Al Wardat (Migration)

[2018] AATA 5345

Al Wardat (Migration) [2018] AATA 5345 (31 October 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Mamoun Rasme Youssef Al Wardat

CASE NUMBER:  1701383

DIBP REFERENCE(S):  BCC2014/3266733 OSF2013/002821

MEMBER:Moira Brophy

DATE:31 October 2018

PLACE OF DECISION:  Sydney

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

Statement made on 31 October 2018 at 4:05pm

CATCHWORDS
MIGRATION – Partner (Migrant) (Class BC) visa – Subclass 100 (Spouse) – false and misleading information in a material particular – failure to disclose a previous marriage and three children from that relationship – compelling or compassionate reasons for waiving requirement – best interests of an Australian child – absence of DNA evidence – no contribution to child either emotionally or financially – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 100.222; 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

ISSUE

1. The issue in the present case is whether the first named visa applicant, Mr Mamoun Rasme Youssef Al Wardat meets Public Interest Criterion 4020 (PIC 4020) as required by cl.100.221(2)(b) of Schedule 2 to the Migration Regulations 1994 (the Regulations) for the grant of the visa.

   APPLICATION FOR REVIEW

2. This is an application for review of a decision made by a delegate of the Minister for Immigration on 19 January 2017 to refuse to grant the applicant a Partner (Migrant) (Class BC) visa under s.65 of the Migration Act 1958 (the Act).

3. The applicant applied for the visa on 17 November 2013. The delegate refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl.100.222 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the delegate found the applicant had provided information that is false and misleading in a material particular and was therefore not able to satisfy Public Interest Criteria (PIC) 4020 and there was no compassionate or compelling circumstances to justify the waiving of PIC 4020.

4. The applicant appeared before the Tribunal on 25 May 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages.

5. The applicant was represented in relation to the review by his registered migration agent.

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

   BACKGROUND

7. Mr Mamoun Rasme Youssef Al Wardat  is a 42-year-old who was born in Jordan.  His parents, two brothers and six sisters reside in Jordan.

8. He lodged an application for a Partner (Provisional)(Class UF)(Subclass 309) visa on 14 November 2013 on the grounds of being in a spousal relationship with an Australian citizen Ms Fatme Ali Issa. He travelled to Australia on a subclass 600 visa on 19 November 2013 and he departed on 16 November 2014. The 309 visa was granted on 27 November 2014.  He re-entered Australia on 12 December 2014. At the time of application he declared no previous spousal relationships. He declared he had previously been engaged but that relationship had not been consummated and he provided a copy of a divorce certificate issued by a Sharia court.

9. Ms Fatme Ali Issa is a 40 year-old born in Lebanon but now living in Australia. She was previously married in the period from 7 March 1997 to 20 July 2001. She was then married in the period from 7 February 2003 to 9 January 2012 when the partner of the sponsor died. There were five children of the marriage, all living in Australia. She was sponsored to Australia by her first husband and she sponsored her second husband to Australia. She became an Australian citizen on 1 October 2003. Her parents and four sisters and one brother are in Lebanon.

10. The parties stated that they first met on a dating website and began contacting each other in November 2012. They committed to the relationship to the exclusion of all others and they married in Jordan on 9 April 2013.

11. On 16 April 2015 the Department received information the relationship between the applicant and his sponsor had broken down.

12. On 29 April 2015 the Department wrote to Mr Al Wardat seeking his comments on the adverse information received. Mr Al Wardat responded on 1 May 2015 alleging the relationship had broken down because he was the victim of family violence. Notes of his attendance at Mater Adult Hospital Emergency Department on 27 April 2014 were attached. It was noted Mr Al Wardat had left the marital home and was no longer living there.

13. A Form 1023 was provided to the Department by the former sponsor indicating incorrect information had previously been provided as part of the application for a Partner (Provisional)(Class UF)(Subclass 309) visa on 14 November 2013.  The incorrect information referred to the visa applicant not disclosing to either the sponsor or the Department he had previously been married and he had three children who were in Jordan.

14. On 10 June 2015 the Department wrote to the applicant inviting him to comment on the information that had been provided by way of the form 1023. A Response was received on 9 September 2015.

15. On 20 October 2015 a Natural Justice letter was sent concerning Public Interest Criteria (PIC) 4020. On 17 November 2015 a Statutory Declaration was received from the applicant.

16. In the Decision Record, a copy of which Mr Al Wardat’s migration agent has provided to the Tribunal, the delegate acknowledged Mr Al Wardat’s response to the adverse information outlined above. The delegate considered the evidence presented and was satisfied the applicant had provided false and misleading information, but was not satisfied that compelling circumstances exist to warrant a waiver. Consequently, the delegate was not satisfied that the applicant met the waiver requirements of PIC 4020(4).

17. Following the Tribunal hearing on 25 May 2018 Mr Al Wardat was offered the opportunity to provide DNA evidence of the claimed biological relationship between himself and Nour Issa.

18. On 4 July 2018 the Tribunal was advised by the migration agent acting for the applicant that despite many attempts by the applicant the mother of Nour Issa had refused to allow her daughter to be tested.

19. On 11 September 2018 the Tribunal wrote to the applicant and the Tribunal advised the applicant that there was material on his file protected by a s. 375A certificate. The applicant was given a copy of the certificate and was asked to comment on its validity. In the interests of procedural fairness the Tribunal used its discretion to disclose parts of the material as it considered those parts to be relevant because the Tribunal may conclude that the information provided to the Department was reliable.

    ·The unnamed source alleged that the marriage between the applicant and the sponsor was a contrived marriage and had been arranged to allow the applicant to make an application for a visa to stay in Australia.

    ·It was alleged that the applicant had a wife and three children in Lebanon that he remained in contact with.

    ·In May 2015 it was further alleged that the applicant had provided false and misleading information in his application for a partner visa as he had not disclosed he had a previous relationship and three children from that relationship. It was alleged he and the sponsor were living separately and apart.

    ·On 3 July 2015 the Department received information from an unnamed source that the sponsor had been threatened with harm if she were to return to Lebanon, and that the applicant had entered into a contrived relationship with the sponsor for the sole purpose of obtaining entry to Australia and further that false and misleading information had been provided in relation to the partner visa application.

    ·On 10 March 2016 the Department received information that the sponsor had been physically abused and there was a court case pending.

    ·The Department was advised a protection order was issued by the Magistrates Court in Holland Park against the applicant.

20. On 24 September 2018 the Tribunal received an affirmed statement from the applicant dated 20 September 2018 with the following attachments:

    ·A record of judgement issued in the Magistrates Court at Holland Park on 27 February 2018. The judgement issued was an order varying a previously issued domestic violence order. The order previously issued was dismissed with it being noted the matter was settled by way of compromise via an undertaking with mutual obligations.

    ·A letter dated 18 October 2013 from a mental health professional at the Hope and healing counselling service stating that the sponsor had been treated as she was suffering from anxiety and depression following the death of her husband. The letter expressed support for a family member to be granted a visa to come to Australia to assist the sponsor’s mental health concerns.

    ·A copy of the bill of divorce issued by the Sharia Court of Ramtha in the name of the applicant and his former wife. The translation of the document was dated 25 August 2015.

    ·A copy of an undertaking given by the sponsor to be of good behaviour and not commit an act of violence or contact directly or indirectly the applicant, dated 24 August 2015.

    ·A response to a freedom of information request made by the applicant and dated 17 July 2016.

    CONSIDERATION OF CLAIMS AND EVIDENCE

21. The issue in this review is whether the visa applicant meets Public Interest Criterion 4020 (PIC 4020) as required by cl.100.222 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).

22. 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?

23. 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.

24. 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.

25. 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.

26. The Tribunal is satisfied that the applicant provided information with his application that may be considered to be false and misleading. In making this finding the Tribunal has considered the materials contained in the department file including the materials referred to in the delegate’s decision, a copy of which has been provided to the Tribunal.

27. At the time of hearing Mr Al Wardat told the Tribunal his first marriage was actually an engagement and not a consummated marriage. He was then married a second time in 2000 and there were three children of that marriage that ended in 2010. His eldest daughter was born in 2001, his son was born in 2004 and a second daughter was born in 2007. The children currently reside with their mother in Lebanon. Since they divorced in 2010 his previous wife has not entered into another relationship. He is in daily contact with his children, he sends money to them each month and he stayed with his former wife and children when he was last in Jordan.  When asked why he had not declared this marriage and his three children at the time of his application for a Partner visa he said he had relied on the sponsor and she had told him it was not required as he did not have papers to prove he was divorced and therefore to declare the relationship would unnecessarily complicate the application.

28. While acknowledging the required information was not provided the applicant stresses that at no time was there an intention to withhold required information or to manipulate the law. He simply relied on the advice of his sponsor on the assumption she had a better grasp of Australian law and the requirements of it.

29. The Tribunal did not find the evidence given by the applicant in response to concerns raised by the Tribunal to be convincing and does not consider that the decision to not include the information as to his previous marriage and his three children has been adequately explained. The failure to provide the information denied the decision maker the opportunity to make an informed assessment of the validity of the  application currently before it. The Tribunal considers the explanation relied on by the applicant has been invented in an attempt to obtain a migration outcome. 

30. The Tribunal is satisfied that the applicant provided information that was false or misleading in a material particular on his visa application lodged on 17 November 2013.

31. Since the Tribunal is satisfied the information provided is ‘false and misleading in a material particular’ the Tribunal finds the applicant does not meet cl.4020(1).

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

32. 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.

33. 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.

34. The Explanatory Statement states that it is intended that the granting of the waiver relates solely to compelling circumstances affecting Australia’s interests, or the compassionate or compelling circumstances affecting the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen, not the interests of the visa applicant.  The types of circumstances that may involve compelling or compassionate reasons for waiving the requirements of PIC 4020 include:

    ·Family reasons (for example, unexpected serious or fatal family situations over which the applicant had no control, such as the incapacitation or death of a partner or child or another member of the family unit);

    ·That family members in Australia would be left without financial or emotional support; and

    ·A parent in Australia would be separated from their child (for example, if the child was removed with their non-resident parent and would therefore be subject to an exclusion period).

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

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

37. The parties have not made any submissions or claims that there are compelling circumstances that affect the interests of Australia in this matter. The submissions by the applicant to the Tribunal relate to compelling or compassionate circumstances that affect his claimed daughter Nour Issa, who is an Australian citizen. The applicant claims it is in the best interests of the child if he is allowed to stay in Australia.

38. The Tribunal carefully considered that submission and the evidence with particular consideration being given as it is the interests of a young child that are potentially affected by the decision of the Tribunal.

39. The applicant told the Tribunal his relationship with the sponsor of his 309 application had broken down in April 2015. At the time of the breakdown the sponsor had been pregnant and the child was born on 12 December 2015. The applicant was not told of the birth of the child. He obtained the information of the birth from the registry of births, deaths and marriages following his inquiries. The applicant is named as the father on the birth certificate. The parties were divorced on 14 July 2017.

40. There is no evidence to support a finding the applicant has been assessed to pay child support. There is evidence the applicant sought an assessment but no evidence the former sponsor has sought an assessment or indeed that an assessment has been made. There are no parenting plans or court orders for access in place. A Certificate by a family dispute resolution practitioner issued under section 601 of the family law Act 1975 (Cth) and dated 28 September 2017 was to the effect that she did not consider the matter to be appropriate to conduct a family dispute resolution. The applicant gave evidence at the time of hearing that he had not met the child. The Tribunal was mindful of the difficulties in seeking access given the age of the child and the fact there were previously AVOs in place between the applicant and his former sponsor. The Tribunal was also mindful of the problems faced by the applicant because of his straitened financial circumstances, the withdrawal of his access to legal aid and his ongoing mental health issues.

1. However in this application the circumstances to be considered are those that affect an Australian child. The Tribunal could not make a finding it was comfortably satisfied Nour Issa was the biological child of the applicant in the absence of DNA evidence. The child has not met the applicant; he has made no contribution either emotionally or financially to her. While the Tribunal accepts there have been difficulties for the applicant in achieving access the fact that to date he has not met the child makes it extremely difficult to find it is in the best interests of the child that he be permitted to stay in Australia.

2. After considering all of the evidence before it the Tribunal is not satisfied that there are any circumstances in this case that affect an Australian citizen, Australian permanent resident or eligible New Zealand citizen, either on an individual or cumulative basis, that are of a compelling or compassionate nature that justify the waiver of PIC 4020 and the grant of a Subclass 100 visa to the applicant. 

3. Therefore the requirements of cl.4020(1) should not be waived.

   DECISION

4. The Tribunal affirms the decision not to grant the applicant a Partner (Migrant) (Class BC) visa.

   Moira Brophy
   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. 

   …