1807419 (Migration)

[2020] AATA 4269

1807419 (Migration) [2020] AATA 4269 (30 July 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:1807419

MEMBER:Russell Matheson

DATE:30 July 2020

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the applications for Other Family (Residence) (Class BU) visas for reconsideration, with the direction that the following criteria for a Subclass 836 (Carer) visa are met:

·Public Interest Criterion 4020 for the purposes of cl.836.223 of Schedule 2 to the Regulations.

Statement made on 31 July 2020 at 12:10pm

CATCHWORDS
MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 836 (Carer) – carer of an Australian relative – close relative – daughter-in-law of the sponsor – bank statements – compassionate circumstances affecting an Australian citizen – significant health issues – decision under review remitted           

LEGISLATION
Migration Act 1958, ss 5(1), 65
Migration Regulations 1994, rr 1.03, 1.15AA; Schedule 2, cls 836.212, 836.223; 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
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 Home Affairs on 9 March 2018 to refuse to grant the review applicants Other Family (Residence) (Class BU) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants are nationals of Russia. The first named applicant (the applicant) applied for the visa on 22 January 2015. At that time, Class BU contained three subclasses: Subclass 835 (Remaining Relative); Subclass 836 (Carer) and Subclass 838 (Aged Dependent Relative: item 1123B of Schedule 1 to the Migration Regulations 1994 (the Regulations). In the present case, the applicant is seeking to satisfy the criteria for the grant of a Subclass 836 visa. The criteria for a Subclass 836 visa are set out in Part 836 of Schedule 2 to the Regulations. Relevantly to this matter, the primary criteria to be met include cl.836.212 and cl.836.223.

3. The delegate refused to grant the visas on the basis that the primary applicant did not meet cl.836.212 of Schedule 2 to the Regulations because the delegate was not satisfied the applicant was the carer of the sponsor at the time of application. Additionally, the delegate was not satisfied the applicant met cl.836.223 of Schedule 2 to the Regulations, Public Interest Criterion (PIC 4020) at the time of decision.

4. The applicants appeared before the Tribunal on 14 January 2020 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant and second named applicant. The Tribunal hearing was conducted with the assistance of an interpreter in the Russian and English languages. The sponsor appeared at the Tribunal to give evidence, but upon observation of the sponsor, the Tribunal declined to take evidence from her due to her state of health.

5. The applicants were represented in relation to the review by their registered migration agent.

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

   Relevant law

7. At the time the application was made, Class BU contained three subclasses, Subclass 835 (Remaining Relative); Subclass 836 (Carer) and Subclass 838 (Aged Dependent Relative: item 1123B of Schedule 1 to the Regulations. In the present case, the applicant is seeking to satisfy the criteria for the grant of a Subclass 836 visa. The criteria for a Subclass 836 visa are set out in Part 836 of Schedule 2 to the Regulations.

8. Relevantly to this matter, the primary criteria to be met include cl.836.212, which requires the applicant to be a carer of an Australian relative at the time of application. The term ‘carer’ is defined in r. 1.15AA of the Regulations. Additionally, at the time of decision the applicant must meet cl.836.223 which requires the applicant to satisfy PIC 4020.

   Issue

9. The issue in the present case is whether the applicant is the carer of an Australian relative and whether she meets PIC 4020.

   Whether the applicant has claimed to be the ‘carer’

10. Clause 836.212 of the Regulations requires that the applicant claims to be the carer of an Australian relative. In the present case, the visa application was made on the basis that the applicant is the carer of the applicant’s mother-in-law.

11. For the purposes of the Carer visa, ‘Australian relative’ is defined as a relative of the visa applicant who is an Australian citizen, an Australian permanent resident, or an eligible New Zealand citizen: cl.836.111. The terms ‘relative’, ‘Australian permanent resident’ and ‘eligible New Zealand citizen’ are defined in r.1.03 of the Regulations.

12. Clause 836.212 requires that, at time of application, the applicant claims to be the carer of an Australian relative.

13. The applicant’s sponsor has been demonstrated to be an Australian Citizen.

14. At the time of lodging this application, it was declared in the application form (Form 47OF) at Question 65 that the person requiring care was the applicant’s mother-in-law.

15. In Form 40 (Sponsorship for migration to Australia), the sponsor declared that the applicant was her daughter-in-law.

16. Documents provided with this application demonstrate that the applicant is married to the sponsor’s son (the second named applicant).

17. This visa application is not an application for a Subclass 200 (Refugee) visa or a protection visa.

18. Regulation 1.03 defines ‘relative’ for cases where a Subclass 200 (Refugee) visa or a Protection visa has not been applied for as a ‘close relative’, or a grandparent, grandchild, aunt, uncle, niece or nephew, or a step-grandparent, step-grandchild, step-aunt, step-uncle, step-niece or step-nephew.

19. ‘Close relative’ is defined at r.1. 03 as a person’s spouse or de facto partner, child, parent, brother, sister, step-child, step-brother or step-sister.

20. A daughter-in-law does not, therefore, meet the definition of ‘relative’ at r.1.03 for the purposes of a Carer visa application.

21. Therefore, the applicant, at time of application, did not meet the requirements of cl.836.212 in Schedule 2 of the Regulations.

    Clause 836.223

22. Clause 836.223 is a time of decision criterion, which states:

    The applicant:

    (a) satisfies public interest criteria 4001, 4002, 4003, 4004, 4005, 4009, 4010, 4020 and
    4021; and
    (b) if the applicant had turned 18 at the time of application — satisfies public interest criterion 4019.

    PIC 4020

23. In addition, the issue in this review is whether the visa applicant meets PIC 4020 as required by cl.820.226 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 three 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).

24. 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 a material particular?

25. 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 Attachment B). 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.

26. 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 the document or information was provided by the applicant knowingly or unwittingly.

27. 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.

28. The Tribunal is mindful that nothing in the definition of a bogus document or the application of PIC 4020 requires the applicant’s knowledge or consent or even involvement in the production or provision of a bogus document. PIC 4020 is enlivened whether or not the bogus document or information was provided by the applicant knowingly or unwittingly. The applicant argues, by reference to Trivedi, that there was no intention to purposely deceive and no element of fraud or deception. The Tribunal considers that claim misguided. In the Tribunal’s view, Trivedi relates to circumstances where there is an honest mistake or a typographical error. In the present case, if the relevant documents are found to be bogus documents, for example, because they are counterfeit or issued by a person without authority to do so; that in itself implies an element of fraud or deception, whether on the part of the applicant or another person, and such circumstances would not be covered by the reasoning in Trivedi. The fact that the visa applicant may have been unaware of the provision of a bogus document does not alter the application of PIC 4020.

29. There is evidence before the Tribunal that the applicant has provided, or caused to be provided, a bogus document or false or misleading information in relation to a visa that the applicant held in the period of 12 months before the application was made.

30. At time of lodging this application, the applicant held a Student (Subclass 572) visa. This visa is taken to be a visa held by the applicant in the period 12 months before this application was made.

31. Integrity checks conducted by the Department found that bank statements provided to the Department by the applicant to support her application for that Student visa were bogus documents.

32. On 17 January 2018, the applicant was invited by the Department to comment on the fact she had been found to have provided (or caused to be provided) bogus documents to the Department in her Student visa application.

33. The applicant was also invited to specify if she believed there were any compelling circumstances affecting the interests of Australia, or compassionate or compelling circumstances affecting the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen, to justify the waiver of any or all of PIC 4020(1) and (2) to justify the grant of the visa.

34. The applicant responded to the Department that her mother sourced bank documents from [Bank 1] in Russia on her behalf when she applied for her Student visa. Furthermore, she had no idea the documents were not genuine.

35. The Tribunal informed the applicant that integrity checks conducted by the Department confirmed the documents were bogus documents. The delegate did not find it credible that a bank would issue bogus bank statements to its clients and the delegate did not find the applicant credible. The delegate also found that it was of significant concern that the applicant had taken no responsibility or contrition for deflecting the responsibility for providing bogus bank statements to the Department when applying for her Student visa.

36. The Tribunal asked the applicant to explain the origin of the bogus documents provided to the Department.  The applicant gave evidence that she had requested the documents (bank statements) from the bank and that she had scanned and modified the documents to fast track her Student visa application. She further stated that she deeply regrets her actions and is extremely remorseful as this will have a major impact on her family, having a child born in Australia and the ability to care for her mother-in-law who has major health issues. She also agreed that the onus was on her to be truthful and provide the correct information when completing the application for her Student visa. The Tribunal found the applicant to be genuine and her remorse temperate.

37. Tribunal notes that the delegate considered compelling and compassionate circumstances affecting the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen, to justify the waiver of any or all of PIC 4020(1) and (2) to justify the grant of the visa.

38. The applicant provided medical reports regarding the health of her mother-in-law who was found to have severe depression and obsessive-compulsive disorder. The applicant provided to the Department psychologist and psychiatric reports advising of severe depression and anxiety symptoms and a psychotic state of mind. The delegate acknowledged the severity of her mental illness, and the possibility that, without supervision, her behaviour may make her a danger to herself.

39. The delegate also acknowledged that it had been demonstrated that the applicant’s mother-in-law has no support from any other family members in Australia and there is limited support available from welfare, community and nursing services in Australia, further stating that the circumstances listed above do have a compassionate element beyond those usually present in the Career visa caseload.

40. Overall, the delegate did not consider the compelling and compassionate circumstances when considered were enough when weighed against the applicant’s fraudulent history to waive PIC 4020.

41. The applicant did not make any claims with the Department seeking a waiver of PIC 4020 on the basis that there are compelling circumstances affecting the interests of Australia.  

42. The Tribunal is satisfied there is evidence that the applicant has given information that is false or misleading in a material particular in relation to the application for the visa when she stated that she had never been in a relationship with another person other than the sponsor when applying for the visa and stated that she had never been married when applying for the relationship certificate. Therefore, the applicant does not meet PIC 4020(1).

    Has a visa previously been refused on the basis of a failure to satisfy PIC 4020(1)?

43. PIC 4020(2) requires the Tribunal to be satisfied that the applicant and each member of the family unit have not been refused a visa because of a failure to satisfy PIC 4020(1) in the period commencing three 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: PIC 4020(2AA). 

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

44. 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 of the Regulations), 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.

45. 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 that special consideration should be given to granting the application: 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.

46. The Tribunal is required to consider all the circumstances of the case, including any matters put forward by an applicant, and determine on the evidence whether there are compelling and/or compassionate circumstances justifying the granting of the visa.

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

48. The Tribunal considered whether 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.

49. As, such the applicant and the sponsor have requested the Tribunal to place significant weight on the degree of care and support provided to the sponsor by the applicants regarding the sponsor’s health issues.

50. The applicants and the sponsor provided statutory declarations and provided medical records for the sponsor that include:

    ·A Psychologist report dated 2 January 2020 (TF folio 213);

    ·A Psychiatrist report dated 18 December 2019 (TF folio 112);

    ·A GP letter and medical history dated 19 December 2019 (TF folio 111)

    ·A letter from [a named hospital] Department of Neurology dated 2 August 2018 (TF 109 rear);

    ·A letter of support from a Psychiatrist dated 14 March 2018 (TF folio 110 rear);

    ·A Medical Health Care Plan dated 21 March 2018 (TF folios 106 to 109):

    ·A Bupa Carer visa report dated 12 December 2017 (TF folios 102 to 105); and

    ·A patient history report for the period 1 January 2017 to 8 January 2020 (TF folios 92 to 101)

51. As previously stated, the applicant has provided medical reports regarding the health of her mother-in-law who was found to have severe depression and obsessive-compulsive disorder. The applicant provided to the Department psychologist and psychiatric reports advising of severe depression and anxiety symptoms and a psychotic state of mind. The delegate acknowledged the severity of her mental illness, and the possibility that, without supervision, her behaviour may make her a danger to herself. The Tribunal agrees with the delegate’s assessment. The applicant gave evidence that the sponsor needs significant support in all aspects of her life and cannot care for herself, and there are no other family members in Australia who can provide the high level of care and support needed. The Tribunal although not medically qualified had concerns for the welfare and welling being of the sponsor who was severely distressed at the Tribunal and unable to provide evidence due to her health issues. The sponsor was consoled by the applicant and her son and her condition monitored during the hearing due to the concerns for her wellbeing.

1. The delegate also acknowledged that it had been demonstrated that the applicant’s mother-in-law has no support from any other family members in Australia and there is limited support available from welfare, community and nursing services in Australia, further stating that the circumstances listed above do have a compassionate element beyond those usually present in the Carer visa caseload. The Tribunal also accepts this view on the evidence presented at the hearing. The Tribunal found the oral evidence and documentary evidence persuasive when considering whether there are compassionate or compelling circumstances that affect the interests of an Australian citizen to waive the PIC 4020 criterion.

2. When considering the evidence provided singularly and cumulatively, the Tribunal is satisfied that there are compelling or compassionate circumstances that affect the interests of an Australian citizen that justify the grant of the visa, and for that reason PIC 4020(4) is satisfied at the time of decision. 

   Has the applicant satisfied the identity requirements?

3. PIC 4020(2A) requires an applicant satisfy the Tribunal as to his or her identity. The visa applicant’s identity documents had been provided with the application. No issue with his identity has been raised by the delegate. The Tribunal is satisfied that the applicant meets PIC 4020 (2A).

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

4. PIC 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 PIC 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: PIC 4020(2BA).

5. There is no evidence the applicant or any member of her family unit had been refused a visa because of a failure to satisfy the identity requirements.

6. There is no evidence to suggest the applicant does not meet PIC 4020(2B) and therefore the Tribunal is satisfied it is met.

   Conclusion

7. Based on the above, the applicant does satisfy PIC 4020 for the purposes of cl.836.223.

8. The Tribunal is satisfied that the secondary applicants are members of the family unit of, and made a combined application with, the visa applicant who satisfies satisfy PIC 4020 for the purposes of cl.836.223.  Consequently, the secondary applicants satisfy PIC 4020 for the purposes of cl.836.223 of Schedule 2 to the Regulations.

   DECISION

9. The Tribunal remits the applications for Other Family (Residence) (Class BU) visas for reconsideration, with the direction that the following criteria for a Subclass 836 (Carer) visa are met:

   ·Public Interest Criterion 4020 for the purposes of cl.836.223 of Schedule 2 to the Regulations.

   Russell Matheson
   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.

   …