2216044 (Migration)

[2023] AATA 3348

2216044 (Migration) [2023] AATA 3348 (18 August 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Daniel Estrin

CASE NUMBER:  2216044

MEMBER:Melissa McAdam

DATE:18 August 2023

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for a Visitor (Class FA) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 600 (Visitor) visa:

·Public Interest Criterion 4020 for the purposes of cl 600.213 of Schedule 2 to the Regulations;

·Cl 600.211 of Schedule 2 to the Regulations; and

·Cl 600.221 of Schedule 2 to the Regulations.

Statement made on 18 August 2023 at 9:56am

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – false or misleading information in visa application – two adult children who had applied for protection visas not declared – review applicant named as contact, with no requirement to list all family members – other children’s names previously provided to department – no element of fraud or deception – property, relatives, church and community in home country – applicant’s compliant travel to Australia and other countries and children’s lawful migration – consequences of non-compliance for parent visa in progress – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 600.211, 600.213, 600.221, Schedule 4, criterion 4020(1), (5)

CASES
Arora v MIBP [2016] FCAFC 35
Batra v MIAC [2013] FCA 274
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 24 August 2022 to refuse to grant the applicant a Visitor (Class FA) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 22 April 2020. The delegate refused to grant the visa on the basis that the visa applicant did not satisfy the requirements of cl 600.213 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) because she did not meet Public Interest Criterion 4020. The delegate found that the applicant had provided information that was false or misleading in a material particular in relation to the visa by not naming two of her children in Australia.

   Visa application

3. The visa applicant provided the following information in her visa application:

   a.She is applying for a Visitor visa to Australia in the Sponsored Family stream.

   b.She was born in [Year] and is a citizen of Pakistan.  She is widowed.

   c.Her usual country of residence is Pakistan. She is in [Country 1] with the review applicant’s partner and children on a Visit visa valid until April 2020.  She will travel to Australia with her daughter-in-law and grandchildren.

   d.She would like to stay in Australia for up to six months.

   e.She will visit people while in Australia.

   f.Her contact in Australia is her son [, the review applicant]. He is an Australian citizen. He is the sponsor of her visa application.

   g.She is a housewife.  She will self-fund her travel to Australia and her son will take care of all her requirements while she is in Australia.

   h.She has never been in Australia or any other country and not complied with her visa conditions or departed outside her authorised period of stay.

   i.She has previously had a visitor visa application to Australia refused, in August 2017 and July 2018, due of the assumption she will stay longer in Australia and change her status here because of her family’s immigration history.

   j.The review applicant lives in Perth and works as the director of [a] company in Australia.

4. With her visa application the visa applicant submitted the following documents:

   -A letter from the review applicant in which he requests a Visitor visa be issued to his mother. They have applied for a subclass 143 Parent visa for his mother on 1 June 2018. They also applied for two other Visitor visas for the applicant which were both refused. They were refused because of “standard criteria conditions not met with the applicant’s family links to Australia and the circumstances regarding their past immigration history and there are no sufficient family links outside of Australia and appears more likely that applicant would seek to change their status once in Australia in order to remain permanently”.  He argues to do so would negatively impact the applicant’s parent visa application. He further argues that the changes in the status of other family in Australia were based on their individual circumstances and feels they have no impact or connection to his mother’s Visitor visa application. His mother has travelled to Australia several times over the past seven years and has a substantial history of compliance in the countries she has visited. His mother owns a residential property in Karachi, she has her relatives their and knows her local community.  He had a heart attack recently and was admitted to hospital and required heart surgery.  His doctor has advised him he cannot travel. He hopes his mother can visit him soon.

   -A copy of the visa applicant’s Family Registration Certificate issued by the Pakistan Ministry of Interior in 2017.  It records photos and biographical details of the visa applicant, her husband, and her five sons – [the review applicant], [Mr A], [Mr B], [Mr C] and [Mr D].

   -A letter from the visa applicant’s son [Mr C], an Australian citizen, who writes that he made a Visitor visa application on behalf of his mother in June 2018 and it was refused because of family members’ past immigration history in Australia and insufficient family outside of Australia.  He applied for review of the refusal to the AAT but his Migration Agent at the time failed to inform him in advance of the scheduled Tribunal hearing.  [Mr C] was overseas at the time with the review applicant and was unable to participate in the hearing.  His then Migration Agent also provided the Tribunal with [Mr C]’s incorrect contact details and instead provided his brother’s contact details.

5. On 12 December 2021 the review applicant wrote to the delegate requesting urgent attention to his mother’s Visitor visa application so that she could spend Christmas with him in Perth  and give blessings to his new baby.

   Delegate’s Natural Justice Letter

6. On 14 June 2022 the delegate wrote to the visa applicant stating that the department had received “unfavourable information” that may lead to a refusal of her application. The delegate outlined the following:

   In regards to the application for a Sponsored Family Visitor Visa lodged on 22 April 2020, the applicant didn't mention her sons onshore in [Mr D] and [Mr B].

   … It is a requirement for the grant of a Visitor (Sponsored Family) (subclass 600) visa that the applicant satisfies Public Interest Criterion (PIC) 4020 contained in clause 4020 of Schedule 4 to the Migration Regulations 1994. Subclause 4020(1) requires that there is no evidence before the Minister that the applicant has given, or caused to be given, to the Minister, an officer, the Administrative Appeals Tribunal, 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:

   ● the application for the visa; or
   ● a visa that the applicant held in the period of 12 months before the application was made.

   If there is such evidence, subclause 4020(4) provides that PIC 4020(1)(a) or (b) and subclause 4020(2) will nonetheless be satisfied if the Minister is satisfied that:

   ● compelling circumstances that affect the interests of Australia; or
   ● compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen;

   justify the grant of the visa.

   As there is evidence suggesting that you have provided, or caused to be provided, a bogus document or false or misleading information in relation to this visa application, you may fail to satisfy PIC 4020(1), with the result that this visa application may be refused.

   The visa applicant’s response

7. On or about 27 June 2022 the review applicant provided a Statutory Declaration to the Department stating the following:

   … That I am requested to comment on an adverse information received which may affect the decision on Visa vide letter dated 14th June 2022, which states, didn't mention about her sons [Mr D] and [Mr B] who applied for refugee status.

   That, in the application, this information was left out is not intentionally done. Hence I request to view leniently regarding the negligence on our part and wish to have a positive outcome for my mother, Her visit to Australia was imminent to other children and grand children who are all Australian Citizens.

   That I believe there is compassionate or compelling circumstances affecting the interests of her other children who are Australian Citizens, to visit them.

   Further, in my statement dated 20th April 2020 along with the application, I have mentioned as - Quote: "It was quite unfortunate that both the Visit visa applications have been refused with same reason. It has been stated that the changes in status of the family links in Australia, which is purely based on the individual circumstances and situations and I have no comment on the case officers views towards that, though I feel which has no impact or connection to my mother Visa application to visit us". Which is regarding the 2 of my above siblings who were in a compelling situation and applied for refugee status which was refused and appeal pending with AA T for hearing and decision.

   That she has heart issue, with two (2) stunts placed, diabetic and blood pressure, maintaining these alone without care by her children is unfortunate and hence request on a compassionate situation and waiver of any adverse information and consider grant of her visa.

   That due Covid-19 Pandemic crisis, considering my mother's age about [Age] years stranded alone leaving all her children and grand children in Australia, loneliness worsens her current ailments which she need a compassionate, home care treatment with her children for a while.

   That I very much aware and understand overstay or violating visa conditions are illegal and change of status as assumed previously, we know its difficult process while we have an active Parent Visa application under assessment for lawful entry which will have negative impact.

   That furthermore, Visit visa is the popular visa applied commonly for short term visits to the family and relatives in Australia with many conditions stated which I undertake to abide, also my mother has not violated them many previous visits before.

   That I kindly request to view this case in leniently and this compassionate situation to issue a visa and permit to travel to Perth Australia to see her children and grand children and have home care to maintain and improve her detoriating health condition.

   The Delegate’s decision.

8. The delegate found that the applicant has given information that is false or misleading in a material particular, by failing to declare the information together with the fact that the balance of family such as “other children and grandchildren who are all Australian Citizens” are in Australia. The delegate found that the non-declaration of this fact has a direct impact on how the Genuine Temporary Entrant requirements would have been assessed so that the non-declaration of the above information was in a material particular to the assessment of regulation 600.211 that addresses the ‘Genuine Temporary Entrant’ criteria.  The delegate was not satisfied that the applicant met Public Interest Criterion (PIC) 4020, subclause 4020 (1) and therefore did not meet regulation 600.213.

9. The delegate found it likely that the applicant purposely misled the department to influence a positive decision on the current visa application.

10. The delegate acknowledged the applicant’s heart issue and the length of time not seeing her family but was not satisfied there were grounds to justify the waiver of PIC 4020 and the granting of the visa.

    Family Movement Records

11. The Department’s movement records for the applicants and the review applicant’s siblings indicate the following:

    -The visa applicant has been to Australia on a Visitor visa on six previous occasions and each time departed before the expiration of her visa.

    -The review applicant became a citizen of Australia in 2002, subsequent to holding a Partner visa.

    -The review applicant’s brother [Mr A] became an Australian citizen in 2013, subsequent to holding an Employee Nomination Scheme visa.

    -The review applicant’s brother [Mr B] became an Australian Permanent Resident in October 2022.  He came to Australia in 2012 on a subclass 457 visa which he held until November 2016.  He then held bridging visas until the grant of his permanent residency.  He has not been unlawful in Australia.

    -The review applicant’s brother [Mr C] became an Australian citizen in 2014, subsequent to holding a Regional Sponsorship Migration Scheme visa.

    -The review applicant’s brother [Mr D] became an Australian Permanent Resident in May 2022.  He came to Australia in 2005 on a subclass 457 visa. He obtained subsequent subclass 457 visas, the last of which ceased in August 2016. He then held a series of bridging visas until the grant of his permanent residency.  There appears to be a matter of several days in which he did not hold a bridging visa.

    -The review applicant’s sister [Ms E] became an Australian citizen in 2016, subsequent to holding a Regional Sponsorship Migration Scheme visa.

    -The review applicant’s sister [Ms F] became an Australian citizen in 2015, subsequent to holding a Regional Sponsorship Migration Scheme visa.

    Review Information

12. With the review application the review applicant lodged the following additional document:

    -A letter from the review applicant stating that the department was well aware of the status of his two siblings as his mother’s previous visa applications were refused on this basis. Further he also mentioned this in his letter to the department.

    Pre-Hearing Submission

13. On 9 August 2023 the applicant’s newly appointed representative provided a copy of the visa applicant’s current and two past Pakistan passports, the review applicant’s Australian passport, and the following written submission:

    …

    The Delegate made findings to the effect that the following matters brought the Visa Applicant within the ambit of PIC4020 (5), namely:

    a. not listing two of the Visa Applicant’s sons; and
    b. not disclosing their visa status/history.

    The issue for determination in this case is whether the Applicant has given, or caused to be given to the Department a bogus document or information that is false or misleading in a material particular and, if so, whether there are compassionate or compelling reasons for this public interest criterion to be waived.

    Was information omitted so as to enliven PIC4020?

    Providing false or misleading information can include a failure to answer a question, (ie an
    omission). The Delegate states that “The Applicant didn’t list her two children who have an adverse immigration history and are currently residing in Australia”. In short, nowhere in the application form or subsequent correspondence from the Department was the Visa Applicant required to list all of her children. There was no omission of information, let alone an omission which could enliven PIC4020.

    Was a question answered incorrectly so as to be false or misleading?

    The question in the Visitor visa form which was submitted to the Department asks whether there are other ‘members of the family unit not travelling to Australia who are not Australian Citizens or Permanent Residents’. This is the relevant question and was answered ‘No’. This was answered correctly.

    Before reaching an analysis of the double negative, one must look at the phrase “members of the family unit” (MOFU) in the context of Regulation 1.12(2), which defines a MOFU as:

    a. a spouse or de facto partner of the family head; or
    b. a child or step-child of the family head or spouse or de facto partner, and they have

    i. not turned 18; or
    ii. have turned 18 but have not turned 23 and is dependent; or
    iii. have turned 23 and falls under paragraph 1.05A(1)(b) as dependent; or

    c. they are a dependent child of a person who meet the conditions of Regulation 1.12(2)(b) above.

    The Delegate was concerned with two of the Visa Applicant’s adult children over the age of 23, who are neither dependent under Regulation 1.12(2)(a) or dependent due to incapacity under Regulation 1.05A(b). They are not members of the Visa Applicant’s family unit.

    The question was answered correctly and also does not enliven PIC4020.

14. The applicant’s passport, issued in [2023], shows stamps for several journeys between Pakistan and [Country 2].

15. The applicant’s passport, issued in [2018], shows stamps for numerous journeys between Pakistan, [Country 2] and [Country 1].

16. The applicant’s passport, issued in [2008], shows stamps for journeys to Australia.

    The Tribunal hearing

17. The review applicant appeared before the Tribunal on 16 August 2023 to give evidence and present arguments. The applicant’s representative also attended the hearing. The following is a summary of the information provided by the review applicant at the hearing:

    a.His mother is aged [Age] but her health is okay for travel and she is in good spirits.  She was able to manage by herself during the COVID pandemic when no one could visit her.

    b.When helping his mother to complete the visa application form the review applicant only included his name and details in the application, and not any of his other siblings, because he was the sponsor of the application and he knew all their details had been previously provided to the department.

    c.When his mother’s Visitor visa was refused the family based her in [Country 2] so they could take turns to visit her there.  Every three months or so she returns to Pakistan for about a month. In Pakistan she has two maids, a driver and a watchman so her situation is secure and looked after there. She always wants to return to Pakistan as her home, her church and her sister are there.  To the disappointment of her family in Australia she prefers to spend Christmas in Pakistan rather than in Australia so that she can celebrate with her own church community in Pakistan.

    d.In Pakistan his mother is in a secure situation.  She has no connections outside of her community and is purely at home and in church. She doesn’t even go shopping as this is done by the driver and maid.

    e.A Contributory Parent visa application has been lodged for his mother but they do not know what stage it is at or how much longer it will take for the visa to be issued.  He and his siblings want their mother to be able to visit Australia from time to time while waiting for the visa to be issued.

    f.His mother has always fully complied with all conditions of visas and stays in every country she has been to.  She regularly travels between [Country 2] and Pakistan. While she was based in the [Country 1] she regularly travelled between [Country 1] and Pakistan.  She is permitted to spend three months at a time in [Country 2] and one month in [Country 1] so she returns to Pakistan regularly to ensure she complies with the countries’ rules.  She would also return to Pakistan regardless as she starts to miss her life there after just a few months.  She starts to ask the family to book her a flight home. The family can financially afford to fly their mother back and forth to Pakistan often.

    g.His mother has a sister in Pakistan. Her [brothers] who were there have passed away but their families are still in Pakistan. The review applicant’s mother is very connected with them all.  His mother’s sister visited his mother in [Country 2] recently but has returned to Pakistan.  His mother wants to go back to Pakistan now to be with her sister.  Even when she obtains a Contributary Parent visa his mother will still want to return to Pakistan from time to time.

    h.Mostly the review applicant supports his mother financially but his father also left his mother financially comfortable.

    i.After the review applicant’s father passed away the review applicant returned to Pakistan to stay with his mother then they relocated her to [Country 1]. His mother lived in [Country 1] with the review applicant’s wife while they were waiting for the review applicant’s wife to obtain her Australian visa. 

    j.The review applicant and his siblings do not want to leave their mother alone.  They want her to be able to visit them in Australia for a few months and return to Pakistan regularly.  Because of the Visitor visa refusal they have relocated her to [Country 2] and every month a sibling goes with their family to [Country 2] to be with her.  It is disruptive as they take their children and their children are out of school for this period.

    k.The Tribunal asked the review applicant what his mother will do if she is issued a single entry Visitor visa, and will she still depart Australia before her visa expires. The review applicant responded that they want a multi-entry visa for her but if it is only a single entry then they will continue the arrangements for her mother to be based in [Country 2] and she will go back there before the visa expires as they continue to wait for the Contributory Parent visa to be issued.

    l.The review applicant’s representative referred to the Department’s policy guidelines relevant to a subclass 143 Contributory Parent visa application, that visits by the applicant to Australia should be facilitated while waiting for the visa to be granted. The representative estimates that the visa applicant’s Contributory Parent visa may not be granted until 2026. The representative also submitted that the Tribunal should make a decision in regard to whether or not the visa applicant meets the requirements of clauses 600.213, 600.211 and 600.221 of Schedule 2 to the Regulations.

    CONSIDERATION OF CLAIMS AND EVIDENCE

1. In considering the applicants’ matter the Tribunal has found the timely written and oral submissions by the applicant’s newly appointed representative helpful and well-focussed.

   Public Interest Criterion 4020

2. The Tribunal notes the applicant’s representative request that the Tribunal make a decision in relation to all the requirements of clause 600.213. However this would necessitate a consideration of several public interest criteria in regard to which there is no evidence before the Tribunal. The Tribunal therefore is considering only PIC 4020 in relation to cl 600.213.

3. Broadly speaking, Public Interest Criterion 4020 (PIC 4020) as required by cl 600.213 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).

4. 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?

5. 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.

6. 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.

7. 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.

8. The delegate found that the visa applicant had provided false and misleading information in relation to a material particular in her visa application by not naming her two sons [Mr D] and [Mr B] as being present in Australia in the visa application.  The Tribunal notes that the delegate describes [Mr D] and [Mr B]’s immigration history in Australia as ‘adverse’.  The Tribunal observes that [Mr D] and [Mr B] both obtained their permanent residence in Australia lawfully and were granted visas for which they met the criteria. The review applicant’s other children in Australia have similarly lawfully obtained visas, permanent residence, and/or citizenship in Australia.

9. The Tribunal has a copy of the visa applicant’s visa application. The only questions in the form related to naming family and relatives are:

   -A question regarding travelling companions in which the visa applicant identifies her daughter-in-law (the review applicant’s wife) and three grandchildren (the review applicant’s children). 

   -A question regarding whether the visa applicant has family unit members who are not travelling to Australia and who are not Australian citizens or permanent residents to which the visa applicant answered ‘No’.

   -A question regarding whether the visa applicant will visit “any relatives, friends or contacts while in Australia” to which the visa applicant answered yes.

   -A question entitled ‘Contact in Australia’ in which the visa applicant identified her son, the review applicant.

   -A question regarding the sponsor of the visa application in which the visa applicant identified her son, the review applicant.

10. Based upon the evidence available to the Tribunal the visa applicant’s answers to all the above questions are correct.

11. There is no question on the form in which an applicant is specifically required to list all family members or close relatives in Australia.

12. There is a question in the visa application form as to whether an applicant has ever had a visa refused, to which the visa applicant answered yes. She then provided details of her previous two Visitor visa applications and stated that the refusal was based upon an assumption she would overstay the visa and change her status because of some of her family’s immigration history.  There are also the letters from her children, as set out above, which also make reference to the past refusals based partly upon family members’ immigration history in Australia.

13. The sponsored family stream Visitor visa application is an on-line visa application and the Tribunal has not been able to locate a paper version to view the instructions in the form relating to naming family and relatives in Australia. The Tribunal therefore enquired of the department as to the relevant instructions.  An officer of the department provided the following response on 1 August 2023:

    When completing the online application form, applicants are asked the following question:

    Relatives, Friends or contacts in Australia

    ·Will the applicant visit any relatives, friends or contacts while in Australia?

    If the applicants answer “Yes” to the above question, they will be prompted to provide details of their contacts in Australia, including:

    ·Relationship to applicant

    ·Family name

    ·Sex

    ·Date of birth

    ·Residential address

    ·Contact telephone numbers

    ·Business phone

    ·Mobile / Cell phone

    ·Electronic communication

    ·Email address

    ·Australian residency status

14. The Tribunal notes this instruction does not require an applicant to identify all their family and close relatives in Australia, it merely asks for details of ‘contacts’.

15. In view of the above the Tribunal is not satisfied that the visa applicant has provided false information by not including the names of her sons, [Mr D] and [Mr B], and not stating that they are in Australia.

16. As set out above that PIC 4020 is directed at information which is purposely untrue, having an element of fraud or deception.  The Tribunal is not satisfied that the answers and information provided by the visa applicant in her visa application have any element of fraud or deception.  The application, read as whole, makes reference to the family’s immigration history, her past visa application and the reasons for refusals. Her past Visitor visa application listed all family and close relatives in Australia so the visa applicant was fully aware the department possessed this information.  The visa applicant also provided her official family register naming all her male children with the visa application.  Further it was not just [Mr D] and [Mr B] who were not specifically identified in the current application but all of her children in Australia, apart from the review applicant.  It seems clear therefore that the visa applicant was merely identifying the person she perceived to be her main contact in Australia and not purposefully withholding the identity of two children the department was concerned about but was also fully aware of, as all parties knew.  The Tribunal is not satisfied that there was any intention by the visa applicant to mislead the department by not specifically stating [Mr D] and [Mr B]’s presence in Australia in the application form. The Tribunal is further not satisfied that there was any potential for this omission to be misleading or to mislead the department.

17. There is no indication that the visa applicant has given or caused to be given a bogus document with her visa application.  The Tribunal is therefore satisfied she has not done so.

18. In view of the above the Tribunal finds that the visa applicant meets PIC 4020(1).

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

19. 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 3 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).

20. There is no indication that the visa applicant or any family unit member have been refused a visa because of a failure to satisfy PIC 4020(1) in the period commencing 3 years before the application was made. The Tribunal is therefore satisfied this has not occurred.

21. In view of the above the Tribunal finds that the visa applicant meets PIC 4020(2).

22. Given the Tribunal’s findings that the visa applicant meets PIC 4020(1) and PIC 4020(2) there is no need to consider the existence of compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident, that justify the granting of the visa. However the Tribunal notes that, in its view, such circumstances exist given the distress and high levels of disruption to the visa applicant’s children and their families’ lives in Australia caused by the refusal to grant the Visitor visa.

    Has the applicant satisfied the identity requirements?

23. PIC 4020(2A) requires an applicant satisfy the Tribunal as to his or her identity. 

24. The visa applicant has provided copies of her past and current Pakistan passports. She has travelled to Australia previously on her Pakistan passport.

25. There is nothing before the Ttribunal to indicate the applicant has any identity other than the one provided in her passport and her visa application.  There is nothing to indicate that the applicant’s identity, as set out in her Pakistan passport and her visa application, is not her true identity.

26. On the basis of the evidence before it the Tribunal is satisfied that the applicant has the identity as set out in her passport and visa application.

27. Therefore, the applicant meets PIC 4020(2A).

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

28. 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).

29. There is no indication that the visa applicant or 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. The Tribunal is therefore satisfied this has not occurred.

30. In view of the above the Tribunal finds that the visa applicant meets PIC 4020(2B).

    Conclusion on PIC 4020

31. On the basis of the above, the Tribunal finds that the applicant does satisfy PIC 4020 for the purposes of cl 600.213.

    Clause 600.211

32. The delegate raised in his decision that not specifically naming [Mr D]and [Mr B] as present in Australia in the visa application impacted the assessment of the genuine temporary entrant requirements under cl 600.211 of Schedule 2 of the Regulations.

33. Clause 600.211 requires that the visa applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted, having regard to whether the applicant has complied substantially with the conditions to which the last substantive visa, or any subsequent bridging visa, held by the applicant was subject; whether the applicant intends to comply with the conditions to which the Subclass 600 visa would be subject; and any other relevant matter.

34. In the present case, the visa applicant seeks the visa for the purpose of a family visit. This is a purpose for which a visa in the Sponsored Family stream may be granted: cl.600.231.

35. In considering whether a visa applicant genuinely intends to stay temporarily in Australia for this purpose, the Tribunal must consider whether he or she has complied substantially with the conditions of the last substantive visa held, or any subsequent bridging visa (cl 600.211(a)).

36. According to the Department’s records the visa applicant last held a Tourist visa granted to her in November 2012.  The visa was valid until 22 November 2013. The visa applicant departed Australia on 5 October 2013.  The Tribunal finds that this is the last substantive visa held by the visa applicant. There is no indication that she breached any of the conditions of that visa. The Tribunal is therefore satisfied that the visa applicant complied substantially with the conditions of her last substantive visa. The Tribunal gives this factor significant weight in the visa applicant’s favour.

37. The Tribunal must also consider whether the visa applicant intends to comply with the conditions to which the Subclass 600 visa would be subject (cl 600.211(b)). The conditions to which a visa in the circumstances of this case would be subject are as follows (cl 600.612):

    8101 – must not work in Australia

    8201 – must not engage in study or training in Australia for more than 3 months

    8503 – not entitled to a substantive visa, other than a protection visa, while remaining in Australia

    8531 – must not remain in Australia after end of permitted stay.

38. The Tribunal notes the visa applicant is aged 72, retired, and is financially comfortable. In her circumstances the Tribunal considers it unlikely she anticipates working in Australia. The Tribunal accepts that she will be accommodated and supported by the review applicant while in Australia. The Tribunal accepts that she will have access to sufficient funds to support herself during a visit to Australia. The Tribunal is therefore satisfied that she does not intend to work while in Australia.

39. There is no evidence or indication the visa applicant has any interest or need to study in Australia. The Tribunal is therefore satisfied she intends to comply with Condition 8201.

40. Condition 8503 refers to entitlement and is not a condition that involves compliance.

41. The visa applicant's intention to comply with condition 8531 is discussed below in relation to whether she genuinely intends to stay temporarily in Australia. The Tribunal has also considered all other relevant matters (cl 600.211(c)).

42. The Tribunal accepts that the visa applicant is an elderly woman form Pakistan who is currently based in [Country 2] to facilitate visits from her family in Australia. 

43. The review applicant gave persuasive evidence which the Tribunal accepts that his mother needs to spend time with her children and her family but also needs and wants regular returns and contact with Pakistan where she has her community, her church, her brothers’ families and her sister with whom she is very close.  The Tribunal considers that this integral part of the visa applicant’s life is significant inducement for her to depart Australia to be in Pakistan before her visa expires.

44. The Tribunal notes that the visa applicant and her family have gone to great lengths and expense to ensure that the visa applicant complies with her visa and entry conditions in both [Country 2] and [Country 1] over recent years. They have ensured the visa applicant only ever remains in each country for the permitted length of time and departs to return to Pakistan, without ever overstaying in either country. The Tribunal considers this a good indication that the visa applicant and her family will make similar efforts in Australia to ensure she does not overstay a Visitor visa and that she complies with all conditions here.

45. The Tribunal considers that the visa applicant’s children in Australia have good immigration histories to a large extent.  The only evidence of any non-compliance amongst the seven children here appears to be a several day period when one her sons did not hold a Bridging visa. Further, although two of her sons changed their status in Australia they did so lawfully.  The review applicant was also persuasive in his evidence that he and his mother consider compliance with a country’s immigration rules as essential.  The Tribunal considers these factors favourable to the expectation the visa applicant will not overstay her visa and will comply with her visa conditions here.

46. The Tribunal also acknowledges the importance to the review applicant of maintaining a good reputation with regard to his family and relatives’ immigration compliance in Australia. The Tribunal considers this motivation for the family to ensure the visa applicant complies with her visa conditions and departs before her Visitor visa expires.

47. There is nothing adverse before the Tribunal to indicate the visa applicant intends to overstay her visa or breach any visa conditions in Australia.  As set out above, she has demonstrated compliance and timely departure on all previous visits to Australia.  She also has a current Contributory Parent visa application with lodged with department and is hopeful of a positive outcome within the next few years.  A Visitor visa to allow her to visit Australia in the meantime seems appropriate to her circumstances given her history and her accepted desire to maintain a regular recurring presence with her sister, relatives, church and community in Pakistan

48. Based on the available information the Tribunal is satisfied that the visa applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted, and finds that the requirements of cl.600.211 are met.

    Clause 600.221

49. Clause 600.221 is as follows:

    The applicant intends to visit Australia, or remain in Australia:

    (a)  to visit an Australian citizen, or Australian permanent resident, who is a parent, spouse, de facto partner, child, brother or sister of the applicant; or

    (b)  for any other purpose that is not related to business or medical treatment.

50. The visa applicant and the review applicant have both given consistent evidence that the visa applicant wishes and intends to visit the review applicant, who is her son, in Australia. There is nothing before the Tribunal to indicate otherwise and the Tribunal accepts their evidence. The review applicant has submitted his Australian passport and the Tribunal accepts that he is an Australian citizen. The Tribunal is satisfied that the visa applicant intends to visit Australia to visit an Australian citizen who is her child. The Tribunal is therefore satisfied that the requirements of clause 600.221 are met.

    DECISION

1. The Tribunal remits the application for a Visitor (Class FA) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 600 (Visitor) visa:

   ·Public Interest Criterion 4020 for the purposes of cl 600.213 of Schedule 2 to the Regulations

   ·Cl 600.211 of Schedule 2 to the Regulations; and

   ·Cl 600.221 of Schedule 2 to the Regulations

   Melissa McAdam
   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.

   …