Abdalla (Migration)

[2019] AATA 3834

Abdalla (Migration) [2019] AATA 3834 (3 February 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Saleh Abdalla

VISA APPLICANTS:  Mrs Asia Jime
Mr Marwan Gursie

CASE NUMBER:  1617266

DIBP REFERENCE:  BCC2015/4039164; OSF2015/063008

MEMBER:Rosa Gagliardi

DATE:3 February 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the applications for Partner (Provisional) (Class UF) visas for reconsideration, with the direction that the first named applicant meets the following criteria for Subclass 309 (Spouse (Provisional)) visas:

·Public Interest Criterion 4020(1) for the purposes of cl.cl.309.225 of Schedule 2 to the Regulations.

Statement made on 03 February 2019 at 4:49pm

CATCHWORDS

MIGRATION – Partner (Provisional) (Class UF) – Subclass 309 (Spouse (Provisional)) – bogus document – marriage certificate – compelling circumstances – decision under review remitted

LEGISLATION

Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2 cl 309.225, Public Interest Criterion (PIC) 4020

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 23 August 2016 to refuse to grant the applicants Partner (Provisional) (Class UF) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 24 December 2015. The delegate refused to grant the visas on the basis that the first named applicant (the applicant) did not satisfy the requirements of cl.cl.309.225 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because it was considered that Public Interest Criteria (PIC) 4020 was not met as a bogus document had been supplied, namely a false marriage certificate.

3. The review applicant appeared before the Tribunal on 28 November 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant overseas.  The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic (Sudanese) and English languages.

4. The review applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The issue in this review is whether the visa applicant meets Public Interest Criterion 4020 (PIC 4020) as required by cl.cl.309.225 for the grant of the visa. Broadly speaking, this requires that:

   ·there is no evidence that the applicant has given, or caused to be given, to the Minister, an officer, the Tribunal, a relevant assessing authority, or Medical officer of the Commonwealth, a bogus document or information that is false or misleading in a material particular in relation to the application for the visa or a visa that the applicant held in the 12 months before the application was made: PIC 4020(1); and

   ·the applicant and each member of the family unit has not been refused a visa because of a failure to satisfy PIC 4020(1) during the period starting 3 years before the application was made and ending when the visa is granted or refused, unless the applicant was under 18 at the time the application for the refused visa was made: PIC 4020(2) and (2AA); and

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

   ·neither the applicant nor any family unit member has been refused a visa because of a failure to satisfy PIC 4020(2A) during the period starting 10 years before the application was made and ending when the visa is granted or refused, unless the applicant was under 18 at the time the application for the refused visa was made: PIC 4020(2B) and (2BA).

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.

   Has the applicant 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.

11. The applicant and sponsor claim they were married on 20 June 2014.  On 22 February 2016, the applicant submitted what appeared to be an “original” marriage certificate issued and verified by the Sudanese authorities.  On 29 March 2016, the Department referred this certificate to the Sudanese Embassy in Cairo for verification of its authenticity.  On the same day, the Sudanese Embassy responded by phone that the endorsement stamp on the certificate from the Ministry of Foreign Affairs in Sudan was fraudulent.

12. The Department then sent a natural justice letter to the applicant on 11 April 2016, regarding the fraudulent certificate and requested she provide, if relevant, details of any compelling or compassionate circumstances as to why PIC 4020 should be waived and the visa granted.

13. The applicant responded on 9 May 2016 stating that she and the sponsor did not expect that the marriage certificate was non-genuine and that it was obtained with the help of a “facilitator” in Sudan, who she paid for the service.  She also submitted an English translation for a newly issued marriage certificate backdated to 2014.  At the time of application the Department was not satisfied that the first named visa applicant had provided any reasonable or convincing explanation as to why a fraudulent document was provided in relation to the application.

14. In a submission to the Tribunal on behalf of the applicant, the migration agent sets out the facts of the case.  It is argued that the applicant and sponsor met in Khartoum, Sudan in January 2013 while the sponsor was there on holiday.  Both parties are Eritreans but both had spent lengthy periods of time in the comparatively safer Sudan.  The couple were married in Sudan on the sponsor’s return there in June 2014. 

15. In the subsequent years, the sponsor spent 6 months with his wife between December 2016 and April 2017 in Sudan, and again, between March and August 2018, in Cairo, Egypt.

16. In January 2017 the couple attended fertility treatment in Khartoum but as far as the Tribunal is aware, they are yet to be able to conceive children.  Having children together is important to both parties.

17. It is argued that when the applicant attended the Departmental interview in February 2016, she supplied what she believed to be an original of her marriage certificate. 

18. The applicant, it is contended, applied to the appropriate authorities for the issue of a marriage certificate.  However, she was told that the marriage certificate should have been issued on the day of the wedding ceremony.  To get a certificate after that time, she was told, would require an application to a Court for a re-issue.  However, “because the applicant is a refugee in Sudan, she was worried that she would be required to provide a Sudanese residence certificate, which she did not have”.

19. To resolve the problem the applicant sought the assistance of a facilitator who would help her apply for a marriage certificate without the need for attending Court and it was in these circumstances that the initial marriage certificate was issued to the applicant.  The migration agent argues that the applicant believed she was doing everything correctly.

20. The migration agent then goes on to argue that this case rests on the PAMS notation as follows:

    A visa applicant would not necessarily fail to satisfy PIC 4020 if they could explain an innocent mistake in a document or information provided by them or on their behalf.  If an applicant can explain an innocent mistake or error, as part of the procedural fairness process or otherwise, they may satisfy PIC 4020(1). [Emphasis migration agent].

21. The migration agent argues that the core issue is whether the applicant intentionally provided a fraudulent document to the delegate, because in his view, she did not.  The agent also refers to the case in Trivedi in which the Full Federal Court held that to refuse on the basis of PIC 4020:

    it is necessary that the information or document have the quality of “purposeful falsity” whether or not the visa applicant can be shown to have personal knowledge of that fact.  A visa application could not be refused due to PIC 4020 if a visa applicant could explain an innocent mistake in a document or information provided by them or on their behalf.

22. With respect, the Tribunal does not agree with the migration agent’s ultimate conclusion.  The Tribunal concurs that to engage PIC4020 there has to have been an element of fraud or deception by some person to attract the operation of the provision – that is, the relevant information or document needs to be purposely untrue in that there must have been knowledge or intention on somebody’s behalf - and not necessarily the applicant’s.  The Tribunal considers that the “facilitator” was deliberately attempting to circumvent the requirements of the laws of Sudan on behalf of the applicant, because she was a refugee in that country.  Therefore, the Tribunal finds that there was intentionality and purposeful falsity on the part of the facilitator. 

23. It could also be argued that the applicant herself was complicit in the purposeful falsity because she needed to find a way to attain a certificate without going through the appropriate channels (which it appears she ultimately did).  The Tribunal does not consider that her actions were “a mistake” as such therefore, even if the Tribunal has sympathy for the reasons the applicant subjectively felt compelled to go through a facilitator to provide a document – regardless of its authenticity.

24. Having assessed the evidence before it, the Tribunal finds that the applicant does not meet PIC 4020(1).

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

25. 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.

26. 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.

27. The parties have now been married since 20 June 2014 – four years ago.  In that time they have been trying to have a child together, even if this has entailed significant hardship for the sponsor who is required to go offshore for the parties to have a possibility of starting a family – a fundamental human right.   The Tribunal considers that the physical separation of the parties for a longstanding period is impacting adversely on their ability to have a child, as the medical facilities regarding fertility treatment would be of a much higher standard in Australia than they are in Sudan.

28. While the Tribunal acknowledges that filing bogus documents is a serious matter, the Tribunal considers that the parties’ circumstances are compelling and warrant compassion and that such circumstances outweigh the initial wrongdoing.

29. For these reasons, the Tribunal is satisfied that the requirements should be waived.

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

    Has the applicant satisfied the identity requirements?

31. PIC 4020(2A) requires an applicant satisfy the Tribunal as to his or her identity.  The Tribunal has no information before it that would cause it to question the identity of the first named visa applicant.  Therefore, the applicant meets PIC 4020(2A).

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

32. 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).

33. Again, this is not a matter about which the Tribunal has adverse information before it.  Therefore PIC 4020(2B) does not apply.

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

    DECISION

35. The Tribunal remits the applications for Partner (Provisional) (Class UF) visas for reconsideration, with the direction that the first named applicant meets the following criteria for Subclass 309 (Spouse (Provisional)) visas:

    ·Public Interest Criterion 4020 for the purposes of cl.cl.309.225 of Schedule 2 to the Regulations.

    Rosa Gagliardi
    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. 

    …