Negash (Migration)

Negash (Migration) [2022] AATA 4912 (15 December 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Ms Sophia Woldemichael Negash
Mr Mesay Abdi
REPRESENTATIVE:  Mr Celestine Ifeanyi Ceefyne Ogbonna (MARN: 1804068)
CASE NUMBER:  2203250
HOME AFFAIRS REFERENCE(S):          BCC2017/2519194
MEMBER:Amanda Mendes Da Costa
DATE:15 December 2022
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicants Skilled Independent (Permanent) visas.
Statement made on 15 December 2022 at 1.03pm

CATCHWORDS
MIGRATION – Skilled Independent (Permanent) visa – Subclass 189 – applicants had provided or caused to be provided, or caused to be provided, a bogus document or false or misleading information in relation to the visa application – not satisfied that the second applicant met Public Interest Criterion (PIC) 4020(1) – criminal convictions – failure to mention criminal history – no compassionate and compelling circumstances – Tribunal is not satisfied that the requirements of PIC 4020(1) should be waived – decision under review affirmed
LEGISLATION
Education Services for Overseas Students Act 2000 (Cth)
Migration Act 1958, ss 65,360
Migration Regulations 1994, r 1.03, Schedule 2, cl 189.211
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

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 4 March 2022 to refuse to grant the applicants Skilled Independent (Permanent) visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The delegate refused to grant the visa on the basis that the second named applicant did not satisfy the requirements of cl 189.211(3) of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) because they were not satisfied that the second applicant met Public Interest Criterion (PIC) 4020(1).
The applicants appeared before the Tribunal on 5 July 2022 and 15 August 2022 to give evidence and present arguments.
The applicants were represented in relation to the review.
The Tribunal exercised its discretion to hold the hearing by video. The Tribunal determined it was reasonable to hold a hearing by video, having regard to the nature of this matter and the individual circumstances of the applicants. The Tribunal has considered that the applicants were prepared to participate in a video hearing, that the applicants and their representative reside in Perth and that the applicant’s medical condition prevented her from travelling to Melbourne for the hearings.
The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical, and quick, and the delay to the matter if the hearing was not to be conducted by video. The Tribunal is satisfied that the applicants were given a fair opportunity to give evidence and present arguments.
The documents provided to the Tribunal include the following:
·National Criminal and Offense Report, Sentrylink, dated 7 July 2022.
·National Police Certificate (for the second named applicant) dated 27 June 2022 and issued by the Australian Federal Police.
·Written submissions dated 3 March 2021, 1 June 2022 and 12 December 2022.
·Extract from the Colorado Revised Statute 24-72-703.
·U.S. Department of Justice, Federal Bureau of Investigation (FBI) Identity History Summary, dated 10 January 2021.
The Tribunal has also considered the information in both the Departmental and Tribunal files.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
consideration of claims and evidence
The issue in this review is whether the visa applicant meets Public Interest Criterion 4020 (PIC 4020) as required by cl 189.211(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 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 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?
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.
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.
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.
Background
The Tribunal notes that this matter originally came before the Tribunal on an application for review of a decision of a delegate of the Minister (made 10 May 2019) to refuse the visa applications of the first and second named applicants[1]. The delegate was not satisfied that the first named applicant had met the requirements of cl.189.232 on the basis that she had not provided notices of assessment and of any notices of amended assessments, given to the first named applicant by the Commissioner of taxation, of her income tax liability in relation to the four most recently completed income years before the date of application (during the period for five years immediately before that date).
[1] This decision was made in Tribunal Case Number 1816987.
On 13 June 2018 the first named applicant provided it with notices of assessment given to her by the Commissioner of taxation for the year ended 30 June 2013, 2014, 2015, 2016 and 2017.
Based on the above findings, the Tribunal was satisfied that the first named applicant has satisfied cl.189.232 and considered that the application of the second named applicant should be reconsidered on the basis that he was a member of the family unit of a person who met the primary criteria for the grant of the visa.
Accordingly, the Tribunal remitted the visa applications to the Minister to reconsider the remaining criteria.
The Tribunal notes that the visa application was lodged on 15 July 2017. In the application form (which did not include the second named applicant) the first named applicant answered “No” to the following questions:
Have you or any other person included in this application, ever:
Been charged with any offence that is currently awaiting legal action?
Been convicted of an offence in any country (including any conviction which is now removed from official records)?
Been charged or convicted of family or domestic violence offences or similar related offences?
Been the subject of an arrest warrant or Interpol notice?
The Tribunal further notes that the first named applicant provided the Department/Tribunal with an Australian Federal Police (AFP) Certificate (dated 27 March 2017) which shows no disclosable court outcomes for her.
On 17 August 2017 the Department requested the first named applicant provide it with a Form 80, an AFP check and information regarding her income and health. In response, the first named applicant provided the Department with information regarding her studies in Australia.
On 8 September 2017 the first named applicant lodged a Notice of Incorrect Answers Form with the Department. In this form the first named applicant requested that the second named applicant be added to the visa application.
In response, on 27 September 2017, the Department requested the first named applicant to complete a Form 1436, adding her husband (the second named applicant) to the visa application.
The first named applicant subsequently lodged a Form 1436 (signed 17 October 2017) in which the second named applicant was added as an applicant to the visa application. In this application, the applicants answered “No” to the following questions:
Have you or any other person included in this application, ever:
Been charged with any offence that is currently awaiting legal action?
Been convicted of an offence in any country (including any conviction which is now removed from official records)?
Been charged or convicted of family or domestic violence offences or similar related offences?
Been the subject of an arrest warrant or Interpol notice?
The Tribunal notes that the second named applicant did not sign the Form 1436, which was signed twice by the first named applicant.
On 29 January 2018 the Department requested that the applicants complete and sign a second Form 1436. The applicants provided the Department with the requested Form 1436 on 10 April 2018. The Tribunal notes that this form was signed by both applicants.
In the second Form 1436, the applicants answered “No” to the following questions:
Have you or any other person included in this application, ever:
Been charged with any offence that is currently awaiting legal action?
Been convicted of an offence in any country (including any conviction which is now removed from official records)?
Been charged or convicted of family or domestic violence offences or similar related offences?
Been the subject of an arrest warrant or Interpol notice?
On 19 April 2018 the Department acknowledged that the second named applicant had been added to the visa application.
On 4 May 2021 the first named applicant provided a completed and signed[2] Form 80 in which she answered “No” to the following questions:
Have you or any other person included in this application, ever:
Been charged with any offence that is currently awaiting legal action?
Been convicted of an offence in any country (including any conviction which is now removed from official records)?
Been charged or convicted of family or domestic violence offences or similar related offences?
Been the subject of an arrest warrant or Interpol notice?
[2] The Tribunal notes that the first named applicant signed the Form 80 on 2 May 2021.
On 14 May 2021 the Department wrote to the second named applicant, noting that he had not completed a Form 80 in relation to relevant character issues and that information from the FBI indicated a prior arrest history for him in the USA. The Department requested the second named applicant provide information regarding these matters.
On 17 May 2021 the second named applicant wrote to the Department, advising that:
This record comes from an altercation with the mother of my son, involving the custody of our son due to a breakdown in our relationship sometimes around 2009. My partner at the time became verbal abusive and aggressive towards me and I acted in self-defence. And left the environment. But she proceeded to make a complaint to the Denver Police Department, Denver, Colorado, and I was invited for questioning.
I subsequently attended Colorado County Court, Denver, without having any conviction recorded (record sealed) (spent conviction). However, I served a Court-ordered community service of forty hours. Apart from this unfortunate minor domestic incident, I have had other brush with the law.”
On 1 October 2021 the applicants provided the Department with an FBI Identity History Summary (dated 10 January 2021) for the second named applicant which shows that:
·On 27 December 2009 he was arrested on charges of kidnapping false imprisonment, assault (known/reckless cause injury) and crimes against the person. On 5 January 2011 the second named applicant was found guilty of kidnapping false imprisonment convicted and the matter was deferred and dismissed.
·On 9 July 2016 the second named applicant was charged with a violation of probation.
·In 2012 the second named applicant was charged with the offences of Driving while intoxicated or impaired and refusal to take a blood or breath test, which were recorded as second offences.
The Tribunal notes that since his initial arrival in Australia in February 2013, the second named applicant has travelled to and from the United States of America (USA) on several occasions.
Departmental records show that on each passenger card signed by the second named applicant upon his arrival in Australia, the second named applicant declared “No” to the question:
Do you have any criminal convictions?
The Tribunal notes that the Movement Records kept by the Department show that the second named applicant’s travel to and from Australia is as follows:

Date of arrival 15 February 2013

Date of departure 1 March 2013

Date of arrival 11 August 2013

Date of departure 13 September 2013

Date of arrival 22 September 2013

Date of departure 6 May 2015

Date of arrival 19 May 2015

Date of departure 25 June 2015

Date of arrival 17 August 2016

Date of departure 14 January 2018

Date of arrival 24 February 2018

Date of departure 29 July 2019

Date of arrival 30 August 2019

Date of departure 6 March 2022

Date of arrival 28 April 2022

On 19 January 2022 the Department wrote to the applicants, inviting them to comment on certain adverse information which suggested that the applicants had provided or caused to be provided, or caused to be provided, a bogus document or false or misleading information in relation to the visa application, and therefore failed to satisfy PIC 4020(1). This information included the following:
·Incoming passenger cards commencing 15 February 2013.
·The Form 1436 dated 17 October 2017.
·The Form 80 dated 4 May 2021.
·The FBI Identity History Summary (dated 10 January 2021) and provided by the applicants on 1 October 2021.
·The second named applicant’s personal statement dated 17 May 2021, regarding offences committed by him in 2009.
The Department requested that any comments should be made by 31 March 2022.
On 3 March 2022 the applicants provided the Department with a written response to the Department’s invitation to comment on adverse information, which may be summarised as follows:
·In Australia, Part VIIC of the Crimes Act 1914 (Cth) makes provision for the collection, use and disclosure of old conviction information. This law affects Commonwealth authorities in that a person with a conviction protected by Part VIIC is required to disclose that conviction to any person, including a Commonwealth authority, unless an exclusion applies. Part VIIC further prohibits Commonwealth authorities from accessing, disclosing, or taking into account spent convictions of Commonwealth offences.
·Similarly, in the USA there are a variety of ways that criminal convictions become spent. This includes a criminal conviction being pardoned or a criminal record being expunged or sealed.
·The Colorado Revised Statutes provide that if a person’s criminal record is sealed, they are not required to disclose that conviction, except in certain exceptional circumstances.[3]
·The second named applicant did not attempt to intentionally mislead the Department or hide his character or history. His failure to disclose his criminal history can be attributed to a mistaken belief on his part since his criminal records were sealed and it was not relevant for him to disclose them to the Department unless he chose to do so.
·If the second named applicant’s criminal records had not been sealed, he would have disclosed them to the Department. Unfortunately, he did not realise that the above provision do not apply in certain circumstances, especially when arriving in a new country.
·The second named applicant does not contest that that he has made a mistake regarding his non-disclosure of his previous criminal record, which caused him to give the Department information that was false and misleading in a material particular and which was relevant to the criteria that the Department may consider when making a decision on the visa application.
·The second named applicant is sincerely sorry for his poor understanding of how a sealed record works with respect to the circumstances in which criminal records could be disclosed.
·The requirements of PIC 4020 should be waived by the Department in respect of the second named applicant should be waived on the basis that there are compassionate and compelling circumstances affecting a New Zealand citizen (the first named applicant) who is the second named applicant’s spouse. These include the first named applicant’s need for emotional support from her husband which would not be available to her if the second named applicant’s visa was not granted, and he was required to leave Australia. The applicants also wish to have children and the first named applicant recently suffered a miscarriage which has caused her emotional distress.
·The relevant case law[4] indicates that an innocent mistake does not necessarily mean that the provisions of PIC 4020 are engaged against a visa applicant. In this instance, the sealing of his criminal records entitled the second named applicant to not disclose his criminal records to the Department. It was not his fault that he extended the same understanding when answering “No” to the question “Has the applicant ever been convicted of an offence in any country?
·Although the second named applicant is an American citizen, his first language is Amharic, and his secondary language is English. This may have contributed to the way in which he interpreted the question about prior convictions.
[3] A copy of the Colorado Revised Statutes 24-72-703 was attached to these submissions.
[4]Singh v Minister for Immigration & Anor 920160 FCCA 774 at [49] (4 May 2016) Emmett J.

The Tribunal notes that Sentrylink is a company which provides national criminal background checks which show criminal records and convictions for offenders in the USA. The Sentrylink report provided to the Tribunal states that there are no criminal or sex offender records found for ABDI MESAY date of birth 2 December 1982. The Tribunal further notes that the report contains the following caveat:
The report does not guarantee the accuracy or truthfulness of the information as to the subject of the investigation, but only that it is accurately copied from public records. Evidence of identity theft may or may not be identified from this report.
First named applicants’ evidence
The first named applicant (the applicant) is aged 41 years and was born in Addis Ababa, Ethiopia. She was a national of Ethiopia until 16 August 2002 when she became a naturalized New Zealand citizen. The first named applicant initially arrived in Australia on 25 December 2008 as the holder of a Special category subclass 444 visa.
The second named applicant is aged 40 years and was also born in Adidas Ababa, Ethiopia. He is a national of the USA.
The applicants met in the United States of America (USA) in 2012 when the applicant travelled there to spend time with childhood friends in Washington D.C. The second named applicant was one of those friends and they became engaged to marry on the day they met again. The applicant explained that she had always loved the second named applicant and wanted to marry him. Although the applicant was aware that the second named applicant had a son from a previous relationship, she had limited knowledge of his previous partner. At the time she thought that the second named applicant’s previous partner and son lived in Atlanta and Georgia and that they “moved around a lot”.
The couple continued their relationship after the applicant returned to Australia and the applicant asked the second named applicant to join him in Australia. The second named applicant made a couple of visits to Australia, after which he decided to come to Australia on a permanent basis to live with the applicant.
The second named applicant travelled to Australia from the USA in February and August 2013 to visit the applicant.
The applicants have been living together since the second named applicant’s return to Australia in September 2013. The couple married in Perth Western Australia on 13 September 2013[5]. Although they have no children together, they would like to have children but have postponed a family until the visa applications are finally determined.
[5] The applicant’s provided a copy of their marriage certificate dated 13 September 2013 which confirms that they were married in Perth, Western Australia on that date.
Before becoming engaged, the applicant did not ask the second named applicant about whether he had any criminal convictions. She told the Tribunal that she herself had a criminal conviction in New Zealand, which involved a drink driving charge. The applicant said that didn’t remember what penalty was involved or whether the matter was heard in a children’s or adult court. The applicant didn’t discuss her criminal matter with the second named applicant, nor did she discuss his previous criminal history or jhow much money he had in the bank. The applicant explained that they concentrated on where they would live. In the early stages of their relationship the second named applicant had wanted her to relocate to the USA (where he had been living) and the applicant wanted him to live with her in Australia.
She never asked her husband about him having a criminal record because she knew he had not been to jail, and she knew he would have told her if this was the case.
When the applicant completed the initial visa, application form she answered “No” to the question about whether she had any prior convictions because she had been living in Australia for a long time and had not engaged in any criminal behaviour in this country.
The applicant became aware of the second named applicant’s criminal record when the Department requested, he provide a police clearance certificate. The applicant did not question the second named applicant about the circumstances of his previous criminal offending. When the Tribunal asked the applicant about why she had not sought to discuss this with her husband, the applicant explained that the second named applicant’s criminal history didn’t bother her and wouldn’t change anybody’s view about him. She noted that the police in the USA had dropped some of the charges against the second named applicant and the criminal history wouldn’t change her opinion of her husband and her love for him.
When questioned by the Tribunal about her knowledge of the second named applicant being charged in the USA with offences relating to driving under the influence of alcohol, the applicant replied that she didn’t ask him about them because he had not killed anyone and had not been to jail. She was also aware that the charges in Colorado had related to an argument between the second named applicant and his former partner.
The applicant told the Tribunal that when she completed and signed the visa application form, the forms 1436 on 17 October 2017 and 10 April 2018 and the form 80 on 4 May 2021, she believed that she was only required to disclose any criminal convictions for offences which were committed in Australia. This was because she was living in Australia and thought that only Australian convictions were relevant to the visa application.
The applicant further explained that when the second named applied for his previous subclass 461 visa in October 2013, he was requested by the Department to provide a certificate from the Federal Investigation Bureau (FBI) in the United States. He complied with this request and the FBI Identity History Summary which he provided showed the same criminal history as the one dated 10 January 2021 in relation to the current visa application.The applicant explained that she viewed the certificate provided in relation to the second named applicant’s application for a subclass 461 visa, before he sent it to the Department and was aware of the criminal history in the USA from that date. The applicant further explained that although she viewed the identity History Summary she didn’t speak to her husband about its contents because she loved him, and the offences were not important to her as they didn’t involve violence or a term of imprisonment.
The applicant told the Tribunal that as a New Zealand citizen, she was currently the holder of a Special Category (subclass 444) visa and if the review application was not successful, the second named applicant would apply for a spousal visa.
The applicants operate a nursing agency business, and the second named applicant is also employed as a scaffolder on a ‘fly in-fly out’ basis in regional Western Australia. The applicant was previously engaged in fly in-fly out work but is now concentrating on operating the couple’s business.
The applicant is currently awaiting surgery for a back condition and the Tribunal notes that it adjourned the first hearing (part-heard) as the applicant was a hospital inpatient and the Tribunal considered it appropriate to adjourn the hearing until her discharge from hospital.
The applicant told the Tribunal that she and the second named applicant have found the visa application and review process stressful, and they want a decision from the Tribunal without delay.
Evidence of the second named applicant
The second named applicant confirmed his wife’s evidence in relation to their childhood friendship in Ethiopia, the circumstances of their meeting and becoming engaged in Washington D.C. in 2012 and the reason for him relocating to Australia in 2013.
The second named applicant continues to have family members living in the USA including his son and until recently his mother.
He explained that when he applied for his subclass 461 visa (in 2013), he provided the Department with a certificate from the FBI which showed the same criminal history as that contained in the FBI certificate which he provided in relation to the current visa application.
In relation to the offences which occurred in Colorado in 2009, the second named applicant explained that the arose from an argument between himself and his former girlfriend about the care of their son. At that stage, he was living with her and their son. They became involved in a verbal argument when his former girlfriend called 911 and in response, the police attended their home. Although he had not used any violence against her during the argument, his former girlfriend told the police that he had assaulted her, and they charged him with assault and harassment.
The second named applicant explained that it was difficult for black men (like himself) in the USA because the criminal justice system was weighted against them and the police and courts generally treated them unfairly because of their race and colour. He also believed that women (both in the USA and Australia) are believed over men when making allegations of domestic violence against their partners.
In relation to the two charges of driving under the influence of alcohol, the second named applicant explained that he was stopped by police whilst driving his car and requested to perform a breathalyser test. Although he initially found it difficult to provide a sample because he was short of breath, he eventually provided a sample and was found to exceed the prescribed level of alcohol in his system. He was also scared because black people in the USA are often physically abused by police. He was subsequently charged with driving under the influence of alcohol and found guilty of these offences by a Court. He could not recall the exact penalty imposed by the court but was aware that his driver’s licence was suspended for three months. Although he was not permitted to use his car for social purposes, he was permitted to drive his car to work. The second named applicant explained that drink driving expenses in the USA are considered as traffic and not criminal offences.
When the Tribunal questioned the second named applicant about his arrest for violation of parole, he explained that in the USA, if a person fails to pay a court imposed fine in a timely manner, it is termed a violation. He further explained that his arrest by the Airport Authority in July 2016 was a mistake and only occurred because he was still recorded on the court system as owing outstanding fees in respect of his driving under the influence offences.
The Tribunal questioned the second named applicant about the reasons for him answering “No” in the form 1436 signed 10 April 2018 and the passenger cards, to the following questions:
·     Have you or any other person included in this application, ever:
·     Been charged with any offence that is currently awaiting legal action?
·     Been convicted of an offence in any country (including any conviction which is now removed from official records)?
·     Been charged or convicted of family or domestic violence offences or similar related offences?
·     Been the subject of an arrest warrant or Interpol notice?
In response, the second named applicant explained that he thought that all his criminal offences in the USA had been dismissed and removed from his criminal record. He therefore thought that he was only required to disclose to the Department any criminal offending by him which occurred in Australia. He had also found the wording of the above questions “tricky” and easily misunderstood by him.
The second named applicant emphasized that the certificate from Sentrylink showed that he has no convictions recorded against him in the USA and that this was consistent with the understanding that any findings against him or criminal convictions imposed on him in the USA were now spent and he no longer had a criminal record in that country. This meant that there were no criminal offences which he was obliged to disclose to the Department.
Following the hearing, the Tribunal obtained a copy from the Department of the second named applicant’s file[6] in relation to the application for his subclass 461 visa, which was granted on 3 March 2014. The information in this file shows that the second named applicant applied for a New Zealand Citizen (Family Relationship) (Temporary) (subclass 461) visa on 9 October 2013. In the visa application form and a Form 80 – personal particulars for assessment including character assessment (dated 4 October 2013) the second named applicant answered “No” to the following question:
Have you been convicted of a crime or offence in any country (including any conviction which is now removed from official records)?
[6] Department’s file: BCC20172519194, BCC20172519194 and CLF2013248061.
The Tribunal notes that in relation to an earlier visa application[7]the Department had requested the applicant to provide an FBI criminal record certificate. This certificate (dated 24 June 2013) was provided to the Department on 26 February 2014. This certificate shows that the applicant was arrested on 5 November 2012 by the police from the Police Department of Alexandria, Virginia, USA in relation to the following charges:
·DWI Refusal of blood or breath.
·DWI Second offence.
[7] The second named applicant applied for a New Zealand Citizen (Family Relationship) (Permanent) (subclass 461) visa on 25 April 2013, which was refused by a delegate of the Minister, on the basis that he was not at that stage a member of the family unit of a person in Australia as the holder of a subclass 444 visa.
The FBI certificate further shows that on 9 January 2009, the second named applicant allegedly committed the following offences:
·Kidnapping/False Imprisonment (Misdemeanour).
·Assault/Recklessly Cause Injury (Misdemeanour).
·Crimes against the Person/Harassment – Strike/Shove/Kick (Misdemeanour).
The FBI Identity History Summary indicates that on 1 May 2011, the Court deferred and dismissed the charges of Kidnapping And False Imprisonment. In in relation to the charges of Assault/Recklessly Cause Injury and Crimes against Person/Harassment - Strike/Shove/Kick, those matters were dismissed by the District Attorney.
The second named applicant further provided the Department with a National Police certificate, issued by the AFP on 24 December 2013. This certificate shows that as at that date, there were no disclosable court outcomes recorded in any Australian State or Territory against the second named applicant.
Based on the above information, the Tribunal is satisfied that the Department was aware of the matters contained in the FBI criminal record certificate dated 24 June 2013 when it granted the second named applicant the subclass 461 visa on 3 March 2014.
Relevant authorities
The Tribunal was referred to the following judicial observations regarding PIC 4020.
In Singh v Minister for Immigration (citation above) Emmett J said:
I accept the submission of counsel for the applicant that to make a finding that information is false or misleading in a material particular is a finding that such information is more than only wrong. In such a situation, where the applicant had raised a number of explanations, each of which was capable of satisfying a decision-maker that the wrong statement was innocent, unintentional or accidental, the Tribunal was required to determine whether it accepted those explanations, or any of them, such that the statement was innocent, unintentional, or accidental, rather than false …
Further, in the decision of the Full Court of the Full Court in Trivedi v Minister for Immigrationand Border Protection (citation above), Buchanan J made the following observations:
32. It is apparent from the terms of PIC 4020 that it addressed (to) the problem of attempts to work a fraud or deception on the assessment of claims for a visa. That is also evident from the fact that PIC 4020 states a “public interest” criterion from the narrow and exceptional circumstances necessary to waive its requirements and, more generally from the serious consequences that follow from its application. I would not infer any apparent intention to disqualify a visa applicant who could explain an innocent mistake in a document or information provided by them. PIC 4020 is not directed , in my view, to innocent, unintended or accidental matters. However, different questions arise when information or documents provided in support of an application are revealed or false, in the purposely untrue sense of that term.
33. In my view, it should be accepted that an element of fraud or deception is necessary in order to attract the operation of PIC 4020. To take the example of bogus documents, a counterfeit document is not produced accidentally. Similarly, to charge that a statement is false is not to say that it is wrong. The accusation potentially imports some element of knowledge or intention on somebody’s part, and in my view does so in the present context …
Applicants’ written submissions (3 March 2021 and 1 June 2022)
The applicant’s submissions may be summarised as follows:
·In Australia, Part VIIC of the Crimes Act (Cth) deals with aspects of the collection, use and disclosure of information relating to old criminal convictions. A spent conviction is a conviction of a Commonwealth, Territory, State, or foreign offence that satisfied certain conditions and as a result cannot be disclosed.
·This legislation affects Commonwealth authorities in the following ways:
(i)a person with a conviction protected by Part VIIC does not have to disclose that conviction to any person, including a Commonwealth authority, unless an exclusion applies.
(ii)Commonwealth authorities are prohibited from accessing, disclosing, or taking into account spent convictions of Commonwealth offences.
·Part VIIC and the Crimes Regulations 1990(Cth) provide for “statutory” or “regulatory” exclusions that will prevent certain Commonwealth convictions from being spent in certain circumstances.
·Similarly, in the USA there are a variety of ways criminal convictions are spent, this includes, being pardoned, or a person’s criminal records being expunged or sealed under Colorado Revised Statutes 24-72-702(4) and other related statutes in other states.
·When a person’s criminal record is sealed, they do not need to disclose this record except in certain exceptional cases.
·The second named applicant did not intentionally mislead the Department or hide his character related history. His failure to disclose his previous criminal history was due to a mistaken belief that as his records were sealed, he was not required to disclose those matters to the Department unless he chose to do so.
·This mistake is one commonly made by people whose records are sealed and who are unaware that they must disclose these records to Immigration authorities when they enter a new country.
·The relevance of Part VIIC of the Crimes Act to the second named applicant’s situation is that it shows that Australian law recognises that criminal convictions may become spent and no longer required to be disclosed.
·The second named applicant is sincerely sorry for his poor understanding of the effect of a criminal record being sealed and in what circumstances it must be disclosed.
·If the Tribunal finds that the second named applicants does not meet the requirements of PIC 4020, the second named applicant’s circumstances warrant the waiving of those requirements. These include the couple’s desire to have children and the recent miscarriage suffered by the applicant.
·If the second named applicant is not granted the visa, this will have a significant impact on the applicant’s day to day activities and life.

The Tribunal notes that the National Police Certificate (dated 27 June 2022) for the second named applicant, shows that there are no disclosable court outcomes for the second named applicant.
The extract from the Colorado Revised Statute 24-72-703 makes provision for court orders which authorise the sealing of certain criminal records in the state of Colorado but does not vacate any conviction. It also provides that if a defendant in that state is convicted of a new criminal offence after an order sealing conviction records is entered, a court shall order the conviction records to be unsealed. The statute further provides that inspection of such criminal records may be permitted by the court on the petition of the defendant save that an order sealing criminal records does not deny access to the criminal records of a defendant by any court, law enforcement agency, criminal justice agency, prosecuting attorney or party or agency required by law to conduct a criminal history record check on that individual.
Applicant’s submissions (12 December 2022)
These submissions may be summarised as follows:
·The second named applicant did not intentionally mislead the Department about his character-related history. His actions can be attributed to his mistaken belief that his records were sealed (spent conviction) and he had no obligation to disclose this.
·The second named applicant corrected his mistake when interviewed by immigration officers after his character-related history was known to the Department.
·The Department did not provide the applicants with sufficient time in which to provide a written response to its natural justice letter, prior to the delegate making their decision in relation to the visa application.
·The failure by the second named applicant to disclose his character-related history was an honest mistake: Trivedi and Singh’s cases.
·Given the applicant is a New Zealand citizen, the waiver provisions apply where there are compassionate or compelling circumstances that affect the interests of an Australian citizen, Australian permanent resident, or an eligible New Zealand citizen.
Findings
The Tribunal accepts that the applicants were childhood friends in Ethiopia where they were both born. They met again in 2012 when the applicant travelled to Washington D.C. in the USA to spend time with friends with whom she had grown up in Ethiopia, including the second named applicant. The Tribunal accepts that the couple decided to commence an intimate relationship almost immediately and that the second named applicant made two subsequent visits to Australia in 2012 to spend time with the applicant. The second named applicant relocated to Australia in September 2013 and the couple have lived together in Perth since his arrival. The applicants married in Perth on 13 September 2013.
The Tribunal is satisfied that when the applicants commenced their relationship in Washington D.C. in 2012, the applicant did not discuss with the second named applicant her own drink driving offence in New Zealand, nor did she ask him about any criminal offending in which he may have engaged. The Tribunal accepts that the applicant already had a deep affection for the second named applicant, had a knowledge of his character from their childhood in Ethiopia and considered him to be a good man. She thought that he would have informed her if he had committed an offence like murder or if he had been sentenced to a term of imprisonment.
The Tribunal accepts that the applicant did not become aware of the second named applicant’s criminal history in the USA until he applied for the subclass 461 visa and was requested by the Department to provide a criminal record check from the USA. When the second named applicant obtained an FBI Identity History Summary listing his criminal history in the USA. The Tribunal accepts that the applicant read the Summary and was then aware of the family violence charges and one finding of guilt in Colorado, the driving under the influence offence (which is recorded as a second offence), the arrest for violation of probation and the arrest warrants issued against the second named applicant.
The Tribunal accepts that the applicant did not discuss this criminal history with him because she did not consider the offences to be serious, did not believe the second named applicant was a violent man and was not interested in obtaining knowledge of the details of his prior behaviour.
However, the Tribunal is satisfied that although she chose not to ask the second named applicant about the circumstances of his previous behaviour, she was aware that he had been charged with several domestic violence offences relating to a domestic dispute with his former partner in Colorado and found guilty of one of those offences. She was also aware that the second named applicant had been found guilty of two charges of driving under the influence of alcohol and arrested for a breach of probation in the USA.
The Tribunal has considered the admission made by the applicant (in her oral evidence) that she was found guilty by a court in New Zealand of the offence of driving under the influence of alcohol, this offence committed when she under the age of 18 years. The Tribunal notes that there was no reference to this offence in the delegate’s decision and there is no independently verifiable evidence before the Tribunal that the applicant was convicted of this offence. Accordingly, the Tribunal has not considered this matter for the purpose of this decision.
The Tribunal is satisfied that the nature and circumstances of the charges of kidnapping, false imprisonment and assault involving he second named applicant’s former partner are family violence offences, although the FBI Identity History Summary indicates that the charges of Assault/Recklessly Cause Injury and Crimes Against the Person were withdrawn by the District Attorney and the remaining charges were deferred and dismissed by the Court without conviction.
In relation to the charges of drinking under the influence of alcohol and breach of probation, the FBI Identity History Summary and the oral evidence of the applicants does not indicate whether the second named applicant was convicted of those offences.
In relations to the warrants issued against the second named applicant in the USA, the Tribunal accepts the information contained in the FBI Identity History Summary and notes that the second named applicant conceded that the warrants were issued against him.
The Tribunal has considered the explanation given by the second named applicant for his failure to disclose the criminal charges for family violence offences and his drink driving matters and arrest warrants.
The Tribunal has further considered the copy of the Colorado Revised Statutes provided by the applicants and their submissions regarding the sealing of the second named applicant’s criminal record in that State. Whilst it accepts that the State of Colorado has made provision for the sealing of certain criminal records, there is no evidence before the Tribunal of any court order sealing the criminal records of the second named applicant in the State of Colorado. Although the letter from Sentrylink does not indicate any criminal convictions for the second named applicant in the State of Colorado, the Tribunal does not consider that the absence of any record of criminal offending, this does not necessarily support the claim that the second named applicant’s records in Colorado have been sealed. The Tribunal therefore is not satisfied that his records have been sealed as claimed.
Based on the above findings, the Tribunal is satisfied that when the applicant lodged the Forms 1436 signed 17 October 2017 and 10 April 2018 and the Form 80 signed 4 May 2021, she gave false and misleading information in answering ‘No’ to the following question:
Have you or any other person included in this application, ever:
Been charged or convicted of family or domestic violence or similar related offences?
The Tribunal notes that in his oral evidence the second named applicant’s explanation for not disclosing these matters was that he mistakenly thought that he was only required to inform the Department of any criminal offending in Australia. The Tribunal does not accept this explanation as either credible or convincing and considers that the question he was asked in his Form 1436 clearly refers to charges rather convictions. It is further satisfied from the second named applicant’s evidence that he had a clear understanding of the charges against him in Colorado and that they related to a domestic dispute, when he signed the Form 1436. He was also aware that the arrest warrants had been issued against him in the USA and that he had been found guilty of driving under the influence of alcohol on two occasions. The Tribunal does not accept that the second named applicant was confused or mistaken when he answered “No” to those questions.
Given that there is no evidence before it that the second named applicant was convicted in the USA of any criminal offences (including the offences of Driving under the Influence of Alcohol and the breaches of probation) the Tribunal is not satisfied that the second named applicant has provided false or misleading information when he answered “no” to the questions in the Form 1446 and passenger entry cards regarding criminal convictions.
However, the Tribunal is satisfied that the second named applicant has given false and misleading information in answering “No” to the following question in the Form 1436 (signed 10 April 2018):
Have you or any other person included in this application, ever:
Been charged or convicted of family or domestic violence or similar related offences?
The Tribunal accepts the second named applicant’s oral evidence (as supported by the information in the Department’s file), the Tribunal accepts that the Department had been notified of the matters contained in the FBI certificate when it granted the second named applicant his Subclass 461 visa on 3 March 2014. However, the Tribunal considers that the provision of the information in the context of an earlier visa application, does not absolve the second named applicant of the obligation not to provide information that is false or misleading in a material, in support of the current visa application.
Based on the above findings the Tribunal is satisfied that the false and misleading information provided by each of the applicants in respect of the applicant’s criminal charges for domestic violence offences was in a material relevant to a criterion for the visa, namely the character requirement. The Tribunal is further satisfied that as each of the applicants were aware of the family violence charges against the second named applicant when completing the documentation for this visa application, there was an element of fraud or deception in their respective answers. The Tribunal is satisfied that the information was not provided as the result of an honest mistake by either of the applicants. Accordingly, the Tribunal finds that the applicant and second named do not meet PIC 4020(1).
Should the requirements of PIC 4020(1) or (2) be waived?
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.
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.
For the following reasons, the Tribunal is satisfied that the requirements should not be waived.

100. The applicant has considered the applicants’ personal circumstances. Including the length of their relationship, their marriage and the couple’s wish to have children. The Tribunal accepts that the second named applicant provides considerable emotional support to the applicant, particularly in the context of her current physical ailments.
101. The Tribunal notes that although the applicants jointly operate a nursing recruitment business in Perth, the applicant is currently responsible for the day- to- day operation of the business whilst the second named applicant is employed as a scaffolder on a full-time basis.
102. The Tribunal accepts that the applicant moved from New Zealand in December 2008 with the aim of permanently relocating to this country. The Tribunal notes that she has married in Australia, gained employment, and established a business in this country and wishes to remain living in Australia with the second named applicant. Although the Tribunal was not provided with any medical reports regarding the applicant’s health, it notes that she was a hospital inpatient during the first hearing and during the second hearing was awaiting back surgery.
103. In Raza v Minister for Immigration at [20] to [23] the Court referred to the cases of Vyas v Minister for immigration, Multicultural Affairs & Citizenship, Chand v Minister for Immigration and Kandel v Minister for Immigration, in concluding:
The judgments of this Court in Chand, Vyas and Kandel are consistent with the meaning ‘interests of Australia’ as connoting a more significant objective and public interest than that associated with mere employment in Australia.

104. In Minister for Immigration, Local Government & Ethnic Affairs v Roberts (also referred to in Razi’s case) at [21] the Court observed:
It seems to me the term ‘activities beneficial to the interests of Australia’ means something in the nature of activities which provide some advantage to Australia, whether commercial or otherwise. The concept necessarily connotes some public interest of Australia, even if a general or non-specific character and means more than the private interests of the respondent. The section requires some objective benefit to Australia.

105. The Tribunal further notes that in Vyas’ case the Court found no error in a Tribunal finding that while it would be “disadvantageous” for an Australian business to lose an employee, it was not a ‘compelling’ or ‘compassionate’ circumstance.
106. The Tribunal considers that the above observations are apposite to the applicant. While it accepts that the applicants have obtained employment in Australia and have established a business here, it is not satisfied that these circumstances amount to compelling circusmtnces that affect the interests of Australia.
107. The applicants claim that the applicant is an ‘eligible New Zealand citizen’ for the purpose of waiving the requirements of PIC 4020(1). The Tribunal notes that ‘eligible New Zealand citizen’ is defined in Reg 1.03 as a New Zealand citizen who is a protected SCV holder within the meaning of s.7 of the Social Security Act 1991. Section 7(1) of that Act provides that “protected SCV holder” has the meaning given by subsections (2A), (2B), (2C) and (2D). These subsections each require inter alia that a ‘protected SCV holder’ is a person who was residing in Australia on 26 February 2001.
108. Given that the movement records for the applicant and her own oral evidence confirm that she arrived in Australia in December 2008, the Tribunal finds that the applicant does not meet the definition of an ‘eligible New Zealand citizen’.
109. In these circumstances, the Tribunal is not satisfied that there are compassionate and compelling circumstances that affect the interests of an Australian citizen, permanent resident or eligible New Zealand citizen that justify the granting of the visa. Accordingly, the Tribunal is not satisfied that the requirements of PIC 4020(1) should be waived, having regard to the applicants’ circumstances.
110. Therefore, the requirements of PIC 4020(1) should not be waived.
111. Based on the above, the applicant does not satisfy PIC 4020 for the purposes of cl 189.211(1).
112. Given its findings regarding the applicant, the Tribunal considers that the second named applicant does not meet the secondary criteria for the visa.
decision
113. The Tribunal affirms the decision not to grant the applicants Skilled Independent (Permanent) visas.
Amanda Mendes Da Costa
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.

…

Trivedi v Minister for Immigration and Border Protection (2014) FCAFC 42 at [32]-[34] (4 April 2014) Allsop CJ, Buchanan J and Rangiah J.

[2022] AATA 4912

15 December 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice

Date of arrival	15 February 2013
Date of departure	1 March 2013
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Date of arrival	17 August 2016
Date of departure	14 January 2018
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Date of arrival	28 April 2022