Sun (Migration) - [2023] AATA 3337

Sun (Migration) [2023] AATA 3337 (31 August 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Biwei Sun
CASE NUMBER:  2301029
HOME AFFAIRS REFERENCE(S):          BCC2021/1266350
MEMBER:Penelope Hunter
DATE:31 August 2023
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.

Statement made on 31 August 2023 at 1:39pm
CATCHWORDS
MIGRATION –Student (Temporary) (Class TU) visa – subclass 500 (Student) visa – false or misleading information– a bogus document – Identity Card details provided with the applicant’s original visa application was a bogus document – not satisfied that the evidence and submissions advanced by the applicant demonstrate compelling circumstances – failed to meet the criteria in PIC 4020(1) – requirements of PIC 4020 can not be waived – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 65, 376, 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
Trivedi v MIBP [2014] FCAFC 42
Kaur v MIBP [2017] FCAFC 184
Plaintiff M64/2015 v MIBP [2015] HCA 50
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 7 January 2023 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 18 June 2021. 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 they found that the applicant had not complied with Public Interest Criteria 4020 (PIC 4020). Further, the delegate found that there were no compassionate or compelling reason to just waive PIC 4020. A copy of the delegate’s decision record was provided to the Tribunal by the applicant with the application for review.
The applicant appeared before the Tribunal on 29 August 2023 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance on an interpreter by telephone in the Mandarin and English languages.
For the following reasons, the Tribunal has concluded that decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this review is whether the visa applicant meets PIC 4020 as required by cl 500.217(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…

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 Sun (Migration)

Details

AGLC: Sun (Migration) [2023] AATA 3337
Case: [2023] AATA 3337
Decision Date: 31 August 2023

CaseChat Overview and Summary

This matter concerned an application for a Student (Temporary) (Class TU) visa, subclass 500. The applicant sought review of a decision not to grant the visa. The core of the dispute revolved around the applicant's failure to meet the criteria stipulated in Public Interest Criterion (PIC) 4020, specifically concerning the provision of a bogus document. The decision was made by Penelope Hunter, a Member of the Tribunal.

The legal issues before the Tribunal were whether the applicant met the requirements of PIC 4020, as mandated by clause 500.217(1) of the Migration Regulations 1994. This involved determining if the applicant had provided a bogus document or false or misleading information in relation to their visa application or a previous visa held within the preceding 12 months. The Tribunal also considered whether the applicant and their family unit had a history of visa refusals due to failing PIC 4020, and whether the applicant satisfied the Minister as to their identity. The Tribunal was required to assess the validity of a section 376 certificate issued by the Department concerning certain electronic documents.

The Tribunal reasoned that the applicant had failed to satisfy PIC 4020(1) because an Identity Card provided with the original visa application was determined to be a bogus document. The Tribunal found the section 376 certificate, which claimed confidentiality for certain departmental documents, to be valid, and the applicant had not disputed its validity. Crucially, the Tribunal noted that while the waiver provisions under PIC 4020(4) could apply to certain aspects of PIC 4020, they did not extend to the identity requirements under PIC 4020(2A) and (2B). As the applicant had not demonstrated compelling circumstances to justify a waiver, and had failed to meet the identity criteria, the Tribunal concluded that the applicant did not meet the requirements for the visa.

Consequently, the Tribunal affirmed the decision not to grant the applicant the Student (Temporary) (Class TU) 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 decision under review should be affirmed.CONSIDERATION OF CLAIMS AND EVIDENCE The issue in this review is whether the visa applicant meets PIC 4020 as required by cl 500.217(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 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.Non-Disclosure Certificate On 7 February 2023 the Department issued a certificate under s 376 of the Act in relation to certain electronic documents on the applicant’s Department file. Section 376 applies to decisions under part 5 of the Act and provides that where the Minister has certified in writing that disclosure of a document or information would be contrary to the public interest, the Tribunal’s use and disclosure of the material is subject to the provisions of ss 376(3) of the Act. However, the operation of s 376 is dependent upon the existence of a valid certificate by the Minister or his delegate. In this case the Tribunal formed the preliminary view that the certificate was valid. It is signed and dated by the relevant officer. It clearly identifies the documents to which it purports to apply and the grounds for the claim of confidentiality, that is the information contains details of a Department’s officer and that it may disclose the identity of a confidential source of information, endanger the life or physical safety of the person and also disclose lawful methods for preventing, detecting and investigating breaches or evasions of the law which would likely lead the applicant to find out how the Department conducts its internal processes and may affect the capacity to use those methods. The applicant was provided with a copy of the certificate prior to the Tribunal hearing, and again at the Tribunal hearing. He was invited to comment as to validity at the hearing and advised the Tribunal that he did not wish to offer any comments or submissions disputing the validity. The Tribunal finds that the certificate is valid.

Decision

Reasons for decision

On the basis of the above, the applicant does not satisfy PIC 4020 for the purposes of cl 500.217(1). The Tribunal is also not satisfied that the applicant meets the criteria for any category within the student visa subclass. DECISION The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.Penelope HunterMemberATTACHMENTMigration 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 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.…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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