Vishav Rana (Migration) - [2025] ARTA 928

VISHAV RANA (MIGRATION) [2025] ARTA 928 (8 APRIL 2025)
DECISION AND
REASONS FOR DECISION
Applicant:Mr Vishav Rana
Respondent:  Minister for Immigration and Multicultural Affairs
Tribunal Number:  2320208

Tribunal:General Member F Russo
Place:Sydney
Date: 8 April 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 500.217 of Schedule 2 to the Regulations

Statement made on 8 April 2025 at 5:15pm
CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – Federal Circuit and Family Court remittal – bogus document or false information in relation to previous student visa application – university results – departmental investigations found discrepancy between mark sheet and actual result – supporting documentation and tribunal’s investigations – verification by university and online result consistent with claimed mark – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5(1), 65, 359A, 376(1)(a), (2)
Migration Regulations 1994 (Cth), Schedule 4, criterion 4020(1), (5), Schedule 2, cl 500.217(1)
CASES
Arora v MIBP [2016] FCAFC 35
Batra v MIAC [2013] FCA 274
Sun v MIBP [2015] FCCA 2479
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 30 November 2021 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 26 April 2021. 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 (Cth) (the Regulations) because the delegate considered the applicant had provided, or caused to be provided, a bogus document or false or misleading information in relation to the applicant’s previous Student visa application. The document in question was the applicant’s results in the Bachelor of Commerce (Professional) Part III (Semester VI) from Punjabi University, Patiala, dated 18 December 2017, which stated that the applicant had obtained a score of 34 in Contemporary Accounting. The delegate’s reasons for decision state that a Departmental officer had conducted an investigation to confirm if the education document was genuine. The delegate’s reasons state that the Departmental officer found that there was a discrepancy between the claimed score of 34 in Contemporary Accounting and the actual score the applicant had received in this unit.
The delegate’s reasons for decision record that on 28 July 2021, the Department gave the applicant an opportunity to comment on information about the suspected bogus document. The delegate’s reasons state that the applicant did not provide a written response, but note that on 3 August 2021 and 31 August 2021, the applicant provided the Department with certified copies of mark sheets issued by…

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 Vishav Rana (Migration)

Details

AGLC: Vishav Rana (Migration) [2025] ARTA 928
Case: [2025] ARTA 928
Decision Date: 8 April 2025

CaseChat Overview and Summary

Vishav Rana sought judicial review of a decision concerning his application for a Student (Temporary) (Class TU) visa, subclass 500. The Federal Circuit and Family Court was tasked with reviewing whether the applicant met the requirements of Public Interest Criterion 4020, specifically whether there was evidence that he had provided false or misleading information or a bogus document in relation to his visa application or a previous visa held within the past 12 months. The court had to consider the definitions of a bogus document and false or misleading information, and whether these applied to the applicant’s case. Additionally, the court examined whether the applicant satisfied the identity requirements and whether there had been any previous visa refusals due to failures to meet these criteria.

The court found that the applicant did not provide false or misleading information or a bogus document, as defined in the Migration Act 1958 and the Migration Regulations 1994. The university verified the applicant’s results, and these matched the claimed marks. The court noted that the definition of a bogus document did not require relevance to a visa criterion, unlike false or misleading information. The court concluded that the applicant met Public Interest Criterion 4020 and that the decision to refuse his visa application should be set aside. Consequently, the matter was remitted for reconsideration, with the court confirming that the applicant met the criteria for a Subclass 500 (Student) visa.

The Federal Circuit and Family Court remitted the decision to the original decision-maker for reconsideration, ordering that the applicant meets the criteria for a Subclass 500 (Student) visa. The court emphasised the importance of the applicant’s compliance with the visa application requirements and the need for a thorough review of the evidence provided, including the verification of academic results by the university. The court’s decision highlighted the necessity for accurate and truthful information in visa applications and the impact of discrepancies on the applicant’s eligibility.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

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 500.217 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). 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.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 of Schedule 2 to the Regulations Date(s) of hearing: 3 April 2025Representative for the Applicant: Mr Rakshit Sawhney (MARN: 2318110)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

Full text does not contain this section.