Salon (Migration) [2025] ARTA 1025 (20 May 2025)
Decision and			
Reasons for Decision

Applicant:	Mr Joel Rumawak Salon
Respondent:	Minister for Immigration and Multicultural Affairs
Tribunal Number:	2315234
Tribunal:	General Member T. Quinn
Place:	Melbourne
Date:	20 May 2025
Decision:	The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.

Statement made on 20 May 2025 at 1:17pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – false and misleading information – undeclared employment – compassionate and compelling circumstances – decision under review affirmed	

LEGISLATION
Administrative Review Tribunal Act 2024 (Cth), s 106
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth)
Migration Act 1958 (Cth), ss 5(1), 65, 338, 347
Migration Regulations 1994, Schedule 2 cls 500.211, 500.212, 500.217; Schedule 4, Public Interest Criterion 4020; r 1.03

CASES
“T” v Minister for Immigration and Multicultural Affairs [2000] FCA 467
Chand v Minister for Immigration and Ethnic Affairs (unreported, Federal Court of Australia, von Doussa, Moore and Sackville JJ, 7 November 1997)
Kaur v MIBP [2017] FCAFC 184
Minister for Immigration and Multicultural Affairs v Rajalingham (1999) 93 FCR 220
Mudiyanselage v MIAC [2012] FMCA 887
Nejad v Minister for Immigration and Multicultural Affairs [1999] FCA 1827
Nejad v Minister for Immigration and Multicultural Affairs [2000] FCA 741
Plaintiff M64/2015 v MIBP [2015] HCA 50
Sein v Minister for Immigration and Multicultural Affairs (2001) 114 FCR 370
Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALR 347
Trivedi v MIBP [2014] FCAFC 42
Vyas v MIMAC [2013] FCCA 1226
Wang v Minister for Immigration and Multicultural Affairs [2000] FCA 963

Statement of Reasons

application for review
1.  	On 4 July 2023, the applicant applied for a student visa (the visa) to undertake study in Australia (‘the application’).
2.  	On 6 September 2023, a delegate of the Minister for Home Affairs (‘the delegate’) refused to grant the application on the basis that the applicant did not satisfy the requirement not to provide false and misleading information. 
3.  	On 25 September 2023, the applicant applied for a review of the delegate’s decision with the Administrative Appeals Tribunal (‘the AAT’).
4.  	On 14 October 2024, the AAT became the Administrative Review Tribunal (‘the Tribunal’). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (‘the Transitional Act’), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal.  The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT. This decision and statement of reasons is made by the Tribunal.   
5.  	The applicant was represented in relation to the review.
6.  	The applicant was listed to appear before the Tribunal to give evidence and present arguments at a video hearing on 15 May 2025.  
7.  	On 7 May 2025, the applicant responded to the hearing invitation stating he would not participate in the hearing and requested the Tribunal to make a decision on the papers without holding a hearing.  This document is signed by the applicant and dated 5 May 2025.    
Decision without a hearing
8.  	The Administrative Review Tribunal Act 2024 (‘the ART Act’) states that where the only parties are the applicant and a non-participating party to the proceeding, as in this case, the Tribunal may make a decision without a hearing:
a.	where the applicant requests the Tribunal to do so; and
b.	where it appears to the Tribunal that the issues for determination in the proceeding can be adequately determined in the absence of the parties to the proceeding.
9.  	In this case, the applicant was invited to attend a hearing to give evidence and present arguments.  The hearing invitation letter noted that if the applicant requests the Tribunal make a decision without a hearing, and the Tribunal proceeds to make a decision because it considers the issues can be determined in their absence, this does not guarantee the applicant will receive a favourable decision.  This was an opportunity for the applicant to further present their claims and provide further evidence.   The applicant did not do so.  Instead, he consented to a decision being made without appearing and specifically wrote: ‘I request the Tribunal to respectfully decide the case based on the evidence earlier provided’.  It is an unambiguous indication that the applicant did not wish to attend a hearing and requests the Tribunal proceed to make a decision on the material before it, without holding a hearing.  
10.  	I am satisfied that the information provided in the response to hearing invitation form indicates the applicant has made a request that the Tribunal make a decision without holding the hearing of a proceeding within the meaning of section 106(3)(b)(ii) of the ART Act.
11.  	The Tribunal must consider whether it appears that the issues for determination in the proceeding can be adequately determined in the applicant’s absence.  In this case, the issues for determination are whether the applicant meets the PIC 4020 as required by clause 500.217 for the grant of the visa.  More specifically, I must determine:
a.	whether the applicant has given or caused to be given to the Department information that is false or misleading in a material particular in relation to the application for the student visa or a visa the applicant held in the 12 months before the student visa application was made; and
b.	if the answer to paragraph 11(a) is yes, whether compelling or compassionate circumstances exist, within the ambit of PIC4020(4) such that the PIC4020 criterion should be waived.
12.  	I am satisfied that the issues for determination can be adequately determined in the applicant’s absence in this case.  I have available to me the Department file which includes a copy of the applicant’s student visa application and his response to the adverse information put to him by the Department along with submissions filed with the Tribunal regarding the issues for determination.
13.  	The applicant provided a copy of the delegate’s decision to the Tribunal with his application for review.  
14.  	On the information before me, I consider I am able to form conclusions as to whether he meets the PIC4020 criteria or not.  In this regard, I note the recent decision of the President and Deputy Presidents of this Tribunal. making the following observation:
The answer to the question of whether the issues in a proceeding can be adequately determined without a hearing does not turn on whether the Tribunal has sufficient information to determine the case in the applicant’s favour. This interpretation is consistent with the existence of s 106(3)(b)(i) of the ART Act, which empowers the Tribunal to make a decision without a hearing where the decision ‘is wholly in favour of the applicant’. However, limiting the power to make a decision without a hearing under s 106(3) to circumstances where the decision is to be determined in the applicant’s favour would render s 106(3)(b)(ii) redundant. The Tribunal may find that there is sufficient information before it to enable it to adequately determine the issues in the proceeding, yet still determine that there is insufficient evidence to substantiate the applicant’s protection claims.
I consider the same principles apply to cases in the student visa jurisdiction.
15.  	It is for the applicant to satisfy the Tribunal that the requirements of the Act and Regulations have been met. The decision maker is not required to make the applicant’s case. Whilst the concept of onus of proof does not apply to administrative decision making, the relevant facts of the individual case must be supplied by the applicant, in as much detail as necessary to enable the decision maker to properly consider the case that is being put. 
16.  	I have regarded all the information before me, including the Department and Tribunal files, and all information and evidence provided by the applicant to the Tribunal in concluding that the decision to refuse the applicant’s visa should be affirmed.  My reasons follow.
consideration of claims and evidence
Background
17.  	The applicant applied for a visitor visa on 24 January 2023.  In that visa application he declared that he had been employed as a Councillor in the local government unit of Barangay Council from 30 June 2018 until the date of the letter (January 2023) (‘the government job’).  He did not declare employment as a Pet Care business as a driver/sales representative.
18.  	The applicant’s visitor visa was granted on 3 February 2023 and the applicant arrived in Australia in on 6 April 2023 on that visa which expired in July 2023.
19.  	On 4 July 2023, the applicant made the application which is the subject of this review.  He declared a history of previous employment between 2007-2023 in his application form including work as a driver/sales representative for a Pet Care company from 25 June 2021 until April 2023 (‘the pet care job’).  He did not mention the government job in this application.
20.  	The applicant also filed a genuine temporary entrant statement where he specifically lists his employment background on the first page as follows:

I note that this list also does not include the government job.
21.  	Pages 20 and 21 of this application form, under the headings ‘Student declarations’ and ‘Declarations’ (respectively) state (inter alia) ‘Warning: Giving false or misleading information is a serious offence’.  In the latter section, the applicants declare they:
a.	have ‘read and understood the information provided to them in the application’;
b.	have ‘provided complete and correct information in every detail on this form, any on any attachments to it’; and
c.	understand that if any ‘false or misleading information has been provided with this application… the application may be refused and the applicant(s), and any member of their family unit, may become unable to be granted a visa for a specified period of time.’
22.  	On 31 August 2023, the Department sent the applicant a natural justice letter enquiring about the applicant’s employment history and specifically his non-disclosure of the pet care job in his visitor visa application and his non-disclosure of the government job in his student visa application.  This letter set out the relevant PIC4020 provisions and referred to the false and misleading information set out in the preceding paragraphs regarding the non-disclosure of previous employment in his visitor visa application in January 2023 and his student visa application in July 2023.  This letter invited the applicant to comment on this information and to specify if they believed there were any compelling or compassionate circumstances (in the terms set out in the PIC4020 provisions).
23.  	On 1 and 2 September 2023, the applicant responded to the aforementioned natural justice letter:
a.	filing a Notification of incorrect answer form listing the government job stating his reason for incorrect information provision was ‘[h]uman error’;
b.	filing a letter from the office of the Barangay Chairman dated 21 January 2023 in relation to the applicant’s employment at the government job stating that the applicant had been ‘approved vacation leave from April 1-10, 2023 so he can visit Australia’ together with a photocopy of what looks to be an employment identity card for the applicant; and
c.	a letter from the applicant stating that he only declared in the government job in his visitor visa application as it was his primary source of income but he was also working in the pet care job at the same time as the government job and that he failed to declare the government job in his student visa application in an inadvertent mistake.
Has the applicant given, or caused to be given a bogus document, or information that is false or misleading in material particular?
24.  	I refer to and repeat paragraphs 17-23 above.
25.  	Pages 20 and 21 of this application form, under the headings ‘Student declarations’ and ‘Declarations’ (respectively) state (inter alia) ‘Warning: Giving false or misleading information is a serious offence’.  In the latter section, the applicants declare they:
a.	have ‘read and understood the information provided to them in the application’;
b.	have ‘provided complete and correct information in every detail on this form, any on any attachments to it’; and
c.	understand that if any ‘false or misleading information has been provided with this application… the application may be refused and the applicant(s), and any member of their family unit, may become unable to be granted a visa for a specified period of time.’
26.  	The applicant’s work history is relevant to a visitor visa assessment of whether an applicant genuinely intends to remain in Australia temporarily and whether they genuinely intend to leave Australia after their visit.  I consider the government letter dated 21 January 2023 filed by the applicant as set out in paragraph 23(b) would have influenced the decision to grant him his visitor visa.
27.  	The applicant’s work history is also relevant to the criteria to be considered when deciding whether he should be granted a student visa in Australia including in relation to his incentives to return to his home country and the relevance and value any proposed study has to his future employment prospects.
28.  	On 25 September 2023, the applicant filed submissions with the Tribunal repeating the substance of his response to the Department’s natural justice letter as set out in paragraph 23 above and claiming that both the pet care job and the government job were genuine employment, and he has not submitted bogus documents.  He claims in these submissions that it was an inadvertent failure to mention his employment history and not deliberate and was not material to the outcome.  He has filed a new letter from his employer at the government job dated 24 January 2023 which is not contained in the Department file for his student visa application stating that the applicant earns PHP18,875 per month and a letter from his employer at the pet care job stating that his annual wage as a sales associate is PHP312,000.
29.  	I find the applicant’s evidence and submissions difficult to accept.  The applicant left out meaningful aspects of his work history on both his visitor visa application and his student visa application including in his genuine temporary entrant statement.
30.  	Where an applicant is applying for a visa, it is incumbent on them to provide accurate information and provide details or the requirements relevant to the visas.  
31.  	The Federal Court has held that it is not necessary for a visa applicant know of, or be directly involved in, any falsehood for PIC 4020 to be engaged.  However, an element of fraud or deception is necessary in order to attract the operation of PIC 4020.  In that case, Buchanan J states:
it is not necessary… to show knowing complicity by a visa applicant. That would impose an impossible task on those administering the visa system. But it is necessary that the information or document have the necessary quality of purposeful falsity, whether or not the visa applicant can be shown to have knowledge of that fact.
32.  	I consider the applicant knew, at a bare minimum, he had worked in the government job at the time of his student visa application and that he had worked in the pet care job at the time of his visitor visa application.  I do not accept the evidence that the applicant’s failure to disclose the government job in his student visa application form and genuine temporary entrant statement were inadvertent mistakes.  I consider on the evidence before me that it is more likely than not that the applicant did not want his work history to impact his prospects of success in his visa applications and his non-disclosure was either deliberate or recklessly indifferent.  I note the written submissions filed in this regard and have carefully considered them, but I do not find them persuasive. 
33.  	The Tribunal Guidelines in relation to assessing credibility dictate that evidence is to be assessed in its entirety, not just in isolated parts.  The guidelines also state that Members should focus on what is objectively or reasonably believable in the circumstances.  The Tribunal does not need rebutting evidence before it can lawfully find that a particular factual assertion made by an applicant is not made out.  Where evidence is incoherent, vague or lacking the detail or knowledge where greater detail or knowledge might be expected of a person in the applicant’s claimed position, the weight placed on the applicant’s evidence may be limited and the applicant’s credibility may be questioned.  
34.  	False and misleading information provided in relation to previous visa refusals relates to a material particular of a visitor visa and student visa application as set out in paragraph 26 and 27 above.  This information may have been considered and then disregarded by the original decision makers but it is relevant to the criteria that must be considered when making a decision on a visitor or student visa application.  The PIC4020 in Schedule 4 of the Regulations specifically states that ‘information that is false or misleading in a material particular’ means information that is false or misleading at the time it was given and that it was relevant to the criteria the Minister may consider when making their decision, whether or not the decision is made because of that information (emphasis added). 
35.  	Taking the evidence as a whole, I find the applicant has provided false and misleading information within the meaning of Act and Regulations in his visitor visa application and in his student visa application. 
36.  	I find that the applicant does not meet PIC 4020(1). 
Has a visa previously been refused on the basis of a failure to satisfy PIC 4020(1)?
37.  	PIC 4020(2) requires I 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).
38.  	There is no evidence that the applicant has been refused a visa in the relevant period.   
39.  	Therefore, PIC 4020(2) is met.
Should the requirements of PIC 4020(1) or (2) be waived in relation to the First Applicant?
40.  	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 Regulation 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.
41.  	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.  The ordinary meaning of ‘compassionate’ relates to feelings of sympathy, sorrow, pity or concern for others.
42.  	Guidance on circumstances that may amount to compelling or compassionate circumstances may be found in the Explanatory Statement to SLI 2011, No 13 (‘ES’) which introduced PIC 4020, and the Department’s policy guidelines.  While not binding, the Tribunal may have regard to the Department’s interpretation and examples of what may constitute compelling or compassionate circumstances.
43.  	According to the ES it was intended that the granting of the waiver would relate solely to compelling circumstances affecting Australia’s interests, or the compassionate and compelling circumstances affecting the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen, not the interests of the visa applicant.  The types of circumstances that may involve compelling or compassionate reasons for waiving the requirements of PIC 4020 identified in the ES include:
•	family reasons (for example, unexpected serious or fatal family situations over which the applicant had no control, such as the incapacitation or death of a partner or child or another member of the family unit);
•	that family members in Australia would be left without financial or emotional support; and
•	a parent in Australia would be separated from their child (for example, if the child was removed with their non-resident parent and would therefore be subject to an exclusion period).
44.  	In addition, the Department’s guidelines suggest that 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 (noting that gaining employer sponsorship is not considered sufficient grounds for a waiver); or
•	Australia’s relationship with a foreign government would be damaged were the person 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. 
45.  	The policy states that compelling circumstances affecting the interests of Australia would not include circumstances where the non-citizen 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.
46.  	No submissions or evidence has been filed regarding this issue.  
47.  	I am not satisfied that, singly or cumulatively, there are compelling circumstances affecting Australia’s interests, 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 grant of the visa.
48.  	For the above reasons, I am not satisfied that the requirements of PIC 4020(1) should be waived pursuant to PIC 4020(4). 
decision
49.  	The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.

Representative for the Applicant:	Mr Jesus Icao

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 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 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.
…