Al-Shammary (Migration)

Al-Shammary (Migration) [2021] AATA 1029 (25 March 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
REVIEW APPLICANT:  Mr Muhsin Ali Mehalhel Al-Shammary
VISA APPLICANTS:  Mrs Laila Mousa Ashbaan Al-Jorani
Miss Sukaina Mohsin Oleiwi Alkbeeh
Miss Aseel Mohsin Oleiwi Alkbeeh
Master Mahdi Mohsin Oleiwi Alkbeeh
CASE NUMBER:  2004970
DIBP REFERENCE(S):  OSF2012/005171
MEMBER:Michael Cooke
DATE:25 March 2021
PLACE OF DECISION:  Sydney
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 for the purposes of cl.309.225 of Schedule 2 to the Regulations.

Statement made on 25 March 2021 at 11:46am
CATCHWORDS
MIGRATION – Partner (Provisional) (Class UF) visa – Subclass 309 (Spouse (Provisional)) – false or misleading evidence in visa application – stateless Bidoon or Iraqi citizen – half-brother, father’s work as police officer, previous international travel and son’s passport not declared – asserted incorrect information on several occasions – late provision of correct information does not cure original breach – compelling or compassionate reasons justifying grant of visa – delay in processing visa – lengthy family separation – serious security situation in home country – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 65, 105
Migration Regulation 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 [2014] FCCA 1264
Kaur v MIBP [2017] FCAFC 184
Plaintiff M64/2015 v MIBP [2015] HCA 50
Singh v MIBP [2018] FCCA 1136; [2019] FCAFC 22
Trivedi v MIBP [2014] FCAFC 42; (2014) 220 FCR 169
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration on 9 March 2020 to refuse to grant the applicants Partner (Provisional) (Class UF) visas under s.65 of the Migration Act 1958 (the Act).
The applicants applied for the visas on 23 December 2012. The delegate refused to grant the visas 9 March 2020 on the basis that the first named applicant (the visa applicant) did not satisfy the requirements of cl.309.225 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the visa applicant did not meet PIC4020(1).
The review applicant (Mr Al-Shammary) appeared before the Tribunal on 14 December 2020 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant by telephone from Babylon, Iraq. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages.
The review applicant was represented in relation to the review by his registered migration agent.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The delegate’s decision record (found on the Tribunal file) indicates that on 31/12/2012, the applicant provided evidence to the Department that was considered to be of a ‘non-genuine’ nature.
The applicant stated in her Form 47SP that she was born in Kuwait as a stateless person. She also stated that her three children, included on the application were stateless. The applicant also stated during an interview on 17/7/2013 that she and her children do not have any IDs or travel documents.
The applicant also claimed on her Form 80 that she and her family were stateless. She made no mention of travel to India in 2014 and did not provide the details of all her siblings. the applicant to have travelled to India she would have required travel documents which she has previously stated she was unable to obtain.
The applicant was asked to re-confirm her responses, specifically in regard to the citizenship of the applicant and her family, the details of her siblings, and her travel history. The applicant maintained her claims of statelessness, family composition and travel history via email on 26/6/2019.
The applicant failed to declare, on her application and Form 80, her half-brother, Abdulla AJAJ (DOB 29/6/1986), with whom she shares a father. The father of both Mr AJAJ and the applicant was a police officer in Kuwait. The Department also has evidence that the applicant travelled to India in 2014. The applicant was provided with 28 days to provide comment on the suspected ‘non-genuine’ information supplied to the Department.
On 3 February 2020, the following response was provided to the Department by the applicant’s migration agent on her behalf and it stated that:
·The applicant didn’t include her half-brother on her application due to human error and misunderstanding.
·The applicant’s father was a police officer in Kuwait and passed away in 2001.
·in relation to her travel to India in 2014 she stated that “at the time of her application she was undocumented; however she lately managed to obtain Iraqi documents and now she understands her obligations under section 105 of the Act to correct any incorrect information”.
The response then detailed the updated information that the applicant wishes to provide the Department including:
·    Adding her half-brother’s details to her application
·    Copies of her and her children’s Iraqi National ID cards (applicant and her two daughters issued on 23/07/2018 and son, Mahdi’s, issued on 28/4/2010)
·    Copies of her and her children’s Iraqi Passports (issued 6/8/2018)
The delegate acknowledged that the applicant had now provided evidence of her Iraqi nationality. However, until as recently as June 2019, when she was asked via email to reconfirm her citizenship, she had maintained to the Department that she was stateless. It was not until February 2020 when the applicant responded to a request for comment on the ‘non-genuine’ information that she provided her Iraqi passport and ID card.
The delegate noted that information was submitted which also indicated that the visa applicant was seeking a waiver on the basis that there are ‘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, that justify the granting of the visa’. These included:
·The applicant claims that she and her children are living in Iraq and are in a “serious security situation”.
·The applicant also claims that if the visa was not granted the sponsor would be left in Australia without the emotional support of his family and that he would be separated from his children.
·The applicant also claims that the sponsor is a businessman who would be impacted if the visa was not granted and he had to join his family elsewhere.
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).
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?
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.
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.
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.
Findings and reasons
The Tribunal acknowledges that the gist of the delegate’s findings on PIC 4020 concern the visa applicant’s erstwhile claim that she was a stateless Bidoon until finally granted Iraqi citizenship in 2018. She apparently did not mention to the Department (but they discovered) that she had travelled to India in 2014 to seek medical help for her son. Her husband has claimed in oral evidence that urgent medical treatment for her son was unavailable to her in Kuwait or Iraq. The review applicant has confirmed in oral evidence that he travelled from Australia to meet up with his wife and son in India whence his son had the successful treatment unavailable in their homeland. Movement details confirm this claim.
The delegate was of the view that the visa applicant must have had documentation to do this and, therefore, her claims of statelessness were false. Her husband, however, has claimed (in oral evidence) that she actually used a fake Iraqi passport to travel to India with her son. He informs (in oral evidence) that her authentic Iraqi documentation (submitted recently to the Department in 2020 pursuant to s.105 of the Act) had been a product of securing the more recent assistance of the local sheik to successfully liaise with the Iraqi authorities to that end. The review applicant has insisted that Bidoons seeking to obtain formal documentation must facilitate it through the agency of a local sheik The Tribunal finds this suggestion credible (see country information). The sheik in question then follows up the request for assistance by liaising with Iraqi (in this case) or Kuwaiti government authorities. Pursuing such an outcome takes time with no guarantee of success – he informed. The urgency of their son’s health condition and potential trip to India required a more immediate strategy - he insisted in oral evidence - hence the need to procure fake documents.
The delegate also claimed that the applicant failed to declare, on her visa application and Form 80, her own half-brother, Abdulla AJAJ (DOB 29/6/1986), with whom she shares a father. The father of both Mr AJAJ and the applicant was a police officer in Kuwait. The delegate opined that it was highly unlikely that the applicant’s father would have been able to serve as a police officer undocumented. Therefore, the delegate found the visa applicant’s claim that she could not obtain documentation highly unlikely. Instead the delegate found it is more likely the applicant had always been a citizen of Iraq. The Tribunal finds this conclusion difficult to reconcile in view of the history and status of Bidoons in the Gulf states. Apparently, Bidoons are stateless in Kuwait yet form a large if not the majority role in the Kuwaiti military forces (see country information).
The Tribunal quotes from a UNHCR document: (Tribunal italics and bolding)
Citizenship hopes become reality for Iraq’s Bidoon minority
UNHCR-funded legal initiative has secured nationality for hundreds of formerly stateless families in southern Iraq, giving them access to basic rights and services.
Mohammad still remembers the day when, aged nine and having just started school near the southern Iraqi city of Basra, the deputy principal called him out of class. He was told that due to his lack of identity documents he would no longer be able to attend lessons.
“I went home and realized that I had to go and work to support my family. Only work, and nothing else,” he says. “I have never experienced being a student or had a childhood. There has been no comfort in my life since then.”
Though he did not realize it back then, Mohammad is stateless. He is a second-generation member of Iraq’s Bidoon community, which arrived in the country from Kuwait immediately after the 1991 Gulf War, most with no recognized nationality or official papers.
As a result, despite being born in Iraq, Mohammad has spent his life living on the margins of society. He has no access to basic services including education and health care and is unable to vote, get married or even move around freely.
“I felt that I did not exist.”
The lack of an official identify has left Mohammad with scars, both mental and physical. After he was hit by a car when he was 12 years old, his mother Salima took him to the local hospital with a badly broken nose and ruptured ankle ligaments. But when she was unable produce identity documents for her or her son, the doctors would only administer first aid before sending them home.
The misshapen bridge of his nose and the pain he still feels in his ankle are daily reminders of injuries that never properly healed. But it is the psychological toll of his situation that has affected him most deeply, leaving him reluctant to venture outside the sparsely furnished concrete shelter he shares with his mother and sister for fear of being asked to produce ID.
“I felt that I did not exist. When you don’t have documents you are not counted,” he explains. “I feel like I have to watch my every move. I don’t even go to the local market, I just walk to work and come straight back home. My movement is very limited without civil documents.”
There are tens of thousands of Bidoons currently living in Iraq. Short for bidoon jinsiya – meaning “without nationality” in Arabic – most, like Mohammad’s mother Salima, can trace their heritage back to Iraq before their forebears settled in neighbouring Kuwait.
Now, thanks to a partnership between UNHCR – the UN Refugee Agency – and Iraqi NGO Mercy Hands, there is hope for Mohammad and others like him. Since August 2017, lawyers from Mercy Hands backed by UNHCR funding have been working to help Bidoons and other stateless people acquire Iraqi nationality, assisting an average of 500 individuals per year.
“I am so happy, it has put my mind at ease,” Salima says, the heavy lines around her eyes softening as she smiles. “I have a real hope that my children will be able to get their documents soon.”
Najar says the next step is to launch similar proceedings for Mohammad and his sister, based on their mother’s newfound legal status. Iraq’s nationality law was amended in 2006 to ensure that all children born inside the country can acquire nationality on an equal basis from their mother or father, unlike many other countries in the region where it is only through the father.
The challenge in Salima’s case is that neither her marriage nor the birth of her children was ever registered, so these will have to be established through the courts before Mohammad’s case can be resolved
Najar says the number of cases they can process each year is currently limited by the resources available, with only three full-time lawyers working in the field. But as the number of Bidoons and other stateless people who gain citizenship increases in Iraq, through them it should be possible for others to prove their nationality more easily, he adds.
“One of the questions we ask is whether they have any relatives in Iraq, and that information allows us to widen the circle,” he explains. “I feel very happy that these people can obtain their documents and prove their identity as Iraqis.”
Mohammad says that gaining a nationality after all these years would ease his anxiety and allow him to start building the kind of life that has been denied to him for so long.
“This has given me hope that because my mum has documents, I will be able to get them too,” he says. “Now I have hope that I will be able to get married and live my life like any other person around me.”
Further reliable information available on the Internet explains much of the predicament faced by the applicant’s family in securing appropriate and authentic documentation.
Denied Access to Citizenship and its Consequences
Despite promises from the Kuwaiti government to solve these issues surrounding statelessness, repeated amendments to the Nationality Law have made access to Kuwaiti citizenship progressively more difficult. Since the 1990’s, the government has established various bodies to attempt to process Bidoon individuals. This includes the Executive Committee for Illegal Residents’ Affairs (ECIR), though little progress has been made. In November 2010, Kuwait set up the Bidoon Committee, which announced a five-year-plan to resolve the issue by granting Bidoon “facilities” and supposedly granting nationality status to those entitled to it. However, their process of naturalisation is complex due to subdivision within Bidoon communities, and evidence presented by Amnesty International suggests this has had very limited success. Furthermore, Bidoon have increasingly been targeted by authorities through mass arrests, detention, and general societal persecution.
Kuwaiti mothers are also unable to pass on their citizenship to their children under the law because of their gender. It is estimated that roughly 4,000 Kuwaiti citizens are married to Bidoon husbands, with their families comprising more than 20,000 people in the country. Of that total, 16,000—the husbands and children—are considered Bidoon under Kuwaiti law. The children of Kuwaiti mothers married to Bidoon or to foreign fathers are regarded as Bidoon unless they are allowed the citizenship of the foreign father, in which case they are regarded as foreigners. Since a Bidoon father has no nationality, his children are automatically considered Bidoon, regardless of the nationality status of the mother. Kuwait’s Nationality Law also gives the Ministry of Interior discretionary power to grant such children Kuwaiti citizenship only in the event of the father’s death or the dissolution of the marriage.
Bidoons are classified by the government as illegal residents, and they are not issued with a form of civil identification, driving license, or travel documents. They are therefore unable to travel abroad without the risk of being denied to entry back into Kuwait. A specialised entity within the Kuwaiti state department deals with regulatory issues surrounding Bidoons and renews their security cards, yet these do not count as proper proof of identity and can only be used for limited purposes. They also use a color-coded system, which many Bidoon feel is stigmatising, although refusal to use these cards bars them from accessing the most fundamental rights and places them at a constant risk of arrest. Security cards must be displayed when requesting basic documents, such as birth and death certificates, but Bidoons often face refusals, threats, or bribery demands when attempting to obtain their documentation.

Since 1986, thousands of Bidoon have not been able to enjoy state services that require national IDs. Instead, the Bidoon’s temporary documents are only renewable according to the goodwill of the Kuwaiti government. As a result, hundreds of Bidoon possess no documents and often have to rely on charity to survive. Due to their discrimination, Bidoon who are able to work in the public sector accept lower wages and poorer terms of employment than Kuwaiti citizens. They are often forced to pay higher fees for essential medical care they cannot obtain at state facilities. In addition, Bidoon parents must also send their children to private schools, which generally provide a lower standard of education compared to the public schools their children are denied the right to attend. Parents similarly struggle to afford their children’s required schooling fees, even when supported by charities, and it is common for girls to be excluded entirely from receiving an education in order for boys to attend full-time.
A reading of the country information available to the Tribunal (from reliable sources) indicates that the visa applicants’ family history of statelessness could be accounted for as truthful and realistic under the circumstances of their international status. However, her actual visa history discloses a more complicated scenario of the submission of ‘false or misleading information’ on 3 occasions – 2102, 2013 and 2019.
The review applicant - through his representative - has argued that by issuing a correction statement to the Department pursuant to s.105 of the Act (regarding the undisclosed half-brother and other discrepancies in her documentation and information (submitted in 2012, 2013 and 2019) the visa applicant has effectively “cured” the misinformation problem and other discrepancies in her application in 2020 and (importantly) has done so prior to the delegate’s decision.
Furthermore, in a submission the representative has suggested that regarding any ‘discrepancies’ on the part of the applicant:
It is submitted that information the Department used as material to apply PIC 4020 is merely trivial or inconsequential as described by Full Court of the Federal Court in Singh v Minister for Immigration and Border Protection (2019) FCAFC
This recent decision holds that the term "material" should be read to mean: "of moment or of significance, not merely trivial or inconsequential" and further, that a statement is relevant for the purpose of PIC 4020 if it may be taken into account in making a decision under the Migration Act.
It is submitted that information the Department use as material to apply PIC 4020 is merely trivial or inconsequential as described by Full Court of the Federal Court.
Therefore, we submit by having corrected the information, the Department should depart from applying this criterion.
In fact, the Full Federal Court in Singh v MIBP [2019] FCAFC 22 did not consider the issue of whether ‘false or misleading information’ can be ‘cured’ by a s.105 declaration before the Tribunal considers the matter. It is a very short judgment in which the issue was whether information was ‘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’ (i.e.PIC 4020(5)(b)).
The submission argues that the information was merely trivial or inconsequential. By correcting it under s.105, the Department should have departed from applying PIC 4020 in the delegate’s decision. However, ‘information that is false or misleading in a material particular’ is defined in PIC 4020(5), and requires that the information:
a) is 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’
The first part of the review applicant’s submission dismisses the significance of any submission of ‘false or misleading information’ as ‘merely trivial or inconsequential’ (paragraph (a)) and goes on to raise for consideration the question of whether paragraph (b) of the definition applies to the information, i.e. whether it is relevant to any of the criteria which may be considered in making a decision on the application.
Thus paragraph (b) concerns the materiality of the information, in the sense that it applies to information which goes to something which will or might determine the visa application and not information that is irrelevant to the visa requirements (Kaur v MIBP [2014] FCCA 1264 at [80]–[81] and also Singh v MIBP [2018] FCCA 1136, which was the Federal Circuit Court judgment the subject of appeal in Singh v MIBP [2019] FCAFC 22, in which the appeal was dismissed). The Tribunal finds that the fact that information is later corrected under s.105 is irrelevant to that inquiry.
It is the view of the Tribunal that if the applicant has given information that meets the definition in PIC 4020(5), (ie false or misleading at the time it is given and relevant to any of the criteria that may be considered in making a decision on the visa application), then later correcting the information under s.105 will not cure this, or overcome the application of PIC 4020(1). However, the Tribunal acknowledges that any correction of information under s.105 (“curing”) could be relevant to the question of whether for the purposes of 4020(5)(a) the information is ‘false at the time it was given in the sense of purposely untrue’ (Trivedi v MIBP (2014) 220 FCR 169), or was just an innocent or unintended mistake (e.g. if an applicant is claiming that they made an innocent mistake in an answer on an application form that they subsequently corrected under s.105).
The Tribunal accepts that under the tumultuous political circumstances present in Iraq in the last 40 years a Bidoon might at times succumb to ‘human error and misunderstanding’ when filling out documentation without the immediate assistance of her sponsoring spouse. The Bidoon people lead a generally nomadic life in many cases. However, looking at the visa applicant’s visa history (from her date of application in 2012) it is apparent that she had already secured the issue of an Iraqi passport to her son in 2010. The applicant had, therefore, the wherewithal to obtain nationality status for him. It begs the question why she would not have pursued Iraqi nationality at that time for herself and other children. The fact remains that the available evidence indicates she did not secure a nationality until 2018 and was granted it by Iraq and not Kuwait. The delegate did not believe this scenario was possible. However, the applicant (being a Bidoon) may not have sought to do so for her own reasons or none. The review applicant has suggested (in oral evidence) that the urgency of obtaining health care for his son had provoked the need for his son to gain a nationality (generally unavailable to Bidoons per se) - immediately. This was via the intervention of an influential Bidoon sheik and proved successful because the Department was provided with proof of his son’s nationality (Iraqi) – but not until 2020.
The Tribunal (relying on reliable country information regarding issuance of documentation to Bidoons) finds it not credible that the applicant could have then later claimed (in 2020) that failing to reveal her son’s Iraqi nationality was just ‘an innocent or unintended mistake’. Added to this is the review applicant’s claim (in oral evidence) that the difficulty in securing passports for Bidoons made it a necessity for the visa applicant to seek out fake passports for her trip to India where she met up with the review applicant in 2014. When juxtaposed with the fact that she had already secured an Iraqi passport for her son in 2010 - the Tribunal finds such a claim implausible.
The Tribunal finds the claim that her mistakes in the paperwork were ‘an innocent or unintended mistake’ to be untenable and, in fact, ‘false at the time it was given in the sense of purposely untrue’. This finding is reinforced by the fact that the applicant reconfirmed her statelessness etc. to the Department separately in both 2013 and 2019. Yet it appears from the evidence provided in 2020, that the applicants already had secured Iraqi documentation which she indicated was issued in 2018 and as early as 2010 for her (applicant) son. The issue of her half-brother and his non-declaration is also a significant aspect of this finding. The argument that she:
“didn’t include her half-brother on her application due to human error and misunderstanding”.
is, therefore, also difficult to credit.
Furthermore, ‘false or misleading’ information can readily be seen as a crucial aspect of the Departmental processing of her application. The definition in cl. 4020(5)(b) focuses upon the materiality of the information. It applies to information which goes to something which will or might determine the visa application and is not concerned with information that is irrelevant to the visa requirements.
Based on the evidence and information before the Tribunal it is evident that the applicant has given information that, at the time, was false and misleading in relation to her child’s country of citizenship and his ability to obtain a travel document. This information is ‘a material particular’ because in the decision record (submitted by the review applicant and found on the Tribunal file) it is shown to be relevant to the Department’s consideration of PIC4021. The latter criterion relates to the applicants holding a valid passport. Importantly, PIC4021 is one of the criteria which must be considered by the decision maker as part of the visa processing. The visa applicant’s provision of the false and misleading information, at the time it was given, meant that full consideration of the public interest criteria was not possible. Furthermore, being relevant to the visa criteria that may be considered in making a decision on the application, it cannot be overcome by a s.105 declaration later correcting the misinformation.
The Tribunal is satisfied that there is evidence before the Minister that the applicant has given, or caused to be given, to the Minister, an officer, the Migration Review 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:
(a)the application for the visa;
and the Tribunal is satisfied that, in the application details, there were statements that were ‘false or misleading in a material particular in relation to the application for the visa’ pursuant to (PIC 4020(5)) for PIC 4020(1).
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)?
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).
The Tribunal finds no evidence that neither the applicant nor any member of the family unit (as defined in r.1.12) has been refused a visa in the relevant period because of a failure to satisfy PIC 4020(1).
Therefore, PIC 4020(2) is met.
Should the requirements of PIC 4020(1) be waived?
The requirements of PIC 4020(1) 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 reg 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.
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.
Findings and reasons regarding whether there are ‘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, that justify the granting of the visa and if so, whether the requirements should be waived, having regard to those circumstances.
The Tribunal has considered the visa applicant’s visa history. The Tribunal is unable to ascertain why the visa applicant continually misrepresented her nationality status to the Department between 2012 and 2020 as ‘stateless’. Her representative puts it down to an innocent mistake in an answer on the application form that she subsequently corrected under s.105. It was simply ‘human error and misunderstanding’. The Tribunal (see earlier) finds these excuses implausible - even allowing for the fact that the visa applicant is a Bidoon - and, therefore, a person from a particular group of people who have had historical difficulty securing proper nationality. Importantly, from a Tribunal review perspective, she has proven lawful citizenship from Iraq for herself and other family members - who were not already Iraqi citizens.
When considering any ‘compassionate’ circumstances affecting the review applicant the overriding concern of the Tribunal rests with the continuing geographic separation of the review applicant’s children and wife from him - a period of around 10 years. It is self-evident that the visa applicant, for her part, has engaged in conduct that is egregious but the delay in processing the off-shore Partner visa has been extensive - having begun in 2012 and ended in 2020. The Tribunal finds this interval to be significant in establishing the presence of strongly ‘compassionate circumstances’ and gives it significant positive weight in deciding ‘whether the requirements should be waived, having regard to those circumstances’.
In the Tribunal’s opinion it is ‘compassionate’ also because it relates directly to ‘feelings of sympathy, sorrow, pity or concern for others’. The review applicant, to the Tribunal’s knowledge, is a law-abiding citizen who has made a new life in Australia since being granted permanent residency in 2011. He now wants his family to partake fully of the benefits of the Australian way of life - which he enjoys daily by right – but which they cannot share. The review applicant has insisted that his separation from his family invokes such ‘feelings’. This is not an outrageous suggestion - in the view of the Tribunal. Rather it is a logical circumstance based on lengthy family separation and which directly ‘affect the interests of an Australian citizen’ – being Mr Al-Shammary.
The Tribunal finds further that the interests of a father in reuniting with his family after 10 years apart and having a proper family life together is a ‘compelling circumstance’ in the sense of being a ‘forceful’ or ‘powerful’ circumstance. The Tribunal gives this consideration also significant positive weight in deciding ‘whether the requirements should be waived, having regard to those circumstances’.
Overall, the Tribunal gives these both considerations greater weight when considering any bad conduct on the part of the visa applicant. It finds that both types of circumstance not only are sufficient to ground waiver of PIC4020(1) but also ‘justify the granting of the visa’ in the present case.
Therefore, the Tribunal finds that the requirements of PIC 4020(1) should be waived.
Has the applicant satisfied the identity requirements?
PIC 4020(2A) requires an applicant satisfy the Tribunal as to his or her identity.
The Tribunal has examined the visa applicant’s documentation submitted to the delegate and finds it is satisfied as to her and her children’s identity.
Therefore, the applicant meets PIC 4020(2A).
Has a visa previously been refused on the basis of a failure to satisfy PIC 4020(2A)?
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).
The Tribunal finds no evidence that either the visa applicant or any member of the family unit (as defined in r.1.12) have been refused a visa in the relevant period because of a failure to satisfy PIC 4020(2A);
Therefore PIC 4020(2B) is met.
Based on the above, the applicant does satisfy PIC 4020 for the purposes of cl.309.225.
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 for the purposes of cl.309.225 of Schedule 2 to the Regulations.
Michael Cooke
Senior 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.
…

[2021] AATA 1029

25 March 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

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Natural Justice