SADEGHIAN (Migration)

[2019] AATA 3012

SADEGHIAN (Migration) [2019] AATA 3012 (27 May 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Miss Farnaz SADEGHIAN
Mr Reza SADEGHIAN
Mrs Farrokh Lagha GOLMOHAMMADI
Miss Sanaz SADEGHIAN

CASE NUMBER:  1612297

DIBP REFERENCE(S): BCC2015/2797889 BCC2015/3168874 BCC2015/3168875 BCC2015/3168876 BCC2016/593428 BCC2016/593429

MEMBER:Alan McMurran

DATE:27 May 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicants Business Skills (Provisional) visas.

Statement made on 27 May 2019 at 10:43am

CATCHWORDS
MIGRATION – Business Skills (Provisional) visa – Subclass 188 – bogus documents – simulated signatures – applicant claimed migration agent forged signature – signatures forensically examined – issues with migrant agent – credible witness – documents did not contain information that was incorrect, false or misleading – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cls 188.213, 188.311, Schedule 4, PIC 4020

CASES
Arora v MIBP [2016] FCAFC 35
Batra v MIAC [2013] FCA 274
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 20 July 2016 to refuse to grant the applicants Business Skills (Provisional) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 24 September 2015. The delegate refused to grant the visas on the basis that the review applicant (the applicant) did not satisfy the requirements of cl.188.213 (1) of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the applicant did not meet the requirement in the criterion PIC 4020(1).

3. The delegate also found that the applicant, who was a secondary applicant for the visa, had provided a bogus document, as the applicant had provided forms in support of the primary application which contained signatures which were “simulations”.

4. The applicant appeared before the Tribunal on 17 May 2019 by video from Canberra, ACT, to give evidence and present arguments. The applicants were represented in relation to the review by their registered migration agent, who appeared with the applicant for the hearing. The second to fourth-named applicants did not attend the hearing.

5. At the end of the hearing, the Tribunal provided the applicant with a further opportunity to make written submissions, to be received by the Tribunal by 24 May 2019.

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

   Background

7. The applicant is a 29 year-old citizen of the Islamic Republic of Iran. The applicant’s father, Reza Sadeghian (the father), was the applicant in an application for a Subclass 188 visa under the Business Innovation and Investment programme. The applicant, her mother and her sister were secondary applicants.

8. Where appropriate below, I have referred to the second to fourth-named  applicants simply as the applicant’s father, mother and sister, so as not to be confused with the applicant in these proceedings.

9. The applicant came to Australia as a student in 2014 and studied at the ANU in Canberra, obtaining a Master of Business degree, completed on 4 January 2016.

10. The applicant’s student visa has ceased and the applicant is currently on a Bridging Visa A (WB-020) granted 13 July 2018, pending the outcome of this review. The applicant is currently residing in the ACT.

11. The Subclass 188 visa application (the primary application) proposed an investment in Australia by the father of $1,000,000, supported by a current business in Iran styled as Nili Pangan Media Co which is described in the application as a manufacturer of building material.

12. The Department refused the father’s Subclass188 visa application for reason that the father, and each of the mother and the applicant, had submitted bogus documents, comprising 4 Departmental forms associated with the primary application. The applicant’s sister was found simply not to meet the family criterion.

13. In the circumstances, it was only necessary for the delegate to make a finding under reg 188.311 (the family criterion) in respect of the mother and the two sisters, as secondary applicants, that they were not members of the family unit of the holder of a 188 visa, the father’s application having been refused.

14. The delegate however only made that finding in respect of the applicant’s sister. As regards the mother and the applicant, the delegate proceeded to make a finding that 3 of the 4 family members had submitted bogus documents. They were then refused the visas on the basis of PIC 4020(1). The applicant seeks to challenge that finding against her.

    CONSIDERATION OF CLAIMS AND EVIDENCE

15. The threshold issue in this review under reg.188.311 is whether the applicant and her mother and sister have satisfied the secondary criteria as members of the family unit of a person (the father) who holds a Subclass 188 visa, granted on the basis of satisfying the primary criteria for the grant of the visa.

16. This issue was not answered by the Department in the delegate’s decision in respect of the applicant, and her mother, and is dealt with below.

17. The issue raised by the Department delegate is whether the applicant meets Public Interest Criterion 4020 (PIC 4020), as required by cl.188.213 (1) for the grant of the visa.

18. Broadly speaking, PIC 4020 requires that:

    ·There is no evidence that the applicant has given, or caused to be given, to the Minister, an officer, the Tribunal, a relevant assessing authority, or Medical officer of the Commonwealth, a bogus document or information that is false or misleading in a material particular in relation to the application for the visa or a visa that the applicant held in the 12 months before the application was made: PIC 4020(1); and

    ·the applicant and each member of the family unit has not been refused a visa because of a failure to satisfy PIC 4020(1) during the period starting 3 years before the application was made and ending when the visa is granted or refused, unless the applicant was under 18 at the time the application for the refused visa was made: PIC 4020(2) and (2AA); and

    ·the applicant satisfies the Minister as to his or her identity: PIC 4020(2A); and

    ·neither the applicant nor any family unit member has been refused a visa because of a failure to satisfy PIC 4020(2A) during the period starting 10 years before the application was made and ending when the visa is granted or refused, unless the applicant was under 18 at the time the application for the refused visa was made: PIC 4020(2B) and (2BA).

19. The requirements in PIC 4020(1) and (2) can be waived if there are certain compelling or compassionate reasons justifying the granting of the visa: PIC 4020(4). However, this waiver does not apply to the identity requirements in PIC 4020(2A) and (2B). PIC 4020 is extracted in the attachment to this decision.

20. In this application for review, the applicant has made no submissions for waiver under PIC 4020(4).

21. In considering this application, the Tribunal has had regard to information in the Departments’ files[1] and the Tribunal’s case file, together with written submissions made by the representative (referred to below) and the oral discussion at hearing and the post-hearing written submissions provided by the representative on 23 May 2019, as requested.

    Has the applicant met the secondary criterion in reg 188.311?

    [1] BCC2016/593429, BCC2016/593428,BCC2025/3168876,BCC2015/3168874

22. The applicant was a secondary applicant as set out above in the father’s primary application made on 24 September 2015.

23. The Department refused the father’s application in that matter on 20 July 2016. The Department made findings against the applicant and her mother, on the same basis as for the father, that all three had submitted bogus documents.

24. The delegate found that reg.188.311 was not met in respect of the applicant’s sister.

25. The applicant’s father, mother and sister being off-shore, did not have jurisdiction to seek review of the decision. The applicant however, currently in Australia and living in Canberra has sought review and is eligible to do so. The applicant however, cannot step into her father’s shoes in seeking review, and vicariously appeal the delegate’s decision, so as to have the Tribunal set-aside the decision against the father. That decision remains unchallenged, and thus the basis for setting aside the decision against the applicant that she can satisfy the family criterion in reg 188.311 as a member of the family of a person who holds the 188 visa cannot succeed.

26. At the hearing, the applicant conceded that she cannot proceed on that ground.

27. It is a criterion in reg. 188.311 that the applicant is a member of the family unit of a person who holds a Subclass 188 visa, granted on the basis of satisfying the primary criteria for the grant of the visa. As the applicant’s father was not the holder of a Subclass 188 visa, the applicant cannot meet the secondary criteria, and the Tribunal finds that reg 188.311 is not met.

28. Ordinarily, that would be enough to dispose of the review and no submissions have been made or information provided to the effect that the criterion is met.

    Prejudice to the applicant

29. The applicant however has submitted that the applicant is prejudiced by the PIC 4020 (1) finding against her, and in respect of which the delegate determined was not met. As a consequence, the applicant submits she will be barred for a period of “up to 10 years” from making any further applications, and accordingly has asked the Tribunal to review the delegate’s findings under PIC 4020 as against the applicant. The applicant asks the Tribunal to set aside the decision against her, under PIC 4020, and make a declaration accordingly.

30. The Tribunal has sought to meet the applicant’s request in the interest of procedural fairness, where the consequence of a finding which by itself was unnecessary, has nonetheless potentially infected any other subsequent visa application which the applicant may seek to make in her own name.

31. In her reasons for making the request, the applicant points to what is asserted as the negligence of the applicant’s first-appointed migration agent, and which lead to the applicant having been deprived of the right to make submissions and argument in a timely fashion, as she was not kept informed of the Department’s concerns to which she could have made timely and appropriate responses when first raised. That issue was dealt with by the applicant’s family in Federal Court proceedings brought against the migration agent, and which proceedings were settled on a financial basis in favour of the family.[2] The Tribunal has not had regard to any court documents or those proceedings, other than the copy of the FCA Order made 13 November 2018.

    [2] Tribunal case file f 99

32. In the agent’s further written submissions made 23 May 2019, the submission refers to the “effect of incorrect interpretation of PIC 4020 on all Applicants”, and criticism of the Tribunal for the time taken to deal with this review. The submission notes that “when the application [this application for review] was lodged, incorrectly, in August 2016”, the issue should have been raised with the applicants at that time, who have otherwise been prejudiced by the Tribunal’s delay. The Tribunal notes the objection, but otherwise makes no further comment, as the time taken to deal with this application does not impact the decision made in these proceedings. The Tribunal however is mindful of the potential for prejudice caused to the applicant and has some empathy for the applicant’s circumstances.

33. For these reasons, the Tribunal considers it is appropriate to make the following findings in response to the PIC 4020(1) issue, as regards the applicant.

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

34. The term ‘information that is false or misleading in a material particular’ is defined in PIC 4020(5) and the term ‘bogus document’ is defined in s.5(1) of the Act (see the attachment to this decision). In contrast to the definition of ‘information that is false or misleading in a material particular’ in PIC 4020(5), the reference in the definition of bogus document to a document that was obtained because of a ‘false or misleading’ statement has no requirement that it be relevant to a criterion for the grant of the visa: Arora v MIBP [2016] FCAFC 35; Batra v MIAC [2013] FCA 274.

35. 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.

36. 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 (or “purposeful falsity”) by some person is necessary to attract the operation of the provision: Trivedi v MIBP [2014] FCAFC 42 (Trivedi). In that case, Buchanan J states “the accusation potentially imports some element of knowledge or intention on somebody’s part”.

    What is the “bogus document” alleged?

37. In completing the application as submitted to the Department, the primary review applicant, along with the other applicants, signed certain forms for consideration for the visa. The signed documents in the case of the applicant were a form 47A, form 80 and form 1221, signed by her on 9 October 2015 (“the documents”)[3].

    [3] DIBP BCC2016/593429  file ff 94-97;

38. The applicant asserts that she signed the documents personally, using an anglicised version of her signature. The forms were submitted to the Department online by the applicants’ then agent, Daniel Eskandari.

39. The Department sought to have the documents examined and on 17 November 2015, the documents were submitted to a document examiner for the department.

40. On 19 February 2016, the document examiner (Roslind Winter) produced a case report for the Department. The examiner noted that “The questioned signatures of (the applicant) on items Q1 to Q3 are simulations using guidelines and the evidence provides qualified support for the view that they were not produced by the specimen writer of items S 18 to S 20.” Similar findings were made in respect of the applicant’s mother and father.[4]

    [4] DIBP file BCC2016/593429 at ff 67-87

41. In preparing the report, the forensic examiner had regard to the 3 forms referred to above, all of which appeared to be signed by the applicant, together with signatures on passenger cards signed by her on 5 February 2014, 21 June 2015, and 26 July 2015.

42. The examiner says that as regards the applicant, she found “there are 2 writing implements that have been used to write the black ink signatures”. She opines that “the other ink or graphite lines have been used as guidelines to produce the black ink signatures”. She then concludes:

    “I have compared the specimen signatures and have found they are variable in formation. Based on the variability of the specimen signatures I require further specimen signatures to determine whether or not they are by the same writer. Given that it cannot be established that the specimen signatures are by one writer, only a comparison of each of the questioned signatures with each individual specimen signature can be made. This kind of comparison is limited as a writer’s natural range of variation in signing their name cannot be established. I have, however, found that the question signatures are not pictorially similar any of the specimen signatures, individually [sic]” (my emphasis).

43. The applicant has vigorously and consistently denied that she did not sign the forms the subject of the examiner’s consideration. By a statutory declaration made 18 April 2016 addressed to the Department[5], the applicant states “I confirm that I have signed all the provided forms with this application”, and “the signatures on the forms are not similar with my previous/usual signature.”

    [5] DIBP file f 105

44. On 16 May 2019, the applicant swore an affidavit in these proceedings. The applicant’s evidence is that while she was in Australia at all relevant times, both the agent and her family were in Tehran. She explains that she forwarded documents to her father and to the agent on 9 October 2015, in particular the forms which she had been asked to sign in blue pen and return and which were the subject of the forensic examination at the request of the Department. She says that her statutory declaration referred to above confirming she had signed all the documents, was prepared by the agent. She says she was unaware at that time of any question concerning her signature or its veracity. She says she attended at the Canberra police station to complete the statutory declaration which she emailed to the agent.

45. Between October 2015 and July 2016 the applicant said she heard nothing further. She was unaware of the Department’s decision made 20 July 2016. She pursued the agent for information over the next 6 months, until finally on 3 March 2017, she received a copy of the Tribunal’s letter dated 10 August 2016, confirming a review application had been lodged. She says she received a copy of the Department’s decision on 31 March 2017. The applicant said that only then did she realise “that the signatures on 4 of the forms have been the problem”. She said that had she known about this concern by the case officer, she would have responded earlier including submitting forms with an explanation as to why they were not “bearing our original signatures”. She says that she is still unaware what exactly the agent did and how it is that the forms she had originally signed and emailed to the agent for submission to the Department.

46. The thrust of the applicant’s evidence is that unbeknown to her, the forms she had signed were not submitted by the agent and that he had used her signature on the forms himself. She asserts reasonably that her signatures in any event were “new” and unpractised and as anglicised versions, were evidently (pictorially) different in appearance.

47. At the hearing, the agent made a submission that the contents of the 3 forms relating to the applicant were relevant personal particulars. There would be no reason for the applicant not to provide truthful answers and in fact the contents of the forms were all correct. No challenge is made to the contents. The applicant in her affidavit states that “I had no reason whatsoever to simulate my own signature on the 3 forms that became subject of concern to the case officer.” The Tribunal attributes considerable weight to this explanation, having had the advantage also of hearing from the applicant first-hand. The Tribunal found her to be entirely credible in her presentation.

    Was there an element of “purposeful falsity”?[6]

    [6] See Trivedi

48. The Tribunal has carefully reviewed the available information and submissions, and is not satisfied it can be shown that the applicant had the necessary level of knowledge or intention to put forward false information, either by forging her own signature, or allowing another person (the previous agent) to do so. The information in the documents was not false, and the only allegation of substance is that the document signatures were counterfeit.

49. The 3 forms complained of against the applicant contain essential personal information and particulars for assessment of character in processing the visa application. As submitted by the representative, there is no reason for the applicant in this instance to provide incorrect information about herself. In her statutory declaration[7] the applicant says the signatures appear different due to the fact she was still “practicing” her anglicised version as referred to above, and concedes quite transparently that they do not appear the same. The Tribunal finds this to be a credible and forceful submission.

    [7] DIBP file BCC2016/593429 at ff

1. The delegate placed much weight on the forensic report. That report is however qualified and as the examiner herself says “I require further specimen signatures to determine whether or not they are by the same writer.”  [8] There is no evidence that the examiner was provided with further specimen signatures, or that the Department sought to answer the examiner’s qualified report. The Tribunal accepts the applicant’s evidence that she was denied an opportunity to provide those “further specimen signatures” by the conduct of her agent, which if submitted to the forensic examiner, may have produced a different outcome.

   [8] Ibid at f 85

2. In summary, the Tribunal is not satisfied that the submitted documents were bogus, meaning counterfeit or not issued in respect of the applicant. Even were the documents altered by the agent without the applicant knowing about it, the documents did not contain information that was untrue or incorrect or false or misleading in a material particular and the public interest criterion would therefore be met.   

3. The documents were “issued” by the applicant herself, in response to what she was told to do by her agent. Acting in accordance with the agent’s advice was perfectly reasonable behaviour in the circumstances, where the agent was instructed by the father and had little contact with the applicant herself. The fact the advice may have been incorrect or negligently provided, or that lodgement by the agent was incomplete, is not relevant. It is only what the applicant did and reasonably believed she could or should do herself in the context of PIC 4020 that is relevant in this particular circumstance, and in rebutting the assertion that what the applicant herself did was done knowingly, and with some purposeful intent to deceive.

4. Having heard from the applicant in person and considered her sworn statements, the Tribunal is further satisfied that her behaviour in signing and completing the forms as requested and returning them by email to her agent overseas, was at worst, an innocent mistake, unintended and accidental, within the meaning of Trivedi’s case. The actions of the applicant were not “revealed as false, in the purposely untrue sense of that term.”[9]

   [9] Trivedi per Buchanan J at par 32.

5. For these reasons, the Tribunal finds that the Applicant did not submit a bogus document or information that is false or misleading in a material particular and the criterion in PIC 4020(1) is met.

   Summary of findings

6. On the basis of the above, the applicant does satisfy PIC 4020(1) for the purposes of cl.188.213 (1).

7. The Tribunal has found however that the father, as the primary applicant for the Subclass 188 visa, was refused the visa and that decision was not the subject of review.

8. As the applicant herself has not sought to meet the primary requirements for the 188 visa, she can only be considered on review, on the basis of being a member of the family unit pursuant to cl. 188.311, where her father is the holder of a Subclass188 visa.

9. The Tribunal finds that the applicant in these proceedings does not meet cl.188. 311 and is not a member of the family unit of a person who holds a Subclass 188 visa granted on the basis of satisfying the primary criteria for the grant of the visa.

10. In those circumstances, the Tribunal must affirm the decision not to grant the visa.

    The second to fourth named applicants

11. The Tribunal does not have jurisdiction in respect of the second to fourth-named applicants.

    DECISION

12. The Tribunal affirms the decision not to grant the applicants Business Skills (Provisional) visas.

    Alan McMurran
    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. 

    …