Ataullah (Migration) - [2020] AATA 2545

Ataullah (Migration) [2020] AATA 2545 (4 June 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mr Ahmad Ataullah
Mrs Laila Ahmad Ataullah
Master Momin Ahmad Ataullah
Miss Emaan Ahmad Ataullah
CASE NUMBER:  1702610
DIBP REFERENCE(S):  CLF2014/143226 CLF2014/89875 CLF2014/89877 CLF2014/89882 CLF2016/55515
MEMBER:Cathrine Burnett-Wake
DATE:4 June 2020
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicants Business Skills (Residence) (Class DF) visas.

Statement made on 04 June 2020 at 5:50pm
CATCHWORDS
MIGRATION – Business Skills (Residence) (Class DF) visa – Subclass 892 (State/Territory Sponsored Business Owner) – bogus document – contract of sale altered by broker – broker’s authority to act on behalf of seller – no intention by broker to mislead or deceive – applicant not aware that contract altered – waiver of requirement – compassionate or compelling circumstances – best interests of children – one child’s medical condition – socio-economic conditions and educational opportunities in home country – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5, 65
Migration Regulations 1994 (Cth), Schedule 2, cl 892.223, Schedule 4, PIC 4020
CASES
Arora v MIBP [2016] FCAFC 35
Batra v MIAC [2013] FCA 274
Singh v MIBP [2016] FCCA 774
Trivedi v Minister for Immigration and Border Protection [2014] FCAFC 42
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 1 February 2017 to refuse to grant the applicants Business Skills (Residence) (Class DF) visas under s.65 of the Migration Act 1958 (the Act).
The applicants applied for the visas on 25 June 2014. The delegate refused to grant the visas on the basis that the primary applicant (the applicant) did not meet Public Interest Criterion 4020, cls.4020(1) or 4020(4), and therefore did not satisfy cl.892.223 of Schedule 2 to the Migration Regulations 1994 (the Regulations). The delegate found that the applicant provided a bogus document in relation to his Business Skills application. Specifically, the delegate made findings that, following a request to provide information that the business was still operating, the applicant provided a bogus document being: a Sale of Contract (contract No:S4849) from Australian Grain Export Pty Ltd (AGE) dated 05 February 2016, showing the buyer as Ozmin Trading Pty Ltd. The delegate found that this document was altered without authority to read Ozmin Trading Pty Ltd, and that the amendment was not authorised or done by AGE.
The applicants appeared before the Tribunal on 17 September 2019 to give evidence and present arguments. The Tribunal also received oral evidence from Abdul Qiqdir, a business associate of the applicant, and Brett Dodson, the Sales Director from AGE.
The applicants were represented in relation to the review by their registered migration agent who attended the hearing.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this review is whether the visa applicant meets Public Interest Criterion 4020 (PIC 4020) as required by cl.892.223 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.
Background
The applicant’s business is an export business that supplies grains, pulses, legumes and tallow to the middle east.
On 15 July 2016 the delegate sent a request for further information to the applicant requesting evidence that his company, Ozmin Trading Pty Ltd, was still operating.
In response to this request, the applicant provided Business Activity Statements (BAS) for the period of 1 January 2016 to 31 March 2016 and 1 April 2016 to 30 June 2016. These BAS reflected that no sales were recorded for the business during these periods. The applicant outlined that there was a nil turnover due to the business not operating during that time as the grain export was seasonal, however, the business had pending future orders for grain.
On 20 September 2016, the delegate requested that the applicant provide evidence of the claimed grain orders so they could be satisfied that the business was still operating.
In response to the delegate’s letter of 20 September 2016, the applicant provided a Sale of Contract, contract No:S4849 from Australian Grain Export Pty Ltd (AGE) dated 05 February 2016, showing the buyer as Ozmin Trading Pty Ltd.
The delegate observed that contract No:S4849 contained irregularities in that the contract was originally between AGE and Yarra Victoria Pty Ltd but was amended to reflect it was between Ozmin Trading Pty Ltd and AGE.
The delegate contacted AGE to verify the contract. A representative from AGE confirmed that the contract was not valid and noted that the contract appeared to have been altered to show Ozmin Trading Pty Ltd as the buyer on the contract.
The delegate sent a letter to the applicant requesting comment on the suspected ‘nongenuine’ information, being the contract, that was supplied to the Department.
On 16 November 2016, the applicant responded to the Department’s letter and provided:
- A statement, in part claiming: “There was an original contract between AGE and Yarra Victoria Pty Ltd, which was amended earlier this year by the broker of AGE, Abdul Wahid Abdul Majid (PVT) Limited (AWAM). Unfortunately this amendment was communicated late to AGE and it seems that the system at AGE was not updated”.
- A letter from AWAM stating that the order was updated in Pakistan, but that this information was not communicated to AGE in Australia, and that as a consequence, the records of AGE had not been updated at the time the Department made the verification enquiry.
- A copy of an email from Mr. Brett Dodson from AGE dated 15 November 2016 including the email chain as follows:
The delegate made the following observations regarding the evidence supplied by the applicant.
It is noted that the final email from Mr. Brett Dodson included a statement claiming that had the correct process been followed, and approved by AGE, the buyer name most likely would have been amended.
It is also noted that the request to amend the buyer name from Yarra Victoria Pty Ltd to Ozmin Trading Pty Ltd was initiated by AWAM after my request for evidence of the claimed orders for Ozmin Trading Pty Ltd.
The delegate found that contract No:S4849 was altered without authority to read Ozmin Trading Pty Ltd, and that the amendment was not authorised or done by AGE; consequently they were not satisfied that contract No:S4849 is a genuine document.[1]
[1] Information in paragraphs [8] to [18] is detailed in the delegate’s decision record, a copy of which was supplied to the Tribunal at the time the review application was lodged.
Pre-hearing written submissions
The Tribunal received two written submission from the applicant’s representative.
The first submission dated 6 April 2017 contended:
The document in question, namely a Contract of Sale ("the Contract") from the seller Australian Grain Export Pty Ltd ("AGE") dated 5 February 2016 between AGE and Ozmin Trading, was found to have contained irregularities as DIBP claims that a representative from AGE had noted that the Contract had been altered from the original buyer, Yarra Victoria Pty Ltd ("Yarra Victoria") to show Ozmin Trading as the Buyer on the contract instead.
The Contract contains a contractual obligation between the Seller and the Buyer. Although the Contract initially stated Yarra Victoria as the Buyer, it was later amended by the Agent acting on behalf of AGE, Abdul Wahid Abdul Majid (PVT) Limited ("AWAM") to reflect Ozmin Trading as the new Buyer. The fact that the Contract had been amended by AWAM and not AGE directly does not in itself purport it to not have been issued in respect of Ozmin Trading as the Buyer.
AWAM is the legally appointed agent in Pakistan to act on behalf AGE in its transactions. Due to this appointment, a principal-agent relationship exists and AWAM therefore has authority to act on behalf of AGE in the amendment of the Contract.
The Contract was therefore neither counterfeited nor altered as it was an authentic documentation merely amended by person(s) who had the authority to do so on behalf of AGE in this instance.
Irrespective of the fact that the amendments made by AWAM was neither conducted through the proper internal procedural process, nor communicated to AGE in Australia accordingly (which led to the subsequent failure of AGE's records to be updated to reflect Ozmin Trading as the new Buyer at the time DIBP made the verification enquiries), the Contract itself was not obtained because of a false or misleading statement and there were no false or misleading statements contained in the Contract provided to the DIBP upon their request. The failure to communicate the amendments by AWAM to AGE does not render the contents of the Contract as false or misleading.
Further to the above, whilst Mr Ataullah as the Applicant has the obligation to ensure that the information provided in support of his Application is accurate, it is evident from the documentation previously provided to the DIBP that the failure of the Agent to conduct the amendments according to the proper internal process does not render the Contract to contain any purposeful falsity. The business' obligation as a buyer was reconfirmed by AGE, as evidenced by the relevant supporting documents which we will provide to your office immediately upon receipt.
The submissions from the representative dated 6 October 2017 contended:
It has been established that an element of fraud or deception is necessary to attract the operation of PIC 4020 and therefore, the alleged bogus document must have the necessary quality of purposeful falsity: Trivedi v Minister for Immigration and Border Protection [2014] FCAFC 42 per Buchanan J. His is honour noted at paragraph 32 that:
PIC 4020 is not directed, in my view, to innocent, unintended or accidental matters. However, different questions arise when information or documents provided in support of an application are revealed as false, in the purposely untrue sense of that term.
We respectfully submit that the Contract is not purposely untrue. Firstly, we note that the Contract, in fact, reflects the true transaction — that is, AGE contracted to and supplied the goods to Ozmin Trading as the eventual buyer.
Secondly, the failure of AWAM to amend the Contract in accordance with internal process was not with the intention to mislead/deceive others of the existence of a fact that is false; and at worst was an innocent and unintended administrative error on the seller's end.
This matter is to be contrasted with previous cases where documents have been found to be a bogus document for the purposes of PIC 4020:
·     1304025 [2014] MRTA 1657 (18 July 2014) — The Applicant submitted a Bachelor's Certificate which did not exist and inaccurately reflects the Applicant's qualification.
·     1406669 [2015] MRTA 785 (2 June 2015) — The Applicant submitted an IELTS Test Report Form which showed the results of another person. It was found that a person other than the Applicant pretended to be the Applicant and undertook the test in order to obtain the said results.
·     1306152 [2014] MRTA 2376 (10 October 2014) — The Applicant submitted a positive TRA skills assessment which was obtained based on a false work reference from the Frankston City Council claiming 900 hours of work experience, which the Applicant did not complete.
We note that in past cases, bogus documents for the purposes of PIC 4020 were created/issued/obtained with the intention of deceiving others of an existence of fact, which turned out to be false and therefore, have the quality of purposeful falsity. However, in this matter, the amended document reflects the true transaction.
It is further noted that the Applicant was a bona fide purchaser acting on the reliance of a representative of AGE, being AWAM. We respectfully submit that, through their actions, AGE held AWAM out as their representative for the transaction at all times. Our client's understanding was that they were bound by the Contract with AGE and were required to perform their obligations under the Contract. The bill of lading for the shipment was issued under Ozmin Trading, and the goods were then shipped by AGE in accordance with the Contract (please find enclosed Bill of Lading No. MOLU17102356750 for your reference). AGE has not denied AWAM's involvement in the transaction and further, has not denied Ozmin Trading as the buyer of the goods under the Contract.
In conclusion, we submit that the Contract is not a bogus document as it lacks the necessary quality of purposeful falsity.
Accompanying the representative’s submission of 6 October 2017 were documents in relation to the applicant’s recent exports, including:
- 15 February 2017 shipment:
- 6 May 2017 shipment:
- 28 June 2017 shipment:
oInvoice No. GLO-00450 for purchase of mixed fatty acid from Greenlife Oil Pty Ltd, Supplier;
oInvoice No. OZ/AQAS/00120/17 for sale of the shipped goods; and
oBill of Lading No. OOLU4043013680.
The hearing
Verbal evidence of the applicant
The applicant gave evidence to the Tribunal that his business was the export of grains, foods and other consumables to the middle east, and primarily Pakistan.
The applicant gave evidence that he used the services of Abdul Wahid Abdul Majid Limited (AWAM), a broker in Pakistan and representative for AGE.
The applicant explained that he could not go direct to AGE, and that he had to use the broker to source the goods and relied on the broker to organise the paperwork, including the contracts of sale between his company and AGE.
The applicant explained that his business relationships and orders in the middle east were often informal, with no contracts. He also explained that he would go to AWAM to source goods from AGE to fulfil orders he had received from his clients.
The applicant gave evidence to the Tribunal that he had multiple orders to fulfil at the end of 2016 and he had approached AWAM in early 2016 to discuss what was required and was advised that AGE would be able to fulfil his orders.
The applicant gave evidence AWAM provided him with contract No:S4849, which he in turn provided to the Department in good faith. He outlined he had no reason to believe that there was a potential problem with the contract and believed it to be genuine as AWAM was the authorised agent for AGE and had acted on their behalf previously to fulfil orders when required.
The applicant explained to the Tribunal that it had transpired that AWAM did have authorisation to amend contracts of sale on behalf of AGE, however, on this occasion AWAM did not follow proper procedure and did not get final authorisation from AGE’s head office. The applicant told the Tribunal that he had no control over the actions of AWAM, nor was he aware that when he was provided with the contract of sale for contract No:S4849 that AWAM, as AGE’s authorised agent, may not have followed proper procedure in relation to this order.
The applicant told the Tribunal that he was upset with the situation, as he did everything correctly and always acted in good faith. The applicant told the Tribunal that following the Department’s findings, AGE issued a second contract of sale which was the same as the first. The applicant told the Tribunal that the purchase went ahead as planned and the order was ultimately fulfilled.
The Tribunal discussed with the applicant that if it decided that there was a bogus document, the PIC requirements 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 that justify the granting of the visa.
The applicant told the Tribunal that his wife’s uncle is an Australian citizen and lives in Sydney. He outlined that they saw him twice per year. His family would go to Sydney once per year to visit, and the uncle would come to Melbourne once per year to visit.
The applicant also outlined that his children are very settled in Australia.
The applicant told the Tribunal that over the years he has brought lots of money into the country, and at one point owned 4 properties, however, sold these properties when the visa was initially refused.
The Tribunal asked the applicant if his business was currently trading and if so, how its financial position was. In response, the applicant said the business is not going that well but that it was still operating.
Evidence of Mrs Laila Ahmad Ataullah
The secondary applicant only gave evidence to the Tribunal in relation to circumstances she wished the Tribunal to regard if it was considering the waiver provisions.
The secondary applicant outlined that her family attended mosque regularly. She said her children were very settled and loved Australia. She told the Tribunal they were doing well at school and participated in extra circular activities, including guitar lessons, tennis and jujitsu.
She outlined that her eldest son was short-sighted, wore corrective glasses and required daily eyedrops which they could not obtain in Pakistan.
The secondary applicant outlined that her paternal uncle resided in Sydney and that he was special to her because it was her father’s only brother. She told the Tribunal that they saw him a few times per year.

The secondary applicant said that she wanted to do volunteer work with refugees, however, when she approached an organisation to do so was turned away because she was on a bridging visa. The secondary applicant told the Tribunal she did help regularly at the school of her children.
Evidence of Brett Dodson from AGE
Mr Dodson from AGE gave evidence in support of the applicant and to explain the situation regarding contract No:S4849.
Mr Dodson gave evidence to the Tribunal that AWAM acts as AGE’s broker and authorised point of contact in the middle east and for sales into Pakistan.
Mr Dodson gave evidence to the Tribunal that companies such as the applicant’s were required to go through the broker, and they did not have direct dealings.
Mr Dodson gave evidence to the Tribunal that it is common practice for contracts of sale to be altered and/or amended by the broker, as happened with contract No:S4849, however, procedure was for the broker to inform and get sign off from AGE head office before any amendments were made.
Mr Dodson gave evidence that the broker had failed to follow proper procedure in amending contract No:S4849. Mr Dodson told the Tribunal, had the broker undertaken proper procedure, AGE would have agreed to the amendment in contract No:S4849.
Mr Dodson told the Tribunal that the order as reflected in contract No:S4849 was a legitimate order, which they ultimately fulfilled and provided to the applicant, however, they issued a second contract to cover the order as the amendments in the first had not been authorised and it was a void contract.
Mr Dodson gave evidence to the Tribunal that AWAM was aware of AGEs procedures with alterations of contracts, and was unsure why procedure was not followed with contract No:S4849, however, AWAM had been counselled about the importance of following proper procedure and it was a regrettable situation as the business between AGE and the applicant was legitimate.
Evidence of Abdul Qiqdir
Mr Qiqdir gave evidence in support of the applicant. His evidence was he too was in the export industry. Mr Qiqdir’s evidence to the Tribunal was mostly that he was aware of the business operations of the applicant, as he was a long-time friend and business associate, and they did do business between themselves.
Post hearing submissions
During the hearing, the Tribunal gave the applicants an opportunity to provide information post hearing for its consideration regarding the waiver provisions.
On 4 October 2019, the Tribunal received written submissions from the representative along with supporting documents, which included:
·Letter of Amir Ali Khan, uncle of the Dependent Applicant 1 (Mrs Ataullah), including copy of Australian passport;
·Letter of Dr Wendy Marshman, treating doctor of the Dependent Applicant 2 (Momin);
·Letter of Amanda Dessmann, Prep Teacher, Australian International Academy, King Khalid Campus;
·Letter of Rabiha Barakat, Year 5 Teacher, Australian International Academy, King Khalid Campus;
·Letter of Denise Temer, Acute Medical Unit Social Worker, Royal Melbourne Hospital;
·Letter of Lynton Joseph, Managing Director of Elite Tennis Academy, East Coburg;
·Letter of Abdullah Elleissy, Fawkner Mosque, Darul Ulum College of Victoria;
·Letter of Rupinder Brar, Director of Punvec Group Pty Ltd;
·Letter of Aakash Kumar, personal friend;
·Letter of Zahoor Ahmad Sheikh and Zainab Ahmad Sheikh, personal friend;
·Birth Certificate of the Dependent Applicant 3 (Emaan);
·Human Development Data (1990-2017), United Nations Reports;
·United Nations (UN) Convention on the Rights of the Child;
·The World Economic forum’s (WEF) Global Gender Gap Report 2018; and Bundle of articles and reports.
The written submissions from the representative contended as follows:
Compassionate and Compelling Circumstances
Circumstances that affect Australian citizens:
We respectfully submit that the refusal of this visa application will cause significant hardship to the applicants’ uncle, Mr Amir Ali Khan, who is an Australian citizen. As stated in Mr Khan’s letter enclosed, the applicants are the only relatives living in Australia and as such, their families rely on each other for support.
To refuse the visa will deprive Mr Khan and his family a chance for their children to grow up alongside their cousins, whom they have developed close bonds with in the last 8 years. The children will be denied an opportunity to be there for each other at various milestones as they transition into adulthood. Such an arrangement will be detrimental to the long-term wellbeing of the familys’ relationship.
Further, the applicants are useful members of the Australian community, such as through their participation at the Australian International Academy, Elite Tennis Academy and Fawkner Mosque (please see enclosed letters of support). We also note that though Ms Ataullah’s main priority is the upbringing and care of her children, she has made efforts to get involved in volunteering work but due to her visa status, was unable to participate (please see enclosed letter of support from Royal Melbourne Hospital).
Circumstances that affect Australia:
Further, we respectfully submit that the forced removal of the Applicant children from Australia will not be in their best interests. It is worth noting that Australia is a signatory to the UN Convention on the Rights of the Child. By being party to the convention, Australia has demonstrated their acknowledgement of its obligation to protect and support the best interests of children.
The UN Convention on the Rights of the Child clearly states in the following article the obligations parties have in regards to upholding the best interests of the child:
Article 3
1.       In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.
2.       States Parties undertake to ensure the child such protection and care as is necessary for his or her well-being, taking into account the rights and duties of his or her parents, legal guardians, or other individuals legally responsible for him or her, and, to this end, shall take all appropriate legislative and administrative measures.
3.       States Parties shall ensure that the institutions, services and facilities responsible for the care or protection of children shall conform with the standards established by competent authorities, particularly in the areas of safety, health, in the number and suitability of their staff, as well as competent supervision.
Please see enclosed the full text of the UN Convention for your reference.
It is consequently clear that State Parties fully support the notion that the primary consideration in all actions concerning children should therefore be in the best interests of the child.
Here, the best interest of the children is to continue to live in Australia. Momin first came to Australia when he was at a tender age of 2 years old, while Emaan was born and lived her entire life in Australia (please see enclosed birth certificate).
Momin has been diagnosed with progressive myopia since the age of 5 years old. He is currently receiving ongoing treatment for the condition at Melbourne Eye Surgeons, Malvern and is prescribed a low-dose atropine to try and reduce the progression of the condition (please see enclosed letter of Dr Marshman). Momin has been cared for exclusively in Australia and therefore, we respectfully submit that the treatment of Momin’s medical condition would be disrupted if the applicants are required to leave Australia, which could, in turn, adversely affect the child.
Having lived in Australia her entire life, Emaan has no practical understanding of the living conditions in Pakistan and as such, would experience hardship if required to relocate to Pakistan. Firstly, she will have to learn an entirely different language, which could inhibit her learning and social development. In Pakistan, Urdu is the primary language and medium of instruction used in schools. As such, this will create a significant barrier to Emaan’s effective education in any given classroom situation and she would be at a disadvantage to her peers. Secondly, we note that Emaan would experience hardship from the difference in socio-economic standards in Pakistan. According to the Human Development Data (1990-2017) prepared as part of the United Nations Development Programme, Pakistan is ranked number 150 out of 189 countries, compared to a number 3 ranking for Australia (please see enclosed Human Development Data). Lastly, it is noted that Pakistan observes largely patriarchal customs, where women are often not offered equal rights as men. The WEF Global Gender Gap Report ranks Pakistan as number 148 out of 159 countries for gender equality (please see enclosed articles and WEF report 2018). An example of the disparity and disadvantage that women suffer in Pakistan is that acid attacks against women are prevalent in Pakistan. In order to combat the rising numbers of incidences, the Acid and Burn Crime Bill 2017 was passed to support victims of this crime and provide an avenue to bring justice to the culprits. Acid attacks are usually aimed at disfiguring the victim and ruin future romantic prospects, career, financial security and social status. It is reported that the perpetrators of acid violence are mostly men and is related to toxic masculinity, which is a desire to victimise women while demonstrating their own power. Bangladesh, India and Pakistan, reported among the highest incidences of acid violence (please see enclosed bundle of articles). We submit that Emaan would be subjected to discrimination and hardship, of which she may not be able to comprehend given she was brought up in the Australian society where men and women are seen and treated as equal.
As a signatory to the abovementioned UN Convention, Australia is under an obligation to protect the applicant children and ensure that their best interests are preserved and the best way to do this would be to grant the Applicants the visa so that they can finally settle down together in a permanent, safe and stable family environment in Australia.
Concluding Notes on PIC 4020
1.       It is conceded that no knowledge by the visa applicant is necessary.
2.       The second issue considered in Trivedi was whether the information or document needed to be ‘purposely untrue’ for PIC 4020 to apply. It was held that it did and that an element of fraud or deception is necessary (per Buchanan J at [29] to [44]).
3.       In this case, the Contract had been altered by AWAM without following proper internal procedures and may be viewed as being altered without authority from AGE.
4.       The knowledge and intention of AWAM, who created the defective document, is relevant in the consideration.
5.       As a representative of AGE in Pakistan, AWAM believed that they had the authority to amend the defective document.
6.       At this point, it is worth noting that this situation does not arise frequently. Evidence was given at the hearing that it is common practice in the industry to nominate supply/sale contracts. However, it is uncommon for parties to rely on written contracts but rather most transactions are performed based on verbal agreements.
7.       The reason for the amendment made by AWAM was to update the Contract to reflect the current and true circumstances.
8.       Similar with Trivedi, there is no issue about the character or defective quality of the Contract.
9.       The Applicant does not claim to rely on their lack of knowledge of the defective quality of the Contract to satisfy PIC 4020, which would be against the principle established in Trivedi.
10.      However, the Bogus Document in Trivedi can be distinguished because here, the defective document was created with the intention of reflecting the true circumstances, being Ozmin Trading as the eventual bone fide buyer under the Contract and may be more accurately viewed as an innocent and unintended administrative error on the part of AWAM.
11.      It is submitted that the Contract is not a bogus document in the purposely untrue sense of the term.
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.
All parties agree that contract No:S4849 was altered by AWAM without following correct procedure and authorisation from AGE.
Based on the evidence before it and taking into consideration the verbal evidence of the applicant and Mr Dodson, the Tribunal finds that the applicant was not aware that contract No:S4849 had been altered by AWAM without the authorisation of AGE.
The Tribunal notes the three submissions received from the applicant’s representative as quoted in paragraphs [20] – [21] and [51]. These submissions contended that:
- The contract was neither counterfeited nor altered as it was an authentic document, merely amended by person(s) who had the authority to do so on behalf of AGE in this instance;
- The failure of AWAM to amend the contract in accordance with internal process was not with the intention to mislead/deceive others of the existence of a fact that is false and at worst was an innocent and unintended administrative error on the seller's end;
- The contract is not purposely untrue. The contract reflects the true transaction - that is, AGE contracted to and supplied the goods to Ozmin Trading as the eventual buyer;
- The bogus document in Trivedi can be distinguished because here, the defective document was created with the intention of reflecting the true circumstances, being Ozmin Trading as the eventual bona fide buyer under the Contract, and may be more accurately viewed as an innocent and unintended administrative error on the part of AWAM.
The Tribunal rejects the representative’s contentions for the following reasons.
Mr Dodson was explicit in his evidence to the Tribunal. The agent said AWAM did not have authorit6y to alter contract No:S4849. This is also consistent with the advice that was given by him to the delegate when verification checks were performed and as reflected in the delegate’s decision.
Mr Dodson gave evidence that AWAM does have authority to alter contracts, however, only if the proposed alterations are authorised by AGE in Australia. The Tribunal is of the view, based on Mr Dodson’s evidence, that AWAM, as the agent, did not act within their authority in relation to contract No:S4849. Mr Dodson gave evidence that as contract No:S4849 was not altered by AWAM in accordance with their procedure, they issued a second contract to cover the order.
As such, the Tribunal does not accept the contentions made by the representative that AWAM did have authority in relation to the alteration made to contract No:S4849, as it does not support the evidence provided by Mr Dodson of AGE.
The representative contended that:
contract No:S4849 is not purposely untrue, because it reflects the true transaction — that is, AGE contracted to and supplied the goods to Ozmin Trading as the eventual buyer. The representative also contended that the Bogus Document in Trivedi can be distinguished because here, the defective document was created with the intention of reflecting the true circumstances, being Ozmin Trading as the eventual bone fide buyer under the Contract and may be more accurately viewed as an innocent and unintended administrative error on the part of AWAM.
The Tribunal rejects these contentions. The Tribunal notes that although the order was ultimately filled. AGE issued a second contract to fulfil the order. As AGE issued a second contract, it demonstrates that AWAM acted outside the scope of their authority, and contract No:S4849 was not enforceable, therefore was not a valid document.
The Tribunal further rejects that the alteration of the contract can be considered an innocent or unintended administrative error. Mr Dodson gave evidence that AWAM was aware of the process to seek authorisation for alterations with contracts, but failed to do so in respect to contract No:S4849. Because procedure was not followed by AWAM and because AGE had not authorised the alteration, they had to issue a second contract. The fact of the matter is that AWAM, acted outside their authority when they altered contract No:S4849, as such it was not a document that was valid, enforceable, or recognised by AGE.
The Tribunal does not agree that the document in this matter can be distinguished to that in Trivedi. Contract No:S4849 was not a valid or enforceable document. It had been altered without authority. The issue of validity was cured by the second contract, which represents the true transaction between the parties.
The Tribunal therefore finds that contract No:S4849 is a bogus document as per s.5(1)(b), as it was altered by a person, being AWAM, who did not have authority to do so.
As the applicant provided contract No:S4849 to the Department, there is evidence before the Tribunal that the applicant has given, or caused to be given, to the Minister a bogus document. In making this finding, the Tribunal however, accepts that the applicant did not know contract No:S4849 was bogus. However, the applicant does not need to be aware the information was purposely untrue in order for PIC 4020 to be engaged.
Therefore, the applicant does not meet PIC 4020(1).
Should the requirements of PIC 4020(1) or (2) be waived?
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.
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.

For the following reasons, the Tribunal is not satisfied that the requirements should be waived.
The discretionary matters in cl.4020(4) are unrelated to the content and the reasons for any breaches of PIC 4020(1) and (2).[2] Accordingly, claims made by an applicant in relation to PIC 4020(1) or (2) would not need to be considered in relation to compelling or compassionate circumstances in the absence of relevant claims in relation to PIC 4020(4). This does not mean that circumstances falling under PIC 4020(1) or (2) could never be relevant to the waiver.
[2] Singh v MIBP [2016] FCCA 774 (Judge Emmett, 4 May 2016) at [60]. The applicant had made express claims in relation to cl.4020(1) that the provision of incorrect information was a mistake and unintentional which the Tribunal had not considered. The Court found the error in relation to cl.4020(1) would not have materially affected the consideration of cl.4020(4) in the circumstances of the case and, based on the Tribunal decision, rejected that the Tribunal’s refusal to waive was a result of cumulative consideration of the information in cl.4020(1) and bogus documents given by the applicant.
The applicant has consistently made claims that he was unaware that contract No:S4849 was a bogus document. In addition, he claimed he had no control over AWAM, who altered the document without authorisation, nor was there any way he would have known AWAM did not follow correct procedure rendering contract No:S4849 invalid. The Tribunal accepts the applicant’s evidence in this regard.
At hearing, the applicants claimed that if required to return to Pakistan both of their children’s educations would be impacted, that they are settled in Australia and enjoy school and the extra circulate activities they participate in.
The Tribunal notes that the representative’s submissions received after the hearing expanded upon the claims made by the applicants during the hearing. The submissions also requested the Tribunal consider the best interests of the child, in line with the Convention on the Rights of the Child. These submissions have been earlier reproduced at paragraph [51].
Regarding Momin’s condition of myopia, the Tribunal accepts that Momin is suffering from this condition, as evidenced by the supporting medical information, and is receiving ongoing treatment. The Tribunal acknowledges that Pakistan is a developing country and that the World Health Organization ranks the country 122 out of 190 Countries, and that they do not enjoy a universal health care system like Australia.[3] At hearing, the secondary applicant claimed the drops for Momin are only available in Australia. However, there is no evidence before the Tribunal that Momin would not be able to receive treatment for myopia in Pakistan, nor was the claim that the eyedrops were only available in Australia substantiated.
[3] World Health Organization, World Health Report 2000; Geneva, 2000.
The applicants claimed that their children will be disadvantaged in respect to their education if they were to return to Pakistan as they claim the level of education is not as good as Australia. The written submissions from the representative further claimed that as the children are taught in English in Australia, they will be disadvantaged if they return to Pakistan as Urdu is the main language. The applicants made claims that the children are doing very well at school and that if they had to attend school in Pakistan it would impact their learning and they would find it difficult to fit in because they are used to school in Australia and being taught in English. The Tribunal also acknowdelges and has considered the letters of support provided by the class teachers of the children, Ms Amanda Dessmann and Ms Rabiha Barakat, from the Australian International Academy.
The Tribunal does acknowledge a transition from primary school in Australia to Pakistan would likely have an impact emotionally, and a period of adjustment would occur in transitioning to a new system. The Tribunal notes from the evidence that the applicant’s children attend a private Islamic school in Australia so are not attending a free public school.
The Tribunal notes that Pakistan does, like Australia, have a free and compulsory education system.[4] The Tribunal also understands that Pakistan has private schools, like the one the applicants send their children to in Australia. If the applicants did not want to send their children to a state-run school in Pakistan, they would be open, as they currently do in Australia, to send their children to a private school if they wish to have a different type of education outside the public school system in Pakistan. Notwithstanding this, education is available in Pakistan to tertiary level – whether it be through the public-school system or private, which there is no evidence before the Tribunal the applicant’s children could not enjoy.
[4] Article 25-A of Constitution of Pakistan obligates the state to provide free and compulsory quality education to children of the age group 5 to 16 years.
The Tribunal acknowledges that the applicants may experience hardship, including financial and emotional hardship, if the visa is refused and they were to return to Pakistan. There would be costs involved in relocation. The applicants have spent significant time in Australia and consider it their home where they wish to raise their family. Furthermore, the applicants’ children would likely experience a period of adjustment settling into a new school system as well as a new culture.
The representative’s submissions contended that “the forced removal of the Applicants children from Australia will not be in their best interests”. Australia’s responsibilities regarding the rights of any children is pursuant to Article 3 of the Convention on the Rights of the Child (CRC).
If the visa is refused, the Tribunal accepts the children would need to return to Pakistan with their parents. The refusal, however, will not cause the family unit to be separated.
It’s worth noting that Pakistan ratified the CRC on 12 November 1990. As detailed earlier in the decision, education is free and compulsory, so the applicants’ children would upon return to Pakistan be able to access education, which is consistent with Article 28 of the CRC. The Tribunal is therefore satisfied that the children would have access to education in line with the CRC. The Tribunal is of the view that the children would not be disadvantaged as claimed by the applicants. The children will have access to education in Pakistan.
Regarding accessing health care, this is dealt with in Article 24 of the CRC. The Tribunal has already considered access to health care in Pakistan. The Tribunal is of the view that the applicants will have access to health care in Pakistan. There is nothing to suggest that the children would not receive health care.
The Tribunal has considered Australia’s obligations pursuant to the CRC and acknowledges that in taking actions concerning children, the best interest of the child shall be a primary consideration. Given the relatively young age of the children, the Tribunal considers that it is in the best interest of the applicant’s children to be with their parents and for the family unit to remain intact. As discussed above, the Tribunal is satisfied that the family can reside and live together in Pakistan.
The Tribunal accepts that the applicants want their children to benefit from Australia’s education and health system. The Tribunal is, however, not satisfied that the children will be deprived of an education or basic levels of health care in Pakistan.
Notwithstanding these factors, the claims made regarding themselves personally and any impact on them directly if they return, are not circumstances that affect the interests of an Australian citizen, an Australian permanent resident, or an eligible New Zealand citizen as is required by PIC4020(4)(b), therefore they cannot be considered for the purposes of a waiver.
Compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident, or an eligible New Zealand citizen
The applicants have put forward claims to the Tribunal for consideration of compassionate or compelling circumstances that affect the interest of an Australian citizen, an Australian permanent resident, or an eligible New Zealand citizen.
The Tribunal has turned its mind to the letters of support provided for its consideration that were received that as part of post hearing submissions on 4 October 2019, as itemised at paragraph [51].
Mr Amir Ali Khan, an Australian citizen and the paternal uncle of the secondary applicant has provided a letter detailing that his family require the presence of the applicants in Australia for the family and cultural link. He outlined that it is particularly important, in his belief, for his children to have cousins in Australia so that they can have a connection and for family support. At hearing, the secondary applicant gave evidence that her uncle is special to her because he is her father’s brother. She outlined that as her uncle lives in Sydney, they see each other twice per year. The Tribunal has considered the letter from Mr Amir Ali Khan and the verbal evidence of the secondary applicant. The Tribunal also notes the submissions provided by the representative, reproduced at paragraph [51] which contend that if the applicants were to return to Pakistan it would be “detrimental to the long-term wellbeing of the familys’ relationship” as the children would be “denied an opportunity to be there for each other at various milestones as they transition into adulthood”.
The Tribunal accepts that Mr Amir Ali Khan and his family have meaningful relationships with the applicants. The Tribunal notes that currently the families only see each other twice per year. Although meaningful relationships can be developed and fostered with twice yearly visits, if the applicants were to depart to Pakistan, they could continue to maintain personal relationships and give family and cultural support through telephone or other electronic means as they currently do other than the twice-yearly visits. The Tribunal is not persuaded that meaningful relationships cannot continue through telephone or other electronic devices and correspondence, as such, the applicants having to return Pakistan and the impact on Mr Amir Ali Khan and his family would not amount to compassionate or compelling circumstances justifying the granting of the visa. Furthermore, Mr Amir Ali Khan and his family are also not prevented from visiting each other if the applicants were to return to Pakistan. The Tribunal acknowledges cost would be involved to visit family and travel internationally, which would be more than travelling interstate as they currently do, however, that cost, in the Tribunal’s view, would not result in compassionate or compelling circumstances justifying the granting of the visa.
The Tribunal has considered the letters from Rupinder Brar and Aakash Kumar, along with Zahoor and Zainab Sheikh. Each has supplied a letter of support for the applicants, whom they are all friends with. These letters detail that meaningful friendships have developed and that the applicants contribute positively and should be able to remain in Australia. The Tribunal acknowledges that the applicants have developed meaningful friendships with Rupinder Brar and Aakash Kumar, along with Zahoor and Zainab Sheikh. The Tribunal is of the view, however, that if the applicants were to depart to Pakistan, they could continue to maintain personal relationships through telephone or other electronic means. The Tribunal is not persuaded that meaningful relationships cannot continue through telephone or other electronic devices and correspondence; as such, the impact of the applicants having to return to Pakistan would not amount to compassionate or compelling circumstances justifying the granting of the visa.
The Tribunal has also considered the letter from the Head of School of the Darul Ulum College of Victoria. The Tribunal accepts that the applicants are active members of the school community and are also regular attendees at the school prayer hall. The applicants have undoubtedly formed many close personal relationships with other school community members who are likely to be Australian citizens, permanent residents and/or eligible New Zealand citizens. If the applicants were to leave Australia, the Tribunal also accepts that they would be missed by other members of that community. However, the Tribunal is of the view that these circumstances do not amount to compassionate or compelling circumstances.
The Tribunal has also considered the letter from Lynton Joseph, the tennis coach of the children. The Tribunal accepts that the applicants are active members of a tennis club. The applicants have undoubtedly formed many close personal relationships with other club members who are likely to be Australian citizens, permanent residents and/or eligible New Zealand citizens. If the applicants were to leave Australia, the Tribunal also accepts that they would be missed by other club members. However, the Tribunal is of the view that these circumstances do not amount to compassionate or compelling circumstances.
Compelling circumstances that affect the interests of Australia
The Department’s guidelines suggest that there may be compelling circumstances affecting the interests of Australia if:
·     Australia’s trade or business opportunities would be adversely affected were the person not granted the visa (noting that gaining employer sponsorship is not considered sufficient grounds for a waiver); or
·     Australia’s relationship with a foreign government would be damaged were the person not granted the visa; or
·     Australia would miss out on a significant benefit that the person could contribute to Australia’s business, economic, cultural or other development (for example, a special skill that is highly sought after in Australia) if the person was not granted the visa.[5]
[5] Policy – [Sch4 4020] – Public Interest Criterion 4020 – The integrity PIC - Compelling and/or compassionate circumstances – Compelling circumstances affecting the interests of Australia (re-issue date 1/1/18).
The policy states that compelling circumstances affecting the interests of Australia would not include circumstances where the non-citizen merely claims that, if granted the visa, they would work and pay taxes in Australia, pay fees to an education provider or spend money in Australia.[6]
[6] Policy – [Sch4 4020] – Public Interest Criterion 4020 – The integrity PIC - Compelling and/or compassionate circumstances Compelling circumstances affecting the interests of Australia (re-issue date 1/1/18).
The Tribunal is mindful that policy is not binding; further, that it must have regard to legislative requirements along with case law.
Various judgments have considered claims based on employment in Australia and the ‘interests of Australia’. The judgments considering the meaning of this connote more significant, objective and public interest than that associated with mere employment in Australia.[7] While it is not the case that employment in a business in Australia could never amount to compelling circumstances affecting the interests of Australia, there is a distinction between the disadvantage to an Australian business in ‘losing’ an employee, and circumstances which affect Australia.[8]
[7] Deb v MIBP [2016] FCCA 3351 (Judge Nicholls, 22 December 2016) at [45], citing various other cases including Raza v MIBP [2015] FCCA 1623 and Kandel v MIBP [2014] FCCA 1479.
[8] Deb v MIBP [2016] FCCA 3351 (Judge Nicholls, 22 December 2016) at [56].
The Tribunal accepts that the company Ozmin Trading Pty Ltd was established by the applicant in Australia.

100. In verbal evidence at hearing, the applicant told the Tribunal that the company was still operating but the business is not going that well. The applicant has not provided any details to the Tribunal regarding the company’s current financial position, or prospects. As such, the Tribunal is not persuaded that the current operations, or future position of the company, amount to compelling circumstances that affect the interests of Australia.
101. The Tribunal has considered the secondary applicant’s claims regarding her volunteer work. At hearing, the applicant put forward claims that she would undertake volunteering work at the school her children attend, that she had attempted to volunteer elsewhere but was prevented from doing so because of her visa status. The letters provided by the Head of School at Darul Ulum College indicates the applicants, not just the secondary applicant, participate in volunteering for community events although the letter does not elaborate on what events they are or the frequency of the volunteering. The letter from Denise Temer, Social Worker at the Royal Melbourne Hospital, details that the secondary applicant and Ms Temer met when the secondary applicant enquired about volunteering at the Royal Melbourne hospital, but was prevented from doing so because of her visa status. The letter provides support to the secondary applicant by stating that she is an active and engaged member of her children’s’ school and sports communities and that she positively contributes to the community and should be able to remain. The Tribunal, however, is not persuaded that this claimed volunteer work would amount to circumstances which would affect the interests of Australia, as the Tribunal does not consider it significant in quantum.
102. The Tribunal acknowledges the letter from the Darul Ulum College of Victoria. The Tribunal accepts that the applicants are valued members and actively involved with the prayer hall they attend. However, the Tribunal is of the view that being active members of their religious community are not circumstances which would affect the interests of Australia.
103. The Tribunal has also considered the letter from Lynton Joseph, the tennis coach of the children. The Tribunal accepts that the applicants are active members of a tennis club. The Tribunal is of the view that being active members of the tennis club they attend are not circumstances which would affect the interests of Australia.
104. The Tribunal has carefully considered all the circumstances of the applicants and the circumstances and claims as a whole that they put forward in support of a waiver. However, based on the above written reasons and the cumulative claims, the Tribunal is not satisfied that 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; to justify the granting of the visa.
105. Therefore, the requirements of PIC 4020(1) should not be waived.
106. On the basis of the above, the applicant does not satisfy PIC 4020 for the purposes of cl.892.223.
DECISION
107. The Tribunal affirms the decision not to grant the applicants Business Skills (Residence) (Class DF) visas.
Cathrine Burnett-Wake
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.

…