Kandel (Migration)
[2018] AATA 3230
•19 July 2018
Kandel (Migration) [2018] AATA 3230 (19 July 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS: Mr Salig Ram Kandel
Mrs Tom Kumari Kandel
Master Kehar Singh Kandel
Master Harka Bahadur Kandel
Master Sher Bahadur KandelCASE NUMBER: 1515435
DIBP REFERENCE(S): BCC2014/3274672
MEMBER:Alison Mercer
DATE:19 July 2018
DECISION:The Tribunal remits the application for a Regional Employer Nomination (Permanent) visa for reconsideration, with the direction that the first named applicant meets the following criteria for subclass 187 - Regional Sponsored Migration Scheme visas:
·Public Interest Criterion 4020 for the purposes of cl.187.213(1) of Schedule 2 to the Regulations.
The Tribunal has no jurisdiction in relation to the second, third, fourth and fifth applicants.
Statement made on 19 July 2018 at 4:07pm
CATCHWORDS
Migration –Regional Employer Nomination (Permanent) visa – Subclass 187 (Regional Sponsored Migration scheme) – Misleading information – Supply of bogus documentation – Relationship/Family registration certificate – Inconsistent file numbering and family members listed – Incorrect birthdate for son recorded by authorities – Accurate records not kept in village – Credible witness – Updated the Department / Tribunal of family’s change in circumstances – Visa applicant and second named applicant’s consistent evidence about the son’s birth – First named applicant – Decision remitted for reconsideration – Secondary applicants – No jurisdiction – Outside of the migration zone
LEGISLATION
Migration Act 1958 (Cth), ss 5, 65, 338, 347, 359A, 375A
Migration Regulations 1994 (Cth), Schedule 2 cls 187.213, 187.313 Schedule 4 Criterion 4001, 4020CASES
Arora v MIBP [2016] FCAFC 35
Batra v MIAC [2013] FCA 274
Trivedi v MIBP [2014] FCAFC 42STATEMENT 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 23 October 2015 to refuse to grant the applicants Regional Employer Nomination (Permanent) visas in the Direct Entry stream under s.65 of the Migration Act 1958 (the Act).
The applicants applied for the visas on 1 December 2014. The delegate refused to grant the visas on the basis that the first named applicant (the applicant) did not satisfy the requirements of cl.187.213 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because he did not satisfy Public Interest Criterion 4020 (PIC 4020).
The Tribunal received an application for review of this decision from the applicants on 12 November 2015. It was accompanied by a copy of the delegate’s decision and an authority by which the applicants appointed a registered migration agent, Mr Ejaz Khan, as their representative and authorised recipient for correspondence for the purposes of the review.
The matter was constituted to a Tribunal Member on 11 January 2017. On 27 January 2017, the Tribunal wrote to the applicants via their agent to invite them to attend a hearing on 22 February 2017. The Tribunal advised in the letter that it appeared that the Tribunal had no jurisdiction in relation to the second, third, fourth and fifth named applicants, as they were not in the migration zone (Australia) at the time of the visa application, or at the time that the review application was made to the Tribunal. The applicants were requested to provide comments on this issue, plus any submissions and/or documents addressing whether the applicant met PIC 4020(1) and/or why the waiver in PIC 4020(4) should be exercised in their case, by 15 February 2017.
The Tribunal received a response from the applicants via their agents on 20 February 2017, which included various supporting documents.
The applicant appeared before the Tribunal on 22 February 2017 to give evidence and present arguments. The Tribunal also received oral evidence from the second named applicant by telephone from Nepal. The Tribunal hearing was conducted with the assistance of an interpreter in the Nepali and English languages.
Following the hearing, the applicants’ agent provided an additional response to the Tribunal on 8 March 2017.
On 13 April 2018, the Tribunal invited the applicants to a second hearing on 9 May 2018.
The applicant attended the hearing on 9 May 2018 and gave evidence to the Tribunal. His agent was to participate by telephone but was unavailable on the day. His paralegal assistant participated by telephone in his absence, with the applicant’s consent. The Tribunal was assisted by the services of an interpreter in the English and Nepali languages.
Following the hearing, on 10 May 2018, the Tribunal wrote to the applicant via his agent pursuant to s.359A, to invite him to comment on the information discussed at the hearing. It also provided a copy of the Department’s s.375A certificate and invited the applicant to make submissions as to the validity of the certificate.
On 24 May 2018, the applicant’s agent requested an extension of time to respond. The Tribunal agreed to this.
On 21 June 2018, the applicant’s agent provided a response.
On 10 July 2018, the agent provided a further response.
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.187.213 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: cl.4020(1); and
·the applicant and each member of the family unit has not been refused a visa because of a failure to satisfy cl.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: cl.4020(2) and (2AA); and
·the applicant satisfies the Minister as to his or her identity: cl.4020(2A); and
·neither the applicant nor any family unit member has been refused a visa because of a failure to satisfy cl.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: cl.4020(2B) and (2BA).
The requirements in cl.4020(1) and (2) can be waived if there are certain compelling or compassionate reasons justifying the granting of the visa: cl.4020(4). However, this waiver does not apply to the identity requirements in cl.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 cl.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 cl.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 cl.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: cl.4020(3). It also applies whether or not the document or information was provided by the 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 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.
Departmental history
Visa application
The material on the Department’s file indicates that the applicants made their application for subclass 187 visas in the Direct Entry stream on 1 December 2014. The applicant was the primary visa applicant, and was nominated for the visa by his prospective Australian employer. The second, third, fourth and fifth named applicants were included in the visa application on the basis that they were the applicant’s spouse and children. A fourth child, Bal Kumari Kandel, was also included in the application, as was the applicant’s mother, Mrs Sarashoti Kandel. The material provided indicates that the applicants were born in Nepal and are citizens of that country, while the applicant is also a New Zealand citizen.
Included in the supporting documents provided by the applicant with the visa application was a Nepali Relationship Certification Certificate issued by the Office of the Kavre Village Development Committee, Kavrepalanchok, Nepal, on 12 September 2012 (letter 069/070, Dispatch No. 503), together with a certified English translation. This document states that it was issued to Mr Shalig Ram Kandel/Mrs Tom Kumari Kandel and lists them as father and mother, who live at the same address as their children Kehar Singh Kandel (son), Harka Bahadur Kandel (son), Sher Bahadur Kandel (son) and Bal Kumari Kandel (daughter) in Kavre in Nepal.
On 17 April 2015, an officer of the Department contacted the applicant to clarify whether his mother, Mrs Sarasoti Kandel, was a migrating family member. The applicant advised that she was a non-migrating family member and the Department therefore removed her from the application.
Natural justice letter
On 17 July 2015, the Department wrote to the applicants inviting them to comment on unfavourable information which did not support their application. The letter states that the Department had conducted checks to confirm information they provided in the visa application; specifically, that Departmental checks had confirmed that the document provided by the applicants to prove their relationship to each other (Relationship/Family Registration certificate) was not genuine. A Departmental officer had contacted the office of the Village Development Committee in Kavre Ward no. 4 on 1 June 2015 in order to verify the relationship certificate issued on 12 September 2012 (letter 069/070 and dispatch no. 503). The response received from an officer of the Village Development Committee was that there was no such reference number in their records, and that on that particular date (12 September 2012), the last dispatch number issued was 40, not 503. The author of the letter concluded that the relationship document provided by the applicants was therefore a non-genuine document as its existence had not been confirmed by the purported issuing authority.
The applicants were advised that the Department therefore considered that the applicant did not satisfy PIC 4020(1) as he had provided a bogus document or information that was false or misleading in a material particular with his visa application. The applicants were invited to comment on this information, and to provide information if they believed that there were any compelling circumstances affecting the interests of Australia, or any compassionate or compelling circumstances affecting the interests of an Australian citizen or permanent resident or eligible New Zealand citizen that justified the waiver of PIC 4020(1) and the grant of the visa to them.
Applicant’s response
On 3 September 2015, the applicants provided a response via their agent, in which they provided a new Relationship Certification Certificate issued by the Village Development Committee in Kavre Ward no. 4 on 12 September 2012 (letter no. 069/070, dispatch no. 502), with a certified English translation.
This document states that it was issued to Mrs Sarashoti Kandel and indicates that Mrs Sarashoti Kandel is the mother of the applicant and lives at the same address as him and her daughter in law (the second named applicant) in Kavre in Nepal.
It was accompanied by a further letter from the Village Development Committee, Kavre, Ward No. 4, dated 27 August 2015 (letter no. 072/073, dispatch no. 41), with a certified English translation. This letter states that the letter issued on 12 September 2012 (letter 069/070, dispatch no. 502) about the relationship of Saraswoti Kandel, Saligram Kandel and Tam Kumari Kandel, is verified and recorded in that office.
On 18 September 2015, the applicants’ agent advised the Department that Miss Bal Kumari Kandel (the applicant’s daughter) had now married and thus wished to withdraw from the visa application as she would be migrating to Canada with her husband.
On 23 October 2015, an officer of the Department rang the applicants’ agent to follow up outstanding documents yet to be provided. During the course of this telephone call, the officer noted to the agent that on the basis of the applicant’s movement records, it appeared that he could not be the natural father of the secondary applicant Sher Bahadur Kandel, stated to have been born on 30 July 2004. This was because the applicant’s movement records indicated that he travelled to Australia on 18 May 2003 and did not leave Australia until 19 December 2004.
On the same date, the applicants’ agent emailed the Department to advise that he had been instructed by the applicant that Sher Bahadur Kandel was his biological and legal son, and that the applicant had stated that Sher was born in the village of Muna in Myagdi district, to his wife with the assistance of a mid-wife and other older women of the village. As a result, there was no practice of recording the child’s date and time of birth. The authorities, such as the District Administration Department, were notified of the birth at a later stage. The agent further stated that he was instructed that a member of Sher’s family notified the District Administration Department about the birth on his behalf and the incorrect date was recorded by the authorities. This date of birth had then been used to obtain Sher’s identity card, and other documents, which all had the same (incorrect) date of birth. The agent further stated that the applicant had advised that the date of birth was not given much relevance in Nepal, and that he was willing to undergo DNA testing for Sher or any of his other children. On the basis of this, it was submitted that the relationship between the applicant, his wife and their children was genuine and thus PIC 4020 should not apply to him.
Department decision
On 23 October 2015, the Department made a decision to refuse to grant the applicants subclass 187 visas. The basis of the decision, as set out by the delegate, was as follows (in summary):
·the applicant provided with his visa application a document in Nepali (with English translation) being Relationship Certification Certificate (letter no. 069/070, dispatch no. 503) dated 12 September 2012, which listed the applicant, his wife and their 4 children;
·advice received by the Department on 3 June 2015 indicated that in a telephone discussion with an investigating officer from the Australian High Commission in New Delhi with Mr Maheshwar Ghimire, the current secretary of the Village Development Committee of Kavre village, Ward no. 4, the latter stated that he had been advised by the administration clerk Mr Uddap Prasad Rai that there was no reference number for a Relationship Certification Certificate (letter no. 069/070, dispatch no. 503) dated 12 September 2012 in their records, and that as of 12 September 2012, the last dispatch number was 40, not 503;
·accordingly, the Department found that the Relationship Certification Certificate (letter no. 069/070, dispatch no. 503, dated 12 September 2012) provided by the applicant to the Department was non-genuine;
·in response to the Department’s natural justice letter of 17 July 2015, the applicant provided a different Relationship Certification Certificate (letter no. 069/070, dispatch no. 502, dated 12 September 2012), with an English translation, which listed the applicant, his wife and his mother. It did not include the names of any children. Also provided was a letter dated 27 August 2015 (with English translation), stated to be from the Chairperson of the Village Development Committee, Kailali District Court in Nepal, verifying the Certificate Letter no. 069/070, Dispatch no. 502;
·there was a discrepancy between the spelling of the applicant’s mother’s name in the second Relationship Certification Certificate (where it is spelt Sarashoti Kandel) and the applicant’s birth certificate (where it is spelt Sarasoti Kandel);
·no evidence was provided to dispute the outcome of the integrity checking which found that the Relationship Certification Certificate (letter no. 069/070, dispatch no. 503, dated 12 September 2012) provided by the applicant to the Department was non-genuine;
·the applicant was a New Zealand citizen who had been living and working in Australia for significant periods since 2003 as the holder of a subclass 444 Special visa. The Department’s records indicated that the applicant first arrived in Australia on 18 May 2003 and did not leave again until 19 December 2004. The birth certificates provided for the applicant’s children Harka and Kehar were issued on 28 April 2015 and indicated that Harka was born on 17 March 1996 and Kehar on 30 October 1994. No birth certificate was provided for Sher Bahadur Kandel, stated to have been born on 30 July 2004, which indicated that he was not the applicant’s biological son;
·the applicant’s agent had addressed the discrepancy between the applicant’s travel dates and the stated birth date of Sher Kandel in an email dated 23 October 2015 in which it was attributed to incorrect record keeping in relation to Sher’s birth date. It was claimed that this had been incorrectly recorded but nevertheless, Sher was the biological son of the applicant;
·the visa application also stated that the applicant was married to his wife on 26 January 2010 in Nepal while the Department’s movement records indicated that the applicant departed Australia late on the evening of 26 January 2010;
·a further check of the Department’s records indicated that the applicant previously sponsored his claimed spouse and 5 dependents for subclass 461 (New Zealand Citizen Family Relationship) visas in 2010, but that those applications were refused as the relationship documents submitted by the applicant were found to be non-genuine;
·the weight of evidence indicated that the Relationship Certification Certificate (letter no. 069/070, dispatch no. 503, dated 12 September 2012) provided by the applicant to the Department was non-genuine, and that the applicant therefore did not meet PIC 4020(1);
·the applicant therefore did not satisfy cl.187.213 or cl.187.313; and
·the other applicants could not meet the secondary visa criteria to be members of the family unit of a person who met the primary visa criteria and there was no evidence that they met the primary visa criteria in their own right.
Tribunal history
The Tribunal received a review application on 12 November 2015.
On 27 January 2017, the Tribunal invited the applicants to attend a hearing on 22 February 2017. In response, the applicants’ agent advised that the applicant would attend the hearing in person on 22 February 2017, while the agent would participate by telephone. It was also indicated that the applicant wished the Tribunal to take evidence by telephone from the second named applicant (the applicant’s wife) in Nepal.
On 20 February 2017, the Tribunal received the following documents from the applicants’ agent:
·letter issued by Office of the Village Development Committee of Kavre, Kavrepalanchok, signed by ‘Bimal Sharma, VDC Secretary’, dated 15 February 2017 (letter no. 073/074, dispatch no. 766) headed ‘To Whom It May Concern’ and stating that ‘according to the letter no. 069/070, ref. no. 503 dated 12 September 2012, this VDC having a record about the applicant having following relation as a son and daughter in accordance with Section 259 of Local Self Governance Act 2055 BS (1998 AD) according to the submitted application by Mr Shalig Ram Kandel, Mrs Tom Kumari Kandel, a resident of Kavre VDC Ward No. 4 on 12 September 2012: 1. Kehar Singh Kandel (son), 2. Harka Bahadur Kandel (son), 3. Bal Kumari Kandel (daughter) and 4. Sher Bahadur Kandel (son)’ (with certified English translation);
·letter issued by Office of the Village Development Committee of Kavre, Kavrepalanchok, signed by Bimal Sharma, VDC Secretary, dated 15 February 2017 (letter no. 073/074, dispatch no. 767) headed ‘To Whom It May Concern’ and stating that ‘according to the letter no. 069/070, ref. no. 501 dated 12 September 2012, this VDC having a record Mr Sheeram Kandel/Mrs Sarashoti Kandel including following family is domicile at this Kavre VDC Ward No. 4 from the date of 5 July 2005 after migrated from Myagdi District Muna VDC Ward No. 3: 1. Shalig Ram Kandel (son), 2. Tom Kumari Kandel (daughter in law), 3. Kehar Singh Kandel (grandson), 4. Harka Bahadur Kandel (grandson), 5. Bal Kumari Kandel (granddaughter) and 6. Sher Bahadur Kandel (grandson) (with certified English translation); and
·letter from the applicants’ agent dated 9 January 2017 to The Manager, Office of the Kavre Village Development Committee, Ward No. 04, Kavrepalanchok, Bagmati, Nepal, stating that he acts for the applicant in his Australian immigration application, and wishes to obtain written confirmation on letterhead that the enclosed relationship certificates are true and correct as per the Office’s records (the attached documents, with English translations, are the 2 Relationship Certification Certificates issued on 12 September 2012, Letter No. 069/070 and dispatches 503 and 501.
First Tribunal hearing
At the hearing on 22 February 2017, the applicant told the Tribunal that he first came to Australia from New Zealand in 2003 as the holder of a subclass 444 visa, in order to look around at what opportunities there might be for him here.
In 2010 or 2011, he decided to apply for his wife and their children and his mother to come to Australia as his dependents. He said that it was difficult to remember all the details of this application as it was some time ago now. He had a different migration agent at the time, a Mr Thapa. He remembered that Mr Thapa told him that his family members would not be able to join him directly from Nepal, and that he would have to sponsor them to New Zealand first. In response to the Tribunal’s query, the applicant said that he thought that an application was made in 2010 for the subclass 461 visas for his dependents and that it was rejected, but it was hard to remember exactly what had happened. In response to the Tribunal observing that the delegate found that such an application had been made in 2010 and rejected because documents certifying his family relationships were found to be non-genuine, the applicant said that whatever the Department said about the documents, his family members are as stated, and this is genuine. He was happy for the Department to run any checks it wanted on this issue. The Tribunal noted that it had requested a copy of the subclass 461 file from the Department and would forward any adverse material on it (assuming a copy was provided by the Department to the Tribunal) pursuant to s.359A.
The applicant reiterated that everyone who is listed as a member of his family unit is a member of his family unit and he was happy to do DNA testing with respect to any of his children. The Tribunal discussed with the applicant the birth details of his youngest son, Sher, given the discrepancy identified by the delegate in respect of his claimed date of birth (30 July 2004) falling during a lengthy period during which the applicant was in Australia (May 2003 to December 2004), which suggested that either his son’s birth date was incorrect or he was not the biological father of Sher. The applicant emphatically denied the latter possibility. When asked when Sher was born, if it was not on 30 July 2004, the applicant said that it was after he had come to Australia from New Zealand. He then returned to Nepal to see him family in December 2004 for 3 months, and his son was conceived during this trip, although he did not know this until he had returned to Australia. His wife rang him to tell him she was pregnant. She gave birth around the middle of that year. The applicant said that a lot of confusion had arisen because of the difference between the Nepali and Western calendars. In addition, neither the applicant’s wife nor mother was educated and they had to rely on others to obtain documents for them. The fact that Sher’s passport has the birthdate of 30 July 2004 is incorrect but not deliberately so. The applicant said another factor explaining the difficulty in getting accurate documents about birth dates and family relationships was the fact that problems with the Maoist groups in Nepal meant that a lot of people had had to move from district to district and/or from a district to a larger city. Therefore it was difficult to get accurate documentation. The applicant said that it was also common practice for local officials to demand payment before issuing documents.
The Tribunal put to the applicant that information collated by the Department of Foreign Affairs and Trade (DFAT) (in its April 2016 Country Information Report) indicated that document fraud was rife in Nepal, and many identity documents, including passports, birth certificates and family relationship certificates could be bought that were either fabricated or issued by corrupt authorities with deliberately incorrect information. The applicant conceded that bribes were sometimes required to obtain documents and speculated that officials might then deny the authenticity of a document issued by them if a bribe were not paid by the recipient. He said that this might explain why the officers of the Australian High Commission in New Delhi were unable to confirm with the Village Development Committee that the family relationship certificate no. 503 was genuinely issued by them. The applicant said that being able to obtain such documents from outside Nepal was a problem for all expatriate Nepalese.
The Tribunal asked the applicant how he obtained the family relationship certificates numbered 503 and 502. He said that his oldest son, Kehar Singh, requested the documents from the VDC in Nepal and when he received them, he sent them straight to the applicant’s migration agent in Australia. The applicant said that he had no idea why the second certificate (no. 502) simply listed him, his wife and his mother, but not his children. He could not explain why this would have been issued when the original certificate (no. 503) listed himself, his wife and all the children. He speculated that perhaps there were new people in the VDC at the time the second request was made by his son, or insufficient money was paid. The applicant said that the positions of VDC secretaries have now been centralised at District level, so there are no longer individual secretaries assigned to a particular VDC but rather, a pool of Secretaries. Therefore, documents could be issued by a secretary who was not from an applicant’s actual VDC as the information would be drawn from central records.
When asked how the documents most recently submitted by the applicant and his agent, issued by the VDC in January/February 2017, were obtained, the applicant’s agent said that the letter from him seeking clarification of attached documents issued by the VDC (being nos. 501 and 503) was sent to the applicant’s son Kehar Singh, who then took it to the VDC. The Tribunal queried the certificate no. 501, sent by the agent to the VDC for verification, as it noted that this document did not appear to have been submitted to the Department or Tribunal before. The Tribunal noted that this raised the question of whether another document may have been manufactured to try to resolve the problems identified by the Department in its decision. The agent denied this was the case and undertook to check the documents provided to him by the applicant, as he said that he recalled that this document was provided to him by the applicant to give to the Department, as the stamp on it indicated it had been translated from Nepali into English in September 2012. He indicated to the Tribunal that he would check his records and clarify the origin of this document. The applicant said that he could not say anything further about this document as he gave his agent all the documents he believed were relevant to his case.
The Tribunal then indicated that, after an adjournment, it wished to discuss the waiver provision in PIC 4020(4) with the applicant and his agent. After a break, the applicant told the Tribunal that if a 3 year bar is imposed on him being granted a further visa, he would be nearly 50 by the time he could reapply, and it would be pointless. The applicant said that he had a good business in Australia and that Australia was a good country. He had been doing well and just wanted his family to join him here so that they could see what he was doing in Australia. His older son could help him in his business and his wife could look after the home. His mother could see how he lives here. In response to the Tribunal’s query, the applicant said that he and his business partner, Mr Roshan Thapa, run an agricultural business together. They grow apples, peaches and plums in Kialla near Shepparton and also provide labour hire services for other growers, to provide them with fruit pickers and so on, on a seasonal basis. The company nominating the applicant for a subclass 187 visa is Kandel Pty Ltd, of which Mr Thapa is the director. The other company is the one that grows and sells the fruit, and the applicant is the director of this company. Mr Thapa is not an Australian citizen or permanent resident. He is a New Zealand citizen of Nepalese background, who came to Australia after the applicant. The applicant said that the companies have about 15 fulltime employees normally but this can increase to 80 to 200 during high season(s). He estimated that about 90% of the workforce was overseas backpackers and 10% locals, the latter being mainly people from a refugee background. They sometimes used Australian contractors if they needed to use heavy machinery, as the other employees did not have the expertise with using such equipment. The applicant told the Tribunal that in the last 2 years, it had become harder for the industry to find fruit pickers at competitive rates.
The applicant told the Tribunal that he was the only member of his family in New Zealand and that everyone else was in Nepal. He sent money back to support them. His oldest son Kehar had completed the equivalent of year 12 and was now working as a mechanic. His second oldest son Harka was nearly finished school and helped his brother in the garage. His youngest son Sher was still at school. His daughter had married and was living with her husband in Kathmandu. They had a son and had started their own business. They had applied to migrate to Canada but their application was not successful. The applicant stated that he had been in Australia almost continuously from 2003 to date. He knew that he could stay on in Australia indefinitely as a subclass 444 visa holder, but he had really hoped to have his family join him. His children, wife and mother were genuinely members of his family unit, whatever the conclusions of the Department about various documents that had been submitted. He hoped that they could join him and then he would not have to travel back to Nepal so frequently to check that they were alright.
The Tribunal then took evidence from the applicant’s wife, Mrs Tom Kumari Kandel, by telephone from Nepal, with the assistance of the Nepali/English interpreter. When asked what date her youngest son was born, she said that she did not recall and that the paperwork relating to him was at home. The Tribunal indicated that it wanted to know what she remembered, as opposed to what was written in the paperwork. Mrs Kandel then stated that Sher was born while her husband was outside Nepal. When asked whether he was in Australia or New Zealand at the time of Sher’s birth, she said that she could not remember which country he was in. She remembered calling him but could not remember much more than this. When asked what month or time of year this was, Mrs Kandel said that it was around the Tihar Festival in the month of Kartika. Asked what year she thought this was, she said it was 2061 in the Nepali calendar, in the fourth month of that year, on the 15th day. With the assistance of the interpreter, it was determined that this was mid-August 2005 in the Western calendar.
At the conclusion of the hearing, the Tribunal indicated that if it received from the Department the subclass 461 visa application file from 2010, and it contained adverse information, it would send a s.359A letter to the applicant and the agent. In the meantime, the Tribunal gave until 8 March 2017 to the applicant’s agent to make further submissions on the waiver provision and to provide (if possible) clarification of the origin of the family certificate no.501.
Post-hearing submissions
On 3 March 2017, the Tribunal received a further response from the applicants’ agent addressing relationship certificate 069/070 dispatch no. 501, and the waiver provision. In summary, the applicants’ agent made the following points:
·he confirmed that relationships certificates 501, 502 and 503 were provided to his office by the applicant; however, the agent submitted only certificates 502 and 503 to the Department;
·the reason for not submitting certificate 501 was that certificate 502 indicated the applicant’s relationship with his mother and wife and certificate 503 indicated the applicant’s relationship with his wife and children. Since certificate 501 was a combination of the above 2 certificates, it served no significant purpose and would not add any value to the applicant’s visa application;
·in addition, there were no photographs attached to certificate 501 (unlike certificates 502 and 503);
·on 9 January 2017, the agent wrote to the council in Nepal seeking authentication of the certificates, and the council responded on 15 February 2017 stating that the certificates are genuine;
·on this basis, it was submitted that the relationship certificates submitted to the Department were genuine and issued by the Village Development Committee Kavre and therefore, the Department’s decision that the applicant did not meet PIC 4020(1) was incorrect; and
·it was further submitted that the applicant was a New Zealand citizen and had been living and working in Australia since 2003. Should his visa be refused, it would undoubtedly affect him and his family because he had built his life in Australia and was the predominant source of income for his family.
Tribunal inquiries to the Department
Following the hearing, the Tribunal requested a copy of any file(s) and material relating to the subclass 461 visa application made by the applicant’s wife and children.
In November 2017, the Tribunal received a copy of Departmental file CLD2017406792, containing material relating to the subclass 461 visa application made by the applicant’s wife and children.
The material indicates that the subclass 461 visa application was made on 16 August 2010 to the Australian High Commission in New Delhi and included Mrs Tom Kumari Kandel, the children Bal Kumari Kandel, Harka Bahadur Kandel, Kehar Singh Kandel, and Sher Bahadur Kandel, and the applicant’s mother, Mrs Sarashoti Kandel. The applicant is listed as the sponsor for the application. Various identity documents were provided with the visa application, including Nepalese identity documents for the visa applicants and evidence of the applicant’s financial position in Australia.
The material on file further indicates that a delegate of the Minister refused the visa applications on 16 December 2010. In the decision record, the delegate finds that the applicants do not meet cl.461.212 of Schedule 2 to the Regulations, on the basis that: ‘You have claimed that you are a member of the family unit of [the applicant], who is a New Zealand citizen and a holder of an SCV TY 444. However checks have been undertaken by the visa office which indicate that you have provided non-genuine supporting documents as evidence of your claimed relationship. Hence I cannot be satisfied that you are a member of the family unit of [the applicant].’
No further details of what checks had been undertaken were provided in the above decision. The material on the file indicates that:
·a Department officer had concerns due to the fact that the marriage certificate provided to the Department with the visa application lists the date of marriage of the applicant and his wife as 29 January 2010 but the children included in the application were born in 1994, 1996, 1997 and 2004. They are listed as the children of the applicant and his wife, yet there is no evidence of the applicant and his wife cohabiting in a de facto relationship prior to 29 January 2010, nor of their adoption of these children;
·the marriage certificate, birth certificates and family relationship certificate provided with the visa application were forwarded to the Muna Village Development Committee (VDC), date unspecified, and the response received confirmed that they were all considered non-genuine; and
·information had also been received from the New Zealand High Commission indicating that the applicant had an immigration history of concern.
The information attributed to the New Zealand High Commission appears in part of a document on the Departmental file headed ‘Information Sheet’ and is as follows:
Implicated with smuggling Bangladeshi nationals from Malaysia to NZ by issuing job offers from FRUITFAIR LTD. Has history of “assisting” persons to gain entry illegally into NZ. Refer to previous alert, which only valid for 1 year, hence this alert, valid for 10 years…
The 2 folios of the Departmental file, which contain the Information Sheet, were released to the Tribunal pursuant to a s.375A certificate. Section 375A of the Act provides that a document or documents can be provided to the Tribunal but cannot be disclosed to any other person or organisation because disclosure would be contrary to the public interest. The reason given by a Department officer for certifying the folios containing the Information Sheet is that they contain details of information obtained from the New Zealand High Commission as part of a verification request, but are not for release to client as they were gathered in implied confidence. The officer states that it is not in the public interest to disclose the Department’s methods of engagement with foreign agencies.
Second Tribunal hearing
At the second hearing on 9 May 2018, the Tribunal explained to the applicant that it had received the subclass 461 visa application file for his family members from the Department, and that it contained some potentially adverse information that related to the present case. It explained that some of that information was subject to a s.375A certificate issued by the Department, which the Tribunal considered to have been validly issued. The Tribunal explained that a s.375A certificate allowed the Tribunal to have access to the certified material on the Department file, but not to release it to the applicant as it would be contrary to the public interest to do so. The Tribunal further noted that the relevant case law indicated that the Tribunal could nevertheless put the gist of the certified information to the applicant (although not the certified documents themselves) under s.359A or s.359AA if it believed that this information was adverse to the applicant’s case and that he should have an opportunity to respond to it before the Tribunal made its decision on the case.
The Tribunal provided a copy of the s.375A certificate to the applicant and indicated it would send a copy to the applicant’s agent following the hearing, to allow him to make any comments he wished to make as to its validity. The Tribunal then put the following information to the applicant pursuant to s.359AA of the Act:
·the decision record and Departmental notes on the subclass 461 visa application file indicated that the visa applications of the applicant’s wife, children and mother were refused as the delegate was not satisfied that they were genuinely members of his family unit. This was because the identity documents they provided with the visa applicant had been referred to the Muna Village Development Corporation (VDC) who had advised the Department that it did not issue them. The delegate therefore concluded that the documents were not genuine; and
·further notes on the Departmental file, which were contained in a 2 page document headed ‘Information Sheet’, indicated that the New Zealand Immigration Department had advised the Department that the applicant had been ‘implicated with smuggling Bangladesh nationals from Malaysia to NZ by issuing job offers from FRUITFAIR LTD. Has history of “assisting” persons to gain entry illegally into NZ.’ The Tribunal confirmed that the 2 pages constituting the Information Sheet were certified under s.375A by the Department and therefore could not be released to the applicant (as the Tribunal considered the certification to be valid).
The Tribunal explained that it considered that the above information was relevant to the review for the following reasons:
·if the Tribunal accepted the Department’s finding that the applicant’s family’s identity documents being non-genuine, then it might conclude that they were not actually members of his family unit and/or that the applicant and/or his family members had previously made a visa application using false documents. If the Tribunal made these findings, it might find that the applicant did not meet PIC 4020(1) and that he therefore did not meet cl.187.213 (subject to the Tribunal exercising the waiver provision in PIC 4020(4)). This would be the reason (or part of the reason) to affirm the decision under review; and/or
·if the Tribunal accepted the Department’s information that the applicant had previously been involved in immigration fraud in relation to the unauthorised entry of people into New Zealand, then it might conclude that he was willing to engage in immigration fraud in relation to the present application. If it reached this conclusion, it might also find that he did not pass the character test in s.501 and PIC 4001, on the basis of his past general conduct, and/or that his past conduct indicated a willingness to engage in fraudulent activity to achieve a migration outcome, and that this might be the case with the present visa application under review. If the Tribunal found this, it might find that he did not meet PIC 4001 and thus did not satisfy cl.187.213. This would be the reason (or part of the reason) to affirm the decision under review.
The Tribunal confirmed with the applicant that he understood the information and its relevance to the review, and advised the applicant that he could elect to respond immediately or he could ask for more time to do so. The Tribunal then adjourned the hearing for 10 minutes to allow the applicant to discuss the matter with his agent.
Upon resumption of the hearing, the applicant advised the Tribunal that he wished to respond to the information about the allegedly false identity documents submitted in relation to the Department in connection with the 2010 subclass 461 visa application. He told the Tribunal that he did not know what documents had been provided in relation to that application, but he wanted time to investigate. He stated to the Tribunal that there were many problems with the accuracy of identity documents obtained in Nepal as there was no centralised record keeping system there and individual VDC officers might not accurately record things. He indicated that he was willing to get further documents to establish that the relationship between him and his family members, and was also willing to do DNA testing, but he queried what more he could do to prove that these relationships were genuine. He stated that if this was not accepted, he might as well withdraw the application, as there was nothing more he could provide to verify what he knew to be true. The applicant told the Tribunal that the issue with the visa application under review was to bring his family here, as he could remain here indefinitely or return to New Zealand; the issue was to reunite with his family so they could experience life outside Nepal and he would not have to return there so often.
In relation to the second set of information, the applicant and his agent requested further time to respond as they wanted to make their own inquiries of the New Zealand immigration authorities as to the basis of these allegations, which the applicant denied. The Tribunal confirmed that it would formally write to the applicant via his agent following the hearing pursuant to s.359A to invite him to provide comments or a response. The letter would give him a set period in which to do so.
Tribunal’s s.359A letter and applicant’s response
On 10 May 2018, the Tribunal wrote to the applicant via his agent pursuant to s.359A, to invite him to comment on the information discussed at the hearing; namely, that the decision record and Departmental notes on the subclass 461 visa application file indicated that the visa applications of the applicant’s wife, children and mother were refused in 2010 because the delegate was not satisfied that they were genuinely members of the applicant’s family unit. This was because the identity documents they provided with the visa application in 2010 were referred to the Muna Village Development Corporation (VDC) who advised the Department that it did not issue them, and the delegate therefore concluded that the documents were not genuine. Moreover, further notes on the Departmental file, which were contained in a 2 page document headed ‘Information Sheet,’ indicated that the New Zealand Immigration Department had advised the Department that the applicant had been ‘implicated with smuggling Bangladesh nationals from Malaysia to NZ by issuing job offers from FRUITFAIR LTD. Has history of “assisting” persons to gain entry illegally into NZ.’
The Tribunal advised the applicant that it considered that the above information was relevant to the review for the following reasons:
·if the Tribunal accepted the Department’s finding that the applicant’s family’s 2010 identity documents were non-genuine, then it might conclude that they were not actually members of his family unit, and/or that the applicant and/or his family members had previously made a visa application using false documents. The Tribunal noted that if it made these findings, it might find that the applicant did not meet PIC 4020(1) and that he therefore did not meet cl.187.213 (subject to the Tribunal not exercising the waiver provision in PIC 4020(4)). The Tribunal stated that this would be the reason (or part of the reason) to affirm the decision under review;
·the Tribunal might also not accept that the applicant’s wife and children (as listed in his subclass 187 visa application) were really members of his family unit. If it found this, it would have to find that they did not meet cl.187.311, which required them to be members of the applicant’s family unit. This would be the reason (or part of the reason) to affirm the refusal decision in relation to them; and/or
·if the Tribunal accepted the Department’s information that the applicant had previously been involved in immigration fraud in relation to the unauthorised entry of people into New Zealand, then it might conclude that he was willing to engage in immigration fraud in relation to the present application. If it reached this conclusion, it might also find that the applicant did not pass the character test in s.501 and PIC 4001 and thus did not satisfy cl.187.213. This again would be the reason (or part of the reason) to affirm the decision under review.
The applicant was invited to give comments on or respond to this information by 24 May 2018. In addition, the Tribunal provided a copy of the Department’s s.375A certificate, which covered the 2 folios of the Departmental file for the applicant’s family’s 2010 visa application containing the above information. The Tribunal stated that it was of the opinion that the certificate was valid as it contained information given to the Department impliedly in confidence by the New Zealand immigration authorities concerning the applicant, and that the disclosure of those folios would disclose details of the Department’s investigatory techniques. The Tribunal stated that it accepted that it was contrary to the public interest to disclose the documents that were the subject of the certificate. The Tribunal invited the applicant to make submissions as to the validity of the certificate.
On 24 May 2018, the applicant’s agent requested an extension of time to respond, on the basis that the applicant would shortly be going to Nepal to address the issue of the allegedly non-genuine identity documents, and also because the agent had requested information from the New Zealand High Commission to clarify the allegations made on the Departmental file. The Tribunal agreed to this.
On 21 June 2018, the applicant’s agent made the following response:
·it was submitted that the s.375A certificate was invalid because it stated ‘142 and 143 contain details of information obtained from New Zealand High Commission as part of a verification request but not for release to client (gathered in implied confidence). Not in public interest to disclose our methods/engagement with foreign agencies’ and this was in direct contrast with the information provided to the agent’s office by the New Zealand High Commission, which indicated that they were not able to identify any records in relation to the applicant;
·they had been advised by the First Secretary of the NZHC to lodge a freedom of information application to determine if any other NZ government body held information in relation to the applicant, and they expected to receive a response in the next month;
·the applicant’s family in Nepal were trying to obtain identity documents (marriage, children’s birth, and any relationship certificates) because based on the information the Tribunal had before it, the Tribunal might not accept that the applicant’s wife and children were really members of his family unit. The agent stated that he had been instructed by the applicant that his family would be able to post the documents to Australia from Nepal in the following week;
·alternatively, the Tribunal was requested to offer the applicant DNA testing (as per Migration Policy: Division 1.2, Regulation 1.12 – Member of the Family Unit – DNA Testing) as a last resort for the applicant to prove that his wife and children were really members of his family unit; and
·the Tribunal was further requested to await the outcome of the New Zealand FOI application because if there happened to be no evidence held by any New Zealand agency in relation to the allegations against the applicant, this would establish that the s.375A certificate was invalid because the purported information it covered was not true and/or not substantive or credible enough to be able to draw any significant conclusions from.
On 10 July 2018, the applicant’s agent forwarded an email dated 10 July 2018 from a Privacy Officer of Immigration New Zealand to the agent, advising that despite reasonable efforts, they had been unable to locate the 2 page document containing information that ‘Salig Ram Kandel has been implicated with smuggling Bangladesh nationals from Malaysia to New Zealand by issuing job offers from FRUITFAIR LTD {NZBN 9429036941124}. The Australian Department has also alleged that Salig Ram Kandel has a history of “assisting” persons to gain entry illegally into New Zealand.’ It is further stated that Immigration New Zealand had been unable to find any information in their electronic records, and therefore information was being withheld under s.29(2)(b) of the Privacy Act on the basis that the file could not be found.
Assessment of the evidence
The delegate concluded that the applicant came within PIC 4010(1) because:
·the applicant had provided a bogus document, being document 069/070 reference no. 503 dated 12 September 2012, purportedly issued by the Village Development Committee of Kavre, Kavrepalanchok, listing the applicant’s family members as his wife Mrs Tom Kumari Kandel and his children as Kehar Singh Kandel (son), Harka Bahadur Kandel (son), Bal Kumari Kandel (daughter) and Sher Bahadur Kandel (son); and
·the applicant had provided false or misleading information in a material particular by asserting in the visa application form that Sher Bahadur Kandel was his biological son.
The Tribunal has considered these issues carefully. It is satisfied that the applicant gave the above information to the Department, and he acknowledged having done so. The question is whether they constitute a bogus document (as that term is defined in the Act) and/or false or misleading information in a material particular.
Bogus document
The delegate concluded that document 069/070 reference no. 503 dated 12 September 2012 was a bogus document principally because the Department received advice on 3 June 2015 from the Australian High Commission (AHC) in New Delhi that an officer had spoken with the current VDC secretary of Kavre village, ward no. 4, who advised that the administration clerk stated that the VDC had no record with this reference and date in its records. In particular, the advice received by the AHC was that the last dispatch number for a document issued by the VDC on 12 September 2012 was 40, not 503. The delegate therefore found that document 069/070 reference no. 503 dated 12 September 2012 was a bogus document because it was non-genuine; that is, it either purported to have been, but was not, issued in respect of the applicant and his family, or it was counterfeit or had been altered by a person who did not have authority to do so, or it was obtained because of a false or misleading statement by the applicant.
The Tribunal notes that the Department issued a certificate pursuant to s.375A of the Act in relation to 5 folios of the Department’s file, being the Department’s request dated 20 April 2015 to the AHC for verification of document 069/070 reference no. 503 dated 12 September 2012, a copy of that document and a certified English translation of it, a checklist headed ‘visa processing guide’, and a file note dated 19 June 2015 indicating that an extension of time was sought by the AHC to provide the verification information due to the earthquake in April 2015.
As previously noted, the s.375A certificate is a certificate that prevents the Tribunal from disclosing certain information on the file to the applicant on the basis that disclosure would be contrary to the public interest. In this case, Tribunal considers that the certificate is invalid. The certificate states that disclosure of the above documents would be contrary to the public interest because they refer to ‘Departmental checking procedures, assessment checklist.’ However, the Tribunal is satisfied that the information certified by the Department pursuant to s.375A relates to information which is already known to the applicant, as he provided the relevant document and its English translation, and the delegate refers in her decision to the fact that it was referred to the AHC in New Delhi for verification. The checklist referred to is a summary of the visa criteria for the subclass 187 visa, which enables the decision maker to tick whether each criterion is met by the applicant and/or secondary applicants. There is no confidential information in the identified folios (such as a dob-in allegation), nor do the identified folios reveal any investigative methods used by the Department that are not already public knowledge (or that are not specifically already known to the applicant). As a result, the Tribunal considers that the certificate is not valid, and that there would be little utility in asking the Department to revoke it. The Tribunal therefore did not consider it necessary to disclose the s.375A certificate to the applicant. It considers that the relevant information covered by the certificate has been put to the applicant by the delegate, and subsequently by the Tribunal pursuant to s.359AA of the Act.
In countering the allegation that document 069/070 reference no. 503 dated 12 September 2012 is a bogus document, the applicant has provided:
·a second relationship certificate issued by the Kavre Ward no. 4 VDC on 12 September 2012 (stating that the applicant’s family members are his mother and the second named applicant, his wife) being letter no. 069/070, dispatch no. 502;
·document issued by the Kavre Ward no. 4 VDC on 27 August 2015 verifying the genuineness of letter no. 069/070, dispatch no. 502 (being letter no. 072/073, dispatch no. 41);
·relationship certification certificate issued by Kavre Ward No. 4 VDC dated 15 February 2017 confirming details provided in letter 069/070 reference no. 503 dated 12 September 2012 regarding the details of the applicant’s wife and children were correct, and reiterating them (being letter no. 073/074, dispatch no. 766); and
·letter issued by Kavre Ward No. 4 VDC dated 15 February 2017 confirming that letter no. 069/070 ref. no. 501 dated 12 September 2012 listing the applicant’s parents, himself, his wife and the 4 children was genuine, being letter no. 073/074, dispatch no.767).
In addition, the applicant gave detailed oral evidence at hearing, in which he essentially maintained that, whatever bureaucratic discrepancies might exist, his family members (his wife and 4 children) were as listed in his visa application and in the certificates he had provided. He denied providing false information to the VDC to obtain any of the family relationship certificates and indicated that, to the best of his knowledge, they were issued through the proper channels and were not improperly obtained, were not counterfeit and had not been altered without authority. He was unable to explain why the verification process undertaken by the Department’s overseas officers in June 2015 had produced a response from the VDC indicating that it had not issued document no.503, but he nevertheless maintained that this document and its contents were genuine.
The Tribunal has considered the available evidence carefully. It is clearly of concern that the verification process undertaken by the AHC in Delhi in June 2015 produced a response from the VDC of Kavre No. 4 Ward indicating that that VDC had no record of issuing document no. 503 of 12 September 2012 (listing the applicant’s wife as Tom Kumari Kandel and his children as Kehar Singh Kandel (son), Harka Bahadur Kandel (son), Bal Kumari Kandel (daughter) and Sher Bahadur Kandel (son), and that the latest dispatch number for a document issued that day was 40 (not 503).
However, as against that, the applicant has consistently maintained that his family consists of his wife Tom Kumari Kandel and his children Kehar Singh Kandel (son), Harka Bahadur Kandel (son), Bal Kumari Kandel (daughter) and Sher Bahadur Kandel (son). He has updated the Department and Tribunal with changes to his family circumstances, notably when his daughter Bal Kumari Kandel married and left the family home to live with her husband. He has expressed concerns about the difficulties of obtaining accurate documentary evidence and records from VDCs in Nepal due to a number of factors, including migration of village populations to different areas to avoid conflict between government forces and guerrilla groups, corruption within the Nepalese bureaucracy, the disruption to official record keeping caused by the April 2015 major earthquake, and the amalgamation of VDC processes and structures over time. The Tribunal notes that some of these factors are referred to in the DFAT Country Information Report on Nepal published on 21 April 2016 (endemic corruption is referred to at paragraph 2.14, while the lack of identity documents of many citizens and the black market that exists for fraudulent identity documents, is referred to at paragraphs 5.26 and 5.30).
On balance, and having found the applicant credible at hearing, the Tribunal in this case prefers the oral evidence of the applicant, together with the additional documentation provided from the relevant VDC after the delegate’s decision in 2015 and 2017, to the evidence obtained by the AHC in June 2015 from the then-Secretary of the VDC. The Tribunal is satisfied that the applicant’s wife is Tom Kumari Kandel and his children are Kehar Singh Kandel (son), Harka Bahadur Kandel (son), Bal Kumari Kandel (daughter) and Sher Bahadur Kandel (son).
Accordingly, the Tribunal finds that the contents of document 069/070 reference no. 503 dated 12 September 2012 are correct, and it is on balance satisfied that the document that is not counterfeit, has not been altered by an unauthorised person and was issued to the applicant in respect of his family unit members. It is also satisfied on balance that it ws not obtained because of a false or misleading statement.
The Tribunal notes that although it requested a copy of the Departmental file relating to the 2010 subclass 461 visa applications on 22 February 2017 (at the same time that it requested the verification report in relation to document 069/070 reference no. 503 dated 12 September 2012), this was not provided by the Department until November 2017. The Department’s records indicate that the applications were refused on 11 December 2010 because the applicants were not accepted as the applicant’s family unit members, as a marriage certificate, birth certificates and relationship certificates provided to the Department were considered to be ‘non-genuine,’ as they were not verified by the relevant VDC (a different one to the one that issued the documents in connection with the subclass 187 visa application). While, again, this is of concern, the Tribunal ultimately prefers the applicant’s credible and consistent evidence, for the reasons set out above, to the Department’s findings, taking into account the general evidentiary difficulties with Nepalese identity documents identified in the Department of Foreign Affairs and Trade’s country information (and by the applicant).
The Tribunal notes that the discrepancy between the spelling of the applicant’s mother’s name in the second relationship certificate (‘Sarashoti’) and the applicant’s birth certificate (‘Sarasoti’) but does not consider this to be indicative of false information having been supplied. Rather, it appears to simply be a spelling error or variation of little significance overall, and the Tribunal so finds.
Having considered the issue, the Tribunal finds that document 069/070 reference no. 503 dated 12 September 2012 is not a bogus document, as that term is defined for the purposes of migration law.
False or misleading information in a material particular
The delegate concluded that the assertion that Sher Bahadur Kandel was the applicant’s biological son was false or misleading as Sher’s claimed date of birth (30 July 2004) in Nepal indicated that he could not be the applicant’s biological son given that the Department’s records showed that the applicant was in Australia between 18 May 2003 and 19 December 2004.
The applicant did not dispute the correctness of the movement records that placed him outside Nepal between 18 May 2003 and 19 December 2004, and the Tribunal accepts these to be accurate. If they are accurate, then it would be impossible for Sher Bahadur Kandel to be the applicant’s biological son if his birth date is in fact 30 July 2004, as the applicant was not in Nepal at the time of his conception.
Accordingly, the Tribunal must assess whether the listing of Sher Bahadur Kandel, born 30 July 2004, in the applicant’s subclass 187 visa application, constitutes false or misleading information in a material particular.
The applicant emphatically claimed that Sher Bahadur Kandel was his biological son but that his birth date must have been incorrectly recorded as 30 July 2004. At the hearing, the applicant gave evidence that his youngest son (Sher) was conceived after he had relocated from New Zealand to Australia in 2003, and specifically, this occurred when he returned to see his family in Nepal in December 2004 for 3 months. He said that his wife told him that she was pregnant after he had returned to Australia, and that she gave birth around the middle of that year (that is, around mid-2005, not 2004). The applicant’s wife Mrs Tom Kumari Kandel also gave evidence at the hearing that was consistent with the applicant’s evidence. Her evidence was given without her having heard her husband’s evidence, and essentially indicated that she found out that she was pregnant with Sher after her husband visited her in Nepal and had departed, and that she gave birth to Sher in or about mid-August 2005. Having questioned the applicant’s wife about this issue in detail, with the assistance of the Nepalese – English interpreter regarding the differences between the Nepalese and Western calendars, the Tribunal accepts the consistent accounts given by the applicant and his wife as to the approximate date of birth of Sher Bahadur Kandel; that is, approximately 15 August 2005, and not 30 July 2004.
This indicates that the Sher’s date of birth, as listed in the subclass 187 visa application (30 July 2004) is incorrect. As noted above, the case law relating to information that is false or misleading in a material particular requires that the information is purposely untrue, and that there has been an element of fraud or deception by some person (not necessarily the applicant).
When questioned about the fact that Sher’s birth was listed as 30 July 2004 in the visa application form, the applicant said that his wife was not well-educated and would have relied on village elders to record Sher’s date of birth, and therefore it was likely that whoever had recorded it had inadvertently done so incorrectly. Alternatively he speculated that it may have been transcribed incorrectly into Western calendar dates and he simply put that date in without thinking about it or doubting it to be correct.
The Tribunal has considered this issue carefully and finds that it is more likely than not that the date of birth of 30 July 2004 provided for Sher Bahadur Kandel in the visa application was inadvertently, not deliberately, incorrect. Therefore, the Tribunal finds that it lacks the element of fraud or deception required by Trivedi’s case.
Accordingly, the Tribunal finds that the statement in the subclass 187 visa application that Sher Bahadur Kandel, born 30 July 2004, is the applicant’s son does not constitute false or misleading information in a material particular in relation to the visa application.
Conclusion
Given the above, the Tribunal is satisfied that there is no evidence before it that the applicant has given, or caused to be given, to the Department or to the Tribunal, a bogus document or information that is false or misleading in a material particular in relation to the application for subclass 187 visas.
Therefore, the applicant meets cl.4020(1).
Has a visa previously been refused on the basis of a failure to satisfy cl.4020(1)?
Clause 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 cl.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: cl.4020(2AA).
The subclass 187 visa application was made on 1 December 2014. The Department’s records indicate that the second, third, and fourth named applicants were refused subclass 461 visas on 11 December 2010, apparently on the basis that they were not accepted as the applicant’s family unit members due to non-genuine identity documents.
As noted above, the Tribunal has obtained a copy of that decision and is satisfied that the visas were not specifically refused on the basis of the second to fourth named applicant’s failure to meet PIC 4020. It notes that in any case, the refusal decisions occurred more than 3 years before the current subclass 187 visa application was made, and thus falls outside the scope of PIC 4020(2).
There is no evidence that the applicant has been refused a previous visa on the basis of PIC 4020 in the 3 years immediately before this application.
Therefore, the Tribunal finds that cl.4020(2) does not apply.
Has the applicant satisfied the identity requirements?
Clause 4020(2A) requires an applicant satisfy the Tribunal as to his or her identity.
The applicant has provided to the Department and to the Tribunal a copy of the biodata page of his New Zealand passport. There is no evidence before the Tribunal to suggest that the information contained in this document is not correct.
Accordingly, the Tribunal finds that the applicant meets cl.4020(2A).
Has a visa previously been refused on the basis of a failure to satisfy cl.4020(2A)?
Clause 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 cl.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: cl.4020(2BA).
The Tribunal is satisfied that the applicant has not previously been refused a visa because of a failure to satisfy the identity requirements in cl.4020(2A) during the 10 years before 1 December 2014. The issue is whether it can be said that his family unit members have, given the refusal of subclass 461 visas to the second, third, and fourth applicants, plus other family unit members not included in this application, being Bal Kumari Kandel and Mrs Sarashoti Kandel, on 16 December 2010, which falls within the 10 year period.
The 2010 refusal decision was made on the basis that the applicant(s) did not satisfy cl.461.212, which (essentially) requires that an applicant is a member of the family unit of a person who holds a subclass 444 visa in Australia or who will be entitled to enter Australia as the holder of one, or who is Australia as the holder of a subclass 461 visa or who last held a substantive visa of that kind. As noted above, the delegate found that the applicants did not satisfy this as he was not satisfied that they met cl.461.212 because he was not satisfied, on the basis of their non-verified supporting documents, that they were in fact members of the family unit of the applicant (the holder of a subclass 444) visa.
100. The question is whether this finding can be said to fall within the scope of cl.4020(2BA) since it was not expressly made on the basis of their failure to satisfy the identity requirements in cl.4020(2A) but was expressed more generally as being due to their failure to establish that they were members of the applicant’s family unit.
101. The Tribunal has had regard to the history of PIC 4020 as a means to trying to determine what cl.4020(2A) and (2BA) were intended to achieve. PIC 4020 was introduced into Schedule 4 to the Regulations on 2 April 2011, at which time it did not contain the identity requirements, only the requirement that there be no evidence that the applicant had provided a bogus document or information that was false or misleading in relation to the visa application. PIC 4020 was amended on 22 March 2014 to introduce the identity requirements in PIC 4020(2A) and (2BA) (and again on 23 November 2014, with the introduction of PIC 4020(2AA) and (2BA) which exempt minors from the other provisions).
102. The Department’s Procedures Advice Manual (PAM3) (as at 1 July 2018) on Public Interest Criterion 4020 – The Integrity PIC state at 5.2 that [with emphasis added by the Tribunal]:
The [22 March 2014] amendments strengthen the integrity of the migration program and deter identity fraud by introducing strict consequences if a visa applicant, or a member of their family unit, fails to satisfy the Minister as to their identity.
The identity requirements:
·reinforce the onus of proof to provide identity information and documents rests with the applicant
·address identity fraud, which is more serious than other types of visa fraud as evidence of identity is the foundation for all checks, including national security and character checks, conducted by the Department
·address fraud in subsequent entitlements or benefits that are dependent on the Department accurately identifying each person before visa grant (such as driver’s licence, Medicare card)
The identity requirement involves the applicant satisfying the delegate as to their identity in the current visa application being assessed. It also involves a ten year requirement, in which the delegate has to be satisfied that neither the applicant nor a member of their family unit has been refused a visa under PIC 4020 because of a failure to satisfy as to their identity as explained above.
An applicant who is refused under PIC 4020 because of a failure to satisfy as to identity will not be able to be granted a visa, where PIC 4020 is a criterion for that visa, for ten years after refusal. Unlike the delegate’s ability to waive the requirements of 4020(1) and (2), there is no waiver of the identity requirements of 4020(2A) and (2B).
The identity provisions apply to visa applications made on or after 22 March 2014, and visa applications made, but not finally determined by 22 March 2014.
103. This essentially reflects what is set out in the Explanatory Statement for the amending Regulations (Migration Amendment (2014 Measures No.1) Regulation 2014 (SLI2014, No. 32).
104. As noted above, the subclass 461 visa applications made and refused in 2010 by the applicant’s family unit members were not refused ‘under PIC 4020’ (which was not at that time incorporated into the Schedule 2 criteria for a subclass 461 visa but was later incorporated into cl.461.223), but because cl.461.212 was not met. Cl.461.212 did not, and does not, specifically require an applicant to meet PIC 4020.
105. Accordingly, the Tribunal considers that the better interpretation is that these visas were not refused due to a failure to satisfy the identity requirements in cl.4020(2A) and thus cl.4020(2B) is met in the particular circumstances of this case.
Conclusion
106. On the basis of the above, the Tribunal finds that the applicant satisfies PIC 4020 for the purposes of cl.187.213(1).
107. Given this finding, the appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa.
108. As previously stated, the Tribunal advised in a letter to the applicant and his agent that it appeared that the Tribunal had no jurisdiction in relation to the second, third, fourth and fifth named applicants, as they were not in the migration zone (Australia) at the time of the visa application, or at the time that the review application was made to the Tribunal. The Tribunal notes that it is a requirement for a valid application for review under s.338(2) (which applies to an onshore visa refusal such as the decision under review) that a review application can only validly be made by an applicant who is the migration zone (Australia) at the time that the review application is made (see s.347(3)). The Department’s records indicate that, and it was not disputed by the applicant, that none of the other applicants (that is, the second, third, fourth and/or fifth named applicants) were in Australia on the date on which the review applications were lodged. Accordingly, the Tribunal has no jurisdiction in relation to them.
DECISION
109. The Tribunal remits the applications for a Regional Employer Nomination (Permanent) visa for reconsideration, with the direction that the first named applicant meets the following criteria for Subclass 187 - Regional Sponsored Migration Scheme visas:
·Public Interest Criterion 4020 for the purposes of cl.187.213(1) of Schedule 2 to the Regulations.
110. The Tribunal has no jurisdiction in relation to the second, third, fourth and fifth named applicants.
Alison Mercer
MemberATTACHMENT
Migration Regulations 1994
Schedule 4
4020(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 1958
s.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.
…
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
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Statutory Interpretation
Legal Concepts
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Judicial Review
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Procedural Fairness
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Statutory Construction
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Jurisdiction
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