Singh (Migration)

[2018] AATA 5515

Singh (Migration) [2018] AATA 5515 (8 November 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Gurdeep Singh

CASE NUMBER:  1622222

DIBP REFERENCE(S):  BCC2016/2111251

MEMBER:Tim Connellan

DATE AND TIME OF

ORAL DECISION AND REASONS:          8 November 2018 at 10:28 am (VIC time)

DATE OF WRITTEN RECORD:                21 December 2018

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision under review.

CATCHWORDS
MIGRATION –Student (Temporary) (Class TU) visa – Subclass 572(Student) visa – bogus document provided – non-genuine results of an IELTS test– breached public interest criteria 4020 – not enrolled in a course of study–decision under review affirmed

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl 572.224

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 14 December 2016 to refuse to grant the visa applicant a Student (Temporary) (Class TU) Subclass 572 visa under the Migration Act 1958 (the Act).

2. At the hearing on 8 November 2018 the Tribunal made an oral decision and gave an oral statement of decision and reasons. The following is the written record of those reasons.

   STATEMENT OF DECISION AND REASONS

3. MEMBER:  Mr Singh, you have been in Australia since 23 December 2008.  This application for a student visa was lodged on 21 January 2016.  To be eligible for the grant of a student visa an applicant must satisfy a range of criteria set out in the regulations.

4. Your application was refused on 14 December 2016 because the delegate found you did not meet a criterion in 572.224, which deals with what are known as Public Interest Criteria.  One of those is Public Interest Criteria 4020, which states that to satisfy that criterion there is no evidence before the Minister, or in this case the Tribunal, that the applicant has given or caused to be given a bogus document or information that is false or misleading in a material particular in relation to the application for the visa.

5. In your case in support of your application you provided the results of an IELTS test that was undertaken on 30 May 2009 with the reference number 091N010052TG120A, which showed an overall band score of 5.0.

6. When the department officer did a routine check with the IELTS verification website to verify the result it showed that the document was not an accurate reflection of the score achieved and the document examiner determined it was a fraudulent generation. 

7. You were advised that the verification process revealed that this document was non-genuine and you were invited to comment.  You failed to respond.

8. Consequently your application was refused for failure to satisfy clause 572.224. You appealed that decision to this Tribunal for review.

9. The role of the Tribunal, as I said, is to take a fresh look at your application and to consider whether you are eligible for the grant of a student visa. Whether you satisfy public interest criteria 4020.  If the Tribunal finds you have breached public interest criteria 4020 the Tribunal must consider whether there are circumstances that would lead to the waiver of the criterion.

10. As discussed, the decision as to whether or not an application is refused when an applicant fails to meet Public Interest Criteria 4020 may be waived if there are compelling circumstances that affect the interests of Australia or compassionate or compelling circumstances that affect the interests of an Australian citizen, permanent resident or an eligible New Zealand citizen, which justify the granting of a visa.

11. The situation is you have told the Tribunal you have completed your studies, you are not currently enrolled, and you are keen to have this case remitted to the department because you do not want to have a 4020 issue, black mark as you call it, against you.  The fact that you are not enrolled means that you are not eligible for the grant of a visa.

12. However, the situation is you say that you booked this test through an agent.  You did not know and had you known that it was not a genuine document you would not have lodged it.  You say you could have used evidence other than this IELTS test to satisfy the English requirements.

13. However, the fact is you provided evidence that was found to be non-genuine and this leads the Tribunal to find that you do not satisfy Public Interest Criteria 4020.

14. When I asked you, you provided no evidence that there are compelling or compassionate circumstances that meet the definition that would lead to the waiver of the criterion.  And therefore in the circumstances it is the decision of the Tribunal to affirm the decision under review, which means the primary decision to refuse your visa application stands.

    DECISION

15. The Tribunal affirms the decision under review.

    Tim Connellan
    Member