1603696 (Migration)

[2016] AATA 4830

1603696 (Migration) [2016] AATA 4830 (22 December 2016)

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DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Amandeep Kaur

VISA APPLICANT:  Mr Maninderjit Singh

CASE NUMBER:  1603696

DIBP REFERENCE(S):  BCC2015/2924955

MEMBER:Catherine Wall

DATE: 22 December 2016

PLACE OF DECISION:  Melbourne

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

Statement made on 22 December 2016 at 4.07pm

CATCHWORDS

Migration – Visitor (Class FA) visa – Subclass 600 (Visitor) – Previous refusal for false information – Public Interest Criterion 4020 – 3 year ban – Compelling or compassionate reasons – Emotional attachment

LEGISLATION

Migration Act 1958, ss 5, 65
Migration Regulation 1994, Schedule 2, cl 600.213, Schedule 4, Public Interest Criterion 4020

CASES

Plaintiff M64/2015 v MIBP [2015] HCA 50

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 29 February 2016 to refuse to grant the applicant a Visitor (Class FA) visa under s.65 of the Migration Act 1958 (the Act).

2. Mr Maminderjit Singh is a 24 year old citizen of India. He applied for the visa on 11 September 2015. The review applicant is his sister, Ms Amandeep Kaur, a 35 year old Australian citizen. At the time the visa application was lodged, Class FA contained one subclass, Subclass 600 (Visitor), with four streams. In this case the applicant applied for the visas seeking to satisfy the primary criteria in the Sponsored Family stream.

3. 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 the applicant had previously been refused a visa on the basis of providing false or misleading information to the department. The delegate found that he was subject to a 3 year ban as a result of not satisfying Public Interest Criterion 4020(1).

4. A copy of the decision record was provided to the Tribunal by the review applicant.

5. Ms Kaur appeared before the Tribunal on 28 November 2016 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Singh, via phone. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.

6. The review applicant was represented in relation to the review by her registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. 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).

9. 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 a visa previously been refused on the basis of a failure to satisfy cl.4020(1)?

10. Clause 4020(2) requires the Tribunal to be satisfied that the applicant and each member of the family unit have not been refused a visa because of a failure to satisfy cl.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: cl.4020(2AA). 

11. The primary decision records that Mr Singh was refused a subclass 600 visa on 5 March 2015 on the basis that he had provided false and misleading information on his previous visa application. The Tribunal obtained a copy of the decision made on 5 March 2015. The Tribunal is satisfied that the visa was refused on the basis that Mr Singh did not satisfy PIC 4020(1).  It is not open to the Tribunal to review the decision made on 5 March 2015.

12. The consequence of not satisfying PIC 4020(1) is that a 3 year exclusion period applies from the date Mr Singh applied for the visa, being 3 March 2015. This means that Mr Singh is excluded from applying for a visa until 3 March 2018.

13. The Tribunal is reviewing the delegate’s decision made on 29 February 2016. That decision was to refuse the visa because the visa application was made within the exclusion period.

14. The Tribunal finds that Mr Singh applied for the visa on 11 September 2005, which was within the visa period. Therefore the Tribunal finds that Mr Singh does not satisfy PIC 4020(2).

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

15. 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.

16. 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.

17. Ms Kaur has not claimed that there are compelling circumstances that affect the interests of Australia, and the Tribunal finds that there is no evidence in this regard.

18. Ms Kaur submits that there are compassionate or compelling circumstances that affect the interests of an Australian citizen, being herself and her family in Australia. In a submission provided to the Tribunal on 29 November 2016, Ms Kaur said that she and her sister are responsible Australian citizens and are mentally effected by these refusals as it have been a long time since they have met their brother. She also said that her sister is pregnant and is concerned that Mr Singh is the only member of the family who will be unable to visit her in Australia.

19. At hearing Ms Kaur said that she is very attached to her only brother, and it is important for him to be able to visit her family in Australia. In a statutory declaration dated 21 November 2016 Ms Kaur that that she is emotionally and mentally attached to her brother, that he is the soul of her family and being the youngest child, is the most loved one, and she is very stressed about his visa refusal. Regard is also given to a statutory declaration from Ms Navi Kaur Laly, dated 22 November 2016, which is almost identical to Ms Kaur’s statement of 21 November 2015.

20. Mr Singh told the Tribunal that he is depressed as a result of the visa refusal, however this is not a consideration which the Tribunal can take into account, as the regulations require the Tribunal to consider circumstances that affect the interests of an Australian citizen, resident, or eligible New Zealand citizen.

21. Mr Singh was found to not satisfy PIC 4020(1) because he had applied for a subclass 651 visa with claims of being a Spanish national. The Tribunal has had regard to the evidence given by both Mr Singh and Ms Kaur that Mr Singh never applied for a subclass 651 visa, that he has never lived in Spain and he has never held a Spanish passport. At hearing Mr Singh told the Tribunal that it is possible that his migration agent in India made an application on his behalf, as at that time Mr Singh had consulted him about possible travel, and had given the agent his passport. In her written submission Ms Kaur said that Mr Singh has requested an investigation of that fraud.

22. As previously stated, it is not open to the Tribunal to review the delegate’s decision of 5 March 2015 that Mr Singh did not satisfy PIC 4020(1). However the Tribunal has considered Ms Kaur’s claim that Mr Singh had no knowledge of the provision of the false or misleading information, and that this is a compelling or compassionate reason to waive cl.4020(2). On the evidence, the Tribunal is not satisfied that Mr Singh’s claim that he was unaware of the provision of false or misleading information is a compassionate or compelling circumstance that justifies the granting of the visa.

23. Evidence of Mr Singh’s student enrolment in India have been submitted in support of the claim that he will return to India after a temporary visit. The Tribunal gives some weight to that evidence.

24. The Tribunal has considered Ms Kaur’s evidence that she has applied for contributory parent visas for her parents, and the 3 year ban may impact negatively on them. She has not provided details of her parents’ visa applications. However, whether or not the Tribunal decides to waive the 3 year ban in relation to Mr Singh’s current visitor visa, it appears that the ban will still apply to his parents’ visa applications. It will be up to the delegate to consider the waiver in regard to her parents’ visa applications (if the ban applies at the time of decision). The Tribunal is not satisfied that this is a compassionate or compelling circumstance that justifies the granting of the visa.

25. The Tribunal accepts that Ms Kaur and her family in Australia are unhappy that Mr Singh is unable to visit them, particularly in the context of Ms Kaur’s sister’s pregnancy. However the Tribunal is not satisfied that such unhappiness gives rise to compassionate or compelling circumstances.

26. In the submission from Ms Kaur’s representative dated 29 November 2016, he said that he is still gathering information in support of compelling and compassionate reasons. He did not seek additional time to submit evidence to the Tribunal. At the time of this decision no further evidence has been received.

27. Having considered the circumstances of Ms Kaur and her family members separately and cumulatively, the Tribunal is not satisfied 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(2) should not be waived.

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

    DECISION

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

    Catherine Wall
    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. 

    …