1713412 (Migration)

[2019] AATA 5275

1713412 (Migration) [2019] AATA 5275 (22 November 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1713412

MEMBER:Mr S Norman

DATE:22 November 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the applications for Employer Nomination (Permanent) visas for reconsideration, with the direction that the first named applicant meets the following criteria for Subclass 186 -  Employer Nomination Scheme visas:

·Public Interest Criterion 4020 for the purposes of cl.cl.186.213(1) of Schedule 2 to the Regulations.

Statement made on 22 November 2019 at 9:40am

CATCHWORDS

MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – false or misleading information – conviction record – imprisoned in another country for 45 days – use of false document – waiver of requirement – compassionate or compelling circumstances – interests of two Australia citizen grandchildren – born outside of marriage – protection needs – principal family network – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 186.213; Schedule 4, Public Interest Criterion 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
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 9 June 2017 to refuse to grant the applicants Employer Nomination (Permanent) visas under s.65 of the Migration Act 1958 (the Act). The Department delegate’s decision was lodged with the Tribunal.

2. The applicants applied for the visas on 28 June 2016. The delegate refused to grant the visas on the basis that the first named applicant (the applicant) did not satisfy the requirements of cl.186.213(1) of Schedule 2 to the Migration Regulations 1994 (the Regulations).

3. The applicants (the primary applicant - [named]; and her secondary applicant partner – [named]) appeared before the Tribunal on 7 November 2019 to give evidence and present arguments. The applicants were represented in relation to the review by their registered migration agent.

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 visa applicant meets Public Interest Criterion 4020 (PIC 4020) as required by cl.186.213(1) 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.

10. In their decision record, the Department delegate referred to evidence before the Minister, that the applicant had provided to the Department, or caused to be provided, false or misleading information, in relation to the visa application. The delegate said the Department had information the secondary applicant (partner) had travelled on a bogus document to [Country 1], for which he was imprisoned in [Country 1] for 45 days before being deported back to Pakistan.[1]

    [1] Department – folio 23.

11. However, in the application for the Subclass 186 visa, being under the Temporary Residence Transition stream, the following answer was provided:

    ·     in relation to the question “has any applicant ever been convicted of an offence in any country (including any conviction which is now removed from official records)?” – the applicant had said “No”[2]

    [2] Department – folio 161.

12. Furthermore, under the section Declarations, and in relation to the statement “understand that if the applicant, any family members included in the application or third parties acting on behalf of the applicant, provide (or have provided in a previous application) false and misleading information, or bogus documents either knowingly or otherwise, the visa application will be refused and the applicant subject to a three-year bar in relation to visas to which the fraud criterion applies. Any visa granted may be cancelled” – and the applicant said “Yes”.

13. Under the section Declarations, in relation to the statement “understand that any fraudulent documents or false or misleading information has been provided with this application, or if any of the applicants failed to satisfy the Minister of their identity, the application may be refused and the applicant(s), and any member of their family unit, may become unable to be granted a visa for a specified period of time” – and the applicant said “Yes”.

14. In relation to the statement “understand that if documents are found to be fraudulent or information to be incorrect after the grant of the visa, the visa may be subsequently cancelled” – and the applicant said “Yes”.

15. The delegate continued (words to the effect) the Department had information which indicated that false and misleading information, or bogus documents may have been lodged. Further, this was relevant to the consideration of whether the applicants meet the character requirement. On 21 January 2017, the applicant was provided with 28 days to provide comments in writing on the evidence that information they provided to the Department was false or misleading information. Further, the applicant was asked to advise if they believed that compassionate or compelling circumstances affecting the interest of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen existed, in order to consider whether there were grounds to waive any or all of PIC 4020(1) or (2), to justify the granting of the visa.

16. On 21 February 2017, an email was received by the Department from the applicant’s migration agent. That attached a statutory declaration[3] signed by the applicant, and her dependent (the above-mentioned second named applicant). In that statutory declaration it was said that after the secondary applicant had suffered a ‘big financial loss’ in his business (in Pakistan), he had obtained a fake [Country 2] passport from one of his friends in Pakistan in 2003. He then travelled to [another country] and to [Country 1] in 2003, using this bogus document. The statutory declaration further said the secondary applicant was stopped at the [Country 1] airport on his arrival and accused of having a false document. The secondary applicant “realised he has done a big mistake by using false [Country 2] passport [to go] to another country”. He admitted to the [Country 1] official at the airport, that he was proposing to seek asylum and he was then placed in a refugee camp. The [Country 1] government provided him with a lawyer, who subsequently advised the secondary applicant to ‘plead guilty to avoid a harsh punishment’. The secondary applicant had then pled guilty and was sentenced to 45 days jail. The secondary applicant’s asylum application was subsequently refused, and the secondary applicant had been deported to Pakistan.

    [3] Department – from folio 44.

17. However, the applicant and the secondary applicant stated they had not provided any bogus document to the Minister in Australia. The statutory declaration further stated:

    We, [the first and second applicant] acknowledge that the responses given to the Department’s questions pertaining to being convicted of any offence in any country or removed, deported or excluded from any country was incorrect. We acknowledge that the response regarding conviction of any offence, removal, deportation and exclusion should have been marked as a “yes” response. We also acknowledge that the Declarations section of the visa application were all responded to as “yes”.[4]

    [4] Department – folio 44.

18. The delegate then referred to the secondary applicant’s conviction, and the claim not to have provided a false document to the Minister or the Department. However, the delegate was satisfied the applicant knowingly answered questions in the visa application form incorrectly. Therefore, that information was false at the time it was given and it was considered to be information that is false or misleading in a material particular as it was relevant in deciding whether the applicants met the character requirement under PIC 4001.

19. Consequently, based on the evidence before them, the delegate was satisfied the applicant had given or caused to be given, information that is false and misleading in a material particular. Therefore, the delegate was not satisfied the applicant met PIC 4020(1); or PIC 4020.

20. After having discussed this with the applicants at hearing, and given the primary applicant’s concession at hearing that false information had been provided to the Department, the Tribunal is also satisfied the information lodged was false or misleading at the time it was given, and it was relevant to the character of (in particular) the secondary applicant in relation to the visa application.

21. Therefore, the applicant does not meet PIC 4020(1).

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

22. 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.

23. 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.

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

25. The delegate noted the applicants were seeking a waiver on the basis that there were compelling circumstances affecting the interests of Australia, or compelling or compassionate circumstances affecting the interest of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen, that justify the granting of the visa.

26. In response to the Department invitation to comment on the false and misleading information, on 21 January 2017 the applicant and the secondary applicant requested the case be considered on compassionate grounds as they had been living in Australia since 2009 (the applicant had arrived on a Student visa), and that they had worked hard to fulfil the needs of their four children. They claimed that as a family they are all well settled in Australia and had resided here for almost 10 years. They claimed that they did not want to return to Pakistan, and to them, Australia is more of a home than anywhere else. They further stated that since travelling to Australia in 2008 they had not returned to Pakistan; and that their children consider Australia their home and do not have any connection to Pakistan or any other country.

27. The applicants further stated that one of their daughters ([Daughter 1]) is (or was) in a relationship with an Australian citizen, and a baby had arisen from that union. They claimed that if the visa application is refused, and the family were forced to return to Pakistan, they would all suffer and be victimised by the Pakistani community. This would happen even if [Daughter 1] was able to remain in Australia with her partner and now two infant children. They also feared that if their daughter remained in Australia with their Australian citizen grandchildren, they would lose all contact with them. The applicants further said that as Muslims, their daughter’s behaviour (giving birth to an illegitimate child) would be considered shameful by the Pakistan community. The applicant’s believed their removal from Australia would therefore affect the interests of their Australian grandchildren, their daughter, and her (now estranged) Australian citizen partner – who would not then have the support of the wider family. 

28. The delegate noted the applicants had raised concerns about their daughter’s behaviour, which would be considered shameful in the Pakistan community. The delegate acknowledged the claimed relationship of the daughter, and that a child had arisen from the union, however the delegate had not received any corroborating evidence to support these claims. Further, if the daughter was in a relationship with an Australian citizen, there may be other visa options available to her. However, the delegate noted that while these are circumstances that affect the interests of the applicant, they are not circumstances that are stipulated in PIC 4020(4).

29. Next, in a statutory declaration, the applicant said that prior to their departure from Pakistan (around January/February 2009) members of the MQM (a Pakistani political party) would attend the secondary applicant’s business (in Karachi) every month to take money, and if he had no money to give, the secondary applicant was beaten.[5] He also feared the MQM would kidnap his children. The secondary applicant then transferred his shop to his father. The secondary applicant then found work from 2011-2013 as [an occupation]. However, his hours were reduced and he was unable to pay for his family. He found other work at [an employer] in Karachi, but the job was seasonal and dependent on customers.

    [5] Department – folio 44.

30. The delegate then considered this information, but was not satisfied there existed any compelling circumstances affecting the interests of Australia. Having considered all the information before them, the delegate was also not satisfied that compassionate and compelling circumstances existed. Accordingly, having considered all the information before them, the delegate did not find these circumstances justify the grant of the visa.

31. Therefore, the delegate was not satisfied the applicants met PIC 4020(1); or PIC 4020. Further, as cl.186.213 is not met, the criteria for the grant of the Employer Nomination (Subclass 186) visa were not satisfied. The delegate thus refused to grant the applicants the Subclass 186 visa. Next, the delegate considered cl.186.311 (member of the family unit). However, as none of the applicants met the primary criteria for the grant of the visa, none were entitled to the grant of the visa as members of the family unit of someone who had. 

32. At hearing, the Tribunal noted the country information stated inter alia:

    Children conceived or born outside of marriage
    

    [6] UK Home Office, Country Information and Guidance Pakistan: Women fearing genderbased harm / violence, February 2016, p.31.

    9.2.1 As sexual relations outside of marriage is strictly prohibited under the 1979 Hudood Ordinances, having a child outside of marriage caused huge social stigma in Pakistan. Deutsche Welle noted in a report dated 21 April 2015 that, ‘In Pakistan, abortion is illegal, and so is adultery - creating a situation where hundreds of children born out of wedlock are secretly killed each year. Their bodies are, literally, thrown out with the garbage.’ Illegitimate children were referred to as “harami”, meaning “forbidden under Islam”. They do not have rights of inheritance and could not be registered with the National Database and Registration Authority – NADRA (except when abandoned or in the care of a registered orphanage) without providing the father’s name. Not having an ID card caused difficulties in accessing vital government-run services…[6]

33. At hearing the applicant explained that she had travelled to Australia in early 2009. Since then she had held two or three Student visas and she had successfully obtained Certificates and Diplomas in [subjects]. She had also obtained a Subclass 457 visa and had worked as [an occupation] during the course of holding the temporary work visa (she now assists her partner, the secondary applicant, in a similar capacity in his [business]). When the primary applicant then applied for a permanent Subclass 186 visa, this was when the information about her partner (and his unlawful entry to [Country 1]) was discovered by the Department, and was put to the applicant for comment, and was then used to refuse the applicant’s Subclass 186 visa application (due to her failing to meet PIC 4020). The Tribunal also notes the false information was provided by the applicant to the Department in prior visa applications. At hearing the Tribunal noted that it may consider whether a willingness to provide false information on a number of occasions, might indicate a willingness to engage in other deceptive behaviours. Be that as it may, and notwithstanding the Tribunal organised for the investigation of Department and Tribunal databases available to it, no other evidence of wrong-doing was identified.

1. Next, and regarding the secondary applicant’s claim to have come to the adverse attention of the MQM in Karachi, prior to departing in early 2009, and the transference of the secondary applicant’s business to his father, the Tribunal was advised that business had been closed down in 2010/2011 due to the ongoing insistence of members of the MQM, for food and other free benefits from the business. However, and put briefly, the Tribunal noted the clamp down on unlawful activities of inter alia the MQM, in part due to the activities of the Pakistan ‘Rangers’ from around 2013, the split in the MQM such that the Pakistan based component was allowed to operate,[7] and that the Tribunal now presumed the applicant may be able to return to Karachi in Pakistan.

   [7] DFAT COUNTRY INFORMATION REPORT, PAKISTAN, 20 February 2019.

2. The applicant conceded she may be able to return to Pakistan, but she was worried about her children. In particular, she referred to her elder daughter (who entered a relationship at [specified] age – and who is now [specified] age) residing with her (now estranged) partner (who was then [specified] age); and for the first two months of this residence, the daughter was not in contact with the parents and the police published information seeking the daughter’s whereabouts (independent evidence was lodged with the Tribunal after the hearing).

3. At the hearing, the applicant also told the Tribunal that her daughter now had two children, both born to the (now estranged) Australian citizen father, so both children were Australian citizens (both infant children were with brought to the hearing). The applicant also explained that the children’s’ mother [Daughter 1] (her daughter) now lived in a women’s refuge; fearing domestic violence from her now ex-partner. It was also explained that the daughter and her partner had never married, and both children were illegitimate. This had also caused problems for the applicant and her secondary applicant husband with those few of their immediate family members they had told of the birth of the two illegitimate children, and had also caused the applicant and her husband to be largely ostracised by the local Pakistan community in Australia.

4. At hearing, the applicant also explained that she speaks with her daughter ([Daughter 1]) every day and is providing her with money, nappies for the two children ([of specified] age), that she provides money for milk for the children, that she provides money for phone bills and helps in other ways. Furthermore, other than the applicant and her husband, the daughter ([Daughter 1]) does not have other family members in Australia, and as stated above, for the last few months she had resided in a woman’s refuge, fearing domestic violence from her ex-partner.

5. The Tribunal understands the applicant is the primary applicant for the Subclass 186 visa, and all her family members (including [Daughter 1]) have held visas on the basis of their being members of the family unit of the applicant.

6. That being said, if the Tribunal decided not to waive the PIC 4020 obligation, it is possible the applicant daughter ([Daughter 1]) may warrant consideration as to her protection needs. It is presumably unlikely (given the violence and estrangement), that [Daughter 1] would presently be sponsored for a partner visa.

7. The Tribunal notes the applicant also said she would be prepared to return to Pakistan but she was concerned for the safety of her children. Given the birth of children out of wedlock is a serious issue in Pakistan, and given the Tribunal accepts this had already caused problems for the family with the Pakistan community in Australia, the Tribunal presumes this may also warrant consideration of protection needs.

8. Perhaps more importantly, the Tribunal accepts the applicant and her partner are the chief support mechanisms for [Daughter 1] in Australia (as no other immediate family members reside here). The Tribunal is therefore satisfied that if the applicant and her husband were denied a visa, this would remove the principal (if not sole) family network the daughter [Daughter 1] (and her two Australian citizen children), could rely on in Australia. It would also ensure that more public monies would be expended to ensure the safety and support of [Daughter 1] and her two Australian citizen children.

9. After considering the evidence, and notwithstanding the Tribunal is concerned about the integrity of the migration process in Australia, I am satisfied there exist compassionate or compelling circumstances that affect the interests of an Australian citizen (the two Australia citizen grandchildren), that justify the waiving of the condition. The Tribunal is therefore satisfied the requirements should be waived.

10. Therefore the requirements of PIC 4020(1) should be waived.

11. On the basis of the above, the applicant does satisfy PIC 4020 for the purposes of cl.cl.186.213(1).

    DECISION

12. The Tribunal remits the applications for  Employer Nomination (Permanent) visas for reconsideration, with the direction that the first named applicant meets the following criteria for Subclass 186 -  Employer Nomination Scheme visas:

    ·Public Interest Criterion 4020 for the purposes of cl.cl.186.213(1) of Schedule 2 to the Regulations.

    Mr S Norman
    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. 

    …