Sandhu (Migration)

Sandhu (Migration) [2019] AATA 958 (27 March 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Ms Gurpreet Kaur Sandhu
Mr Gurpinder Singh Sandhu
CASE NUMBER:  1810650
DIBP REFERENCE(S):  BCC2017/1034068
MEMBER:Wendy Banfield
DATE:27 March 2019
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicants Student (Temporary) (Class TU) visas.
Statement made on 27 March 2019 at 11:30am

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – false and misleading information – criminal charges pending legal action – custody dispute with ex-husband – claims of assault against former mother-in-law – onus of ensuring correctness of application – element of knowledge or intention – waiver of requirement – no evidence of compelling circumstances – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 500.217; Schedule 4, PIC 4020
CASES
Arora v MIBP [2016] FCAFC 35
Batra v MIAC [2013] FCA 274
Kaur v MIBP [2017] FCAFC 184
Plaintiff M64/2015 v MIBP [2015] HCA 50
Trivedi v MIBP [2014] FCAFC 42

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration on 9 April 2018 to refuse to grant the applicants Student (Temporary) (Class TU) visas under s.65 of the Migration Act 1958 (the Act).
The applicants applied for the visas on 15 March 2017. The delegate refused to grant the visas on the basis that the first named applicant (the applicant) did not satisfy the requirements of cl.500.217(1) of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the applicant provided evidence to the Department that was considered to be false and misleading in a material particular.
Background
The primary applicant (the applicant) is a citizen of India and is currently 31 years old. The secondary applicant is the husband of the primary applicant and is age 31. The applicant first arrived in Australia on 8 August 2014 as the holder of a Subclass 573 Student Visa and the secondary applicant arrived on 15 November 2016 as a dependent. The applicant was married previously and divorced. She and her former husband have one child of the relationship who currently lives with family in India.
The applicant applied for the visa which is the subject of this review on 15 March 2017. When the applicant’s current visa application was assessed by the Department she was found to have provided false and misleading information when she answered ‘no’ to the following question ‘Has any applicant ever been charged with any offence that is currently awaiting legal action? (hereinafter referred to as ‘the relevant question’).
In support of the review application, the applicant submitted the following evidence:
·     Written submissions to the Tribunal from EP Migration Australia Pty Ltd;
·     Affidavit of Gurnek Singh, the father of the applicant dated 20 December 2017;
·     Affidavits of Parvesh Kumar, Advocate dated 21 December 2017 and 18 July 2018;
·     Court documents dated 5 July 2014 and 23 September 2017;
·     Affidavit of the applicant Gurpreet Sandhu dated 27 July 2018;
·     Indian Police Clearance Certificate in the name of the applicant dated 24 August 2018;
·     Letter from Jaspreet Singh, Advocate dated 21 January 2019;
·     Copy of a Magistrates Court decision dated 18 January 2019 dismissing the complaint against the applicant.
The applicant had submitted evidence to the Department which has also been taken into account in this decision.
The applicants appeared before the Tribunal on 1 August 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.
The applicants were represented in relation to the review by their registered migration agent. The representative attended the Tribunal hearing.
The hearing
The applicant advised she came to Australia in August 2014 with the intention of studying a Master of Computer Science. The applicant changed to a different university and completed a Diploma of IT in July 2018. At the time of the hearing she was enrolled in a Master of Business Administration.
The applicant addressed the reasons why her application for a Student Visa was refused in March 2017. According to the applicant she experienced difficulties obtaining a divorce from her former husband in India in 2014 because he did not want it. She said she had given birth to a baby while living in the UK. The applicant said that when she attended court regarding her divorce in 2014, her former husband threatened her and tried to prevent her having access to their child. She said that after being threatened physically, her father attended court on her behalf. The applicant claimed that despite travelling to Australia for study, her former husband continued to threaten her online.
A divorce was finalised in 2014 and following a custody case, the applicant was granted custody of her daughter. The applicant said she had been returning to India regularly to visit her child who resides with the applicant’s parents. During the divorce hearing in 2014 the applicant said her ex-husband filed a complaint against her claiming the applicant’s family had assaulted her former mother-in-law. According to the applicant that matter was dismissed in 2014. The Tribunal asked the applicant about her statement in which she said the same complaint had been re-filed in 2016. The applicant explained that during 2016 her ex-mother-in-law tried to file the case again and although the ex-husband had remarried and moved to Canada, the file was re-opened. It was in 2017 when she went back to India that the applicant learnt the case had been re-filed but she said the matter did not proceed because the complainant did not appear in court.
The applicant told the Tribunal her ex-mother-in-law informed her, the complaint would be withdrawn if the applicant gave custody of her daughter to her former husband’s family. She said she had the documents that show no witnesses appeared and the complaint did not go ahead because it was really about the custody matter. She said her former husband wanted custody of the child because she was born in the UK. The applicant said there was no police prosecution against her, her former in-laws had applied to the court themselves.
The applicant declared she had only learnt about her ex-husband’s complaint being re-filed when she returned to India in 2017 for the custody hearing. The applicant handed up documents in relation to the complaint in 2014 which was closed. The case that was re-filed in 2016 was active for six or seven months according to the applicant. When she returned to India in 2017 the applicant said she had only been able to stay for one month as she was holding a Bridging Visa in Australia. She undertook to the court to return to India if she was required to. The applicant claimed her former in-laws were harassing her over the custody case and did not want to see her be successful.
The Tribunal referred the applicant to the Department’s decision which states in October 2017 information was obtained from New Delhi that there was still an active criminal case against her. The applicant confirmed there had been a custody matter and a criminal matter in court but repeated that during mediation for the custody matter, the ex-mother-in-law said it would be dropped if the family were given custody of the child. The applicant requested a chance to prove she is honest.
After the hearing, the applicant provided evidence from the courts in India that demonstrate the case against her that was reinstated was again dismissed on 18 January 2019.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this review is whether the visa applicant meets Public Interest Criterion 4020 (PIC 4020) as required by cl.500.217(1) for the grant of the visa. Broadly speaking, this requires that:
·there is no evidence that the applicant has given, or caused to be given, to the Minister, an officer, the Tribunal, a relevant assessing authority, or Medical officer of the Commonwealth, a bogus document or information that is false or misleading in a material particular in relation to the application for the visa or a visa that the applicant held in the 12 months before the application was made: PIC 4020(1); and
·the applicant and each member of the family unit has not been refused a visa because of a failure to satisfy PIC 4020(1) during the period starting 3 years before the application was made and ending when the visa is granted or refused, unless the applicant was under 18 at the time the application for the refused visa was made: PIC 4020(2) and (2AA); and
·the applicant satisfies the Minister as to his or her identity: PIC 4020(2A); and
·neither the applicant nor any family unit member has been refused a visa because of a failure to satisfy PIC 4020(2A) during the period starting 10 years before the application was made and ending when the visa is granted or refused, unless the applicant was under 18 at the time the application for the refused visa was made: PIC 4020(2B) and (2BA).
The requirements in PIC 4020(1) and (2) can be waived if there are certain compelling or compassionate reasons justifying the granting of the visa: PIC 4020(4). However, this waiver does not apply to the identity requirements in PIC 4020(2A) and (2B). PIC 4020 is extracted in the attachment to this decision.
Has the applicant given, or caused to be given a bogus document, or information that is false or misleading in material particular?
The term ‘information that is false or misleading in a material particular’ is defined in PIC 4020(5) and the term ‘bogus document’ is defined in s.5(1) of the Act (see the attachment to this decision). In contrast to the definition of ‘information that is false or misleading in a material particular’ in PIC 4020(5), the reference in the definition of bogus document to a document that was obtained because of a ‘false or misleading’ statement has no requirement that it be relevant to a criterion for the grant of the visa: Arora v MIBP [2016] FCAFC 35; Batra v MIAC [2013] FCA 274.
The requirement in PIC 4020(1) not to provide a bogus document, or false or misleading information, applies whether or not the Minister became aware of the bogus document or information that is false or misleading in a material particular because of information given by the applicant: PIC 4020(3). It also applies whether or not the document or information was provided by the applicant knowingly or unwittingly.
While PIC 4020 refers to information that is false, in the sense of purposely untrue, it is not necessary for the Minister (or the Tribunal on review) to conclude that the applicant was aware the information was purposely untrue in order for PIC 4020 to be engaged. However, an element of fraud or deception by some person is necessary to attract the operation of the provision: Trivedi v MIBP [2014] FCAFC 42.
The Tribunal has considered the facts in this case in assessing whether there is evidence the applicant has given or caused to be given, to the Minister, an officer, the Tribunal, a relevant assessing authority or a Medical Officer of the Commonwealth information that is false or misleading at the time it is given and is relevant to any of the criteria that may be considered when making a decision on an application and is in relation to the visa application.
The applicant does not dispute that she has been involved in matters that have been before the courts in India. These matters are in relation to a custody dispute with her ex-husband and an ongoing issue with his family that includes a complaint originally filed in the Magistrates Court in India in 2014 by the applicant’s former mother-in-law. However, it is the applicant’s contention that the case against her on 2 April 2014 was finalised on 5 July 2014 and was later refiled without her knowledge. According to a Statutory Declaration dated 27 July 2018, the applicant stated the complaint against her was refiled on 25 April 2016 but she only learnt about it when she returned to India in 2017, after she had lodged her student visa.
The applicant’s statutory declaration states “on 25 April 2016 the same complaint was submitted against me…” It was for this reason the Department discovered there were in fact charges pending against her. The applicant claimed she had answered “no” to the relevant questions truthfully when she lodged her student visa because she was under the assumption there was no case pending against her. The Tribunal has considered this information and notes PIC 4020 is directed at information which is false, in the sense of purposely untrue, and it is not necessary for a visa applicant to know of, or be directly involved in, any falsehood for PIC 4020 to be engaged.
In this case, the applicant acknowledges the information she provided was false, because she later learnt there was a re-filed case against her, however, she claims it was not purposefully false or misleading. The Tribunal has considered the applicants arguments in this regard. The onus was upon the applicant to ensure that her answer to the relevant question was correct, and given she has a history of conflict with her former in-laws, including matters before the courts in the past, she should have checked whether there were any charges against her that were awaiting legal action at the time. In addition, the applicant’s parents Gurnek Singh and Lakhwinder Pal Kaur have been named in complaints as the accused together with the applicant. They would have been aware of the re-filed case against them and the applicant. The applicant is in contact with her parents because they are caring for her daughter. In this regard the Tribunal finds the false information was not a simple mistake and there was an element of knowledge or intention on the part of the applicant.
The applicant’s representative claimed that a police clearance certificate dated 15 August 2017 indicating the applicant has no criminal or police history is evidence that she answered correctly when she said “no” to the question of whether she has ever been charged with any offence that is currently awaiting legal action. The Tribunal does not accept this is the case as evidenced by the filing of charges against her in 2014 and again in 2016/2017.
Therefore, the applicant does not meet PIC 4020(1).
Should the requirements of PIC 4020(1) or (2) be waived?
The requirements of PIC 4020(1) and (2) may be waived where there are compelling circumstances that affect the interests of Australia, or where there are compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident, or an eligible New Zealand citizen (as defined in r.1.03), that justify the granting of the visa. The decision-maker must first be satisfied that there are such circumstances, then must consider whether to exercise the discretion to waive the requirements, having regard to those circumstances: Kaur v MIBP [2017] FCAFC 184.
The expressions ‘compelling circumstances’ and ‘compassionate or compelling circumstances’ are not defined for these purposes. To be compelling, the circumstances must force or drive the decision-maker irresistibly to be satisfied: see Plaintiff M64/2015 v MIBP [2015] HCA 50. The ordinary meaning of ‘compassionate’ relates to feelings of sympathy, sorrow, pity or concern for others.
For the following reasons, the Tribunal is not satisfied that the requirements should be waived.
The applicant did not provide evidence of any compelling circumstances that affect the interests of Australia, or compassionate or compelling circumstances that affect the interests of or an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen that justify the granting of the visa.
Therefore the requirements of PIC 4020(1) should not be waived.
On the basis of the above, the applicant does not satisfy PIC 4020 for the purposes of cl.500.217(1).
There is no evidence the applicant meets the criteria for any other subclass within the class of visa sought.
Member of Family Unit – Secondary visa applicant
The primary criteria must be satisfied by at least one member of the family unit. Other members of the family unit who are applicants for a visa need satisfy only the secondary criteria. Member of the family unit is defined in r.1.12 and includes spouse or de facto partner, dependent child and relatives of the family head or spouse of the family head who does not have a spouse or de facto partner and is usually resident in the family head’s household and is dependent on the family head.
As the Tribunal does not accept that the first named visa applicant satisfies the primary criteria, the secondary applicant is unable to meet the criteria because they are not a member of the family unit of, and made a combined application with, a person who satisfies the primary criteria in cl.500.217.
DECISION
The Tribunal affirms the decision not to grant the applicants Student (Temporary) (Class TU) visas.
Wendy Banfield
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.
…

[2019] AATA 958

27 March 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Intention

Natural Justice