1515707 (Migration)

[2016] AATA 3936

1515707 (Migration) [2016] AATA 3936 (27 May 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Lai Feng Guan

VISA APPLICANT:  Mr Laihua Guan

CASE NUMBER:  1515707

DIBP REFERENCE(S):  BCC2015/2056218

MEMBER:Suzanne Carlton

DATE:27 May 2016

PLACE OF DECISION:  Adelaide

DECISION:The Tribunal affirms the decision not to grant the applicant a Visitor (Class FA) visa.

Statement made on 27 May 2016 at 12:04pm

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 18 September 2015 to refuse to grant the applicant a Visitor (Class FA) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 16 July 2015. The delegate refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl.600.213 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because he was not satisfied that the visa applicant met Public Interest Criteria (PIC) 4020 and therefore, he did not meet clause 600.213.

3. The review applicant appeared before the Tribunal on 27 May 2016 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

4. The review applicant was represented in relation to the review by his registered migration agent, who attended the hearing.

5. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The review applicant is an Australian man of Chinese ethnicity.  He has been an Australian citizen since 1997.  The visa applicant is his brother (and sole sibling).

7. The visa applicant lives in the People’s Republic of China (PRC) with his widowed mother.  The visa applicant provides care for the mother. The visa applicant has never travelled outside of PRC and has never been to Australia.

8. The visa applicant is divorced and has an adult son.  He has not remarried and has no other children. Since his divorce in or around 2003, which occurred whilst his son was still a minor, his son resided with his ex-wife (the son’s mother).  The Tribunal was told that the household registration (the hukou) reflects that the son resided with the father because that was the son’s place of residence at birth and the hukou thereafter, in rural areas, “cannot be changed”.

9. The review applicant resides in Australia with his wife and two children.  He travels back to PRC frequently and was last there about six months ago.

10. In 2007, at the review applicant’s urging, the visa applicant’s son applied to come to Australia and study English.  As he was then still a minor, he lived with the review applicant until he turned 18.  The review applicant said that he paid the costs of his nephew’s initial student visa.

11. The review applicant told the Tribunal that the young man wished to move out at age 18 and that the review applicant did not support that choice.  The review applicant said he told his nephew not to come back unless the young man attained his ‘qualification’.  The review applicant indicated that he has not had further contact with his nephew since.

12. During the hearing, the review applicant was unable to identify what ‘qualification’ his nephew had been studying towards, beyond the initial English language study.

13. The review applicant also told the Tribunal that he had previously sponsored his mother to come visit Australia and that she had done so and had complied with all visa requirements.

14. The issue in this review is whether the visa applicant meets Public Interest Criterion 4020 (PIC 4020) as required by cl.600.213 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).

15. 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?

16. 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: Arora v MIBP [2016] FCAFC 35; Batra v MIAC [2013] FCA 274.

17. 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.

18. 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.

19. The evidence before the Tribunal (and the delegate before) is that the applicant has given, or caused to be given, to the Minister “information that is false or misleading in a material particular” as defined in cl.4020(5).

20. The information given related to the identification and whereabouts of the visa applicant’s family members in Australia and in PRC.  Specifically, in his application, the visa applicant said that his son was then residing with him at his home in PRC.  In response to the question asking him to identify his relatives in Australia, he identified only his brother.

21. According to the movement records of the visa applicant’s son, as identified by the delegate in both the natural justice letter and the subsequent decision refusing the visa, the young man entered Australia in 2007 on a subclass 571 student visa, was granted a subsequent subclass 571 student visa and then was granted a subsequent subclass 572 student visa.  The last of these expired on 4 April 2011.  However, the delegate noted that the young man has remained in Australia without a visa since that time and was an unlawful non-citizen. 

22. In response to the delegate’s natural justice letter alerting the visa applicant to the apparent false or misleading information, the visa applicant advised that while he knew his son was in Australia, he was unsure of his residency status here and that is why he provided his son’s hukou address as the address for his son.  Accordingly, the delegate determined that false or misleading information had been given and that it was false or misleading at the time it was given.

23. The Tribunal has considered whether the false or misleading information was relevant to any of the criteria the Minister may consider when making a decision on an application.  To that end, the Tribunal invited submissions of the review applicant’s representative as to the whether she considered the false or misleading information given was relevant to the visa criteria.  She indicated that she wished to make no submissions in this regard, emphasising that the information provided was “a mistake”.

24. The Tribunal notes that cl.600.211 requires that the applicant:

    genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted, having regard to

    (a) whether the applicant has complied substantially with the conditions to which the last substantive visa, or any subsequent bridging visa, held by the applicant was subject; and

    (b) whether the applicant intends to comply with the conditions to which the Subclass 600 visa would be subject, and

    (c)any other relevant matter.

25. In determining an applicant’s intentions, Departmental guidelines set out various matters that may be considered in assessing those intentions.[1] The Tribunal may have regard to Departmental guidelines; however, they are not binding upon the Tribunal.

    [1] PAM3: GenGuideH – Visitor visas – Visa application and related procedures – ‘The genuine temporary stay requirement’ (re-issue date 15/3/16).

26. Relevantly, among the matters that may be relevant to an applicant’s intention to comply with visa conditions, such as returning to his home country within the visa validity or not making a further onshore visa application, are the following:

    a.personal circumstances that would encourage the applicant to return to their home country at the end of the proposed visit; and

    b.the applicant’s credibility in terms of character and conduct.

27. The personal circumstances of the applicant include what family he has in PRC and what family he has in Australia that might present ‘pull’ factors one way or the other.  The visa applicant’s failure to declare to the Minister that his son was in Australia was misleading information as to this consideration.

28. The provision of false or misleading information is also relevant to the applicant’s credibility in terms of character and conduct.  The Tribunal does not accept that the provision of the information was an innocent mistake, as has been asserted.

29. The Tribunal considers that the false or misleading information provided is relevant to the criteria the Minister may consider when making a decision on a subclass 600 application.

30. Therefore, the applicant meets cl.4020(1).

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

31. 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.

32. 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.

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

34. The Tribunal offered the review applicant and his representative the opportunity to address the basis for the waiver.  The review applicant told the Tribunal:

    Because my mother can, more or less, look after herself for a while at this age, I really want to invite my brother to come over here for a trip to reward him for looking after my mother for all these years.

35. No other relevant substantive submissions were made during the hearing.

36. The visa applicant had previously made submissions to the effect that as he gets older, he has a greater desire to travel to Australia to see his brother. 

37. I note that the brothers have seen each other recently.  There is no evidence of health issues that require the visa applicant to visit in the near or foreseeable future.  There is no indication that the review applicant cannot visit his brother in PRC.  Given these circumstances, I do not accept that 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.

38. Therefore the requirements of cl.4020(1) should not be waived.

39. On the basis of the above, the applicant does not satisfy PIC 4020 for the purposes of cl.600.213.

40. No evidence has been provided that the applicant meets any other subclass within the class of visa sought.

    DECISION

41. The Tribunal affirms the decision not to grant the applicant a Visitor (Class FA) visa.

    Suzanne Carlton
    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 Tribunal during the review of a Part 5 reviewable 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. 

    …