1510913 (Migration)

[2016] AATA 4326

1510913 (Migration) [2016] AATA 4326 (25 August 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Zahra Hydarie

CASE NUMBER:  1510913

DIBP REFERENCE(S):  CLF2015/44880 OSF2008/067735

MEMBER:Kira Raif

DATE:25 August 2016

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a Partner (Migrant) (Class BC) visa.

Statement made on 25 August 2016 at 2:43pm

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 31 July 2015 to refuse to grant the applicant a Partner (Migrant) (Class BC) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant is a national of Afghanistan, born in March 1953. The applicant applied for the visa on 3 July 2008. She was included as a dependent in the application for the Partner visa made by Ms Khadija Hydarie and claimed to be the mother of the primary visa applicant. The family were granted temporary Partner visas in May 2010. However, the application for the permanent visa was refused on the basis that the applicant did not satisfy the requirements of cl.100.322 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the delegate found that the applicant did not meet Public Interest Criterion (PIC) 4020. The applicant seeks review of the delegate’s decision.

3. The applicant appeared before the Tribunal on 3 August 2016 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s daughter and son in law. The Tribunal hearing was conducted with the assistance of an interpreter in the Hazaragi and English languages. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   Relevant law

4. The issue in this review is whether the visa applicant meets Public Interest Criterion 4020 (PIC 4020) as required by cl.100.322 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).

5. 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).

6. 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. 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.

7. 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.

8. 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.

   Has the applicant given, or caused to be given a bogus document, or information that is false or misleading in material particular?

9. When making the application, the primary visa applicant referred to the applicant as her mother. The primary decision indicates that the delegate found that the applicant gave, or caused to be given, information that was false or misleading in a material particular by claiming to be a biological mother of the primary visa applicant (PVA). The applicant subsequently conceded that she was not a biological mother of the PVA but stated that she raised the PVA from birth.

10. With respect, the Tribunal does not support the findings of the delegate on this issue. The various application forms do not make a distinction between a biological parent and, for example, an adoptive parent. An adoptive parent would also be referred to as ‘parent’ on the forms and would be recognised as such under the Act. The Tribunal is mindful that the definition of ‘parent’ in the Act includes an adoptive parent. Contrary to the delegate’s findings, the Tribunal does not consider that there was a positive obligation on the applicant to clarify the precise nature of her relationship with the PVA. If she is an adoptive mother and would be recognised as such under the Act, then reference to her being a mother of the PVA was correct and there was nothing in the legislation requiring her to provide additional information or clarification.

11. The delegate also relied on the fact that the spouse of the PVA, when agreeing to the DNA testing to prove the relationship between the applicant and the PVA, referred to the applicant as being the mother of the PVA, implying a biological link. In the Tribunal’s view, that is not sufficient to establish that false or misleading information was given. It is not apparent that the spouse of the PVA did expressly provide information claiming the applicant was the biological mother of the PVA. Nor is it apparent that the spouse of the PVA acted as a representative for the applicant or gave information on her behalf or at her behest. While he may have been an authorised recipient, a sponsor or an authorised person, that is not sufficient to establish an agency or to establish that the information he provided was information given by the applicant. That is, the Tribunal is not satisfied that such information, even if given by the spouse of the PVA, was given or caused to be given by the applicant. For these reasons, the Tribunal is not satisfied that the applicant gave, or caused to be given, false or misleading information concerning the nature of her relationship with the PVA.

12. The second element considered by the delegate relates to the applicant’s identity document (the tazkera). The primary decision record indicates that the applicant submitted with her application a tazkera. The Department of Immigration conducted checks to verify the tazkera. The information received from population registration office of Baghlan province indicated that Pulkhumri district in the Year 1386 had only three volumes and all tazkeras distributed in that year are registered in these three volumes. The tazkera presented by the applicant refers to Volume 7. This would suggest that it was made fraudulently and is not registered. This information was given to the applicant in accordance with s. 359A of the Act.

13. In her written submission to the delegate dated 23 December 2014 the applicant claims she is illiterate and was not involved in the process of preparing and submitting documents. The applicant also notes that it is common practice to submit documents of the kind that she had submitted, that such documents had been submitted, and accepted, for a number of years and in this case, had been found to be acceptable for the grant of the temporary Partner visa.  In oral evidence to the Tribunal the applicant could not explain how the documents were obtained and could not make any comment about the tazkeras, stating she does not understand the process and cannot remember anything. In the Tribunal’s view, the fact that the applicant is illiterate and relied on others to obtain or prepare the documents does not affect the operation of PIC 4020. There is no requirement of personal involvement, nor intention. Significantly, the definition of ‘bogus document’ includes a document that was obtained because of a false or misleading statement, whether or not made knowingly. 

14. The Tribunal took oral evidence from the applicant’s daughter. She said she approached the relevant office in Pakistan to get the tazkeras but she could not recall which office she had approached. The Tribunal asked the daughter what process was required to obtain the tazkeras but she could not recall. Given the fact that Ms Hydarie could not recall which agency she approached to get the tazkeras and could not recall what process she had to follow to obtain these documents, the Tribunal is not convinced that she had any involvement in getting the documents. The sponsor also informed the Tribunal that he had no involvement in obtaining the tazkeras.

15. The applicant’s daughter stated that she is illiterate and did not know what was on the form and for that reason she cannot recall. The Tribunal is not convinced that one’s inability to read affects one’s memory. The Tribunal’s questions were not about the information on the application forms but about the process which the applicant and her daughter claim they engage in to obtain the documents. Given the parties’ inability to explain how the tazkeras were obtained, and the information in the primary decision that the tazkeras were not registered and the volume number appears to be incorrect, the Tribunal has formed the view that these documents are counterfeit or that they were not issued by the relevant authority.

16. The Tribunal reasonably suspects that the applicant’s tazkera is a bogus document because it is counterfeit or has been altered by a person who does not have the authority to do so. The Tribunal finds there is evidence before the Tribunal that the applicant has given, or caused to be given, to the Minister or an officer a ‘bogus document’, as defined in s.5(1). Therefore, the applicant does not meet cl.4020(1).

    Should the requirements of cl.4020(1) or (2) be waived?

17. 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.

18. 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.

19. For the following reasons, the Tribunal is not satisfied that the requirements should be waived.

20. The applicant’s evidence to the delegate relates to her close relationship with her daughter and her daughter’s children. The Tribunal accepts that the applicant has a close relationship with her daughter and the daughter’s family. The daughter’s evidence is that if the applicant does not get the visa, it would put pressure on her husband and the children who are Australian born. Ms Hydarie said her children have a close and loving relationship with their grandmother and it would affect them greatly if she cannot stay. The Tribunal accepts that such relationships exist and accepts that the applicant helps raise the children and has a close relationship with them. However, in the Tribunal’s view, such matters are not compassionate or compelling. They are common in any family and the Tribunal is not convinced that in the circumstances of this particular case, such matters are either compassionate or compelling.

21. The applicant provided medical reports to the delegate relating to herself. In oral evidence the applicant referred to her old age and said she cannot live independently. The applicant’s daughter said that the applicant needs medication which is expensive but she does not receive Centrelink payments and that is a compelling reason. The applicant’s son in law also spoke about the applicant’s poor mental health and the need to be looked after by the family. The Tribunal accepts that evidence but notes that such matters relate to the applicant and these are not circumstances that affect the interests of another person or of Australia.

22. The Tribunal provided the applicant with the opportunity to address the waiver criteria during the hearing and granted the applicant time after the hearing to provide additional materials or submissions concerning the matters discussed at the hearing. The time allowed by the Tribunal has now passed and the Tribunal has not received any further submissions from the applicant.

23. On the material before it, the Tribunal is not satisfied there are compelling circumstances that affect the interests of Australia or that there are 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. Therefore the requirements of cl.4020(1)should not be waived. The Tribunal is not satisfied the applicant meets PIC 4020.

    Conclusion

24. On the basis of the above, the applicant does not satisfy PIC 4020 for the purposes of cl.100.322.

    Decision

25. The Tribunal affirms the decision not to grant the applicant a Partner (Migrant) (Class BC) visa.

    Kira Raif
    Senior Member