KAUR (Migration)

[2019] AATA 2370

KAUR (Migration) [2019] AATA 2370 (28 March 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Aman Deep KAUR
Mr Amit Singh

CASE NUMBER:  1812574

DIBP REFERENCE(S):  BCC2016/664484

MEMBER:R. Skaros

DATE:28 March 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the applications for Skilled Independent (Permanent) visas for reconsideration, with the following direction:

· That the first named applicant meets cl.189.215(3) due to the second named applicant (who is a member of her family unit) satisfying PIC 4020 for the purposes of Schedule 2 to the Regulations.

· That the second named applicant meets PIC 4020 for the purposes of cl.189.312 of Schedule 2 to the Regulations.

Statement made on 28 March 2019 at 9:56am

CATCHWORDS
MIGRATION – Skilled Independent (Permanent) (Class SI) visa – Subclass 189 (Skilled Independent) – s 375A certificate – bogus document – matriculation certificate – Departmental verification checks – waiver of requirement – compelling circumstances that affect the interests of Australia – experienced registered nurse – significant skills shortages – increase pressure on a public hospital – satisfaction of identity – documents used to obtain passport – anonymous allegations – alternative name or date of birth – no evidence of alleged criminal history – police clearance certificates – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5, 65
Migration Regulations 1994 (Cth), Schedule 2, cls 189.215, 189.312; Schedule 4, PIC 4020

CASES
Arora v MIBP [2016] FCAFC 35
Batra v MIAC [2013] FCA 274
Kaur v MIBP [2017] FCAFC 184
Plaintiff M64/2015 v MIBP [2015] HCA 50
Trivedi v MIBP [2014] FCAFC 42

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

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 24 April 2018 to refuse to grant the applicants Skilled Independent (Permanent) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 16 February 2016. The delegate refused to grant the visas on the basis that the first named applicant (the applicant) did not satisfy the requirements of cl.189.215(3) of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the delegate was not satisfied that each member of the family unit of the applicant, who is also an applicant for the Subclass 189 visa, met the requirements in Public Interest Criteria 4020 (PIC 4020). Relevantly, the delegate was not satisfied as to the second named applicant’s identity and found that he did not meet PIC 4020(2A) for the purposes of cl.189.312 of Schedule 2 to the Regulations.

3. The applicants provided a copy of the delegate’s decision record with the application for review.

4. The applicants appeared before the Tribunal on 9 October 2018 to give evidence and present arguments. 

5. The applicants were represented in relation to the review by their registered migration agent. The representative attended the hearing.

   s.375A certificate

6. The Department’s file included a certificate and notification of non-disclosure under s.375A of the Act. The certificate, which was in respect of folios 204B, 204A, 193, 126, 94A, 94B, 93, 92 and 11, states that disclosure of information contained in those folios would be contrary to public interest because they reveal confidential Departmental investigative methods used to detect breaches of the law and include information obtained from third parties.

7. At the hearing, the Tribunal provided a copy of the certificate to the applicant and invited submissions as to its validity. The Tribunal received submissions, after the hearing, contending that there was insufficient material disclosed to the applicant upon which they could form a view as to whether the certificate is valid. A request was made for the folios to be disclosed to the applicant.

8. The Tribunal has considered the representative’s submissions but has formed the view that the certificate is valid as it provides a valid ground for public interest immunity. In the circumstances, the Tribunal considers that it is under obligation not to disclose the material to the applicant, subject to procedural fairness provisions. Information in a number of the affected folios was potentially adverse and relevant to the issues in the review. In the interest of justice, using the procedures in s.359AA of the Act, the Tribunal set out the particulars of the adverse information, their relevance to the issues in the review and the consequences if the Tribunal relied on the information, and the applicant was given an opportunity to comment. The Tribunal also notes that some of the information in the relevant folios was favourable and the applicant was informed of that information at the hearing.

9. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. The issue in this review is whether the second named visa applicant, who is also an applicant for the Subclass 189 visa, meets PIC 4020 as required by cl.189.312. 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).

11. 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.

    Evidence before the Tribunal

12. When applying for the visa, the applicants provided a Matriculation Examination Certificate from the Punjab School Education Board (the matriculation certificate) in respect of the second named applicant, which was described in the online application as “School Leaving Certificate – Evidence of Age”.

13. The second named applicant (Mr Amit Singh: DOB 13 November 1990) is the spouse of the first named visa applicant. The parties married in India on 3 November 2012 and travelled to Australia on 19 July 2013. The parties entered Australia as holders of Student visas, Subclass 573, on the basis of the first named applicant’s enrolment in the Master of Nursing/ Master of Public Health, which she successfully completed in November 2014 and December 2015 respectively.

14. Within less than a year of the applicants being in Australia, in May 2014, the Department received allegations from an anonymous source that second named applicant has been involved in identity fraud. It was alleged that the second named applicant’s real name is Arminder Singh, DOB: November 1989, that he travelled to Australia on a false passport to hide his criminal history and that he may have been involved in gang fights and drugs in Italy and India. It stated that he sells drugs to his workmates, that his brother had been charged with murder in the preceding year and that he has been threatening people. It was alleged that the second named applicant has a false Italian passport. It stated that the applicants resided in Sunnybank Hills, QLD.

15. In September 2014 further anonymous allegations were received by the Department stating that the applicant travelled to Italy from India under the name Amit Singh and that his real name is Amrinder Singh. It stated that he travelled to Italy with a passport photo in which he was wearing a turban and that he changed his passport photo when he returned to India. It stated that the applicant travelled to Brisbane using a passport in a false name but with his photo endorsed on it. It stated that he is working at [Employer 1] in [Suburb 1] and that he is selling marijuana to his work friends, and has attempted to obtain opium from Spain. It stated that the first named applicant is studying to become a nurse in Australia. It stated that the second named applicant’s brother has been charged with a criminal offence.

16. The above information was referred to a number of authorities by the Department for investigation. While the investigation report noted a number of minor concerns, for example the use of the email ‘[Email Address 1]’ on the form 80, which suggested that the second named applicant’s date of birth may be 1989 and not 1990, the report ultimately concluded that other than the allegations received, the search and analysis did not uncover any evidence of the second named applicant using/having used an alternative name or date of birth. Information received from the Indian Consulate General in London regarding the issuing of the applicant’s Indian passports whilst he was in Italy indicated that the documents are genuine and unaltered. The Indian Consulate in Sydney also advised that the applicant’s police clearance certificate was properly issued by them.

17. During their investigations, the Department received information from the Department’s overseas post indicating that the second named applicant’s matriculation certificate was non-genuine as the school named on the certificate (SD Senior Secondary School) had advised that the roll number and registration noted on the certificate did not exist on their records. Departmental officers in the overseas post also provided the opinion that a matriculation certificate could be used to obtain a passport in India.

18. On 8 November 2017, the Department wrote to the second named applicant and invited him to comment on the adverse information obtained during the checks, including that he entered Australia on a false name and that his real name is Arminder Singh and that he has provided a bogus document, namely the matriculation certificate, with the application which may have been used to obtain other identity documents, such as a passport. It was indicated on the natural justice letter that the Department may find that the second named applicant does not meet the requirements in PIC 4020(1) and may not be satisfied as to the second named applicant’s identity as required by PIC 4020(2A).

19. In his response, the second named applicant provided a letter to the Department in which he stated that he received coaching for his 10^th grade examination from a private provider and that when he contacted his mother about the certificate she informed him that prior to his admission to the private college they had confirmed with her that they had contact with many schools affiliated with the Education Board and that the exam roll numbers will be issued from the schools they send students to for the examination. He stated that the he did not do well as a student but got tutoring and was accepted at the college and attended an annual exam. He stated that he was 14 years of age when he attended the college. He state that his mother is not educated and they had no idea the certificate given to her was bogus. He stated that if he was aware of this, they would not have submitted the document as it served no purpose in support of their application. He stated that he has never used the certificate to obtain further education and that he moved to Italy in 2006 on the basis of an invitation from his father for a permanent family visa. He stated that his father had resided in Italy as a permanent resident and that he travelled to Italy to commence an apprenticeship as an industrial carpenter after which he was appointed for permanent employment in Italy between 2008 and 2012. He stated that he returned to India in 2012 and married the first named applicant. He travelled to Australia with the first named applicant so she could pursue higher education.

20. He further stated that Amit Singh has been his only name since birth and that he has never been known by any other name. He provided numerous documents which included an identification card and income tax documents from India, Italian driver’s licence, Italian residence permit and wage documents, insurance documents, bank statements from various banks in India, birth certificate issued in November 2005, Indian ID card, copies of various passports and a copy of a family register issued in India all bearing the name Amit Singh, and various affidavits attesting to the second named applicant’s identity as Amit Singh.

21. The delegate, whilst giving some weight to the documents indicating that the applicant has been known as Amit Singh, decided to give more weight to the information received from the overseas post that the Matriculation Certificate was non-genuine and found that this was likely used by the applicant to obtain passports in the claimed identity.

    Review application

22. On review, the Tribunal received further submissions and supporting documents, including a copy of the second named applicant’s initial application for a passport which was obtained under the Right to Information (RTI) Act, India, and issued by the Indian Consulate General in Sydney. The documents, which the Indian Consulate numbered in their cover letter as totalling 30 pages, included the application form and an affidavit from the applicant’s mother dated 14 November 2005 detailing the place and date of birth of the second named applicant, details of her passports and a request for her “minor son Amit Singh” to be issued a passport. The documents also included an issued family Rations Card and Details of Members of the Family certificate, with a family photograph, noting the second named applicant’s claimed name, Amit Singh – 15 years – Son. The documents also included a birth certificate for Amit Singh issued on 12 November 2005 by the local registrar of the District of Nawanshahr, and a School or Class Leaving Certificate indicating that Amit Singh, DOB 13 November 1990, including full details of parents, attended the Dashmesh Public School Saroya, Nawanshahr, and that his name was struck off the roll on 10 September 2002.

23. In the written submissions, the representative provided a detailed history of all the passports issued to the second named applicant. The Tribunal reviewed the information and the passport copies on the Department’s file and is satisfied that the second named applicant’s first passport was issued on 11 February 2006 in the name Amit Singh. He was issued with another passport in the same name in Milan in 2007. He was issued with a further passport in Milan in 2012 which was valid until 28 March 2022. On 9 January 2013 the applicant was issued with a passport in India which is valid until 8 January 2023. Each passport refers to the previously issued passport and the information appeared consistent.

24. It was submitted that the matriculation certificate was not provided as evidence of the applicant’s identity and that his passport and birth certificate were provided as the identity documents, and that it was not relevant to the assessment of the application. It was submitted that the applicants are of good character, have no criminal record in Australia, Italy or India, and that they are hardworking law-abiding citizens.  It was submitted that the first named applicant is a Registered Nurse in Australia, that her skills are in high demand and that she is currently working in a Western Sydney hospital in the surgical field.

    Hearing evidence and discussions

25. The Tribunal took evidence from the applicant in the absence of the second named applicant. She gave evidence that she completed a Bachelor of Nursing in India in 2011. After graduating, she worked at a hospital in India for about a year. She married the second named applicant, Amit Singh, on 3 November 2012. The applicant gave evidence after they married she lived in Amit’s village with his family, his parents and brothers, who had travelled from Italy for the wedding and stayed for two months. She stated that after Amit’s family returned to Italy, Amit stayed with her as she planned to go to an English speaking country, either Canada or Australia, for further studies. She stated that Amit supported her while she prepared for her English tests.

26. The applicant also provided some background about her marriage to the second named applicant. She stated that they have known each other since 2006, when she was 16 years of age, and that Amit was known to her family through his aunt as they were close friends. She stated that they would often meet at family functions. When asked about the second named applicant’s education background, she stated that Amit’s school background was very minimal, that he was an irregular student and not good at studies. She stated that he was not interested in studies as the plan was for him to go overseas to work with his father in Italy.

27. The Tribunal asked the applicant about the second named applicant’s family. She gave evidence that Amit has two younger brothers. The older of the two (Shaminder) lives in Italy and the youngest (Manpreet) lives in India with his aunt and uncle. When asked if Manpreet has ever been involved in or charged with any criminal activity, she indicated no. When asked about the brother living in Italy, she stated that she is not aware of anything adverse about Shaminder.

28. The applicant gave evidence that they initially travelled to Australia via Brisbane airport. They were picked up by a friend and went to the Gold Coast where they stayed for about four days. They relocated to Brisbane and stayed with a friend for a few of days before moving to their own place in Mt Gravatt. The applicant gave evidence that they resided in Brisbane from July 2013 to November 2014 until they moved to Sydney.  While in Brisbane, she completed her post-graduate program and Amit worked as a forklift driver at [Employer 1].

29. The applicant gave evidence that her spouse is not a citizen of Italy but that he holds an Italian residence permit and can undertake unlimited travel to Italy. She denied that her spouse had been known by any other name.

30. The Tribunal took evidence from the second named applicant. When asked about his schooling, he stated that he studied up until grade eight. He travelled to Italy and after completing his apprenticeship for one and a half years qualified as a carpenter.

31. When asked about his family, the second named applicant gave evidence that he has two brothers and that he is the eldest. He gave evidence that his youngest brother, Manpreet, has lived in Italy and India. He gave evidence that Manpreet has been residing in India since 2013 as he looks after the family’s farm. He stated that his family has sugarcane farms and that Manpreet lives with their aunt in India whilst looking after the farms. The Tribunal asked the second named applicant whether Manpreet has been involved in any criminal activity or charged with any crimes, to which he emphatically stated no. He stated that Manpreet does not have any criminal record in India or Italy. When asked if his other brother, Shaminder, had come to the attention of law enforcement authorities or been involved in any unlawful activity, he stated no and added that Shaminder is living with their parents and is still working.

1. When asked about his email accounts, he stated that he uses ‘[Email Address 2]’ and ‘[Email Address 1]. When asked about his date of birth, he stated 13 November 1990. When asked why his email address would have the digits ‘89’, he explained that his wife set up their emails and that her date of birth is 14 January 1989. The applicant stated this was correct.

2. The Tribunal discussed with the second named applicant the documents relating to his identity. The Tribunal noted that while it had copies of all the passports issued in his name, it was concerned that those documents may have been obtained using the matriculation certificate purportedly issued by the Punjab School Education Board Certificate in March 2005. In response, the applicant stated that he has a School Leaving Certificate and birth certificate, which were obtained by his mother when he was 15 years of age and used to obtain his passport because his father, who was living in Italy, wanted the whole family to move to Italy.  

3. The Tribunal noted that the overseas post had indicated that the matriculation certificate could be used to obtain other identity documents, such as a passport and expressed its concern that he may have relied on the matriculation certificate, which the Department found to be a non-genuine document, to obtain other identity documents. In response, the applicant stated that his mother went to the private centre for the matriculation certificate, but for the passport she used his School Leaving Certificate and birth certificate. The applicant explained that he had not needed any identification documents until he was 14 or 15 years old. He stated that in a short period, his mother applied for the birth certificate so he could get the passport to travel to Italy.

4. The representative submitted that the matriculation certificate was not one of the documents provided to obtain the first passport as indicated by the material obtained under the Right to Information, which could be verified by the Indian authorities.

5. The Tribunal discussed with the applicant the requirement in PIC 4020(1), which it noted applies to all members of the family unit, and explained that the information obtained during verification checks of her spouse’s matriculation certificate, suggests that there is evidence that a bogus document has been given in relation to the visa application. In response, the applicant stated that they were not aware that the matriculation certificate was a bogus document. She reiterated that her spouse was not a very good student and that his mother believed that the GMI Learning Centre, from whom the certificate was obtained, had a contract with the school noted on the certificate. The applicant stated that she has a very good education and meets the requirements for the visa and that they had no intention to mislead the Department.  The Tribunal explained to the applicant that it is not necessary to establish that the bogus document is relevant to the criteria for the grant of the visa and that PIC 4020 can still be engaged whether or not she and/or her spouse were aware that the document was non-genuine.  

6. In relation to the adverse information covered by the s.375A certificate, including the allegations about second named applicant being involved in identity fraud and criminal activities and the Department’s investigations regarding the matriculation certificate, as set out in detail above, were put to the applicant using the procedures in s.359AA. The Tribunal explained to the applicant that the information is relevant because it raises concerns about the second named applicant’s identity. It explained that if it relied on the information, together with other information before it, it may not be satisfied as to the secondary applicant’s identity. It explained that the Tribunal may not be satisfied that each member of the family unit satisfies the requirements of PIC 4020 for the purposes of cl.189.215 and may also not be satisfied that the secondary applicant meets the requirements of cl.189.312. The applicant requested additional time to consider her responses and the hearing was accordingly adjourned for about 15 minutes.

7. In her response, the applicant stated that her husband is Amit and she does not know who the other person is. She challenged the allegation that her spouse has been involved in criminal activity and stated that he has received clear police clearance from Italy. In relation to his passport, she stated that the information obtained from the Indian authorities under Right to Information regarding the her spouse’s application for a passport shows the key documents used to obtain his passport and included an affidavit from his mother, his and his family’s details as well as his birth certificate. She stated that the matriculation certificate is not a mandatory document to obtain a passport and that other primary documents have been provided to prove her spouse’s identity.

8. The applicant further stated that within the Punjabi community higher education is not often sought. She stated that she cannot identity anyone in particular and suggested that the allegations may have been directed to her spouse rather than her. She stated that jealousy may be a possible motive for the allegations as they have told many people of their plans to pursue higher education and residence in Australia.

9. The representative submitted that 25% of India’s population does not have a matriculation certificate and they can get passports without that document. It was submitted that the Indian government issued Mr Singh (the second named applicant) a passport and he continues to hold a valid passport in that name. He stated that Mr Singh has also been issued with an Italian residence card and other official documents by Italian authorities. It was submitted that unlike the third party unverified allegations, the documents provided to the Tribunal are authentic and can be verified. The representative stated that the allegations put to the applicants were quite serious and would have been brought to the attention of the Australian Federal Police (AFP) for investigation. He stated that Mr Singh has been issued with a police check from the AFP indicating he has no criminal record.

10. The second named visa applicant gave evidence that his name is Amit Singh and that he has never been known by any other name. He stated that he does not have any criminal history in Italy, India or Australia. He currently works full-time at [Employer 2] as a forklift driver and machine operator and has been working there for nearly four years. He was made a permanent employee after working there for one year. Prior to that, he worked at [Employer 1] in Brisbane for one and a half years. In relation to the person who provided the allegations, Mr Singh stated that it may have been someone from their community who is jealous and does not want them to be here in Australia. He challenged the allegation that he has a criminal history in India and stated that he and the applicant returned to India for a visit in the preceding year without issue. 

11. The Tribunal has carefully considered the relevant evidence before it as follows.

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

12. 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.

13. 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.

14. 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.

15. The second named applicant claims to be Amit Singh, born in Nawanshahr, Punjab, India on 13 November 1990. After carefully considering all of the evidence before it, the Tribunal is satisfied that the second named applicant is who he claims to be. The evidence relating to the issue of identity is the subject of detailed discussions further below.

16. Notwithstanding the Tribunal’s satisfaction as to the second named applicant’s identity, the Tribunal nevertheless considers that the matriculation certificate purportedly issued by the Punjab School Education Board in March 2005 in the second named applicant’s name is a bogus document. Departmental verification checks of the second named applicant’s documents revealed that he did not attend the school named on the certificate, namely the SD Senior Secondary School, who advised the overseas post that the roll and registration numbers on the matriculation certificate do not exist.  

17. The applicants did not dispute the information put to them which indicated that the matriculation certificate is a non-genuine document, but sought to provide an explanation as to how that document was obtained and why they believed it was a genuine document. In his written statement to the Department, the second named applicant stated that the matriculation certificate was obtained by his mother from a private college, whom she believed were affiliated with the Punjab School Education Board, after he attended the college for tutoring and sat the examinations. The Tribunal doubts that the second named applicant sat the secondary school examinations through a private college. At the hearing, the applicant gave evidence that he was not a good student and that he had only attended school up to the eighth grade. He made no mention of attending a private college to sit the secondary school examinations and nor did he provide any credible evidence to substantiate his initial written claim.

18. The Tribunal accepts that the matriculation certificate was obtained by the second named applicant’s mother, as he was a minor at the time his family was arranging his identity documents for the purpose of facilitating his travel to Italy. The Tribunal also accepts the second applicant’s oral evidence that his mother obtained the certificate for the purpose of his travel to Italy, where his father was residing and working as a carpenter. While the applicant denied using the matriculation for further studies, the Tribunal considers it likely that the matriculation certificate was obtained for the purpose of facilitating the second named applicant’s apprenticeship studies in Italy as the Country Education Profile for Italy[1] indicates that persons undertaking a vocational or technical program in Italy must have completed at least lower secondary school education, which is up to the ninth grade. It is plausible that the applicant may not have been aware of the entry requirements for the apprenticeship program as this would have been arranged by his father in Italy.

    [1]

19. While the Tribunal acknowledges the explanations as to how the matriculation certificate was obtained, and is prepared to accept that the applicants believed it was a genuine document and unsuspectingly provided with the application, as noted above, PIC 4020 applies whether or not the document was provided knowingly or unwittingly.

20. The verification checks, to which the Tribunal gives weight, indicates that the matriculation certificate is a fraudulent document. Furthermore, subsequent evidence provided to the Tribunal indicates that the applicant did not attend SD Senior Secondary School and did not complete his secondary school education, as suggested by the matriculation certificate, but had instead attended the Dashmesh Public School, Saroya, Nawanshahr, for half of the eighth grade before being struck off. The Tribunal is satisfied, on the basis of this evidence, that the matriculation certificate is a document that the Tribunal reasonably suspects is counterfeit or has been altered by a person who does not have authority to do so. The matriculation certificate is therefore a bogus document as defined in s.5(b) of the Act.

21. It is not in dispute that the matriculation certificate was provided to the Department as part of the visa application. The Tribunal accordingly finds that there is evidence that the second named applicant has given, or caused to be given to the Department a bogus document in relation to the application for the skilled Subclass 189 visa.  It follows that the second named applicant does not meet PIC 4020(1).

    Has a visa previously been refused on the basis of a failure to satisfy PIC 4020(1)?

22. PIC 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 PIC 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: PIC 4020(2AA). 

23. Neither the applicant nor the second named applicant have been refused a visa in the relevant three year period because of a failure to satisfy PIC 4020(1). Therefore, PIC 4020(2) does not apply.

    Should the requirements of PIC 4020(1) or (2) be waived?

24. The requirements of PIC 4020(1) and (2) may be waived where there are compelling circumstances that affect the interests of Australia, or where there are compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident, or an eligible New Zealand citizen (as defined in r.1.03), that justify the granting of the visa. The decision-maker must first be satisfied that there are such circumstances, then must consider whether to exercise the discretion to waive the requirements, having regard to those circumstances: Kaur v MIBP [2017] FCAFC 184.

25. The expressions ‘compelling circumstances’ and ‘compassionate or compelling circumstances’ are not defined for these purposes. To be compelling, the circumstances must force or drive the decision-maker irresistibly to be satisfied: see Plaintiff M64/2015 v MIBP [2015] HCA 50. The ordinary meaning of ‘compassionate’ relates to feelings of sympathy, sorrow, pity or concern for others.

26. In considering whether the requirements should be waived, the Tribunal has had regard to the submissions and documents relevant to the waiver as follows.

27. The Tribunal has before it a letter of appointment in respect of the applicant by NSW Health Western Sydney Local Health District indicating that the applicant has been offered employment as a Registered Nurse based in Blacktown Hospital. The supporting documents detailing the applicant’s employment history indicate that she has over three and a half years of experience as a registered nurse with NSW Health in the medical/surgical field. At the hearing, the applicant gave evidence that she has been working as a registered nurse in Australia since 2015. She stated that she has dedicated herself to the profession, despite the stress and harm often faced in the course of her work. She stated that she works long shifts, sometimes seven days a week, due to the high demand. She stated that she has served Australian citizens since 2015 and is keen to continue doing so in the future if she is permitted to stay. She stated that she has achieved higher level qualifications and has strong future prospects in the health and medical fields, including conducting research to improve health outcomes, particularly in indigenous communities, as this was the area in which she completed her postgraduate project. She stated that she would like to go on and complete a PhD.

28. After the hearing, the Tribunal received submissions and supporting documents, including a federal government media release in April 2017, referring to the significant shortage of qualified nurses in Australia and the efforts being made to meet the increasing demand for nurses. The Tribunal also received a letter of support from Ms Lam, the Nurse Manager at Blacktown-Mt Druitt Hospitals, in which she states that Ms Kaur’s skills and expertise in providing health care to members of the community is very much respected and needed. Ms Lam stated that Ms Kaur represented NSW Health in an honest, ethical and professional manner at all times and that her commitment to providing health care surpasses all expectations. Ms Lam provided details of the various wards at which Ms Kaur works and the contributions she has made to the hospital to date. Ms Lam stated that the applicant’s skills are in high demand as the hospital is currently on stage 2 of its expansion works, which will include a new emergency department and wards.

29. The Tribunal also received documents indicating the applicants’ support for various charities, including the Smith Family and World Vision. The applicants also provided a statutory declaration from Mr Singh’s relative, Ms Daljeet Kaur, who is an Australian citizen, detailing the close relationship that she and her family had developed with the applicants and the assistance she received from the applicants when she experienced pregnancy related health complications.

30. The Tribunal also received employment documents for Mr Singh, including a reference from Mr [A], the Facilitator of [Employer 2], stating that Amit Singh, who has worked for them since November 2014, is a trustworthy and hard-working employee who has demonstrated respect for all other employees at [Employer 2].

31. The Tribunal has carefully considered the evidence before it, and is satisfied that Ms Kaur’s employment as a qualified and experienced registered nurse with NSW Health in Western Sydney constitutes compelling circumstances that affect the interests of Australia. The evidence before the Tribunal, and particularly the letter from Ms Lam, indicates that the applicant fills an important role with NSW Health in Western Sydney. The Tribunal does not consider this to be a case where the employer will merely be disadvantaged if it loses the employment of Ms Kaur, but considers that the loss of Ms Kaur’s employment, in the circumstances of this case, has a broader public interest as it is likely to increase pressure on a public hospital that is in the process of expansion and will require experienced registered nurses, for which there are projected to be significant skills shortages, to meet an increase in demand in the provision of health care to the community in Western Sydney. For these reasons, the Tribunal is satisfied that there are compelling circumstances affecting the interest of Australia.

32. Having found that there are compelling circumstances affecting the interest of Australia, the Tribunal is satisfied that those circumstances, in this case, justify the granting of the visa.  Therefore the requirements of PIC 4020(1) should be waived.

    Has the second named applicant satisfied the identity requirements?

33. PIC 4020(2A) requires an applicant satisfy the Tribunal as to his or her identity. The Tribunal is satisfied, for the reasons that follow, that the second named applicant is Amit Singh, born on 13 November 1990, as claimed.

1. The concerns regarding the second named applicant’s identity arose because one of the documents provided with the application, namely the matriculation certificate, was found to be non-genuine. The information obtained by the Department indicates that the matriculation certificate is a fraudulent document. This was not disputed by the applicants. What is disputed however is the Department’s finding that other identity documents for the second named applicant, including the passports, were obtained on the basis of the fraudulent matriculation certificate. The delegate made this finding on the basis of an opinion provided by the overseas post that a matriculation certificate can be used to obtain a passport in India.

2. On review, the Tribunal received what it considered to be probative evidence in support of the applicants’ claim that the matriculation certificate had not been used to obtain any identity documents. The evidence included a copy of the passport application and documents made on 30 November 2005. The documents, which had been obtained by the second named applicant under Indian Right to Information legislation, were given to the applicant on 17 July 2018 via the Consulate General of India in Sydney. The letter from the Consulate General stated that the documents enclosed, which totalled 30 pages, were copies of the application and documents submitted to obtain passport [number], which the Tribunal notes was the first passport ever issued to the second named applicant. The documents used to obtain the passport included copies of passports of the second named applicant’s parents, affidavit from the second named applicant’s father, the applicant’s school leaving certificate issued by Dashmesh Public School, birth certificate for the applicant, rations card with a family photograph and register of family document. In the bundle of documents issued by the Consulate General, the stated 30 pages referred to in the accompanying cover letter were accounted for and there was no record of the matriculation certificate having been provided as part of the passport application.

3. The Tribunal further notes that passport [number], issued on 11 February 2006 in the name of Amit Singh (DOB: 13 November 1990), was issued to the second named applicant when he was 15 years of age and there is no probative evidence before the Tribunal which indicates that the applicant had, prior to that, been known by any other name.

4. The allegations received by the Department about the second named applicant being Arminder Singh, born in November 1989, are unsubstantiated. Information on the Department’s file indicates that despite investigations into allegations of possible identity fraud by the second named applicant, no evidence was found of the second named applicant using or having used an alternative name or date of birth.

5. The allegations that the second named applicant changed his name to conceal his and his family’s criminal history are also unsubstantiated. There is no evidence before the Tribunal to indicate that the second named applicant or any members of his family have a criminal history or have been involved in any criminal activity.  Furthermore, the second named applicant has provided police clearance certificates from Italy, India and Australia indicating that he has no criminal record in any of these countries.

6. The Tribunal has considered the Department’s concern regarding the second named applicant using an email which included ‘89’, but is satisfied with the applicants’ explanation at the hearing that this refers to the applicant’s year of birth, as she had set up their email accounts. 

7. Having considered the documents provided relating to the second named applicant’s identity, including copies of the Indian passports issued to him, his school leaving certificate from Dashmesh Public School, the family’s ration document, details of family members document, Italian residence card, Italian identification documents, licence and employment documents, and given the absence of any probative evidence of the second named applicant being known by any other name, the Tribunal is satisfied that the applicant is who he claims to be.

8. The Tribunal is accordingly satisfied as to the second named applicant’s identity. Therefore, the second named applicant meets PIC 4020(2A).

   Has a visa previously been refused on the basis of a failure to satisfy PIC 4020(2A)?

9. PIC 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 PIC 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: PIC 4020(2BA).

10. The Tribunal is satisfied that neither the applicant nor any members of the family unit have been refused a visa in the relevant 10 year period. Therefore PIC 4020(2B) does not apply.

    Conclusions

11. On the basis of the above, the Tribunal finds that the second named applicant satisfied PIC 4020 for the purposes of cl.189.312. As the second named applicant is a member of the first named applicant’s family unit who is an applicant for the visa, the Tribunal also finds that the first named applicant satisfies cl.189.215(3) due to the second named applicant satisfying PIC 4020.

    DECISION

12. The Tribunal remits the applications for Skilled Independent (Permanent) visas for reconsideration, with the direction that:

    ·the first named applicant meets cl.189.215(3) due to the second named applicant (who is a member of her family unit) satisfying PIC 4020 for the purposes of Schedule 2 to the Regulations.

    ·the second named applicant meets PIC 4020 for the purposes of cl.189.312 of Schedule 2 to the Regulations.

    R. Skaros
    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. 

    …