Mohammadi (Migration)

[2021] AATA 5554

Mohammadi (Migration) [2021] AATA 5554 (1 December 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Qader Ali Mohammadi

VISA APPLICANTS:  Mrs Bakhtawar Muhammadi
Mr Abdul Aziz Muhammadi
Miss Shehnaz Muhammadi
Miss Soghra Muhammadi
Mr Muhammad Mehdi Muhammadi

CASE NUMBER:  1901600

HOME AFFAIRS REFERENCE(S):          OSF2013/020237

MEMBER:Stephen Conwell

DATE:1 December 2021

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the applications for Partner (Provisional) (Class UF) visas for reconsideration, with the direction that the first-named applicant meets the following criteria for Subclass 309 (Spouse (Provisional)) visas:

· Public Interest Criterion 4020 for the purposes of cl 309.225 of Schedule 2 to the Regulations

·        As the secondary visa applicants applied on the basis of being members of the first-named applicant’s family unit, their application will be determined by reference to the outcome of the first-named applicant’s visa application upon remittal to the Department for reconsideration.

Statement made on 01 December 2021 at 5:46pm

CATCHWORDS
MIGRATION – Partner (Provisional) (Class UF) visa – Subclass 309 (Partner (Provisional)) – false or misleading information in a material particular – biological parentage of a secondary applicant – DNA test results – whether ‘material’ to the application – withdrawn as a secondary applicant – genuineness of the marriage – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 309.225; Schedule 4, PIC 4020

CASES
Arora v MIBP [2016] FCAFC 35
Batra v MIAC [2013] FCA 274
Bretag v Minister for Immigration, Local Government and Ethnic Affairs [1991] FCA 582 
Re Minister of Immigration, Local Government and Ethnic Affairs v Gamdur Singh Dhillon and Marcelle Suzanne Maree Lievense Dhillon [1990] FCA 144
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 Home Affairs on 16 December 2018 to refuse to grant the applicants Partner (Provisional) (Class UF) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants applied for the visas on 2 April 2013. The delegate refused to grant the visas on the basis that the first-named applicant, Ms Bakhtawar Muhammadi (the applicant) did not satisfy the requirements of cl 309.225 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) because on the evidence submitted the delegate was not satisfied the applicants had met Public Interest Criterion 4020 (PIC 4020). In particular the delegate concluded that the applicant did not satisfy Public Interest Criterion 4020(1), as she was found to have provided false or misleading information to the Department of Home Affairs (Department).

3. The review applicant (sponsor) Is represented in relation to the review by his registered migration agent (representative).

4. Pursuant to s.360(2)(a) of the Act, the Tribunal determined that it should decide the review in the applicant’s favour on the basis of the material before it. The sponsor was informed that the Tribunal considered that a hearing was no longer required.

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

   consideration of claims and evidence

6. The issue in this review is whether the applicant meets Public Interest Criterion 4020 (PIC 4020) as required by cl.309.225 for the grant of the visa. Broadly speaking, PIC 4020 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).

7. 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.

   Background

8. The primary applicant applied for a Partner (subclass 309/100) visa on 2 April 2013, her application including five secondary applicants, Mr Abbas Muhammadi, (born in 1997), Mr Abdul Aziz Muhammadi (born in 2000), Miss Shehnaz Muhammadi (born in 2002), Miss Soghra Muhammadi (Date of Birth (DOB) 1 January 2005), and Master Muhammad Mehdi Muhammadi (DOB 1 January 2010).

9. DNA testing conducted in 2013 indicated that the applicant, Ms Muhammadi, was excluded from identification as a parent of the eldest child, Mr Abbas Muhammadi (Abbas). However the sponsor in all probability was a biological parent of Abbas. The delegate interpreted these results to mean that Abbas was the child of the sponsor, Mr Mohammadi, but not of the applicant, Ms Muhammadi.

10. At that time of their visa application the entire family was residing in in Quetta, Pakistan as illegal Afghan refugees. The family continue to reside there, with the exception of Abbas. In his statutory declaration of 18 July 2018, the sponsor states that in 2014, the then 17 year old Abbas left the family unit to join his biological mother in Iran as she was in poor health and needing support.

11. On 11 July 2018, the Department wrote a ‘natural justice’ letter to the sponsor, inviting comment in respect of the DNA test results. In response, the sponsor’s previous migration agent advised the Department that Abbas was the sponsor’s orphan nephew; he also requested that Abbas be withdrawn from the application. This was actioned by the Department on 22 October 2018.

12. Also in October 2018 the Department wrote to the sponsor about the possible applicability of PIC 4020 to his application, inviting his comment.  Mr Mohammadi’s previous migration agent responded on 29 October 2018 reiterating that Abbas was the sponsor’s nephew and claiming that he (the sponsor) had never had an affair.

13. The representative makes a valid point that the Department’s letter of 11 July 2018 to the sponsor came more than five years after the visa application and DNA testing, all of which occurred in 2013. There appears to be no explanation offered by the Department for the lack of progress of this application during those five years. 

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

14. 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.

15. 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.

16. 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.

17. In a written submission dated 25 October 2021, the representative invites the Tribunal firstly to conclude that the information concerning the parentage of Abbas is not ‘material’ and therefore  PIC 4020(1) is not enlivened. In the alternative, the Tribunal is invited to exercise its discretion to waive the application of PIC 4020(1) pursuant to PIC 4020(4) on the basis that there are compelling or compassionate reasons justifying the granting of the visa. The written submission cogently argues for finding in favour of the applicant by either route.

    Tribunal findings

18. According to the decision record the misleading information is said to be the claim that all the secondary applicants (including Abbas) are the children of the sponsor and the applicant. The Tribunal notes that the DNA test results (which suggest strongly that Abbas is the biological child of the sponsor but not of the applicant) are not in dispute.

19. The Tribunal observes that in the relevant Partner visa application form applicants are not asked about the biological parentage of secondary applicants; for example, question 35 of application form 40SP requests details of ALL your fiancé(e) or partner’s dependent family members who are included in this sponsorship.  In the Tribunal’s view, it is arguable that the applicant’s response to this and similar questions was truthful of the family’s particular circumstances and not in breach of PIC 4020.

20. In his statutory declaration of 18 July 2018, the sponsor explains,

    When I was sponsoring my family .. I was asked to provide detailed (sic) of my family members. I declared to hav[ing] five children. Although Abbas is not my biological child
    but I have raised him and treated him as my son since his birth.

21. From the delegate’s reasoning as expressed in the decision record, the representative infers  that the false or misleading information leading to the refusal of the visa was both the claim that Abbas was the biological child of both the sponsor and primary applicant, and also the subsequent claim that Abbas was the sponsor’s nephew. The Tribunal finds this a reasonable inference to make.

22. The representative further infers that the delegate considered the false or misleading information to be material to the question of genuineness of the spousal relationship, effectively undermining the parties’ claim of being in a genuine spousal relationship. Clearly, the delegate considered the false or misleading information to be significant enough to prevail over the  discretion to waive PIC 4020(1) pursuant to PIC 4020(4).

23. In inviting the Tribunal to consider the materiality of the false or misleading information the submission firstly notes that the first piece of information (that Abbas was the biological son of the sponsor and Ms Muhammadi) could no longer be said to be material to the application as in 2018 Abbas was withdrawn as a secondary applicant, which was accepted by the Department.  It is correctly observed that PIC 4020(5) requires the question of whether the information is ‘relevant to any of the criteria’ to be assessed at ‘time of decision’. It follows, therefore, that the first piece of information can no longer be said to be material in any meaningful sense.

24. The Tribunal accepts the logic and legality of this submission, finding that the first piece of incorrect information (that Abbas was the biological son of the sponsor and Ms Muhammadi) could no longer be said to be material to the application.

25. The submission then considers the subsequent claim that Abbas was Mr Mohammadi’s nephew (second piece of information). It is argued that the nature of the relationship between the sponsor and Abbas – i.e. whether they are in fact, biological father and son or uncle and nephew – is entirely immaterial to the spousal relationship between the sponsor and his wife. It is submitted that the Abbas’ paternity – and associated implication that the sponsor perhaps had a sexual encounter with Abbas’ biological mother, 24 years ago – is not relevant to the genuineness of this marriage between the sponsor and the applicant.

26. It is not in dispute that the sponsor and the applicant married in 1995, some 26 years ago.  DNA test results, whilst not infallible, strongly suggest that Mr Mohammadi had a sexual encounter with Abbas’ mother, resulting in Abbas’ birth in 1997. The Tribunal accepts that as he is now 24 years old, the sexual encounter, in the likelihood that it took place, did so almost a quarter of a century ago.   

27. The submission cites the case of Re Minister of Immigration, Local Government and Ethnic Affairs v Gamdur Singh Dhillon and Marcelle Suzanne Maree Lievense Dhillon [1] as authority for correctly assessing a relationship:

    The true test, we would suggest the only test, is whether at the time at which the matter has to be decided it can be said that the parties have a mutual commitment to a shared life as husband and wife to the exclusion of others. [2]

    [1] [1990] FCA 144 (8 May 1990)

    [2] Ibid, at [11].

28. In other words, assessing the parties’ mutual commitment to one another must be done at the time of decision in relation to the visa application. The Tribunal accepts and agrees with this analysis.

29. The Tribunal finds that  the sponsor probably engaged in a sexual encounter with Abbas’ biological mother sometime in 1996 or 1997. It sees no need to infer any more than that. More importantly, the Tribunal accepts and agrees with the submission that such an encounter “… cannot possibly be said to represent an end to Mr Mohammadi’s commitment to a shared life with Ms Muhammadi.”

30. The submission also cites the case of  Bretag v Minister for Immigration, Local Government and Ethnic Affairs [3]  as authority for permitting a decision-maker to have regard to the subsequent history of a relationship in order to determine whether the relationship was genuine at an earlier time, provided that later evidence “tends logically to show the existence or non-existence of facts relevant to the issue to be determined”.[4]

    [3] [1991] FCA 582

    [4]  Minister of Immigration andEthnic Affairs v Pochi [1980] FCA 85 at [23] and [24] (Deane J).

31. It is noted that the sponsor steadfastly denies any extra-marital sexual encounter, although the DNA test results strongly suggest otherwise. However when correctly assessing the relationship at the time of its decision, the Tribunal agrees with the submission that it is now assessing a marriage of 26 years in duration. Over the course of that period, particularly from the time of the parties’ physical separation since 2010, there is abundant evidence before the Tribunal that despite being apart for over 10 years and facing significant financial, emotional and psychological stressors, the sponsor and the applicant have commendably managed to share a life together.

32. That the Abbas is probably the biological child of the sponsor but not of the applicant, does not, in the Tribunal’s view, undermine or detract from, the genuineness of the marriage between the sponsor and the applicant.

33. Upon careful consideration of the evidence before it, the Tribunal finds that the second piece of information (the subsequent claim that Abbas was Mr Mohammad’s nephew) cannot be said to be ‘material’ to the question of the genuineness of the marriage; it is therefore not ‘information that is false or misleading in a material particular’ as defined by PIC 4020(5).

34. Therefore, since the Tribunal finds that neither piece of information is false nor misleading in a material particular, it is satisfied that the applicant meets PIC 4020(1).

    Has a visa previously been refused on the basis of a failure to satisfy PIC 4020(1)?

35. PIC 4020(2) requires the Tribunal to be satisfied that the applicant and each member of the family unit have not been refused a visa because of a failure to satisfy PIC 4020(1) in the period commencing 3 years before the application was made and ending when the visa is granted or refused. This requirement does not apply to a person who was under 18 at the time the application for the refused visa was made: PIC 4020(2AA).

36. There is no evidence of this occurring. Therefore, PIC 4020(2) is met.

    Has the applicant satisfied the identity requirements?

37. PIC 4020(2A) requires an applicant satisfy the Tribunal as to his or her identity. On the evidence before it, the Tribunal is satisfied as to the applicant’s identity.

38. Therefore, the applicant meets PIC 4020(2A).

    Has a visa previously been refused on the basis of a failure to satisfy PIC 4020(2A)?

39. PIC 4020(2B) requires that neither the applicant nor any family unit member have been refused a visa because of a failure to satisfy the identity requirements in PIC 4020(2A) during the period starting 10 years before the application was made and ending when the visa is granted or refused. This requirement does not apply to a person who was under 18 at the time the application for the refused visa was made: PIC 4020(2BA).

40. There is no such evidence before the Tribunal. Therefore PIC 4020(2B) is met.

41. On the basis of the above, the applicant satisfies PIC 4020 for the purposes of cl.309.225(a).

    decision

42. The Tribunal remits the applications for Partner (Provisional) (Class UF) visas for reconsideration, with the direction that the first-named applicant meets the following criteria for Subclass 309 (Spouse (Provisional)) visas:

    ·Public Interest Criterion 4020 for the purposes of cl.309.225 of Schedule 2 to the Regulations.

    ·As the secondary visa applicants applied on the basis of being members of the first-named applicant’s family unit, their application will be determined by reference to the outcome of the first-named applicant’s visa application upon remittal to the Department for reconsideration.

    Stephen Conwell
    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.

    …