Biswas (Migration)

[2022] AATA 5149

Biswas (Migration) [2022] AATA 5149 (5 December 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Soumya Biswas
Dr Nilambari Pankaj Nikumbh
Mr Turvash Pankaj Nikumbh
Miss Turya Pankaj Nikumbh

REPRESENTATIVE:  Mr Gareth John Lewis

CASE NUMBER:  2000681

HOME AFFAIRS REFERENCE(S):          BCC2018/2334659

MEMBER:Wan Shum

DATE:5 December 2022

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the applications for Skilled Independent (Permanent) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 189 - Skilled - Independent visa:

·Public interest criterion 4020 for the purposes of cl 189.211(1) of Schedule 2 to the Regulations.

Statement made on 05 December 2022 at 9:38am

CATCHWORDS
MIGRATION – Skilled Independent (Permanent) (Class SI) visa – Subclass 189 (Skilled Independent) – bogus document – Form 1229 – ‘Consent to grant an Australian visa to a child under the age of 18 years’ – verification check – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cls 189.211, 189.232; Schedule 4, PIC 4020

CASES
Arora v MIBP [2016] FCAFC 35
Batra v MIAC [2013] FCA 274
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 Home Affairs on 2 January 2020 to refuse to grant the applicants Skilled Independent (Permanent) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants applied for the visas on 30 May 2018. The delegate refused to grant the visas on the basis that the first named applicant (the applicant) did not satisfy the requirements of cl 189.312 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) because the delegate was of the view that the applicant had provided bogus documents and did not satisfy public interest criterion (PIC) 4020.

3. The applicants sought review of the decisions and were represented by the abovenamed representative. The reference to the clause applicable to a person who seeks to satisfy the primary criteria appears to be an error, and it should have been cl 189.211(1). The Tribunal has proceeded to review the perceived failure of the applicant to satisfy PIC 4020 for the purposes of cl 189.211(1).

4. The applicants appeared before the Tribunal by videoconference using Microsoft Teams on 24 November 2022 to give evidence and present arguments. The applicant appeared from the representative’s office while the other applicants appeared from another location.

5. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The issue in this review is whether the visa applicant meets PIC 4020 as required by cl 189.232(1) 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)).

7. 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?

8. 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.

9. 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.

10. 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.

11. The applicant lodged a Skilled - Independent (New Zealand) (Subclass 189) visa application on 30 May 2018 which included his wife, the second named applicant, and stepchildren, the third and fourth named applicants. During processing of the visa application, the delegate requested further information of evidence that a visa could be granted in respect of both children, who were under 18. It was later explained, in a natural justice letter, that this was to assist the Department in its assessment of PIC 4017 in regard to each child. The attached detailed sheet relevantly states that in the case of applicants under the age of 18 who will not be travelling with both parents or legal guardians, the latter must provide consent for the Australian visa to be granted. The request asks for provision of a completed and signed Form 1229 ‘Consent to grant an Australian visa to a child under the age of 18 years’ or a statutory declaration from each parent or legal guardian not included in the application. Form 1229 is utilised by the Department to confirm that any non-accompanying parent of a child under 18 years of age consents to their child being granted an Australian visa. In the alternative, it states that: “if you have sole responsibility for any child included in this application, please provide further evidence. Acceptable evidence may include a court order, custody documentation, or a death certificate of the child’s other parent.”

12. The following information was provided in response to the request, on 18 October 2018:

    ·a copy of a completed and signed Form 1229, which was attested as a copy of the original sighted on 27/9/18. The form was completed with the details of Pankaj Madhukar Nikumbh as the father of the third and fourth named applicants. His details are the only ones completed for parent(s)/person with parental responsibility for the children. The form is signed and dated 15/12/2016.

    ·A copy of The Union of India, Maharashtra State Motor Driving Licence for Dr Pankaj [Madhukar] Nikumbh.

    ·A copy of a Govt. of India, Income Tax Department card for Pankaj Madhukar Nikumbh.

    ·A copy of a Government of India ID card for Dr Pankaj Madhukar Nikumbh.

13. The delegate requested that a Departmental officer in India contact the father of the children in respect of the Form 1229 to verify that he had signed the form and was aware it is for permanent residency.

14. The outcome recorded by the officer in India was that that it was non-genuine. It is recorded that the officer called Dr Pankaj Madhukar Nikumbh’s contact number on 5 February 2019 to discuss the Form 1229 and that Dr Pankaj Madhukar Nikumbh denied having signed the form. This was in spite of the officer informing Dr Pankaj Madhukar Nikumbh that the forms had been signed in 2016.

15. The delegate wrote to the applicants referring to the outcome of the verification check, stating that Pankaj Madhukar Nikumbh had not signed the Form 1229 that was provided to the Department and stated that this information raised serious concerns regarding the consent of Pankaj Madhukar Nikumbh to the grant of an Australian visa to his children. The delegate was of the belief that the applicant had given a ‘bogus document’ as defined in s 5(1).

16. In response to the natural justice letter, the applicant responded by email, stating that his wife contacted her ex-husband Dr Pankaj Madhukar Nikumbh regarding his response to questions about whether he had signed the Form 1229 or not. The applicant wrote that Dr Pankaj Madhukar Nikumbh agreed that he had signed previous documents, and that they have WhatsApp and Facebook messenger conversations as evidence of this, although he did not attach a copy. The applicant states that Dr Pankaj Madhukar Nikumbh agreed to sign the documents again, which were attached to the email. The applicant also refers to a letter from the second named applicant addressing the issue. In the letter dated 1 September 2019, the second named applicant states that her ex-husband, Dr Pankaj Madhukar Nikumbh, had signed the document previously and that she had contacted him after receiving the natural justice letter and he had acknowledged that he had signed the document. He agreed to sign a new Form 1229 which was given with the response. She added that her previous marriage was settled bitterly and was finalised in family court. The family court documents provided reflect that the divorce occurred in February 2017, but do not set out any detail about the custody arrangements.

17. The delegate considered the response but was of the view that a bogus document had been provided and, as no claims had been made about circumstances that justified the grant of the visa, proceeded to find that PIC 4020 was not met.

18. During the hearing, the second named applicant explained that the Form 1229 signed in December 2016 had been submitted with an earlier visitor visa application lodged on behalf of the children. She added that at the time, she and Dr Pankaj Madhukar Nikumbh were not yet legally divorced although she had full parental responsibility then. After the visitor visas were granted, the divorce was confirmed and she had full parental responsibility. In terms of Dr Pankaj Madhukar Nikumbh’s responses, she addressed this by saying she is not sure what happened and maybe he forgot. However, after receiving the letter from Immigration, she had contacted him by messaging him on WhatsApp. The Tribunal has before it a copy of the communications, which reflect a number of conversations on or after 15 August 2019 regarding the Department’s natural justice letter. Of particular relevance is the initial response given by Dr Pankaj Madhukar Nikumbh in response to the message: “[t]he form u signed, immigration found it fraudulent and kids can’t stay or even goto school until u give them ur authentication to form 1229…”, of “I didn’t got any kind of form for signing”. The next messages include reference to when the form was signed with a screenshot of the signature page of the form. There is then a reference to wishing to talk and the second named applicant told the Tribunal that she had spoken to him over the phone about the form and that he had said that he did not deny signing the forms and agreed to sign the form again. The Form 1229 signed in August 2019 was provided to the Department along with their explanation. The second named applicant referred to their marriage breakdown, stating that he was not reliable and the outcome of the divorce reflected this, as he had no visitation rights and no parental responsibilities regarding the children. She added that she was not sure why he denied it.

19. The Tribunal notes that the affidavits from Dr Pankaj Madhukar Nikumbh of 8 January 2020 acknowledge that he had signed the Form 1229 in 2016 “voluntarily and without any influence or pressure” and that he had signed a new copy and handed it over to the second named application on 27 September 2018. There appears to be an error in this date. The Tribunal notes that he refers to the enquiry made over the phone by the Immigration Department on or around 6 February 2019 about his signature and consent and states that “[he] had given consent and telephonically verified and not denied [his] signature”.

20. This contradicts the record of the conversation with the Immigration officer where it is recorded that he denied signing the form. It was submitted that perhaps it was unclear to Dr Pankaj Madhukar Nikumbh that the form was signed in December 2016, over 2 years prior to the phone call, but the Tribunal notes that the officer’s record includes that the officer informed Dr Pankaj Madhukar Nikumbh that the form was signed in 2016. In the circumstances, having regard also to the WhatsApp conversation in which Dr Pankaj Madhukar Nikumbh initially wrote: “I didn’t got any kind of form for signing”, the Tribunal prefers the record made by the Immigration officer and considers that he had denied signing the form during that conversation.

21. However, in deciding whether the Form 1229 signed in December 2016 is a bogus document, the Tribunal does not consider that the document comes within any of paragraphs (a) to (c) of the definition in s 5(1). This is primarily because the Tribunal does not consider that Dr Pankaj Madhukar Nikumbh’s oral response during the conversation was reliable, noting that when presented with a copy of the signature page to view by the second named applicant over WhatsApp messages in and around 15 August 2019, he appears to acknowledge that he did sign the document despite initially stating that he had not, as he then immediately agrees to sign and complete a new Form 1229. His reliability generally is somewhat questionable given he has attested that he did not deny signing the form, and as there is no other evidence which supports a conclusion that the 2016 form that had originally been provided for a visitor visa application was not genuinely signed by him, the Tribunal has formed the view that he did sign the Form 1229 in December 2016.

22. Having regard to all of the circumstances, the Tribunal does not have a reasonable suspicion that a document was given which meets the definition of bogus document. The denial of Dr Pankaj Madhukar Nikumbh was the only evidence upon which PIC 4020(1) was found not to be met. There is nothing before the Tribunal which it considers is information that is false or misleading in a material particular.

23. It appears that the Form 1229 was not required for this application as the divorce had been finalised before the application the subject of this review was made, and Dr Pankaj Madhukar Nikumbh did not have any parental responsibility of the children since 10 February 2017. Instead the applicants should have been providing evidence that it was the second named applicant who had full parental responsibility of the children, such as a copy of the divorce decree outlining that she had full custody and did not need to provide the 2016 Form. It is unfortunate because the parties have been awaiting the outcome of this review for some time and recently been separated, with the second named applicant and the children remaining in India after a recent visit, having not obtained bridging visa Bs, while the applicant returned to Australia alone. They had applied for visitor visas to return to Australia but PIC 4020 would have been an obstacle for that application as well.

24. Having considered all the information before it, the Tribunal is of the view that there is no evidence that the applicants have given, or caused to be given, to the Minister, an officer, the Tribunal, a relevant assessing authority or a Medical Officer of the Commonwealth a ‘bogus document’, as defined in s 5(1), or ‘information that is false or misleading in a material particular’ as defined in PIC 4020(5), in relation to the visa application or a visa held in the 12 months before the visa application was made.

25. Therefore, the applicant meets PIC 4020(1).

    Has a visa previously been refused on the basis of a failure to satisfy PIC 4020(1)?

26. 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).

27. The records before the Tribunal reflect that the applicant and each member of the family have not been refused a visa in the relevant period because of a failure to satisfy PIC 4020(1). Therefore, PIC 4020(2) is met.

    Has the applicant satisfied the identity requirements?

28. PIC 4020(2A) requires an applicant to satisfy the Tribunal as to his or her identity. The Tribunal has sighted a copy of the biodata page from each of the applicant’s passports, as well as other official documents from the Indian and New Zealand authorities. The Tribunal is not aware of any identity concerns and, in the absence of any such concerns, is satisfied as to the applicant’s identity.

29. Therefore, the applicant meets PIC 4020(2A).

    Has a visa previously been refused on the basis of a failure to satisfy PIC 4020(2A)?

30. PIC 4020(2B) requires that neither the applicant nor any family unit member has 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).

31. The records before the Tribunal reflect none of the applicants have been refused a visa in the relevant period because of a failure to satisfy PIC 4020(2A).

32. Therefore PIC 4020(2B) is met.

    Conclusion

33. On the basis of the above findings, the applicant satisfies PIC 4020 for the purposes of cl 189.232(1). Given this, the appropriate course is to remit the visa application to the Minister to consider the applicants against the remaining criteria for the visa.

    DECISION

34. The Tribunal remits the applications for Skilled Independent (Permanent) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 189 - Skilled - Independent visa:

    ·Public interest criterion 4020 for the purposes of cl 189.111(1) of Schedule 2 to the Regulations.

    Wan Shum
    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.

    …