Sarwari (Migration)

Sarwari (Migration) [2023] AATA 2111 (6 June 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REVIEW APPLICANT:  Mr Ghulam Abbas Sarwari
VISA APPLICANTS:  Mrs Sabira Sarwari
Miss Sadia Batool
REPRESENTATIVE:  Mr Madhukar Naiker
CASE NUMBER:  1917204
HOME AFFAIRS REFERENCE(S):          OSF2013/031379
MEMBER:Tegen Downes
DATE:6 June 2023
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal remits the applications for Partner (Provisional) (Class UF) visas for reconsideration, with the direction that the applicants meet the following criteria for Subclass 309 (Spouse (Provisional)) visas:
·Public Interest Criterion 4020 for the purposes of cl 309.225 of Schedule 2 to the Regulations

Statement made on 06 June 2023 at 2:19pm
CATCHWORDS
MIGRATION –Partner (Provisional) (Class UF) visa – subclass 309 – failed to meet PIC 4020 – applicants and the sponsor knowingly provided false and misleading information – question about the sponsor’s other relationships was poorly worded – primary applicant did not provide false and misleading information which was purposely untrue – no element of fraud or deception by the primary applicant in her interview with the department – decision under review remitted
LEGISLATION
Administrative Appeals Tribunal Act 1975 Cth, s 2A
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl 309.225, Public Interest Criterion 4020
CASES
Trivedi v MIBP [2014] FCAFC 42
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 20 May 2019 to refuse to grant the applicants Partner (Provisional) (Class UF) visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants applied for the visas on 28 June 2013. The delegate refused to grant the visas on the basis that the applicants did not satisfy the requirements of cl 309.225 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). Relevantly, the delegate found that the applicants and the sponsor knowingly provided false and misleading information to the department so as to gain a positive outcome. Accordingly, the delegate was not satisfied that the applicants met Public Interest Criteria 4020 (PIC 4020).
The review applicant was represented in relation to the review. The representative was appointed partway through the visa application process. The applicants had a different representative when the visa application was made.
The representative filed documents and written submissions dated 30 May 2023 before the hearing. The written submissions did not comply with paragraph 7.6 of the Migration and Refugee Division Practice Direction (Practice Direction). The review applicant also failed to lodge witness statements in accordance with paragraph 7.3 of the Practice Direction. These matters adversely affected the Tribunal’s ability to carry out its functions in accordance with its objectives, set out in section 2A of the Administrative Appeals Tribunal Act 1975 Cth).
The review applicant appeared before the Tribunal on 6 June 2023 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicants. The Tribunal hearing was conducted with the assistance of an interpreter in the Hazaragi and English languages.
The parties raised a concern at the beginning of the hearing that the interpreter’s dialect was different to the first-named visa applicant’s (primary applicant) dialect and that, while the review applicant could readily understand the interpreter, the primary applicant could not. The second-named applicant (secondary applicant) did not require interpretation.
I note that paragraph 9.7 of the Practice Direction provides that ‘if you want to request an interpreter for the hearing, you should specify the language/dialect on the ‘Response to hearing invitation’ form.’ The hearing response form submitted by the representative only requested a Hazaragi interpreter. No specific dialect was requested (despite the claim of problems associated with the interpreter’s dialect in the department interviews, discussed later in this decision).
The Tribunal attempted to source a Hazaragi interpreter in the Quetta dialect to better assist the primary applicant to give evidence, as requested by the review applicant. Unfortunately, one was not available.
Ultimately, after taking evidence from the review applicant and the secondary applicant, I decided to take evidence from the primary applicant with the available interpreter because I did not consider that such would cause any material procedural fairness issues and because I did not want the representative’s failure to request the correct interpreter to adversely affect the efficiency of review process.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
ISSUE AND LAW
The issue in this review is whether the visa applicants meet PIC 4020 as required by cl 309.225 for the grant of the visa. PIC 4020 is extracted in the attachment to this decision.
Broadly speaking, PIC 4020(1) 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.
The requirement in PIC 4020(1) can be waived if there are certain compelling or compassionate reasons justifying the granting of the visa: PIC 4020(4).
The term ‘information that is false or misleading in a material particular’ is defined as information that is: false or misleading at the time it is given; and 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: PIC 4020(5).
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. Accordingly, a visa applicant would not necessarily fail to satisfy PIC 4020 if they could explain an innocent mistake in a document or information provided by them or on their behalf.
‘Given, or caused to be given’ refers to a document and/or information given to the delegate, either by the applicant themselves or by a third party on behalf of the applicant. It is not necessary to show knowing complicity by an applicant in the provision of a document and/or information. It will be sufficient that the applicant is aware of the visa application even if they are ignorant of the specific content. Ultimately, it is the responsibility of the applicant to ensure the documents and information in the application are truthful, even if a migration agent or third party is acting on their behalf.
CONSIDERATION OF CLAIMS AND EVIDENCE
Background
The primary applicant is a 54-year-old woman from Pakistan. She is sponsored by her husband, a 59-year-old man from Pakistan, who came to Australia in 2010 as a refugee and is now an Australian Citizen. The secondary applicant is the couple’s 29 year-old daughter, who lives in London.
The primary applicant and the sponsor were married in 1985. They have five children together. Their ages and statuses are summarised below:
a.A daughter born in 1991. She was originally included in the visa application, but her application was withdrawn. She is now married and living in Australia after she was granted a 309 visa, sponsored by her husband
b.A son born in 1992. He was originally included in the visa application, but his application was withdrawn. He became a missing person in July 2018.
c.A son born in 1992. He has been missing since July 2012.
d.A daughter born in 1987. She is married and lives in Pakistan.
The sponsor was married to a second wife between March 1999 and June 2012 (while still married to the primary applicant). His second wife was widowed with two sons from her previous relationship, born in 1988 and 1992. The sponsor and his second wife also had two sons together, born in 2000 and 2007.
Broadly speaking, the delegate refused the visa because of discrepancies in the information provided by the primary applicant and the sponsor about the primary applicant’s knowledge of the sponsor’s second wife, the duration of the marriage, the reasons why the marriage ended and the sponsor’s children with his second wife.
I discerned the facts set out above from secondary evidence (including the visa application) and from the representative’s submissions. Unfortunately, inadequate direct evidence of these matters was filed with the department and the Tribunal, including by way of signed written statements, statutory declarations or even written submissions adopted as true by the applicants and the sponsor.
I asked the representative why written statements were not provided, in accordance with the Practice Direction. His response was to the effect that nothing had changed from when the matter was before the department. I note that the representative’s submissions in response to the department’s ‘invitation to comment on information’ letter only relevantly included an affidavit from the sponsor dealing with the date of his second marriage. Otherwise, the response was provided by way of submissions, rather than evidence. The submissions to the Tribunal also suffered from the same fundamental problem; while they summarised the relevant facts, they failed to refer to the evidence to support the submission (and such evidence was also not provided).
Because of these failures, I asked the review applicant to confirm the facts set out above at the hearing. He did confirm the facts, albeit with some generality around dates. I did not ask the visa applicant to confirm the facts because of the interpretation difficulties to which I have already referred.
Has the applicant given, or caused to be given, a bogus document, or information that is false or misleading in material particular?
In the Form 47SP – Application for migration to Australia by a Partner, the primary applicant declared:
a.at question 31, her five children with the sponsor;
b.at question 53 and 87, her five children with the sponsor, the sponsor’s two stepchildren and the sponsor’s two children with his second wife.
c.at questions 63 and 65, her sponsor’s marriage to his second wife and that there were two children of the relationship.
The primary applicant gave evidence at the hearing that this form was prepared by her previous representative and was sent to her for signing. She gave also gave evidence that she is unable to read or write in English and that no one translated the form for her before she signed it.
I note that the representative submitted to the department and to the Tribunal that:
A well filled Form 47sp Question 31 should have stated [the sponsor’s children with his second wife] … as well. Question 53 in the same form should have only listed the first five children and by listing the others has led to further confusion of family dynamics.
This submission is entirely incorrect. Questions 31 and 53 of the Form 47SP were completed correctly, having regard to the facts set out above.
In the Form 40SP – Sponsorship for a partner to migrate to Australia, the sponsor declared at question 26, his marriage to his second wife and that there were two children of the relationship. I note that there are no questions in the Form 40SP regarding the sponsor’s children, other than Part E which deals with details of dependent visa applications.
I note that there is one discrepancy between the abovementioned documents. The Form 47SP declares the date of the sponsor’s marriage to his second wife (at question 63) as 26 June 1999 whereas the Form 40SP declares it to be 26 March 1999. I note that both forms were completed with the assistance of the couple’s previous representative and that this is likely a typographical error. In any event, this error is not material to the visa application.
In the Form 80 – Personal particulars for assessment including character assessment, at Part G, the secondary applicant only provides details of two of her siblings (her co-applicants). She did not declare her other natural siblings or stepsiblings, as required by the form.
I asked the secondary applicant why she did not declare her other siblings. Her response was to the effect that the form was completed by the previous representative, and she was just asked to sign it.
I consider the omission of the secondary applicant’s siblings to be material. However, considering the circumstances as a whole, including that the secondary applicant signed the Form 47SP in which the siblings were declared, I find that there was no element of fraud or deception to attract the operation of PIC 4020.
On 13 September 2018, a Senior Migration Officer conducted an interview with the visa applicant. According to the interview report, relevantly, the following was said:
Q: Before starting interview let me tell you that it is an offence under
the Migration Act to knowingly provide false or misleading information. Notes of this interview will be recorded and attached to file. If you do not understand any question please let me know. If you do not know any answer just tell me instead of providing incorrect information. You cannot take help from any documents or from any person. Do you understand that?
A: Yes
…
Q: Please listen to my question carefully, was your husband previously engaged, married or in any other relationship before or since he has been in Australia? If so please provide when this occurred and the full name and date of the person?
A: No, but before me I don't know and not in Australia
I asked the primary applicant at the hearing why she provided this response. Her response was to the effect that the question asked by the interviewer was not clear.
On 18 February 2019, a Senior Migration Officer conducted an interview with the sponsor. According to the interview report, relevantly, the following was said:
Q: Before starting interview let me tell you that it is an offence under the Migration Act to knowingly provide false or misleading information. Notes of this interview will be recorded and attached to file. If you do not understand any question please let me know. If you do not know any answer just tell me instead of providing incorrect information. You cannot take help from any documents or from any person. Do you understand that?
Ok
…
A: I previously got married but that marriage was finished
Q: When did you get married before?
A: I don't remember exactly, but when the Afghan war happened. I got married to a refugee. I think it happened after 1995
Q: What was her name?
A: Tahira
Q: How many children do you have from second marriage?
A: She already had children from the first marriage. They were my step children
Q: When was your second marriage ended?
A: In 2000 I think
Q: How that marriage ended?
A: She was from Afghanistan, they wanted me to shift to Afghanistan. I was doing government job in Pakistan, it wasn't possible for me. I divorced my second wife
Q: Please provide details of children?
A: Tahira children were in Afghanistan, their name was Raza and Rehmat
Q: How did you divorce your wife?
A: We went to mullah and he asked both of us. He issued us the divorce certificate
…
Q: Does your wife Sabira know about your second marriage?
A: Yes she knows about it
Q: How did she come to know about your second marriage?
A: We were living in the same city
Q: Did she ever ask you about it?
A: Yes she querreled me about it
Q: How did she react on your second marriage?
A: She was querreling and we had fight. I bought separate homes for both wives.
Q: Details of children from second marriage please?
A: I don't have any children from second marraige
…
Q: Who is […]
A: I don't know who is he, when I got married to Tahira she had two children Rahmat and Reza.
…
I don't have any child in the name of […]
I asked the sponsor at the hearing about why he denied having children with his second wife. His response included words to the effect that: he is often forgetful and has to write things down; he was under significant stress at the time of the interview because he was in Quetta because one of his son’s was missing; he was further stressed by the interviewer telling him that if he gave a wrong answer, the visa could be refused; at the time of the interview, he was at a local bar trying to find help to locate his missing son; and the environment was noisy.
I note that there is medical evidence to the effect that the review applicant has difficulties with his memory.
I asked the sponsor whether the primary applicant had asked him to provide any particular answers to questions, and in particular, any untruthful answers. His answer was to the effect that she did not, that she was not with him when the interview took place and that he did not have prior notice of the interview.
I also asked the primary applicant the same question and she said ‘no’.
It is apparent from the decision notice (and the invitation to comment on information that preceded the decision) that the delegate was concerned with the following discrepancies:
·According to a signed statement provided by the Sponsor on 15/08/2018 his second marriage was conducted with Tahira on 26/03/1999 and the marriage ended on 29/06/2012 because of domestic disputes. However during an interview conducted with the Sponsor on 18/02/2019 he said he got married to Tahira after 1995 and the marriage ended in 2000 because Tahira’s family were pressurising him to go to Afghanistan but he couldn’t because he had a government job in Quetta. Further in an interview conducted with him on his arrival into Australia on 10/08/2010 he claimed the marriage took place in 1998 and that his second wife continued to live in Quetta.
·During an interview conducted with the Sponsor on 18/02/2019 he said he has no children from his second marriage whereas departmental records show that on arrival into Australia on 10/08/2010 he declared five children from the first marriage and four children from the second marriage. Two of those children namely […] were born after the date the Sponsor married Tahira. Further […] was also included in Question 53 of the Applicant’s form 47SP signed by her on 05/04/2013 and submitted as part of the application.
·In an interview carried out with the Applicant on 13/09/2018 she stated that she was not aware of the Sponsor ever being married to someone else however the Sponsor in his interview confirmed that the Applicant knew of the relationship and had quarrelled with him about it. Further in Question 63 of the Applicant’s signed 47SP she has included details of the previous spouse.
Before the delegate’s decision was made, the representative made submissions in relation to the discrepancies referred to above and the operation of PIC 4020. Unfortunately for the applicants, both the delegate and the representative failed to correctly interpret and apply PIC 4020.
Critically, PIC 4020 requires “no evidence before the Minister that the applicant has given, or caused to be given…information that is false or misleading in a material particular”.
It is clear that the first two dot points in the decision notice relate to information provided to the department by the sponsor, not the primary applicant. It is difficult, if not impossible, to see how the primary applicant could have been complicit in the provision of this information, given that most of the information that was of concern to the department was provided in interviews between the sponsor and the department. Further, the department’s concerns relate to internal inconsistencies in the sponsor’s evidence. The primary applicant and the sponsor also denied at the hearing that the primary applicant caused the sponsor to give false or misleading information to the department.

In my view, the only information provided to the department that potentially attracts the operation of PIC 4020 is the applicant’s interview with the department in which she, in effect, denied knowledge of the sponsor’s second wife.
The representative’s submissions to the department and the Tribunal relevant to this issue was that:
During the interview on 13 September 2018, the applicant misunderstood the question as the interpreter used was one that had a Parsi Hazaragi dialect and as she resides in Pakistan, her Hazaragi is slightly different. She was always aware that he had married someone else and does not deny knowing this.
I note that the department did not accept this submission. Relevantly, the decision notice states:
With respect to why the Applicant denied knowledge of the second marriage the agent argues that she misunderstood the interpreter as they were using Parsi Hazaregi dialect which is different to her own Pakistani Hazaregi. I note that the Applicant was asked at the start of the interview what language she would like to be interviewed in and she said Hazaregi without specifying a dialect. She was asked over 50 questions and at no point in the interview did she claim that she did not understand the interpreter. In fact her answer to the question whether her Sponsor has had any previous relationships is quite detailed saying: No, but before me I don't know and not in Australia. This is not indicative of someone who has misunderstood the question. Therefore I do not accept this explanation.
With respect to the Senior Migration Officer who conducted the interview, I consider that the question about the sponsor’s other relationships (being, ‘was your husband previously engaged, married or in any other relationship before or since he has been in Australia’) was poorly worded and capable of misunderstanding or misinterpretation. I note that this was also the excuse given by the primary applicant at the hearing. I note that no follow up questions were asked of the applicant after she answered the question.
I also note that the department records indicate that the interviewer concluded that the applicant had no knowledge of the relationship between the sponsor and his second wife. This is despite the applicant having declared the relationship in the Form 47SP application form.
In these circumstances, I find that the primary applicant, in her interview with the department, did not provide false and misleading information which was purposely untrue. I am satisfied that there was no element of fraud or deception by the primary applicant in her interview with the department such as to trigger the operation of PIC 4020.
As set out in paragraph 32 of this decision, I am also satisfied that the secondary applicant did not provide false and misleading information to the department which was purposely untrue.
Therefore, the applicants meet PIC 4020(1).
There is no evidence before the Tribunal relevant to PIC 4020(2) to (4).
On the basis of the above, the applicants satisfy PIC 4020 for the purposes of cl 309.225.
DECISION
The Tribunal remits the applications for Partner (Provisional) (Class UF) visas for reconsideration, with the direction that the applicants meet the following criteria for Subclass 309 (Spouse (Provisional)) visas:
·Public Interest Criterion 4020 for the purposes of cl 309.225 of Schedule 2 to the Regulations
Tegen Downes
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.
…

[2023] AATA 2111

6 June 2023

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Immigration

Administrative Law

Statutory Interpretation

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Judicial Review

Procedural Fairness

Statutory Construction

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