Teng (Migration)

[2020] AATA 3624

Teng (Migration) [2020] AATA 3624 (27 August 2020)

DECISION RECORD

DIVISION:  Migration & Refugee Division

APPLICANT:  Mr Thiam Weng Teng

CASE NUMBER:  1922717

DIBP REFERENCE(S):  BCC2019/1413023

MEMBER:  Margaret Forrest

DATE OF ORAL DECISION:  27 August 2020 DATE OF WRITTEN STATEMENT:  9 September 2020 PLACE OF DECISION:  Brisbane

DECISION:  The Tribunal sets aside the decision not to grant the applicant a Student (Temporary) (Class TU) visa and finds 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

The Tribunal substitutes a decision not to grant the applicant a Student (Temporary) (Class TU) visa as the applicant does not meet the requirements of cl 500.211(a) of Schedule 2 to the Regulations.

Statement made on 09 September 2020 at 9:00am

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – false or misleading information – no travel history provided – no access to information in previous passport – attempt to locate passport – no purposeful falsity – not enrolled in registered course – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 5(1), 65, 359AA
Migration Regulations 1994 (Cth), r 1.03, Schedule 2, cls 500.111, 500.211(a), cl 500.217(1), Schedule 4, criterion 4020(1)

CASES
Arora v MIBP [2016] FCAFC 35
Batra v MIAC [2013] FCA 274
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 29 July 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 20 March 2019. 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 (the Regulations) because the applicant did not meet Public Interest Criteria (PIC) 4020(1) of PIC4020.

1. The Tribunal gave its decision on the review at the conclusion of the hearing held on 27 August 2020. The following are the reasons for that decision.

1. The applicant appeared before the Tribunal on 27 August 2020 to give evidence and present arguments.

1. The Tribunal exercised its discretion to hold the hearing by telephone. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.

1. For the following reasons, the Tribunal has concluded that the decision under review should be set aside and substituted with a decision that the visa is refused because the applicant does not meet the requirements of cl.500.211.

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.

1. While the determinative issue before the delegate was whether the applicant met PIC4020(1) of PIC 4020, the determinative issue before the Tribunal changed to become whether the applicant was enrolled in a course of study.

Enrolment (cl.500.211)

1. 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 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 Tribunal asked the applicant is he was presently enrolled in a course of study and he said no. The applicant said that he was presently back in his home country, Malaysia.

1. The Tribunal told the applicant that the determinative issue before the Tribunal had changed from whether he satisfied PIC4020 to whether he was enrolled in a course of study.

1. The day before the hearing, the Tribunal emailed the applicant a copy of his Provider Registration International Student Management System (PRISMS) records. This email indicated that the Tribunal may refer to this document at the hearing. The applicant confirmed that he received the PRISMS records and that he had them before him during the hearing.

1. Adopting the procedure in section 359AA of the Act, the Tribunal put to the applicant that it had on the Tribunal file a copy of his PRISMS records. The applicant confirmed that he had his PRISMS records in front of him. The Tribunal explained that the records were relevant to the review because they showed that he was not presently enrolled in a course of study and that he had not been enrolled in a course of study since 6 December 2019. The Tribunal explained to the applicant the consequences of the Tribunal relying on the information, being that it may mean that the Tribunal forms the view that the applicant does not meet the criteria for the visa for which he has applied. The applicant confirmed that he understood why the information was relevant to the review and the consequences of the Tribunal relying on the information.  The Tribunal advised the applicant that he may seek additional time to comment on or respond to the information and the applicant elected to comment on or respond at the hearing.

1. The applicant said that the records were correct and that he had not been enrolled in a course of study since 6 December 2019.  The applicant said this was because by this time he had completed the equivalent of a Certificate III in Hospitality Management and this gave him the basics. The applicant said that he was not interested in completing the remainder of his course because he was not interested and because he did not have the goal of opening a restaurant in Brisbane. The applicant wants to open a restaurant in Malaysia.

1. The Tribunal finds there is no evidence the applicant is enrolled in an approved course of study as required for the grant of a student visa. 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. 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.

PIC 4020 (cl.500.217(1))

1. The secondary issue in this review is whether the visa applicant meets Public Interest Criterion 4020 (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).

1. 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?

1. 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.

1. 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.

1. 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.

1. The Tribunal explained to the applicant that the delegate of the Minster has refused to grant him a student visa because the delegate was not satisfied that PIC4020(1) was met. The Tribunal explained that the delegate was satisfied that the applicant had provided information that was false or misleading in a material particular in relation to the student visa application (the relevant information).

1. In the delegate’s decision, the delegate describes the relevant information as follows. Upon lodgement of their Student (Temporary) (Class TU subclass 500) visa application, the applicant was asked:

“Have any of the applicants visited any countries in the past 10 years? Include:

-    Work or study outside your usual country of residence

-    Holiday/leisure trips

-    Business

-    Military deployment

-    Visits back to your usual country of resident if living away”

1. The applicant responded: “No”. Departmental records show that since 2 October 2010, the applicant has departed Australia on 12 occasions. The applicant was provided with 28 days to provide comment on the suspected ‘non-genuine’ information supplied to the Department. The invitation to comment was sent to the applicant on 22 May 2019. On 17 June 2019, the following response was provided to the Department:

“I recently changed my previous passport to the E-passport. However, I used my previous passport and travelled to various countries for holiday during my studies in Australia. I did not realise I need to attach all my travel records under my previous passport”.

1. The Tribunal told the applicant that if the Tribunal affirmed the delegate’s decision in relation to PIC4020(1), the applicant would be prevented from applying for certain types of visas for three years from the date of the delegate’s decision (from 29 July 2019).

1. It was conceded by the applicant that the relevant information he provided to the Department about his travel history was incorrect.

1. The applicant said the he had changed to new passport in July 2018.  The applicant said that soon after he received his new passport, he travelled back to Australia and started his culinary course. The applicant said at that time, he had misplaced his old passport in Malaysia. He said he was unable to remember all his travel history and he thought that it was not that important for the purpose of his student visa application. The applicant said he urgently needed to apply for his student visa and as a result of these circumstances, he provided the incorrect information to the Department. The applicant said that as soon as he received the email from the Department requesting clarification, he asked his parents to locate his old passport in Malaysia and he submitted his travel history based on this. The applicant said this information was still not complete and this was because he was busy working at the time and did not have his old passport with him in Australia.

1. There is no evidence before the Tribunal to suggest that the applicant’s migration agent was aware that the relevant information was false.

1. The Tribunal is satisfied and finds that the relevant information was both false and misleading as it was incorrect as to the applicant’s travel history over the past 10 years.

1. However, the Tribunal is not satisfied that there was an element of fraud or deception on the part of the applicant or his agent, as required by Trevedi v MIBP [2014] FCAFC 42. The Tribunal accepts the applicant’s explanation as to why the relevant information he provided was incorrect.

1. In making this finding, the Tribunal has take into account Departmental Policy (PAM3) Guidance on PIC 4020 which states in effect, in order to refuse the visa on the basis of PIC4020 it is necessary that the information or document have the quality of “purposeful falsity” whether or not the visa applicant can be shown to have personal knowledge of that fact. In the circumstances where an applicant could explain an innocent mistake, and the delegate believes the applicant’s claims, then it would be open to the delegate to find that there is no purposeful falsity, and that the applicant meets PIC 4020.

1. Therefore, the applicant meets PIC 4020(1).

Has a visa previously been refused on the basis of a failure to satisfy PIC 4020(1)?

1. PIC 4020(2) requires the Tribunal to be satisfied that the applicant and each member of the family unit have not been refused a visa because of a failure to satisfy PIC 4020(1) in the period commencing 3 years before the application was made and ending when the visa is granted or refused. This requirement does not apply to a person who was under 18 at the time the application for the refused visa was made: PIC 4020(2AA).

1. There is no evidence before the Tribunal that the applicant has been refused a visa because of a failure to satisfy PIC 4020(1) in the period commencing 3 years before the application was made and ending when the visa is granted or refused.

1. Therefore, PIC 4020(2) is met.

Has the applicant satisfied the identity requirements?

1. PIC 4020(2A) requires an applicant satisfy the Tribunal as to his or her identity. There is no evidence before the Tribunal to support a conclusion that the Tribunal ought not be satisfied of the applicant’s identity.

1. Therefore, the applicant meets PIC 4020(2A).

Has a visa previously been refused on the basis of a failure to satisfy PIC 4020(2A)?

1. PIC 4020(2B) requires that neither the applicant nor any family unit member have been refused a visa because of a failure to satisfy the identity requirements in PIC 4020(2A) during the period starting 10 years before the application was made and ending when the visa is granted or refused. This requirement does not apply to a person who was under 18 at the time the application for the refused visa was made: PIC 4020(2BA).

1. There is no evidence before the Tribunal the applicant has been refused a visa because of a failure to satisfy the identity requirements in PIC 4020(2A) during the period starting 10 years before the application was made and ending when the visa is granted or refused.

1. Therefore PIC 4020(2B) is met.

Concluding paragraphs

1. On the basis of the above, the applicant does satisfy PIC 4020 for the purposes of cl.500.217(1).

DECISION

1. The Tribunal sets aside the decision not to grant the applicant a Student (Temporary) (Class TU) visa and finds 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

The Tribunal substitutes a decision not to grant the applicant a Student (Temporary) (Class TU) visa as the applicant does not meet the requirements of cl 500.211(a) of Schedule 2 to the Regulations.

Margaret Forrest Member

ATTACHMENT

Migration Regulations 1994

Schedule 4

1. (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

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.

…