Tiwari (Migration)
[2017] AATA 2403
•13 November 2017
Tiwari (Migration) [2017] AATA 2403 (13 November 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS: Mr Gautam Babu Tiwari
Mr Nick Basnet
Mrs Reshma Pathak (Basnet)CASE NUMBER: 1713390
DIBP REFERENCE(S): CLF2013/68358
MEMBER:Penelope Hunter
DATE:13 November 2017
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision not to grant the applicants Student (Temporary) (Class TU) visas.
Statement made on 13 November 2017 at 4:40pm
CATCHWORDS
Migration – Student (Temporary) (Class TU) visa – Subclass 572 Vocational Education and Training Sector – Federal Circuit Court Remit – Fraudulent loan documents – Compelling and compassionate circumstancesLEGISLATION
Migration Act 1958, ss 5, 65, 375A
Migration Regulations 1994, Schedule 2, cl 572.224, Schedule 4, cl 4020CASES
Arora v MIBP [2016] FCAFC 35
Batra v MIAC [2013] FCA 274
Plaintiff M64/2015 v MIBP [2015] HCA 50STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW
This is an application for review of a decision made by a delegate of the Minister for Immigration on 5 July 2013 to refuse to grant the applicants Student (Temporary) (Class TU) visas under s.65 of the Migration Act 1958 (the Act).
The applicants applied for the visas on 19 March 2013. Mr Gautam Babu Tiwari is the primary applicant. Mrs Reshma Pathak is his wife and Mr Nick Basnet, his son (the secondary applicants). The applicant applied for the visa in order to undertake a course of study. The secondary applicant sought the visa on the basis of being a member of the family unit of the applicant.
The delegate refused to grant the visas on the basis that the first named applicant (the applicant) did not satisfy the requirements of cl.572.224 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because it was found that the applicant is caused to be given to the Department, in the course of the application, bogus documents.
The applicants sought a review of the decision by the Migration Review Tribunal, and on 3 February 2015 the Migration Review Tribunal affirmed the decision.
The applicants appealed this decision to the Federal Circuit Court and on 22 June 2017 the matter was remitted back to this Tribunal for reconsideration.
In support of this application the applicants have submitted the following documents to the Tribunal:
i.Statement of Account of Bheg Prasad Tiwari from one June 2014 to 22 January 2015.
ii.Evidence of funds transfer.
iii.Statement of academic results, Cambridge International College of the applicant Certificate III in Hospitality (Com commercial Cookery).
iv.Certificate of General English, Cambridge International College issue 21 December 2012.
v.Certificate of Account Balance, Nabil Bank of Bheg PrasadTiwari, dated 23 January 2015.
vi.Character certificate of the applicant.
vii.Tribhuvan University Proficiency Certificate.
viii.Gongabu Savings and Credit Co-operative Ltd, from 13 May 2013 to 22 January 2015.
ix.Sources of income verification.
In a letter of submission dated 29 January 2015, the former agent for the applicants made the following submissions on their behalf (in summary);
i.The father of the applicant was not an educated man and had asked an agent to arrange finance for him as he had adequate security and bank deposits. The income of the applicant’s father in 2013 was 1,955,000 NPR or approximately $21,580 from farming (maize, mustard, Paddy and other products), a bus operation and landlord rentals.
ii.The father of the applicant had sufficient assets to borrow and also maintains bank account in financial institutions other than Nabil Bank and SBI. Additional accounts were maintained with Kumari Bank and Gongabu Savings and Credit Co-operative Ltd. There was no need for the applicant’s parents to provide any bogus documents.
iii.The applicant’s parents had transferred money to the Nabil Bank to demonstrate their financial capacity is to the Tribunal. Normally the funds are kept in other banks as the Nabil Bank and SBI do not provide sufficient returns on money deposits.
The applicant and Mrs Reshma Pathak appeared before the Tribunal on 8 November 2017 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Nepali and English languages.
The applicant confirmed at the hearing that he had not submitted any additional documents in support of his application and that he wished for the Tribunal to have regard to the information previously provided to the Migration Review Tribunal in 2015. The applicant also sought an extension of a further 14 days to submit an offer of enrolment and evidence of further funds held by his father. The Tribunal refused the request for an extension of time to submit these documents, because it was considered that the applicant had already had sufficient time to submit documents. Further, the Tribunal was not satisfied that the proposed material regarding any potential future enrolment was relevant to the issues to be determined upon review.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
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.572.224 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: cl.4020(1); and
·the applicant and each member of the family unit has not been refused a visa because of a failure to satisfy cl.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: cl.4020(2) and (2AA); and
·the applicant satisfies the Minister as to his or her identity: cl.4020(2A); and
·neither the applicant nor any family unit member has been refused a visa because of a failure to satisfy cl.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: cl.4020(2B) and (2BA).
The requirements in cl.4020(1) and (2) can be waived if there are certain compelling or compassionate reasons justifying the granting of the visa: cl.4020(4). However, this waiver does not apply to the identity requirements in cl.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?
The term ‘information that is false or misleading in a material particular’ is defined in cl.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 cl.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 cl.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: cl.4020(3). It also applies whether or not the document or information was provided by the applicant knowingly or unwittingly.
According to s. 5 (1) of the Act a 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.
The Tribunal drew to the attention of the applicant that a certificate pursuant to s. 375A of the Migration Act 1958 had been issued by the Department, in relation to folio 68 of file number CLF2013/68358, specifically the names and contact details of bank officials and department personnel contained in the case notes would be contrary to public interest because if disclosed could have adverse consequences for those officers. At the hearing the applicant was provided with a copy of the certificate. The applicant was invited to make any submissions regarding the validity of the certificate and the information it contained and was advised that if further time was required to consider the certificate, he could request it and the Tribunal will consider the request. The applicant made no submissions in respect of the documents covered under the 375A Certificate. The Tribunal explained to the applicant that it had determined the certificate was valid and that it would put to him the gist of the information covered by the certificate in a manner which would not identify the source of the information.
The substance of the information was contained in the decision of the delegate, submitted by the applicant to the Migration Review Tribunal with his application for review. Specifically, it related to documents purporting to be a Nabil Bank education loan with funds of NPR 5,736,780 and the Nabil Bank letter verifying amount of NPR 5,736,780. Further they relate to when the Department sent these documents to the overseas post for verification, and the bank was contacted to verify the information and that it was found that the Nabil Bank documents were fraudulent.
The applicant did not dispute to the Tribunal that the documents were fraudulent. The applicant explained that his father was not educated, and he later claimed that his father was illiterate. He told the Tribunal that his father had obtained an agent to get the relevant financial documents and it was claimed that the agent had provided the documents. The applicant claimed that his father was not sure what had happened. At that time his father had money with other banks, but for the visa it had to be placed in institutions like the Nabil Bank. The applicant confirmed that at the time the documents were issued that his father did not hold and account with the Nabil Bank. The Tribunal discussed with the applicant the subsequent documents from the Nabil Bank issued to his father in January 2015, and submitted to the Migration Review Tribunal. The applicant confirmed that this was an account later opened by his father.
The applicant claimed that his father had sufficient assets at the time to demonstrate the relevant funds for the visa. He maintained that this had been supplied to the agent in Nepal and that neither he, nor his father, were sure what the agent did. The applicant further submitted that he was not aware of any problems with the documents until advised by the Department.
The Tribunal has considered the evidence and submissions of the applicant and Mrs Pathak. The information contained in the relevant documents, dated 10 April 2013 and 12 April 2013, purports to be issued in respect of a guaranteed education loan to Mr Bheg Prasad Tiwari, by the Nabil Bank for the study by the applicant in Australia. Based on the investigations undertaken by the Department and, the evidence and concessions of the applicant, the Tribunal is satisfied on the information before it that the education loan did not exist. Therefore, the Tribunal finds that the documents are counterfeit because were not validly issued by the Nabil Bank. Consequently, the Tribunal reasonably suspects that the applicant has given a bogus document as defined in s. 5(1) of the Act in relation to the visa application.
The Tribunal has considered whether the information and document was provided inadvertently. That is whether the information was purposely untrue rather than just innocent or unintended. The applicant has claimed that he did not know of the origins of the document and also due to his father’s limited English, education and literary, his father had relied heavily on an agent. It is not necessary for the applicant to have been engaged in any falsehood for PIC 4020 to be engaged. However there must be an element of fraud or deception by some person. The Tribunal is satisfied, from the evidence provided by the applicant that the applicant’s father did not have an account or loan with the Nabil Bank at the time the documents were created. Further the Tribunal is satisfied from the enquiries by the Department that the Nabil Bank did not issue the documents. The Tribunal is satisfied that in providing the documents to the applicant’s father, their agent in Nepal would reasonably have known this and that the documents were purposely untrue. The Tribunal is satisfied that there was an element of fraud or deception in the creation and provision of the documents.
Therefore, the applicant does not meet cl.4020(1).
Has a visa previously been refused on the basis of a failure to satisfy cl.4020(1)?
Clause 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 cl.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: cl.4020(2AA).
There is no evidence before the Tribunal that ant of the applicants have been refused a visa in the relevant period because of failure to satisfy cl.4020(1).
Should the requirements of cl.4020(1) or (2) be waived?
The requirements of cl.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 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.
The Department provides guidance to its officers through the Procedures Advice Manual (PAM). These guidelines are not binding on the Tribunal but regard may be had to them when they’re not in conflict with the legislation.
Under PAM3 there may be compelling circumstances affecting the interests of Australia if:
- Australia’s trade or business opportunities would be adversely affected were the person not granted the visa (Note: under policy, gaining employer sponsorship is not considered sufficient grounds for a waiver)
- Australia’s relationship with a foreign government would be damaged if the person is not granted the visa or
- Australia would miss out on a significant benefit that the person could contribute to Australia’s business, economic, cultural or other development (for example, a special skill that is highly sought after in Australia) if the person was not granted the visa.
It is Departmental policy that compelling circumstances affecting the interests of Australia would not include circumstances where the applicant merely claims that, if granted the visa, they would:
- work and pay taxes in Australia
- pay fees to an education provider or
- spend money in Australia.
Further under PAM 3 in relation to compassionate or compelling circumstances, the circumstances for consideration must be of compassionate or compelling nature in the way they affect the Australian citizen, permanent resident, or eligible New Zealand citizen. Compassionate or compelling circumstances that affect the applicant are not relevant for consideration unless they also directly affect an Australian citizen, permanent resident or eligible New Zealand citizen. To waive the requirements of any or all of PIC 4020(1) and/or (2), the applicant’s circumstances must have a compelling or compassionate element particular to that individual case beyond those usually present in that visa caseload.
The applicant submitted that if he was given the opportunity to study then once he had obtained his qualifications he could start up a business that could provide economic benefit. He confirmed however that he had not been studying since the visa refusal in 2013, as he wanted to get a proper visa sorted out in case he had to return to Nepal. The Tribunal was not satisfied that this potential business would provide compelling circumstances affecting the interests of Australia.
Mrs Pathak also submitted to the Tribunal that with the granting of the visa to the applicant he would be required to pay fees, and this would provide an economic benefit to the Australian community. Additionally, they had been paying fees for their son, Mr Nick Basnet, to attend an Australian government school in the sum of approximately $8,000 per year. It was submitted that this money was going to the Australia government. The direction included in PAM3 specifically identifies that compelling circumstances affecting the interests of Australia were not include circumstances where the applicant merely claims that they would pay fees to an education provider and spend money in Australia. The Tribunal notes that it is not bound by the policy directions contained in PAM3. However, the Tribunal considered the expending of money in Australia while studying for living and education expenses are not circumstances any different to any other applicant on a student visa. They are therefore not considered at the level of compelling circumstances that affect the interests of Australia, or compassionate or compelling in circumstance that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen that justify the grant of the visa.
Having considered all of the evidence, including the factors raised both singularly and cumulatively, the Tribunal is not satisfied that there are compelling circumstances that affect the interests of Australia or compelling or compassionate circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen that justify the grant of the visa. Therefore the Tribunal is not satisfied that the requirements of PIC 4020(2) should be waived.
Therefore the requirements of cl.4020(1) or (2) should not be waived.
On the basis of the above, the applicant does not satisfy PIC 4020 for the purposes of cl.572.224.
As the Tribunal has found that the applicant in this case has not satisfied clause 572.223, it follows that the secondary applicants, who have applied as a member of the applicant’s family unit, cannot be a visa under clause 572.322.
DECISION
The Tribunal affirms the decision not to grant the applicants Student (Temporary) (Class TU) visas.
Penelope Hunter
MemberATTACHMENT
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.
…
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
Legal Concepts
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Judicial Review
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Procedural Fairness
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Statutory Construction
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Natural Justice
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