Masalkovski (Migration)

[2020] AATA 1867

Masalkovski (Migration) [2020] AATA 1867 (13 May 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Vesna Masalkovski

VISA APPLICANT:  Mr Altin Nogaj

CASE NUMBER:  1730268

DIBP REFERENCE(S):  OSF2017/014583

MEMBER:Stephen Witts

DATE:13 May 2020

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicant a Partner (Provisional) (Class UF) visa.

Statement made on 13 May 2020 at 11:39am

CATCHWORDS

MIGRANT – Partner (Provisional) (Class UF) visa – Subclass 309 (Spouse) (Provisional) –false or misleading information – attempted entry to another country on fraudulent passport not declared in application – departed voluntarily, not removed – told by interpreter that he didn’t need to provide information more than 10 years old – credibility – waiver of criterion – compassionate or compelling circumstances – sponsor’s adult daughter’s medical condition and care – sponsor’s mental health – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), s 65

Migration Regulations 1994 (Cth), Schedule 2, cl 309.225, Schedule 4, criterion 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 11 September 2017 to refuse to grant the applicant a Partner (Provisional) (Class UF) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 7 February 2017. The delegate refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl.309.225 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the delegate determined that the applicant has failed to meet the requirements of clause 309.225 of the migration regulations and as such is not eligible for the grant of a subclass 309 visa.

3. The review applicant appeared before the Tribunal by phone on 12 May 2020 to give evidence and present arguments.

4. The Tribunal also received oral evidence from the visa applicant by phone in Albania. The Tribunal hearing was conducted with the assistance of an interpreter in the Albanian and English languages.

5. It is noted by the Tribunal that the hearing was undertaken by phone here in Australia due to isolation procedures undertaken as a result of the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant, noting also that the visa applicant was overseas in any case. The Tribunal also had regard to its objective of providing a mechanism of review that is fair, just, economical and quick. It also considered the consequences of further delay if the hearing was not to be conducted by telephone. The applicant did not raise any concerns as to conducting a review hearing by phone. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and to present arguments.

6. The review applicant was represented in relation to the review by her registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in this review is whether the visa applicant meets Public Interest Criterion 4020 (PIC 4020) as required by cl.309.225 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).

9. 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.

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

10. 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.

11. 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.

12. 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.

13. According to the delegate’s decision record dated 25 September 2017, provided to the Tribunal by the applicant, the applicant was a 40-year-old Albanian citizen (as at time of decision). The applicant has been married twice and has two children from previous marriages. The applicant’s children are not included in this application. According to the delegate the applicant is the subject of a sponsorship by Ms Vesna Nogaj (the sponsor) who at the date of this decision was a 47 year old Australian citizen born in the Former Yugoslav Republic of Macedonia. The sponsor was previously married and has two children from this marriage.

14. According to the delegate the applicant and the sponsor first met on a dating site three years before the date of this particular application. At that time the applicant was married to another person, an Indonesian national. According to the material provided they were officially divorced on 16 June 2016. The applicant and the sponsor then met in person in Athens in May 2016. They were married in Albania on 25 September 2016.

15. According to the delegate during the application process for the visa application the applicant was required to undertake a biometrics collection test which subsequently resulted in a match against records in the United States of America. According to the delegate the applicant was apprehended at the United States border on 27 July 2001 when he presented a fraudulent, photo substituted, Italian passport in another name. The applicant was refused entry and was turned over to Customs enforcement for removal. According to the delegate the applicant did not declare this fact.

16. Based on that, the Department considered whether the applicant had provided false or misleading information in accordance with PIC 4020 and undertook an investigation in that regard. The department determined that the applicant did travel with a bogus document on an assumed identity and did not declare this information to the Department. Because of this the delegate refused the application.

17. The Tribunal has considered all the evidence given at hearing as well as the evidence in the delegate’s file and in the AAT file. In particular the Tribunal notes material provided immediately before the hearing including bank account and Centrelink information, birth certificates and change of name material.

18. The Tribunal also notes a submission provided by the applicant who stated that he was apprehended with a fraudulent passport in the United States but that he was not removed from the United States by authorities but chose to leave. He stated that he was put in a detention centre pending court and asked whether he intended to stay until his application was brought forward but he stated that he decided to return home. Based on that information the applicant asserted that he left the United States voluntarily. In regard to his not responding within a specified timeframe to the Department the applicant said that that was a result of being detained and not having access to a computer. He stated that he had declared his previous criminal record in relation to his previous refusals for visas in Australia. In regard to compassionate and compelling circumstances the applicant has stated that the sponsor has a daughter from a previous marriage who suffers a medical condition which requires ongoing medication and that he would assist in that care in Australia if that circumstance was recognised.

19. At hearing the applicant and the sponsor acknowledged that the applicant did provide false and misleading information in that he did not inform the Department of his passport violation in the United States in 2001. However, the applicant and the sponsor stated that the applicant neglected to inform the Department of this event due to a number of reasons that relate to the inadvertent nature of the applicant’s not informing the Department.

20. The applicant and the sponsor stated that a mistake in interpretation from a translator when the applicant was having the department’s documents translated at the time of his application was a reason why the applicant did not inform the Department of this passport violation. The parties stated that the interpreter mistakenly informed the applicant that if an offence was more than 10 years old it did not need to be included in the application. The Tribunal had a discussion with both the applicant and the sponsor about this and notes that this was referred to in paragraph 12 of the applicant’s submission to the Tribunal. The Tribunal has considered this and notes that no evidence was presented by the parties to demonstrate that this was actually the case. The Tribunal does not find it credible that the applicant could have inadvertently provided false information on the basis that he believed that the interpreter had told him that he didn’t need to provide such information if it was more than 10 years old. The Tribunal finds that this is not credible evidence demonstrating that he overlooked reporting this issue on his application at the time inadvertently.

21. The applicant also stated that he left the United States voluntarily and was not removed as he specifically remembers having a discussion with the authorities in the United States, signing a document and voluntarily leaving that country. The Tribunal notes that this was outlined in paragraphs 6 to 10 in this submission. He stated that he did not believe he needed to inform the Department about it as he did not believe he had committed any particular offence. The Tribunal had a discussion with the applicant about this and it is noted by the Tribunal that the applicant was not denying that he did travel on a false passport in the first place. He stated that he had a general discussion with authorities in the United States and that they knew the passport was false and asked him if he wanted to seek protection in the United States or return to Albania. He stated that this should be taken into account in an assessment as to whether he provided false or misleading information to the Australian government. The Tribunal has considered this and does not find it credible that the applicant would actually believe that because he voluntarily left the United States, in his submission, that that would mean he had no obligation to inform the Australian government at the time of application that he had in fact been found to have travelled to the United States on a false passport under an assumed identity. The Tribunal finds that that submission is not credible and does not lend weight to any contention that the applicant inadvertently did not provide the information to the Department.

22. The applicant also stated that he was not able to respond to an invitation to comment regarding the false and misleading information because within the specified timeframe as determined by the Department he was being detained in Italy for several months and did not have access to emails. The sponsor also stated that the applicant was not able to respond due to this circumstance. The Tribunal has considered this and again does not find this evidence credible. The Tribunal finds that the applicant was well aware that he provided false and misleading information to the department at the time of application and is simply seeking to develop different reasons as to why he did so and was attempting to artificially construct an argument that his oversight was inadvertent or mistaken.

23. The applicant also stated that in Albania his father was involved in politics and that an opposition political party threatened his father and his family and that he and his brother and younger sister travelled to the United States and that he also travelled to Italy, and that friends of his father organised to provide false documents. The Tribunal has considered this and is concerned that the applicant was attempting to construct a picture that somehow he was the victim of some form of political turmoil back in his home country in Albania that involved his family that led to him travelling on a false passport and inadvertently not informing the Australian government that he had been apprehended on this false Italian passport in the United States. The Tribunal has considered this but is concerned that the applicant is seeking to construct an artificial reason why there was some form of justification for travelling on a false passport and also then not informing the Australian government of this matter when he made his application. The Tribunal has considered this but does not find this evidence credible or even particularly relevant in terms of an assessment as to whether the applicant meets PIC 4020 requirements.

24. The Tribunal has considered the evidence and statements by the applicant and the sponsor and does not find the evidence from the parties as to why the applicant did not inform the Department of this breach of PIC 4020 requirements credible. As stated above, the Tribunal does not accept the argument that the applicant may not have genuinely thought he needed to inform the Department because of a mistake made by an interpreter regarding not having to inform the Department if the matter was over 10 years old. The Tribunal also does not accept the argument that because the applicant left the United States in some “voluntary” capacity that he therefore inadvertently did not inform the Department of his violation of passport requirements in the United States. Nor does the Tribunal accept the argument that he was impossible to contact for more than 10 months and therefore was not able to respond to specific timeframes of the Department, and nor does the Tribunal find credible the applicant’s purported family issues back in Albania as being a contributory factor to why he didn’t think he needed to inform the Department of his circumstances in 2001.

25. The Tribunal has considered all the submissions by the applicant and the sponsor and finds that the applicant did provide false and misleading information to the Department and it was open to the Department to refuse the visa application on this basis.

26. Therefore, the applicant does not meet PIC 4020(1).

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

27. 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.

28. 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.

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

30. At hearing the Tribunal had a discussion with the applicant and the sponsor regarding whether there are any compelling circumstances that affect the interests of Australia or whether there are any compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident, or an eligible New Zealand citizen.

31. The applicant and the sponsor did not put any specific evidence at hearing in regard to any such circumstances that affect the interests of Australia however they did state that there were compassionate and compelling circumstances that affect the interests of an Australian citizen, the sponsor, and the sponsor’s daughter.

32. The sponsor explained that she has a job here in Australia that she has been at that job for 31 years and that she has to look after her daughter by herself. Her daughter is 27 years old and has epilepsy. She stated that her medical condition can be brought on by any stress or anxiety and that she is under constant care and reassessment and needs to see a specialist every six months. She stated that both she and her daughter were under the care of a general practitioner. She stated that her daughter needs regular medication and that she, the sponsor, was also seeing a psychologist for anxiety. She stated that her daughter has seizures on occasions that can happen at any time and that she is getting a Centrelink benefit, specifically a disability support pension, and that she couldn’t live overseas because she would lose all those benefits. She stated that the hospital and medical system is not as strong in Albania and that she needs to be near a hospital and ambulance system that would be able to convey her daughter to hospital within 15 minutes and that in Albania she would be more than an hour and a half from medical support.

33. She also stated she didn’t know the Albanian language and so would not be able to live there. She also stated she couldn’t leave her daughter behind as she was her full-time carer. She stated that she occasionally was under financial strain with the commitment to travel to Albania to see her husband and that she only gets four weeks annual leave.

1. The applicant stated that his wife’s daughter has a serious medical condition and could only live in Albania for three months, that he lives in a small city where there are no doctors. He also stated that his daughter-in-law could not live alone in Australia.

2. The Tribunal has considered this evidence and acknowledges that the sponsor’s daughter, although 27 now and an adult, lives with her mother here in Australia and would need regular medical care and support. It is noted by the Tribunal that Australia’s health and medical system is an excellent one and that both the sponsor and her daughter would be receiving, and are receiving in the sponsor’s submission, excellent care and support from medical authorities. The Tribunal has considered this and finds that the visa applicant being in Australia on a partner visa would not in fact assist in providing the required care for his daughter-in-law or the sponsor who are already receiving the care they need through the hospital and medical system here in Australia. The Tribunal finds that the applicant and the sponsor have not provided credible evidence that there are compelling and compassionate circumstances that warrant the waiver of the PIC 4020 requirement.

3. Therefore the requirements of PIC 4020(1) and (2) should not be waived.

4. On the basis of the above, the applicant does not satisfy PIC 4020 for the purposes of cl.309.225.

   DECISION

5. The Tribunal affirms the decision not to grant the applicant a Partner (Provisional) (Class UF) visa.

   Stephen Witts
   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. 

   …