Kwayder (Migration) - [2024] AATA 349

Kwayder (Migration) [2024] AATA 349 (31 January 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REVIEW APPLICANT:  Mr Ahmad Kwayder
VISA APPLICANT:  Mr Mohamad Kowayder
REPRESENTATIVE:  Ms Katrina Feghali (LPN 5511331)
CASE NUMBER:  2303957
HOME AFFAIRS REFERENCE(S):          BCC2023/1200142
MEMBER:Peter Papadopoulos
DATE:31 January 2024
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a Visitor (Class FA) visa.

Statement made on 31 January 2024 at 10:16am
CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – Tourist stream – bogus document – bank statement – ‘given or caused to be given’ – reliance on agent – role played in the preparation and lodgment of visa application – visa applicant’s knowledge and complicity – whether visa application invalidated – waiver of requirement – compelling or compassionate circumstances that affect the interests of an Australian citizen – procedural matters – technical issues during the hearing – interpretation difficulties – request to reconstitute the matter to a different Member – case management hearing – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 600.213; Schedule 4, PIC 4020
CASES
Kaur v MIBP [2017] FCAFC 184
Maharjan v MIBP [2017] FCAFC 213
Plaintiff M64/2015 v MIBP [2015] HCA 50
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 3 March 2023 to refuse to grant the visa applicant a Visitor (Class FA) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The visa applicant applied for a Subclass 600 (Visitor) visa (the visa) on 17 February 2023. At the time the visa application was lodged, Class FA contained only one visa subclass, namely Subclass 600 (Visitor).
The visa applicant indicated in the visa application form that they were seeking to satisfy the criteria for the Tourist stream. Therefore, the criteria for grant of the visa in this case are set out in Subdivisions 600.21 and 600.22 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). Clause 600.213 within Subdivision 600.21 provides that the visa applicant must meet a range of public interest criteria specified within Schedule 4 to the Regulations, including public interest criterion 4020 (PIC 4020). PIC 4020 is set out in the Attachment to this decision.
The delegate refused to grant the visa on the basis that the visa applicant did not meet PIC 4020.
The review applicant sought review of the delegate’s decision and was represented by Ms Katrina Feghali, a legal practitioner.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
RELEVANT LAW
The issue in this case is whether the visa applicant meets PIC 4020 as required by cl 600.213(1) 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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Kwayder (Migration)

Details

AGLC: Kwayder (Migration) [2024] AATA 349
Case: [2024] AATA 349
Decision Date: 31 January 2024

CaseChat Overview and Summary

This matter concerned a review by the Administrative Appeals Tribunal of a decision to refuse a Visitor (Class FA) visa, subclass 600 (Tourist stream). The applicant sought to have the refusal decision set aside and a visa granted. The core of the dispute revolved around the authenticity of a bank statement provided in support of the visa application and whether the applicant had knowingly submitted a bogus document.

The Tribunal was required to determine three key questions: first, whether the bank statement from BML was a bogus document; second, if it was, whether the visa applicant had given or caused to be given that document to the Department; and third, if the applicant had failed to satisfy the criteria under Public Interest Criterion 4020, whether there were compelling or compassionate circumstances that justified a waiver of this requirement.

The Tribunal found that the BML bank statement was indeed a bogus document, as the applicant had stated to the Department and the Tribunal that he had never held an account at BML bank. Furthermore, the Tribunal found that the applicant had caused the bogus document to be given to the Department. The applicant admitted that his agent had provided the statement to "strengthen" his application, and that he had agreed to this without knowing its origin, trusting the agent's expertise. The Tribunal concluded that the applicant had not satisfied the criteria under PIC 4020.

Consequently, the Tribunal affirmed the decision not to grant the applicant a Visitor (Class FA) visa.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

At a hearing on 14 December 2023 (the second hearing), the review applicant appeared before the Tribunal in person to give evidence and present arguments. The representative also attended the second hearing in person. The review applicant confirmed that he did not require the Tribunal to take evidence from any other witnesses. Unfortunately, despite the Tribunal having made the necessary arrangements, the visa applicant was unable to connect to the second hearing using the MS Teams technology platform. Nevertheless, the Tribunal persisted by then telephoning the visa applicant in Lebanon. The connection was successful and the line was clear, thereby enabling the visa applicant to give evidence without difficulty. The second hearing was conducted with the assistance of a male interpreter in the Arabic (Lebanese) and English languages. The review applicant and the visa applicant confirmed that they did not have any problems understanding the interpreter. Where relevant, the oral evidence provided by the review applicant and the visa applicant during the second hearing is discussed in the Tribunal’s findings and reasons below. CONSIDERATION OF CLAIMS AND EVIDENCE In determining whether the visa applicant meets PIC 4020, the Tribunal turns its consideration to the following three key questions:· Is the BML bank statement that was lodged with the Department in support of the visa application a bogus document? · If the BML bank statement is a bogus document, has the visa applicant given it, or caused it to be given, to the Department?· If PIC 4020(1) has been met, does the visa applicant satisfy the waiver requirements in PIC 4020(4)? Is the BML bank statement that was lodged with the Department in support of the visa application a bogus document? The term ‘bogus document’ is defined in s 5(1) of the Act (see the Attachment to this decision). According to the Departmental officer’s file note, the visa applicant told the Departmental officer at interview on 21 February 2023 that he had never held a bank account at the BML bank in Lebanon. Both the review applicant and the visa applicant told the Tribunal at the second hearing that the visa applicant had never held a bank account at the BML bank in Lebanon. Furthermore, the representative has not provided any submissions to the Tribunal containing argument that the BML bank statement is not a bogus document. Having considered the above matters, the Tribunal finds that the BML bank statement is a bogus document as it purports to have been, but was not issued, in respect of the visa applicant.If the BML bank statement is a bogus document, has the visa applicant given it, or caused it to be given, to the Department? Give the above finding, the Tribunal turns its consideration to whether the visa applicant has given the BML bank statement, or caused the BML bank statement to be given, to the Department. At an interview with an officer of the Department on 21 February 2023, the visa applicant was asked various questions about his visa application. According to the Departmental officer’s file note, the visa applicant told the Departmental officer at interview on 21 February 2023 that he had only held moneys in a BankMed bank account at the Minieh branch. When the officer informed the visa applicant that another bank statement had been provided in support of the application, the visa applicant replied:The other bank statement provided by the agent Ghazwan El Hawat is to support and strengthen the application.Relevant to the assessment of the present issue, the file note records the following discussion between the Departmental officer and the visa applicant, described as the principal applicant (PA) in the extract below:Why do you need another statement if you have a bank statement with Bank Med?PA: I don’t know, he told me that he will strengthen my application and I accepted because I don’t know much in documentationDid Ghazwan tell you from where he will obtain the bank statement?PA: No, it might be under his name.Did you accept that he puts documents under your name and you don’t know from where he got them?PA: Yes, he told me that it will strengthen my application, I agreed, I did what he told me. He only put the bank statement, his well-known agent and he always applies for other people. I got him an employment letter and other documents and I have a Bank Med statement. If I knew it would jeopardize my application I wouldn’t have agreed, I agreed with him because it was my first time uploading a bank statement and he told me not to worry because it is his job to do it.Advised PA to provide truthful info, advised that if he has a statement with Bank Med why would he accept to provide another statement from the agent?PA: I don’t know, I trusted him because he knows how to do the paperwork, I didn’t go with him to the bank but the rest of the papers I prepared them, they were 3 or 4 document. I don’t know what happened, I thought he uploaded a Bank Med statement for me and I agreed that he uploads another bank statement to strengthen the application.

Decision

Reasons for decision

On the basis of the above, the applicant does not satisfy PIC 4020 for the purposes of cl 600.213(1).DECISION The Tribunal affirms the decision not to grant the applicant a Visitor (Class FA) visa.Peter PapadopoulosMemberATTACHMENTMigration Regulations 1994Schedule 44020(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 1958s 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.…

Ratio Decidendi

Legal Principle Established

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