Barua (Migration)

Barua (Migration) [2022] AATA 1280 (5 May 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Ms Pubali Rani Barua
Mr Mohammad Riad Ahmed
REPRESENTATIVE:  Mr Michael Jones (MARN: 9255530)
CASE NUMBER:  1900937
HOME AFFAIRS REFERENCE(S):          BCC2015/2581179
MEMBER:Penelope Hunter
DATE:5 May 2022
PLACE OF DECISION:  Sydney
DECISION:The Tribunal remits the applications for Employer Nomination (Permanent) visas for reconsideration, with the direction that each applicant meets the following criteria for Subclass 186 - Employer Nomination Scheme visas:
·The first named applicant, Ms Pubali Rani Barua, Public Interest Criterion 4020 for the purposes of cl 186.213(1) of Schedule 2 to the Regulations
·The second named applicant, Mr Mohammed Riad Ahmed, Public Interest Criterion 4020 for the purposes of cl 186.213(3) of Schedule 2 to the Regulations

Statement made on 05 May 2022 at 10:28am
CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – bogus document and false and misleading information given in visa application – marriage certificate – departmental investigation found original marriage register heavily corrected and partly unreadable – mistakes by registrar and authority to correct – accuracy of English translation – small irregularity does not misrepresent fact of marriage – evidence of wife’s conversion to Islam as precondition of marriage – nominated position still available – anonymous information given no weight – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5(1), 5F, 65, 359AA, 376
Migration Regulations 1994 (Cth), Schedule 2, cl 186.213(1), (3), Schedule 4, criterion 4020(1), (5)
CASES
Arora v MIBP [2016] FCAFC 35
Batra v MIAC [2013] FCA 274
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 Home Affairs on 9 January 2019 to refuse to grant the applicants Employer Nomination (Permanent) visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants applied for the visas on 4 September 2015. The delegate refused to grant the visas on the basis that the first named applicant (Ms Barua) did not satisfy the requirements of cl 186.213 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) because the delegate found that Public Interest Criterion 4020 (PIC 4020) was not met.
The applicants appeared before the Tribunal on 4 February 2022 via MS Teams video to give evidence and present arguments. The hearing was scheduled during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by video, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by video. The Tribunal also received oral evidence via telephone from Ms Barua’s nominating employers, Mr Hafiz Chowdhury and Mr Johnny Chowdhury. The Tribunal hearing was conducted with the assistance of an interpreter in the Bengali and English languages.
The applicants were represented in relation to the review, and their representative participated in the hearing.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this review is whether the visa applicant meets PIC 4020 as required by cl 186.213 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.
Section 376 Certificate
Within the documents produced by the Department in this matter was a Certificate issued on 5 November 2021 in accordance with s 376 of the Act, restricting the disclosure of certain records pertaining to the applicant. The Tribunal found the Certificate to be valid as it clearly identified the relevant records, provided a public interest reason for the non-disclosure and was correctly executed. The Certificate was sent to the applicants for comment and no response was received disputing the validity. The Tribunal also exercised its discretion pursuant to s 376(b) of the Act to partially disclose to the applicants’ certain material and any adverse material was further put to the applicants for comment at the hearing pursuant to the provisions of s 359AA of the Act, the particulars of which are discussed below.
Has the applicant given, or caused to be given a bogus document, or information that is false or misleading in a 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.
The applicant applied for a Subclass 186 visa, in the Temporary Residence Transition stream in sponsored by H. R. Chowdhury and T. Chowdhury, trading as Indian Home Diner Paddington, in the position of Cook. Mr Mohammad Riad Ahmed is identified in the visa application as her husband, and has also sought the visa as a member of her family unit.
On 7 November 2017, the Department issued to the applicants an invitation to comment on information before the Department that may indicate that the relationship between them may not be genuine. The applicants were provided with particulars of certain information ascertained by Departmental officers while investigating the marriage certificate presented by the applicants as part of their application. There was concern that the applicants had provided a bogus document or false or misleading information concerning their marriage in breach of PIC 4020(1).
The applicants provided a response to the Department via their representative in which the allegations were denied. A delegate of the Department considered the response but gave greater weight to the Departmental investigation and found that the applicants had provided information that was false and misleading in a material particular and they did not satisfy PIC 4020(1). It was also found that there was insufficient evidence to waive the criterion and the visas were refused.
The Tribunal discussed with the applicants separately, pursuant to the provisions of s 359AA of the Act at the hearing, the substance of information the subject of the Certificate. The relevant information was that the Department had received an anonymous tip off that Ms Barua was not working for her nominating employer as a cook, that she was not living with her husband and that their relationship was not genuine. Ms Barua sought time to make further submissions but told the Tribunal that her relationship was genuine and she gave evidence to the Tribunal in relation to how she met her husband, and the circumstances giving rise to their decision to marry and travel to Australia. Mr Ahmed responded immediately and told the Tribunal that theirs was a love marriage, that had caused issues with their respective families in their home country due to their religious differences. He claimed that he had never been separated from his wife since their arrival in Australia. In post hearing submissions, Ms Barua again rejected the substance of the tip off information, and raised the issue of religious intolerance they had also encountered from Bangladeshi individuals in Australia. Ms Barua and Mr Ahmed were also questioned by the Tribunal separately about their relationship, with a focus on the factors as set out in s 5F of the Act, including the social aspects, financial aspects and household aspects. They provided evidence largely consistent.
The Tribunal also discussed with the applicants at the hearing information about a site visit by Departmental officers to Ms Barua’s place of work. The outcome of this site visit was also the subject of the Certificate. The Tribunal released the outcome to the applicants, which was reported as genuine. The Tribunal further received separate evidence from Mr Hafiz Chowdhury and Mr Johnny Chowdhury, who confirmed to their knowledge the applicants were not living separately and apart, and that they presented as a genuine couple. Ms Barua and Mr Ahmed impressed the Tribunal as open and consistent witnesses. The Tribunal is not satisfied that any weight should be attributed to an anonymous dob in letter, the Tribunal is unable to assess whether it is motivated by jealousy or religious intolerance. The Tribunal is satisfied that the relationship of the applicants is genuine and continuing, that they live together and that they have a mutual commitment to a shared life together.
Following the tip off letter the Department undertook an investigation of the marriage documents submitted by the applicants. The relevant information arising from the Department investigation was set out in the natural justice letter sent to the applicants on
7 November 2017, the delegate’s decision record and was discussed by the Tribunal pursuant to the provisions of s 359AA of the Act at the hearing. Particularly the applicants were informed that the relevant information was that a site visit was conducted by departmental officers on 24 May 2017 to verify the applicants’ marriage registration (Nikah Nama) provided from a Marriage Registrar Office located in Bangladesh. The officers requested to be shown the relevant entry in the marriage register book. While a matching copy of the Nikah Nama that the applicants presented to the Department was located it was noted to be heavily corrected/altered with whiteout, in parts Departmental officers were unable to read the original writing. There was also an irregularity regarding the copy of the Nikah Nama and English translation which the applicant provided to the Department, particularly the witness is contained in row 11, however on matching this information with the marriage register, row 11 is empty and covered with white out. This was assessed as showing that the document provided to the Department was not an accurate extract of the marriage register. When asked about these corrections the marriage register claimed that while recording the marriage, he accidentally recorded details of another marriage on the page and he then corrected it using white out. The marriage registrar did not comment when questioned as to why he did not simply just start a fresh entry on a new page. Further, when asked as to how he substantiated the marriage between a Muslim bridegroom and a bride from a different religion under the Muslim Marriage Act, the marriage registrar advised that this procedure was done per the directive of a lawyer and notary public who brought the parties to him. When the marriage registrar was accompanied to the chambers of the lawyer and notary public, he was able to verify and produce a copy of the Affidavit of Marriage, but he was not able to produce the affidavit register and claimed that it may have been left at the local district court building. Departmental officers further asked for supporting documents that Ms Barua had converted to Islam before the marriage as is required under the Muslim Marriage Act and it was confirmed that there was no documentary evidence. The information was considered to be important because the lack of consistency with the marriage certificate and the translation, and the inability of the notary public to produce evidence of the registration of the affidavit of marriage may lead to a finding that there was evidence to suggest that the marriage documents submitted by the applicants to the Department were not legitimate, their marriage could not be registered under the Muslim Marriage Act and that the documents were either bogus documents or information that was false and misleading in a material particular.
Ms Barua told the Tribunal that when she and Mr Ahmed were married, they followed the advice of the lawyer and the marriage registrar. Ms Barua confirmed that she converted from Buddhism to Islam to marry Mr Ahmed, she made a public recitation of faith in Islam and an affidavit was signed to confirm the conversion. She continues to follow her husband’s religion. After their marriage ceremony they just accepted the documents that the marriage registrar handed to them. She believed that they were genuine and had no knowledge of any corrections in the marriage register book completed by the marriage registrar until they received the invitation to comment from the Department. She then contacted her lawyer in Bangladesh who assured her that the documents were legitimate. Mr Ahmed separately corroborated the evidence of Ms Barua.
In a response to the Department’s natural justice letter dated 30 November 2017, and again to the Tribunal dated 27 December 2021, the representative of the applicant submitted that the Department had not established that the marriage registrar did not have the authority to make the corrections found in the original marriage register. The Tribunal has also been provided with a notarised statement of the marriage registrar who registered the applicants’ marriage, Mufti Kazi Rakib. He confirms that the marriage of the applicants was duly solemnised on 22 March 2013 and registered on the same date. He made some unintentional mistakes in the marriage register, page no 98/213 Book no 6/1 99/2013. This happened in several columns. He claimed that the applicants had provided him with necessary particulars on the day but when a copy was later obtained some mistakes were detected and those were his mistakes. There was no chance of fraud or forgery, and he corrected the mistakes using correction fluid, and rewrote the correct content. Mufti Kazi Rakib further stated that if any mistakes do happen these is provision to make necessary corrections by erasing them with correction fluid. The Tribunal is satisfied that Mufti Kazi Rakib has explained the reason correction fluid was used in the register, and there is no evidence that Mufti Kazi Rakib did not have the authority to make the corrections found in the marriage register.
Regarding the inaccuracies in the translation of the Muslim marriage contract, the applicants have conceded the name of the witness is not recorded in row 11 of the original document, rather it was recorded on the preceding line. In acknowledging this error the applicants have submitted that this is nothing more than an innocent mistake, and it is not apparent how this amounts in any way to a false or misleading statement or a bogus document. On inspection of the document, the Tribunal observes that there is space for two witnesses to be recorded on the Muslim Marriage contract, and only one witness is recorded on the original document. The same one witness is also recorded one the translation but at item 11 not item 10. The information remains the same, that there was one witness to the marriage. There is no misrepresentation as to the fact of the marriage, or that the witness was Mr Anowar, son of the late Makram Ali. This is not information which is purposely untrue, there is no demonstrated necessary element of fraud or deception by somebody[1] in the creation of the document. The Tribunal accepts that the error in the translation is nothing other than a genuine innocent mistake.
[1] Trivedi v MIBP (2014) 220 FCR 169
Although the Department officers were able to sight the original marriage affidavit, the notary register was not available for inspection by the officers when they called at the office of the notary MD Abdul Kader Zilani, on 17 May 2017. At the time he is recorded as advising that the register was lodged with the District Court. In a further statement, dated 27 January 2019, Mr Kader Zilani certifies that the register was on the day lying in the custody of the Ld. District Judge, Comilla for his inspection and satisfaction. At the time of making his statement the notary register was again available in his office. Mr Kader Zilani further confirmed that Ms Barua converted to Islam and married Mr Ahmed on 22 March 2013, as per the Muslim religion followed by a Registered Kabinnama (Muslim marriage contract) recorded in the marriage register. A copy of the Kabinnama was supplied to the couple which, Mr Kader Zilani attests, was genuine and correct. The Tribunal notes that in their report, the Department officers were able to view the copy of the affidavit regarding the marriage at the office of Mr Kader Zilani. The reasons for the notary register not being available at the time of their unannounced inspection remain consistent. It is not demonstrated that it is irregular or improper for the notary register to be inspected by the District Court as it was on 17 May 2017, and there is no information that the officers attempted to inspect it at the court. The Tribunal is not satisfied that this demonstrates any element of fraud or deception, or that once having sighted the original marriage affidavit the officers established that it was counterfeit. In fact, in their report the officers note that Mr Kader Zilani was able to produce full pages of the affidavit.
Finally the Department has questioned, in the course of their investigation whether there was sufficient evidence before the registrar, Mufti Kazi Rakib, that Ms Barua had converted to Islam, and consequently concluded that the registrar should not have registered their marriage under the Muslim Marriage Act. Departmental officers have produced extracts of the Muslim Marriage Act. The Tribunal has reviewed the relevant English extracts of the Muslim Marriage Act, and the relevant provision identified by the Department officer, section (1)(2). This sets out that the Act applies to all Muslim citizens of Bangladesh. What is does not state is evidence is necessary to establish conversion to Islam or that there is a requirement on a licenced Nikah registrar to obtain certain evidence. It does not set any preconditions for parties to a marriage to establish, by documentary evidence or otherwise of their relevant commitment to Islam, before a ceremony can be performed. Ms Barua told the Tribunal that before her marriage she converted from Buddhism to Islam to marry Mr Ahmed, she made a public recitation of faith in Islam. There is no evidence before the Tribunal that the steps taken by Ms Barua were insufficient. She told the Tribunal that she continues to follow her husband’s religion, that it was not a choice that she made lightly and it was taken in the face of considerable opposition by her family. The material produced by the Department does not establish that the conversion of Ms Barua was fraudulent or that she misrepresented her religion in order to be married. Neither is it established that Mufti Kazi Rakib was not a licensed Nikah registrar who did not have the authority to register the marriage. The Tribunal accepts the submission of the representative for the applicants that any challenge to the validity of the marriage of the applicants is a matter for the Bangladeshi authorities to be determined under Bangladeshi law. There is no evidence of any such challenge, and the marriage of the applicants remains registered, the Department had no jurisdiction to make a finding that it was not so eligible.

Therefore upon review the Tribunal is satisfied that there is no sufficiently probative evidence that information provided by the applicants, or caused to be provided, in relation to their marriage was false or misleading in a material particular. The Tribunal accepts on the evidence that their marriage was validly registered by the registrar, Mufti Kazi Rakib. The Tribunal accepts that the corrections found in the original marriage register were made by Mufti Kazi Rakib and due to his conceded mistakes and that he had the authority to make the corrections found with correction fluid. It is not demonstrated that he did not have the authority to make these corrections and the fact of correction fluid in the register is not considered sufficiently probative to lead to a conclusion that information was false or misleading or found a reasonable suspicion that it was counterfeit. The Tribunal accepts that the irregularity on line 11 of the translation of the Muslim Marriage contract is a genuine mistake, and does not misrepresent the facts of the marriage. Finally there is no evidence that the marriage has been found by a competent authority in Bangladesh as not lawfully registered. The Tribunal is also satisfied that there is no evidence that the applicants have provided or caused to be provided a bogus document in relation to their marriage.
Therefore, on the evidence Ms Barua and Mr Ahmed 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). There is no evidence that either of the applicants have had a visa refused because of a failure to satisfy PIC 4020(1) in the past.
Therefore, PIC 4020(2) does not apply.
Has the applicant satisfied the identity requirements?
PIC 4020(2A) requires an applicant to satisfy the Tribunal as to his or her identity. The applicants have provided evidence of their identities in the form of their passport to the Department and also an extract to the Tribunal on review. There is no evidence that they are not who they purport to be and the Tribunal is satisfied as to their 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 is satisfied that neither Ms Barua nor Mr Ahmed have been refused a visa in the relevant 10-year period. Therefore, PIC 4020(2B) does not apply.
Conclusions
On the basis of the above, the Tribunal finds that Ms Barua and Mr Ahmed satisfied PIC 4020 for the purposes of cl 187.213 of Schedule 2.
Mr Chowdhury provided evidence to the Tribunal that he remains willing and able to employ Ms Barua in the nominated position. Given the findings above, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 186 visa.
DECISION
The Tribunal remits the applications for Employer Nomination (Permanent) visas for reconsideration, with the direction that each applicant meets the following criteria for Subclass 186 - Employer Nomination Scheme visas:
·The first named applicant, Ms Pubali Rani Barua, Public Interest Criterion 4020 for the purposes of cl 186.213(1) of Schedule 2 to the Regulations
·The second named applicant, Mr Mohammed Riad Ahmed, Public Interest Criterion 4020 for the purposes of cl 186.213(3) of Schedule 2 to the Regulations
Penelope Hunter
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.
…

[2022] AATA 1280

5 May 2022

Key Legal Topics

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Immigration

Administrative Law

Statutory Interpretation

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Judicial Review

Procedural Fairness

Statutory Construction

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