SHRESTHA (Migration)

[2020] AATA 3631

SHRESTHA (Migration) [2020] AATA 3631 (9 July 2020)

DECISION RECORD

DIVISION:  Migration & Refugee Division

APPLICANT:  Mr ARUN KUMAR SHRESTHA

CASE NUMBER:  1908368

HOME AFFAIRS REFERENCE(S):          BCC2018/5196796

MEMBER:  Glenn O'Brien

DATE OF ORAL DECISION:  9 July 2020 DATE OF WRITTEN STATEMENT:  16 July 2020 PLACE OF DECISION:  Brisbane

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

Statement made on 16 July 2020 at 3:51pm

CATCHWORDS
MIGRATION –Student (Temporary) (Class TU) visa – subclass 500 (Student) visa– applicant provided false information– genuine temporary entrant criterion not met–not currently enrolled in a registered course of study –no current confirmation of enrolment –decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 359, 499
Migration Regulations 1994, r 1.03, Schedule 2, cls 500.211, 500.217, Schedule 4, PIC 4020

Education Services for Overseas Students Act 2000

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 18 March 2019 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s.65 of the Migration Act 1958 (the Act).

1. The applicant applied for the visa on 21 November 2018. 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.

1. The applicant provided the Tribunal a copy of the delegate’s reasons for decision with the application for review. The delegate in this case 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 (the Regulations) because the delegate was not satisfied the applicant meets Public Interest Criterion (PIC) 4020(1).

1. The applicant appeared before the Tribunal on 9 July 2020 to give evidence and present arguments. The Tribunal gave its decision on the review at the conclusion of the hearing held on 9 July 2020. The following are the reasons for that decision.

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

CONSIDERATION OF CLAIMS AND EVIDENCE

1. The criteria for a Subclass 500 (Student) visa are set out in Part 500 of Schedule 2 to the Regulations. The primary criteria in cl.500.211 to cl.500.218 must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need only satisfy the secondary criteria. On the basis of the evidence before the Tribunal, in addition to the PIC 4020 criterion, the issue also became whether or not the applicant meets the enrolment criteria in cl.500.211. The applicant acknowledged understanding both issues before the Tribunal and was provided an opportunity to comment on and respond to those matters at the hearing.

1. Adopting the procedure in s.359AA of the Act, the Tribunal put to the applicant that it had on the Tribunal file a copy of the applicant’s enrolment records from the Provider Registration International Student Management System’s (PRISMS) database. The Tribunal outlined the information on the PRISMS record to the applicant and explained to the applicant the relevance of the records that are reviewed before the Tribunal. The Tribunal explained the consequences of relying on the information and confirmed the applicant understood the consequences of the information being relied upon, in particular the requirement at the date of decision to be enrolled in a full-time course of study. The Tribunal offered the applicant an opportunity to seek an adjournment to consider the information before commenting on or responding to the information. The applicant did not seek an adjournment and elected to respond to the information during the course of the hearing.

PIC 4020

1. It is convenient to deal firstly with the PIC issue which is the basis upon which the delegate refused the application.

1. Regulation 500.217 is one of the mandatory requirements for the grant of the visa under consideration. Relevantly, it requires that the applicant satisfy PIC 4020 which is set out in Schedule 4 to the Regulations.

1. PIC 4020(1) of Schedule 4 requires that there is no evidence before the Minister that the applicant 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 or information that is false or misleading in a material particular in relation to either the application for the visa, or a visa that the applicant held in the period of 12 months before the application was made.

1. PIC 4020(5) provides that:

   (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.

1. If PIC 4020 is not satisfied PIC 4020(4) enables the Minister to waive the requirements of any or all of PIC 4020(1) if satisfied that:

   a.there are compelling circumstances which affect the interests of Australia, or

b.there are compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident, or an eligible New Zealand citizen justifying the grant of the visa.

1. In the application for a student visa lodged on 21 November 2018, in response to the question “[H]as the applicant, or any person included in this application, ever had an application for entry or further stay in Australia or any other country refused, or had a visa cancelled?” the applicant responded “No”. The delegate’s reasons for decision indicate the applicant’s then spouse was refused a student visa on 7 February 2018. At the hearing the applicant acknowledged the response to that question was not correct.

1. Prior to making a decision the delegate invited the applicant to respond to the information provided and the applicant provided a response to the delegate on 14 December 2018. In the applicant’s response the applicant stated inter alia:

   As you can see I did the application on my own and did not seek assistance for the professional for the purpose of making the application. I regret now as to why I did not seek professional advice. Had I seek advice for the professionals I would not be in such a difficult situation.  It was a mistake that I did not do on purpose.

1. At the hearing however the applicant told the Tribunal his agent completed the form for him and it was his agent who provided the false information. When questioned in relation to the inconsistency with his evidence to the Tribunal and his written response to the delegate, the applicant told the Tribunal the response to the delegate just needed his signature and he didn’t read it properly.

1. Notably, the application submitted by the applicant on 21 November 2018 indicated the applicant did not appoint an authorised recipient and provided his own contact details for communication to the Department.

1. The applicant later indicated to the Tribunal he had knowledge of the false information being provided with the application as he told the Tribunal his agent told him if he stated “no” to the question there might be some hope for it to be granted.

1. The Tribunal put to the applicant it was concerned that the applicant’s evidence in relation to his agent completing the form, if accepted, would suggest to the Tribunal that the applicant’s later written statement to the delegate contained false information. The applicant told the Tribunal he had nothing to say and that it was his fault.

1. PIC 4020 was considered in Khan v Minister for Immigration and Citizenship, where Moore J observed that information would be material because:

   it is information which might influence the conclusion the decision maker might reach and, because it is false or misleading, underpin or at least contribute to a decision being made which might not have been made had the true position been known to the decision maker.

1. The information in the subject document would have at least contributed to a decision being made which might not have been made had the true position as to the previous visa refusal of his spouse been known to the decision maker. The applicant indicated the intention of stating “no” to the relevant question was to provide hope that the visa would be granted.

1. PIC 4020 was considered further in Trivedi v MIBP, where the Full Federal Court stated, inter alia:

“bogus document or information that is false or misleading in a material particular” give an indication of “the character of improper material to which PIC 4020 is addressed.

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…

….

… PIC 4020 is not directed to information or documents which is not tainted in the way I have indicated.

1. Given the inconsistencies in the applicant’s evidence in relation to who completed the application and his evidence that he was aware false information was being provided, in addition to his admission that he provided false information to the delegate in his later response on 14 December 2018, the Tribunal finds the applicant’s application for a visa submitted on 21 November 2018 contained false information.

1. The Tribunal however must also consider whether or not there is an element of fraud or deception. The document submitted by the applicant contained information that the applicant concedes was false. The applicant’s evidence that he was aware the information being provided was not correct to provide hope the application for a visa may be granted is evidence of the deception.

1. For the above reasons, the Tribunal finds that the information provided by the applicant in his application for a visa dated 21 November 2018 was false and it was either provided by the applicant or with his knowledge with an intention to deceive and therefore attracts the operation of PIC 4020(1) .

1. The Tribunal considered whether or not 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 which may justify the grant of the visa through the operation of PIC 4020(4). The applicant made no claims in relation to these matters and the Tribunal finds there are no such grounds which would enable PIC 4020(4) for the purposes of providing a waiver to PIC 4020(1).

1. The Tribunal therefore finds the applicant does not meet cl.500.217.

Enrolment (cl.500.211)

1. On the basis of the evidence before the Tribunal, the Tribunal also considered cl.500.211. Clause 500.211 relevantly requires that at the time of this decision the applicant is enrolled in a course of study: cl.500.211(a). The applicant does not claim to meet any of the alternative criteria in cl.500.211.

1. “Course of study” is relevantly defined in cl.500.111 of Schedule 2 to the Regulations as a “full-time registered course”. “Registered course” is defined in r.1.03 of the Regulations as a course of education or training provided by an institution, body or person that is registered, under Division 3 of Part 2 of the Education Services for Overseas Students Act 2000, to provide the course to overseas students.

1. The applicant confirmed in oral evidence that he is not enrolled in a relevant course of study but is applying for a letter of offer from a course in Information Technology Networking. The applicant provided no documentary evidence to support his oral evidence. Notably, since 2013 the applicant has held a number of confirmations of enrolment in various courses and has not completed any course of study since 2013. The applicant’s last confirmation of enrolment was for a Diploma of Information Technology Networking which was cancelled on 20 February 2019 for non-commencement of study.

1. The applicant provided a number of reasons for his non-completion of courses since 2013 and his current unenrolment including the breakdown of personal relationships (noting he is now divorced and his former spouse is in Canada), his estrangement with his family, depression, mental health issues (including suicidal thoughts) his financial situation, and the death of his a relative the applicant identified as a ‘cousin brother’ in 2016. Notably, the applicant told the Tribunal he was coping now and has applied for an offer of enrolment.

1. While the Tribunal considers the applicant’s personal issues have affected the applicant’s ability to study, the applicant provided no medical or other documents to the Tribunal in support of his evidence. Further, the Tribunal considers that an applicant that is genuinely temporarily in Australia for the purpose of study would not remain unenrolled in any course of study for over 16 months given the investment in both time and finances in remaining in Australia.

1. The Tribunal considers the applicant has been provided a reasonable opportunity to obtain enrolment in a full-time course of study since February 2019 and has not done so. The applicant confirmed he is not currently enrolled in any course of study.

1. Therefore, the Tribunal is not satisfied that at the time of this decision, the applicant is enrolled in a course of study and accordingly cl.500.211 is not met.

1. Accordingly, the Tribunal is not satisfied that the applicant meets cl.500.211.

1. Given the above findings, the Tribunal finds that the criteria for the grant of a Subclass 500 (Student) visa are not met. The applicant does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa. Accordingly, the decision under review must be affirmed.

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

Glenn O'Brien Member