Rowe (Migration) - [2018] AATA 2607

Rowe (Migration) [2018] AATA 2607 (23 July 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
REVIEW APPLICANT:  Ms Diane Melody Rowe (also known as Rowe-Wijethunga)
VISA APPLICANT:  Mr Priyantha Jayalath Wijethunga Arachchige Don (also known as Priyantha Wijethunga)
CASE NUMBER:  1604812
DIBP REFERENCE(S):  BCC2014/1810736 OSF2014/017269 OSF2016/080043
MEMBERS:Jan Redfern (Presiding)

Simone Burford
DATE:23 July 2018
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a Partner (Provisional) (Class UF) visa.

Statement made on 23 July 2018 at 6:00 PM

CATCHWORDS
MIGRATION – Partner (Provisional) (Class UF) visa – refusal of visa on grounds applicant does not satisfy Public Interest Criterion 4020 – whether no evidence that the applicant had provided a bogus document or false or misleading statement in relation to his application − whether reasonably suspect document is ‘counterfeit or has been altered by a person who does not have authority to do so’ – meaning of ‘counterfeit’ − whether information given to Department was false or misleading in a material particular – information related to answers provided about the purpose of the visa applicant’s visit, immigration and employment history – information provided in respect of visa history found not to be false or misleading in context of material provided with application − information provided in respect of employment history found to be false or misleading, but not in a material particular – applicant found to have provided a bogus document − whether there are compelling or compassionate circumstances affecting the interests of an Australian citizen that justify waiver – compelling circumstances not established – exercise of the discretion where there are compassionate circumstances affecting the interests of the review applicant – consideration of public policy considerations behind PIC 4020 − seriousness of the fraud − circumstances affecting the review applicant including the extended period of separation – factors weigh against the exercise of the discretion to waive – decision affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5, 65, 501
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
Kaur v MIBP [2017] FCAFC 184
Khan v Minister for Immigration and Citizenship [2011] FCA 75
MIAC v SZIAI (2009) 111 ALD 15
Nanre v MIBP [2015] FCA 528
Patel v MIBP [2015] FCAFC 22
Singh v MIMAC [2013] FCCA 1435
Sun v MIBP [2016] FCAFC 52
Trivedi v MIBP [2014] FCAFC 42
SECONDARY MATERIALS
Administrative Appeals Tribunal, President’s Direction ‘Conducting Migration and Refugee Reviews’ (30 June 2015)
Department of Foreign Affairs and Trade, ‘DFAT Country Information Report – Sri Lanka’ (24 January 2017)
Department of Foreign Affairs and Trade, ‘DFAT Country Information Report – Sri Lanka’ (23 May 2018)
Department of Immigration and Border Protection, Procedural Advice Manual (PAM3) ‘Sch4 – 4020 – The integrity PIC’ (Migration Stack 13 December 2016 – 31 December 2016)
Department of Immigration and Border Protection, Procedural Advice Manual (PAM3) ‘Sch4 – 4020 – Public Interest Criterion 4020 – The integrity PIC’ (Migration Stack 1 June 2018 – 30 June 2018)
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 Immigration on 28 January 2016 to refuse to grant the applicant a Partner (Provisional) (Class UF) visa under s.65 of the Migration Act 1958 (the Act).
The visa applicant, Mr Priyantha Jayalath Wijethunga Arachchige Don, resides off-shore. He applied for the visa, which is a temporary visa but may lead to permanent residency, on 23 July 2014. The delegate refused to grant the visa on the basis that Mr Wijethunga did not satisfy the requirements of cl.309.225(a) of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the delegate was not satisfied he met Public Interest Criteria (PIC) 4020 as required for the grant of the visa. The delegate did not make a decision on whether Mr Wijethunga meets the essential requirement for a Partner visa, namely, whether he is the spouse or de facto partner of his sponsor who is an Australian citizen.
As such, the issues in this review are whether Mr Wijethunga meets PIC 4020 and, if not, whether this requirement should be waived. If a decision is made in Mr Wijethunga’s favour, his case will be remitted back to the delegate for consideration of the additional criteria. If the Tribunal agrees with the decision of the delegate to refuse the visa on this basis, Mr Wijethunga will need to make a new application for the visa, once permitted to do so under the Act.
Mr Wijethunga’s sponsor is the review applicant, who, is known as Ms Diane Rowe-Wijethunga following her marriage. Ms Rowe-Wijethunga initially appeared before the Tribunal, differently constituted, on 30 March 2017. During that hearing, the Tribunal took evidence from Mr Wijethunga by telephone from Sri Lanka. The Tribunal hearing was conducted with the assistance of an interpreter in the Sinhalese and English languages.
The member constituted to undertake the review became unavailable to finalise the matter which was re-constituted. A directions hearing was held on 14 February 2018. The review applicant was not present at the directions hearing and was represented by her registered migration agent. Submissions made on behalf of Ms Rowe-Wijethunga by her agent were discussed at the hearing and issues to be addressed during the substantive hearing were identified by the Tribunal.
A further hearing before the Tribunal, as currently constituted, was held on 17 April 2018. The reconstituted Tribunal also listened to an audio recording of the previous hearing on
30 March 2017.
Ms Rowe-Wijethunga appeared before the Tribunal to give additional oral evidence and present arguments. The Tribunal also received further oral evidence by telephone from Mr Wijethunga from Sri Lanka. Again, the Tribunal hearing was conducted with the assistance of an interpreter in the Sinhalese and English languages.
Ms Rowe-Wijethunga was represented by her registered migration agent, who attended the Tribunal hearing and provided submissions, including submissions following the hearing dated 26 April 2018.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
RELEVANT LAW
The issue in this review is whether the visa applicant meets PIC 4020 as required by cl.309.225(a) for the grant of the visa. Relevantly, this requires that:
·there is no evidence that the visa 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 visa 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 visa applicant satisfies the Minister as to his or her identity: PIC 4020(2A); and
·neither the visa 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).
PIC 4020 is extracted in the attachment to this decision.
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.
Section 5(1) provides as follows:
“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.
PIC 4020(5) provides:
In this clause:
information that is false or misleading in 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.
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 visa 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 visa 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.
The requirements in PIC 4020(1) and (2) can be waived if there are 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).
The issues for determination in this case are whether Mr Wijethunga has given, or caused to be given to the Department a bogus document or information that is false or misleading in a material particular and, if so, whether there are compassionate or compelling reasons for this public interest criterion to be waived.
BACKGROUND
Mr Wijethunga is a 54-year-old Sri Lankan citizen. He lived in the United States of America for a number of years and it is claimed he met Ms Rowe-Wijethunga in November 2012 while she was on holidays in the United States. They met through a mutual friend. Ms Rowe-Wijethunga is sponsoring Mr Wijethunga for a Partner visa. The application was made on 23 July 2014. Ms Rowe-Wijethunga and Mr Wijethunga subsequently married in Sri Lanka. They were both previously married and are now divorced.
Ms Rowe-Wijethunga is 64 years old and has two children and a number of grandchildren who live in Australia. Mr Wijethunga has two daughters, a son, elderly parents and siblings who live in Sri Lanka.
In support of his application, Mr Wijethunga lodged a number of documents with the Department, including an Application for migration to Australia by a partner, with attachments: a Form 47SP, the ‘Application for migration to Australia by a partner’, and a Form 80, being a document headed ‘Personal particulars for assessment including character assessment’.
In the Form 47SP, in answer to question 72 under the heading ‘Part I−Character’, Mr Wijethunga ticked the ‘No’ box in answer to each of the following questions regarding his immigration history and status:
Have you, or any other person included in the application, ever:
·been removed or deported from any country (including Australia)?
·left any country to avoid being removed or deported?
·been excluded from or asked to leave any country (including Australia)?
If Mr Wijethunga had answered ‘yes’ to any of these questions he would have been required to provide further particulars.
Mr Wijethunga also stated that he lived in United States from 20 March 2009 to 26 December 2013 (question 74).
In the Form 80, in answer to question 20 (Part F- Employment), Mr Wijethunga provided details of his employment from the period January 2001 to November 2013. According to the particulars provided Mr Wijethunga worked in the United States from January 2010 to November 2013 in various roles, initially in a service station and then with transport companies.
In answer to question 37 (Part K−Character) Mr Wijethunga ticked the box ‘No’ in answer to the question about whether he had ‘left any country to avoid being removed or deported (including Australia)?’ The other questions in question 37 related to criminal activities and convictions. If an applicant answered ‘yes’ to any of these questions, they were required to provide further particulars.
In answer to question 41, which asked whether Mr Wijethunga had ever been excluded, asked to leave, deported or removed from any country, Mr Wijethunga ticked the ‘no’ box. In answer to question 42 (Part P−Citizenship refusals), Mr Wijethunga ticked the box ‘Yes’ in relation to the question about whether he had ever been refused citizenship. He further responded that he had claimed asylum in January 2010, which was denied on 12 May 2013.
Mr Wijethunga attached copies of correspondence relating to an appeal against this decision and stated that the appeal was ‘ongoing when I decided to leave’. The documents attached to the Form 80 included a document from United States immigration authorities recording that Mr Wijethunga had employment authorisation for the period 26 January 2013 to 26 January 2014, a notice of hearing in removal proceedings before the immigration court dated 17 June 2011, a notice to appear in respect of the removal proceedings dated 5 April 2010, a document from the United States Department of Homeland Security dated 28 January 2010 recording an application for asylum, a record of an oral decision made on 12 May 2013 by an immigration judge noting that Mr Wijethunga’s application for voluntary departure was granted until 15 July 2013 upon him posting a bond in the sum of USD 500 and an immigration bond dated 15 May 2013 for USD 500. Relevantly, it was noted in the order that Mr Wijethunga’s application for asylum had been refused and his application to withdraw or defer the removal order had been denied.
Mr Wijethunga and Ms Rowe-Wijethunga are said to have married in Sri Lanka on 21 March 2015. They produced documentary evidence of their marriage.
On 26 May 2015, Mr Wijethunga was invited by the Department to comment on adverse information suggesting that he had provided a bogus document or false or misleading information in relation to his application. The issue raised related information received from the United States Embassy that Mr Wijethunga had a 10 year ban from entering the United States until 2023 which was inconsistent with the information provided at interviews on
3 December 2014 and on 7 April 2015 that he had resided in United States on valid work permits and departed to be with Ms Rowe-Wijethunga.
Mr Wijethunga responded and provided an affidavit sworn 22 June 2015. In summary, the affidavit stated:
(1)Mr Wijethunga entered the United States in March 2009. He claimed asylum in January 2010 but had employment authorisation at this time and therefore had a valid work visa and right to stay in the United States from 2010 to 2014. He filed an appeal in relation to the asylum claim in February 2012.
(2)While the appeal was pending Mr Wijethunga returned to Sri Lanka but did not inform United States immigration authorities and did not believe he would be barred from the United States. He only found out about the ban from the letter the Department sent to him in May 2015. After he had received this letter, Ms Rowe-Wijethunga sought clarification from his lawyer in the United States who responded to the effect ‘Unfortunately Priyantha was in effect deported from the US because he left while the appeal was pending, thereby abandoning the case and self-deporting’.
(3)Mr Wijethunga therefore did not know or intentionally provide false or misleading information when he denied being banned from the United States.
(4)Mr Wijethunga worked for the Police Narcotics Bureau from the government of Sri Lanka from 1998 until March 2009 and from 10 January to 26 April 2014. He was unable to get written confirmation of this because of the confidential nature of his position. Mr Wijethunga was employed by Kemco as a business advisor from
1 January 2014 to the date of the visa application.
(5)Mr Wijethunga did not believe there was anything to disclose or that he had misled the Department.
On 11 November 2015, the Department sent a further invitation to Mr Wijethunga to comment on whether he had provided a bogus document or false or misleading information to the Department being a letter purporting to be from the Police Narcotics Bureau. The particulars provided by the Department were to the effect that this letter had been sent to the Police Narcotics Bureau for verification but the Bureau advised Mr Wijethunga was not attached to the Bureau. It was also noted that, even though the letter was signed by Mr Lugoda as the Division Inspector General on 5 June 2015, he retired from the position of Deputy Inspector General of Police in 2009 and was not attached to the Police Narcotics Bureau at the time that it was signed.
A response was provided by Mr Wijethunga's current migration representative on
21 January 2016. In summary, the representative denied that the employment reference from Mr Lugoda dated ‘05/06/2015’ (6 June 2015) was bogus and denied the information provided by Mr Wijethunga was in respect of a material particular because details of an applicant’s employment were not directly relevant to the criteria for the grant of a Partner visa.
These submissions essentially raised legal contentions, the details of which have been subsequently repeated and expanded in submissions made to this tribunal.
On 28 January 2016 a delegate of the Minister refused Mr Wijethunga's visa on the bases he did not meet PIC 4020(1). In brief, the delegate noted:
(1)The documents provided by Mr Wijethunga in relation to his claim for a visa showed some ‘inconsistencies’ in his immigration history in the Unites States. For instance, in the Form 80 Mr Wijethunga stated that he departed the United States on
26 December 2013 but documents provided by him, including the immigration orders, indicated that his application for voluntary departure was granted with a USD 500 bond to leave before 15 July 2013. This showed that Mr Wijethunga had not complied with the conditions of the order. There were also inconsistencies in the Form 80 about Mr Wijethunga’s stated purpose for visiting the United States as a ‘business trip’ and the employment information provided by him.
(4)The fact Mr Wijethunga answered ‘No’ in his Form 80 and 47SP responses to the question about whether he had ever left the country to avoid being removed or deported and in his Form 47SP response to the question about whether he had been excluded from or asked to leave any country was inconsistent with the information received from the United States Embassy that Mr Wijethunga had a 10 year ban from the United States. The information from the Embassy was also inconsistent with Mr Wijethunga’s denials of this information in interviews with the Department on 3 December 2014 and 7 April 2015 and with his assertions that he was in the United States on valid work permits.
(5)Mr Wijethunga provided a copy of his appeal dated 6 June 2013 in relation to his removal and, given the order was dated 14 March 2013, it was unlikely Mr Wijethunga truly believed he had a valid work visa to remain in the United States until 2014.
(6)There were inconsistencies in Mr Wijethunga’s claimed employment history and there was a letter provided by Kemco dated 24 December 2014 stating that Mr Wijethunga was the company’s business promotion adviser. In interviews with the Department, Ms Rowe-Wijethunga claimed Mr Wijethunga had worked as a narcotics detective up until April 2014. When Mr Wijethunga was asked to provide evidence of this, he provided his affidavit of 22 June 2015 and a letter purporting to be from the Sri Lankan Police Narcotics Bureau dated 5 June 2015 stating Mr Wijethunga had worked as a subcontractor until 26 April 2014. This letter was signed by Mr Lugoda who was described as the Inspector General.
(7)This letter was referred for the verification to the Police Narcotics Bureau who responded on 27 August 2015 stating that they were unable to provide to find any record Mr Wijethunga’s employment with them. Mr Lugoda retired in 2009 and as such was not employed when the reference was written. It was concluded that the employment letter was fraudulent. Mr Wijethunga was asked to respond but, according to the delegate, he failed to adequately do so and did not provide any reasons to consider a waiver.
(8)It was therefore concluded that Mr Wijethunga had provided a bogus document by providing the letter from Mr Lugoda. As such he did not meet the requirements in PIC 4020(1).
(9)In considering whether to waive this requirement, the delegate accepted Mr Wijethunga and Ms Rowe-Wijethunga may be separated for an extended period but did not consider this as a sufficient ground to warrant a waiver. The delegate noted that Mr Wijethunga was subject to a three-year exclusion period from the date of decision.
(10)The delegate was not satisfied Mr Wijethunga met the prescribed criteria for a subclass 309 visa and a subclass 100 visa because the PIC 4020(1) had not been met and therefore refused the application.
SUBMISSIONS AND QUESTIONS FOR DETERMINATION

The review applicant’s representative provided comprehensive submissions to the Tribunal. He submits there is no probative evidence that Mr Wijethunga has given, or cause to be given, a bogus document or information that is false or misleading in a material particular in relation to his application for the visa or for a visa held in the 12 months before his application was made. The evidentiary threshold for an adverse finding is not whether a document's authenticity can be confirmed to the decision-maker’s satisfaction but rather whether the decision-maker can make an adverse finding under PIC 4020 in circumstances where he or she cannot be satisfied that there is 'no evidence' the applicant gave or cause to be given a bogus document. It was further submitted that there is a similar evidentiary threshold in relation to any adverse finding about whether an applicant has given, or caused to be given, information that is false or misleading.
The review applicant submitted that the letter provided to the Department from Mr Lugoda is not a bogus document with the meaning within the meaning of s 5(1)(a), (b) or (c) of the Act.
It was submitted that the letter does not fall within s 5(1)(a) because there is no evidence the letter purports to have been but is not issued in respect of Mr Wijethunga. This submission is accepted.
It is further submitted that the letter does not fall within s 5(1)(b) because it is not counterfeit nor has the letter been altered by person who does not have the authority to do so. The review applicant’s representative submitted that a ‘counterfeit’ document is ‘one which is intentionally made as an imitation or copy of an original’[1]. It was submitted there is no evidence the letter is an imitation or a copy of a genuine letter written by Mr Lugoda or that the signature of Mr Lugoda is not genuine or forged.
[1] Review applicant’s submissions, 27 March 2017, paragraph 14 citing Trividi v MIBP [2014] FCAFC 42 and the Macquarie Dictionary.
The review applicant’s representative contends that the letter does not fall within s 5(1)(c) because there is no evidence the letter was obtained because of a false or misleading statement.
The submissions in relation to s 5(1)(b) and (c) are discussed further below.
The review applicant submitted that the delegate made no attempt to contact Mr Lugoda and did not base the findings on evidence, but rather on a bias to refuse this visa, as said to be illustrated by the following statement made in an email obtained from the Department file to the following effect (email dated 23 September 2015):
From our discussion, it appears that if we proceed with the refusal now based on PIC 4020 it would need to be based on the false and misleading information provided at interview and we would need to explain how it is a material particular and casts doubt on the credibility of their relationship etc. Probably not a very strong refusal… I would mention that we have other concerns about this case which is why we are leaning towards the refusal.
The review applicant’s representative provided details to support the reference from Mr Lugoda being Mr Lugoda's LinkedIn profile which stated he had been Deputy Inspector General of Police with the Sri Lankan Police Department from November 1973 to February 2009. He was self-employed with X-Detectives Pvt Ltd from August 2009 to the ‘Present’. The date of the LinkedIn search which was not indicated on the submissions, however the submissions were dated 2 June 2017. The LinkedIn profile further indicated Mr Lugoda was a freelance investigator from September 2014 to the ‘Present’. In submissions dated 19 April 2017 the representative also provided an email exchange between the representative and Sujatha Adhikari, a person who is said to be the secretary of Mr Lugoda. The email from Ms Adhikari stated that she had prepared the letter and it was signed by Mr Lugoda.
It was further submitted that the information identified in the delegate's decision in Mr Wijethunga's answers in Forms 80 and 47SP about the purpose of his visit to the United States and his immigration and employment history were not false or misleading in a material particular for the reasons that follow.
Firstly, the statement in Mr Wijethunga's Form 80 that he travelled to the United States for business is entirely consistent with the information contained in his United States visa label endorsed on his passport which stated that he was granted the visa for the purpose of purchasing machinery from Kent industries. This was also accepted by the delegate in the decision. The fact Mr Wijethunga decided to lodge an application for asylum after he arrived in the United States is not inconsistent with his original intention and purpose of travelling to the United States. As such the statement about his the purpose of his visit to United States was not false or misleading.
Secondly, Mr Wijethunga's answer in the Forms 80 and 47SP that he had not left any country to avoid being removed or deported was correct. The evidence is that Mr Wijethunga abandoned his asylum appeal and voluntarily departed the United States. He departed with the full knowledge and permission of the United States authorities and was never removed or deported. The fact Mr Wijethunga was not deported from the United States is supported by the United States Embassy's response to the request from the Australian High Commission about Mr Wijethunga's immigration status. In response to the question of whether Mr Wijethunga had departed the United States voluntarily or whether he was deported and whether he had any criminal cases in the United States, the United States Embassy in Colombo responded as follows:
US Embassy Colombo issued him a visa in 2009 just for the business purpose and the applicant not properly (sic) used the visa. Therefore the US Embassy bars the applicant for 10 years till 2023.
Relevantly, the review applicant submitted, the United States Embassy in Colombo made no allegation that Mr Wijethunga had been deported or removed from the United States nor was it claimed that he departed to avoid impending deportation or removal. As such, there was no evidence to support this finding by the delegate.
Thirdly, Mr Wijethunga's response in the Form 47SP to the effect that he had not been excluded from or asked to leave any country was not false or misleading. The Macquarie Dictionary defines 'exclude' to mean 'to shout or keep out; prevent the entrance of or to expel and keep out; thrust out: eject'. Given Mr Wijethunga has not attempted to enter the United States since his voluntary departure, it cannot be said he has been shut or kept out or prevented from entering the United States. Mr Wijethunga acknowledges that he is subject to a 10 year bar from re-entering the United States and accepts that this bar was the result of having accrued more than one year of an unlawful presence in the United States after his arrival. According to the American Immigration Council, a 10 year bar may be waived in certain circumstances and as such the applicant affected by a 10 year re-entry bar is not excluded unconditionally from re-entering the United States[2].
[2] Paragraph 11 of submissions dated 16 April 2018 referring to >
The review applicant further submitted that even if this statement is false or misleading, to enliven PIC 4020 the information provided must be in respect of a 'material particular' in relation to the application for the visa as required by PIC 4020(5). Any information that is false or misleading must be relevant to at least one of the criteria for the visa that the Minister could consider when making a decision on that application. The Tribunal must therefore embark on an exercise of characterisation of the false or misleading information provided to decide its relevance, if any, to a criterion for the grant of the visa in question. As the present matter relates to a Partner visa there is no criterion to which a 10 year re-entry bar from the United States may be relevant.
The review applicant submitted that the suggestion that information about a re-entry bar to another country is relevant to meeting PIC 4001 is tenuous. Section 501(6) of the Act sets out the circumstances in which a person does not pass the character test and provides, in part, that a person does not pass the character test if, having regard to either or both of the person's past and present criminal conduct and the person's past and present general conduct, the person is not of good character. While is the review applicant accepted that a re-entry bar may be a relevant consideration under the general conduct provision, this alone would not constitute a finding that the applicant is not of good character. As such, knowledge of Mr Wijethunga's 10 year re-entry bar to United States has no material bearing on whether he meets a Partner visa criteria or the character test.
The review applicant conceded that the information in answer to question 20 in the Form 80 about Mr Wijethunga's employment is not a complete account of his employment history because, for instance, it did not include his work as a subcontractor for Mr Lugoda. However this information is not in respect of a material particular because there is no criterion to which undeclared previous work experience may be relevant.
The review applicant further submitted that if the Tribunal is not satisfied that PIC 4020 has been met it should nonetheless waive the requirement under PIC 4020(4) on the basis that there are compassionate or compelling circumstances affecting the interests of Ms Rowe-Wijethunga, who is an Australian citizen, or other Australian citizens, permanent residents or eligible New Zealand citizens, being member of her family or employees of her business. These submissions are dealt with in detail later in the decision.
Ms Rowe-Wijethunga has established and based her family and business in Western Australia. If Mr Wijethunga's visa was refused on the basis of PIC 4020(1) he would be forced to wait at least three years from the visa refusal before he would be permitted to lodge a new Partner application. This would mean that he could not make an application until after 28 January 2019. In addition, there would be a further delay of between 11 and 16 months for his application to be processed by the Australian High Commission in Colombo. This information was drawn from the Department’s website about processing times. This would result in Mr Wijethunga and Ms Rowe-Wijethunga being separated for a period of about a year after 28 January 2019.
The review applicant submitted that the period of separation would have a grave emotional, mental and financial impact on Ms Rowe-Wijethunga having regard to her personal circumstances. The basis for these submissions and the evidence provided to the Tribunal are set out in more detail later in this decision.
The review applicant submitted that department policy provides that in exercising the discretion to waive PIC 4020 the decision maker must weigh the severity of the fraud said to have been committed by the applicant against the circumstances presented.[3] The Tribunal notes that this is a reflection of the policy as it was expressed in 2016. The policy no longer contains a reference to this weighing exercise.[4] The exercise of the discretion is discussed further below.
[3] Department of Immigration and Border Protection, Procedural Advice Manual (PAM3), Sch4 – 4020 – The integrity PIC, 13-12-2016 (Review applicant’s submissions, Paragraph 6, 26 April 2018.
[4] Department of Immigration and Border Protection, Procedural Advice Manual (PAM3), Sch4 – 4020 – The integrity PIC, 01-06-2018
It is submitted that this is not a circumstance where Mr Wijethunga has consistently and deliberately defrauded the Department by providing false or misleading information and bogus documents. Mr Wijethunga’s alleged fraudulent past history should be viewed as less severe or less serious for the following reasons:
(1)The alleged bogus document is the only document provided by Mr Wijethunga which is alleged to be bogus. There is no pattern or behaviour which suggests he has provided further bogus documents.
(2)The alleged information that is false or misleading relating to Mr Wijethunga's departure from the United States must be viewed in the context that Mr Wijethunga was forthcoming in providing the Department with details and a number of other documents relating to his immigration status in the United States, including his unsuccessful application for asylum. There is no evidence Mr Wijethunga was attempting to disguise the fact that he had been unlawful in the United States for a period or that he had made an unsuccessful application for asylum.
(3)By providing the alleged bogus document and information that is said to be false or misleading Mr Wijethunga gained no migration advantage. He would have been entitled to the Partner visa even if he had not worked in the claimed roles and even if he had been subject to an exclusion period in the United States.
(4)By providing the alleged bogus document and information that is said to be false or misleading Mr Wijethunga was not attempting to engage in fraud or deception in the sense described in Trivedi. He was merely attempting to show written evidence of informal subcontracting work which had not been previously declared to the Department. The information regarding his departure and exclusion period in respect of his immigration history in the United States was unintentional.
(5)The social and political context which Mr Wijethunga obtained the alleged bogus document is relevant in assessing his culpability. Mr Wijethunga requested the employment reference from Mr Lugoda's secretary and was provided with this document. He subsequently provided this letter to the Department. Country information indicates that document fraud is prevalent in Sri Lanka which results in many unsuspecting people relying on documents which they believed in good faith were issued correctly. To support this contention the review applicant’s representative relied on a report from the Department of Foreign Affairs and Trade dated 24 January 2017, which noted the document fraud is prevalent in Sri Lanka.[5]
[5] The review applicant’s submissions cite Department of Foreign Affairs and Trade, DFAT Country Information Report – Sri Lanka, 24 January 2017, page 5. This country information report has been superseded by Department of Foreign Affairs and Trade, DFAT Country Information Report – Sri Lanka, 23 May 2018. However, the later report also assesses that document fraud is prevalent in Sri Lanka, page 45.
Taking into account the Department's policy in these other matters, the Tribunal should view the severity of Mr Wijethunga's alleged fraud in the Partner visa context as being at the lower end of the spectrum of severity of seriousness.
There is no evidence to suggest that the relationship between Mr Wijethunga and Ms Rowe-Wijethunga is anything other than genuine and, having regard to the significant delay in any new application being processed, the Tribunal should not only find there are compassionate or compelling grounds to exercise of the discretion under PIC 4020(4) but that the discretion should be exercised in the circumstances of this case.
There is no finding or apparent dispute about whether the other requirements of PIC 4020 are met. For instance, there is no finding in the delegate’s decision or evidence in the available material that Mr Wijethunga or any member of his family unit have been refused a visa because of a failure to satisfy PIC 4020(1) in the period commencing 3 years before his application for this visa. Nor is there any evidence or allegation raised about Mr Wijethunga’s identity under PIC 4020(2A).
Having regard to the submissions made by the representative and the circumstances of this case, the questions for determination are:
(1)Is the letter dated 5 June 2015 purported to have been signed by Mr Lugoda a ‘bogus document’ within the meaning of s 5(1) of the Act?
(2)Did Mr Wijethunga provide information in his Form 80 and 47SP responses that were false or misleading in a material particular?
(3)Having regard to (1) and (2) does Mr Wijethunga meet PIC 4020(1)?
(4)If the answer to any of the above questions is no, should the requirement under PIC 4020(1) be waived? In particular, are there compassionate or compelling circumstances which affect the interests of Ms Rowe-Wijethunga, or another Australian citizen, Australian permanent resident or eligible New Zealand citizen, and, if so, whether the discretion be exercised?
CONSIDERATION
Has Mr Wijethunga given, or caused to be given, a bogus document?
Mr Wijethunga gave evidence that he worked at the Police Narcotics Bureau part-time as a subcontractor from 2004. The Police Narcotics Bureau was involved in disaster recovery and ‘social service’ campaigning work as well as narcotics investigations. He worked there until he travelled to the United States in 2009 and again in 2014 following his return to Sri Lanka. When the Embassy in Colombo requested proof that he worked for the Police Narcotics Bureau he spoke to Mr Lugoda's secretary and asked if Mr Lugoda would provide confirmation of his employment. He confirmed in writing to Mr Lugoda’s office the requested content of the letter. He was aware that Mr Lugoda had retired from the Police Narcotics Bureau in 2009 but understood Mr Lugoda was still working for the government through his private companies until the Sri Lankan Government changed in 2015. He confirmed that he did not request the letter from the Police Narcotics Bureau but through Mr Lugoda’s secretary at his private company. Even though he knew Mr Lugoda was no longer working at the Police Narcotics Bureau, Mr Wijethunga was not surprised when he received the letter from Mr Lugoda on ‘Police Narcotic Bureau’ letterhead. He stated that ‘what I requested I got so I was happy’. This was a 'common occurrence' in Sri Lanka. He did not know why Mr Lugoda had provided him with a letter on ‘Police Narcotic Bureau’ letterhead. He did not raise this with Mr Lugoda or his office. On several occasions Mr Wijathunga stressed that he got the letter he requested and that that was all he was concerned about.
The review applicant’s submissions dated 20 July 2018, maintain that Mr Wijethunga was unaware Mr Lugoda did not have the authority to write a letter on the letterhead of the Police Narcotics Bureau. The Tribunal does not accept this. In evidence, Mr Wijethunga conceded that he knew when he received the letter that Mr Lugoda was no longer with the Police Narcotics Bureau and did not hold the position of Division Inspector General of Police as the letter purported. When asked by the Tribunal why Mr Lugoda would have the authority to write the letter on Police Narcotics Bureau letterhead and signing as the Division Inspector General Mr Wijethunga said that Mr Lugoda worked as a government contactor through his private companies. He did not provide any explanation of how this would have given Mr Lugoda the authority to write the letter. The Tribunal finds it implausible on all the evidence that Mr Wijethunga believed that the letter was issued with authority of the Police Narcotics Bureau in these circumstances.
The review applicant’s submission that document fraud is prevalent in Sri Lanka and that Transparency International ranks Sri Lanka 83^rd out of 168 countries in its 2015 Global Corruption Perceptions Index[6] does not assist the review applicant in this regard.
[6] Review applicant’s submissions, 26 April 2018, paragraph 14.
Mr Wijethunga's evidence is that he did not disclose this work in his visa application because the work he did was confidential. He asked Mr Lugoda, through his secretary, to confirm his employment at the request of the Embassy. We accept that the question of whether Mr Wijethunga worked with Police Narcotics Bureau is not directly relevant to the ‘spousal relationship criteria’ for the grant of a Partner visa in the sense that it does not directly support or contradict any of the criteria relating to his application for a Partner visa. However, questions of an applicant and sponsor’s knowledge of each other’s work history can be relevant to assessing the level of commitment and genuineness of a relationship which is relevant to the criteria for the grant of the visa.

Further, questions regarding employment history may be relevant to consideration of other criteria for the grant of the visa including other public interest criteria or character grounds depending on the circumstances of the particular case.
While it is not clear from the Department file, we assume that efforts were made to obtain confirmation of Mr Wijethunga's employment so the decision-maker could understand the full picture of Mr Wijethunga's background in the context of his Partner visa application. The request appears to have arisen from the fact that when interviewed by the Department, Mrs Rowe-Wijethunga provided answers to questions related to Mr Wijethunga’s work history which the Department assessed were inconsistent with the answers and information he had provided to the Department.[7] This matter was also likely to be relevant to the issue of Mr Wijethunga's credibility more generally. In any event, Mr Wijethunga was requested to provide confirmation, which he sought to do.
[7] Letter from Department of Immigration and Border Protection to Mr Wijethunga dated 11 November 2015.
There is no dispute Mr Lugoda retired from Police Narcotics Bureau in 2009. While Mr Wijethunga's evidence on this issue was not entirely convincing, for instance, it is difficult to understand how a police organisation called the Police Narcotics Bureau was also involved in disaster recovery work, in the absence of evidence to the contrary, we are prepared to accept his evidence that he worked with Mr Lugoda as a subcontractor from 2004 until he travelled to United States. We also accept that he worked with Mr Lugoda on his return to Sri Lanka until April 2014 on a part-time basis. Whether this work involved working with Mr Lugoda as a subcontractor for Police Narcotics Bureau is not material because we are prepared to accept Mr Wijethunga's evidence that he worked with Mr Lugoda and was providing services of the types described by Mr Wijethunga.
The issue for determination is whether the letter from Mr Lugoda is a bogus document within the meaning of s 5(1) of the Act. As noted above, the Tribunal accepts that the letter does not fall within s 5(1)(a) because there is no evidence the letter purports to have been but is not issued in respect of Mr Wijethunga.
If the letter contained false or misleading information, PIC 4020(1) may be enlivened, not on the basis that the letter is bogus but rather on the basis that Mr Wijethunga provided false or misleading information in a material particular. In this regard, we accept the submission of review applicant’s representative that s 5(1)(c) is directed to the circumstances where a document is obtained because of a false or misleading statement. As noted by the representative, this requires a causal link between the alleged false or misleading statement and the obtaining of the alleged bogus document. Examples of the application of s 5(1)(c) include where documents are issued with false identity documents through the conduct of corrupt officials or passports or other identity documents are issued on the basis of other bogus documents.
The critical issue is therefore whether the letter dated 5 June 2015 on ‘Police Narcotic Bureau’ letterhead is a bogus document within the meaning of s 5(1)(b).
We have doubts about the provenance of the letter dated 5 June 2015. Mr Wijethunga's evidence was not convincing about how he contacted Mr Lugoda and how he received the letter. However, it is difficult to place significant weight on the unsatisfactory nature of this evidence because the telephone communications with Mr Wijethunga from Sri Lanka at the hearing on 17 April 2018 were unstable and of poor quality. The telephone call disconnected on a number of occasions and it was difficult for Mr Wijethunga and the Tribunal to communicate effectively.
The review applicant’s representative produced an email confirmation of Mr Lugoda's secretary that Mr Lugoda had in fact signed the letter. While we are prepared to accept that Mr Lugoda did sign the document this does not remove the suspicion that the letter was a bogus document.
It was submitted that:
‘..the Delegate contacted Mr M Lugoda’s former employer who in turn informed the Department that Mr M Lugoda no longer held the position he claimed to. While this may have created a suspicion in the Delegate’s mind that Mr M Lugoda was not the true author of the Letter, these suspicions could have been dispelled by making contact with Mr M Lugoda directly..’
As noted above [para 43], the review applicant submitted that the delegate made no attempt to contact Mr Lugoda and did not base the findings on evidence, but rather on a bias to refuse this visa, as said to be illustrated by the Department’s email dated 23 September 2015. The Tribunal notes that this email forms the basis for a particular query by the delegate about a procedural fairness issue and, when read in context, does not represent a concluded view of the delegate. In any event, given the nature of the Tribunal’s role we are not bound by any findings or preliminary findings of delegates or any flaws in their process.
The review applicant’s representative provided the Tribunal with contact details for Mr Lugoda with the warning that may be difficult to contact him. The Tribunal did not attempt to telephone Mr Lugoda during the hearing for a number of practical reasons:
·firstly, because of the difficulties in making telephone contact with Sri Lanka at that time of day (as evidenced by the poor telephone connection and continual disconnection of the telephone line between the Tribunal and Mr Wijethunga); and
·secondly, because it could not verify the details for Mr Lugoda were accurate.
Importantly, we do not accept the Tribunal must necessarily make enquiries to satisfy itself about whether or not a document is bogus.[8] Whether the letter dated 5 June 2015 is bogus is a matter of fact. To determine this, the Tribunal requires objective circumstances on which a reasonable suspicion could be founded.[9] The definition of ‘bogus document’ in section 5(1) simply requires that there be a reasonable suspicion the document is bogus, based on objective circumstances, not merely speculation or conjecture.[10] The Tribunal accepts that a failure to make an obvious inquiry about a critical fact could give rise to jurisdictional error for failure to complete the review in the particular circumstances of a case.[11] However, the Tribunal rejects the submission that verifying whether Mr Lugoda himself signed the letter in this case was a critical fact to determining whether there was a reasonable suspicion that the document was bogus.
[8] Sun v MIBP [2016] FCAFC 52 per Logan J [17-21]; per Flick and Rangiah JJ [86].
[9] Sun v MIBP [2016] FCAFC 52 per Flick and Rangiah JJ [86].
[10] Singh v MIMAC [2013] FCCA 1435.
[11] MIAC v SZIAI (2009) 111 ALD 15 at [25].
There is no dispute in the present case that Mr Lugoda was not the Division Inspector General with the Police Narcotics Bureau at the time the letter was apparently signed by him. This was accepted by the visa applicant. The letter from the Sri Lankan Police Narcotics Bureau provided to the Department in response to their request for verification of the document made it clear that Mr Lugoda retired in 2009 and was not attached to the Bureau in 2015 when the letter was signed. We cannot verify the letter was signed by Mr Lugoda but there is evidence to suggest it was.[12] This is not, however, determinative of the contentious issue. Whether the document was a bogus document in this case turns not on whether Mr Lugoda signed the document but on whether the document was a letter from the Police Narcotics Bureau or a letter signed by someone authorised to issue a letter on their behalf. If there are objective circumstances that lead to a reasonable suspicion that the document was bogus on this basis then the question of whether Mr Lugoda in fact signed it is neither critical nor determinative.
[12] Email verification of letter from Ms Sujatha Adhikari, Mr Lugoda’s Secretary at ‘SLX Detectives’ dated 29 March 2017 [Tribunal folio 41], attached to submissions from the review applicant’s representative date 19 April 2017.
The review applicant’s representative contended that the letter of 5 June 2015 does not fall within s 5(1)(b) because there is no probative evidence the letter is counterfeit or that it is a copy of another genuine letter written by Mr Lugoda. Nor is there probative evidence that Mr Lugoda's signature is not genuine.
This submission is rejected. It is based on a narrow definition of counterfeit and fails to recognise the second limb of s 5(1)(b) which provides that a document is bogus if it has been 'altered by person who does not have authority to do so'. Based on the available evidence before us about Mr Lugoda's role in Police Narcotics Bureau, there is a reasonable suspicion that the letter from Mr Lugoda on Police Narcotics Bureau's letterhead was a bogus document, either because Mr Lugoda wrongfully reproduced or replicated letterhead to create the impression it was official letterhead of the Police Narcotics Bureau or because he improperly used an actual Police Narcotics Bureau letterhead holding himself out as the Division Inspector General at the relevant time. There is no evidence Mr Lugoda was authorised by Police Narcotics Bureau to use its letterhead in either way.
Again, this submission is based on an unjustifiably narrow definition of counterfeit and assumes the document could only satisfy the definition in s 5(1)(b) if Mr Lugoda did not himself sign the document. The Tribunal does not accept that construction.
The definition of ‘counterfeit’ in the Macquarie Dictionary includes ‘made to imitate, and pass for, something else; not genuine’, ‘pretended’, ‘an imitation designed to pass as an original; a forgery’, ‘a copy’. The Department’s Procedures Advice Manual (PAM3) includes under its examples of bogus documents:
A bogus work reference could include:
Bogus because it is counterfeit: where the reference is created by someone falsely claiming to act on behalf of an employer or falsely claiming to be an employer.
The evidence is that Mr Lugoda was not the Division Inspector General of the Police Narcotics Bureau at the time the letter is purported to have been signed. This was not disputed by Mr Wijethunga. In such circumstances, and there is no evidence to the contrary, the inference is that Mr Lugoda was not in a position to hold himself out as such. The fact that there is a practice of documents being corruptly obtained in Sri Lanka does not assist Mr Wijethunga nor does it overcome the undisputed fact that the letter purported to be a letter of from the Division Inspector General of the Police Narcotic Bureau as at 5 June 2015, which it is not. There is sufficient material before us on which to form the suspicion that the ‘Police Narcotic Bureau’ letter is not a genuine Police Narcotics Bureau document or has been altered by a person, namely either Mr Lugoda or his secretary, falsely claiming to act on behalf of or represent the Police Narcotics Bureau and who does not have authority to do so. In contrast, there is no evidence Mr Lugoda was authorised by the Police Narcotics Bureau to hold himself out as the Division Inspector General of Police Narcotic Bureau as at 5 June 2015. There is, in fact, evidence to the contrary having regard to the response from the Police Narcotics Bureau referred to in the letter from the Department to Mr Wijethunga on
11 November 2015.
The Tribunal is not obliged, as part of its duty to enquire, to seek out evidence disproving an inference that may otherwise be drawn from the material. However, the Tribunal, as previously constituted, did make further inquiries to verify the source of the document and the identity of Mr Lugoda and these inquiries confirmed the evidence provided earlier by the Police Narcotics Bureau to the Department that Mr Lugoda was not working for the Police Narcotics Board when the document was purportedly signed by him. A 'reasonable suspicion' does not require there to be evidence of facts established on the basis on the balance of probabilities but rather objective circumstances upon which the reasonable suspicion is founded. Nor is it necessary to establish knowing complicity in the fraud although the document should be purposefully false rather than the result of an innocent mistake: Patel v MIBP [2015] FCAFC 22. In this case, there is no evidence to the effect that the letter dated 5 June 2015 was as the result of an 'innocent mistake'. Indeed the form of the letter and the time of its production, some 5 years after Mr Lugoda held a position with the Police Narcotics Bureau, suggest otherwise. Information provided to the Department by the Police Narcotics Bureau and later confirmed by the Tribunal through the Department combined with Mr Wijethunga’s evidence that he was aware when he received the document from Mr Lugoda’s secretary purporting to be on Police Narcotic Bureau letterhead, that Mr Lugoda was no longer working at the Police Narcotics Bureau and that he was not the Division Inspector General provide sufficient evidence on which to ground a reasonable suspicion that the document is bogus.
While it is asserted by the review applicant that Mr Wijathunga was unaware that Mr Lugoda did not have authority to write a letter on the letterhead of the Police Narcotics Bureau there was no evidence to support this. Indeed the evidence before the Tribunal, including the evidence of Mr Wijethunga’s knowledge of Mr Lugoda’s retirement from the Sri Lankan Police some years prior and his position at the time he signed the letter is inconsistent with these submissions.
On the evidence before it the Tribunal formed the view that there is a reasonable suspicion that the letter purportedly signed by Mr M Lugoda as Division Inspector General of the Police Narcotics Division on 5 June 2015 was counterfeit or has been altered by a person who does not have the authority to do so. The Tribunal bases this finding on all the evidence before it including:
·     The letter from the Police Narcotics Bureau provided to the Department on 27 August 2017 advising Mr Lugoda retired from the Sri Lankan Police in 2009 and was not attached to them in 2015 when he signed the letter as ‘Division Inspector General’ purportedly on Police Narcotic Bureau letterhead;
·     Information provided to the Tribunal through the Australian Embassy in Sri Lanka from the Sri Lankan Police Narcotics Bureau which confirmed their earlier advice that Mr M Lugoda was not attached to the Police Narcotics Bureau in 2015. Further the information confirmed Mr Lugoda retired from the Sri Lankan Police in 2009 as a Deputy Inspector General and that he was never attached to the Police Narcotics Bureau;
·      Mr Wijethunga’s acceptance that Mr Lugoda was retired from the police and not working for the Police Narcotics Bureau in 2015 when he provided the letter to him purportedly on Police Narcotic Bureau letterhead.
On 18 June 2018 the Tribunal invited the review applicant to comment on, or respond to, the information outlined in paragraph 86, which the Tribunal considered would, subject to her comment or response, be the reason or part of the reason for affirming the decision under review.
On 20 July 2018, after seeking an extension of time, the review applicant responded that she conceded that:
“ a. on the basis of the information provided to the review applicant by the Tribunal on 18 June 2018, Mr Lugoda appears not to have had the authority to write a letter on the letterhead of the Police Narcotics Bureau;
b. this letter therefore meets the definition of ‘bogus document’ under s.5 of the Migration Act 1958 (Cth); and
c. while the visa applicant was unaware that Mr Lugoda had no such authority to write this letter, he did unwittingly cause this ‘bogus document’ is to be provided to the Department of Immigration and Border Protection (as it then was).”
The review applicant also conceded that PIC 4020(1) was enlived but requested that the Tribunal consider whether to waive the requirement on the basis of the evidence before the Tribunal. This submission is that with further below.
Having regard to the evidence before it and the concessions made by the review applicant on 20 July 2018, the Tribunal finds that the letter from Mr Lugoda dated 5 June 2015 is a bogus document within the meaning of s 5(1)(b) of the Act.
For completeness, there is no dispute it that it was provided by Mr Wijethunga to the Department. As noted above, when inconsistencies in Mr Wijethunga’s claimed employment history arose and during interviews with the Department during the assessment of his Partner visa application, Mr Wijethunga was asked by the Department to provide evidence of employment with the Police Narcotics Bureau. He provided his affidavit of 22 June 2015 and the letter signed by Mr Lugoda, purporting to be from the Sri Lankan Police Narcotic Bureau. The Tribunal finds this letter was given to the Minister ‘in relation to’ Mr Wijethunga’s application for a Partner visa: Nanre v MIBP [2015] FCA 528.
Accordingly, PIC 4020(1) has not been met because we find that Mr Wijethunga has provided a bogus document to the Minister in relation to the application for the visa.
Has Mr Wijethunga given, or caused to be given, information that is false or misleading in a material particular?
Arguably it is not necessary to consider whether Mr Wijethunga also provided false or misleading information in a material particular because we have found that he already does not meet PIC 4020(1). However, given there is a further question about whether PIC 4020(1) should be waived, it may be relevant to consider whether there have been multiple acts of non-compliance.
It is conceded by the review applicant’s representative that the information provided by him in respect of his employment was false or misleading. It is denied that this is in respect of a material particular because the employment of Mr Wijethunga is not relevant to any criteria for a Partner visa. We accept this submission with respect to Mr Wijethunga’s application.
There were a number of statements identified in the decision of the delegate which are said to be false or misleading.
Mr Wijethunga answered ‘no’ to the question of whether he had left any country ‘to avoid being removed or deported’. It is denied this answer is false or misleading because Mr Wijethunga says he left the United States voluntarily. While there is evidence that there was a deportation order made with respect to Mr Wijethunga, the evidence suggests the order may have been effectively stayed pending the outcome of the appeal of his asylum claim. The evidence in this regard was incomplete and based on the available evidence, we accept this submission.
In answer to the question on whether Mr Wijethunga had been ‘excluded’ from any country, he also answered ‘no’ although he did attach to his application details of his failed asylum application and the immigration orders made by the immigration court in the United States. The review applicant’s representative contends that he was not ‘excluded’ within the meaning of the question for the reasons advanced by his representative in the submissions referred to above. In summary, while it is accepted Mr Wijethunga was excluded from entry to the United States for a period of 10 years it is submitted that he was not ‘excluded’ because he has not been physically denied access as a matter of fact. He has not sought to return to the United States and the act of having been excluded is used in the past tense in the question and therefore has this narrow meaning. Further, the potential for the 10 year exclusion to be lifted in certain circumstances meant it was not in effect a ‘ban’. And even if Mr Wijethunga was excluded from the United States within the meaning of the question, this information is not in respect of a ‘material particular’.

The first part of this submission is rejected. The plain English meaning of the word ‘excluded’ in the context of Forms 80 and 47SP not only includes the act of denying a person access in the past but covers the act of denying a person access in the future where the exclusion has been imposed in the past to apply to future access. To be excluded also means ‘to bar’ or ‘keep out (what is already outside)’,’shut out’ or ‘hinder from entering’; or ‘prevent the entrance of’.[13]
[13] Oxford English Dictionary, Oxford University Press, 2018 (online)
We therefore do not accept that the word ‘excluded’ in the question should be given the narrow interpretation contended for by the representative. Any reader would understand this expression both in the sense of whether they had been refused access in the past or whether they have been excluded from entry in the future by reason of a past order. Further, the fact that there may be some process available to have an exclusion period lifted in particular circumstances would not prevent a presumptive exclusion on entry from being characterised and understood as a such.

100. We also reject the submission that this information is not capable of being characterised as being in respect of a ‘material particular’.
101. The review applicant’s representative contends that the fact Mr Wijethunga has a 10 year ban from entering the United States has no bearing over whether he meets the Partner visa criteria or whether he meets the character test in PIC 4001 or under s 501(1) of the Act. PIC 4020(5) does not require that the false or misleading information have a direct bearing on the criteria for the visa in question but rather, as observed by Moore J in Khan v Minister for Immigration and Citizenship [2011] FCA 75 at [28] information would be material because ‘it is information which might influence the conclusion the decision maker might reach and, because it is false or misleading, underpin or at least contribute to a decision being made which might not have been made had the true position been known to the decision maker’.
102. PIC 4001 relevantly provides that a person satisfies PIC 4001 if:
(a) the person satisfies the Minister that the person passes the character test; or
(b) the Minister is satisfied, after appropriate inquiries, that there is nothing to
indicate that the person would fail to satisfy the Minister that the person passes
the character test

103. Section 501(6) relevantly provides:
Character test
(6) For the purposes of this section, a person does not pass the character test if:
…
(c) having regard to either or both of the following:
(i) the person's past and present criminal conduct;
(ii) the person's past and present general conduct;

the person is not of good character

104. While the fact that Mr Wijethunga has been the subject of 10 year ban from entering the United States would not, of itself, means he does not pass the character test, it is a line of enquiry that the Minister or the delegate may make to be satisfied about (b). The fact that the questions in Form 80 and 47SP may be relevant to further lines of enquiry to ascertain if a visa should be granted is arguably highlighted by their characterisation as ‘Character’ questions and by the requirement that if the questions are answered in the affirmative further information must be provided.
105. While the Tribunal is of the view that the answers to these questions may be able to be characterised as false and misleading in a material particular in some circumstances, taking into account all the circumstances of this case and in particular the fact that Mr Wijethunga provided documents to the Department with his visa application which would have alerted them to a possible issue with his visa history, the evidence falls short of probative evidence that would cause him to fail to satisfy PIC 4020(1).
Findings about whether Mr Wijethunga has met PIC 4020(1)
106. Having regard to the findings above regarding the provision of the bogus document, we concluded that Mr Wijethunga does not meet PIC 4020(1).
Should the requirements of PIC 4020(1) or (2) be waived?
107. 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. This is a two-staged inquiry. The decision-maker must first be satisfied that there are such circumstances within the meaning of PIC4020(4)(a) or (b), then must consider whether to exercise the discretion to waive the requirements, having regard to those circumstances: Kaur v MIBP [2017] FCAFC 184.
108. With respect to the first stage of this inquiry, 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. The Explanatory Statement to the relevant amendments notes that it ‘is intended that the granting of the waiver relates solely to compelling circumstances affecting Australia's interests (or the compassionate and compelling circumstances affecting the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen), not the interests of the visa applicant.’[14]
[14] Explanatory Statement, Migration Amendment Regulations 2011 (No.1) (Select Legislative Instrument 2011, No.13).
109. There were no submissions or information before the Tribunal which would suggest that there are compelling circumstances that affect the interests of Australia which would justify the grant of the visa: cl.4020(4)(a). On the basis of the material before it, the Tribunal is not satisfied that there are any compelling circumstances that affect the interests of Australia in this case.
110. The next question is whether there are compassionate or compelling circumstances in the interests of an Australian citizen, Australian permanent resident or eligible New Zealand citizen to waive PIC 4020(1).
111. Considering first the circumstances of Ms Rowe-Wijethunga, the Tribunal has not assessed the nature of the parties’ relationship for the purpose of satisfying the spousal relationship requirements for the grant of the visa. However, the Tribunal accepts, for the purpose of this provision, that the applicant may be in a genuine relationship with the sponsor and acknowledges the length of this relationship.
112. The evidence of Ms Rowe-Wijethunga is that the separation from Mr Wijethunga is causing her, and will continue to cause her, emotional stress and financial strain. They have been separated since 2014. They speak every day over Skype and Ms Rowe-Wijethunga tries to visit Mr Wijethunga in Sri Lanka at least once a year, generally for a month at a time. This has a financial impact because the cost of airfares is expensive and she has a cleaning business that it is difficult to leave. Ms Rowe-Wijethunga also has family responsibilities including a daughter who has bipolar disorder and an elderly aunt, Ms Valliant, who she lives with and cares for. Her daughter’s illness means she regularly has to take responsibility for her grandchildren who are 14, 17 and 20. All are full-time students. Ms Rowe-Wijethunga lives with her aunt. Her daughter, son-in-law and nephews live in another residence on the same block. Ms Rowe-Wijethunga has a mortgage on her home the cost of which is shared with her daughter and son-in-law.
113. Ms Rowe-Wijethunga gave evidence that she cannot relocate to Sri Lanka pending consideration of a new application. Any new application cannot be lodged until January 2019 and while Ms Rowe-Wijethunga accepted at the hearing that this is not a long time to wait, she submits that there will be a further delay in processing the application of about 12 months. The strain of separation has had a negative impact on her mental health and she suffers major depression. This is evidenced by a letter from her General Practitioner, dated 24 March 2017).[15] We accept Ms Rowe-Wijethunga’s evidence on these matters.
[15] Review applicant’s submissions, 19 April 2017, Annexure C.
114. Ms Rowe-Wijethunga’s representative further submitted that her aunt, Ms Valliant, would suffer major hardship if her niece relocated to Sri Lanka to be with the visa applicant. The letter from the General Practitioner, who also cares for Ms Valliant details major health issues suffered by her and notes that she requires her niece’s care on ‘an ongoing and indefinite basis’. It is submitted that Ms Valliant would be required to find alternate care from the state or engage a non-family member to care for her were her niece to leave Australia. This would impose significant hardship on Ms Valliant.
115. The representative further submitted that if Ms Rowe-Wijethunga’s were to be absent from Australia on a permanent or semi-permanent basis that would have grave financial impacts on her and those she employs in her commercial cleaning business. Ms Rowe-Wijethunga gave evidence she employs around 10 people. She gave evidence that in her absence her aunt, daughter and son-in-law are there to run the business ‘if need be’. It was submitted that if a decision was made not to waive the requirements of PIC 4020(1) and Ms Rowe-Wijethunga relocated to Sri Lanka would be unable to work in her role, operating her business and would be deprived of her monthly salary. She is concerned that the company would be adversely impacted, potentially with the loss of employment. It was submitted that Ms Rowe-Wijethunga would be at risk of default on mortgage repayments, adverse credit rating affects and the potential loss of her house. The loss of her house would adversely impact on all the occupants of the property including Ms Valliant and Ms Rowe-Wijethunga’s daughter, son-in-law and grandchildren.
116. The Tribunal notes that some of the submissions made about the impact of not waiving PIC 4020 on Ms Rowe-Wijethunga, her family and employees were made some time ago, in April 2017 when the potential time to run before a new application was made was significantly longer than currently stands. At the hearing Ms Rowe-Wijethunga indicated she would not be in a position to relocate to Sri Lanka if the visa application was unsuccessful. As noted earlier, at the hearing Ms Rowe-Wijethunga conceded that the period remaining before Mr Wijethunga would be able to reapply for a visa was now ‘not a long time to wait’ though she noted that the cost of filing a new application, ongoing travel to Sri Lanka and the time for processing any new application would place a strain on her financially and would further delay her retirement plans and her plans for starting a life together with Mr Wijethunga.
117. The Tribunal accepts Ms Rowe-Wijethunga’s evidence and the submissions made on her behalf regarding these matters. The Tribunal is satisfied that the evidence establishes compassionate circumstances that affect the interests of Ms Rowe-Wijethunga.
118. However, the Tribunal notes that some of these circumstances submitted would depend on Ms Rowe-Wijethunga making a decision to relocate to Sri Lanka on a semi-permanent or permanent basis which she has not chosen to do to date during her relationship with Mr Wijethunga and which she has indicated she would not be in a position to do should the waiver not be granted. The Tribunal notes that the review applicant provided evidence that family and work arrangements have been accommodated to date when she has visited Sri Lanka over the course of the relationship. While the Tribunal notes that Ms Rowe-Wijethunga lives with and assists in caring for her aunt, she also gave evidence her aunt assists with maintaining her business in her absence. Submissions on behalf of the review applicant note that if Ms Rowe-Wijethunga were to depart from Australia to live with Mr Wijethunga she would need to seek care from the state or from non-family members. While the Tribunal accepts alternative support arrangements may need to be made for Ms Valliant in Ms Rowe-Wijethunga’s absence, the Tribunal notes this would have been the case with Ms Rowe-Wijethunga’s visits to Sri Lanka to date. On this basis and in light of the significantly reduced time left to run before a new application could be made the Tribunal is not satisfied the need for such arrangements amount to compassionate circumstances in this instance in relation to Ms Valliant.
119. Ms Rowe-Wijethunga further provided evidence that her daughter, son-in-law and grand-children live on the same block as her and her aunt. The Tribunal notes grandchildren are teenagers and adults and no special circumstances which might affect them in their grandmother’s absence have been identified, other than that she assists in caring for them on occasions when her daughter is ill. In this regard the Tribunal notes the children live with both parents. The Tribunal notes that where the children have the care of their father available to them and where their ages are such that, at least in relation to the two older children there personal care needs are not likely intensive, the Tribunal is not satisfied that compassionate circumstances arise with respect to them.
120. Further the review applicant has not submitted any evidence as to the frequency or severity of her daughter’s mental illness and the degree to which she is reliant on Ms Rowe-Wijethunga. The Tribunal again notes that Ms Rowe-Wijethunga’s evidence is that the family, including her daughter, have managed the business for her in her absence. The Tribunal also notes Ms Rowe-Wijethunga provided evidence that her business has been maintained to date during visits to Sri Lanka with the assistance of her aunt, daughter and son-in-law. In such circumstances, and in light of significantly reduced time left to run before a new application could be made and prior arrangements which have been put in place to cover Ms Rowe-Wijethunga’s visits to Sri Lanka, the Tribunal finds that the negative impact of the waiver not being granted on the Australian citizen or permanent resident members of Ms Rowe-Wijethunga’s family are likely to be limited and no more significant than those suffered during visa processing period to date.
121. Further as the business is likely to be able to be maintained as has been the case with past absences, the Tribunal finds that the negative impact of the waiver not being granted on the Australian citizen or permanent resident employees of Ms Rowe-Wijethunga’s family are likely to be limited and no more significant than those suffered during visa processing period to date.
122. For these reasons the Tribunal is not satisfied there are compassionate circumstances in relation to the Australian citizen or permanent resident members of Ms Rowe-Wijethunga’s family and relevant employees.
123. As noted above, to be compelling the circumstances must force or drive the decision-maker irresistibly to be satisfied. This requirement limits the circumstances to those which have a special or strong persuasive force: Singh v MIBP [2016] FCA 156 (North J, 22 February 2016). While the Tribunal is satisfied that compassionate circumstances exist that affect the interests of an Australian citizen (Ms Rowe-Wijethunga), having regard to all the evidence including the cumulative claims made the Tribunal is not satisfied that those circumstances are compelling. While Rowe-Wijethunga’s circumstances generate feelings of sympathy they do not force or drive the Tribunal irresistibly to be satisfied. Further, for this reason and for those outlined above, the Tribunal does not regard the circumstances relating to Ms Rowe-Wijethunga’s family and her relevant employees as compelling within the meaning of PIC4020(4)(b).
124. The issue of whether we waive the requirement in PIC 4020(1) is discretionary. Being satisfied that there are ‘compassionate circumstances’ effecting the interests of Ms Rowe-Wijethunga we must give careful consideration as to how we exercise the discretion in the circumstances of this case: see Kaur v MIBP [2017] FCAFC 184, para 26.
125. We are not satisfied that those circumstances are sufficient to justify the granting of the visa and therefore to exercise the discretion to waive PIC 4020(1). We have come to this view for a number of reasons.
126. One would have thought that the usual sequence would be for the delegate to first make an assessment about whether the spousal or de facto relationship criteria is satisfied at the relevant time, then assess whether the relevant public interest criteria are met. This is consistent with PIC 4020(4) which contemplates that the visa would be granted if PIC 4020(1) or (2) is waived. However, in this case for reasons that are not apparent the delegate did not make an assessment about whether Mr Wijethunga meets the other criteria for a Partner visa. The visa was refused solely on the basis that Mr Wijethunga did not meet PIC 4020(1). In this regard we note that, according to The President’s Direction dated 30 June 2015 Conducting Migration and Refugee Reviews, as a general rule the Tribunal should restrict its review to the matters which are the subject of the adverse decision by the delegate (para 8.2). We have followed this direction and have not embarked on an assessment about whether the other criteria for a Partner visa have been met. This is relevant to the question of further delay or possible duplication in the visa assessment process. Where PIC 4020(1) is not satisfied and the requirement has not been waived, a new application must be made. An applicant must start the process again. In circumstances where there has already been a lengthy assessment of the other aspects of the Partner visa criteria, there is a significant disadvantage to an applicant and sponsor in having to recommence this process. Not only are there significant resources in having to address these particular issues but there is no doubt further delay and duplicated effort.
127. There is no dispute that Mr Wijethunga will not be able to make a fresh application until after 28 January 2019. Once this application is made, the Department will commence its process for assessing his visa. According to the review applicant’s representative, there is currently a processing delay of about 13 months. If the Tribunal were to waive PIC 4020 (1), Mr Wijethunga’s application would still require appropriate assessment by the delegate on whether his application meets the other criteria required for the granting of a Partner visa. While this does not diminish the significance of the delay, this is a matter that should be taken into account in assessing how the discretion should be exercised once compassionate circumstances are established. In other words, Mr Wijethunga and Ms Rowe-Wijethunga will have to recommence the process but this is not a case where the process had reached the ‘final hurdle’. As such, while delay may weigh in favour of exercising the discretion the circumstances in this case do not strongly favour this outcome and must be weighed against other relevant matters.
128. We accept that this is not a case where there have been multiple instances of Mr Wijethunga providing false or misleading information or bogus documents to the Department. As already noted, Mr Wijethunga provided information to the Department about his immigration status in the United States and while this information was incomplete, we accept Mr Wijethunga did not wilfully seek to mislead the Department about his immigration status.

129. Notwithstanding this, Mr Wijethunga provided a bogus document to the Department in support of his application. There is an important public policy consideration behind PIC 4020. It is vital to the integrity of the visa process for the Department to be able to rely on the authenticity and truthfulness of the information with which they have been provided.
130. We accept that document fraud is prevalent in Sri Lanka and that Transparency International ranks Sri Lanka 83^rd out of 168 countries in its 2015 Global Corruption Perceptions Index[16]. However, this does not excuse or diminish the seriousness of providing a bogus document to the Department for the purposes of assessing a visa. This necessarily undermines confidence in the credibility of information provided by a visa applicant.
[16] Review applicant’s submissions, 26 April 2018, paragraph 14.
131. The Tribunal has found that the provision of the information was not an innocent mistake and Mr Wijethunga was aware Mr Lugoda was not working at the Police Narcotics Bureau as the document purported. This weighs against exercising the discretion.
132. The seriousness of the alleged fraud is a relevant matter to take into account when weighing the various factors in exercising the Tribunal’s discretion. The alleged fraud is serious because it involves the use of purported government letterhead and seeks to hold out that a person was a government official at a particular time when he was not. Bogus documents about government agencies and officials are serious matters and we do not agree that there should be considered to be less serious or at the lower end of the spectrum of severity or seriousness. In our view, this is a matter that weighs against the exercise of the discretion.
133. As noted in PAM3,
…whether compelling or compassionate circumstances exist is a question of fact and weight, based on the evidence and information before it.

134. The exercise of discretion under PIC 4020 clearly involves a balancing of various factors. In this case, having considered all the circumstances of the case and the compassionate or compelling circumstances raised by Ms Rowe-Wijethunga we find that the likely delay and disadvantage that will be experienced by Ms Rowe-Wijethunga, while not insignificant, does not outweigh the important policy considerations of PIC 4020 and seriousness of the alleged fraud and we are therefore not satisfied that the requirements of PIC 4020(1) should be waived.
CONCLUSIONS
135. On the basis of the above, the applicant does not satisfy PIC 4020 for the purposes of cl.309.225(a).
DECISION
136. The Tribunal affirms the decision not to grant the applicant a Partner (Provisional) (Class UF) visa.
Jan Redfern
Deputy President
Simone Burford
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.

…