Hraichie (Migration) - [2023] AATA 2215

Hraichie (Migration) [2023] AATA 2215 (12 July 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REVIEW APPLICANT:  Mr Youssef Hraichie
VISA APPLICANT:  Mrs Houda Abbouch
REPRESENTATIVE:  Dr Mahmoud Ajjawi (MARN 9900118)
CASE NUMBER:  2214468
HOME AFFAIRS REFERENCE(S):          BCC2021/720035
MEMBER:Peter Papadopoulos
DATE:12 July 2023
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 for the purposes of cl 600.213(1) of Schedule 2 to the Regulations.

Statement made on 12 July 2023 at 5:02pm
CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – false or misleading information given in visa application – second child in Australia not listed – application completed online by review applicant – ‘relatives, friends or contacts’ section requires only one such person – no clear specification to list each and every possible person – second child clearly disclosed elsewhere – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5(1), 65
Migration Regulations 1994 (Cth), Schedule 2, cl 600.213(1), Schedule 4, criterion 4020(1), (5)
CASES
Arora v MIBP [2016] FCAFC 35
Batra v MIAC [2013] FCA 274
Trivedi v MIBP (2014) 220 FCR 169
Umer v MIBP [2017] FCCA 2934
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 to refuse to grant the applicant a Visitor (Class FA) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant applied for the visa on 14 December 2021.
On 23 August 2022, the delegate refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl 600.213(1) of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) because the delegate was not satisfied that the applicant met Public Interest Criterion 4020 (PIC 4020).
The review applicant was represented in relation to the review by registered migration agent Dr Mahmoud Ajjawi (MARN 9900118).
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 600.213(1) for the grant of the visa.
Relevant law
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 during the review of a Part 5-reviewable decision, 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…

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 Hraichie (Migration)

Details

AGLC: Hraichie (Migration) [2023] AATA 2215
Case: [2023] AATA 2215
Decision Date: 12 July 2023

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered an application for a Visitor (Class FA) visa, Subclass 600, made by the review applicant. The core of the dispute concerned whether the applicant had provided false or misleading information in their visa application, specifically in relation to the disclosure of a second child in Australia, which could have engaged Public Interest Criterion (PIC) 4020.

The Tribunal was required to determine whether the applicant had met PIC 4020, which mandates that an applicant must not have provided false or misleading information in relation to their visa application or a previous visa held within the preceding 12 months. The Tribunal also had to consider the definition of "information that is false or misleading in a material particular" as set out in PIC 4020(5) and relevant case law, including the distinction between false or misleading information and a "bogus document."

The Tribunal reasoned that while the online application form for the 'relatives, friends or contacts' section only required the listing of one such person, this did not preclude the applicant from disclosing other relevant family members elsewhere. Crucially, the Tribunal found that the applicant's second child was clearly disclosed in another part of the application. Therefore, the Tribunal concluded that the applicant had not provided false or misleading information in a material particular in relation to the visa application, and thus satisfied PIC 4020.

Consequently, the Tribunal remitted the application for a Visitor (Class FA) visa for reconsideration, with a direction that the applicant meets PIC 4020 for the purposes of clause 600.213(1) of Schedule 2 to the Migration Regulations 1994.

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

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 600.213(1) for the grant of the visa. Relevant law 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 during the review of a Part 5-reviewable decision, 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 term ‘information that is false or misleading in a material particular’ is defined in PIC 4020(5) to mean information that is:· false or misleading at the time it is given; and· 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. The term ‘bogus document’ is defined in s 5(1) of the Act. 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. 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.[1][1] Trivedi v MIBP (2014) 220 FCR 169 at [33] 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).

Decision

Reasons for decision

Given the analysis, findings and reasons above, the applicant satisfies PIC 4020 for the purposes of cl 600.213(1).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 for the purposes of cl 600.213(1) of Schedule 2 to the Regulations.Peter PapadopoulosMemberATTACHMENTMigration 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

Full text does not contain this section.