SOONG (Migration) - [2025] ARTA 409

SOONG (MIGRATION) [2025] ARTA 409 (3 MARCH 2025)
DECISION AND
REASONS FOR DECISION
Applicant:Miss Yan Hong SOONG
Respondent:  Minister for Immigration and Multicultural Affairs
Tribunal Number:  2407803

Tribunal:General Member W Banfield
Place:Canberra
Date: 3 March 2025
Decision:The Tribunal sets aside the decision under review and remits the application for a Student (Temporary) (Class TU) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 500 (Student) visa:
·Public Interest Criterion 4020 for the purposes of cl 500.207(1) of Schedule 2 to the Regulations

Statement made on 03 March 2025 at 5:53pm
CATCHWORDS
MIGRATION –Student (Temporary) (Class TU) visa – subclass 500 (Student) visa – applicant provided a bogus document when she applied for a Visitor visa – evidence of past employment – not satisfied that the applicant’s documents are non-genuine – applicant meets PIC 4020 – decision under review remitted
LEGISLATION
Migration Act 1958, ss 65, 375
Migration Regulations 1994, r 1.12, Schedule 2, cl 500.207
CASES
Arora v MIBP [2016] FCAFC 35
Batra v MIAC [2013] FCA 274
Trivedi v MIBP [2014] FCAFC 42
STATEMENT OF REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister on 10 April 2024 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 13 April 2023. 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 there was evidence before the Minister that the applicant provided, or caused to be provided, bogus documents or false or misleading information in relation to the visa application.
The applicant appeared before the Tribunal on 7 November 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
The applicant was represented in relation to the review.
Department decision
The applicant submitted a copy of the Department’s decision record dated 10 April 2024. The delegate made the following findings:
There is evidence before the Minister that the applicant has provided, or caused to be provided, a bogus document or false or misleading information in relation to this visa application.
The student visa application (TRN: EGOX6VDMQ7) currently under consideration was lodged on 13 April 2023. The applicant intends to study:
● Diploma of Leadership and Management
● Advanced Diploma of Leadership and Management
The applicant lodged the current student visa whilst they were onshore with a valid Visitor visa (TRN EGOV3WL3AX), granted on 07 November 2023 and valid until 24 June 2023.
In the Visitor visa application lodged on 04 January 2023, the applicant provided the following documents as evidence of their employment:
● Personal declaration in the Application for Electronic Travel Authority that Soong Yan Hong works in Singapore…

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 SOONG (Migration)

Details

AGLC: SOONG (Migration) [2025] ARTA 409
Case: [2025] ARTA 409
Decision Date: 3 March 2025

CaseChat Overview and Summary

The case involves SOONG, a visa applicant, who applied for a Student (Temporary) (Class TU) visa, subclass 500. The Tribunal reviewed the decision made by the Minister of Immigration, Citizenship and Multicultural Affairs (MIBP) regarding the applicant’s eligibility for the visa. The primary issue was whether SOONG met Public Interest Criterion 4020 (PIC 4020), which is a requirement for the grant of the visa. This criterion requires that there is no evidence that the applicant has provided a bogus document or false information in relation to the visa application. The Tribunal examined whether SOONG had provided any such documents or information during the application process or in the 12 months prior to the application.

The legal issues before the Tribunal included determining if the documents provided by SOONG were genuine and whether there was any evidence of false information being submitted. The Tribunal also considered whether SOONG met the identity verification requirements and if there were any previous visa refusals due to a failure to satisfy PIC 4020. The Tribunal had to decide if the MIBP’s decision to refuse the visa was justified based on the evidence provided.

The Tribunal found that the MIBP did not have sufficient evidence to conclude that SOONG had provided any bogus documents or false information. The evidence provided by SOONG did not indicate any material misrepresentation. The Tribunal also determined that there were no previous visa refusals due to a failure to satisfy PIC 4020. Consequently, the Tribunal was satisfied that SOONG met PIC 4020. The decision was set aside, and the matter was remitted for reconsideration with the finding that SOONG met the required criteria for the grant of a Subclass 500 (Student) visa.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the decision under review is set aside, and the matter be remitted for reconsideration.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 500.207(1) 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 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

On the basis of the above, the applicant does satisfy PIC 4020 for the purposes of cl 500.217(1).DECISION The Tribunal sets aside the decision under review and remits the application for a Student (Temporary) (Class TU) visa for reconsideration, in accordance with the order that the applicant meets the following criteria for a Subclass 500 (Student) visa:·Public Interest Criterion 4020 for the purposes of cl 500.217(1) of Schedule 2 to the Regulations Date(s) of hearing: 7 November 2024Representative for the Applicant: Mr Weida Wang (MARN: 2217899)ATTACHMENTMigration Regulations 1994Schedule 44020(1) There is no evidence before the Minister that the applicant has given, or caused to be given, to the Minister, an officer, the ART during the review of a reviewable migration 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.…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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