. The Tribunal drew his attention to the part under the heading “student declaration”. He was again asked whether he read the document before he signed it. He said “yes but couldn’t understand”. The Tribunal pointed out that he had earlier said that he did not read the document. He said “I did not read the whole thing”.
The Tribunal observed that it was up to the applicant to make sure the information in the document was true and correct. The applicant agreed. He was asked whether he had anything further to say. He said “my intention not to give false information, it happened but because of the agent, he didn’t do said me a big issue in future, I didn’t pay attention to that, I don’t problem remembering his name agent mistake”. The Tribunal observed that he was saying that the agent was the cause of the misleading statement in the document. The applicant agreed.
The Tribunal observed that when the Department asked him to explain the response he did not make mention of it being the agent’s mistake. The applicant replied, “I got panicked, I went to different agent, he said if I tell them the agent did it would not be relevant”. The Tribunal asked the applicant whether he was asserting that he went to another agent and was advised that if it was the previous agent’s mistake it would not be relevant. The applicant said “yes”. The Tribunal asked him why he had given a different story in his explanation provided to the Department. He said “I asked my brother he say doesn’t want to give details”. The Tribunal observed that that was not an issue when he completed the student visa application. The applicant said “no”. He was asked whether he was asserting that the explanation given to the Department was untrue. He said “when I applied 2021 he didn’t want to give details”. He was asked to explain. He said “in 2021 student visa application asked brother if he wanted to give details and he said no”. The Tribunal observed that was different to what it said earlier. He said “maybe English is not proper”. At one point in his response the applicant said that mistake was made by the previous agent in an earlier student visa application made in 2019.
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].
An omission is also capable of amounting to false or misleading information, for example failure to answer a question on a visa application form about previous visa applications.[6]
[6] Umer v MIBP [2017] FCCA 2934 (Judge Lucev, 29 November 2017) at [46]–[47], which held that the Tribunal was correct to find that the review applicant’s failure to answer a question on a visa application form about previous visa applications was misleading in circumstances where the review applicant knew that there was a previous visa refusal, knew he had not provided the correct information, and made no effort to correct the omission.
A decision of the Full Court of the Federal Court (Trivedi) considered the nature of false or misleading information. This was an appeal from a judgment of the Federal Circuit Court dismissing an application for judicial review of a decision of the Migration Review Tribunal (the Tribunal) affirming the delegate’s decision to refuse to grant the appellants Skilled (Residence) (Class VB) visas. The Tribunal found that, by providing an IELTS test report form with her visa application that recorded higher scores than she had actually received, the primary visa applicant (the appellant) had given to the Minister or an officer information that was ‘false or misleading in a material particular’ and so did not satisfy (PIC) 4020(1). The appellant had given evidence that a supervisor at the IELTS test centre told her he would ‘fix up’ her result for her, but claimed she was unaware there was anything wrong with the test report form until it was brought to her attention by the Minister’s delegate. She claimed she was not personally involved in or aware of the deception. The Tribunal found that the requirements in PIC 4020 applied whether or not the document had been provided unknowingly or unwittingly, and once there was evidence that the applicant had given a bogus document or information that is false or misleading in a material particular PIC 4020 applied, regardless of how such a document came into existence or came to be given. The Federal Circuit Court rejected the appellant’s contention that PIC 4020 applied only if the appellant intended to mislead the Minister’s Department.

On appeal, the appellant argued that it was necessary that she be knowingly involved in the giving of false information for PIC 4020 to apply. The respondent argued that no element of knowledge by a visa applicant was necessary, and that information did not need to be purposely untrue for PIC 4020 to apply.
The Court (per Buchanan J (Allsop CJ and Rangiah J agreeing)) found as follows:
a)    The Federal Circuit Court was correct to conclude that the Tribunal did not make a jurisdictional error when it found that PIC 4020 was engaged. There was no doubt that the IELTS test result form contained false information, and so it was open to the Tribunal to find that the information given by the appellant was false or misleading in a material particular. It was not necessary to prove that the appellant knew the contents of the document were false or misleading when she proffered it.
b)    It is not necessary for a visa applicant know of, or be directly involved in, any falsehood for PIC 4020 to be engaged.
c)    However, an element of fraud or deception is necessary in order to attract the operation of PIC 4020. There must be some element of knowledge or intention on somebody’s part. PIC 4020 is directed to information or documents which are purposely untrue and not to innocent, unintended or accidental matters.
Buchanan J commented as follows (at paras 28–33):
As it will be necessary to return to the first issue (the knowledge of the visa applicant) when I deal with the appellants’ arguments, I will content myself with saying here that I am satisfied that it is not necessary a visa applicant know of, or be directly involved in, any falsehood for PIC 4020 to be engaged. I will return to that issue.
Purposely untrue
I turn to the character or quality of the documents or information to which PIC 4020 is directed. Much, of course, depends on the context and perceived purpose of PIC 4020 as well as the terms in which the prohibition in question is expressed. In the present case, I think the intention and purpose of PIC 4020 are clearly revealed by the text and a consideration of the purpose for which the information is provided.
First, the references in PIC 4020(1) and (3) to a “bogus document or information that is false or misleading in a material particular” are ones which in my view give an indication of the character of improper material to which PIC 4020 is addressed. That construction is strengthened by reference to the interaction between PIC 4020 and s 97 of the Migration Act.
It is apparent from the terms of PIC 4020 that it addressed the problem of attempts to work a fraud or deception on the assessment of claims for a visa. That is also evident from the fact that PIC 4020 states a “public interest” criterion, from the narrow and exceptional circumstances necessary to waive its requirements and, more generally, from the serious consequences that follow from its application. I would not infer any apparent intention to disqualify a visa applicant who could explain an innocent mistake in a document or information provided by them. PIC 4020 is not directed, in my view, to innocent, unintended or accidental matters. However, different questions arise when information or documents provided in support of an application are revealed as false, in the purposely untrue sense of that term.
In my view, it should be accepted that an element of fraud or deception is necessary in order to attract the operation of PIC 4020. To take the example of bogus documents, a counterfeit document is not produced accidentally. Similarly, to charge that a statement is false is not to say only that it is wrong. The accusation potentially imports some element of knowledge or intention on somebody’s part, and in my view does so in the present context. [Emphasis added.]
Buchanan J added at paragraph 43:
In my view, it is not necessary (for reasons yet to be further developed) to show knowing complicity by a visa applicant. That would impose an impossible task on those administering the visa system. But it is necessary that the information or document have the necessary quality of purposeful falsity, whether or not the visa applicant can be shown to have knowledge of that fact.
His Honour went on to state at paragraph 49:
For the reasons I have already given, it should be accepted that PIC 4020 is directed to information or documents which are purposely untrue. It seems to me to be clear from the same analysis that the purpose of PIC 4020 was to render visa applicants ultimately responsible for the veracity of the information and documents supplied to support the application. Although the limited terms of the waiver (and therefore any discretion to excuse non-compliance) make it apparent that innocent errors are not the focus of attention, it is equally clear that PIC 4020 is directed at the overall integrity of the visa system and as a bulwark against deception and fraud from any quarter associated with a visa applicant. It is not inconsistent with a coherent public policy to make a visa applicant ultimately responsible for purposely untrue material provided with a visa application. It 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.
Trivedi was citied with approval in Maharjan v Minister for Immigration and Border Protection, [2017] FCAFC 213, [72]–[76]. In that case a majority of the Full Federal Court, after referring to passages in the decision of Buchanan J, including those set out above, stated at paragraph 75:
We do not consider that Trivedi stands in the way of the contentions the appellants seek to make on the present appeal, nor does it stand in the way of the application of principles set out by the Full Court in Gill and Singh. Trivedi is a case about the construction of PIC 4020. What Buchanan J rejected (with Allsop CJ and Rangiah J agreeing) was the proposition that there was, on the proper construction of PIC 4020, a positive requirement imposed upon the Minister and his or her delegates to be satisfied about a particular state of mind of a visa applicant in relation to information that had been established to be false or misleading, in the sense of being purposely untrue, before PIC 4020 could be applied. As we have set out above, there were good reasons of both construction and policy for that conclusion to be reached.
Accordingly, it is not a requirement of PIC 4020 that the applicant must know that the information or document is false or misleading. However, it must be produced deliberately by someone who knows it to be false or misleading.
The applicant sought to blame an unidentified agent for the mistake. The Tribunal does not accept this explanation for several reasons. First, the applicant did not offer this as an explanation to the Department. His explanation was quite different. When pressed on this he said he was told not to say it was an earlier agent’s mistake. The Tribunal considers that if the applicant believed that an earlier agent was really to blame that the applicant would have offered this as an explanation when asked by the Department. He did not, he gave another explanation, which he sought to blame on advice from another unidentified agent. Also, the applicant said that the first agent’s advice was in respect of an earlier student visa application, having not qualified his responses earlier when asked about the 2021 application. The inconsistency is given some weight. Further the Tribunal notes that he has not blamed an agent at any time prior to the hearing. The Tribunal also notes that the applicant said he could read and understand English sufficiently to comprehend the application form. This clearly asks for information about family members, whether in Australia or elsewhere. The applicant well knew that his brother existed and that he resided in Australia. The Tribunal concludes that the applicant was aware that the information was false and misleading at the time he made the student visa application. That is sufficient to enliven the first limb of PIC 4020.
The Tribunal finds that:
a)    the applicant applied for a student visa on 31 March 2021.
b)    in that application he stated that his only relatives resided in India and did not include the fact that his brother resided in Australia.
c)    at that time his brother existed and resided in Australia.
d)    on 16 July 2021 the delegate wrote to him about the information.
e)    he responded to the delegate’s letter and admitted that he had failed to include the fact that his brother resided in Australia.
f)     the information provided by the applicant in his student visa application lodged on 31 March 2021 regarding the whereabouts of his family members was false and misleading.
The Tribunal turns to consider whether the information was in relation to a material particular. For the purposes of PIC 4020, the phrase ‘information that is false or misleading in a material particular’ is defined in PIC 4020(5) to mean 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.
The definition of ‘information that is false and misleading in a material particular’ in PIC 4020(5)(a) requires the information to be false or misleading at the time it is given. It is clear from the express terms of PIC 4020(5)(a) that this question must be addressed at the time the information is given.[7] The effect of PIC 4020(5)(a) is that something which may have been given at a particular time, but later becomes false because of different information or a change in circumstances, does not fall within the meaning of false or misleading for the purposes of PIC 4020.[8]
[7] Kaur v MIBP [2014] FCA 281 (Wigney J, 27 March 2014) at [45].
[8] Kaur v MIBP [2014] FCCA 1264 (Judge Lloyd-Jones, 18 June 2014) at [79].
For information to be ‘false or misleading in a material particular’ in the context of PIC 4020, there must be a visa criterion upon which the allegedly false information could materially bear.[9] The definition in PIC 4020(5)(b) focuses upon the materiality of the information. It applies to information which goes to something which will or might determine the visa application and is not concerned with information that is irrelevant to the visa requirements.[10]
[9] Singh v MIAC [2012] FMCA 145 (Driver FM, 24 April 2012) at [68].
[10] Kaur v MIBP [2014] FCCA 1264 (Judge Lloyd-Jones, 18 June 2014) at [80] and [81]. See also Singh v MIBP [2018] FCCA 1136 (Manousaridis J, 9 May 2018).
In assessing an application for a student visa it is necessary to take into account a variety of factors including the applicant’s circumstances in his home country, the applicant’s circumstances in Australia are included in those factors. An assessment of the ties or connections between the applicant and his home country on the one hand and to Australia on the other hand are required to be assessed and balanced. The fact that an applicant has family members in Australia is a relevant factor to be taken into account in assessing the prospects of the applicant returning to his home country at the completion of his studies. The applicant stated that his immediate family members resided in India. He omitted to include the whereabouts of his brother, who resides in Australia. This is a relevant factor to be taken into account by a decision-maker in assessing the application for a student visa.
The information provided by the applicant created an impression that the applicant had no family ties to Australia. That was false and misleading. The applicant has admitted that the information was false.
Having regard to the evidence provided by the applicant in support of the application for review, the Tribunal concludes that the information regarding the whereabouts of his family members was:
information that is ‘false or misleading in a material particular’ as defined in PIC 4020(5), that is to say, 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.
Lastly, the Tribunal notes the information provided in respect of the student visa application lodged on 31 March 2021. The Tribunal is satisfied that the applicant has given, or caused to be given, to the Minister, or an officer a bogus document or information that is false or misleading in a material particular in relation to the application for the visa.
Therefore, the applicant does not meet PIC 4020(1).
On the basis of the above, the applicant does not satisfy PIC 4020 for the purposes of cl 500.212(1).
Should the requirements of PIC 4020(1) or (2) be waived?
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 of the Regulations), 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.
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.
In the absence of any submissions and having regard to the evidence provided by the applicant, namely, that he did not identify any compassionate or compelling circumstances affecting the interests of Australia and did not think that the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen were similarly affected, the Tribunal concludes that there are no:
· 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.
Therefore, the requirements of either PIC 4020(1) or (2) should not be waived.
On the basis of the above, the applicant does not satisfy PIC 4020 for the purposes of cl 500.217.
decision
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.
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Migration Act 1958
s 5 Interpretation
(1) In this Act, unless contrary intention appears:
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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.
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