Kular (Migration)

[2021] AATA 4274

Kular (Migration) [2021] AATA 4274 (19 October 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Guljinder Kaur Kular
Ms Sahajpreet Kaur Kular
Mr Tarlochan Singh Kular

CASE NUMBER:  1833750

HOME AFFAIRS REFERENCE(S):          CLF2016/85974

MEMBER:Stephen Conwell

DATE:19 October 2021

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicants Other Family (Residence) (Class BU) visas.

Statement made on 19 October 2021 at 4:11pm

CATCHWORDS

MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 835 (Remaining Relative visa) – applicant has given or caused to be given a bogus document – applicant did not meet the criteria in PIC 4020(1) – initial and second death certificates were non-genuine documents –no compelling or compassionate circumstance – requirements of PIC 4020(1) should not be waived – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5, 65

Migration Regulations 1994, rr 1.03,1.15, Schedule 2, cls 835.212, 835.223

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

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 Home Affairs on 8 November 2018 to refuse to grant the applicants Other Family (Residence) (Class BU) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants applied for the visa on 7 November 2016. At that time, Class BU contained three subclasses, Subclass 835 (remaining relative); Subclass 836 (Carer) and Subclass 838 (Aged Dependent Relative). In the present case, the applicants are seeking to satisfy the criteria for the grant of a Subclass 835 visa which are set out in Part 835 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). Relevantly to this matter, the primary criteria to be met include cl 835.223.

3. The delegate refused to grant the visas on the basis that cl 835.223 was not met because it was determined that the applicant has given or caused to be given a bogus document within the meaning of section 5(1) of the Act. Therefore the delegate was not satisfied that the applicant met Public Interest Criterion (PIC) 4020, subclause 4020(1).

4. The hearing was held during the coronavirus (COVID-19) pandemic. Having regard to the nature of the review, and the objectives of the Tribunal to provide a mechanism of review that is just, fair, economical and quick, the Tribunal determined that it was appropriate that this review be conducted by way of video conference. The Tribunal exercised its discretion to hold the hearing by video conference. The applicants raised no objections as to conducting the hearing in this manner.

5. The first- and third-named applicants and their sponsor, Mr DSK, participated in the hearing by video conference on 12 October 2021 to give evidence and present arguments. 

6. The first-named applicant (the applicant) provided a copy of the delegate’s decision to the Tribunal for the purposes of the review.

7. The applicants were represented in relation to the review by their registered migration agent (representative), who participated in the video hearing. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages. The interpreter attended the hearing by telephone.

8. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   Background

9. The applicants are citizens of India. In June 2017, the applicants last entered Australia as  holders of Visitor visas and have remained onshore since then.

10. The Subclass 835 (remaining relative) application was made on the basis that the applicant is the remaining relative (as defined) of her brother, the sponsor, who is an Australian citizen. The third-named applicant, Mr Tarlochan Singh Kular, is the applicant’s husband; the  second-named applicant is their daughter. The application of the second- and third-named visa applicants are based on they being members of the family unit of a person who meets the primary criteria.

11. As part of the documentation in support of the application, the applicant was required to provide details of the identity and country of residence of all of her family members and the family members of her husband, Mr Kular. In forms provided with the application, the only family members of Mr Kular who were not also secondary applicants were his parents – his father, Darshan Singh, born 7July, 1950 and his mother, Jagdish Kaur, born 17 March 1949, both of whom he declared as being deceased. 

12. Death certificates of Mr Kular’s parents were submitted to the Department in support of the application. The death certificate pertaining to his mother, Mrs Jagdish Kaur recorded that she died on 7 January 2004 in the sub-district of Shahkot, in the State of Punjab. The original death certificate and accompanying English translation (Department file fols.41/42) formed part of the application. Departmental integrity checks raised a suspicion that this document might be 'non-genuine'.

13. On 18 May 2018, the Department asked the applicant to provide comment within 28 days on the suspected 'non-genuine' information submitted. She was also invited to address if she believed there were any compelling circumstances affecting the interests of Australia, or compassionate or compelling circumstances affecting the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen, to justify the waiver of any or all of PIC 4020(1) and (2) to allow for the granting of the visa.

14. On 20 May 2018, the applicant's sponsor replied by email to the Department stating in part:

    I didn't noticed (sic) that there is any mistake in that document I just attached with the application with translated copy. I will apply for re issue of that document as soon as it is possible and will forward it to you once I received it. It will take approx. 1 to 2 weeks.

15. On 15 June 2018, the applicant's sponsor again emailed the Department, attaching a new death certificate in respect of Mrs Jagdish Kaur dated 13 June 2018, bearing registration number 00025242 (Department file fol.136). The email stated,

    I attached (sic) the copy of death certificate of my brother in law's mother. Could you plz let me know once you received it. Thanks

16. In the decision record, the delegate notes that the applicant herself had not provided any comments in response to the Department's letter of 18 May 2018. Moreover, she had not submitted any evidence to refute the Department's claim that the initial death certificate pertaining to her spouse's mother, submitted with the lodgement of their application, was a bogus document.  

17. Departmental integrity checks subsequently found that this ‘second’ death certificate (registration number 00025242 (Department file fol.136) to be a bogus document. Taking these matters into account, the delegate found that the applicant had provided information that was false and misleading in a material particular relevant to the grant of the visa. Therefore, the applicant did not meet the criteria in PIC 4020(1). The delegate noted that no submissions had been made as to why that criteria should be waived pursuant to PIC 4020(4). Accordingly, the delegate found the applicant did not meet the requirements of PIC 4020 and therefore did not meet the criteria in cl.835.223.

18. The delegate then went on to consider whether the applicant met the definition of the ‘remaining relative’ to satisfy the criteria in cl.835.212. The delegate concluded that the applicant did not meet the definition of a remaining relative and therefore did not meet the criteria in cl.835.212. As the applicant did not meet the criteria in cl.835.223, the delegate refused the applications for the Subclass 835 Remaining Relative visas and also imposed the three year exclusion period associated with the criteria of PIC 4020 not being satisfied.

19. The delegate also deemed the application is to be a valid application for an Aged Dependent Relative (Subclass 838) visa. Since the applicant made no claims and presented no evidence relevant to such an application, the delegate found that the applicant did not meet the requirements for the grant of an Aged Dependent Relative (Subclass 838) visa.

    ISSUE

20. The issue in this review is whether the applicant meet the criteria for a Subclass 835 Other Family visa.  This requires consideration of whether the applicant meets PIC 4020 as required by cl.835.223 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 three 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).

21. 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.

    CONSIDERATION OF CLAIMS AND EVIDENCE

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

22. 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.

23. 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.

24. 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.

25. By letter dated 13 August 2021, the Tribunal wrote to the applicant, via email of 17 August 2021 to the representative, inviting her to provide comment on the suspected ‘non-genuine’ information supplied to the Department. She was also invited to specify whether there were any compelling circumstances to justify the waiver of any or all of PIC 4020(1) and (2).

26. In her written submission to the Tribunal dated 24 August 2021, the applicant states,

    1.   My brother had sponsored me under 5/C 835 Remaining  Relative Visa.

    2.   As part of the application, the department demanded my mother-in-law’s death certificate from India. As we do not have any family members left in India, my husband contacted a friend in India by the name of Ranjeet Singh to contact the local government office and obtain a copy of my mother-in-law's death certificate.

    3.   Mr. Ranjeet Singh further contacted an agent in local government office in Distt Jalandhar to obtain a copy of the certificate, who provided a certificate bearing number 00025242.

    4.   My sponsor submitted the same certificate to the department, not knowing that same was non-genuine.

    5.   Thereafter, the department undertook checks and was satisfied that my mother-in-law was deceased, however the certificate was not genuine.

    6.   After receiving the decision from the department, we undertook our own check and enquiries and were able to obtain a copy of the genuine death certificate bearing number 1348531 (Annex-1)

    7.   It was an unintentional error on our part as we had obtained the certificate through a third party and had no means to check the authenticity.

    8.   Department 's internal file notes confirm that the department was satisfied that my mother-in-law was deceased.

    9.   As PIC 4020 was designed to render applicants responsible for the supply of fraudulent and purposely untrue material, therefore un­intentional errors should not the focus of attention. We request the Tribunal to make a distinction between the unintentional giving of incorrect information and those who have purposely provided what they know to be incorrect information.

    …   

    12.   Based on  … [Trivedi v MIBP [2014] FCAFC 42], it is our understanding that an element of fraud or deception is necessary in order to attract the application of PIC 4020. My sponsor and I am very apologetic and remorsefuI.

27. Accompanying the applicant’s written submission (and referred to in paragraph 6 therein) was a ‘third’ death certificate bearing number 1348531, which the applicant claims is the genuine death certificate.

28. The applicant’s written submission succinctly summarises the applicants’ response to the delegate’s finding that the application did not meet the criteria in PIC 4020(1). The applicant’s testimony and that of her husband, the third-named applicant, supported, though did not expand upon, the claims made in the written submission. Similarly, the sponsor, when invited by the Tribunal, chose to rely upon the written submission and offered no further comments.

29. Although it is not apparent in either the decision record or in the written submission, the representative informed the Tribunal that the original death certificate pertaining to Mrs Jagdish Kaur which formed part of the application (Department file fol.42) had been rejected because it had evidence of ‘correction fluid’ marks upon the document. For that reason, the Department issued its letter of 18 May 2018 inviting the applicant’s response within 28 days. Be that as it may, the delegate then went on to consider the ‘second’ death certificate (registration number 00025242) submitted by the sponsor via his email of 15 June 2018. As previously noted, Departmental integrity checks found this ‘second’ death certificate to be a bogus document.

30. As set out in her written submission, the applicant contends that as the family have no other relatives in India, her husband contacted a friend living there (Mr Ranjeet Singh) to request a copy of her mother-in-law’s death certificate from the local government office. Mr Ranjeet Singh in turn contacted an agent in the local government office who provided him with a copy of Mrs Jagdish Kaur’s death certificate. The applicant contends that neither she nor Mr Ranjeet Singh, nor the sponsor or her husband had any idea that this the death certificate (registration number 00025242) was not genuine.

31. An affidavit by Mr Ranjeet Singh dated 27 August 2021 states,

    1)   Mr. Tarlochan Singh Kular who is currently a resident of Australia, is on old friend of mine and I have known him since by birth.

    2)   He contacted me in 05-06-2018 and asked my help in contacting the local government  office  to  obtain  a  copy  of  his  mother's  death certificate.

    3)   I approached an agent by the name of Lakhwinder in  local government office in Distt Jalandhar to obtain a copy of  the certificate, who provided a certificate bearing number 00025242.

    4)   I forwarded the same certificate to my friend Mr. Tarlochan Singh Kular.

    5)    It was later found out that the certificate that was provided by the agent was not genuine and I tried to locate this agent but was not traceable.

32. The sponsor states that he simply forwarded the document (registration number 00025242) to the Department by email of 15 June 2018. Departmental integrity checks concluded that this document was also 'non-genuine'.

33. The applicant does not dispute the Department’s findings that both the initial and second death certificates of Mrs Jagdish Kaur were non-genuine documents. She does refute the suggestion that she or her husband knowingly tried to deceive the Department or misrepresent their circumstances in any way. The applicant contends that the evidence establishes Mrs Jagdish Kaur is deceased and that the information recorded on the death certificates is correct.  The applicant contends the necessary element of fraud or deception by some person, as discussed in Trivedi v MIBP  is not evident and as such PIC 4020 cannot appropriately be engaged.

34. The Tribunal acknowledges the submissions made by the applicant and her representative and has proceeded to consider the issues raised, along with the provisions of PIC 4020.

35. The delegate determined that false and misleading information in a material particular was provided with the visa application, in the form of the death certificate of Mrs Jagdish Kaur.  This finding was significantly influenced by the results of Departmental integrity enquiries in India, from which it was determined that both the initial and second death certificates (registration number 00025242) of Mrs Jagdish Kaur were non-genuine.

36. The Tribunal has reviewed the evidence before it and has carefully considered the oral testimony of the parties and assessed their credibility.  On balance, the Tribunal find the applicant’s evidence unpersuasive. The applicant claims that neither she nor any other party, including Mr Ranjeet Singh, had any idea that these documents might be non-genuine; the claim is that the applicant had simply submitted what the parties believed to be genuine documents, and they had no reason to suspect otherwise.

37. The Tribunal is of the view that the applicant had the responsibility of checking the application before it was submitted on her behalf – even more so, to ensure the authenticity of the death certificate obtained by Mr Ranjeet Singh, given that the initial document had not been accepted by the Department. The Tribunal finds that the applicant did not take adequate steps to ensure the information that was submitted on her behalf, both initially and then in response to the Department’s request of 18 May 2018, was correct.

38. Further, the Tribunal considers that PIC 4020 applies whether or not the applicant was actively engaged in the fraud and whether or not she was aware of it. The applicant does not dispute that both the initial and then the second death certificate submitted on her behalf (registration number 00025242) were non-genuine documents. Her response to these findings in the delegate’s decision, was apparently to make direct contact with the relevant authorities in India to obtain a third iteration of the death certificate (registration number 1348531), claiming this to be the ‘genuine’ document.  

1. The Tribunal finds the applicant has not satisfactorily explained how the first two documents submitted were both found to be non-genuine. The affidavit by Mr Ranjeet Singh does nothing to allay the Tribunal’s concerns, particularly since he states that the local official whom he claims to have contacted, can no longer be found. Thus, PIC 4020 applies in relation to that  information and document irrespective of the applicant’s personal involvement in the fraud. 

2. The Tribunal finds that the applicant had given, or caused to be given, a bogus document or information that was false or misleading in relation to her mother-in-law’s death. The Tribunal finds the information was relevant to a criterion and was also false or misleading in a material particular. Further, the Tribunal finds that the Mrs Jagdish Kaur’s death certificates were bogus documents on the basis of findings by Departmental integrity checks.

3. In Faruque v MIBP the Federal Court addressed the test of ‘purposeful falsity’ in PIC 4020,

   It is important to recall that the Tribunal did not have to be satisfied that the bank statement was purposely false or contained purposely false or misleading information.  It had to be satisfied that there was no evidence to the contrary. [1]

   [1] [ 2015] FCA 1198  at [26]

4. On the basis of Departmental integrity checks, the delegate found that the applicant had given, or caused to be given, to the Minister or an officer, a bogus document and information that was false or misleading in a material particular in relation to the visa application. The Tribunal is satisfied that there is no evidence to the contrary. Therefore, the applicant does not meet PIC 4020(1).

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

5. 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.

6. 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.

7. For the following reasons, the Tribunal is not satisfied that the requirements should be waived.

8. The applicant and the sponsor state that they had no involvement in the provision of a bogus document and false or misleading information. This issue has been addressed above and the Tribunal has formed the view that the applicant had not taken adequate steps to ensure her application was accurate, particularly since the Department had offered her an opportunity to respond to its concerns. In such circumstances, the Tribunal does not consider that the provision of false or misleading information and a bogus document via a third party (Mr Ranjeet Singh) constitutes a compelling or a compassionate circumstance affecting the interests of another person or a compelling circumstance affecting the interests of Australia to justify the grant of the visa.

9. In her written submission, the applicant made the following claims to be compelling reasons to waive PIC 4020.

   My sponsor is my brother and is my only remaining relative. He us (sic) a citizen of Australia. We do not have any other relatives . If  my  visa  is refused,  the  interests  of my  brother  will be severely affected as I will be placed on a 3-year bar and would not be able to apply for any visa. Also, due to an infinite COVID-19 travel restrictions in place, my brother will not be allowed to travel out of Australia.

   My daughter was 4 years when she came to Australia and now she is 10. She goes to Craigieburn Primary School and is in 4th Grade. She is very attached to her school, friends, my brother and his family and overall life in Australia. It will be extremely difficult for her to sever all ties and leave. She will be unable to adjust in our home country India as most of her formative years were spent in Australia.

10. The Tribunal notes that the applicant and her husband remain on Bridging visas without work rights. Their application for the removal of this work restriction was denied by decision of 27 November 2017. There is no evidence before the Tribunal that there are compelling circumstances that affect the interests of Australia.

11. The Tribunal accepts the applicant’s evidence about why she wishes to stay in Australia and maintain her current circumstances. Further, the Tribunal accepts she and her brother (an Australian citizen) may find it emotionally difficult being separated.  However the Tribunal does not consider this to be a compelling reason to waive PIC 4020.

12. The Tribunal accepts that the applicant’s daughter, the second-named visa applicant, will have some attachment to her school and to the life she has led in Australia these past few years. However, the Tribunal does not consider this attachment to be a compelling reason to waive PIC 4020, and at any rate the second-named visa applicant is not an Australian citizen, an Australian permanent resident, or an eligible New Zealand citizen.

13. The Tribunal has considered the applicant’s concern about COVID-19 and its impact on international travel. Whilst COVID-19 is a worldwide phenomenon, the Tribunal accepts the pandemic is playing out differently in different countries, although the situation in each country seems to be in a continual state of flux.  Moreover, there were no submissions made or evidence tendered which suggests that she or the other two applicants are particularly vulnerable or in poor health or are prevented for some other reason from returning to India.  Taking into account the applicant’s particular circumstances, the Tribunal is not satisfied the public health situation in India is a compelling reason to waive PIC 4020.

14. The Tribunal is aware that the Department has provided advice on its website for those applicants who may have difficulties in returning to their country of origin and has indicated it will take those matters into consideration in any visa application (including Bridging visas).

    Conclusion

15. The Tribunal has considered the totality of the applicant’s circumstances. The Tribunal is not satisfied there are compelling circumstances that affect the interests of Australia, or that  there are compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen, that justify the granting of the visa. Therefore, the requirements of PIC 4020(1) should not be waived.

16. On the basis of the above, the applicant does not satisfy PIC 4020 for the purposes of cl.835.223.

    DECISION

17. The Tribunal affirms the decision not to grant the applicants Other Family (Residence) (Class BU) visas.

    Stephen Conwell
    Member

    ATTACHMENT - Extracts from the Migration Regulations 1994

    1.15     Remaining relative

    (1)An applicant for a visa is a remaining relative of another person who is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen if the applicant satisfies the Minister that:

    (a)the other person is a parent, brother, sister, step-brother or step-sister of the applicant; and

    (b)the other person is usually resident in Australia; and

    (c)the applicant, and the applicant’s spouse or de facto partner (if any), have no near relatives other than near relatives who are:

    (i)usually resident in Australia; and

    (ii)Australian citizens, Australian permanent residents or eligible New Zealand citizens; and

    (d)if the applicant is a child who:

    (i) has not turned 18; and

    (ii) has been adopted by an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen (the adoptive parent) while overseas:

    at the time of making the application, the adoptive parent has been residing overseas for a period of at least 12 months.

    (2)In this regulation:

    near relative, in relation to an applicant, means a person who is:

    (a)a parent, brother, sister, step-brother or step-sister of the applicant or of the applicant’s spouse or de facto partner (if any); or

    (b)a child (including a step-child) of the applicant or of the applicant’s spouse or de facto partner (if  any), being a child who:

    (i)has turned 18 and is not a dependent child of the applicant or of the applicant’s spouse or de facto partner (if any); or

    (ii)has not turned 18 and is not wholly or substantially in the daily care and control of the applicant or of the applicant’s spouse or de facto partner (if any).