DECISION:The Tribunal affirms the decision not to grant the applicants Student (Temporary) (Class TU) visas.
Statement made on 03 August 2023 at 12:01pm
CATCHWORDS MIGRATION –Student (Temporary) (Class TU) visa – subclass 500 (Student) visa – false or misleading information– Ms Weng’s identity could not be adequately verified – relationship breakdown – Mr Xue is not a member of the family unit of a person who holds a student visa – Ms Weng has given, or caused to be given, to the Minister and/or an officer bogus documents – failed to meet the criteria in PIC 4020(1) – requirements of PIC 4020 can not be waived – no compelling circumstances – decision under review affirmed
This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 23 March 2022 to refuse to grant the applicants, Huiwen Weng and Shuowen Xue, Student (Temporary) (Class TU) visas under s.65 of the Migration Act 1958 (the Act).
Ms Weng and her then de facto partner, Mr Xue, applied for the visas on 11 September 2020. At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). Ms Weng applied for the visa to undertake study in Australia. Mr Xue applied for the same visa as a member of Ms Weng’s family unit. Neither Ms Weng nor Mr Xue claim to meet the criteria for a Subclass 590 (Student Guardian) visa. The criteria for the grant of a Subclass 500 (Student) visa are set out in Part 500 of Schedule 2 to the Migration Regulations 1994 (the Regulations). The delegate refused to grant the visas on the basis that Ms Weng does not satisfy the requirements of cl.500.217 because he was not satisfied that Ms Weng meets Public Interest Criteria (PIC) 4020 in Schedule 4 to the Regulations. The delegate found that Ms Weng’s identity could not be adequately verified so she did not meet PIC4020(2A). That decision was provided to the Tribunal by Ms Weng with the application for review. Ms Weng and Mr Xue are represented in relation to the review by their registered migration agent, Ms Jie Zhan.
On 16 March 2023, the Tribunal invited Ms Weng and Mr Xue to a hearing to be held on 5 April 2023. The hearing invitation was sent to Ms Zhan as their authorised recipient in accordance with s.379G of the Act. The invitation included a Response to hearing invitation form requesting confirmation of who would attend the hearing. On that form, returned to the Tribunal…
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 Weng (Migration)
Sign in free to access the full text
Details
AGLC
Weng (Migration) [2023] AATA 3055
Case
[2023] AATA 3055
Decision Date
CaseChat Overview and Summary
This matter concerned an appeal by Ms Weng against a decision to refuse her Student (Temporary) (Class TU) visa, subclass 500. The primary dispute revolved around whether Ms Weng had provided bogus documents to the Minister or an officer in relation to a previous visa application, thereby failing to satisfy the criteria under Public Interest Criterion (PIC) 4020(1). The decision was made by the Tribunal.
The legal issues before the Tribunal were whether Ms Weng had given, or caused to be given, to the Minister or an officer a bogus document or information that was false or misleading in a material particular in relation to her application for the visa, or a visa she held in the 12 months prior to the application. The Tribunal was also required to consider whether the identity requirements under PIC 4020(2A) were met, and whether any waiver provisions under PIC 4020(4) were applicable.
The Tribunal found that Ms Weng had provided bogus documents, specifically NIC *3026 and other 2018 documents, in relation to her 2018 visa application. Despite Ms Weng's claims of being misled by a lawyer and her assertion that her actions were not intentional, the Tribunal concluded that her conduct demonstrated a reckless indifference to the truthfulness of the information provided. This conclusion was based on the evidence as a whole, including a statement from her mother which, while offering a new explanation for the submission of fraudulent documents, ultimately supported the finding of Ms Weng's involvement. The Tribunal determined that the requirements of PIC 4020(1) could not be waived in this instance, as there were no compelling circumstances affecting the interests of Australia or compassionate or compelling circumstances affecting an Australian citizen, permanent resident, or eligible New Zealand citizen that justified granting the visa.
The Tribunal affirmed the decision under review, finding that Ms Weng failed to meet the criteria in PIC 4020(1).
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
The issue in this case is whether Ms Weng provided bogus documents to the Minister or an officer thereby failing to meet PIC4020(1). For the following reasons, the Tribunal has concluded that decision under review should be affirmed.CONSIDERATION OF CLAIMS AND EVIDENCE Broadly speaking, PIC4020, which is set out in the attachment to this decision, 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: PIC4020(1); · the applicant or a family member has not been refused a visa because of a failure to satisfy PIC4020(1) during the period starting three 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: PIC4020(2) and (2AA);· the applicant satisfies the Minister as to his or her identity: PIC4020(2A); and· the applicant or a family member has not been refused a visa because of a failure to satisfy PIC4020(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: PIC4020(2B) and (2BA). The requirements in PIC4020(1) and (2) can be waived where there are 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: PIC4020(4). However, this waiver does not apply to the identity requirements in PIC4020(2A) and (2B).Does Ms Weng Satisfy the Criteria in PIC4020(1) and/or (2A)? Ms Weng was born on 12 December 1999 in Fujian, China and is 23 years of age. Her mother is Zhulin He, born 14 October 1978, and her father is Yibin Weng, born 25 August 1976. They divorced in 2011 and both live in China. She has one sister, Huiqi Weng born 4 March 1997, who also lives in China. At the time of application, Ms Weng was in a de facto relationship with Mr Xue, born on 31 August 1999, also from Fujian Province in China. Mr Xue first arrived in Australia on 20 July 2016 as the holder of a Student visa. The couple met and started their relationship while studying in Australia. They registered a domestic relationship in Victoria on 29 April 2019. Ms Weng provided evidence that on 19 January 2023 she lodged a Relationship Revocation application with the Victorian Registry of Births, Deaths and Marriages. Although there is no evidence before the Tribunal that the registration of their domestic partnership was ever actually revoked, both Ms Weng and Mr Xue claim the relationship has ceased. For reasons mentioned below, the Tribunal has some doubts whether Ms Weng and Mr Xue were ever genuine de facto partners as defined in s.5CB of the Act. However, ultimately it is not key to its decision, so due to its complexity the Tribunal does not make a finding on the question of whether Ms Weng and Mr Xue were, at the time of application, in a de facto relationship.
Decision
Reasons for decision
That she told the Tribunal she realises she was wrong and what she did previously was not correct, but she did not do it on purpose and it was not intentional does not assist her. Her claim that she trusted the ‘other lawyer really much’, that her family thought he was a nice person and ‘because the lawyer can help us I just authorise the lawyer and he can do to help me. But I was wrong for the whole thing’ does not change the fact that the evidence as a whole shows a reckless indifference in relation to the 2018 application. It indicates that there was at least implicit authority by Ms Weng, and given the constantly shifting evidence possibly an express authority, to do whatever was necessary to assure the successful grant of the visa in exchange for a payment of CNY200,000.Conclusion The Tribunal finds, as conceded by Ms Weng, that NIC *3026 and the other 2018 documents were provided to the Department with the 2018 application. Based on the evidence above, it further finds that NIC *3026 and the other 2018 documents are bogus documents within the meaning set out in s.5(1) of the Act. In determining whether Ms Weng gave the bogus documents or caused bogus documents to be given to the Department, the Tribunal has considered a statement provided by Ms Weng from her mother, Zhulin He, dated 18 April 2023. In that statement, written in Chinese and English, Ms He claims ‘by chance, I happened to meet a man who claimed himself as an agent and he helped many people getting Australian student visas successfully. As he was a reputable person in our hometown, I trusted him and introduced him to Huiwen consultation.’ This is yet a further variation on the story about Bojiao. She refers to the CNY200,000 and the genuine documents given by Ms Weng stating that as agreed they paid the cash when the visa was granted. After Ms Weng’s current application was refused, Ms He claims that she asked around and was told that the reason fraudulent documents were provided instead of the genuine documents was for a ‘better chance to get the visa approval as it was a norm that people from Fuqing City, Fujian had very least chance to get visa approval.’ She also states that because ‘he didn’t have any licence as he claimed, he couldn’t put himself as an agent in her visa application. Instead, he created an email account by using Huiwen’s name, an email account that Huiwen was never had any access.’ The Tribunal accepts that this is finally the most likely accurate account of what has occurred and the reason why Bojiao submitted bogus documents rather than the genuine documents, which do identify that Ms Weng’s Sanshan Town address is in Fuquing City, Fujian Province. However, for the reasons set out, the Tribunal finds that Ms Weng’s reckless indifference to how she acquired the 2018 Student visa means that she gave the bogus documents, or at least caused the bogus documents to be given, to the Department in relation to the 2018 application. That includes the Minister and an officer, being an officer of the Department or the delegate.