Noor Dimbil (Migration)

[2021] AATA 846

Noor Dimbil (Migration) [2021] AATA 846 (5 January 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Abdullahi Noor Dimbil

VISA APPLICANTS:  Ms Nasro Abdullahi Isse
Miss Sundus Abdi Mohammed
Miss Shukri Abdullahi Noor

CASE NUMBER:  1838043

DIBP REFERENCE(S):  BCC2017/2004276

MEMBER:Kira Raif

DATE:5 January 2021

PLACE OF DECISION:  Sydney

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.

Statement made on 05 January 2021 at 9:34am

CATCHWORDS

MIGRATION – Partner (Provisional) (Class UF) – Subclass 309 – bogus police check document provided – applicant no longer had valid UNHCR documents – obtained help from third party – unaware of bogus status – valid police check document submitted – compassionate and compelling circumstances – separation of sponsor from children – decision under review remitted

LEGISLATION
Migration Act 1958, ss 5(1), 65
Migration Regulations 1994, Schedule 2, cl.309.225, PIC 4020

CASES
Arora v MIBP [2016] FCAFC 35; Batra v MIAC [2013] FCA 274

Kaur v MIBP [2017] FCAFC 184.

M64/2015 v MIBP [2015] HCA 50

Mudiyanselage v MIAC [2012] FMCA 887
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 24 October 2018 to refuse to grant the applicants Partner (Provisional) (Class UF) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 6 June 2017. The delegate refused to grant the visas on the basis that the first named applicant (the visa applicant) did not satisfy the requirements of cl.309.225 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the delegate was not satisfied she met Public Interest Criterion (PIC) 4020. The sponsor (the review applicant) seeks review of the delegate’s decision.

3. The review applicant appeared before the Tribunal on 5 January 2021 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Somali and English languages. The review applicant was represented in relation to the review by his registered migration agent. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   Relevant law

4. 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).

5. 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).

6. 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. 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.

7. 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.

8. 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.

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

9. The review applicant provided to the Tribunal a copy of the primary decision record. It indicates that the application was made by the first named vias applicant and included two dependent children. In February 2018 the visa applicant submitted a police clearance certificate from the Kenyan police. The Department verified this document with Kenyan CID and it was identified as being a non-genuine document. The delegate wrote to the visa applicant seeking her comments on that information. The visa applicant explained that she was unable to obtain her Kenyan police clearance certificate from the police because her refugee documents were no longer valid so she contacted another person who facilitated obtaining the police clearance certificate.

10. In his submission to the Tribunal of 3 October 2019 the review applicant explains that after being requested to provide the police clearance certificate, the visa applicant approached the Kenyan police but was told they could not assist because the applicant’s UNHCR registration had expired. The visa applicant obtained a letter from the Refugees Affairs secretariat but even with that letter she could not obtain the police clearance and she could not get assistance from UNHCR. Her request for the waiver of the police check was refused. As she was desperate and did not know what to do, the visa applicant approached a Somali man who arranged for the fingerprints to be taken and then provided the document which was subsequently submitted to the Department. The review applicant states that he was unaware that the document was fraudulent.

11. In oral evidence the review applicant confirmed that the visa applicant was not involved in the provision of the bogus document. He states that his wife has no English and is living in a refugee camp. His wife approached someone who took her to the authorities and helped her to get the police certificate because she was unable to obtain it with the help of the refugee agency. The review applicant states that after receiving advice that the document was not genuine, his wife obtained another document. She approached the authorities who confirmed that this document was in fact genuine. While the Tribunal acknowledges that the visa applicant may have provided an additional police certificate which was confirmed to be a genuine document, on the reasoning in Mudiyanselage v MIAC [2012] FMCA 887, that is not sufficient to overcome the operation of PIC 4020.

12. Having regard to the information in the primary decision record, the Tribunal suspects that the first police clearance certificate presented with the primary application is a bogus document because it is counterfeit or has been altered by a person who does not have authority to do so.

13. The Tribunal acknowledges the review applicant’s evidence that the visa applicant was unaware that the document was a bogus document and was not involved in the fraud. However, it is not necessary to establish that the visa applicant had provided a bogus document intentionally or knowingly (Trivedi).

14. There is evidence before the Tribunal that the visa applicant has given, or caused to be given, to the Minister or an officer a ‘bogus document’, as defined in s.5(1) of the Act. The Tribunal finds that the visa applicant does not meet PIC 4020(1).

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

15. 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).

16. There is no evidence that a visa has been previously refused for failure to satisfy PIC 4020(1).  Therefore, PIC 4020(2) does not apply.

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

17. 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.

18. 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 be waived.

19. In his written submission to the Tribunal the review applicant notes that he has been in a relationship with the visa applicant since 2011 and they have a child from that relationship, born in December 2012. The review applicant states that the visa applicant has also accepted parental responsibility for his child from a previous relationship. He has been supporting his partner and children since 2014. The review applicant states that the decision not to apply the waiver would result in continued separation of immediate family members of an Australian permanent resident (he is now an Australian citizen) and would cause significant emotional and mental harm to him as he is desperate to be reunited with his wife and two children. The review applicant states that the visa applicant cannot return to Somalia, they live in Kenya as refugees and have no future there. The review applicant states that he is unlikely to be permitted to enter Kenya and granted residence and work rights.

20. The review applicant told the Tribunal that the decision to refuse to grant the visa has resulted in a number of medical conditions that affect him, including diabetes, high cholesterol and Covid. The review applicant states that he is suffering from anxiety and stress, which affected his employment. As a result of the stress he had lost his job and had to find another job.

21. The review applicant told the Tribunal that his family live in Nairobi, Kenya and there are a lot of arrests of people without proper documents. His wife’s documents have expired and they cannot approach the UNHCR. The review applicant states that his children attend school, his wife does not work and he is providing financial support to the family. The review applicant states that his family is not secure. If the visas cannot be granted, he may be forced to leave Australia but he is an Australian citizen and a taxpayer and it would be difficult for him to live elsewhere. The review applicant states that his wife has no documents to live in, or travel to, another country and she cannot return to Somalia.

22. The review applicant referred to the financial support he provides to his family and the financial hardship it has caused him.

23. The Tribunal accepts that there is a minor child from the review applicant’s relationship with the visa applicant and also that the visa applicant has accepted parental responsibility in relation to the review applicant’s elder child. For the purpose of this application, the Tribunal is prepared to accept that the applicant may have a genuine spousal relationship with the visa applicant. The Tribunal accepts that if the waiver is not applied, the review applicant will be separated from his partner and his two children. The Tribunal also acknowledges the review applicant’s evidence about his medical condition, although the Tribunal is mindful that it is not supported by probative medical reports. The Tribunal accepts that the review applicant is distressed about his family’s circumstances and the separation from his wife and children.

24. The Tribunal has formed the view that the separation of the applicant and his two children constitutes a compassionate circumstance. The review applicant is an Australian citizen. The Tribunal thus finds that  there are compassionate circumstances that affect the interests of an Australian citizen that justify the granting of the visa. The Tribunal has formed the view that the requirements should be waived, having regard to those circumstances. Therefore the requirements of PIC 4020(1) should be waived.

    Has the applicant satisfied the identity requirements?

25. PIC 4020(2A) requires an applicant satisfy the Tribunal as to his or her identity.  There is no evidence that there are any issues about the visa applicants’ identities. Therefore, the applicant meets PIC 4020(2A).

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

26. 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). There is no evidence that the visa applicants have previously been refused a visa on the basis of a failure to satisfy PIC 4020. Therefore PIC 4020(2B) does not apply.

27. The Tribunal has formed the view that the visa applicant does not meet PIC 4020(1) but that the waiver in PIC 4020(4) should be applied. On the basis of the above, the visa applicant satisfies PIC 4020 for the purposes of cl.309.225.

    DECISION

28. 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.

    Kira Raif
    Senior Member