Tejeshwar Singh (Migration)

[2018] AATA 5710

Tejeshwar Singh (Migration) [2018] AATA 5710 (22 October 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Tejeshwar Singh

CASE NUMBER:  1729764

DIBP REFERENCE(S):  BCC2017/3105698

MEMBER:Wendy Banfield

DATE:22 October 2018

PLACE OF DECISION:  Sydney

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

Statement made on 22 October 2018 at 6:42pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 573 – Notice of Intention to Consider Cancellation – false and misleading information – bogus documents – adverse visa history – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5(1), 65
Migration Regulations 1994, Schedule 2, r 1.03, cl 500.217, Public Interest Criterion PIC 4020

CASES
Arora v MIBP [2016] FCAFC 35
Batra v MIAC [2013] FCA 274
Kaur v MIBP [2017] FCAFC 184
Plaintiff M64/2015 v MIBP [2015] HCA 50
Trivedi v MIBP [2014] FCAFC 42

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 Immigration on 8 November 2017 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 28 August 2017. 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 (the Regulations) because Public Interest Criteria 4020 was not met.

   Background

3. The applicant is a citizen of India and is currently 25 years old. He came to Australia on 25 January 2014 as the holder of a Subclass 573 visa. The applicant is currently enrolled in a Bachelor of Business (Professional Accounting) course.

4. The applicant applied for the visa which is the subject of this review on 28 August 2017. The applicant had previously applied for a Subclass 572 visa in September 2014 but the visa was refused on 13 October 2014. As the applicant still held a Subclass 573 visa he resumed his studies but on 24 October 2014 was issued with a Notice of Intention to Consider Cancellation. Eventually the Department did not proceed with cancelling the applicant’s visa.

5. When the applicant’s current visa application was assessed by the Department he was found to have provided false and misleading information when he answered ‘no’ to the following question ‘Has 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? (hereinafter referred to as ‘the relevant question’).

6. The applicant appeared before the Tribunal on 2 July 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.

7. The applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. 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).

10. 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 material particular?

11. 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.

12. 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.

13. 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.

14. The Tribunal has considered the facts in this case individually and cumulatively in assessing whether there is evidence 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 information that is false or misleading at the time it is given and is relevant to any of the criteria that may be considered when making a decision on an application and is in relation to the visa application.

15. The applicant does not dispute the answer he provided to the relevant question as to whether he has ever had an application for entry or further stay in Australia refused was not correct. In the representative’s written submission dated 26 June 2018 and at the Tribunal hearing the applicant claimed his previous migration agent completed his application online based on answers the applicant provided to him verbally. He claims the previous agent spoke to him in Hindi and failed to properly translate the relevant question by asking the applicant only whether he had ever had a visa cancelled and omitting to ask whether he ever had a visa refused.

16. The applicant submitted a statutory declaration dated 25 June 2018 in which he set out this information. The applicant claimed that as his previous agent did not ask the question correctly, the applicant mistakenly believed the question only related to visa cancellations and not refusals. He declared he would have answered ‘yes’ and disclosed his Subclass 572 visa refusal if the question had been asked properly. The applicant also declared he was not given a physical copy to inspect prior to lodgement and he had relied wholly on the agent.

17. The student visa that is the subject of this review was refused by the Department on 8 November 2017. Prior to the refusal, on 25 October 2017 the applicant was invited to comment on adverse information in relation to his incorrect answer to the relevant question. The applicant provided a response on 6 November 2017. At that time the applicant claimed the error came about for two reasons. The first reason was that he was confused about the timing of his previous visa refusal because around the same time he received a Notice of Intention to Consider Cancellation which was not pursued and he believed he had cleared his previous refusal problem and did not have an adverse visa history. The second reason was that the applicant was confused by the wording of the question. In his response to the Department the applicant states:

    When I read the question I tried to break it down to understand it so I can provide an accurate response to that, obviously because I have history of visa refusal and notice of intention to consider cancellation. I picked the words application for entry or further stay in Australia which suggests the application for initial entry or further stay as in further extension of visa in Australia. I thought that the refusal was not for further stay or an extension as I understood, but it was to change the subclass of my visa from SC573 to SC572. Also, I strongly believed that successful outcome on the previous cancellation notice which occurred immediately after the visa refusal in October 2014 has cleared me.

18. The applicant had provided a statutory declaration to the Department dated 6 November 2017 in which he stated …the response provided pertaining to my visa history question was a genuine unintentional mistake on my part due to a misunderstanding of the question and my knowledge about the events that took place in relation to my visa history.

19. The Tribunal was concerned the applicant had provided different reasons to the Department for the incorrect answer to the relevant question from that given to the Tribunal. The evidence to the Tribunal was that the applicant had not read the question himself, his former migration agent completed the application based on the applicant’s answers to verbal questions, the questions had been asked in Hindi and mistranslated, and he had not seen a physical copy of the application prior to its submission. By contrast, the applicant’s response to the Department did not refer to the previous migration agent completing the form or asking the applicant questions in Hindi that were mistranslated. The applicant told the Department that he read the question himself and tried to understand it by breaking it down specifically because of his history of visa refusal and notice of intention to consider cancellation. He then claimed he misunderstood the words because the visa application that was subsequently refused was to change from a Subclass 573 visa to a 572.

20. The applicant’s reasoning in his response to the Department is contradictory and is also not consistent with the reasons provided to the Tribunal. The applicant advised the Department that he thought he had cleared his previous visa refusal problem and did not have an adverse visa history. In the same response to the Department he said he tried to understand the relevant question “obviously because I have history of visa refusal and notice of intention to consider cancellation”.

21. During the Tribunal hearing the applicant was asked about the inconsistency in his responses to the adverse information. He was provided with a copy of his original statement to the Department for reference. The applicant claimed his previous migration agent drafted the response to the Department “to save his skin”. When the Tribunal asked what the applicant meant by that he said the agent had told him “trust me and just sign the letter and you will be out from this situation”. The applicant declared the information he provided to the Tribunal was the correct version of what happened. The applicant was asked why he signed the response to the Department if it was not what occurred. He said the error had happened unintentionally but the agent had drafted the letter. The applicant said his previous agent told him just to correct the record with the Department and they will let you go.

22. The applicant was also asked about his statutory declaration provided to the Department in which he said the incorrect answer was given due to an error on his part in that he misunderstood the question. The applicant repeated that it was the previous migration agent who had mistranslated the words which resulted in a misunderstanding. He said he was in the last stages of his studies and the error had occurred by mistake.

23. The representative submitted the incorrect response to the relevant question did not have an element of fraud and was “an innocent mistake, unintended or accidental matter”. In the representative’s written submission dated 26 June 2018 it was claimed the previous visa refusal may have had adverse consequences for the applicant but his personal circumstances would have outweighed this and been immaterial to the delegate. It was claimed the applicant had an otherwise untarnished migration history. The Tribunal has considered these claims but is not satisfied the applicant had an untarnished visa history that meant the correct answer to the relevant question would have had no bearing on the decision regarding his visa. As stated by the representative in the written submission of 26 June 2018, the applicant had previously withdrawn from his Bachelor degree and arranged enrolment in a vocational course, in breach of his Subclass 573 visa conditions that required him to maintain enrolment in the higher education sector.

24. During the hearing the representative told the Tribunal that upon receiving the natural justice letter from the Department, the first thing the applicant did was to submit a Notification of Incorrect Answer to amend the record. It was claimed this was indicative of someone who made an accidental error and wanted to correct the mistake. It was submitted that while the answer to the relevant question was incorrect, the element of fraudulent intent was not present and that it all came down to whether it was ‘purposely untrue’. The representative suggested the previous migration agent may have pressured the applicant into providing the response to the Department that differed from that submitted to the Tribunal. It was claimed the applicant had just lapsed in his due diligence in following the instructions of the former agent. The Tribunal does not accept this is likely to have occurred. The applicant claimed he was told to sign the documents to the Department in order for the migration agent to “save his skin”.  However, the former migration agent could have simply denied misinterpreting the question to the applicant, rather than pressuring him to sign an explanation to the Department that was not true.  

25. While it is accepted that innocent errors are not the focus of the relevant public interest criteria, in this case the Tribunal is satisfied the information was purposely untrue and was deceptive. The Tribunal does not accept the applicant’s claims in his response to the Department’s invitation to comment that because the Department held the information about his prior visa refusal, and because (the applicant claims) a ‘yes’ answer would not have made any difference; it was obviously a genuine mistake. The correct answer to the question was relevant to the Department’s assessment of the application which is why it is included on the application form. As stated above, the Tribunal does not consider the provision of misleading information occurred due to a genuine mistake.

26. The applicant’s responses to the Department and to the Tribunal are inconsistent, not credible and therefore cannot be relied on. The applicant was prepared to sign statements that he either knew to contain false information, or having no regard to the accuracy of their content. If the applicant did read the relevant question himself it is not credible that he misunderstood it since he is well educated, has a good command of English, (having not needed the interpreter during the hearing) and according to his statement to the Department, was well aware of his own visa history. If as he claimed to the Tribunal he never personally read the question but had it read and incorrectly interpreted to him, the applicant should have checked the application was correct given it was his responsibility to do so and knowing he had a previous visa refused. The Tribunal considers there was an element of deception in this case.

27. 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. The definition in cl.4020(5)(b) focuses upon the materiality of the information and applies to information which goes to a factor which will or might determine the visa application. In this case the applicant provided a false and misleading response to a question relating to his visa history in Australia which was a criterion which may have determined the outcome of his visa application.

28. Having weighed the evidence in this case, the Tribunal finds the applicant has given, or caused to be given, to the Tribunal, information that is false or misleading in a material particular in relation to the application for the visa. The information was false or misleading in a material particular because it was relevant to the criteria the Minister may consider when making a decision on an application, whether or not the decision was made because of that information.

29. Therefore, the applicant does not meet PIC 4020(1).

    Should the requirements of PIC 4020(1) or (2) be waived?

30. 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 r.1.03), 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.

31. 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.

32. The applicant did not make any submissions regarding 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 PIC 4020(1) should not be waived.

33. On the basis of the above, the applicant does not satisfy PIC 4020 for the purposes of cl.500.217.

34. There is no evidence the applicant meets the criteria for any other subclass within the class of visa sought.

    DECISION

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

    Wendy Banfield
    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.

    …

    Migration Act 1958

    s.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. 

    …