KAUR (Migration)

[2019] AATA 3677

KAUR (Migration) [2019] AATA 3677 (20 June 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Kulwinder KAUR

VISA APPLICANTS:  Mr Sinderpal Singh GURNA
Master Ranjeet SINGH

CASE NUMBER:  1622297

DIBP REFERENCE(S):  2013/085403

MEMBER:Kira Raif

DATE:20 June 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for Contributory Parent (Migrant) (Class CA) visas for reconsideration, with the direction that the first named applicant meets the following criteria for Subclass 143 (Contributory Parent) visas:

·Public Interest Criterion 4020 for the purposes of cl.143.224 of Schedule 2 to the Regulations.

Statement made on 20 June 2019 at 9:46am

CATCHWORDS

MIGRATION – Contributory Parent (Migrant) (Class CA) – Subclass 143 (Contributory Parent) – bogus documents – unsatisfactory understanding of course – educational documents verified – decision under review remitted

LEGISLATION

Migration Act 1958 (Cth), ss 5(1), 65, 361(2)
Migration Regulations 1994 (Cth), Schedule 2 cl 143.221, Public Interest Criterion (PIC) 4020

CASES

Arora v MIBP [2016] FCAFC 35
Batra v MIAC [2013] FCA 274

Trivedi v MIBP [2014] FCAFC 42

STATEMENT OF DECISION AND REASONS

Application for review

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 13 December 2016 to refuse to grant the applicants Contributory Parent (Migrant) (Class CA) visas under s.65 of the Migration Act 1958 (the Act).

2. The visa applicants are nationals of India born in May 1965 and February 1989 respectively. The second named visa applicant is a child of the first named visa applicant. They applied for the visas on 12 July 2013. The delegate refused to grant the visas on the basis that the second named visa applicant (the visa applicant) did not satisfy the requirements of cl.143.224 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the delegate found that the Public Interest Criterion (PIC) 4020 was not met. The sponsor (‘the review applicant’) seeks review of the delegate’s decision.

3. The applicant’s representative provided a large volume of documents to the Tribunal on the evening of 19 February 2019. As the hearing was scheduled for 8.30 am on 20 February 2019, the late provision of supporting material and written submissions was less than helpful. No explanation is offered by the applicant’s representative for the extremely late submission of documents or for failure to comply with paragraph 5.1 of the AAT Practice Directions on Migration and Refugee Matters. The Tribunal is mindful that the application for review was lodged with the Tribunal December 2016 and the applicant was represented by the same agent throughout the process. It is equally unclear to the Tribunal why the review applicant or his representative chose not to comply with s. 361(2) of the Act. The applicant was represented by Jujhar Bajwa of Bajwa Immigration Consultants.

4. The review applicant appeared before the Tribunal on 20 February 2019 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicants. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages. The review applicant was represented in relation to the review by her registered migration agent. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   Relevant law

5. The issue in this review is whether the visa applicant meets Public Interest Criterion 4020 (PIC 4020) as required by cl.143.224 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).

6. The requirements in PIC 4020(1) and (2) can be waived if there are certain compelling or compassionate reasons justifying the granting of the visa: PIC 4020(4). However, this waiver does not apply to the identity requirements in PIC 4020(2A) and (2B).

7. The term ‘information that is false or misleading in a material particular’ is defined in PIC 4020(5) and the term ‘bogus document’ is defined in s.5(1) of the Act. In contrast to the definition of ‘information that is false or misleading in a material particular’ in PIC 4020(5), the reference in the definition of bogus document to a document that was obtained because of a ‘false or misleading’ statement has no requirement that it be relevant to a criterion for the grant of the visa: Arora v MIBP [2016] FCAFC 35; Batra v MIAC [2013] FCA 274.

8. The requirement in PIC 4020(1) not to provide a bogus document, or false or misleading information, applies whether or not the Minister became aware of the bogus document or information that is false or misleading in a material particular because of information given by the applicant: PIC 4020(3). It also applies whether or not the document or information was provided by the applicant knowingly or unwittingly.

9. While PIC 4020 refers to information that is false, in the sense of purposely untrue, it is not necessary for the Minister (or the Tribunal on review) to conclude that the applicant was aware the information was purposely untrue in order for PIC 4020 to be engaged. However, an element of fraud or deception by some person is necessary to attract the operation of the provision: Trivedi v MIBP [2014] FCAFC 42.

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

10. The review applicant provided to the Tribunal a copy of the primary decision record which contains the following information.

11. The visa applicants provided with their application evidence that the second named applicant, Ranjeet, was a student and a dependent child of the primary visa applicant. Included with the application was evidence of Ranjeet’s study, including his marks cards, secondary schooling certificate, payment receipts from the educational institution and other materials. Ranjeet also completed a dependency questionnaire in which he stated that he is a full time student for a Bachelor of Art at Lovely Professional University through SK Institute at Patiala. He stated that he was a below average student and required more time than others to complete his studies, so he is focussed on his studies and does not have a job or income. Ranjeet stated that the course commenced in April 2013 and would be completed in August 2016.

12. The primary decision record indicates that the Immigration officers visited the visa applicants' home on 19 June 2016. Following is the summary of their findings:

    a.All the villagers in the vicinity stated that Ranjeet has not been studying during the last 2-3 years as they had never seen him going out of the house.

    b.Ranjeet could not provide any documents such as books or notes to support the claim that he was studying for a Bachelor of Arts degree. When asked why he did not have any documents / books for the degree, he stated that his exams were over and he gave his books to friends. This contradicted the information shown on the exam date sheet which listed that there were exams in the coming days.

    c.The officers pointed out that there was an exam the following day according to the exam date sheet, Ranjeet could not provide any explanation. The officers asked him what exam was scheduled next day and if he could show any books or notes. Ranjeet stated that he had a History exam and that he had already prepared everything and had given his notes and books to a friend. When asked to outline what he had studied in History for the exam, he had no knowledge and could not give details.

    d.Officers asked Ranjeet basic questions to ascertain what he had studied in the Master Diploma in Computer Application course. It is recorded that Ranjeet could not answer basic questions.

    e.Ranjeet confirmed that the dependency questionnaire was completed by the sponsor and he only signed the document.

13. The delegate wrote to the visa applicants seeking their comments on the above information.  The sponsor replied on 4 August 2016. The sponsor stated that it was ‘strange’ that the Department officers made inquiries from unrelated persons as they were not the right persons to provide information and it was in violation of the privacy laws. The Tribunal acknowledges the sponsor’s concerns but is of the view that it is legitimate inquiry from those who are able to witness the visa applicant’s conduct and daily circumstances. The Tribunal places significant weight on the fact that according to the information in the primary decision, several neighbours gave consistent information indicating that the visa applicant was not seen going out of the house and attending any study but stayed at home. The fact that independent witnesses gave consistent evidence suggests such evidence is probative and the Tribunal finds it persuasive.

14. The sponsor states that the actions of Immigration officers were ultra vires and should be treated as invalid. The sponsor states that her brother’s dignity was ‘injured’ and the officers’ actions were negligent. The sponsor has not provided any meaningful explanation why she believes the actions of the Immigration officers were invalid or negligent, other than to state that the officers should have made inquiries of particular persons but not of other persons and that the inquiries made the visa applicant feel bad. The Tribunal is of the view that it is up to the relevant officials to determine how to conduct their inquiries and the Tribunal does not consider that the actions in this case were ultra vires or negligent. The fact that the outcome of the inquiries was contradictory to the visa applicants’ claims does not render these invalid or negligent.

15. The sponsor states that no bogus documents were provided. In support of this claim, the sponsor provided additional evidence of her brother’s study, including extracts from the attendance register, the student card, evidence of tuition payments, photographs, statements and other materials.

16. The review applicant provided additional documents to the Tribunal on 19 February 2019. There is an affidavit from Mr Panchayat confirming the visa applicant’s study and an affidavit from the visa applicant’s father confirming study and dependence. There are copies of the visa applicant’s educational documents, including proof of current study, and evidence of financial dependence.

17. The review applicant submits that Lovely University is a reputable university with a lot of students and they would not provide false documents. The review applicant’s assurance that the university is reputable does not overcome the Tribunal’s concerns.

18. The Tribunal has had regard to the various documents concerning Ranjeet’s study submitted with the primary application and subsequently in response to the delegate’s letter and also to the Tribunal. However, the Tribunal is mindful that document fraud is common in India. DFAT Country Information Report on India dated 17 October 2018 states the following

    5.28 Forgery, making false documents and using false documents are offences under sections 463-489 of the Penal Code. Several sources claim the manufacture and use of fraudulent documents is prevalent in India, including for immigration purposes. Documents vulnerable to forgery include civil registry documents, curricula vitae, letters of employment, financial documents, educational qualifications, newspaper articles, political party registration, and websites created specifically to validate other documents. Although all documents are vulnerable to fraud, some are more difficult to forge. Passports are relatively more difficult to forge than other types of identity documents, but genuine passports may be obtained relatively easily using fraudulent information…

    5.29 Document fraud is a common criminal activity. Organised networks of agents are known to provide complete packages of fake documents. These agents, and others, charge significant fees for the provision of fraudulent documents.

19. Having regard to that information, the Tribunal does not consider the various documents submitted as evidence of the visa applicant’s study to be probative in circumstances where the evidence arising from the site visit contradicts the documentary evidence.

20. Contrary to the sponsor’s claims, the Tribunal considers the evidence from the site visit to be probative and persuasive. As noted above, several neighbours of the visa applicant gave consistent evidence indicating that he does not attend classes. The applicant himself was unable to answer questions in relation to the course content and the exam timetable. He was unable to present books or notes or other evidence of his study. The Tribunal considers his explanation that he had given his books and notes to another student a day before the exam implausible. These matters offer a strong indication that the visa applicant was not undertaking study as claimed. While the Tribunal acknowledges the statement from Mr Panchayat about the visa applicant’s current study, the Tribunal considers the unprepared and spontaneous evidence provided during the site visit more persuasive than evidence that has been prepared for the benefit of the visa application. The review applicant told the Tribunal that the letter was prepared by the Head of the Village and he would not provide false information and would not give a letter to anyone. Essentially, the review applicant’s claim is that the Tribunal should disregard the other statements provided by the villagers at the time of the site visit in favour of Mr Panchayat’s statement because he is the head of the village. The Tribunal does not consider that his position as the head of the village renders Mr Panchayat’s evidence of greater probative value than the evidence of other villagers.

21. The review applicant also told the Tribunal, with respect to the neighbours’ evidence, that may be the Department asked the wrong people who did not want to give truthful information because of political issues. The Tribunal considers that explanation far-fetched. The Tribunal does not consider it plausible that several neighbours would intentionally, and consistently, lie to the officers of the Australian Immigration authorities out of spite and due to political issues. The Tribunal considers the neighbours‘ evidence to be probative.

22. The review applicant provided additional evidence to the Tribunal. The review applicant provided a completed Form 1023 stating that the visa applicant made a mistake in relation to the bank accounts. The form indicates that the visa applicant does have a joint bank account with his father which he uses to meet his daily expenses. The review applicant also provided a copy of the bank statement in the visa applicants’ names. The Tribunal is mindful that while the banks statement shows deposits and withdrawals, it does not indicate who deposits and who withdraws the funds and for what purpose these funds are used. It is impossible to determine whether the funds belong the applicant or his father and whether Ranjeet has withdrawn any funds from the account for his food, shelter and accommodation. The Tribunal does not consider that the bank statement evidences Ranjeet’s dependence on his father.

23. The review applicant provided a number of statements from villagers who refer to Ranjeet’s study and dependence on his father. It is unclear to the Tribunal how neighbours or other villagers would be familiar with the family’s financial affairs and how Ranjeet’s expenses are being met. As for the visa applicant’s study, for the reasons stated above, the Tribunal is of the view that the contemporaneous and unprepared evidence provided at the time of the site visit is of greater probative value than statements prepared at behest of the visa applicants. The review applicant provided evidence of Ranjeet’s study and dependence. These documents have been addressed above. The review applicant subsequently provided to the Tribunal evidence relating to her father’s income and taxation affairs.

24. In oral evidence, the review applicant told the Tribunal that her brother was too nervous when he was interviewed by the Immigration staff and could not provide meaningful answers. She said that their father was also present, so Ranjeet did not want to disclose the fact that he did not have his own textbooks. The Tribunal does not accept that the visa applicant’s failure to recall the exam the following day, or his inability to explain the content of the course he claims to have been studying for, could be explained by nervousness, even if the visa applicant had never participated in a formal interview Neither does nervousness explain the visa applicant’s inability to produce any notes from his study during the site visit. The Tribunal does not accept the review applicant’s explanations. In the Tribunal’s view, a more plausible explanation is that the visa applicant could not provide information about the course, or evidence of his study, because he was not actively engaged in any study.

25. The Tribunal is also mindful that the visa applicant had the same difficulty explaining the content of the course when questioned by the Tribunal. He could not recall some of the subjects at all and could not explain what other subjects were about. In her post-hearing submission the review applicant states that her brother was ‘investigated’ for being a student rather than for being a dependent child but the issue here is not his dependency, but rather the provision of bogus documents in relation to his study. The visa applicant’s knowledge (or lack of it) in relation to the course is relevant. That lack of knowledge supports the Tribunal’s view that the visa applicant was not actively engaged in any study.

26. The Tribunal places weight on the fact that the explanations offered by the review applicant about the evidence offered during the site visit were not previously given to the Department but were offered for the first time to the Tribunal. For example, there was no mention previously about the neighbours having political grudges against the family or the visa applicant providing incorrect answers because of nervousness. There was considerable delay from the time of the site visit to the time of the delegate’s decision and the visa applicant had ample time and opportunity to provide a full explanation. The delegate wrote to the visa applicant and the visa applicant and the sponsor provided a detailed submission in response to the delegate’s concerns. These are set out in the primary decision record. The Tribunal notes that the explanation the review applicant presented to the Tribunal is different to the explanations offered to the delegate. In the Tribunal’s view, if the explanations presently offered were truthful, the same explanations would have been offered earlier. The Tribunal does not accept the review applicant’s claim that she was not properly guided by her migration agent, given the detailed response that was provided to the delegate. Rather, the Tribunal has formed the view that the review applicant’s explanations are a recent invention and are not truthful.

1. The visa applicant also told the Tribunal that he did not mention the full explanation to the delegate because he was nervous but as noted above, the Tribunal does not accept that in the lengthy period of time that the applicant had from the time of the interview to the time of the decision, he had no opportunity to overcome his nervousness and present a written submission to the delegate.

2. The Tribunal has found the visa applicant’s and the review applicant’s evidence to be inadequate and as a result, the Tribunal has significant concerns about the veracity of the evidence concerning the visa applicant’s study. The Tribunal had formed the view that the visa applicants and the review applicant had not been truthful in their evidence concerning Ranjeet’s study. However, on 19 June 2019 the Tribunal received advice from the Department that the educational documents presented with the application were verified as being genuine.

3. Having regard to this advice, and despite the Tribunal’s reservations, the Tribunal cannot be positively satisfied that there is evidence that the visa applicant has given, or caused to be given, a bogus document or information that is false or misleading in a material particular. The visa applicant meets PIC 4020(1). The Tribunal is mindful that, should new information become available to the decision-maker, this issue can be revisited in the future.

4. There is no evidence that the visa applicant does not meet other elements of PIC 4020. The Tribunal concludes that the visa applicant satisfies PIC 4020 for the purposes of cl.143.224.

   DECISION

5. The Tribunal remits the application for Contributory Parent (Migrant) (Class CA) visas for reconsideration, with the direction that the first named applicant meets the following criteria for Subclass 143 (Contributory Parent) visas:

   ·Public Interest Criterion 4020 for the purposes of cl.143.224 of Schedule 2 to the Regulations.

   Kira Raif
   Senior Member