1617382 (Migration)

[2018] AATA 3155

1617382 (Migration) [2018] AATA 3155 (30 June 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1617382

MEMBER:K. Chapman

DATE:30 June 2018

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal remits the applications for Partner (Provisional) (Class UF) visas for reconsideration, with the direction that the first named visa 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.

Statement made on 30 June 2018 at 4:12pm

CATCHWORDS
Migration – Partner (Provisional) (Class UF) visa – Subclass 309 (Spouse (Provisional)) – Whether the applicant has given, or caused to be given, a bogus document, or information that is false or misleading in a material particular – Where marriage and birth certificates provided analysed and found to be bogus by the Department – Applicant need not know that the relevant documents are bogus – Whether the compelling reasons exist to waive the relevant criteria – Where a genuine spousal relationship exists – Where both parties are refugees – Where separation is causing significant emotional hardship – Where the sponsor has actively contributed to Australian society – Compelling reasons exist – Decision remitted with direction 

LEGISLATION
Migration Act 1958 (Cth), ss 5(1), 65, 359AA
Migration Regulations 1994 (Cth), Schedule 2, cl 309.225, Schedule 4, PIC 4020

CASES
Arora v MIBP [2016] FCAFC 35
Batra v MIAC [2013] FCA 274
Kaur v MIBP [2017] FCAFC 184
Plaintiff M64/2015 v MIBP [2015] HCA 50
Re Minister for Immigration & Multicultural Affairs; ex parte Durairajasingham [2000] 168 ALR 407
Selvadurai v Minister of Immigration and Ethnic Affairs and J Good (Member of the Refugee Review Tribunal) [1994] FCA 1105
Singh v MIBP [2018] FCAFC 52
Trivedi v MIBP [2014] FCAFC 42

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 on 15 September 2016 to refuse to grant the visa applicants Partner (Provisional) (Class UF) visas under s.65 of the Migration Act 1958 (‘the Act’).

2. The visa applicants applied for the visas on 22 January 2014. The first named [visa applicant] is the spouse of the review applicant who sponsored the visa applications [‘the sponsor’]. The second named [visa applicant] is the daughter of the couple. The visa applicants are nationals of Sierra Leone. They lived in [Country 1] as refugees for many years before returning to Sierra Leone. The delegate refused to grant the visas on the basis that the first named visa applicant (‘the applicant’) did not satisfy the requirements of cl.309.225 of Schedule 2 to the Migration Regulations 1994 (‘the Regulations’) because she did not satisfy Public Interest Criterion 4020 (‘PIC 4020’) and there were no compassionate and compelling circumstances to warrant waiver of this criterion. On 19 October 2016, the sponsor applied to the Tribunal for review of the visa refusal decisions, providing a copy of the decision record with his application. The Tribunal has confined its review to the PIC 4020 issue, which was the basis of the delegate’s visa refusal decision.

3. The sponsor (and review applicant) appeared before the Tribunal on 25 June 2018 to give evidence and present arguments. The Tribunal also received oral evidence in person from [Mr A] and [Mr B] who are brothers of the sponsor. The sponsor was represented in relation to the review by his registered migration agent. The Tribunal received post hearing documentary evidence which has been duly considered.  

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. The issue in this review is whether the 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: PIC 4020(1); and

   ·the applicant and each member of the family unit has not been refused a visa because of a failure to satisfy PIC 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: PIC 4020(2) and (2AA); and

   ·the applicant satisfies the Minister as to his or her identity: PIC 4020(2A); and

   ·neither the applicant nor any family unit member has been refused a visa because of a failure to satisfy PIC 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: PIC 4020(2B) and (2BA).

6. The requirements in PIC 4020(1) and (2) can be waived if there are certain compelling or compassionate reasons justifying the granting of the visa: PIC 4020(4). However, this waiver does not apply to the identity requirements in PIC 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?

7. The term ‘information that is false or misleading in a material particular’ is defined in PIC 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 PIC 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.

8. The requirement in PIC 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: PIC 4020(3). It also applies whether or not the document or information was provided by the applicant knowingly or unwittingly.

9. 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. The Tribunal also notes the recent guidance concerning these matters from the Full Federal Court in Singh v MIBP [2018] FCAFC 52.

   Consideration of documents submitted with the Partner visa application

10. The delegate’s visa refusal decision, a copy of which was provided to the Tribunal by the sponsor, indicates that the Department assessed a Marriage Certificate and a Birth Certificate submitted with the visa application to be bogus documents. The Departmental file contains a copy of a Marriage Certificate issued on [a particular date in] 2005 in respect of a traditional marriage between the applicant and sponsor. It also contains a Birth Certificate in respect of their daughter issued on [a particular date in] 2006. Both documents were obtained by the applicant in [Country 1] where she was previously residing.

11. Pursuant to the procedure in s.359AA of the Act, the Tribunal raised with the sponsor the particulars of the Marriage Certificate and Birth Certificate and invited his comment. The sponsor contends that the applicant went to a local Government office in [Country 1] to obtain the documents. She paid a person she thought to be a Government official who, in due course, provided her with the said documents. Neither she, nor the sponsor, believed the documents to be other than genuine until advised of problems by the Department. The sponsor outlined that he and the applicant had a customary marriage in [Country 1] in 2005. No documentation was created in relation to it at the time. When they applied for the Partner visa, the applicant went into the Government office and was purportedly advised that a Marriage Certificate could be obtained and ‘backdated’. Regarding the Birth Certificate, the sponsor contended that the original was lost after their daughter was [born] in [Country 1]. The applicant apparently obtained a replacement Birth Certificate which was in due course assessed by the Department to be bogus. The sponsor contends that at all times he and the applicant were unaware of the problems with the documentation they provided with the visa application.

12. The sponsor advised through oral and documentary evidence that he travelled to [Country 1] in August 2016 to reunite with the applicant and their daughter. On [a particular date in] August 2016, the sponsor and the applicant formally married at [a particular location in Country 1] in the presence of the [various public officials], family and friends. Following their marriage, the sponsor arranged for a Marriage Certificate and for an official Birth Certificate in respect of their daughter to be issued. These documents were subsequently sent to the Department by the sponsor. The sponsor and the applicant also visited Sierra Leone following their time in [Country 1]. The applicant and their daughter relocated to [Town 1], Sierra Leone prior to the visa refusal decision. They currently reside in [Town 1]. The sponsor returned to Sierra Leone to visit them between August and October 2017. Significant documentary evidence is before the Tribunal suggestive of the applicant and the sponsor being in a genuine spousal relationship. This includes photographs, communication records, commercial receipts, educational records, and travel documentation.

13. The Tribunal notes that Departmental records indicate the sponsor migrated to Australia himself from [Country 1] through the offshore Humanitarian visa programme and was included as a dependent of his brother, [Mr B]. The sponsor was [a particular age] at the time this application was lodged in October 2008. According to material before the Tribunal, the sponsor indicated he was in a relationship with the applicant between January 2004 and March 2008 then they separated. The sponsor was subsequently granted the Humanitarian visa on 2 June 2010 and he first arrived in Australia [in] September 2010. Departmental records also indicate that the sponsor unsuccessfully attempted to sponsor the applicant and their daughter for an offshore Humanitarian visa under the split family provisions in 2011. The Departmental delegate’s decision to refuse this offshore Humanitarian visa application indicated that bogus [identity cards] were submitted with the application, the sponsor refused to undertake DNA testing regarding his daughter and the applicant was not assessed as a member of the sponsor’s family unit given they were separated at the time he departed [Country 1] in 2010.

14. The Tribunal raised the above information with the sponsor pursuant to the procedure in s.359AA of the Act noting that the previous matter of the bogus [cards] might tend to suggest the applicant has engaged in a pattern of conduct regarding the provision of bogus documents. Additionally, his refusal to undertake DNA testing might tend to suggest a deceptive pattern of conduct was evident. Further, the Tribunal noted that the chronology of the sponsor’s separation from the applicant between 2008 and 2010 might tend to suggest the separation was for the purpose of him being able to migrate to Australia as a [dependent] of his brother [Mr B], as shortly after arrival onshore he attempted to sponsor the applicant as a member of his own family unit. In summary, the sponsor responded that the [cards] were used for business and movement in [Country 1] and it was not known they were bogus. The sponsor told the Tribunal that the applicant is not well educated and living in a refugee situation she had to accept the veracity of documents issued to her in order to survive. He also outlined he had a previous cultural objection for undertaking DNA testing and didn’t fully understand the process in the past. However, he now understands it and is prepared to undertake DNA testing with respect to his daughter. The sponsor confirmed to the Tribunal that he would undertake DNA testing if requested to do so.

15. Regarding the chronology of his relationship with the applicant, the sponsor explained that he was genuinely separated from her between March 2008 and November 2010 following which they reconciled. He advised that he was living as a refugee with his brother in [Country 1] for many years and when he first traditionally married the applicant in 2005 she lived with them, as did his daughter following her [birth]. The sponsor indicated he still maintained contact with his daughter when she moved with the applicant to another residence with the applicant’s brother. The sponsor noted that the applicant was not willing to reconcile at the time he was included in his brother’s offshore Humanitarian visa application. The sponsor provided financial support to the applicant and their daughter after they separated and he continued to do so once he started working in Australia. He indicated their reconciliation took some time and that he was prepared to give the applicant a second chance at their relationship. The sponsor informed the Tribunal that had he remained in a genuine relationship with the applicant during the processing of his own offshore Humanitarian visa application, he would not have departed for Australia and left her and his daughter behind. He urged the Tribunal to accept that the separation was genuine and that the applicant did not engage in any wrongdoing with regard to the documents she obtained in [Country 1].

16. The Tribunal took oral evidence in person from the brothers of the sponsor, [Mr A] and [Mr B]. The former has in Australia completed studies [a particular field], is a qualified [professional] and is employed full time in [a particular organisation]. [Mr A] advised the Tribunal of the sponsorship of [Mr B] and the sponsor (the review applicant) for their offshore Humanitarian visas in 2008. He outlined that he too had come to Australia as a refugee by fleeing Sierra Leone to [Country 1], where he resided for around 8 years. [Mr A] advised that it is extremely difficult to obtain authentic documents in [Country 1], even if they are acquired from a Government office. He provided an outline of the relationship between the sponsor and the applicant as he knew it, noting that he arrived himself in Australia in 2002. [Mr A] confirmed the couple had a child together and that they had a break in their relationship. He also indicated the relationship recommenced after the sponsor arrived in Australia and that the sponsor had indicated to him he realised the value of the relationship after having been separated. [Mr A] commended the sponsor as a person of integrity who had worked hard in Australia and did not rely upon the Commonwealth to support him. The Tribunal observed [Mr A] to be eloquently spoken, direct with his answers and to provide a consistent narrative with that submitted by the sponsor. Accordingly, the Tribunal finds [Mr A] to be a highly credible witness. The Tribunal was also impressed with the oral evidence of [Mr B] who provided an account of the relationship consistent with the other witnesses. In particular, he confirmed that the sponsor and the applicant had lived in his residence in [Country 1] between 2005 and 2008 then they separated, they had a daughter together who had also lived with them and that the parties reconciled after the sponsor moved to Australia. He indicated they were all living as refugees in [Country 1] and had to rely upon the documents that were given to them. The Tribunal finds [Mr B] to also be a credible witness. Accordingly, the Tribunal accepts the genuineness of the evidence given by both [Mr A] and [Mr B].

    Analysis

17. The Tribunal notes that in determining whether it is satisfied that prescribed criteria for a visa are met, it is not required to uncritically accept the evidence of an applicant. As Heerey J observed in Selvadurai v Minister of Immigration and Ethnic Affairs and J Good (Member of the Refugee Review Tribunal) [1994] FCA 1105 at [7]:

    A decision-maker does not have to have rebutting evidence available before he or she can lawfully hold that a particular factual assertion by an applicant is not made out.

18. Similarly, the Tribunal notes the following observations of McHugh J in Re Minister for Immigration & Multicultural Affairs; ex parte Durairajasingham [2000] 168 ALR 407 at [67]:

    If the primary decision maker has stated that he or she does not believe a particular witness, no detailed reasons need to be given as to why that particular witness was not believed. The Tribunal must give the reasons for its decision, not the sub-set of reasons why it accepted or rejected individual pieces of evidence.

19. The Tribunal has carefully assessed the evidence in the present matter. The Tribunal notes that the Department assessed the submitted Marriage Certificate and Birth Certificate as bogus documents. There is no evidence before the Tribunal to displace that assessment. The Tribunal finds that there has been an element of fraud or deception by some person in the creation of those documents in the sense articulated by the authorities of Singh and Trivedi which are referred to above. Further, the Tribunal finds that these documents ‘purport to have been, but were not, issued in respect of the relevant persons’ and that they are ‘counterfeit or have been altered by a person who does not have authority to do so’, and therefore they are bogus documents. 

20. Following consideration of the above matters, the Tribunal reasonably suspects that the applicant has given, or caused to be given, to an officer of the Department of Immigration a bogus document within the meaning of subsection 5(1) of the Act, being the purported Marriage Certificate issued [in] 2005 and the purported Birth Certificate issued [in] 2006. Therefore, the applicant does not satisfy the requirements of cl.4020(1). Given the Tribunal has found the applicant does not satisfy the aforementioned criterion, it is must now consider the waiver provision.

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

21. The requirements of PIC 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. The decision-maker must first be satisfied that there are such circumstances, then must consider whether to exercise the discretion to waive the requirements, having regard to those circumstances: Kaur v MIBP [2017] FCAFC 184.

22. 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.

1. The types of circumstances that may involve compelling or compassionate circumstances for the waiver of PIC 4020 are listed in Explanatory Statement SLI 2011, No 13 as follows:

   ·family reasons: for example, unexpected serious or fatal family situations over which the person has no control, such as the incapacitation or death of a partner, a child or a member of the family unit; or,

   ·that family members in Australia would be left without financial or emotional support; or,

   ·a parent in Australia would be separated from their child.

2. The Tribunal notes that the discretion to waive the requirements of PIC 4020 is to be applied by a decision maker with due regard to the individual circumstances of each case. Accordingly, whilst the Tribunal has paid regard to the matters listed above, it has been careful not to consider itself bound by them. The Tribunal has therefore assessed the individual circumstances pertaining to the sponsor’s (review applicant’s) case in reaching a conclusion concerning the waiver provision. For the following reasons, the Tribunal is satisfied that the requirements of PIC 4020 should be waived.

3. The sponsor and his brothers provided consistent oral evidence that the relationship between the former and the applicant commenced in [Country 1] in 2004. They were living in refugee circumstances at that time having fled Sierra Leone. The sponsor and the applicant were married in a customary marriage in early 2005. They lived together with other members of the sponsor’s family in [Country 1]. They have a daughter together who was born in [a particular year]. The relationship ceased between March 2008 and November 2010. The sponsor has not been living in the same country as his daughter since September 2010, a period approaching 8 years. It is clear to the Tribunal that the sponsor and the applicant are in a genuine spousal relationship at the time of this decision, as indicated by the oral and documentary evidence which points to them being in regular communication and the sponsor providing financial assistance from Australia. The Tribunal also accepts that the sponsor is greatly missing his wife and child.

4. The sponsor initially worked in Australia in [a particular business]. He then commenced studies in [a particular field] and acquired employment as [a particular occupation] in [that field]. The sponsor is part way through [a particular course] with a view to becoming qualified as [a particular professional occupation]. He has suspended his studies due to the stress he is under with regard to this visa application. The sponsor has plans to undertake university study in order to become [a professional]. A glowing reference from his current employer dated [in] June 2018 refers to the strong work ethic of the sponsor, his continuous service since June 2012 and his desire to achieve the goal of becoming [a professional]. The reference also notes that the sponsor became more withdrawn following his return from leave in October 2017 because of the impact of being separated from his family. The sponsor told the Tribunal that he will resume his studies once his family arrives in Australia and he undertook to resume his pathway towards becoming [a professional]. A copy of his results in [his course] to date was also before the Tribunal.  

5. The sponsor advised the Tribunal of the stress he has been under due to the uncertainty of the visa application process and the lengthy separation from his family that he has endured. He explained that he experienced tough times as a refugee in West Africa and needed to be reunited with his family. The sponsor told the Tribunal that he works hard in order to distract himself from the ‘demons’ confronting him due to his experiences as a refugee. The sponsor advised he does not receive Centrelink benefits and supports himself. He is worried for the welfare of his wife and daughter who reside in Sierra Leone, which has a high rate of crime. He feels a sense of helplessness because he cannot live with his wife and daughter. The oral evidence of both [Mr A] and [Mr B] indicates the sponsor is more withdrawn following his prolonged geographical separation from the applicant and his daughter. They both indicated the separation was having a deleterious effect upon him. Their evidence was consistent with that of the sponsor and the Tribunal accepts it is accurate. 

6. The Tribunal has carefully weighed the evidence regarding waiver of the requirements of PIC 4020. The Tribunal notes that the merits of each particular case must be assessed comprehensively. In the circumstances pertaining to the current matter, the Tribunal finds that compassionate and compelling circumstances are present concerning the sponsor that warrant the waiver of the requirements of PIC 4020. The Tribunal finds that the sponsor is a truthful witness. He is a person who has migrated to Australia as a refugee under quite difficult circumstances and now holds citizenship of this country. The Tribunal accepts the sponsor did not contrive circumstances to enable him to migrate to Australia. The stress caused to the sponsor by his prolonged separation from his wife and daughter is clearly compounding that which is already underlying as a result of his experiences in West Africa.

7. The Tribunal takes the view that the sponsor has demonstrated a willingness to participate meaningfully in Australian society and has made a most useful contribution to the community through his employment in [a particular] sector. He should be encouraged to pursue his goals of further educational and career advancement, particularly given that he has shown himself to be self-reliant during his time in Australia. The Tribunal forms the view that the sponsor should be provided with the opportunity to have his wife and child reside with him in Australia so that he can go on to make an even greater contribution to this country. Therefore, following careful consideration, the Tribunal finds that the requirements of cl.4020(1) should be waived. For completeness, the Tribunal finds that the applicant satisfies the identity requirements of cl.4020(2A) and 4020(2B).

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

   DECISION

9. The Tribunal remits the applications for Partner (Provisional) (Class UF) visas for reconsideration, with the direction that the first named visa 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.

   K. Chapman
   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. 

   …