1614130 (Migration)

[2017] AATA 2992

1614130 (Migration) [2017] AATA 2992 (20 December 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1614130

MEMBER:Michelle East

DATE:20 December 2017

PLACE OF DECISION:  Perth

DECISION:The Tribunal remits the application for a Partner (Provisional) (Class UF) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 309 (Spouse (Provisional)) visa:

·Public Interest Criterion 4020 for the purposes of cl.309.225 of Schedule 2 to the Regulations.

·Cl.309.211 of Schedule 2 to the Regulations

·Cl.309.221 of Schedule 2 to the Regulations

Statement made on 20 December 2017 at 11:21am

CATCHWORDS
Migration – Partner (Provisional) (Class UF) visa – Subclass 309 (Spouse (Provisional)) – Bogus original marriage certificate – Shared finances and household duties – Contact on a daily basis – Genuine couple – Credible witness

LEGISLATION
Migration Act 1958, ss 5F, 65
Migration Regulations 1994, rr 1.03, 1.15A, Schedule 2 cls 309.211, 309.221, 309.225, Schedule 4, cl 4020

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

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 [in] August 2016 to refuse to grant the applicant a Partner (Provisional) (Class UF) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa [in] July 2014. The delegate refused to grant the visa on the basis that the applicant did not satisfy the requirements of Subclass 309 of Schedule 2 to the Regulations because the delegate found the marriage certificate provided by the parties was bogus and therefore determined the parties were not validly married. The delegate further determined the parties had not been in a genuine de facto relationship for the 12 months prior to the visa application.

3. The review applicant appeared before the Tribunal on 13 December 2017 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant by telephone. The Tribunal hearing was conducted with the assistance of an interpreter in the Hazaragi and English languages.

4. The review applicant was represented in relation to the review by her registered migration agent who attended by telephone.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The primary issue in this review is whether the visa applicant meets Public Interest Criterion 4020 (PIC 4020) as required by cl.309.225 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).

7. 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?

8. 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.

9. 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.

10. 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.

    Marriage certificate

11. The visa applicant provided a marriage certificate obtained from the General Consulate of the Islamic Republic of Afghanistan in Quetta Pakistan [in] February 2014. 

12. [In] May 2016 the Department wrote to the visa applicant inviting comment on the parties’ marriage certificate with Reg No [number].  They were told, ‘The marriage certificate was referred for further checks to the Embassy of the Islamic Republic of Afghanistan, Islamabad to determine its authenticity.   In response, the Embassy of the Islamic Republic of Afghanistan, Islamabad confirmed the aforementioned document as ‘fake and bogus’’.

13. The Tribunal relies on the evidence obtained by the Department from the Afghan authorities that the marriage certificate provided by the applicant was a fraudulent document.  The Tribunal relies on this evidence to find the marriage certificate is a bogus document because it is counterfeit.

14. Therefore the applicant does not meet cl.4020(1).

    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. For the following reasons, the Tribunal is satisfied that the requirements should be waived.

18. The Tribunal has considered the circumstances of the review applicant, the sponsoring spouse, who is an Australian citizen.

19. The Tribunal was provided with medical certificates from the review applicant’s treating general practitioner dated June 2016 and June 2017.  A report was also received from her treating psychologist who had diagnosed her with symptoms of mixed anxiety and depression because of the ‘current complex immigration difficulties combined with the pressures of supporting her parents through medical issues’.

20. The most recent report from her GP also states she has been a patient in the practice for the past 5 years and in May 2017 was being treated after her return from Afghanistan for the after effects of a [medical condition] suffered shortly before.

21. Separate medical evidence has disclosed the health issues from which her parents are suffering and the support the review applicant needs to provide them with.  Her siblings are all busy with their own lives and the carer role falls to her.

22. The applicant has spoken of her despair at the ongoing immigration issue for which she is seeking resolution.

23. The review applicant in her oral evidence discussed her fear when staying in Afghanistan.  She has spent a significant amount of time staying there with her husband, particularly this year and says she constantly fears for her own safety.

24. The visa applicant in his oral evidence confirmed the effect of the long separation on each of them.  He said his wife has mental health problems and hopes for a resolution of the issue.

25. The Tribunal finds that cumulatively the distress caused to the review applicant over the prolonged separation from her husband, the effect on her mental health, her fears for his safety, the fears for her own safety when she visits him in Afghanistan, in circumstances where a bogus document was unwittingly provided, amount to compassionate circumstances that justify the grant of the visa.

26. Therefore the requirements of cl.4020(1) should be waived.

    Has the applicant satisfied the identity requirements?

27. Clause 4020(2A) requires an applicant satisfy the Tribunal as to his or her identity.  The review applicant is an Australian citizen and has provided a copy of her citizenship certificate dated [in] September 2013.

28. The visa applicant has provided a certified, translated copy of his identity card from the Islamic Republic of Afghanistan, Ministry of Interior, Department for Statistics and Registration.  The Tribunal is satisfied as to the visa applicant’s identity.

29. Therefore, the applicant meets cl.4020(2A).

    Has a visa previously been refused on the basis of a failure to satisfy cl.4020(2A)?

30. Clause 4020(2B) requires that neither the applicant nor any family unit member have been refused a visa because of a failure to satisfy the identity requirements in cl.4020(2A) during the period starting 10 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(2BA).

31. There is no evidence before the Tribunal that the applicants or any member of the family unit have been refused a visa because of a failure to satisfy cl.4020(2A) in the period commencing three years before the application was made to the present.

32. Therefore cl.4020(2B) is met.

33. On the basis of the above, the applicant does satisfy PIC 4020 for the purposes of cl.309.225.

    SPOUSE/DE FACTO (cl.309.211(2) and cl.309.221)

    Whether the parties are in a spouse or de facto relationship

34. Clause 309.211(2) and 309.221 require that at the time the visa application was made and at the time of this decision, the visa applicant is the spouse or de facto partner of an Australian citizen or Australian permanent resident or an eligible New Zealand citizen.  In the present case the visa applicant claims to be the spouse of the review applicant who is an Australian citizen.

35. ‘Spouse’ is defined in s.5F of the Act and provides that a person is the spouse of another where the two persons are in a married relationship. Persons in a married relationship must be married to each other under a marriage that is valid for the purposes of the Act, there must be a mutual commitment to a shared life as husband and wife to the exclusion of all others, the relationship must be genuine and continuing and the couple must live together or not live separately and apart on a permanent basis: s.5F(2)(a)-(d). In forming an opinion as to these matters, regard must be had to all of the circumstances of the relationship. This includes evidence of the financial and social aspects and nature of the visa applicant’s and sponsor’s household and their commitment to each other as set out in r.1.15A(3).

    Are the parties validly married?

36. If the parties are validly married, they may meet the requirements of a spousal relationship, but not a de facto relationship.  The parties claim to have married in Pakistan [in] February 2014 in Quetta, Pakistan.  A marriage certificate has been provided to the Tribunal (a certified translation of which has been provided) issued [in] January 2017, certifying that the parties were married [in] February 2014 without any legal impediment.

37. As noted earlier in this decision, the original marriage certificate provided with the visa applicant’s application dated [in] February 2014 was determined to be bogus.

38. Section 88G of the Marriage Act provides that a document purporting to be either the original or certified copy of a certificate or record of a foreign marriage is, for all purposes, prima facie evidence of the facts stated in the document and of the validity of the marriage to which the document relates, provided that it is purported to have been issued by the relevant authority of that foreign country who has the authority to issue it. The effect of s.88G is that, unless there is evidence to suggest that the key requirements for a valid marriage are not met, a foreign marriage certificate issued by the relevant authority of that country is prima facie evidence that the marriage is valid under the local law.

39. The Tribunal asked for and received the original Marriage Certificate dated [in] January 2017 issued by the relevant authority, together with a certified translation. The Tribunal is satisfied that the certificate of marriage is prima facie evidence that the marriage is valid under the local law.

40. In addition to the Marriage Certificate the Department was provided with a video of the parties’ wedding and various photographs of the celebration. On the evidence the parties were married to each other under a marriage that is valid for the purposes of the Act as required by s.5F(2)(a).

    Are other requirements for a spousal relationship met?

41. In forming an opinion whether the parties are in a married relationship and in considering whether they have a mutual commitment to a shared life as husband and wife to the exclusion of all others, whether their relationship is genuine and continuing and whether they live together or do not live separately and apart on a permanent basis as required by s.5F(2)(b)-(d), the Tribunal has had regard to all of the circumstances of the relationship. This includes evidence of the financial and social aspects and the nature of the visa applicant’s and review applicant’s household and their commitment to each other, as set out in r.1.15A(3).

42. The Tribunal has had regard to the evidence provided relating to the financial aspects of the relationship including joint ownership of assets and joint liabilities, the extent of any pooling of financial resources, any legal obligations owed by the other party and any sharing of the day to day household expenses.

43. The Tribunal notes that as the visa applicant is overseas there is no real possibility of joint assets or sharing of daily household expenses at this stage.  Nevertheless, the Tribunal noted the parties have spent significant periods of time together, being 3 months in early 2016, six months in early 2017 and four months in late 2017.

44. The Tribunal questioned the parties as to how their finances were arranged during this time.  Each party gave consistent evidence that they shared their finances between them, with both contributing towards expenses.

45. The Tribunal has had regard to the evidence as to the nature of the household including the parties’ living arrangements and any sharing of housework. 

46. The review applicant currently lives in Australia and the visa applicant in Afghanistan.

47. When the review applicant visits the visa applicant they stay together in the uncle’s house in Afghanistan.

48. The Tribunal questioned the parties as to their living arrangements during this time and both parties gave consistent evidence that they share the household duties such that would be typical in a genuine spousal relationship.

49. The Tribunal has considered the evidence in relation to the social aspects of the relationship including whether the parties represent themselves to other people as being married to each other, the opinion of friends and acquaintances about the nature of the relationship and any basis on which the parties plan and undertake joint social activities.

50. The Tribunal accepts that the parties behave as if they are married and considered themselves to be lawfully married.  They were married in accordance with their culture and religion.  The evidence before the Tribunal is that the parties celebrated their wedding in Quetta, Pakistan with about 100-150 family members and friends in attendance. 

51. Based on the evidence the Tribunal is satisfied the parties represent themselves to other people, including friends and family as being a genuine couple.  The Tribunal is satisfied they did so at the time of the application and continue to do so at the time of the decision.

52. The Tribunal has had regard to the evidence in relation to the nature of the parties’ commitment to one another including the duration of the relationship, the length of time they have lived together, the degree of companionship and emotional support they draw from each other and whether they see the relationship as long term.

53. The parties claim to have known each other since they were teenagers with the visa applicant and the review applicant’s brother being friends.  They met while the review applicant was living in Pakistan and the visa applicant was there studying.  When the review applicant moved to Australia with her family as a refugee, she developed a friendship with the visa applicant online, becoming Facebook friends.

54. In April 2013 they decided they would like to marry and she travelled to Pakistan in January 2014 for the engagement ceremony and wedding celebrations.  Many photos of the events were provided which appeared well attended by family and friends. 

55. For nearly two years after that time the parties were separated but said they kept in contact by Viber on an almost daily basis.  During this time they thought their visa application would be processed and according to their sworn evidence they did not know their original marriage certificate was bogus.  The review applicant has travelled to Afghanistan twice in 2017 for significant periods of time.  They also travelled together to Pakistan for 3 months in early 2016.  The review applicant [had a medical condition] in May 2017 whilst in Pakistan.

56. The review applicant presented as an articulate, credible witness and the Tribunal has no reason to question her evidence.  The visa applicant who appeared by telephone gave consistent answers to questions previously asked of the review applicant in his absence.

57. On all the evidence before the Tribunal, it finds the parties have been in an exclusive committed relationship since around April 2013.  The Tribunal finds they derive a level of companionship and emotional support from one another and clearly see the relationship as long term.  The Tribunal finds this is a clear indicator of a genuine partner relationship.

58. The Tribunal finds that at the time of application the parties had a mutual commitment to the relationship to the exclusion of all others, they draw emotional support and companionship from it and they view the relationship as a long term and continuing one and this continues at the time of decision.

1. The Tribunal is satisfied that at the time the visa application was made and at the time of this decision the relationship between the parties is one where they have a mutual commitment to a shared life to the exclusion of all others, that is genuine and continuing and they have lived together and not separately and apart on a permanent basis.

2. Given these findings the Tribunal is satisfied that at the time the visa application was made and at the time of this decision the parties were in a spousal relationship.

3. Therefore the visa applicant meets cl.309.211 and cl.309.221.

   DECISION

4. The Tribunal remits the application for a Partner (Provisional) (Class UF) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 309 (Spouse (Provisional)) visa:

   ·Public Interest Criterion 4020 for the purposes of cl.309.225 of Schedule 2 to the Regulations.

   ·Cl.309.211 of Schedule 2 to the Regulations; and

   ·Cl.309.221 of Schedule 2 to the Regulations.

   Michelle East
   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. 

   …