Hedari (Migration)

[2021] AATA 1366

Hedari (Migration) [2021] AATA 1366 (25 March 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Syed Alamshah Hedari

VISA APPLICANTS:  Mrs Bibi Khadija Hedari
Miss Bibi Fatima Hedari
Mr Syed Ali Reza Hedari
Mr Syed Jawad Hedari
Mr Syed Murtaza Hedari
Mr Syed Mustafa Hedari
Mr Syed Waqar Hedari

CASE NUMBER:  2006188

HOME AFFAIRS REFERENCE(S):          2013/021188

MEMBER:Kira Raif

DATE:25 March 2021

PLACE OF DECISION:  Sydney

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

·Public Interest Criterion 4020 for the purposes of cl 309.225 of Schedule 2 to the Regulations

Statement made on 25 March 2021 at 12:20pm

CATCHWORDS

MIGRATION – Partner (Provisional) (Class UF) visa – Subclass 309 (Spouse (Provisional)) – Federal Circuit Court remittal – bogus Afghani identity documents – tazkeras obtained in Pakistan – compassionate or compelling circumstances to waive criteria – lengthy separation from family – mental health issues – decision under review remitted

LEGISLATION

Migration Act 1958, ss 5(1), 65
Migration Regulations 1994, Schedule 2, cl 309.225; Schedule 4 Public Interest Criterion 4020; r 1.03

CASES

Arora v MIBP [2016] FCAFC 35
Batra v MIAC [2013] FCA 274
Kaur v MIBP [2017] FCAFC 184
Mudiyanselage v MIAC [2012] FMCA 887
Plaintiff M64/2015 v MIBP [2015] HCA 50
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 and Border Protection on 28 February 2016 to refuse to grant the applicants Partner (Provisional) (Class UF) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The visa applicants applied for the visas on 23 June 2013. The delegate refused to grant the visas on the basis that the first named applicant (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 found that she did not meet Public Interest Criterion (PIC) 4020. The sponsor (the review applicant) sought review of the delegate’s decision.

3. In April 2017 the Tribunal (differently constituted) affirmed the decision under review. The applicant sought judicial review of the delegate’s decision and the matter was remitted for reconsideration.

4. No hearing was held in this case as the Tribunal was able to make a favourable decision on the material before it. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   Relevant law

5. 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).

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).

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.

   Has the applicant given, or caused to be given a bogus document, or information that is false or misleading in material particular?

10. The review applicant provided to the first Tribunal a copy of the primary decision record. It indicates that when making the application, the visa applicants provided, as evidence of their identities, the Afghani identity documents (tazkeras), as well as passports issued on the basis of the tazkeras. The visa applicants subsequently provided another set of tazkeras, which appear to record different dates of birth. The primary decision record indicates that due to the discrepancies in the documents in relation to the visa applicants’ dates of birth, the Department initiated verification checks with the Afghani authorities, which showed that the tazkeras were ‘fake and bogus’.

11. The visa applicants explained in their communication with the delegate, and the review applicant repeated that evidence to the Tribunal, that the tazkeras were obtained in Pakistan through the only means that were available to them and it is stated that the visa applicants had not been involved in any fraud. In his written submission to the present Tribunal the review applicant also explains that the dates of birth are not routinely recorded in Afghanistan and there was no reliable system to maintain such records due to the wars in the country, so the dates of births are often estimated or guessed.

12. The Tribunal acknowledges the evidence concerning the circumstances in which the tazkeras were obtained and the dates of birth recorded. However, it is not necessary for the Tribunal to determine whether the visa applicants had intentionally obtained the bogus documents or were involved in the fraud. As the reasoning in Trivedi indicates, it is sufficient that there was fraud or deception by some person (and not necessarily the applicants) for PIC4020 to be engaged.

13. The Tribunal has regard to the information contained in the primary decision record and, in particular, the verification conducted by the Department which led to the advice from the Afghani authorities that the first set of tazkeras were ‘fake and bogus’. Having regard to that information, the Tribunal reasonably suspects that the tazkeras are bogus documents because they are counterfeit or had been altered by a person who did not have authority to do so. The Tribunal finds there is evidence that the visa applicants had given, or caused to be given, to the Minister or an officer, bogus documents in relation to the visa application.

14. While the Tribunal acknowledges that the visa applicants had provided an additional set to tazkeras which they claim to be genuine, on the reasoning in Mudiyanselage v MIAC [2012] FMCA 887, that is not sufficient to overcome the operation of PIC 4020.

15. The Tribunal finds that the visa applicants do not meet PIC 4020(1).

    Has a visa previously been refused on the basis of a failure to satisfy PIC 4020(1)?

16. PIC 4020(2) requires the Tribunal to be satisfied that the applicant and each member of the family unit have not been refused a visa because of a failure to satisfy PIC 4020(1) in the period commencing 3 years before the application was made and ending when the visa is granted or refused. This requirement does not apply to a person who was under 18 at the time the application for the refused visa was made: PIC 4020(2AA).

17. There is no evidence that a visa had previously been refused on the basis of a failure to satisfy PIC 4020(1). Therefore, PIC 4020(2) does not apply.

    Should the requirements of PIC 4020(1) or (2) be waived?

18. The requirements of PIC 4020(1) and (2) may be waived where there are compelling circumstances that affect the interests of Australia, or where there are compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident, or an eligible New Zealand citizen (as defined in reg 1.03), that justify the granting of the visa. The decision-maker must first be satisfied that there are such circumstances, then must consider whether to exercise the discretion to waive the requirements, having regard to those circumstances: Kaur v MIBP [2017] FCAFC 184.

19. The expressions ‘compelling circumstances’ and ‘compassionate or compelling circumstances’ are not defined for these purposes. To be compelling, the circumstances must force or drive the decision-maker irresistibly to be satisfied: see Plaintiff M64/2015 v MIBP [2015] HCA 50. The ordinary meaning of ‘compassionate’ relates to feelings of sympathy, sorrow, pity or concern for others.

20. For the following reasons, the Tribunal is satisfied that the requirements should be waived.

21. In his submission to the Tribunal of 24 March 2021 the review applicant submits, with respect to the waiver, that he has been separated from his wife and children for 11 years and suffers from mental health issues as a result of the separation and his concern for the family’s welfare. The review applicant states that he faces a real risk of serious harm if he were to visit his family in Pakistan and has no means to make new applications. The  review applicant describes the risk of ham his family faces in Pakistan to the unsafe security situation in that country.

22. The review applicant claims that the lengthy separation from his wife and children has affected his mental health. He provided to the Tribunal evidence from a psychologist that he had been diagnosed with anxiety and depression. The Tribunal accepts that evidence. The Tribunal also accepts, given the review applicant’s immigration history, that he is unable to live in Pakistan or Afghanistan. Thus, unless the waiver is applied, there is a real likelihood that it will lead to an ongoing separation of the review applicant and his partner and children. The Tribunal acknowledges that factors such as the review applicant’s concern for their safety and well-being, as well as the general separation from his family which has been ongoing for a number of years, are likely to exacerbate the applicant’s mental health condition. The Tribunal also accepts the review applicant’s submission that there are limited options for the visa applicants to make other applications, due to the changed definition relating to dependent children, and also the costs that would be involved in such an application.

23. In the Tribunal’s view, the combination of such circumstances are of compassionate nature. That is, the Tribunal is satisfied that there are compassionate circumstances that affect the interests of an Australian citizen (the sponsor), that justify the granting of the visa. The Tribunal finds that the requirements of PIC 4020(1) should be waived, having regard to those circumstances.

    Has the applicant satisfied the identity requirements?

24. PIC 4020(2A) requires an applicant satisfy the Tribunal as to his or her identity. There is nothing in the primary decision record to suggest that  the visa applicants’ identities were at issue. The applicants meet PIC 4020(2A).

    Has a visa previously been refused on the basis of a failure to satisfy PIC 4020(2A)?

25. PIC 4020(2B) requires that neither the applicant nor any family unit member have been refused a visa because of a failure to satisfy the identity requirements in PIC 4020(2A) during the period starting 10 years before the application was made and ending when the visa is granted or refused. This requirement does not apply to a person who was under 18 at the time the application for the refused visa was made: PIC 4020(2BA).

26. There is nothing before the Tribunal to indicate that the visa applicants had previously been refused visas on the basis of a failure to satisfy PIC 4020(2A). Therefore PIC 4020(2B) does not apply.

    Conclusion

27. On the basis of the above, the visa applicants satisfy PIC 4020 for the purposes of cl 309.225.

    DECISION

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

    ·Public Interest Criterion 4020 for the purposes of cl 309.225 of Schedule 2 to the Regulations

    Kira Raif
    Senior Member