ADLER (Migration)

[2018] AATA 3610

ADLER (Migration) [2018] AATA 3610 (20 August 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr DAVID JOHN ADLER

VISA APPLICANT:  Miss NORBERTA MERCADO DE GUZMAN

CASE NUMBER:  1709758

DIBP REFERENCE(S):  BCC2016/1446878

MEMBER:Linda Holub

DATE:20 August 2018

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a Partner (Provisional) (Class UF) visa.

Statement made on 20 August 2018 at 3:41pm

CATCHWORDS
Migration – Partner (Provisional) (Class UF) visa – Subclass 309 (Partner (Provisional)) – Whether the applicant has given, or caused to be given, information that is false or misleading in a material particular – Where the visa applicant failed to declare a previous marriage – Whether the requirements of PIC 4020 should be waived – Where the review applicant claims they will experience financial and emotional hardship – Hardship does not amount to compelling circumstances – Decision affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 309.225, 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

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 4 May 2017 to refuse to grant the applicant a Partner (Provisional) (Class UF) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant, who is a national of the Philippines, was born in June 1983. She applied for the visa on 22 March 2016. The delegate refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl.309.225 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the delegate found that overall no specific compelling or compassionate circumstances exist to waive the requirements of PIC 4020(1).

3. The review applicant appeared before the Tribunal on 8 August 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant and the sponsor’s brother.

4. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

CONSIDERATION OF CLAIMS AND EVIDENCE

1. The issue in this review is whether the visa applicant meets Public Interest Criterion 4020 (PIC 4020) as required by 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).

2. 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?

1. 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.

2. 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.

3. While PIC 4020 refers to information that is false, in the sense of purposely untrue, it is not necessary for the Minister (or the Tribunal on review) to conclude that the applicant was aware the information was purposely untrue in order for PIC 4020 to be engaged. However, an element of fraud or deception by some person is necessary to attract the operation of the provision: Trivedi v MIBP [2014] FCAFC 42.

10) The delegate’s decision which was provided to the Tribunal indicates that as part of the application, the visa applicant responded “NO” to question 61 at Part G of Form 47SP, when asked if she has been married to a person other than her current sponsor. On 25 July 2016, the applicant was asked to provide the department with a Certificate of No Marriage or Advisory Marriages listing all of her previous marriages. In response on 7 August 2016, the visa applicant informed the Department she had been previously married in 2003. She provided evidence that she engaged a lawyer on 5 August 2016 to undergo an annulment of that marriage.

11) In responding to the Department the visa applicant stated that:

“In 2003, I was 19 years old and pregnant with my daughter I was forced into a civil marriage for the sake of the child to Henry Endralino.  The marriage lasted three months as he left for another woman due to financial constraints could not apply for an annulment and he would not. I have had no contact with him since the day he left approximately 13 years ago”[1].

[1] AAT file, folio 2.

12) On 24 October 2016 the Department formally put to the applicant the adverse information regarding her marriage to Mr Endralino and provided her with an opportunity to comment and to put forward any 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 on an eligible New Zealand citizen, which might justify waiver of the PIC 4020 requirement and grant of the Visa.

13) The decision indicates that on 29 October 2016, the sponsor commented that as the applicant had no contact with the father of her daughter or received any financial help for many years, she previously believed the marriage has not registered. The parties have now started a new life together in Australia and the sponsor has made a commitment to the visa applicant by marrying her and putting his home and bank accounts in joint names.

Evidence before the Tribunal

14) In a submission provided to the Tribunal on 8 May 2017, the sponsor provided a history of the circumstances which led to the situation where the visa application was refused.  In it, he states:

·     “At the time Norberta was first married [Henry Endralino] it was forced on her, by virtue of her being 18yrs of age, pregnant, and family pressure.

·     Within 12months of the child’s birth [Hazel Kate] the relationship had broken down and [Endralino] was unfaithal (sic) with another woman. They then separated.

·     At the time Norberta sort financial help from [Endralino] for support of the child [Hazel].

·     Some 13 months after the birth of Hazel, [Endralino] advised Norberta that the marriage was over and probably never registered and she would be getting no support from him. As I’m seeing someone else now.

·     During the next 12 years or so Norberta’s Mother and Sister cared for “Hazel” while Norberta found employment so she could financially support her daughter with schooling and day to day living”[2].

[2] AAT file, folio 34, page 2.

15) A copy of a petition lodged with the Regional Trial Court of the Republic of the Philippines by the visa applicant seeking an annulment has been provided to the Tribunal.  As the petition is some five pages long, relevant sections from that petition indicating the contact between the visa applicant and Mr Endralino have been extracted below:

“Around the year 2004, petitioner [referring to the visa applicant] went home with baby Hazel Kate to her mother in Sindangan, Zamboanga del Norte.  At the advice of her parents to lengthen her understanding of her husband and work hard to keep her family, petitioner gave her husband a chance to reform and stand up to his role in their family.  She returned to her in-laws house.  But the next months were no different.  Respondent [Mr Endralino] maintained his uncaring and abusive ways.  Petitioner held on for the sake of the growing daughter.

To effect a change that she hoped, petitioner borrowed money from her sister in the year 2008 in order to build a small heart so she, respondent and the baby could live in a separate house. She sold the cow that her mother gave her as a wedding gift, and used the money to open a small sari-sari store.

She was able to sustain the situation for only two months as respondent showed no support nor did he perform any of his responsibilities as husband and father. On the other hand, he found reason to break of the new heart and store, and the daily sales ended up entering for their daily sustenance and his drinking spree.

Petitioner had no other choice but go back to her in-laws house, where she knew, petitioner daughter would be without a future and she would be stuck in misery. She returned with her daughter to her parent’s house in the year 2009, but then her father died and things became rough, two in her parent’s home. Respondent no longer communicated with her or their daughter.  Petitioner decided to go back to see Cebu to work in the year 2010”[3].

[3] AAT file, folios 6-8.

16) The last paragraph of this submission states that the “petitioner and respondent have finally separated in bed and board for good since the year 2009 or for seven years already. They have not acquired any conjugal property of value”[4].

[4] AAT file, folio 6.

17) At hearing the Tribunal discussed with the review applicant its understanding of the circumstances in respect of the visa application.  He affirmed the Tribunal’s understanding and explained the difficult circumstances of the visa applicant’s marriage to her first husband.  The review applicant said he had incorrectly completed the application form indicating that the visa applicant had not been married and provided two explanations for wrongly completing the application form.  One related to the difficulty, complexity and the time involved in applying for the Partner visa.  He also referred to the visa applicant believing that she was not legally married because her first husband told her not to expect any financial support because they were not legally married.  He claimed that on that basis, she considered she was not.

18) The review applicant acknowledged that conflicting information had been provided.  The Tribunal explained to the applicant that in the light of false information being provided to the Department on the original application and the subsequent inconsistent explanations as to why the form contained false information, raised credibility concerns for the Tribunal.  He stated that he understood the concerns.  He took full responsibility for what had occurred and repeated that he was the one who had completed the forms and provided responses to the Department.  He stated that the dates/years that had been provided were his best estimates based on what the visa applicant could recall.

19) The visa applicant provided evidence that she told the sponsor that she had been married and had a child when they first met.  She provided consistent evidence in relation to the completion of the application form.  The visa applicant confirmed that the last contact she had with her first husband was in 2009 or thereabouts.  She also provided consistent evidence that he had told her that were not legally married in the context of him not being prepared to support their child financially.

20) The Tribunal also heard evidence from the review applicant’s brother.  He agreed that inconsistent information had been provided to the Department and the Tribunal.  He stated that having considered everything in his view he believes that the applicant did not provide false and misleading information.  He stated that when the application form was completed the parties believed that the visa applicant was not married at that time.  It was his view that confusion occurred subsequently when comments were provided to the Department explaining the visa applicant’s previous relationship.

21) The Tribunal accepts that the application was incorrectly completed by the sponsor.  The Tribunal however does not accept that at the time the form was completed, the visa applicant did not consider herself married.  The petition seeking an annulment details the ongoing involvement she had with her first husband until 2009 and at hearing the visa applicant confirmed she had been in contact with him until then.  The Tribunal is prepared to accept that the sponsor considered that it would be more inconvenient to write that the visa applicant had not previously been married.

22) The Tribunal is satisfied based on the written and oral evidence before it that the applicant has given, or caused to be given, to the Minister, an officer, the Tribunal, a relevant assessing authority or a Medical Officer of the Commonwealth  ‘information that is false or misleading in a material particular’ as defined in PIC 4020(5), i.e. information that is:

·false or misleading at the time it is given, and

·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;

in relation to the visa application or a visa held in the 12 months before the visa application was made.

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

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

24) 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.

25) 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.

26) For the following reasons, the Tribunal is not satisfied that the requirements should be waived.

27) The Tribunal explained to the review applicant that there are provisions to waive the requirements and outlined to him that are reasons put forward must be compelling circumstances that affect the interests of Australia, or there must be compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen, that justify the granting of the visa.

28) The Tribunal noted that the review applicant had not put previously forward any compelling or compassionate circumstances he wished be taken into consideration and invited him do so.

29) The review applicant talked about having being divorced from his former wife approximately 15 years ago and raising his four sons are now aged 21 to 30.  He referred to his family being very close knit and to the fact that the family all live in Singleton.  He said that since he was a child the family has gathered together after Sunday mass to have breakfast together.  The review applicant also spoke in a heartfelt manner of his love of the visa applicant and her daughter and the importance of him being with them.  He indicated he had spent a lot of money to enable him to spend time in the Philippines over the past few years and that this has interrupted his work and reduced his income.  He said that if the visa is not granted he will have to move to the Philippines.  He said it would be a huge tragedy for him to leave his sons and that it would be extremely painful for him.

30) The Tribunal also provided an opportunity to the visa applicant put forward any other considerations in respect of compelling and compassionate circumstances.  However, despite the fact that the Tribunal explained several times what it was inviting her to do, she found it difficult to understand.  In view of this, the Tribunal provided the review applicant the option of providing any further written submissions by close of business on 13 August 2018.

31) On 12 August 2018, the Tribunal received a written submission from the review applicant.  It refers to:

a.issues raised at hearing about the review applicant having to choose between his family in the Philippines and his family in Australia.  If he were to leave Australia it would impact on his four sons and his sisters and their families.

b.health issues following the review applicant being made redundant in August 2014 after a period of being on restricted duties following workplace injuries that had accumulated over a number of years.  It states that the he was awarded compensation for permanent impairment of his neck and back on 9 November 2015 and on 1 March 2016 he received an entitlement to Total and Permanent Disability Payment from his Workers Compensation provider.  As a result of this, the review applicant is only able to perform limited tasks which do not require long periods of either sitting, standing or lifting of heavy items and refers to his current role driving a school bus for 2.5 hours in the morning and then a further 2.5 hours later in the day.  It also refers to requiring ongoing medical assessment and treatment to enable him to continue his current working arrangements.

c.financial issues resulting from the review applicant’s reliance on workers compensation payments.  It outlines his income and income streams and his expenses.  The submission states that should the applicant not reside in Australia, the statutory workers compensation payments and medical assistance would be discontinued pending appeal.  It states that he has received advice that it is unlikely that those benefits would be reinstated while he is living overseas which would place him in a very stressful situation and unable to provide either for himself or his family in the Philippines.

32) There were no submissions or information before the Tribunal which would suggest that there are compelling circumstances that affect the interests of Australia which would justify the grant of the visa.  On the basis of the material before it, the Tribunal is not satisfied that there are any compelling circumstances that affect the interests of Australia in this case.

33) The Tribunal accepts that the review applicant would prefer to be the visa applicant and that he may decide to live in the Philippines.  The Tribunal accepts that this would result in a separation from his family, including his sons.  The Tribunal notes that his sons are adults and there was nothing in the evidence before the Tribunal that his sons would have any difficulties without their father being in Australia.  The Tribunal accepts that the review applicant belongs to a close knit family and that a separation would be difficult.  The Tribunal is of the view that separations in families occur for many reasons and while they can be extremely difficult for those affected, there is nothing compassionate or compelling in the reasons outlined by the review applicant.

34) The Tribunal is prepared to accept the claims put regarding the review applicant’s financial situation although no corroborating evidence was put to the Tribunal.  The Tribunal also has had regard to the informed assumption that has been made about the review applicant’s eligibility for the workers compensation payments if he were to reside overseas.  However, in the absence of evidence that the applicant would not be entitled to his workers’ compensation payments, the Tribunal is not satisfied that this would be the case.

35) The Tribunal appreciates that there would be some difficulty for the review applicant if he did not receive his workers compensation payments and chose to live in the Philippines and is sympathetic to his situation, but overall is not satisfied on the evidence before it, that there are compassionate or compelling circumstances that affect the interests of an Australian citizen, Australian permanent resident or eligible New Zealand citizen, that justify the granting of the visa.  Therefore the requirements of PIC 4020(1) should not be waived.

36) On the basis of the above, the applicant does not satisfy PIC 4020 for the purposes of cl.309.225.

DECISION

37) The Tribunal affirms the decision not to grant the applicant a Partner (Provisional) (Class UF) visa.

Linda Holub
Member

ATTACHMENT

Migration Regulations 1994

Schedule 4

1. (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. 

…