CHAMLING RAI (Migration)

[2018] AATA 5495

CHAMLING RAI (Migration) [2018] AATA 5495 (29 October 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Sunita CHAMLING RAI

CASE NUMBER:  1806238

DIBP REFERENCE(S):  BCC2018/351180

MEMBER:Stavros Georgiadis

DATE:29 October 2018

PLACE OF DECISION:  Adelaide

DECISION:The Tribunal remits the application for a Visitor (Class FA) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 600 (Visitor) visa:

·Public Interest Criterion 4020 for the purposes of cl.600.213 of Schedule 2 to the Regulations.

Statement made on 29 October 2018 at 12:54pm

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – subclass 600 (Visa) –applicant meets Public Interest Criterion 4020 – applicant has a partner visa application pending for reconsideration – Decision under review remitted

LEGISLATION

Migration Act 1958, ss 5, 65

Migration Regulations 1994, Schedule 2, cl 600.213, Schedule 4

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 Immigration on 26 February 2018 to refuse to grant the applicant a Visitor (Class FA) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 22 January 2018. The delegate refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl.600.213 of Schedule 2 to the Migration Regulations 1994 (the Regulations) as the delegate concluded the visa applicant did not satisfy the requisite Public Interest Criterion (PIC) 4020 [within 3 years of refusal on 3 January 2018 of the UF 309 Partner visa] and considered there were no compassionate or compelling circumstances to justify the grant of the Subclass 600 (Visitor) visa.

3. The applicant appeared before the Tribunal on 29 October 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s husband, Sumeet Rai.

4. The applicant was represented in relation to the review by her registered migration agent.

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 Public Interest Criterion 4020 (PIC 4020) as required by cl.600.213 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).

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 has concurrently made an application for a Class UF 309 visa which has been the subject of review by the Tribunal in the related casefile number 1801302.  This application was refused by the delegate on the basis of not meeting PIC 4020. The document that attracted the attention of the delegate in that case is the applicant’s birth certificate and a translation thereof from Nepali to English. The background and findings of the related casefile matter 1801302 in respect of the Class UF 309 visa are set out in the Tribunal’s decision made by Member O’Loughlin on 26 October 2018. 

12. The applicant is married to Mr Sumeet Rai who is an Australian permanent resident (granted on 28 October 2014). They married in April 2015. They have a son, Seth Rai, who was born in Australia on 14 July 2018. On 26 October 2018 the Tribunal decided to remit the application for the Partner (Provisional) UF 309 visa for reconsideration, with the direction that the visa applicant meets the PIC 4020 criterion for a Subclass 309 visa in that matter.  

13. At the hearing on 29 October 2018 the Tribunal discussed the specific circumstances with the applicant as they relate to the PIC 4020 criteria in the present matter. The Tribunal accepts the applicant’s oral evidence that she stands by the sworn evidence given in matter 1801302 and that there is nothing to change or add.  For this reason, the Tribunal places weight on the findings made in casefile 1801302 regarding PIC 4020.

14. The Tribunal relies on the oral evidence provided and for the same reasons, adopts the findings made in casefile 1801302 in respect of the PIC 4020 criterion which is the same ground that led to refusal of the visas in both of the related cases.  The Tribunal finds that for the purposes of the (Visitor) Subclass 600 visa, the visa applicant does satisfy PIC 4020. 

15. Given the above findings, the Tribunal will remit the application for a Visitor (Class FA) visa for reconsideration, with the direction that the applicant meets Public Interest Criterion 4020 for the purposes of cl.600.213 of Schedule 2 to the Regulations for a Subclass 600 (Visitor) visa.

16. The Tribunal notes that other criteria will need to be satisfied for the Visitor (Class FA) 600 visa, such as consideration of whether the applicant intends to visit Australia temporarily for the purpose for which the visa is granted and other criteria.  In this regard, the Tribunal notes the submission made by the applicant’s representative at the hearing that the applicant must be offshore for the grant of the Subclass 309 visa and accordingly, the applicant intends to stay in Australia only temporary for that reason. 

17. The applicant’s proposed stay in Australia on a Subclass 600 (Visitor) visa is against the background of the now pending reconsideration by the Department of the Subclass 309 visa which, in all the circumstances, the Tribunal considers should be expedited.

    DECISION

18. The Tribunal remits the application for a Visitor (Class FA) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 600 (Visitor) visa:

    ·Public Interest Criterion 4020 for the purposes of cl.600.213 of Schedule 2 to the Regulations.

    Stavros Georgiadis
    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. 

    …