Chatzigeorgiou (Migration)

[2018] AATA 190

Chatzigeorgiou (Migration) [2018] AATA 190 (1 January 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Nikolaos Fanourios Chatzigeorgiou

CASE NUMBER:  1618821

DIBP REFERENCE(S):  BCC2015/888149

MEMBER:Kate Millar

DATE:1 January 2018

PLACE OF DECISION:  Adelaide

DECISION:The Tribunal remits the application for a Regional Employer Nomination (Permanent) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 187 -  Regional Sponsored Migration Scheme visa:

·Public Interest Criterion 4020 for the purposes of cl.187.213 of Schedule 2 to the Regulations.

Statement made on 01 January 2018 at 8:57pm

CATCHWORDS
Migration – Regional Employer Nomination (Permanent) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Requirement not to have provided false or misleading information – Whether charges or applications pending against applicant – Applicant unaware of proceedings – Victim of identity fraud – Innocent mistake

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl 187.213, Schedule 4, PIC 4020

CASES
Trivedi v MIBP [2014] FCAFC 42
Patel v MIBP [2015] FCAFC 22
Kaur v MIBP [2014] FCA 1276

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. Mr Chatzigeorgiou is a Bishop in the Greek Orthodox Church.  He applied for a Regional Employer Nomination (Class RN) visa on 19 March 2015 as a Minister of Religion.

2. His application was refused by a delegate of the Minister for Immigration and Border Protection on 27 October under s.65 of the Migration Act 1958 (the Act).

3. The delegate refused Mr Chatzigeorgiou’s visa application as the delegate was not satisfied that he met the requirement not to have provided false or misleading information.  In particular, the delegate found Mr Chatzigeorgiou had answered “no” when asked Have you been charged with any offence or have any proceedings against you overseas or in Australia.  The delegate stated the Department of Immigration had received information that Mr Chatzigeorgiou had proceedings against him in Greece for fraud and abetting.

4. Mr Chatzigeorgiou says that at the time he completed the form he was not aware of any proceedings against him, and was not aware of this matter until informed by the Department.  He stated the proceedings in Greece resulted from purchases made using a passport and an identity card which were stolen in 2010. 

5. Mr Chatzigeorgiou appeared before the Tribunal on 28 September 2017 to give evidence and present arguments, and was represented by his registered migration agent. The Tribunal hearing was conducted with the assistance of an interpreter in the Greek and English languages.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. At the time Mr Chatzigeorgiou applied for the visa, Class RN contained subclass 187. The criteria for the grant of this visa are set out in Part 187 of Schedule 2 of the Migration Regulations 1994, and Mr Chatzigeorgiou must meet the primary criteria in Part 187 to be granted the visa.

8. One of the criteria Mr Chatzigeorgiou must meet is cl.187.213. This in turn requires that he meets Public Interest Criterion 4020 (PIC 4020), and the issue in this review is whether Mr Chatzigeorgiou meets PIC 4020.

9. Broadly speaking, PIC 4020 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: cl.4020(1); and

   ·the applicant and each member of the family unit has not been refused a visa because of a failure to satisfy cl.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: cl.4020(2) and (2AA); and

   ·the applicant satisfies the Minister as to his or her identity: cl.4020(2A); and

   ·neither the applicant nor any family unit member has been refused a visa because of a failure to satisfy cl.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: cl.4020(2B) and (2BA).

10. The requirements in cl.4020(1) and (2) can be waived if there are certain compelling or compassionate reasons justifying the granting of the visa: cl.4020(4). However, this waiver does not apply to the identity requirements in cl.4020(2A) and (2B). PIC 4020 is extracted in the attachment to this decision.

11. In issue in this matter is whether there is evidence Mr Chatzigeorgiou has given false or misleading information.  There is evidence that Mr Chatzigeorgiou has given information that is incorrect.  He has answered “no” to a question about whether he had been charged with an offence or had any proceedings against him.   This was not the case, as there were charges pending of fraud and attempted fraud.  While this information was incorrect, it must be considered whether it was false and misleading.

12. What amount to false and misleading information has been considered by the Full Federal Court in Trivedi v MIBP[1], Patel v MIBP[2] and the Federal Court in Kaur v MIBP[3].

    [1] [2014] FCAFC 42

    [2] [2015] FCAFC 22

    [3] [2014] FCA 1276

13. In Trivedi Justice Buchanan, with whom Chief Justice Allsop and Justice Rangiah agreed, considered what is required by false and misleading information and states that much depends on the context and perceived purpose of PIC 4020. Justice Buchanan states at [32]:

    It is apparent from the terms of PIC 4020 that it addressed the problems 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 documents 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 purposively untrue sense of that term.

    [33] 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 counterfeit documents, a counterfeit document is not produced accidentally.  Similarly, to charge that a statement is false is not only to say that it is wrong.  The accusation potentially imports some element of knowledge or intention on somebody’s part …

14. Justice Buchanan observes that there is a distinction in the language of PIC 4020, which uses the terms of false and misleading, and those in Part 2, Division 3, Subdivision C which refer to correct information.   

15. Justice Buchanan rejected the assertion that PIC 4020 applies to any objectively untrue statement or information provided by a visa applicant.[4] 

    [4] At [40]

16. In Kaur the interpretation of a reference for the applicant was in issue, with the Tribunal finding a reference provided by the applicant inferred she had specified amount of experience as a hairdresser, when fact in the applicant had undertaken training for part of this time.  Justice Barker allowed Ms Kaur’s appeal and found at that the Tribunal had asked itself whether the information was objectively false and misleading, and in doing so failed to enquire into the purposeful falsity of the information.[5]  

    [5] At [61]

17. In Patel, the applicant had provided a record of test results for an English language test, with different and more favourable results than those recorded on for same test number on an on-line record of test.  The applicant argued she was not responsible for any alteration or forgery of the document she supplied, and it did not follow from the fact that the test results were false that the applicant had deliberately falsified them.  The Full Federal Court in separate judgements found that there was sufficient information to find there was evidence that the applicant had provided a bogus document as defined by the Act.  This case has limited application to the facts of this case as in issue was the provision of a bogus document rather than false and misleading information and, as stated by Justice Buchanan in Trivedi, a counterfeit document is not produced accidentally.

18. In this case, it then falls to a question of whether the information provided by Mr Chatzigeorgiou is purposefully untrue, or whether there was some knowledge or intention on somebody’s part to provide false and misleading information.

19. While there are a number of allegations that have been made about Mr Chatzigeorgiou, the source of the information that Mr Chatzigeorgiou had proceedings issued against him for fraud and abetting could not be located in the Department file.    Nevertheless, Mr Chatzigeorgiou has acknowledged these charges exist.

20. Mr Chatzigeorgiou gave evidence that his passport and identity card were stolen in 2010 and his identity was used to purchase electronic goods or computers.  He said he reported the theft of these documents and was given time after the hearing to provide a copy of the report of the theft of these documents.  He was charged with fraud as it was believed he had ordered the goods without an intention to pay for the goods. 

21. As proceedings were due to be completed after the hearing, Mr Chatzigeorgiou was given time after the hearing to provide further information on the outcome of these proceedings.  He has provided a decision of the Piraeus Court of Appeals which pronounces Mr Chatzigeorgiou innocent of fraud in the period 15 June 2010 to 25 June 2010.

22. As Mr Chatzigeorgiou said he had reported the loss of his documents to the police, he was also given time to provide these reports.  He provided a translation and copy of a document that states it is from the Hellenic Police certifying that Mr Chatzigeorgiou appeared before the service on 1 July 2013 and submitted a statutory declaration in which he declared that on 1 January 2011 he lost his passport number AH2424135 date of issue 17 September 2010 and date of expiry 16 September 2015. It states the certificate was issued so that Mr Chatzigeorgiou could request a new document.

23. A translation and copy of a statutory declaration from Mr Chatzigeorgiou was provided dated 7 April 2010 in which he declares his identity card, mobile phone and Alpha Bank credit card were stolen on 4 April 2010.  

24. He provided a document from Hellenic Police certifying that Mr Chatzigeorgiou appeared before the service on 1 July 2013 and submitted a statutory declaration in which he declared that on 1 January 2011 he lost his passport. It states the certificate was issued so that Mr Chatzigeorgiou could request a new document.

25. Mr Chatzigeorgiou gave sworn evidence at hearing that he was not aware of any court matter at the time he completed the form.  He said the matter was heard by the Magistrates Court in 2015 when he was in Australia.  He said he has not been convicted of the offence, as in Greece a conviction is not recorded until an appeal is exhausted, and one of his co-accused had lodged an appeal against the finding of the court. 

26. As a result, this matter did not appear on a copy of his penal record produced for the visa application.  A further certificate from the Magistrates Court in Athens dated 22 August 2016 states that there is nothing pending against Mr Chatzigeorgiou. This certificate goes on to state that the possibility exists for a pending judgement of an irrevocable decision in another Prosecution office (First Instance or Appeals) in Greece. 

27. The Department sought verification of the penal clearances from Greece, and the documents were verified as genuine.

28. Mr Chatzigeorgiou said in 2014 the police went to his parent’s house and asked if he had ordered the goods.  His parents told the police his passport had been stolen, and were told not to worry about it and they would be notified of any developments. 

29. Mr Chatzigeorgiou asserts he was never given a summons for the matter to be heard by the Magistrates Court or any notification it was before the court.  On being asked why, if the police had been to his parent’s house, the police would not enquire about his address or send a summons to this address, Mr Chatzigeorgiou said that his parents advised the police he was in Australia, and the police did not tell his parents the nature of their enquiries, just that they were investigating. 

30. On being asked how he would not know about a summons against him, Mr Chatzigeorgiou said that in preparing for the hearing he had instructed a lawyer to make further enquiries on his behalf in Greece.  His lawyer requested the Magistrate to deliver ay documents about this matter to determine the address where summons was sent but the Magistrate refused.

31. The Tribunal questioned Mr Chatzigeorgiou about how he would not be provided with documents by the court that relate to charges against him.  He said that the law had changed in Greece, and that his lawyer had seen the documents but was not permitted to copy the documents.   

32. On being given additional time after the hearing to produce further evidence in support of this submission, Mr Chatzigeorgiou provided a document stating it is from the District Attorney’s Appeal Court of Piraeus.  This states that in response to an application by Mr Chatzigeorgiou for copies and summonses and evidence from documents of the Appeals Court of Piraeus 382/2015 and CBN F113/2010 that photocopies are not granted according to established principles of the District Attorney’s Appeals Court.

33. Of note is that the file numbers on this document are not the same as those on the decision of the Piraeus Court of Appeals which pronounces Mr Chatzigeorgiou innocent of fraud in the period 15 June 2010 to 25 June 2010.  However the refusal of the documents pre-dates the decision of the Court, and it is difficult to determine what to make of this disparity.   

34. This decision states Mr Chatzigeorgiou’s address is 65A Blight Street Boston Massachusetts USA.  It is submitted this address is incorrect and explains Mr Chatzigeorgiou did not know about the summons or the charges.  It is also submitted this establishes he was not aware of the court action when he completed the form.  This address is also different to the address Mr Chatzigeorgiou said he had been given by his lawyer as the address to which the summons was delivered being 7 Arhimidou Athens or 80 Pratinou Nikaia.

35. Mr Chatzigeorgiou has provided a detailed explanation for why he answered “no” to the question Have you been charged with any offence or have any proceedings against you overseas or in Australia. He has supported his explanation with documents regarding the theft of identity documents, a summons issued to an address at which he states he has not lived, and has also provided a decision that states he is innocent.  These support his explanation that he did not know, and could not have known, of the proceedings in Greece. 

36. Having considered the information before me, while I am satisfied that the information provided by Mr Chatzigeorgiou was incorrect, I am not satisfied Mr Chatzigeorgiou or anyone else knew of the charges against him and as a result I am not satisfied the information had the quality of  purposeful falsity as specified by Justice Buchanan in Trivedi.

37. As I am not satisfied that there is evidence that Mr Chatzigeorgiou has given or caused to be given to the Minister or an officer information that is false or misleading in a material particular Mr Chatzigeorgiou meets cl.4020(1).

38. There is nothing before me to indicate he has previously been refused a visa on the basis of a failure to satisfied cl.4020(1) or that he does not meet the identity requirements in cl.4020(2A).

39. On the basis of the above, the applicant satisfies PIC 4020 for the purposes of cl.187.213.

    Other matters

40. There are a number of other allegations contained in the Department file, and in the course of the proceedings an abundance of documentation was provided by a third party alleging misconduct by a number of members of the Greek Orthodox Church or community.

41. It is difficult to discern allegations against Mr Chatzigeorgiou from this material or a coherent argument.  This is not to dismiss the possibility that there is material contained in the documentation that the Minister may wish to investigate in relation to other criteria for the grant of this visa or for nominations made by the Greek Orthodox Community of South Australia. 

42. Various allegations contained in the Department file were put to Mr Chatzigeorgiou under s.359A during the course of the hearing, and Mr Chatzigeorgiou denied these allegations.  He has previously provided an Australian police clearance to the Department.  Suffice to note that in April 2016 SA Police advised the material has been examined and it was determined there is nothing to investigate.  

43. Mr Chatzigeorgiou provided extracts from decisions of the Supreme Court of South Australia were it was found that a person had defamed a number of members of the Greek Orthodox Community of South Australia. It would seem that there are schisms in the community of a complexity that cannot be, and would be inappropriate to, canvass in a decision of this Tribunal.

    DECISION

44. The Tribunal remits the application for a  Regional Employer Nomination (Permanent) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 187 -  Regional Sponsored Migration Scheme visa:

    ·Public Interest Criterion 4020 for the purposes of cl.187.213 of Schedule 2 to the Regulations.

    Kate Millar
    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. 

    …