JUANA (Migration) - [2019] AATA 4292

JUANA (Migration) [2019] AATA 4292 (4 October 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
REVIEW APPLICANT:  Mr Joseph JUANA
VISA APPLICANTS:  Mrs Nafisatu Kassim
Miss Fatima Kassim
Mr Ibrahim Koroma
Miss Isatu Koroma
CASE NUMBER:  1729728
DIBP REFERENCE(S):  BCC2014/2617973
MEMBER:Kira Raif
DATE:4 October 2019
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the visa applicants Partner (Provisional) (Class UF) visas.

Statement made on 04 October 2019 at 8:27am

CATCHWORDS
MIGRATION – refusal – Partner (Provisional) (Class UF) visa – Subclass 309 (Partner (Provisional)) – Public Interest Criterion – false or misleading information – bogus document – court adoption order –– new, genuine document obtained – waiver of requirements – no compassionate or compelling circumstances for waiver – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 309.225, Schedule 4, Public Interest Criterion 4020
CASES
Arora v MIBP [2016] FCAFC 35
Batra v MIAC [2013] FCA 274
Chan v MIBP [2017] FCCA 2893
Kaur v MIBP [2017] FCAFC 184
Mudiyanselage v MIAC (2013) 211 FCR 27
Plaintiff M64/2015 v MIBP [2015] HCA 50
Sidhu v MIBP [2014] FCCA 167
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 Immigration on 11 April 2017 to refuse to grant the visa applicants Partner (Provisional) (Class UF) visas under s.65 of the Migration Act 1958 (the Act).
The visa applicants are nationals of Sierra Leone. The first named visa applicant (‘the visa applicant’) was born in November 1985. She applied for the visas on 7 October 2014. The application includes the visa applicant’s children. The delegate refused to grant the visas on the basis that the visa applicant did not satisfy the requirements of cl.309.225 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the delegate found that the visa applicant did not meet Public Interest Criterion (PIC) 4020.
The sponsor (‘the review applicant’) sought review of the delegate’s decision in May 2017. In July 2017 the Tribunal (differently constituted) affirmed the decision under review. The review applicant sought judicial review and the Tribunal’s decision was set aside by the Court.
The review applicant appeared before the Tribunal on 30 September 2019 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant. The review applicant was represented in relation to the review by his registered migration agent. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Relevant law
The issue in this review is whether the visa applicant meets 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 visa 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 visa applicant held in the 12 months before the application was made: PIC 4020(1); and
·the visa 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 three years before the application was made and ending when the visa is granted or refused, unless the visa applicant was under 18 at the time the application for the refused visa was made: PIC 4020(2) and (2AA); and
·the visa applicant satisfies the Minister as to his or her identity: PIC 4020(2A); and
·neither the visa 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 visa 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).
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. 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 visa applicant: PIC 4020(3). It also applies whether or not the document or information was provided by the visa applicant knowingly or unwittingly.
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 visa 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 visa applicant given, or caused to be given a bogus document, or information that is false or misleading in material particular?
The visa applicant provided to the Tribunal a copy of the primary decision record. It indicates that the visa applicant provided with her application an adoption court order issued by the High Court of Sierra Leone. The Department of Immigration conducted checks to confirm that information. On 20 December 2016 the Department received advice that the document was not genuine.
In December 2016 the delegate wrote to the visa applicant inviting her comments on the above information. The visa applicant replied by providing new court orders. In her submission to the delegate, the visa applicant stated that she followed the correct procedures and the right channels to secure the documents but there may have been ‘administrative lapses’.
In his submission to the first Tribunal the review applicant produced a statement from Mr Samuel Saffa, a legal consultant. Mr Saffa states that the visa applicant does take care of the children since the death of their birth parents. It is stated that the visa applicant made contact with someone who informed her that he could expedite the process to obtain the adoption order and she approached that person without legal advice. After obtaining legal advice, the visa applicant proceeded to regularise the defects and has been granted the adoption order. Mr Saffa confirms that the first adoption order was not granted by the High Court and was not contained in their records.
The visa applicant also provided a statement to the Tribunal confirming that she relied on another person to obtain the adoption order and all the paperwork was arranged by someone else. This is consistent with the evidence of Mr Saffa.
The review applicant provided a further submission to the Tribunal on 25 September 2019. This includes a copy of the statement from Mr Saffa dated May 2017. There is evidence of bank transfers and evidence of the sponsor’s travel. There is evidence of a land sale agreement and a number of photographs of the parties. The review applicant provided additional evidence to the Tribunal at the commencement of the hearing, being his payslips and evidence of his communication with the visa applicant.
In oral evidence, the review applicant explained that his wife had gone through the ‘right channels’ and was told that she needed the adoption papers. She spoke to someone who represented himself as a court official and told her he could get the adoption papers. Prior to approaching the court, she also approached the Social Welfare Department and then approached the court and this person who represented himself as a lawyer charged her $1500. She trusted him because she did not know much about the law and her education was not of a high standard. She provided papers to this lawyer and made the payment to him. Once she received the papers, the visa applicant sent the papers to the Immigration Office. It was only after the documents were checked by Immigration that she realised the documents were bogus documents. The visa applicant then approached another lawyer who intervened. The first lawyer was terminated and the other lawyer made arrangements for the new documents which have been submitted. The visa applicant’s evidence to the Tribunal was the same. She said she contacted a lawyer and paid the lawyer and did not know the documents she obtained were not genuine.
The Tribunal acknowledges the visa applicant’s evidence about how the documents were obtained. The representative submits that the Tribunal must take into account the circumstances in which the document was procured. The representative submits that the visa applicant is not educated and approached a lawyer to obtain the document and became the victim of that lawyer. She is not familiar with the law or with the authenticity of the document. The representative submits that such circumstances weigh in favour of the visa applicant. The Tribunal does not accept that argument. The Tribunal notes that it is not necessary to establish an applicant’s intention to provide bogus documents, or even knowledge, for PIC 4020 to be engaged.
The Tribunal finds that the court adoption orders initially provided by the visa applicant with her application were bogus documents because the documents were counterfeit or have been altered by a person who does not have authority to do so. The Tribunal acknowledges the visa applicant’s evidence that she relied on the assistance of another person and was not responsible for the provision of these documents but the Tribunal finds that there was an element of fraud in obtaining these documents, whether by the visa applicant or another person, and as the court confirmed in Trivedi, it is not necessary for the Tribunal to conclude that the visa applicant knew the information was false or misleading or that the document was a bogus document. The Tribunal acknowledges that the visa applicant subsequently submitted new court orders and the representative submits that the parties did not insist on the usage of the bogus documents, having obtained new documents as soon as they became aware that the documents were bogus. However, the Tribunal relies on the in reasoning in Mudiyanselage v MIAC (2013) 211 FCR 27 which confirms that the subsequent provision of what may be genuine documents does not affect the provision of bogus documents giving rise to the application of PIC 4020.
The Tribunal finds that there is evidence that the visa applicant has given, or caused to be given, to the Minister or an officer, a ‘bogus document’, as defined in s.5(1) of the Act. Therefore, the visa applicant does not meet PIC 4020(1).
Should the requirements of PIC 4020(1) or (2) be waived?
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 r.1.03 of the Regulations), 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.
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.
For the following reasons, the Tribunal is not satisfied that the requirements should be waived.
The review applicant claims to have a genuine spousal relationship with the visa applicant. In oral evidence, the review applicant told the Tribunal with respect to the waiver, that he married his wife legally and in accordance with the law. The review applicant stated that each time he travelled to Sierra Leone, he lived with his wife and they spent time together. The review applicant states that members of the community are aware that they have a genuine relationship. They are communicating constantly and have a genuine relationship. The visa applicant told the Tribunal that they have a joint account and have spent time together, which is recognised by others. The review applicant’s representative refers to the applicants having conjugal rights and benefits which cannot be met if the parties are not together. The representative also notes that the relationship has been recognised as being genuine in the past. The Tribunal acknowledges that the review applicant provided a number of documents to the present and previous Tribunals concerning his relationship and there are other documents that were submitted with the primary application.
The Tribunal accepts that the first Tribunal found the visa applicant’s relationship with the sponsor to be a genuine one. However, the Tribunal has concerns about the exclusive nature of the relationship, and this issue was discussed with the review applicant during the hearing. This is because there is evidence before the Tribunal concerning the review applicant’s earlier relationship with an Australian partner. The review applicant claims he met the visa applicant in 2006 and their relationship developed and they married in January 2013. There is also evidence before the Tribunal that the review applicant has had two children born in Australia from his former partner and he told the Tribunal that his second child was born in November 2012, two months before the review applicant’s marriage to the visa applicant. Although the review applicant claims that his problems with his former partner started well before the birth of his child in November 2012, his evidence to the Tribunal is that his relationship with the Australian partner started around 2008 and ended in 2013. (The review applicant married the visa applicant in January 2013.) There is also evidence that he and his former partner travelled to Africa at the same time on at least one occasion. The review applicant’s representative submits that it is common for people to have past relationships and there is no evidence that the review applicant’s relationship with the Australian partner is ongoing at the time of this decision. However, what exacerbates the Tribunal’s concerns is the very short period of time between the birth of the review applicant’s second child and his marriage to the visa applicant, as well as the fact of his travel with his former partner. While the review applicant claims it was a coincidence, the Tribunal finds that to be highly unlikely. Such matters contradict, in the Tribunal’s view, the applicant’s evidence that his relationship with the Australian partner ended in 2013 and the Tribunal does not accept that evidence.
The Tribunal is also mindful that despite claiming to be in a long term relationship, the parties had not spent a lengthy period of time together. The review applicant told the Tribunal that since he married his wife in January 2013, he visited her on four occasions, 2015-6, 2016, 2017 and in 2018. He spent about three months the first time, two months on the second occasion, about two months on the third and the last occasions. The parties spent about nine months together in the past seven years and the Tribunal notes that there is little evidence that the visa applicant and the sponsor actually lived together on these occasions. The review applicant said that on each occasion his wife organised his visa and he also submitted some photographs. The Tribunal does not consider that such evidence shows that the review applicant and the visa applicant have established a joint household during these visits. There is little evidence that they shared household responsibilities or that they shared the responsibilities for the upbringing of the children. The review applicant refers to having a joint bank account with the visa applicant and there is evidence relating to property ownership. The Tribunal acknowledges that evidence.
The review applicant’s evidence to the Tribunal is that he made two other trips overseas to visit a childhood friend. He had not travelled to Sierra Leone to be with his wife on these occasions.
The Tribunal considers many aspects of the review applicant’s relationship with the visa applicant problematic and the Tribunal is not satisfied that the review applicant and the visa applicant have been in a genuine and committed exclusive relationship on a long term basis, despite the large volume of presented documentary evidence. However, even if the Tribunal were to accept that the visa applicant and the review applicant are, and have been, in a genuine and long-standing relationship, the Tribunal has formed the view that in the particular circumstances of this case, such a relationship does not amount to a compelling or a compassionate circumstance affecting the sponsor. This is because the Tribunal is not satisfied that the parties had spent much time together (while acknowledging that they live in different countries, which would have affected their capacity to do so), that they have established a joint household or that their relationship was, at least in the beginning, an exclusive one. The Tribunal has also formed\ the view that the review applicant has not been truthful about the circumstances of his relationship with an Australian partner, including the circumstances of their joint travel overseas.
In Sidhu v MIBP [2014] FCCA 167 the Federal Circuit Court found it was open to the Tribunal to conclude that the fact that the couple had been married (for less than a year) was not of itself a sufficiently compelling reason to justify waiving the Schedule 3 requirements. Similarly, in Chan v MIBP [2017] FCCA 2893, the Federal Circuit Court held that the existence of a long-term relationship does not of itself mean that the Tribunal must find that there are compelling reasons for not applying the Schedule 3 criteria. In the Tribunal’s view, the same reasoning applies in relation to the application of PIC 4020.
In the present case, having regard to all the circumstances of this relationship, and noting the concerns set out above, the Tribunal does not consider that the existence of a long term relationship between the visa applicant and the sponsor constitutes a compelling or a compassionate circumstance affecting an Australian citizen or a permanent resident or an eligible New Zealand citizen justifying the grant of the visa.
The review applicant refers to having a “financial breakdown” if the visa is not approved. He told the Tribunal that he is currently paying for the land where his wife lives and for his own expenses in Australia, he sends money to his wife and pays for the flights when he travels to Africa. The review applicant explained to the Tribunal that he is presently spending money on his wife but if she comes to Australia, that burden will be decreased. The Tribunal notes that the review applicant is presently employed and he provided evidence of his income. The Tribunal accepts that if the visa applicants travel to Australia, the review applicant’s financial burden would be decreased but the review applicant has not satisfied the Tribunal that his financial obligations are causing him financial hardship or stress. The Tribunal does not consider that in such circumstances, the removal of the financial obligations through the grant of the visas to the visa applicants would constitute a compassionate or a compelling circumstance.

The review applicant refers to his emotional and psychological stress. The review applicant states that in the African culture, there is pressure from family members about children and settling down after marriage and these matters are causing him and his wife psychological stress. The review applicant claims that he is really depressed because of the immigration issues. The visa applicant also referred to being stressed due to her separation from the sponsor. The Tribunal does not accept these claims. The Tribunal notes that there is no medical evidence or other probative evidence to support the applicants’ claims and the Tribunal is not prepared to accept these assertions without probative evidence. There is no evidence that either the sponsor or the visa applicant had sought professional help or that they have been prescribed medication or are receiving treatment. The review applicant’s representative submits that it is a cultural issue as African men would not seek professional advice but in the Tribunal’s view, if the review applicant was ‘really depressed’ as he claims, he could access professional health services, particularly as he himself works in the health sector and is familiar with it. The Tribunal does not accept the review applicant’s evidence concerning his mental health and does not accept that he is ‘really depressed’.
The review applicant told the Tribunal that he does not think it necessary to see a doctor or a health practitioner as he and his wife do not think it necessary as they are coping quite well. The Tribunal is also mindful that on his own evidence, the review applicant is able to maintain full time employment in a stressful area of disability services. He is also undertaking part-time university study. In the Tribunal’s view, the review applicant’s ability to effectively engage in these activities supports his evidence that he is coping well. Coupled with the absence of any probative evidence about depression or stress, the absence of any treatment plans and the review applicant’s unwillingness to consult a health professional, the Tribunal does not accept that the review applicant suffers from stress, depression or any other ailment to the extent that such condition constitutes a compelling or a compassionate circumstance affecting the interests of others. In the absence of probative evidence, the Tribunal does not accept that the visa applicant suffers from stress or depression. The Tribunal does not consider that these matters constitute compelling or compassionate circumstances justifying the grant of the visa.
The review applicant told the Tribunal that he works and is studying and these factors impact on him as he does not have anyone to assist him. The review applicant told the Tribunal that sometimes the stress is too much for him. He may be tired and there is nobody to help him and that also affects him. If his wife is here, it would help him because he could have someone to talk to. The review applicant states that both he and his wife are emotionally affected. If his wife is given the opportunity to come, it will assist him in many ways. He is an Australian citizen and has a right to enjoy his marriage. The review applicant’s claimed stress and depression have been addressed above and the Tribunal does not accept that the review applicant suffers from stress or depression to the extent that it constitutes a compelling reason or a compassionate reason justifying the grant of the visa.
The Tribunal also notes that the review applicant presented evidence of his communication with the visa applicant. The Tribunal does not consider that the emotional support can only be provided if the parties live under the same roof. It is not uncommon for parties to be separated and to provide emotional support to one another. The review applicant told the Tribunal that telephone contact is different to having a personal contact and while that may be the case, the Tribunal does not consider that effective emotional support cannot be provided through electronic contact. The Tribunal has formed the view that the parties are able to provide each other with emotional support, whether or not the visa is granted and whether or not the visa applicants reside in Australia. The Tribunal does not consider such circumstances to constitute compelling or compassionate circumstances.
The review applicant refers to the age factor, especially in relation to his wife and he states that she is looking forward to having children. The review applicant told the Tribunal that he travelled to Africa for short periods only and his wife could not conceive but if his wife is in Australia, they would have a better chance. The visa applicant also told the Tribunal that given her age, she is keen to have children soon as she may come to a point where she may not be able to conceive and that is also causing them stress. The Tribunal acknowledges the parties’ claim that they wish to have children soon. However, the Tribunal also notes that both the visa applicant and the review applicant are of child-bearing age and there is no medical evidence to indicate they would be prevented from having children in the future. They are able to spend time with each other, either by the review applicant travelling to Africa or the visa applicant seeking an Australian visa. (The Tribunal notes that the PIC 4020 exclusion period may end shortly, in April 2020 thus enabling the visa applicant to seek another visa.) The visa applicant may be able to re-apply for a Partner visa in the future. In the circumstances, the Tribunal is not satisfied that unless the waiver is applied, the parties will be precluded from having children together. In the circumstances, the Tribunal does not consider that the parties’ desire to have children constitutes a compassionate or a compelling circumstance.
The review applicant told the Tribunal that this is his third appearance before the Tribunal and he had a lawyer on each occasion, which is costing him money. The Tribunal accepts that the review applicant would be paying for legal representation and that if his wife is granted the visa, the review applicant is less likely to be spending money on migration representation. The Tribunal is mindful that it is the review applicant’s decision whether to pursue review and whether to obtain legal representation when doing so. As noted above, the review applicant has not satisfied the Tribunal that his expenses – including legal expenses – have caused him financial hardship. The Tribunal does not consider that the review applicant’s decision to obtain professional immigration advice, which may be costly, constitutes a compelling or a compassionate circumstance.
The visa applicant told the Tribunal that she is facing emotional stress and pressure from the family. She is looking after young children. The visa applicant said she is stressed to see friends around her with partners and children and that is affecting her emotionally. Both the visa applicant and the review applicant referred to experiencing social pressure due to being married and not living together. The Tribunal is of the view that such matters affect the interests of the visa applicants who are not Australian citizens or permanent residents or eligible New Zealand citizens. To the extent that these matters also affect the review applicant, these claims have been assessed above.
The representative submits that if the waiver is not applied, the marriage may end and would depend on whether the review applicant would have money to fly to Sierra Leone. The ongoing separation may put stress on the family and dampen their relationship. It is of some concern to the Tribunal if the review applicant is claiming that the relationship can only exist if the parties live in Australia. For the reasons stated above, the Tribunal does not consider the existence of a genuine relationship, and any separation that may result from the visa refusal, constitute a compelling or a compassionate circumstance justifying the grant of the visa.
The representative submits that the relationship has been found to be genuine and the Australian laws and culture promote family unity. The representative suggests that the separation may not be in the interests of Australia. Effectively, the representative submits that the existence of a genuine relationship should in itself be considered to be a compelling or a compassionate circumstance affecting the interests of the sponsor or a compelling circumstance affecting the interests of Australia. Tor the reasons stated above, the Tribunal does not accept this is so.
The representative also submits that if the visa applicant enters Australia, she will enter the workforce, pay taxes and contribute to the society, and that may be of benefit to Australia. In the Tribunal’s view, such claims are entirely speculative. It is not possible to determine with any certainty that the visa applicant will obtain gainful employment and contribute to the Australian economy or society if the visa is granted. Conversely, the Tribunal does not consider that the denial of the visa would adversely affect the interests of Australia because of the loss of such opportunities.
The representative submits that the visa applicant did not know the court document was not genuine and the circumstances in which it was obtained also give rise to the compelling or compassionate circumstances. The representative notes that the parties did not insist on using the bogus document and have promptly obtained a genuine document. However, as noted above, it is not necessary to establish the visa applicant’s intention as giving rise to the application of PIC 4020. The Tribunal accepts that it is possible the visa applicant was unaware that the initial court document was a bogus document and the Tribunal also acknowledges that she obtained a further document as soon as that was made known to her. However, the Tribunal does not consider that the parties’ conduct, or their ability to obtain the genuine documents, constitutes a compelling or a compassionate circumstance.
The Tribunal has considered the totality of the visa applicants’ and the review applicant’s circumstances. The Tribunal accepts that certain hardship would be caused to the parties if the waiver is not applied. However, the Tribunal has formed the view that such hardship would not be at the level of constituting compassionate or compelling circumstance justifying the grant of the visas. Considering their circumstances singularly and cumulatively the Tribunal is not satisfied there are compelling circumstances that affect the interests of Australia, or that there are compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen, that justify the granting of the visa. The Tribunal finds that the requirements of PIC 4020(1) should not be waived.
Conclusion
On the basis of the above, the visa applicant does not satisfy PIC 4020 for the purposes of cl.309.225. The secondary applicants do not meet cl. 309.321.
DECISION
The Tribunal affirms the decision not to grant the visa applicants Partner (Provisional) (Class UF) visas.
Kira Raif
Senior Member