Kumar (Migration)

[2021] AATA 2305

Kumar (Migration) [2021] AATA 2305 (6 April 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Krishan Kumar

CASE NUMBER:  1726839

DIBP REFERENCE(S):  CLF2017/35704

MEMBER:Kira Raif

DATE:6 April 2021

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a Other Family (Residence) (Class BU) visa.

Statement made on 06 April 2021 at 5:29pm

CATCHWORDS

MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 835 (Remaining Relative visa) – applicant had given false information in relation to family composition –father’s death certificate was a bogus document – sponsor’s mental health –no compelling or a compassionate circumstance – requirements of PIC 4020(1)should not be waived – decision under review affirmed

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, Schedule 2, cl 835.223, Public Interest Criterion (PIC) 4020

CASES
Arora v MIBP [2016] FCAFC 35
Batra v MIAC [2013] FCA 274
Plaintiff M64/2015 v MIBP [2015] HCA 50
Kaur v MIBP [2017] FCAFC 184
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 16 October 2017 to refuse to grant the applicant a Other Family (Residence) (Class BU) visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant is a national of India born in July 1987. He applied for the visa on 11 May 2017. The delegate refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl.835.223 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the delegate found that the applicant did not meet Public Interest Criterion (PIC) 4020. The applicant seeks review of the delegate’s decision.

3. The Tribunal received the applicant’s written submissions at the commencement of the hearing. The Tribunal considers such late provision of evidence utterly unhelpful.

4. The applicant appeared before the Tribunal on 6 April 2021 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s brother, Mr Lakhanpal. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   Relevant law

5. The issue in this review is whether the visa applicant meets Public Interest Criterion 4020 (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 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 applicant provided to the Tribunal a copy of the primary decision record. It indicates that  the applicant had previously been granted a Student visa, which he held at the time the present application was made and therefore in the 12 months prior to the present application being made. In his Student visa application, the applicant stated that his paternal grandfather was Mr Jeet Ram and he would be providing financial support to the applicant. The applicant presented an affidavit from Mr Jeet Ram who referred to the applicant as his grandson and undertook to provide financial support to the applicant. The applicant presented with his Student visa application a death certificate for his father Ashwani Lakhanpal and that document recorded Ashwani Lakhanpal’s father as Jeet Ram.

11. In the present application the applicant stated that his father is Ashwani Lakhanpal and the death certificate for his father refers to the applicant’s grandfather as Ved Parkash, not Jeet Ram. The primary decision record indicates that verification was undertaken of the death records relating to Ashwani Lakhanpal which were provided with the present application and with the Student visa. It was determined that the death certificate provided with the Student visa application was found to be counterfeit while the death certificate recording Ved Parkash as the father of Ashwani Lakhanpal was found to be a genuine document. The delegate concluded that the applicant provided a bogus document and false or misleading information in relation to his Student visa.

12. In oral evidence, the applicant confirmed that he held a Student visa in the 12 months before the present applicant was made. The Tribunal so finds.

13. In his declaration of 6 April 2021 and oral evidence to the Tribunal the applicant stated that when he was in India, he had provided a number of genuine documents to his Indian agent. He does not know how the grandfather’s name was changed and he learned about it when his present visa was refused and he was shocked. The applicant states that he had sufficient funds to support his study in Australia and there was no need for him to falsify documents. The applicant confirms that his grandfather’s name is Ved Parkash and not Jeet Ram.

14. The Tribunal find the applicant’s evidence unpersuasive. The applicant states that the agent questioned him about the financial affairs and he could have presented financial records from another relative. If that information is true, it would have made little sense for the agent to make an effort to falsify information and documents. More significantly, the Tribunal is of the view that the applicant had the responsibility of checking his application before it was submitted on his behalf. The applicant states that the agent did not show him any papers but in the Tribunal’s view, the applicant was under an obligation to actively seek that information. He had an agency agreement with the agent, he was paying a fee to the agent and the Tribunal considers that the applicant had the right and the opportunity to see the documents prepared by the agent. The applicant states that he did not ask the agent to show him the documents and the Tribunal finds that the applicant did not take adequate steps to ensure the information that was submitted on his behalf was correct.

15. Further, the Tribunal considers that PIC 4020 applies whether or not the applicant was actively engaged in the fraud and whether or not he was aware of it. The applicant concedes that there was fraud in relation to his Student visa application because the name of his grandfather was incorrectly identified in the application and his father’s death certificate, even though he claims the false information and bogus document was arranged by the agent and not himself. Thus, PIC 4020 applies in relation to that  information and document irrespective of the applicant’s personal involvement in the fraud.  

16. The Tribunal finds that the applicant had given, or caused to be given, information that was false or misleading in relation to his family composition (the name of his grandfather). That information was relevant in determining the applicant’s identity, for the purpose of PIC 4020(2A). The Tribunal finds that information was false or misleading in a material particular. Further, the applicant’s evidence in his Student visa application is that his grandfather Jeet Ram would provide him with financial support. That information was not true because Jeet Ram was not the applicant’s grandfather and the applicant’s evidence to the Tribunal is that  other relatives had provided him financial support. That information was relevant to assessing whether the applicant had the financial capacity to undertake study in Australia and pay his living expenses (cl. 500.214). 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 father’s death certificate was a bogus document because it identified the wrong person as the father’s father.

17. The Tribunal finds that there is evidence 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 held in the 12 months before the visa application was made. Therefore, the applicant does not meet PIC 4020(1).

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

18. 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.

19. 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.

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

21. In oral evidence, the applicant states that his parents died many years ago and he and his brother were brought up by grandparents and always shared a close bond and they continue to have a close relationship and a strong bond, particularly as they have no close relatives. The applicant describes that he and his brother use the same bedroom now that they live together and share everything and they are very close. The applicant states that his brother wants him to settle before he gets married and he feels he has hurt his brother. The applicant states that he feels he has hurt his brother. The same evidence was given by the applicant’s brother.

22. The Tribunal is prepared to accept that  the applicant and his brother have a close bond, however, the Tribunal has formed the view that this close relationship can exist (and has existed) irrespective of their living arrangements or physical proximity and can continue to exist whether or not the applicant has an Australian visa and whether or not he resides in Australia.

23. The applicant’s evidence to the Tribunal is that his brother migrated to Australia around 2007 and since that  time he visited India once in 2017 following the death of their father. The applicant states that they had frequent contact but not the face to face interactions. The applicant also told the Tribunal that after his arrived in Australia around February 2017, he was living with his partner in Queensland and his brother was living in Melbourne and they did not visit each other or see each other until he travelled to Melbourne around June 2017. That is, despite their closeness, it has been some months before the brothers saw each other in person even when living in the same country.

24. The Tribunal is prepared to accept that there is a strong bond between the applicant and his brother in Australia. However, the applicant’s and his brother’s evidence is that such a bond existed despite the absence of in-person contact for around ten years between 2007 and 2017. In that period, the sponsor appears to have made very little effort to see or be with the applicant and even after the applicant’s entry to Australia it has been a few months before they saw each other in person. In such circumstances, the Tribunal does not accept that the applicant and his brother need the physical proximity to maintain their relationship. The Tribunal finds that a close relationship between them may exist whether or not the applicant resides in Australia. The Tribunal acknowledges that the two brothers may have developed a closer relationship since the applicant has moved to live with his brother in late 2017 but given their past history, the Tribunal is of the view, they can maintain an effective relationship without the close physical proximity, as they did in the past.

25. The applicant described to the Tribunal their living arrangements, stating that he and his brother share a bedroom and everything, help each other with domestic responsibilities and look after each other. The Tribunal accepts that evidence but there is nothing before the Tribunal indicate that they are not capable for any reason of independent living and the applicant does not claim that to be the case.

26. The Tribunal is also mindful that both the applicant and his brother may wish to marry in the future and have children or seek employment opportunities elsewhere and they may not always have the possibility of living in the same household. In the Tribunal’s view, there is a real possibility that both the applicant and his brother will move on with their lives and there may be events or circumstances that will lead to them not being together. The applicant concedes that they are now taking advantage of being bachelors but such circumstances may not always continue. The Tribunal does not consider that either the applicant or his brother will be unable to cope with such changed circumstances in the future or that they will experience any hardship as a result. It seems the applicant is cognisant that his present living arrangements with his brother cannot continue forever.

27. The Tribunal has also considered the sponsor’s mental health. The applicant claims, essentially, that his brother suffers from depression due to the possibility of their separation and that his brother needs his help and support. Shortly before the commencement of the hearing the applicant provided to the Tribunal a medical report relating to Mr Lakhanpal, issued on 2 April 2021. The report indicates that Mr Lakhanpal attended five sessions seeking assistance to better manage his mental health. The reports states that “[Mr Lakhanpal] reports he is experiencing depressed mood, insomnia, anhedonia, low energy, low motivation, poor concentration, and weight loss due to loss of appetite. Arjun reports he has not been able to work his usual job’. It is stated that the source of poor mental health is the prospect of not having the applicant reunited with him in Australia and it refers to a preliminary diagnosis of very severe major depressive disorder with anxious issues.

28. The Tribunal finds that report problematic. Firstly, it fails to indicate what testing, if any, may have been conducted in relation to Mr Lakhanpal and appears to rely entirely to the self-reported symptoms which, in the Tribunal’s view can be unreliable, given the brother’s interest in the grant of the visa.

29. Secondly, the Tribunal has considerable concerns about the timing of this report. The report is dated shortly before the applicant was due to attend the hearing and the applicant has not presented any evidence that his brother sought any help from health professionals earlier. (Mr Lakhanpal  told the Tribunal he did see a GP a few years ago and was prescribed anti-depressants but the applicant made no mention of that situation so from the applicant’s perspective, his brother’s condition arose shortly before the hearing was scheduled to take place.) The Tribunal notes that the applicant was refused the visa by the delegate in October 2017, some three and a half years ago, so from that time there was at least a possibility that the applicant may not be granted the visa and may be required to leave Australia, which is what the applicant claims causes his brother to be depressed. Yet, there is no medical or otherwise probative evidence that Mr Lakhanpal was affected by that prospect until the time the applicant was due to attend the Tribunal hearing. The applicant’s oral evidence to the Tribunal is that his brother only saw the psychologist after he received the invitation to attend the Tribunal hearing and not at any time previously. When asked why his brother was unaffected when his visa application was refused in 2017, the applicant explained that they believed he could provide an explanation and get the visa and “everything would be fine”. The applicant states that he travelled to India to speak with the agent who prepared the earlier application but could not locate the agent and that is when they realised there was a possibility that the visa would not be granted. At that time his brother became worried and upset and depressed and even had to quit his job. The Tribunal notes that the applicant’s written declaration of 4 April 2021 is somewhat different as the applicant states that shortly after the visa refusal, he travelled to India but could not locate the agent. Whenever that trip took place, the Tribunal does not accept that it was only after the applicant was invited to attend the Tribunal hearing that he and his brother became cognisant of the possibility that the visa may not be granted. In the Tribunal’s view, that possibility was clearly obvious when the visa was initially refused in late 2017. The fact that on the applicant’s evidence, Mr Lakhanpal did not see a health professional then but only saw a psychologist once the hearing invitation was issued suggests that he did so for the purpose of assisting the applicant with the visa process. In such circumstances, the Tribunal considers the brother’s engagement with the psychologist to be self-serving and purely for the purpose of assisting the applicant with this visa application. As such, the Tribunal considers the self-reporting symptoms unreliable and does not accept that evidence. The Tribunal would have placed greater weight on the professional opinion that was based on independent testing or assessment, rather than on self-reporting.

1. Thirdly, the Tribunal is mindful that the report does not contain crucial information that would have supported the applicant’s claims. Thus, it is notable that the psychologist who prepared the report was either unable or unwilling to provide a determinative diagnosis despite the multiple visits. Importantly, and contrary to the submission from the applicant’s representative, the psychologist’s report does not state that the brother’s condition requires the ongoing care and emotional support from the applicant. The report does not indicate that  the physical presence of the applicant in Australia would assist in improving his brother’s condition or maintaining his good health. The absence of such determination by a health professional is, in the Tribunal’s view, significant. 

2. Neither does the report outline any treatment prescribed. The report does not state that the brother’s condition would deteriorate, should the applicant not be granted the visa. It simply refers to the condition being caused by the brother’s concern about the separation. It is not apparent from this report that  the psychologist was aware of the family’s circumstances, the previous periods of separation and the nature of the relationship between the applicant and his brother. It is not apparent from this report that  these matters were considered by the psychologist in assessing or treating Mr Lakhanpal.

3. The Tribunal acknowledges the evidence in the psychological report but for the reasons stated above, considers it inadequate and unhelpful. Although the report appears to suggest that the brother’s claimed poor mental health is caused by his concern about the separation from the applicant, the Tribunal does not consider this report supports any claim by the applicant or the sponsor that the sponsor’s condition would be adversely affected unless the applicant is permitted to remain in Australia.

4. The Tribunal questioned the applicant about his brother’s treatment. The Tribunal found the applicant’s evidence vague and uninformative. When asked what his brother’s treatment has been, the applicant states that his brother needs the care of the family and to look after himself and not to take too much stress. The Tribunal finds these statements vague and demonstrating little understanding of the brother’s claimed condition or needs. When asked about any medication or treatment, the applicant told the Tribunal that his brother takes herbal pills which help him relax and sleep better and he also takes vitamins but he does not take any other medication. (While the brother’s evidence to the Tribunal was different, the Tribunal does not draw any adverse conclusions from the discrepancies in evidence but rather relies on the applicant’s own lack of knowledge of the sponsor’s treatment.) The Tribunal does not accept that in Australia a major depression would be treated by a herbal pill and vitamins. The Tribunal is of the view that either the sponsor does not have a major depressive disorder as claimed or that the applicant has little or no knowledge of the condition and treatment and no involvement in his brother’s treatment.

5. Mr Lakhanpal told the Tribunal that he had been prescribed anti-depressants by his GP some years ago and had been taking anti-depressant medication on and off for a number of years. The applicant had not presented evidence of the diagnosis or a medical report from the sponsor’s treating doctor and, more significantly, the applicant has not established any link between the sponsor’s health and the applicant’s presence in Australia and visa issues. Thus, even if the Tribunal were to accept that  Mr Lakhanpal suffers from depression or other mental health issues, the Tribunal is not satisfied on the evidence before it that  the condition was caused by the refusal of the applicant’s visa application or that the condition would be adversely affected unless the waiver is applied.

6. Mr Lakhanpal states that the refusal of the application will affect his mental health. He states that he has not been able to work for three months. He had been a hard worker (evidence of his income and taxation records were provided to the Tribunal) but he has not been able to work for the past three months. As noted elsewhere, the Tribunal does not accept there is a link between Mr Lakhanpal’s mental health and the applicant’s visa status. The Tribunal  accepts that there may be a close relationship between the applicant and his brother but the Tribunal has formed the view that such a relationship need not cease whether or not the applicant resides in Australia.

   For all the reasons stated above, the Tribunal does not consider the sponsor’s mental health and health in general constitutes, in the particular circumstances of this case, a compelling or a compassionate circumstance justifying the grant of the visa.

7. The applicant states that his brother refuses to marry and settle down before he is married. The applicant’s evidence to the Tribunal is that he had been married before and at that time his brother agreed to marry and had engaged but after his relationship broke down, the brother broke his engagement. The Tribunal is not satisfied that the brother’s decision to marry is dependent on the applicant’s place of residence. That is, whether the applicant remains in Australia or has to leave the country if the visa is not granted, the brother can make the decision whether to marry or not to marry. The Tribunal is not satisfied that anything will prevent the brother from getting on with his life and getting married if he wishes to, whether or not the visa is granted to the applicant. The Tribunal reaches that conclusion while accepting there may be a strong bond between the applicant and his brother, particularly having regard to their upbringing and present circumstances.

8. The applicant and the sponsor also 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 his application was accurate and had not adequately engaged with the agent. In such circumstances, the Tribunal does not consider that the provision of false or misleading information and a bogus document by an agent on behalf of the applicant constitutes a compelling or a compassionate circumstance affecting the interests of another person or a compelling circumstance affecting the interests of Australia that justify the grant of the visa.

9. 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.

10. The Tribunal also questioned the applicant about the circumstances of the breakup of his relationship with his partner. The applicant states that they had separated around September 2017 (shortly before he made the application for the visa) but he had not applied for a divorce because he was hoping she would apologise and there may be a possibility of a reconciliation. He did not know whether his partner had applied for divorce. In light of the findings above, it is not necessary for the Tribunal to determine whether the applicant had a spouse (and therefore near relatives) at the time of application but should this application be reassessed in the future, some consideration need to be given to this issue.

    Conclusion

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

    DECISION

12. The Tribunal affirms the decision not to grant the applicant a Other Family (Residence) (Class BU) visa.

    Kira Raif
    Senior Member