Kurniadi (Migration)

[2023] AATA 4594

Kurniadi (Migration) [2023] AATA 4594 (14 December 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Kurniadi Kurniadi

VISA APPLICANT:  Mr Nawawi

REPRESENTATIVE:  Mr Peter Do

CASE NUMBER:  2214766

HOME AFFAIRS REFERENCE:               BCC2022/2793644

MEMBER:L Symons

DATE:14 December 2023

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for a Visitor (Class FA) visa for reconsideration with the direction that the visa applicant meets the following criteria for a Subclass 600 (Visitor) visa:

Public Interest Criterion 4020 for the purposes of cl 600.213 of Schedule 2 to the Regulations

Statement made on 14 December 2023 at 3:45pm

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – Tourist stream – false or misleading information – migration history – previous visa applications refused – waiver of requirement – compelling and compassionate circumstances – support for review applicant’s wife during IVF treatment – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 600.213; 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

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 18 August 2022 to refuse to grant the visa applicant a Visitor (Class FA) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The visa applicant applied to the Department of Immigration (the Department) for the visa on 20 July 2022. The delegate refused to grant the visa on the basis that the visa applicant did not satisfy the requirements of cl 600.213 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) because he/she was not satisfied that the visa applicant met the requirements of Public Interest Criterion (PIC) 4020. On 7 October 2022, the review applicant applied to the Tribunal for review of this decision.

3. The review applicant appeared before the Tribunal on 1 August 2023 via video to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant and the review applicant’s wife, Ms Endang Astutim, via video. The Tribunal hearing was conducted with the assistance of an interpreter in the Indonesian and English languages.

4. The review applicant was represented in relation to the review by Mr Peter Do, who attended the hearing via video.

5. For the following reasons, the Tribunal has concluded that the decision under review should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE AND FINDINGS

6. The issue in this review is whether the visa applicant meets PIC 4020 as required by cl 600.213 for the grant of the visa. This requires that:

   Cl. 600.213 

   (1)The applicant satisfies public interest criteria 4001, 4002, 4003, 4004, 4005, 4011, 4013, 4014, 4020 and 4021.

   (2)If the applicant has not turned 18, the applicant also satisfies public interest criteria 4012, 4017 and 4018.

7. The provisions of PIC 4020 are attached below.

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

8. 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.

9. 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.

10. 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.

11. In this case, the delegate found that the visa applicant did not satisfy the requirements of PIC 4020(1). On 11 August 2022, the Department sent the visa applicant an invitation to comment on adverse information. The adverse information was as follows:

    In your application form you were asked questions about your migration history, including whether you have had a visa refused, cancelled, or if you have failed to abide by the conditions of a visa. You did not declare your previous migration history in your application.

12. The visa applicant was given 7 days to comment on this information and specify if 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 grant of the visa. On 15 August 2022, a response was received by the Department which consisted of:

    1.Evidence of the familial relationship between the applicant and his sibling in Australia and his sibling’s identity documents.

    2.A written statement from his sibling and his wife in Australia explaining the importance of the visa applicant's visit and the support that the visa applicant will receive from his sibling during his stay in Australia.

13. The delegate determined that the visa applicant did not provide a response which adequately refuted the existence of this adverse information and did not seek a waiver of PIC 4020. Based upon this evidence, the delegate found that the visa applicant had given information that is false or misleading in a material particular and does not satisfy PIC 4020. The delegate refused the visa on 18 August 2022.

14. In considering whether the visa applicant has given, or caused to be given, a bogus document or information that is false or misleading in material particular, the Tribunal discussed with the review applicant the visa applicant’s immigration history in Australia. He stated that the visa applicant visited Australia about 5 years ago, as the holder of a Visitor visa, stayed here for 2 months and left before his visa expired. This was his only visit to Australia. He has twice applied for Visitor visas since then but both visa applications have been refused. He used an agent in Indonesia to file the visa applications. He does not know why his visa applications were refused.

15. The Tribunal discussed with the review applicant the contents of the application for a Visitor visa filed by the visa applicant on 20 July 2022. When asked who prepared the visa application, he responded that he did not know. The Tribunal noted that in his visa application the visa applicant was asked a number of questions including whether he ever had a visa for Australia refused or cancelled and he answered no. When asked whether that was a correct answer, the review applicant responded no. When asked why the visa applicant gave an incorrect answer, he responded that he did not know. Another person filled out the visa application.

16. During the hearing, the Tribunal discussed this issue with the visa applicant. He gave evidence that he has visited Australia once as the holder of a Visitor visa. He came here on 9 January 2018 and left on 1 April 2018. He has applied for visas to come to Australia on four occasions. The last three visa applications, filed between 2020 and 2022, were refused. The visa applications were organised through a friend. He does not know why his visa applications were refused. He then stated that the question asked was whether he had ever been to Australia and the answer was no. The friend who organised his visa application did not know that he had visited Australia previously and said no.

17. The Tribunal asked the visa applicant whether he had received a copy of the Decision Record and he responded that he was never told about the visa application. When asked whether he knew why his visa application was refused, he responded that he was never told about the visa application. When asked again whether he knew why his visa application was refused, he responded that he was not told anything. When asked whether he asked (his friend) why his visa application was refused, he responded no. When asked why not, he responded that his friend did not know and he was confused.

18. The Tribunal explained to the visa applicant why the Department had refused his visa application filed on 20 July 2022. When asked whether he understood that by not disclosing that he had been previously refused a visa he was providing false information to the Department, he responded that he did not know that.

19. The records of the Department indicate that the visa applicant applied for a Visitor visa on 25 May 2018 and his visa application was refused. He applied for a Business visa on 12 March 2020 and that visa application was refused. He then applied for a Visitor visa on 20 July 2022 and that visa application was refused. In his application for a Visitor visa filed on 20 July 2022, he did not disclose that he previously had two visas refused. The Tribunal put this information to the review applicant, pursuant to s.359AA of the Act, and noted that it may find that he has provided false or misleading information to the Department in his visa application.

20. The review applicant responded that he is confused. He is dizzy. He does not know what to say. He requests that the visa applicant be allowed to come to Australia to make them happy. His wife wants to get pregnant. He will not be here for long. He will just talk to his wife and hang around for about a month.

21. In view of the above, the Tribunal is satisfied that the visa applicant’s response of ‘no’ to the question in his visa application filed on 20 July 2022 in relation to whether he ever had a visa for Australia refused or cancelled was false at the time it was given. The Tribunal considers that this information is relevant to cl.600.213.

22. Therefore, the Tribunal finds that the visa applicant has given, or caused to be given, to the Minister information that is false or misleading in a material particular in relation to his application for a Visitor visa and does not meet the requirements of PIC 4020(1).

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

23. 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 reg 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.

24. 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.

25. For the following reasons, the Tribunal is satisfied that the requirements should be waived.

26. In a letter of support dated 13 August 2022 provided to the Department, the review applicant and his wife jointly stated that the visa applicant travelled to Australia on 18 January 2018 for a visit and did not overstay his visa. The review applicant and the visa applicant’s father passed away from Covid-19 and their mother is sad and lonely. She wants to travel to Australia to visit them and needs a travel companion. The visa applicant wishes to accompany her. The review applicant and his wife are in full time employment and will pay for his expenses and provide him with accommodation. 

27. During the hearing, the review applicant gave evidence that his mother has been granted a multiple entry Visitor visa that is valid for 3 years. She travelled to Australia in August 2022 accompanied by a friend. She returned to Australia in November 2022 and he accompanied her back to Indonesia in January 2023.

28. The review applicant gave evidence that he is a permanent resident of Australia and his wife is an Australian citizen. He and his wife have lived in Australia for 20 years. When asked whether there were any 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, he responded yes. He and his wife have been trying to have a baby. His wife has undergone IVF treatment four times and it has failed. They want to try a fifth time. He works very hard and it would help if the visa applicant were here to take care of his wife. She is very stressed. The visa applicant has young children so he cannot stay in Australia for very long. Even a short visit would assist him.

29. The review applicant’s wife, Endang Astuti, gave evidence that she is trying to have a baby and is sad that she has not been able to. She has had four rounds of IVF. Her brother in law (the visa applicant) has two children and she is jealous. She wants to try again to get pregnant through IVF and wants her mother in law to come here to assist her. She wants the visa applicant to accompany her mother in law to Australia to be with her. 

30. The visa applicant stated that he would like to come to Australia and help his sister in law while she is undergoing IVF treatment. During the IVF process, she is not allowed to move around too much. He can help by doing things like going to the supermarket and doing the shopping. He would also like to spend some time with his brother (the review applicant) as he did not see him when he accompanied their mother back to Indonesia in January 2023.

31. The Tribunal has considered the supporting documents provided to the Department and the Tribunal.

32. The review applicant’s migration agent made oral submissions during the hearing. He stated that the review applicant concedes that the visa applicant does not meet PIC 4020. He wants to focus on the compelling and compassionate circumstances in this case. The parties are simple people. The review applicant works as a farmer and his wife packs tomatoes. The visa applicant works in a clothing shop. They do not have a sophisticated understanding of  international obligations. They did not address the concerns raised by the Department. The Tribunal asked many easy and direct questions but they did not understand the importance of those questions.

33. The review applicant’s migration agent submitted that the Tribunal asked the review applicant a number of questions in relation to the visa applicant’s answers to questions in his visa application and he could not answer them. He was honest when he said he does not know who filled out the visa application. He should be given the benefit of the doubt. He misses his brother and wants him to come to Australia. His wife is stressed after the four rounds of IVF treatment. The visa applicant could go to the shops and clean the house. They have a simple way of looking at life in Australia. He does not want his brother to come here with his mother so that they could live here as a family. His brother has two children in Indonesia. The youngest is one month old.

34. The review applicant’s migration agent submitted that the review applicant’s wife’s evidence is that she is an Australian citizen. She was raw and honest (in her evidence) and said she was jealous of the family in Indonesia. Her evidence was to provide a narrative that if her mother in law and brother in law are here she can relax. She will take time off work and spend time together as a family. She does not do much in Australia. The visa applicant is employed and has provided a work reference. He travelled to Australia on 9 January 2018 and returned to Indonesia in April 2018. He is not the most sophisticated person.

35. The review applicant’s migration agent submitted that using a computer and attending a hearing was confronting for the visa applicant. He gave evidence that he had applied for visas four times. When asked about compelling or compassionate circumstances he could not answer because does not know what that means. He is not a native English speaker. He asked friends to help him (with his visa application). Is it plausible that he is asking people to help him? He has to go through every question and ask people to help him. Someone completed half the form, he sends it in and sees what happens. He is not saying that is an okay way to approach visa applications.

36. The review applicant’s migration agent submitted that the visa applicant was granted a (Visitor) visa, came to Australia and returned. He gave evidence that he did not work in Australia. It is possible that his mother’s presence in Australia may assist his sister in law by reducing stress so that a fifth round of IVF could be successful. It is a small miracle that the visa applicant was able to download MS Teams and link into the hearing. They are simple people with simple lives. He submitted that the Tribunal should find in their favour.

37. Having considered all the evidence, the Tribunal accepts that the review applicant and his wife are trying to have a baby through IVF treatment and have been unsuccessful on four attempts. The Tribunal accepts that they would like to try IVF treatment for a fifth time. The Tribunal accepts that the review applicant’s wife is feeling very stressed and needs the assistance of her mother in law during this time. The Tribunal accepts that her mother in law is unable to travel to and from Australia by herself.

38. The Tribunal accepts that the visa applicant would like to accompany his mother to Australia in order to support his sister in law during her IVF treatment and to spend some time with his brother. The Tribunal accepts that the review applicant misses his brother, would like to spend some time with him in Australia and needs his assistance to accompany his mother to Australia and assist his wife during her IVF treatment.

39. The Tribunal is satisfied that these are compassionate circumstances that affect the interests of an Australian citizen and an Australian permanent resident that justifies the granting of the visa. In considering whether to exercise the discretion to waive the requirements of PIC 4020, the Tribunal is of the view that the long term adverse impact on an Australian citizen and an Australian permanent resident of not having the assistance they need to maximise the prospects of being successful in their fifth attempt to have a child with IVF treatment is such that the Tribunal should exercise its discretion to waive the requirements of PIC 4020.

40. In view of the above, the Tribunal finds that the requirements of PIC 4020(1) should be waived.

    DECISION

41. The Tribunal remits the application for a Visitor (Class FA) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 600 (Visitor) visa:

    (a)Public Interest Criterion 4020 for the purposes of cl 600.213 of Schedule 2 to the Regulations

    L Symons
    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.

    …