Hassan (Migration)

Case [2023] AATA 3376

Hassan (Migration) [2023] AATA 3376 (30 August 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Muhammad Zubair Hassan

VISA APPLICANTS:  Mrs Humaira Kishwar
Miss Ayeza Hassan
Miss Sibgha Hassan

REPRESENTATIVE:  Mr Adewale Oladejo (MARN: 0316370)

CASE NUMBER:  2007391

DIBP REFERENCE(S):  BCC2018/3312746

MEMBER:T. Quinn

DATE:30 August 2023

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the applications for Partner (Provisional) (Class UF) visas for reconsideration, with the direction that the first named visa applicant meets the following criteria for a Subclass 309 (Partner (Provisional)) visa:

·Public Interest Criterion 4020(4) for the purposes of clause 309.225 of Schedule 2 to the Regulations

Statement made on 30 August 2023 at 4:49pm

CATCHWORDS
MIGRATION – Partner (Provisional) (Class UF) visa – Subclass 309 (Partner (Provisional)) – false or misleading information and bogus document provided with visa application – date of birth on child’s birth certificate – possible dates of conception do not correspond with sponsor’s return trips – statutory declaration that sponsor’s brother added a year for education purposes – inconsistent explanations and applicants’ awareness – discretion to waive requirements – compassionate or compelling circumstances – sponsor’s physical and mental health and treatment – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5(1), 65
Migration Regulations 1994 (Cth), Schedule 2, cl 309.211(2), 338(5), 347(2)(b), Schedule 4, criterion 4020(1), (5)

CASES
Arora v MIBP [2016] FCAFC 35
Batra v MIAC [2013] FCA 274
Chand v MIEA (FCA, 7 November 1997)
Kaur v MIBP [2017] FCAFC 184
Kumar v MIBP [2020] FCAFC 16
MIMA v Rajalingham (1999) 93 FCR 220
Mudiyanselage v MIAC [2012] FMCA 887
Nejad v MIMA [1999] FCA 1827; [2000] FCA 741
Plaintiff M64/2015 v MIBP [2015] HCA 50
Sein v MIMA (2001) 114 FCR 370
Selvadurai v MIEA (1994) 34 ALR 347
“T” v Minister for Immigration and Multicultural Affairs [2000] FCA 467
Trivedi v MIBP [2014] FCAFC 42
Vyas v MIMAC [2013] FCCA 1226
Wang v MIMA [2000] FCA 963

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

  1. On 1 September 2018, the first named visa applicant (‘the applicant’ or ‘Ms Kishwar’) applied for a Provisional Partner visa[1] (‘the visa’) based on her marriage to the review applicant, Mr Muhammad Zubair Hassan (‘the sponsor’ or ‘Mr Hassan’).[2]  The second and third visa applicants are the shared children of the Mr Hassan and Ms Kishwar.

    [1]           Specifically, a Partner (Provisional) (Class UF) visa.

    [2]Pursuant to section 65 of the Migration Act 1958 (‘the Act’). At the time of the applicant’s application, Class UF contained only one subclass: Subclass 309 (Partner (Provisional)). The criteria for the grant of a Subclass 309 visa are set out in Part 309 of Schedule 2 to the Migration Regulations 1994 (Cth) (‘the Regulations’). The primary criteria must be satisfied by at least one applicant. Other members of the family unit,…

Continue reading Hassan (Migration)

Sign in free to access the full text

Details
AGLC
Hassan (Migration) [2023] AATA 3376
Case
[2023] AATA 3376
Decision Date

CaseChat Overview and Summary

This matter concerned an application for a Partner (Provisional) (Class UF) visa (Subclass 309). The applicants provided a birth certificate for their child indicating a date of birth that did not align with the sponsor's return trips to Pakistan, raising questions about the accuracy of the information provided. The court was required to determine whether the applicants had provided a bogus document or false or misleading information in a material particular, and if so, whether there were compassionate or compelling circumstances to waive this requirement.

The court considered the inconsistent explanations provided by the applicants regarding the child's date of birth. Initially, the sponsor maintained the date on the birth certificate was correct, despite evidence to the contrary. Subsequently, a statutory declaration was provided by the sponsor stating his brother had added a year to the child's age for educational purposes. The court found these attempts to present the error as a clerical mistake or an innocent oversight unconvincing, particularly in light of earlier statements and the timing of the revised information. The court applied the principle from *Trivedi v Minister for Immigration and Border Protection*, which established that while direct knowledge or complicity of the visa applicant is not always necessary, the information or document must possess a "purposeful falsity" for Public Interest Criterion 4020 to be engaged.

The court accepted the sponsor's later explanation that his brother had altered the date of birth to benefit the child's schooling, finding this to be the truth of the matter. However, the court expressed disappointment at the applicants' inconsistent evidence and attempts to portray unawareness of the error, noting this compromised credibility. Despite these findings, the court remitted the applications for reconsideration by the Minister, directing that the first named applicant met Public Interest Criterion 4020(4) for the purposes of clause 309.225 of Schedule 2 to the Regulations.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

The issues for determination in this case are whether the applicant has given or caused to be given to the Department a bogus document or information that is false or misleading in a material particular and, if so, whether there are compassionate or compelling reasons for this public interest criterion to be waived.CONSIDERATION OF CLAIMS AND EVIDENCEHas the applicant given, or caused to be given a bogus document, or information that is false or misleading in material particular? The applicant filed a birth certificate for the third applicant indicating she was born [in] November 2017. This date did not align with possible conception dates during Mr Hassan’s return trips to Pakistan. Initially, Ms Kishwar insisted during her interview with the Department that this was the correct date of birth and stated her husband had returned to Pakistan in early 2017. This was clearly incorrect as there are movement records held by the Department showing that he did not. The sponsor and the first named applicant (‘the applicants’) also provided a handwritten hospital discharge letter from a Dr Misbah dated 31 August 2019 stating that the third applicant was born [in] November 2017 (‘the discharge letter’). The applicants then filed a statutory declaration sworn by Mr Hassan dated 22 October 2019 stating that the third applicant’s date of birth is actually [November] 2016 and that Mr Hassan’s brother registered her birth and added a year to give her a better start in school.[13] I consider this is the truth of the matter. Unfortunately, the applicants have proceeded to provide inconsistent evidence in an attempt to present as unaware of the error. This is very disappointing. These attempts have included multiple statements from the sponsor, the applicant and the sponsor’s brother stating that this was a clerical mistake by the government in Pakistan and they were not aware of it. They go on to state that when they did become aware of it, they felt it was not an issue and did not make any attempts to correct the error. The time of becoming aware and these statements are not consistent with Ms Kishwar’s answers in her interview with the Department or the statutory declaration or the retrospective discharge letter. [13]See page 263 of the Department file. I do no accept that the date of birth on the third applicant’s birth certificate was an innocent mistake or clerical error. I accept the evidence of Mr Hassan of 22 October 2019 wherein he concedes his brother changed the date of birth to give his daughter a better start in school. This is consistent with the evidence he gave at hearing in relation to the priority he places on his children’s education. It is very disheartening to see applicants perjure themselves in this regard as it compromises possible findings in relation to credibility. The Federal Court has held that it is not necessary for a visa applicant know of, or be directly involved in, any falsehood for PIC 4020 to be engaged.[14] However, an element of fraud or deception is necessary in order to attract the operation of PIC 4020.[15] In that case, Buchanan J states:it is not necessary… to show knowing complicity by a visa applicant. That would impose an impossible task on those administering the visa system. But it is necessary that the information or document have the necessary quality of purposeful falsity, whether or not the visa applicant can be shown to have knowledge of that fact.[16][14]Trivedi v Minister for Immigration and Border Protection [2014] FCAFC 42 per Buchanan J (Allsop CJ and Rangiah J agreeing). [15]Trivedi v Minister for Immigration and Border Protection [2014] FCAFC 42 per Buchanan J (Allsop CJ and Rangiah J agreeing). [16]Trivedi v Minister for Immigration and Border Protection [2014] FCAFC 42 per Buchanan J (Allsop CJ and Rangiah J agreeing) at [43].

Decision

Reasons for decision

Given the findings above, the appropriate course is to remit the applications for the visas to the Minister to consider the remaining criteria for a Subclass 309 visa.DECISION The appropriate course is for this matter to be remitted for reconsideration by the Department. The Tribunal remits the applications for a Partner (Provisional) (Class UF) visas for reconsideration, with the direction that: the first named visa applicant meets the following criteria for a Subclass 309 (Partner (Provisional)) visa: Public Interest Criterion 4020(4) for the purposes of clause 309.225 of Schedule 2 to the Regulations T. QuinnMemberATTACHMENT - Extract from Migration Regulations 19941.15ASpouse(1)For subsection 5F (3) of the Act, this regulation sets out arrangements for the purpose of determining whether 1 or more of the conditions in paragraphs 5F (2) (a), (b), (c) and (d) of the Act exist.(2)If the Minister is considering an application for:(a)a Partner (Migrant) (Class BC) visa; or(b)a Partner (Provisional) (Class UF) visa; or(c)a Partner (Residence) (Class BS) visa; or(d)a Partner (Temporary) (Class UK) visa;the Minister must consider all of the circumstances of the relationship, including the matters set out in subregulation (3).(3)The matters for subregulation (2) are:(a)the financial aspects of the relationship, including:(i) any joint ownership of real estate or other major assets; and(ii) any joint liabilities; and(iii) the extent of any pooling of financial resources, especially in relation to major financial commitments; and(iv) whether one person in the relationship owes any legal obligation in respect of the other; and(v) the basis of any sharing of day‑to‑day household expenses; and(b)the nature of the household, including:(i) any joint responsibility for the care and support of children; and(ii) the living arrangements of the persons; and(iii) any sharing of the responsibility for housework; and(c)the social aspects of the relationship, including:(i) whether the persons represent themselves to other people as being married to each other; and(ii) the opinion of the persons’ friends and acquaintances about the nature of the relationship; and(iii) any basis on which the persons plan and undertake joint social activities; and(d)the nature of the persons’ commitment to each other, including:(i) the duration of the relationship; and(ii) the length of time during which the persons have lived together; and(iii) the degree of companionship and emotional support that the persons draw from each other; and(iv) whether the persons see the relationship as a long‑term one.(4)If the Minister is considering an application for a visa of a class other than a class mentioned in subregulation (2), the Minister may consider any of the circumstances mentioned in subregulation (3).

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.