Chaudhry (Migration)

[2020] AATA 5445

Chaudhry (Migration) [2020] AATA 5445 (28 October 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Kashif Sultan Chaudhry

VISA APPLICANT:  Mrs AQDUS IMRAN

CASE NUMBER:  1822872

DIBP REFERENCE(S):  BCC2018/2045516

MEMBER:Roslyn Smidt

DATE:28 October 2020

PLACE OF DECISION:  Sydney

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 (1) for the purposes of cl.600.213 of Schedule 2 to the Regulations.

Statement made on 28 October 2020 at 11:02 am

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – false and misleading information – applicant declared only one previously refused visa – oversight on the part of a migration consultant – no element of fraud or deception – decision under review remitted

LEGISLATION

Migration Act 1958, ss 5, 65
Migration Regulations 1994, Schedule 2, cl 600.213; Schedule 4, Public Interest Criterion 4020

CASES

Arora v MIBP [2016] FCAFC 35
Batra v MIAC [2013] FCA 274
Kaur v MIBP [2014] FCA 1276
Trivedi v MIBP (2014) 220 FCR 169
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 25 June 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 10 May 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) because she found that she had provided false and misleading information by seeking to conceal the fact that she had been refused a visa in 2015.

3. The review applicant appeared before the Tribunal on 30 September 2020 to give evidence and present arguments.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. 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).

6. 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?

7. 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.

8. 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.

9. 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.

10. According to Department records the applicant applied unsuccessfully for a subclass 115 (remaining relative) visa in February 2015. In October 2015 she applied for a visa to visit her mother who was terminally ill. This visa was also refused.

11. In relation to questions relating to her visa history in an online application lodged on 10 May 2018  the applicant stated that she had been refused a visitor visa in June 2015 but made no mention of the refusal of her application for a  subclass 115 visa.  This applicant was prepared with the assistance of a consultant based in Pakistan.  On 12 June 2018 a delegate of the Minister wrote to the applicant ask her to comment on her failure to include this information which suggested that she had provided false or misleading information in her application.

12. In response to this letter the applicant stated that the omission was due to negligence or oversight on the part of a consultant who assisted her with the application.

13. The delegate did not accept this application. She was not satisfied that it was not the applicant’s intention to knowingly provide the Department with false and misleading information regarding her migration history and as a result found that PIC 4020 was not met and refused the application on 25 June 2018.

14. In written submissions to the Tribunal the applicants again stated that the omission of details of the second visa refusal was an inadvertent error on the part of the agent who assisted  his sister to complete her application. The visa applicant was unable to participate in the hearing as she was travelling. The review applicant repeated the explanation provided earlier. I found his account of events convincing and accept that the error in the applicant’s application was an unintentional error on the part of the agent who assisted her and not an attempt to mislead the department.

15. Clearly the information provided in the visa applicant’s application was misleading as it failed to provide a complete or accurate account of her earlier applications. However, in order to attract the operation of PIC 4020 an element of fraud or deception by somebody is also necessary.[1]  In this case, I find that the omission did not involve fraud or deception, but was nothing more than an 

    [1] Trivedi v MIBP (2014) 220 FCR 169 at [33]. See also[1]Kaur v MIBP [2014] FCA 1276 at [57]–[61]

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

    CONCLUSION

17. On the basis of the above, the applicant satisfies PIC 4020 for the purposes of cl.600.213.

    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 (1) for the purposes of cl.600.213 of Schedule 2 to the Regulations.

    Roslyn Smidt
    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. 

    …