Kapur (Migration)

Kapur (Migration) [2019] AATA 3479 (22 July 2019)
Corrigendum
DIVISION:Migration & Refugee Division
APPLICANTS:  Mr Harpreet Singh Kapur
Mrs Manepreeth Kour
CASE NUMBER:  1607854
DIBP REFERENCE(S):  BCC2009/436571 BCC2016/2297137
MEMBER:Danielle Galvin
DATE OF DECISION:  22 July 2019
DATE CORRIGENDUM
SIGNED:10 September 2019
PLACE OF DECISION:  Melbourne
AMENDMENT:  The following corrections are made to the decision:

The words “The Tribunal remits the applications for Skilled (Provisional) (Class VC) visas for reconsideration with the direction that the applicant meets the PIC 4020 as set out in cl.485.” on the first page of the decision record should be replaced “The Tribunal remits the applications for Skilled (Provisional) (Class VC) visas for reconsideration with the direction that the applicant meets the PIC 4020 as set out in cl.487.228.
“cl.485.224” on paragraph 2 should be replaced with “cl.487.228”.
“cl.485.224” on paragraph 20 should be replaced with “cl.487.228”.
On page 9 of the decision record omit the word “DECISION”.
Include paragraph 42 with the words “The Tribunal remits the applications for Skilled (Provisional) (Class VC) visas for reconsideration with the direction that the applicant meets the PIC 4020 as set out in cl.487.228”.
Danielle Galvin
Member

DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mr Harpreet Singh Kapur
Mrs Manepreeth Kour
CASE NUMBER:  1607854
DIBP REFERENCE(S): BCC2009/436571 BCC2016/2297137
MEMBER:Danielle Galvin
DATE:22 July 2019
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the applications for Skilled (Provisional) (Class VC) visas for reconsideration with the direction that the applicant meets the PIC 4020 as set out in cl.485.
Statement made on 22 July 2019 at 1:03pm

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 487 (Skilled - Regional Sponsored) – false and misleading information – marital and parental status – previous arranged marriage in India – child from previous relationship – unable to obtain a divorce – in a ‘material particular’ – no bearing on any requisite visa criteria – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 487.228; Schedule 4, PIC 4020
CASES
Arora v MIBP [2016] FCAFC 35
Batra v MIAC [2013] FCA 274
Singh v MIAC [2012] FMAC 145
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 16 May 2016 to refuse to grant the applicants Skilled (Provisional) (Class VC) visas under s.65 of the Migration Act 1958 (the Act).
The applicants applied for the visas on 10 November 2009. The delegate refused to grant the visas on the basis that the first named applicant (the applicant) did not satisfy the requirements of cl.485.224 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the applicant did not meet the Public Interest Criterion (PIC) 4020.
The applicant had declared in his application to the Department that he was “married” to the secondary applicant, Manepreeth Kour, and that the marriage took place on 25 February 2009.
The department received information that the applicant was married to another person, Paramjeet Kaur, in India prior to 25 February 2009 and had a child from that marriage. The Department invited the applicant to comment on this information requiring a response in writing by 15 April 2016.
In response the applicant submitted the following documents:
·Statement of Manepreeth Kour dated 10 May 2016 stating that she had lived with the applicant for 8 years;
·A statement from the applicant confirming that he had lived for 8 years with Ms Kour and that he was not divorced from Ms Kaur;
·A statement from the then landlord of the applicant and Ms Kour confirming that they lived in the landlord’s property from April 2012;
·A community organisation statement dated 8 May 2016.
The Department also had access to:
·Australian Commonwealth Marriage certificate dated 25 February 2009 between the applicant and Ms Kour;
·Form 80 completed 6 November 2009 noting that Ms Kour is the applicant’s only spouse and there are no dependants;
·VC 487 applications lodged 10 November 2009 declaring Ms Kour to be the applicant’s spouse and that there are no previous relationship or dependants.
The Department found that, in the absence of verifiable evidence supporting a separation and or a divorce from Ms Kaur, the applicant had not provided truthful or correct information about his marital status in 2009 and provided false and misleading information about the existence of his child to Ms Kapoor and therefore found that the applicant failed to meet PIC 4020.
On 12 September 2018 the Tribunal wrote to the applicant, pursuant to section 359A of the Act, via their migration agent, requesting that the applicant respond to or comment on the information received that the applicant was married to another person in India despite his declaration on 10 November 2009 that he was married to Ms Kour. The applicant was required to respond in writing by 26 September 2018 but was granted an extension of time to comply by 17 October 2018.
The applicant submitted the following documents prior to the hearing:
·pay extracts
·Statement by Prakash Narula dated 11 October 2018 in his capacity as friend of the applicant describing him as benevolent and charitable
·Birth certificate of Teghveer Singh, son of the applicant, born on 23 July 2017, stating that the applicant was married to Ms Kour on 25 February 2009.
·Statutory declaration Harpal Singh Kapur, father of the applicant, declared on 22 September 2018, wherein he declared that he and his wife had arranged for their son, the applicant, to marry and had place an advertisement in a newspaper seeking a wife. He confirmed that his son and his wife married and had a child on 19/8/02 and thereafter separated. He declared that in 2005 his son went to Australia to study. He claimed that he was unable to secure a divorce for his son and the issue was unresolved. He confirmed that his son and Ms Kour married on 25/2/09, followed by a traditional Indian wedding ceremony held on 19/1/11. Mr Kapur senior also declared that on 10/2/16 two officers from the Department of Home Affairs “raided” his home and in panic advised them that Ms Kour was a friend and not a partner.
·Bundle of photographs
·Acknowledgement certificate from Sikh Volunteers Australia, dated 2/10/18,
·Statutory declaration of Jasmine Kaur Maken declared on12/10/18, wherein she declares that confirming that she is the cousin of the applicant and that he is not legally divorced from his wife
·Copy lease dated 30/8/18 naming the applicant and Ms Kour as the tenants together with bond lodgement form
·Contract of sale of land
·Application for divorce dated 13/9/17
·Affidavit in support of application for divorce affirmed by the applicant on13/9/17
·16/10/18 statement of Rajan Jagia a friend of the applicant
·Statutory declaration of the applicant declared on 17/10/18, confirming that his father attempted to secure a divorce from his arranged marriage. He stated that the legal system in India made obtaining a divorce difficult and lengthy and “decided it was not worth pursuing” and lost contact with his wife. He declared that he could not recall if he was asked as to whether he was already married when he married Ms Kour. Further, he declared that the migration agent had prepared the application for the visa and noted that he had stated that the applicant did not have any dependents. The applicant declared “It did not occur to me to bring up my daughter because we did not have any contact and she was certainly not dependent upon me for anything”. The applicant declared that he only sought advice as to his marital situation after the Department had refused his visa application and described himself as naïve.
·Bundle of pay slips
·Letter dated 17/10/18 from Con Tangalakis
·Letter dated 20/10/18 from OZ Sales and Marketing
·Submission from the applicant’s agent dated 31 /10/18,
The applicants appeared before the Tribunal on 18 March 2019 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant, Ms Kour by telephone, Ms Kaur Makin, the applicant’s cousin, Mr Kapur (the applicant’s father by telephone) and Mr Prakash Naula, a friend of the applicant. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.
The applicants were represented in relation to the review by their registered migration agent. The representative attended the Tribunal hearing.
At the hearing the applicant gave evidence that in 2003 to 2004 his father made inquiries about divorce proceedings but had great difficulty locating the wife. He stated that he had no contact with her for about 15 years. He stated that in India if a person has no contact with their spouse they are considered divorced. The applicant further stated that in 2005 he did not have a migration agent and someone else completed forms for him. The applicant also stated that he came to Australia as a student in 2007 for 6 months and returned in 2009. He stated that during the 2007 stay he met Ms Kour in 2008.The couple moved in together and then sought advice from an agent to arrange for them to marry. The applicant claimed that the agent completed the documentation to organise this but that the celebrant did not understand the history he provided, that he was already married, as the celebrant was Chinese. The couple married on 25/2/09. The marriage was subsequently formalised in India. The applicant confirmed that he had not secured a divorce prior to the marriage to Ms Kour.
Ms Kour gave evidence by telephone and stated that after meeting the applicant they dated and then moved in together ultimately getting married in 2009. Ms Kour stated that the applicant had assured her that he had divorced his wife and she trusted him. Ms Kour stated that she believed that her husband had divorced his wife
Mr Narula gave evidence that he had known the applicant for 9-10 years and that they were good friends. He stated that he was not familiar with the applicant’s past and knew that he was married to Ms Kour. He described the applicant as community orientated and supportive of community causes.
Ms Makin gave evidence that the applicant was her cousin and that he had lived with her prior to moving in with Ms Kour. She stated that the applicant’s family had tried to arrange a divorce for the applicant as he was not happy in that relationship. She stated that when the applicant left India he was considered to be separated but not divorced.
The applicant’s father also gave evidence by telephone and stated that lawyers were engaged to facilitate a divorce and documents were filed in court in 2006. That is the last time he could recall dealing with the lawyers in India. He stated that documents were prepared for the wife to sign but were not returned and then contact was lost.
Mr Anderson, agent for the applicant submitted that the applicant’s relationship with Ms Kour was a de-facto one and that is how it should be viewed.
Following the hearing the applicant’s agent submitted further documentation for the Tribunal to consider including:
·Statement of Manepreeth Kour dated 27 March 2019 in which she stated that when the Tribunal contacted her by telephone during the course of the hearing to give evidence it was 5.30 am in India and she was tired and consequently confused when answering questions. Ms Kour qualified her evidence stating that the applicant “had attempted to obtain the divorce but was not successful in doing so”. She further stated that “…I know that I did not fully turn my mind to the fact that Harpreet was still technically married in India.” .Ms Kour states that with the benefit of hindsight they should have recorded their relationship as that of defactos and insists that this error was unintentional.
·Email exchanges between the applicant and Sunil Salooja on 20/3/19. 2/4/19, 8/4/19, 9/4/19 in relation to his historical attempts to obtain a divorce
·Letter from Salooja & Associates, Advocates and Solicitors, India dated 8 May 2019 confirming that they were engaged by Harpreet Singh Kapur in December 2003 to act and represent him in relation to divorce proceedings with Ms Paramjeet Jauhar and stated that the inability to locate MS Jauhar meant thet the matter was not pursued and therefore not resolved
·Emails from the applicant’s agent dated 13 and 14 May 2019 with various attachments:
·and bundle of photographs
·Flyer for 32^nd Australian Sikh Games 2019
·Celebrant’s notes on intended marriage between applicant and Ms Kour dated 24/1/09 describing the applicant as “never validly married”
·Agent’s submissions dated 14 May 2019 in which the agent submits that the decision to get married rather than to declare their relationship as a de-facto one was not made to secure any migration benefit .The decision was described as “absentminded” and based on deficient advice by their migration agent at the time. No evidence as to what that advice was provided to the Tribunal other than this submission. The agent then continues to submit that Ms Kour be treated as a de-facto spouse. The agent submitted because the applicant and Ms Kour are de-factos, “Their entering into an invalid marriage was thus entirely unnecessary and immaterial to their ability to satisfy any visa criteria.” Despite attempts by the lawyers engaged to facilitate a divorce the divorce was never realised and in the words of the applicant “we decided it was not worth pursuing” as it was a difficult and lengthy process without the consent of the MS Kapoor.The applicant stated that” we had more hope waiting for Paramjeet and her parents to change their minds and contact us for a divorce than to endure the legal process. In the meantime, we attempted to go on with our lives and put this past behind us as much as we could. I never thought about it again and never anticipated that it could become an issue for me in the future.” The agent acknowledged that without the benefit of consent from his wife, Ms Jahur, the applicant may have made an application for divorce in India on the grounds of desertion but that a procedure was required which appeared to be frustrated by the uncertainty of the whereabouts of the wife that this was not pursued. The agent confirmed that the applicant obtained a divorce in Australia on 20 December 2017 following their advice that a divorce was possible in Australia. The agent also submitted that the applicant had given oral evidence that he advised his previous migration agent that he had been married and had a child. However, the agent also advised that they found no evidence of this assertion, having reviewed the previous agent’s file. The agent submitted that they are instructed that the celebrant who conducted the marriage in Australia had a limited understanding of English and that, according to the applicant, his previous agent had been told of his circumstances and he believed that this would be passed on. Evidence was not submitted to corroborated this assertion.
For the following reasons, the Tribunal has concluded that the decision under review should be remitted for reconsideration by the Department..
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.485.224 for the grant of the visa. Broadly speaking, this requires that:
·there is no evidence that the applicant has given, or caused to be given, to the Minister, an officer, the Tribunal, a relevant assessing authority, or Medical officer of the Commonwealth, a bogus document or information that is false or misleading in a material particular in relation to the application for the visa or a visa that the applicant held in the 12 months before the application was made: PIC 4020(1); and
·the applicant and each member of the family unit has not been refused a visa because of a failure to satisfy PIC 4020(1) during the period starting 3 years before the application was made and ending when the visa is granted or refused, unless the applicant was under 18 at the time the application for the refused visa was made: PIC 4020(2) and (2AA); and
·the applicant satisfies the Minister as to his or her identity: PIC 4020(2A); and
·neither the applicant nor any family unit member has been refused a visa because of a failure to satisfy PIC 4020(2A) during the period starting 10 years before the application was made and ending when the visa is granted or refused, unless the applicant was under 18 at the time the application for the refused visa was made: PIC 4020(2B) and (2BA).
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). 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 PIC 4020(5) and the term ‘bogus document’ is defined in s.5(1) of the Act (see the attachment to this decision). In contrast to the definition of ‘information that is false or misleading in a material particular’ in PIC 4020(5), the reference in the definition of bogus document to a document that was obtained because of a ‘false or misleading’ statement has no requirement that it be relevant to a criterion for the grant of the visa: Arora v MIBP [2016] FCAFC 35; Batra v MIAC [2013] FCA 274.
The requirement in PIC 4020(1) not to provide a bogus document, or false or misleading information, applies whether or not the Minister became aware of the bogus document or information that is false or misleading in a material particular because of information given by the applicant: PIC 4020(3). It also applies whether or not the document or information was provided by the applicant knowingly or unwittingly.
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.
There is no dispute that the information provided in the visa application, as to the applicant’s marital and parental status, to the Department was untrue. The applicant gave evidence at the hearing that he knew it to be untrue despite having declared on 6 November 2009 “that the information I have supplied in this application is complete, correct and up-to-date” and that he had “read and understood the information supplied to me in this application”, in the visa application for general skilled migration (subclass 487) to Australia
At paragraph 21 of the application the applicant declared that he is married and provided the date as 25/2/09. There was provision to declare that Ms Kour was his de-facto partner in that section. At paragraph 65 the applicant was required to provide details of all his children under 18 years of age who were not accompanying him to Australia. The section was not completed by the applicant. The applicant’s declaration gave the impression that he had not previously been married and had no children under 18. The applicant therefore made a declaration that was false and misleading as to his marital and parental status.

The applicant has acknowledged that he had not secured a divorce from Ms Jahur prior to marrying Ms Kour
The applicant stated that he believed that because his daughter had not relied on him for anything she was not dependant on him and therefore he did not reveal that she existed. This explanation does not explain his failure to respond accurately and honestly to the question at paragraph 65 of the visa application which asked if he had a child under the age of 18 that was not accompanying him in relation to the visa application.
The Tribunal finds it implausible that the previous agent, engaged by the applicant, would have mislead the Department intentionally about the true circumstances of the applicant’s situation had they been informed as to them. This is because there would be no advantage in misrepresenting the truth of the matter and no apparent obstacle, in light of the truth, as to why a favourable outcome for the visa application would not be granted. Further, the Tribunal finds it implausible that the previous agent would fail to communicate with the celebrant as to the applicant’s marital status or encourage the marriage to Ms Kour at all without securing a divorce as secured with the assistance of the current agent. There would be no advantage gained in such a failure to inform the Department. As submitted by the current agent there was no migration benefit in doing so.
Further, the Tribunal does not accept the explanation of the applicant that the celebrant’s difficulty in understanding English, of which there is no verifiable evidence, caused them to mis-record the applicant’s marital status as “never validly married” in the celebrant’s notes of 25/2/09. The remainder of the document is legible and does not suggest any difficulty in recording information in English.
The explanations provided by the applicant that he relied on the previous agent to prepare and organise matters having been fully informed as to his circumstances is not persuasive. The applicant had stated on numerous occasions that the pursuit of a divorce, in India would have been difficult to secure. The applicant stated that he wished to get on with his life and appears to have done so by disregarding his marital and parental history. The Tribunal accepts the evidence of Ms Kour, given at the hearing, that she understood that a divorce had been secured as she trusted the applicant. The Tribunal does not accept that her statement during the hearing was unreliable because she was tired as later suggested in her statement following the hearing.
The Tribunal finds that the applicant sought a divorce in Australia following the application for the visa being rejected by the Department. The current agent submitted that they were able to advise the applicant that this was possible. Had the applicant communicated to the previous agent that they were married and wished to marry another it is reasonable to assume that similar advice would be provided by a migration agent rather than setting upon a path of providing deliberate misinformation to the Department.
The evidence that the applicant’s previous agent was informed about his circumstances was not corroborated following an investigation by his current agent.
The current agent has submitted that the applicant and Ms Kour should be seen as de-facto partners for the purposes of this review.
The more credible explanation for the applicant’s conduct is that the applicant wished to pursue life as if the first marriage and birth of his first child had not occurred and wished to marry Ms Kour without delay.
The Tribunal finds that the information provided by the applicant, as to his marital status and parental status, in the visa application, was false and misleading.
However, the information must be false and misleading in a “material particular” in the context of PIC 4020.The information must be relevant to a visa criterion upon which the allegedly false information could materially bear: Singh v MIAC [2012] FMAC 145 at [68].
The visa criterion to be met are in relation to the applicant’s skills, language requirements, qualifications, health and character requirements. None of these criteria are dependant on the marital or parental status of the applicant.
As stated above there was no advantage, in terms of the visa application, to the applicant in misrepresenting his marital and parental status at the time of the application. Had he been honest, Ms Kour could have been declared to be the applicant’s de facto partner. The mis-information as to his circumstances could not materially bear upon any requisite visa criteria to reflect the test set out in Singh v MIAC [2012} FMAC 145.
It is therefore appropriate that the Tribunal remit the application to the Department to consider all aspects of the visa application with a direction that the failure to make honest declarations as to the applicant’s marital and parental status were not made in relation to a ‘material particular” relevant to a visa criterion. As a result the Tribunal is satisfied that there is no evidence before it that the applicant has given, or caused to be given, to the Minister, or an officer of the Department, false or misleading information in relation to a material particular relevant to a visa criterion to be met. Further, there is no evidence before the Tribunal that the secondary applicant has given information that is false or misleading in a material particular or provided a bogus document for the purposes of PIC 2020(1). The Tribunal is also satisfied that, during the relevant period, there is no evidence before it that either applicant or each member of their family unit has been refused a visa due to a failure to satisfy the criteria of PIC 4020(1) and therefore pic 4020(2) is met.
decision
The Tribunal remits the decision not to grant the applicants Skilled (Provisional) (Class VC) visas with a direction that the false and misleading information given by the applicant did not relate to a material particular relevant to any of the criteria the Minister may consider when making a decision on the application, whether or not the decision is made because of that information.
Danielle Galvin
Member
ATTACHMENT
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.
…

[2019] AATA 3479

22 July 2019

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