Maqsood (Migration)

Case [2023] AATA 2812

Maqsood (Migration) [2023] AATA 2812 (7 August 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2213747

MEMBER:Christine Cody

DATE:7 August 2023

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a Visitor (Class FA) visa.

Statement made on 7 August 2023 at 6:11pm

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – false or misleading information – applicant’s other family members in Australia – intention to visit mother only – compassionate or compelling circumstances – decision under review affirmed      

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 600.211, 600.213; Schedule 4 Public Interest Criterion 4020; r 1.03

CASES

Anani v MIMAC [2013] FCCA 1140
Babicci v MIMIA [2004] FCA 1645
Babicci v MIMIA (2005) 141 FCR 285
Kaur v MIBP [2014] FCCA 1264
Kaur v MIBP [2017] FCAFC 184
Kaur v MIBP [2018] FCCA 1614
McNamara v MIMIA [2004] FCA 1096
Plaintiff M64/2015 v MIBP [2015] HCA 50
Singh v MIAC [2012] FMCA 145
Singh v MIBP [2016] FCA 156
Singh v MIBP [2018] FCCA 1136
Trivedi v MIBP (2014) 220 FCR 169
Umer v MIBP [2017] FCCA 2934

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

  1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 12 August 2022 to refuse to grant the applicant a Visitor (Class FA) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

  2. The visa applicant applied for the visa on 21 April 2022. At the time the visa application was lodged, Class FA contained one subclass, Subclass 600 (Visitor), with a number of different streams. In this case the applicant applied for the visa seeking to satisfy the primary criteria in the Tourist stream. The criteria for a Subclass 600 visa are set out in Part 600 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). The delegate refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl 600.213 of Schedule 2 to Regulations because the delegate was not satisfied that the applicant met Public Interest Criterion (PIC) 4020 contained in clause 4020 in Schedule 4 of the Regulations as required by cl 600.213 for the grant of the visa. The delegate found that there was evidence that the visa applicant gave the Minister information that is false or misleading in a material particular in relation to the application for the visa.

  3. The review applicant is the visa applicant’s mother. She lodged an application for review to the Tribunal, providing a copy of the delegate’s decision record, and later, submissions to the Tribunal. On 28 July 2023 the review applicant appeared before the Tribunal to give evidence and present arguments. The Tribunal also received…

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AGLC
Maqsood (Migration) [2023] AATA 2812
Case
[2023] AATA 2812
Decision Date

CaseChat Overview and Summary

This matter concerned an application for a Visitor (Class FA) visa, subclass 600, brought before the Tribunal by the applicant. The core of the dispute revolved around whether the applicant had provided false or misleading information in a material particular, thereby failing to satisfy Public Interest Criterion (PIC) 4020(1). The Tribunal was required to determine this question and, if the criterion was not met, whether there were any circumstances that would justify waiving PIC 4020(1) to permit the grant of the visa.

The Tribunal was tasked with assessing whether the applicant had given, or caused to be given, information that was false or misleading in a material particular in relation to their visa application. This involved considering the definition of "information that is false or misleading in a material particular" as set out in PIC 4020(5), which requires the information to be false or misleading at the time it is given and relevant to a visa criterion that could materially affect the decision. The Tribunal also had to consider whether any compassionate or compelling circumstances existed that would justify waiving the requirements of PIC 4020(1).

The Tribunal concluded that the applicant did not satisfy PIC 4020 for the purposes of clause 600.213. Consequently, the Tribunal affirmed the decision not to grant the applicant the Visitor visa.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The issues in this case are, first, whether the visa applicant provided false or misleading information in a material particular thereby failing to meet PIC4020(1) and, second, if so, whether there are circumstances for waiving PIC4020(1) that justify the grant of the visa. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.CONSIDERATION OF CLAIMS AND EVIDENCEPIC 4020 Broadly speaking, PIC 4020 (set out in the attachment) 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). The requirements in PIC 4020(1) and (2) can be waived where there are compelling circumstances that affect the interests of Australia, or 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: PIC4020(4). Has the applicant given, or caused to be given information that is false or misleading in material particular? The term ‘information that is false or misleading in a material particular’ is defined in PIC 4020(5). The definition requires the information to be false or misleading at the time it is given. It also requires that there is a visa criterion upon which the allegedly false information could materially bear[1]. It applies to information which goes to something which will or might determine the visa application and is not concerned with information that is irrelevant to the visa requirements.[2] However, the referable criterion cannot be PIC 4020 itself.[3][1] Singh v MIAC [2012] FMCA 145 at [68]. [2] Kaur v MIBP [2014] FCCA 1264 at [80]–[81]. See also Singh v MIBP [2018] FCCA 1136. [3] Singh v MIBP [2015] FCCA 1939 at [63]. In considering the materiality requirement in PIC 4020(5), the Court held that ‘[i]t was a misconstruction and misunderstanding of the applicable law for the Tribunal to determine the relevance of the information given by the applicant about the nature of his employment for the purposes of PIC 4020(1) by reference to the applicable version of cl 485.224 which simply required him to satisfy public interest criteria, including PIC 4020’. This overcomes the reasoning in Bari v MIAC [2013] FMCA 14, which appeared to accept a submission that information will be false or misleading ‘in a material particular’ if it is relevant to the criterion which requires satisfaction of PIC 4020, which would arguably mean that any false or misleading information would be false or misleading information ‘in a material particular’ even if otherwise irrelevant to all other visa criteria.

Decision

Reasons for decision

On the basis of the above, the applicant does not satisfy PIC 4020 for the purposes of cl 600.213.DECISION The Tribunal affirms the decision not to grant the applicant a Visitor (Class FA) visa.Christine CodyMemberCommentaryATTACHMENTMigration 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.…

Ratio Decidendi

Legal Principle Established

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