1716443 (Migration)

[2018] AATA 2088

1716443 (Migration) [2018] AATA 2088 (6 June 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1716443

DIBP REFERENCE(S):  OSF2014/044663

MEMBER:K. Chapman

DATE:6 June 2018

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal affirms the decisions not to grant the visa applicants Child (Migrant) (Class AH) visas.

Statement made on 06 June 2018 at 5:02pm

CATCHWORDS
Migration – Child (Migrant) (Class AH) – Subclass 117 (Orphan Relative ) – Bogus documentation – Death certificates of parents – Organisation no longer exists –  Review applicant sibling of visa applicants – Visa applicants are now over 18 – Emotional hardship – Credibility issues – Decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5, 65, 359AA
Migration Regulations 1994, Schedule 2 cl 117.223 Schedule 4 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
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 decisions made by a delegate of the Minister for Immigration on 9 June 2017 to refuse to grant the visa applicants Child (Migrant) (Class AH) visas under s.65 of the Migration Act 1958 (‘the Act’).

2. The visa applicants, [the first named visa applicant] and [the second named visa applicant], applied for the visas on 18 November 2014. The visa applications were sponsored by their sibling [ (the ‘review applicant’)]. At that time, Class AH contained three subclasses: Subclass 101 (Child), Subclass 102 (Adoption) and Subclass 117 (Orphan Relative). In this case, claims have only been made in respect of the Subclass 117 visa. The criteria for a Subclass 117 visa are set out in Part 117 of Schedule 2 to the Migration Regulations 1994 (‘the Regulations’). Relevantly to this case, they include cl.117.223 which requires the visa applicants to satisfy Public Interest Criterion 4020 (‘PIC 4020’).

3. The delegate refused to grant the visas on the basis that each visa applicant did not satisfy the requirements of PIC 4020 because they submitted bogus death certificates for their parents and a bogus letter purportedly from [Refugee Organisation 1] in [Country 1], and there were no compassionate or compelling circumstances to warrant waiver of the requirements in PIC 4020(1). On 28 July 2017, the review applicant applied to the Tribunal for review of the visa refusal decision, providing a copy of that decision with her application.

4. The review applicant appeared before the Tribunal on 3 May 2018 to give evidence and present arguments. She confirmed that she wanted the Tribunal to review both visa refusal decisions and then provide a single decision record to her. The Tribunal also received oral evidence in person from [Mr A] and [Ms B], in addition to oral evidence via telephone from [Ms C] and [Mr D] who were located in [Country 1]. The Tribunal hearing was conducted with the assistance of an interpreter in the Somali and English languages. The review applicant confirmed to the Tribunal on several occasions that she understood the interpreter and was feeling well enough to give her evidence. The review applicant was granted 14 days following the review hearing to submit any further evidence or submissions. She did so through her representative. The registered migration agent for the review applicant did not attend the review hearing himself but provided pre and post hearing submissions which have been duly considered by the Tribunal.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The issue in this review is whether each visa applicant meets Public Interest Criterion 4020 (‘PIC 4020’) as required by cl.117.223 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).

7. 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.

   Have the visa applicants 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 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.

9. 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.

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. 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 visa applications

11. The delegate’s visa refusal decisions, copies of which were provided to the Tribunal by the review applicant, indicate that the Department assessed as bogus documents two purported death certificates for the parents of the visa applicants, and a letter purportedly signed by the [Refugee Organisation 1], which were submitted in support of the visa applications. The review applicant in oral evidence informed the Tribunal that she was unaware these documents were bogus until receipt of the visa refusal decisions. She maintained that the visa applicants, her siblings, were assisted by an adult friend to obtain the documents and without their knowledge procured documents which were bogus. The review applicant unwittingly funded the purchase of these bogus documents according to her oral evidence. She contended that her father died in 2007 and her mother in 2009, and accordingly her siblings are orphans. During the review hearing, the review applicant confirmed that her brother [the first named visa applicant] is now aged [age] years and her sister [the second named visa applicant] is now aged [age] years. Other adult siblings reside offshore.

12. As reflected in the delegate’s decisions, the Department conducted liaison with Medecins Sans Frontiers (MSF), who purportedly issued the two death certificates, and was advised the documents lacked an official stamp and full names of the signatories, contained irregularity with respect to having the same signatory for both certificates, and that MSF had not taken management of the Hospital in the years when the parents of the visa applicants allegedly died. These matters were raised with the review applicant by the Tribunal during the review hearing, along with the suggestion that fraud or deception might have been involved, and she conceded the documents were bogus but maintained she was not involved in any wrongdoing.

13. Pursuant to the provisions of s.359AA of the Act, the Tribunal raised with the review applicant that the Departmental file contained a copy of a purported letter from the [Refugee Organisation 1] dated 5 January 2017, indicating the visa applicants are bona fide refugees and their parents died respectively on [July] 2007 and [April] 2009 at [a] Refugee camp (in [Country 1]). That file also contains notes indicating the Department was advised that the position of [Refugee Organisation 1] did not exist after April 2016. The Tribunal indicated that this information is relevant as it tends to suggest that the aforementioned letter is a bogus document and was provided by the visa applicants to the Department with an element of fraud or deception involved. The Tribunal indicated that if it were to rely upon the s.359AA information then it would be a reason or part of the reason to affirm the decision under review.

14. The review applicant was offered an adjournment before commenting on or responding to this information, however she chose to respond immediately. She advised that whilst she is in Australia the visa applicants don’t have anyone who can support them and they don’t know what is right or what is wrong. She maintained that she was surprised the letter was a forgery because her belief was that it was obtained through the UNHCR. When asked by the Tribunal to clarify how the letter was obtained, initially the review applicant advised that she asked the visa applicants to get the letter as it was required by her lawyer. She thought that when the visa applicants asked for the letter from the official office that it would be correct. When the Tribunal later asked the review applicant to clarify how the letter was obtained, she changed tack with her evidence advising, ‘the same way as the death certificates but not the same person.’ She later gave evidence that it was the visa applicants who went to the UNHCR and got the letter which they sent to her.

15. When asked by the Tribunal how the death certificates were obtained, the review applicant advised she engaged a family friend ‘[Mr E]’ by telephone, he asked for money to obtain the documents, and in due course they were provided by him following the receipt of funds. The Tribunal raised with the review applicant that it might have difficulty accepting that there was no fraud or deception involved given it appeared she paid money to a man who was not working in an official capacity to obtain the documents. The review applicant responded that she had not obtained documents pertaining to the deaths of her parents in [Country 1] when she lived there because she didn’t see the need to do so then, paying money was the only way to obtain the documents, and the man assured her the documents were procured legitimately. When she later learned the documents were bogus she apparently rung ‘[Mr E]’, challenged him and he promptly hung up the telephone on her.

16. The Tribunal raised with the review applicant that the delegate’s visa refusal decisions indicate that a Government of [Country 1] and UNHCR Household Fact Sheet was provided in support of the visa applications and also that the Department received advice from the UNHCR [refugee camp] indicating the Fact Sheet was not current, did not capture changes in the household and that the claimed parents of the visa applicants became inactive on their database on 22 July 2008 as they were both traced as [Country 1] citizens. The Tribunal indicated that the aforementioned information tends to suggest that bogus death certificates and a bogus letter purportedly signed by [Refugee Organisation 1] were submitted to the Department and an element of fraud or deception was involved, inviting the comment of the review applicant. She responded that the Fact Sheet is genuine because only UNHCR staff could produce it, adding the visa applicants obtained the document. Regarding the ‘[Country 1] things’, she remarked ‘I’m not saying it’s true and I’m not saying it’s false’, adding that her parents originally came from Somalia to [Country 1] and may have acquired a [Country 1] Identity Card at some stage but she is not sure as they are now deceased. She maintained her parents were Somali, living in a refugee camp and possibly needed a [Country 1] Identity Card to cross the border.

17. The Tribunal raised with the review applicant that the information outlined above from the delegate’s decisions regarding the purported death certificates, letter purportedly signed by the [Refugee Organisation 1], and the advice from the UNHCR [refugee camp] indicating that the claimed parents of the visa applicants became inactive on their database [in] July 2008 as they were traced as [Country 1] citizens, might cause it to have difficulty accepting that the parents of the visa applicants are deceased and that bogus documents have not been provided to the Department. The review applicant was invited to comment and responded that she accepted the death certificates and letter were forgeries. She added that as her parents are deceased she cannot provide further information on the [Country 1] citizenship issue. The review applicant also advised that one of her own children was in hospital in Australia around the time of the procurement of the documents in question and it was not in her hands to obtain the documents. She maintained that she requires her siblings, the visa applicants, in Australia to assist her with her own two children.

18. [Mr A], President of [a Somali group in Australia], gave oral evidence confirming he was not involved in the visa applications but was supporting the review applicant to bring the visa applicants to Australia. [Ms B], a friend of the review applicant, gave oral evidence indicating that she came from the same refugee camp and that the parents of the review and visa applicants’ were deceased, with her being aware of their funerals (attending one of them when she was a child). [Ms C] gave oral evidence via telephone from [Country 1] stating that she helps to look after the visa applicants from time to time and that their parents are deceased. She was not involved in the visa applications. [Mr D] gave oral evidence via telephone from [Country 1] stating he was not involved in the visa applications and that he attended the funerals of both of the parents.

19. The Tribunal advised the review applicant that it had heard from the witnesses regarding the deaths of the visa applicants’ parents. The Tribunal noted that it had also raised with her during the review hearing the information from the UNHCR pertaining to the contact tracing and [Country 1] citizenship of the parents. When asked by the Tribunal why it should prefer her evidence and that in support indicating the parents are deceased, over the aforementioned UNHCR information which might suggest they are not deceased, the review applicant replied that all witnesses have sworn to give the truth and did so. She added that as her parents are deceased she cannot give further evidence on the [Country 1] citizenship matter.

    Contentions for waiver of the PIC 4020 requirements

20. The review applicant informed the Tribunal that she has a health condition concerning [medical details deleted]. Medical reports were submitted to the Tribunal confirming this to be the case. [Sentence deleted]. That relationship concluded in 2012. Documents from agencies writing in support of the review applicant’s requirement for public housing and assistance following that relationship support her claims in this regard. The review applicant advised that it is stressful for her not to have her siblings in Australia and she finds it hard to support them offshore.

21. The review applicant’s first child was born to her ex-partner. Her second child was born to her new husband whom she met in [Country 1]. The review applicant is currently in the process of sponsoring her husband to Australia through an offshore Partner visa as he currently resides in [Country 1]. That visa application has not yet been determined. The review applicant advised that the whereabouts of several of her adult siblings in Africa are unknown and that she wishes to have the two visa applicants join her in Australia. She informed the Tribunal that she receives limited help from the Somali community in Australia because most people are ‘busy with their business’ and she has no other family here. The review applicant advised she is in receipt of Centrelink payments and submitted documents indicating she pays for child care.

22. [Mr A], President of the [Somali group], informed the Tribunal that he supports the review applicant through the Association as required. He confirmed she receives financial and other support if she requests it. [Mr A] maintained that it would be best for her if the visa applicants were permitted to come to Australia. [Ms B] advised she regularly sees the review applicant in Australia as they live nearby. She assisted the review applicant when she gave birth to her second child and they spent time in hospital. [Ms B] assists the review applicant if she is sick. [Ms B] indicated the visa applicants do not live in good conditions and the review applicant has no family in Australia. [Ms C] and [Mr D] confirmed the visa applicants were currently living in the refugee camp in [Country 1].

    Analysis

23. 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.

24. 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.

25. The Tribunal has carefully assessed the evidence in the present matter. The Tribunal notes that the review applicant conceded the purported birth certificates and letter from [Refugee Organisation 1] were fraudulent (written submissions on her behalf also make this concession). Although she maintained she and the visa applicants were unwittingly involved in the provision of the fraudulent documents, the Tribunal is not satisfied this is the case given the inconsistencies in the review applicant’s oral evidence concerning the acquisition of the letter purportedly from [Refugee Organisation 1] (which are outlined above), the manner in which she engaged ‘[Mr E]’ for a fee to obtain the death certificates, and that she intimated at various times the visa applicants played a role themselves in obtaining the documents. Given its official source, the Tribunal prefers the evidence from the UNHCR referred to above with respect to the contact tracing and [Country 1] citizenship of the parents to that advanced on behalf of the review applicant concerning their whereabouts and status.  

1. Following careful consideration, the Tribunal finds that an element of fraud and deception was involved in the procurement of the aforementioned documents in the sense articulated in the authority of Trivedi. 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.  

2. Following consideration of the above matters, the Tribunal reasonably suspects that the visa applicants have 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 death certificates for their parents and the letter purportedly from [Refugee Organisation 1] dated 5 January 2017. Therefore, the visa applicants do not satisfy the requirements of cl.4020(1). Given the Tribunal has found the visa applicants do not satisfy the aforementioned criterion, it is unnecessary for it to consider the other criteria provided in cl.4020.

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

3. 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.

4. 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.

5. 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.

6. 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 review applicant’s case in reaching a conclusion concerning the waiver provision. For the following reasons, the Tribunal is not satisfied that the requirements of PIC 4020 should be waived.

7. The Tribunal has found that the review and visa applicants’ have engaged in a measure of fraudulent and deceptive conduct by procuring bogus documents and causing them to be submitted to the Department. This is a very serious matter. It is a relevant consideration with respect to the Tribunal’s assessment of whether compassionate or compelling circumstances exist such as to justify the granting of the visa to the visa applicants and the waiver of PIC 4020(1).

8. The Tribunal accepts that the review applicant has a medical condition, however, she has demonstrated the ability to care for herself and her two children in the absence of the two visa applicants. She has support from the Somali community as evidenced by the oral and written evidence of third parties on her behalf. The Tribunal does not accept that support from the Somali community is limited, as the review applicant initially contended, given the weight of evidence to the contrary. The Tribunal accepts that the review applicant feels a measure of stress as a result of her separation from the visa applicants, however she has demonstrated the ability to care for herself and her children in their absence.

9. [Sentence deleted]. That is a most regrettable circumstance. However, that relationship has now concluded and she has remarried, located appropriate accommodation and is able to care for herself and her children in the absence of the visa applicants. The review applicant is currently in receipt of Centrelink payments which sustain her and her children (including day care costs). She has demonstrated the ability to provide for herself and her children from such payments in the absence of the visa applicants. The Tribunal accepts that a measure of emotional hardship is faced by the review applicant due to separation from her siblings, and concern at their present circumstances, but as previously noted she has demonstrated the ability to raise her children and look after herself in their absence.

10. The Tribunal has carefully assessed the evidence provided in relation to the grounds for waiver of the requirements in PIC 4020. The Tribunal notes that if the waiver is not granted, the visa applicants cannot apply for a further Orphan Relative visa as they are now adults. However, pursuant to the provisions of cl.4020(2AA), the visa applicants would not be subject to a 3 year ban on applying for further Australian visas as they were minors at the time of the visa applications. This factor mitigates the impact of the Tribunal’s decision not to waive the requirements of PIC 4020 with respect to the present visa applications.

11. Whilst accepting there would be some emotional hurt for the review and visa applicants if the visas are not granted, the Tribunal is not satisfied that compassionate or compelling circumstances are present such as to warrant the waiver of the requirements in PIC 4020 as outlined above. After careful consideration, the Tribunal finds that no compassionate or compelling circumstances are present concerning either the review applicant, or members of her family, or any other Australian citizen or permanent resident, that justify the granting of the visas to the visa applicants and warrant the waiver of the requirements of PIC 4020. Nor are there any compelling circumstances that affect the interests of Australia that warrant the waiver of the requirements of PIC 4020. Therefore, the requirements of cl.4020(1) should not be waived.

12. On the basis of the above, the visa applicants do not satisfy PIC 4020 for the purposes of cl.117.223. There have been no claims advanced in respect of the other visa subclasses in Class AH (Subclass 101 and Subclass 102).

    DECISION

13. The Tribunal affirms the decisions not to grant the visa applicants Child (Migrant) (Class AH) visas.

    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. 

    …