Faruque (Migration) - [2024] AATA 3889

Faruque (Migration) [2024] AATA 3889 (20 September 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REVIEW APPLICANT: Mr Abdullah Al Faruque

VISA APPLICANT:  Ms Faiza Mahmuda
REPRESENTATIVE:  Mr Gareth John Lewis (MARN: 0319248)
CASE NUMBER:  2012547
HOME AFFAIRS REFERENCE(S):          BCC2017/4012729
MEMBER:Meena Sripathy
DATE:20 September 2024
PLACE OF DECISION:  Sydney
DECISION:The Tribunal remits the application for a Partner (Provisional) (Class UF) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 309 (Spouse (Provisional)) visa:
·cl. 309.211 and cl.309.221 of Schedule 2 to the Regulations; and
·Public Interest Criterion 4020 for the purposes of cl 309.225 of Schedule 2 to the Regulations.

Statement made on 20 September 2024 at 10:40am
CATCHWORDS
MIGRATION – Partner (Provisional) (Class UF) visa – subclass 309 – applicant had submitted a bogus document – independent information about the marriage registration process – satisfied that the review applicant and visa applicant married as claimed – Marriage Certificate submitted is not a bogus document – applicant meets PIC 4020 – a child was born of the relationship – decision under review remitted
LEGISLATION
Migration Act 1958, ss 5,65
Migration Regulations 1994, r 1.15, Schedule 2, cls 309.211, 309.221, 309.225
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

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 14 July 2020 to refuse to grant the applicant a Partner (Provisional) (Class UF) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant applied for the visa on 30 October 2017. The delegate refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl 309.225 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) because the delegate was not satisfied that PIC 4020(1) was met or that the requirements could be waived, for the purposes of cl. 309.225.
The review applicant appeared before the Tribunal on 19 September 2024 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant. The Tribunal hearing was conducted with the assistance of an interpreter in the Bengali and English languages.
The review applicant was represented in relation to the review.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this review is whether the visa applicant meets Public Interest Criterion 4020 (PIC 4020) as required by cl 309.225 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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Faruque (Migration)

Details

AGLC: Faruque (Migration) [2024] AATA 3889
Case: [2024] AATA 3889
Decision Date: 20 September 2024

CaseChat Overview and Summary

This matter concerned an appeal by Abdullah Al Faruque against a decision to refuse a Partner (Provisional) (Class UF) visa (subclass 309) to his spouse. The applicant had submitted a Nikah Nama document to evidence their marriage, which was registered significantly later than the purported date of marriage. This discrepancy led to the document being referred for verification, with the outcome suggesting it was non-genuine. The Department subsequently invited the applicant to comment on this adverse information, specifically referencing Public Interest Criterion (PIC) 4020, which relates to the provision of bogus documents or false or misleading information. Despite the applicant's explanation of a clerical error in the registration date and the submission of supporting evidence, the visa application was refused on the grounds that a bogus document had been provided.

The primary legal issue before the Tribunal was whether the visa applicant met PIC 4020, which requires that there be no evidence of the applicant having provided a bogus document or false or misleading information in relation to the visa application. The Tribunal was required to consider the definition of a "bogus document" and "information that is false or misleading in a material particular" as set out in the Migration Act 1958 and the Migration Regulations 1994, respectively. The Tribunal also had to assess the reasonableness and sufficiency of the applicant's explanation for the discrepancy in the marriage registration date.

The Tribunal reasoned that while the Nikah Nama document contained a date of registration that was inconsistent with the claimed date of marriage, the explanation provided by the sponsor, supported by a correction letter from the Marriage Registry office and witness statements, was sufficient to satisfy the Tribunal that the document was not bogus. The Tribunal noted that the initial verification report was ambiguous and that the sponsor had provided a credible explanation for the clerical error in the registration date. Consequently, the Tribunal concluded that the applicant met PIC 4020 and other relevant criteria for the visa.

The Tribunal remitted the application for reconsideration, directing that the applicant be considered to meet cl.309.211 and cl.309.221 of Schedule 2 to the Regulations, and Public Interest Criterion 4020 for the purposes of cl 309.225 of Schedule 2 to the Regulations.

Orders

Orders of the court

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Background

Background to the litigation

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.Background The visa applicant lodged the application for the visa under review, Partner (Provisional) Subclass 309/Partner (Migrant) Subclass 100 visa on 30 October 2017. She is sponsored by Abdullah Al Faruque, who is an Australian citizen and lodged a sponsorship form. The parties claim to have met on 21 April 2009 and married on 8 May 2011. A Nikah Nama document was submitted with the application to confirm the marriage and indicated it was registered on 29 January 2016. Due to the significant gap between the date of marriage and date of registration, the file notes indicate the Nika Nama document was referred for verification. A further file note indicates on 27 August 2019, the outcome of the verification revealed that the document was non-genuine.[1][1] BCC20174012729, ADD20124/5268761 – however the Tribunal notes the file note itself is somewhat ambiguous. It states On 27/08/2019, an officer of the Department contacted the Noakhali municipality office and spoke to the Kazi/Qazi who verified the Nikahnama document provided with the document as non-genuine and could be found in their register. (emphasis added) On 12 September 2019 the Department sent an invitation to the applicant to comment on this adverse information. She was informed about the requirements of PIC 4020 that requires there is no evidence that the applicant has given, or caused to be given, a bogus document or information that is false or misleading in a material particular in relation to the application for the visa. On 8 October 2019 the sponsor (review applicant) submitted a letter of explanation and apology. He stated that the Nikah Nama mistakenly stated 29 January 2016 instead of 8 May 2011 as the date of registration and this was an unexpected and inaccurate procedural mistake. He acknowledged that having provided the document, it was his responsibility, but sought to explain what happened. He attended the Marriage Registration office personally and was informed that at the time of preparation of the Nikah Nama for Registrar’s signature the date written was by clerical error stated as 29 January 2016 instead of 8 May 2011 but this was not discovered at the time of signing. It was their household assistant who was dealing with the matter at the time, and they did not have enough knowledge of the matter. He submitted a correction letter from the Marriage Registry office. Also submitted with this explanation are various witness statements from friends and family who attended the wedding. On 14 July 2020 the delegate refused the application, on the basis of finding that the applicant had submitted a bogus document. The delegate considered but was not satisfied the explanation was reasonable given that the same registration date (29 January 2016) has been consistently entered in all relevant fields of both the marriage certificate and the Nikah Nama. The delegate also concluded that there were no circumstances to waive the requirements of PIC 4020 on the material before the Department. Evidence before the Tribunal

Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.CONSIDERATION OF CLAIMS AND EVIDENCE The issue in this review is whether the visa applicant meets Public Interest Criterion 4020 (PIC 4020) as required by cl 309.225 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). 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? 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. 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.

Decision

Reasons for decision

The Tribunal is satisfied the applicant meets cl.309.211 at time of application and cl.309.221 at time of decision. DECISION The Tribunal remits the application for a Partner (Provisional) (Class UF) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 309 (Spouse (Provisional)) visa:·cl. 309.211 and cl.309.221 of Schedule 2 to the Regulations; and ·Public Interest Criterion 4020 for the purposes of cl 309.225 of Schedule 2 to the Regulations.Meena SripathySenior MemberATTACHMENTMigration Regulations 1994Schedule 44020(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 1958s 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.…

Ratio Decidendi

Legal Principle Established

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