1420913 (Migration)

[2015] AATA 3014

1420913 (Migration) [2015] AATA 3014 (1 July 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Shahzad Rasool

CASE NUMBER:  1420913

DIBP REFERENCE(S):  BCC2010/166185, BCC2015/565019, BCC2015/565450

TRIBUNAL MEMBER:  David Dobell

DATE:1 July 2015

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for a Skilled (Residence) (Class VB) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 885 (Skilled - Independent) visa:

·Public Interest Criterion 4020 for the purposes of cl.885.224(a) of Schedule 2 to the Regulations

Statement made on 01 July 2015 at 10:08am

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 15 December 2014 to refuse to grant the applicant a Skilled (Residence) (Class VB) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 18 April 2010. The delegate refused to grant the visa on the basis that the applicant did not satisfy the requirements of Public Interest Criterion 4020 (PIC 4020) in respect of cl.885.224(a) of Schedule 2 to the Migration Regulations 1994 (the Regulations).

3. The applicant appeared before the Tribunal by videolink on 14 May 2015 to give evidence and present arguments. The applicant was represented in relation to the review by his registered migration agent, who also attended the hearing.

4. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CLAIMS AND EVIDENCE

5. From the Department movement records, files and evidence before it the Tribunal has made the following chronology:

   • The applicant first arrived in Australia in March 2005 on a student visa
   • He was granted a subclass 485 visa in November 2008
   • He married Arie Mirza (AM) in May 2009
   • She was granted a subclass 485 visa in November 2009
   • She first came to Australia in December 2009
   • The applicants lodged the current visa application on 18 April 2010
   • She departed Australia in July 2011
   • She was granted a visitor visa in November 2011
   • She returned to Australia in late December 2011
   • She departed Australia in September 2013 and has not returned
   • In December 2013 the Department requested they complete their medicals
   • AM did not do this
   • By Form 1022 dated 16 December 2013 the applicant advised the Department that his wife was unwell and may not be able to return to Australia and that providing medical examinations is not possible, and requested that his wife be removed from the visa application
   • On 10 October 2014 the applicant signed a Form 1022, and lodged an “Affidavit” (the October 2014 Affidavit). In this he states he is no longer in a relationship with his wife. No date is given as to the end of the relationship, but states he is withdrawing her from the application as a secondary applicant based on her no longer being his spouse. He claims he has supported her up until then and considered her his wife but that he has not supported her after that time
   • On 5 November 2014 the Department interviews the wife and her parents in Indonesia at a home visit. They all state that the applicant and AM are still married
   • The Department sends the applicant a natural justice letter concerning the evidence from the site visit in November 2014
   • A further longer ‘affidavit’ in response is provided to the Department (the December 2014 Affidavit)
   • No divorce proceedings have begun as yet under Australian law. The Tribunal notes that the applicant has not yet been separated for 12 months, if they did separate in October 2014
   • There has been no Muslim religious divorce as yet

6. The following supporting documentary evidence from persons as to the marriage having come to an end is on the Department file:

   ·Ghulam Rasool (father of applicant), statement undated

   ·Sajjad Rasool (brother of applicant),  statement, undated

   ·Idrice Mahmoud Mian (friend of applicant) statement, undated

   ·Dr Dian Tirza (friend of applicant), statement, undated

7. At the hearing, the applicant stated that he married his wife on 15 May 2009, after first having contact with her on-line in April 2008. He said he came to Australia in 2005 and when he decided to seek permanent residency here he decided to find a wife. He talked to his parents about what he wanted to do and they were agreeable.  His father talked to the wife and her parents before he got married.

8. As to his wife’s movements, he said she came here in 2009 as part of his family, then she left in July 2011, and then returned on 30 or 31 December 2011. They then moved to Brisbane until she returned home in September 2013 and she has not returned.

9. The Tribunal asked the applicant how he let his wife knew that they were no longer a married couple. First it asked when he had decided they were no longer a couple. He said this was between April and August 2014, and that she was not helping herself and, by association, him in getting permanent residency as she would not get the medical test.

10. The Tribunal asked how he made this clear to her, and he said it was a combination of Skype and Whatsapp communications. He then said they had discussions before she left Australia in 2013 about ending the marriage.

11. As to when the Department first asked them to get the medicals, he said this was in November 2013, or early December 2013 when he received notification. The Tribunal noted that his wife had already left the country by then.

12. The Tribunal asked the applicant when the wife’s behaviour started becoming strange or unusual. He said the trouble had already started in early 2011 when in Melbourne. She went to see doctors but wanted to ignore their advice in favour of what she was reading on the internet.  He said a sense of mistrust of doctors developed and she thought he was not doing enough to help her.

13. The Tribunal asked whether she returned home in 2011 to have her parents support her. He said this was the case, and that she then overstayed and came back to Australia in September on a tourist visa. They would have the same arguments then, and later that year they moved to Brisbane purely for her as she said that Melbourne was too cold.

14. The Tribunal asked the applicant when he considered that the marriage was at an end. He said he thought it was really in mid-2013, and that she asked for a divorce in that time.

15. The Tribunal noted that he only advised the Department in October 2014 that the marriage was at an end, and suggested this was inconsistent. He said he could have notified then, but he didn’t. He said that the marriage was indeed in trouble in 2013, but out of feelings and humanitarianism and he did not want to shock her, he did not do this. He said he honestly did not know how to deal with the situation.

16. He said that for 4 weeks in May and June 2014 she would not speak to him. He said he sent messages saying they are heading for divorce and spoke to her father on Skype saying this in August 2014.

17. As to financial support, he said he last sent her money out of humanitarianism on 18 October 2014. He could not recall how much he sent, but that he sent her money monthly and it would not have been more than usual, as he had no job by that time.

18. He said he has not sent her any money since then. As to communications, he has not communicated with her since October 2014 and the only communication was via his brother in December 2014.

19. The Tribunal turned to the Department’s site visit with his wife and asked why she and her parents would say the marriage was not at an end.

20. He said that suggested that he had been in a ‘honeytrap’, and that they had chosen him as someone who was alone and entrapped him for their financial benefit. The Tribunal asked whether he had always had this view. He said it was his view all along, or for some time.

21. He also noted that she had asked for divorce along the way. The Tribunal asked why she would do this if he was the source of financial benefit. He said she was doing what she did for money, and would be saying the marriage is going on for this reason. He noted that her brother would not help the family much so they sought money from him.

22. The Tribunal said that from the evidence before it he seemed to be a sincere and committed Muslim and asked whether he had sought a religious divorce. He said he had not put it ‘into paper’, as they are not communicating. He said he did what was required under the laws of this land.

23. The Tribunal said it understood why he was doing that, but, as he appeared to be a committed Muslim it found it strange that he had not sought a religious divorce by this time.  He said he would have to go to a religious scholar to do this but he had not done this, nor did he pick up the phone to say something like ‘I divorce you’. His view was that he had to go to an Imam to do this but it was not clear on what basis he knew this.

24. The Tribunal suggested to the applicant that the wife and her parents might not think that the marriage was over without there being a religious divorce. He agreed this may be so.

25. The applicant said it was his intention to seek a divorce here, and noted that he had got family law advice in September 2014, and said that he would have been aware by then he has to be separated for 12 months before he can seek a divorce. It asked him what date he would be using to say they separated. He said this would be 18 September 2014, when he rang the court for advice. The Tribunal again said it could not understand why he had not made it clear to the wife that the marriage was at an end, at least for divorce purposes.

26. The Tribunal asked whether he had changed his super policy so that his wife was no longer his beneficiary. He said he had not. As to why not, he said he hadn’t changed it for a long time and he didn’t care that much about it and there was no benefit to him or her. As to wills, he said they did not have these.

27. As to employment, he said he had just finished a contract through an agency and hopes to be employed by QLD police shortly.

28. The Tribunal asked about friends in Australia who knew of his personal situation, and that the marriage is over. He mentioned ‘Idreece’ who was a friend and co-tenant in Melbourne, who he has known since 2005 and speaks to once or twice a month, who knows his situation. There is also his parents and brother who know the full situation.

29. As to other friends, he said that there is Bilal Freeman, who went to Indonesia in 2014. They last talked in October 2014 and he knew they were separated.

30. As to Dr Dian, he said she is a wife of his friend and is a GP. They have kept in contact and she knows his situation also.

31. The Tribunal then turned to the considerations under r.1.15A as a guide to assessing the state of the relationship.

32. In terms of their financial relationship, there are no joint assets or liabilities. The bank account he has is in his name. As noted there has not been any financial support since October 2014.

33. As to the living arrangements, the applicant confirmed there were no children of the relationship. The Tribunal noted that they did not recently live together so this consideration did not have much applicability.

34. As to the social aspects of the relationship, the Tribunal referred to the friends as above and said it wanted a Statutory Declaration from them as to their knowledge of the relationship. Also, it wanted an Affidavit from Pakistan from his father.

35. As to the nature of the commitment, the Tribunal noted that it is claimed they had not contacted each other since October 2014. However, it also noted that he had not removed her from his super policy.

36. The Tribunal noted that, depending on its view of the evidence, it may consider it appropriate to obtain further evidence from the wife as to what has occurred since October 2014. He said the Department is free to contact her.

37. The applicant wished to add that he was a person of integrity, who has been employed with the Victorian Department of Justice, and Children, and the QLD police.

38. As to his character, he said he is a truthful person, as he admitted to police when he was caught driving an unregistered car that he did this, as he was financially overwhelmed. The Tribunal put to the applicant that this also demonstrated that he was someone who was prepared to knowingly break the law. He acknowledged this and said he made a mistake.

39. He said that his immigration police clearance matter has finally been resolved, after 10 months.

40. The representative had nothing further to add. As to why the Department might be taking this action, he said he could not be sure but suggested that because of what had happened in late 2013 in his interactions with the Department over the medicals, there was a perception that the applicant was trying to circumvent the law by removing the wife.

41. The representative also noted that the applicant could have asked the Minister to disregard the medical requirements in 2013 but that he did not know he could do this.

42. The Tribunal gave 2 weeks to provide further evidence as discussed.

43. On 28 May 2015 the representative provided the following documentary evidence as to the relationship:

    ·Pakistan, Affidavit, Ghulam Rasool, 25 May 2015

    ·Australia, Affidavit, Idreece Mian, 21 May 2015

    CONSIDERATION OF CLAIMS AND EVIDENCE

44. The issue in this review is whether the visa applicant meets PIC 4020 as required by cl.885.224(a) 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).

45. 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?

46. 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: Batra v MIAC [2013] FCA 274.

47. 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.

48. 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.

49. The delegate was of the view that the applicant was still in a continuing relationship and in the absence of court proceedings for marriage dissolution or a divorce decree, was not satisfied that his claim that he has separated from his wife was genuine.

50. However, the delegate did not specifically address in the decision record whether the applicant had provided a bogus document or where he had provided information that was false or misleading in a material particular.

51. Certainly, if the Department considered him still to be married, the false or misleading information could not have been in the visa application, as this indicated he was married to AM.

52. The Tribunal suspects that the Department may have considered the October and December 2014 Affidavits, and the October 2014 Form 1022, to be information that is false and misleading in a material particular, but it cannot be sure from the decision record.

53. The issue in any event is whether the applicant and his wife are still spouses, and are still in a married relationship, or whether they have separated, and if so, when.

54. The Tribunal turns to the Act and the definition of ‘spouse’ at s.5F, which states:

    Section 5F Spouse

    (1)      For the purposes of this Act, a person is the spouse of another person if, under subsection (2), the 2 persons are in a married relationship.

    (2)      For the purposes of subsection (1), persons are in a married relationship if:

    (a)      they are married to each other under a marriage that is valid for the purposes of this Act; and

    (b)      they have a mutual commitment to a shared life as husband and wife to the exclusion of all others; and

    (c)      the relationship between them is genuine and continuing; and

    (d)      they:

    (i)      live together; or

    (ii)      do not live separately and apart on a permanent basis.

    (3)      The regulations may make provision in relation to the determination of whether one or more of the conditions in paragraphs (2)(a), (b), (c) and (d) exist. The regulations may make different provision in relation to the determination for different purposes whether one or more of those conditions exist.

    Note:      Section 12 also affects the determination of whether the condition in paragraph (2)(a) of this section exists.

55. Thus, accepting that the applicant and his wife are still legally married, the Tribunal needs to determine whether they have a mutual commitment to a shared life as husband and wife to the exclusion of all others, whether the relationship between them is genuine and continuing, and in the circumstances of this case where they do not live together, whether they are living separately and apart on a permanent basis.

56. Looking at the October and December 2014 Affidavits and the October 2014 Form 1022, it is clear that the applicant is claiming that from October 2014 they do not have a mutual commitment to a shared life as husband and wife to the exclusion of all others, that the relationship between them is not genuine and continuing; and that they are living separately and apart on a permanent basis.

57. The Tribunal must now consider whether it is satisfied as to the applicant’s claims.

58. The Tribunal acknowledges that this is an unusual case. In its experience, the Tribunal is usually reviewing decisions by the Department where its finds that people are not in a married relationship (where a person is trying to obtain a spouse visa based on a claim that another person to whom they may be married is their spouse).

1. Further, this case is unusual in that the wife has not actually failed to meet a medical requirement which might lead the Department to refuse both visas on that basis. Rather, she has either refused to undertake it or has been unable to undertake it, when requested to do so by the Department, and also by her husband, and this has been part of the reason why the applicant claims they are no longer spouses.

2. The Tribunal is mindful that the Department made its decision around 2 months after the applicant claimed they had separated, and just one month after having talked to AM and her family in Indonesia. The Tribunal is looking at this matter now, some 6 months later, and to a degree, with the benefit of hindsight.

3. The Tribunal has before it the oral and written evidence of the applicant and documentary evidence from family and a number of friends, from around the time of separation and Department decision, and also now, stating that in their view the applicant’s marriage had come to an end. The evidence as to how the relationship has come to an end is generally consistent and plausible, being seen as a decline closely associated with the decline in health of AM.

4. The Tribunal also has the applicant’s oral and documentary evidence that there has not been any money sent to AM or her family since that time, nor has he been in contact with her. Of course, it is difficult for the applicant to satisfy the Tribunal that something has not been done.

5. On the other hand, the Tribunal has the evidence obtained by the Department in November 2014, from AM and her family, who state that the relationship has not come to an end.

6. The Tribunal considers that two people can stop being in a married relationship where only one person believes that the relationship has come to an end. The issue of course is whether it is the applicant, or AM, who is telling the truth.

7. What gives the Tribunal concern that the applicant may not be telling the truth is that from his evidence at hearing he has not formally told AM or her family that they are separated and that he is going to divorce her under Australian law, and tied to this, as a committed Muslim he has not taken any action to obtain a religious divorce. Of lesser significance is that she appears still to be a beneficiary of any superannuation policy he has.

8. Having considered all of the evidence though, the Tribunal does not believe it can be satisfied that the applicant was still in a married relationship with AM after October 2014.

9. The Tribunal considers that motive may be relevant here but that it is difficult to determine what the motive of each is in their respective claims. The Department appears to be of the view that the applicant knew that AM would fail her medical assessment, and that his visa application would then also be refused, so he has somehow forced her to go offshore and may have told her not to do the medicals. Then the applicant can claim that they are no longer in a married relationship so he can get permanent residency here.

10. What might happen after this occurs is unclear. In a scenario where he is no longer in a genuine married relationship, he is effectively ‘dumping her’ in her home country. In the alternative scenario, he may try to get her into Australia at some later point as his wife again after he has obtained permanent residency. In the first scenario, it is the applicant acting alone but in the second she is complicit.

11. However, the history of AM’s travel movements reveal that the relationship was a little out of the ordinary by the time the Department requested the medical assessments, due in part to her declining health.

12. That is, she was already offshore before the Department requested the medicals. Further, she had already left Australia in July 2011 on a subclass 020 bridging visa and had not come back within the permitted time, and had to apply for a visitor visa to re-enter Australia in December 2011. When she departed Australia in September 2013 she was again on a subclass 020 bridging visa and did not return to Australia again within the permitted time. 

13. The Tribunal considers that if AM had wanted to protect her right to a permanent visa as a spouse, sick or not, she would have returned to Australia. Sick or not, the Tribunal does not see why she would not have tried to return to Australia if she had wanted to be with her husband in a genuine married relationship.

14. Returning to the site visit interview record, it is significant that after stating that the marriage relationship is still ongoing AM is also recorded as stating that she does not care if the applicant marries some-one else, or is in another relationship, as that is permitted under Islam, but she still needs his financial support for her medical condition.

15. This indicates to the Tribunal that there is some uncertainty in her mind as to the state of the married relationship. Further, the Tribunal considers that AM’s view is contrary to the requirement in s.5F(2)(b) of being in a shared life as husband and wife to the exclusion of all others.

16. Ultimately, the Tribunal considers that, even though she has a medical condition, the fact that she is there in Indonesia away from her husband and has been for a prolonged period indicates that she does not consider she is still married to him. The Tribunal concludes that she may have known and accepted that their ‘married relationship’ had just come to an end, as understood under Australian law, but perhaps she and her parents were unwilling to acknowledge it and in any event, considered them still married under Islamic law. The Tribunal also considers that she was keen to say whatever might mean that she and her family continued to receive financial support from him in the future.

17. The Tribunal therefore finds that applicant and his wife separated in October 2014 such that after this date they do not have a mutual commitment to a shared life as husband and wife to the exclusion of all others, and it follows that the relationship between them is not genuine and continuing; and the Tribunal finds that after this date they were living separately and apart on a permanent basis.

18. Thus the Tribunal finds that the applicant has not made false and misleading statements to the Department, or the Tribunal, as to the nature of his relationship since October 2014, nor has he provided any bogus documents in that regard.

19. Hence PIC 4020(1) is satisfied in relation to this visa application. Further, there is nothing to suggest that this applies to a visa that the applicant held in the period of 12 months before the application was made.

20. Further, there is no evidence to suggest that during the period starting 3 years before the application was made, and ending when the Minister makes a decision to grant or refuse to grant the visa, that the applicant has been refused a visa because of a failure to satisfy the criteria in subclause (1). Hence he also satisfies PIC 4020(2).

    Has the applicant satisfied the identity requirements?

21. PIC 4020(2A) requires an applicant to satisfy the Tribunal as to his or her identity. The Department has not suggested there is an issue with his identity. From all the documentary evidence on the Department file the Tribunal is satisfied as to the applicant’s identity. Therefore, the applicant meets PIC 4020(2A).

22. Further, there is no evidence before the Tribunal to suggest that during the period starting 10 years before the application was made and ending when the Minister makes a decision to grant or refuse to grant the visa that the applicant has been refused a visa because of a failure to satisfy the criteria in subclause (2A). Hence the Tribunal finds that the applicant also satisfies PIC 4020(2B).

23. On the basis of the above, the applicant does satisfy PIC 4020 for the purposes of cl.885.224(a).

    DECISION

24. The Tribunal remits the application for a Skilled (Residence) (Class VB) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 885 (Skilled - Independent) visa:

    ·Public Interest Criterion 4020 for the purposes of cl.885.224(a) of Schedule 2 to the Regulations.

    David Dobell

    
    

    Member

    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 Migration Review Tribunal, 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 a 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. 

    …