Bechara Minotta (Migration)

[2020] AATA 5395

Bechara Minotta (Migration) [2020] AATA 5395 (15 October 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Jhoana Maria Bechara Minotta
Mr Santiago Rendon Bechara

CASE NUMBER:  1807332

DIBP REFERENCE(S):  CLF2013/187025

MEMBER:Roger Maguire

DATE:15 October 2020

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal affirms the decision not to grant the applicants Partner (Residence) (Class BS) visas.

Statement made on 15 October 2020 at 7:36am

CATCHWORDS
MIGRATION – Partner (Residence) (Class BS) visa – Subclass 801 (Partner) – false or misleading evidence – genuine and continuing relationship – validly married – inconsistent statements about relationship difficulties and reconciliation, or cessation – separate travel giving different addresses and emergency contacts – anonymous allegation of contrived relationship for payment – no response to tribunal’s invitation to provide supporting information – no compelling or compassionate circumstances to justify grant of visa – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5(1), 65, 359(2), 359C, 360(3), 363(1)(b), 363A, 376
Migration Regulations 1994 (Cth), Schedule 2, cls 801.226, 801.321, Schedule 4, criterion 4020(1), (3), (5)

CASES

Arora v MIBP [2016] FCAFC 35

Batra v MIAC [2013] FCA 274

Hasran v MIAC [2010] FCAFC 40

Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617
Kaur v Minister for Immigration and Border Protection [2014] FCA 915
Khan v Minister for Immigration and Citizenship [2011] FCA 75
Manna v Minister for Immigration and Citizenship [2012] FMCA 28
Minister for Immigration and Border Protection v Singh [2014] FCAFC 1
Minister for Immigration and Citizenship v Li [2013] HCA 18

Plaintiff M64/2015 v MIBP [2015] HCA 50

Trivedi v MIBP [2014] FCAFC 42

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 6 March 2018 to refuse to grant the applicants Partner (Residence) (Class BS) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 5 August 2013. The delegate refused to grant the visas on the basis that the first named applicant (the applicant) did not satisfy the requirements of cl.801.226 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because Public Interest Criterion (PIC) 4020(1) was not satisfied because there was evidence before the Minister that the applicant had given or caused to be given to the Minister, information that was false or misleading in a material particular in relation to the application for the visa, and there were no compelling circumstances that affected 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 so as to justify the grant of the visa.

3. On 9 September 2020 the Tribunal wrote to the visa applicants pursuant to s.359 of the Act, inviting them to provide information to support the claim that they met PIC 4020; and any claim they might wish to make that there were compelling circumstances that affected the interest of Australia; or compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizens so as to justify the grant of the visa.

4. The invitation was sent to the last address provided in connection with the review and advised that, if the information was not provided in writing by the date specified, the Tribunal may make a decision on the review without taking further steps to obtain the information and the applicants would lose any entitlement they might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

5. The applicants have not provided information within the prescribed period and no extension has been requested within that time, or granted. In these circumstances, s.359C applies and pursuant to s.360(3), the applicants are not entitled to appear before the Tribunal. The effect of s.363A of the Act is that if an applicant has no entitlement to a hearing, the Tribunal has no power to permit him or her to appear:[1]

   [1] Hasran v MIAC [2010] FCAFC 40

6. The Tribunal has considered whether, in the circumstances of this case, information that the applicants meet the requirements of the Act and Regulations is likely to be forthcoming and whether the applicants have had a fair opportunity to provide relevant information already.

7. The Tribunal has given consideration to whether it should adjourn the review under s.363(1)(b) of the Act to allow the applicant additional time in which to provide further evidence to support the review application. In doing so, the Tribunal has had regard to the decisions in Huo v Minister for Immigration and Multicultural Affairs[2] and Manna v Minister for Immigration and Citizenship[3] where the Courts have held that the Tribunal is not required to indefinitely defer its decision-making processes. It has also had regard to Minister for Immigration and Citizenship v Li[4] regarding the reasonableness of any request for an adjournment, and the Full Federal Court decision in Minister for Immigration and Border Protection v Singh[5] which considered analogous issues, as well as the decision of Kaur v Minister for Immigration and Border Protection.[6]

   [2] [2002] FCA 617

   [3] [2012] FMCA 28

   [4] [2013] HCA 18 (8 May 2013)

   [5] [2014] FCAFC 1 (4 February 2014)

   [6] [2014] FCA 915 (28 August 2014)

8. In these circumstances, for the reasons set out in this decision record above, the Tribunal considers that the applicants have had a fair opportunity to provide relevant information.

9. Accordingly, the Tribunal has decided not to exercise its discretion under s.363(1)(b) of the Act to adjourn the review any further to allow the applicants more time. In these circumstances, the Tribunal has decided to proceed to make a decision having regard to the information it has before it, including the information previously provided by the review applicant to the Department.

10. Ultimately, a decision maker is not required to make the applicants’ case. It is for the applicants to satisfy the Tribunal that the requirements of the Act and Regulations have been met. Although the concept of onus of proof is not appropriate to administrative decision-making, the relevant facts of the individual case have to be supplied by the applicants, in as much detail as is necessary to enable the examiner to establish the relevant facts.

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

    Consideration of claims and evidence

12. The issue in this review is whether the visa applicant meets PIC 4020 as required by cl.801.226 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).

13. 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?

14. 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.

15. 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.

16. 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.

17. The Tribunal has before it a Queensland Marriage Certificate evidencing a marriage between the visa applicant and the sponsor on 6 October 2012, and the Tribunal accepts this as evidence that the parties were lawfully married as at the date of the visa application, 5 August 2013.

18. In statutory declarations dated 11 July 2015, and 11 November 2017, the applicant and the sponsor declared that they were still in a genuine and continuing relationship with each other and were living together.

19. There is evidence before the Tribunal that the applicant and sponsor had travelled internationally separately, and listed different addresses on their respective incoming passenger cards. Neither had named the other as their emergency contact.

20. In incoming passenger cards dated 1 January 2013, 19 February 2015, and September 2016, the applicant named a person other than her sponsor as emergency contact. In incoming passenger cards dated 28 February 2015 and 9 January 2017, the sponsor named a person other than the applicant as emergency contact. None of these passenger cards indicated that the parties were living at the same address, and there were no passenger cards which indicated that the parties had travelled together.

21. There is evidence before the Tribunal that on 18 December 2017, the sponsor told an officer of the Department that he and the applicant were not living together, and that his relationship had ceased some time before 2015, but he continued to sponsor the applicant, and had not informed the Department because he wanted her to be in the country, and was trying to do her a favour because she was a good person.  He could not remember the applicant’s address. At no point is the sponsor recorded as saying that the relationship with the applicant was in any way ongoing.

22. On 18 December 2017, the Department wrote to the applicant inviting comment on the sponsor’s statements during the interview.

23. On 8 January 2018, lawyers for the applicant wrote to the Department asserting, in essence, that the sponsor’s “answers were not what he meant”, and maintaining the currency of the relationship. The letter maintained the parties had not separated, and remained living together, and had “established their own tight knit family”. The letter maintained that the sponsor had an affair in 2015, and stated that “As part of this affair, the sponsor went travelling with his mistress. It made it difficult to list his residential address he lived at with Jhoana, as he was with his mistress, so he listed a different address.” This appears to be a non sequitur.  The letter further maintained that when the applicant “went travelling she listed her sister as her emergency contact as there was a breach of trust. However these issues have subsequently been worked through.” The explanation offered in respect of the applicant’s travel is equally consistent with the sponsor’s statement that the relationship had ceased.

24. Tellingly, the letter of 8 January 2018 makes the following statement:

    During the difficult times in their relationship in late 2014 to early 2015, it was difficult for them to have the motivation to save for a house and trips.

25. The time frame of “late 2014 to early 2015” does not appear to be consistent with the time frames of independent travel, i.e. 1 January 2013 to 9 January 2017.

26. The letter of 8 January 2018 provided the following by way of asserted compassionate or compelling circumstances:

    [The parties] met in 2011 and were married in 2012. They have become very close with each other’s families.

    A compassionate or compelling reason exists that should be taken into account when considering this application. They live with Jhoana’s son Santiago, and have established their own tight knit family unit between the 3 of them.

27. On 6 March 2018, the decision under review was made, and on 19 March 2018 the present application for review was made to this Tribunal.

28. On 11 May 2018, the Department received information in confidence that the parties were in a contrived relationship. Before the Tribunal, this information was the subject of a certificate and notification under s.376 of the Act.

29. On 22 September 2020, the Tribunal sent the applicants information regarding the Certification and Notification regarding disclosure of certain information to the Administrative Appeals Tribunal under s.376 of the Act, which covered an allegation received by the Department on 11 May 2018. The applicants were advised that the gist of the material contained in this correspondence was that they were involved in a contrived relationship with the sponsor, and that the sponsor will receive a financial sum once the applicants obtained permanent residency. A copy of the certificate was attached for consideration by the applicants. The applicants were invited to comment on the validity of the certificate and the particulars of the information outlined above.

30. By email dated 24 September 2020, the agent of the applicants advised that their clients strongly challenged the validity of the Certificate, but did not elaborate on the basis for this assertion. The agents further advised that their clients were shocked by the allegations and believed that the information contained in the certificate was baseless and absolutely untrue. They further advised that the fact that the matter had been brought to their clients’ attention at that time was extremely stressful for them, and that they believed that if the Department of Home Affairs and the Tribunal were relying on this information, they were relying on baseless and fabricated information from an unknown source. The applicants strongly denied the allegations and the validity of the information.

31. The Tribunal has considered the certificate issued under s.376 of the Act and finds it to be valid.

32. This Tribunal customarily treats with caution any anonymously provided information for reasons including that it is neither sworn nor declared to be true, may or may not have been offered in good faith, and the provider is not subject to cross-examination by the applicant or the Tribunal. However in this instance, the information appears to be in substantial harmony with the information recorded as being provided to the Department by the sponsor during his interview, which occurred nearly 6 months prior to the provision of the information, and some two months after the making of the decision under review. The information is also in harmony with the information provided by the parties and their incoming passenger cards. It also puts into perspective the guarded language of the lawyer’s letter dated 8 January 2018, where discussion of the subjects as to whether the parties were still in a relationship and still living together each commenced with the words “at present”, and the period in late 2014 to early 2015 was described as “difficult times”. The letter offered no detail as to how or when a reconciliation was effected.

33. The various statutory declarations provided by friends and relatives in support of this application, are silent in regard to what the lawyers described as “the difficult times”, and the separate travel undertaken by the parties. Neither do they mention how and when a reconciliation was effected between the parties. One can read these various statutory declarations and conclude that not one of the declarants was aware of the “difficult times”, and this is inconsistent with the claimed close relationships. Accordingly, the Tribunal gives these declarations little weight.

34. The sponsor’s reported statement of 18 December 2017 to the effect that the relationship had ceased some time before 2015 appears to find support from the contemporaneous travel documents as well as the confidential information the subject of the s.376 certificate. The Tribunal notes that in harmony with this, at interview, the sponsor could not provide details of his previous address despite having purportedly lived there for three years. The absence of joint travel, and the fact that the parties listed different addresses on incoming passenger cards and did not name each other as emergency contacts are all consonant with the sponsor’s statement regarding the cessation of the relationship.

35. The Tribunal finds the suggestion that a departmental officer rephrased the sponsor’s answers, and did not properly understand them, to be improbable and implausible, and accordingly rejects it. The Tribunal thinks it likely that there was truth in the sponsor’s statement that he believes the applicant to be a good person, and that he was doing her a favour so that she could stay in Australia. The Tribunal notes that the evidence generally suggests that the sponsor’s family and friends shared his view, and were prepared to support the application.

36. The task of this Tribunal is to determine whether or not the applicant has given or caused to be given, a statement which enlivens the operation of PIC 4020, i.e., was false or misleading in a material particular in relation to the present visa application.

37. PIC 4020 was considered in Khan v Minister for Immigration and Citizenship[7], where Moore J observed that information would be material because:

    it is information which might influence the conclusion the decision maker might reach and, because it is false or misleading, underpin or at least contribute to a decision being made which might not have been made had the true position been known to the decision maker.

    [7] [2011] FCA 75 at [28].

38. It was considered further in Trivedi v MIBP[8], where the Full Federal Court[9] judgment was delivered by Buchanan J.[10] His Honour made the point that references in PIC 4020(1) and (3) to a “bogus document or information that is false or misleading in a material particular” give an indication of “the character of improper material to which PIC 4020 is addressed.”[11]

    [8] [2014] FCAFC 42

    [9] Allsop CJ, Buchanan, and Rangiah JJ.

    [10] Allsop CJ and Rangiah J concurring.

    [11] At [31].

39. His Honour continued:

    It is apparent from the terms of PIC 4020 that it addressed the problem of attempts to work a fraud or deception on the assessment of claims for a visa. That is also evident from the fact that PIC 4020 states a ‘public interest’ criterion, from the narrow and exceptional circumstances necessary to waive its requirements and, more generally, from the serious consequences that follow from its application. I would not infer any apparent intention to disqualify a visa applicant who could explain an innocent mistake in a document or information provided by them. 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.

    In my view it should be accepted that an element of fraud or deception is necessary in order to attract the operation of PIC 4020. To take the example of bogus documents, a counterfeit document is not produced accidentally. Similarly, to charge that a statement is false is not to say only that it is wrong. The accusation potentially imports some element of knowledge or intention on somebody’s part…

    ….

    …PIC 4020 is not directed to information or documents which is not tainted in the way I have indicated.[12]

    [12] At [32]-[34].

1. The weight of evidence before the Tribunal leads it to find that the spousal relationship ceased at or around the end of 2014. It follows that the statements in the statutory declarations of 11 July 2015, and 11 July 2017 were false or misleading in a material particular, namely that the spousal relationship was genuine and continuing. It further follows that the Tribunal gives little weight to evidence not specifically referred to in these reasons which might otherwise suggest that a genuine and continuing relationship existed beyond the period at or around the end of 2014.

2. The Tribunal therefore finds that the applicant does not meet PIC 4020(1).

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

3. 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.

4. 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.

5. For the following reasons, the Tribunal is not satisfied that the requirements of PIC 4020 should be waived.

6. In considering whether the requirements of PIC 4020(1) should be waived, the Tribunal has had regard to all of the material before it. No submission has been made that there are compelling circumstances that affect the interests of Australia so as to justify the grant of the visas, and neither is there any evidence to suggest as much. There is little if any evidence before the Tribunal to suggest that there are any compassionate or compelling circumstances that affect the interests of an Australian citizen, in particular, the sponsor.

7. There is a body of documentary evidence capable of supporting a finding that the parties have lived together in recent years. However, the Tribunal gives it little weight having regard to the prior provision of false or misleading information by the applicant and the general evidence discussed earlier.

8. Overall, there is insufficient evidence before the Tribunal to lead it to conclude that there are compassionate or compelling circumstances that affect the interests of an Australian citizen so as to justify the grant of the visa.

9. Therefore the requirements of PIC 4020(1) should not be waived.

10. Accordingly, cl.801.226 in Schedule 2 to the Regulations is not met, and the decision that the criteria for the grant of a Partner (Residence) (Class BS) (Subclass 801) visa are not met by the applicant is affirmed.

    SECONDARY APPLICANT

11. The Tribunal has had regard to whether the secondary applicant included in the visa application satisfies the criteria required under cl.801.321.

12. As the decision in respect of the primary applicant has been affirmed, the secondary applicant is unable to satisfy cl.801.321.

    DECISION

13. The Tribunal affirms the decision not to grant the applicants Partner (Residence) (Class BS) visas.

    Roger Maguire
    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. 

    …