Siddiqi (Migration)

[2018] AATA 2726

Siddiqi (Migration) [2018] AATA 2726 (26 June 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Khalid Siddiqi

VISA APPLICANT:  Ms Bibi Gulsom Safi

CASE NUMBER:  1622393

DIBP REFERENCE(S):  OSF2014/029444 OSF2014029444

MEMBER:Moira Brophy

DATE:26 June 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 26 June 2018 at 8:33am

CATCHWORDS
Migration – Partner (Provisional) (Class UK) visa – Subclass 309 (Spouse (Provisional)) – Bogus document – Marriage certificate – Quality of hologram – Financial obligations – Support via electronic communication – Available alternatives – Decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5, 65
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
Plaintiff M64/2015 v MIBP [2015] HCA 50
Trivedi v MIBP [2014] FCAFC 42

STATEMENT OF DECISION AND REASONS

ISSUE

1. The issue in the present case is whether the first named visa applicant, Ms Bibi Gulsom Safi meets Public Interest Criterion 4020 (PIC 4020) as required by cl.309.225 of Schedule 2 to the Migration Regulations 1994 (the Regulations) for the grant of the visa.

   APPLICATION FOR REVIEW

2. This is an application for review of a decision made by a delegate of the Minister for Immigration on 15 December 2016 to refuse to grant the applicant a Partner (Provisional) (Class UF) visa under s.65 of the Migration Act 1958 (the Act).

3. The applicant applied for the visa on 7 May 2014. The delegate refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl.309.225 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because Ms Gulsom did not satisfy the requirements of cl 309.225 because she had provided a bogus document.

4. The review applicant, Mr Khalid Siddiqi appeared before the Tribunal on 17 May 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant Ms Bibi Gulsom Safi and from the father of the review applicant Mr Khoja Siddiqi and from the mother of the review applicant Ms Saida Siddiqi and from Mr Noorulhag Yosofzai. The Tribunal hearing was conducted with the assistance of an interpreter in the Pashto and English languages.

5. The review applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing.

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

   BACKGROUND

7. Mr Siddiqi is a 23-year-old Australian citizen by grant. He arrived in Australia on 6 March 2008 and became an Australian citizen on 16 July 2009. He has declared no previous relationships.  Mr Siddiqi’s parents, four brothers and two sisters reside in Australia. He is employed as a baker.

8. Ms Gulsom is a 23-year-old living in Afghanistan. She has declared no previous relationships. Her parents and one brother reside in Afghanistan. Ms Gulsom is not currently in the paid workforce.

9. The parties stated that they met in childhood. They formed a relationship and committed to a shared life together on 5 August 2013. They married on 15 January 2014.

10. On 8 May 2014 an application for a Partner (Class UF/BC) Subclass 309/100 was lodged.

11. On 3 August 2015 the Department wrote to Mr Siddiqi to invite him to comment on adverse information, in particular that the marriage certificate provided with the application was considered to be a bogus document. The letter stated that on 2 August 2015 after a departmental check the document provided had been referred for determination of its accuracy and it was found to be a fraudulent document not issued by the relevant Afghan government authorities.

12. A further request was made by the department on 12 November 2015 inviting Mr Siddiqi to comment on the information the document provided was considered to be a bogus document. The requirement to satisfy the Public Interest Criteria 4020 (PIC 4020) was set out in the letter along with an invitation to provide information and comments as to whether there were compelling circumstances the applicant relied on in seeking a waiver of the PIC 4020 requirements.

13. Mr Siddiqi responded on 11 December 2016 in the form of a statutory declaration setting out the steps he and his partner had gone through to obtain their marriage certificate. He asked the effects the separation was having on he and his wife to be taken into account.

14. In the Decision Record, a copy of which Mr Siddiqi’s migration agent provided to the Tribunal, the delegate acknowledged Mr Siddiqi’s response to the adverse information outlined above. The delegate considered the evidence presented and was satisfied the document provided was a bogus document but was not satisfied that compelling circumstances exist to warrant a waiver. Consequently, the delegate was not satisfied that the applicant met the waiver requirements of PIC 4020(4).

15. Prior to the hearing Mr Siddiqi’s migration agent provided additional documents to the Tribunal including, but not limited to, the following: telephone records, marriage certificate issued by Supreme Court Islamic republic of Afghanistan,  documents regarding the parties’ identities, bank account statements in Mr Siddiqi’s name, contract for sale of property to Mr Siddiqi, a letter from Mr Siddiqi’s treating psychologist, witness statements in support of the application and statements by Mr Siidiqi.

    CONSIDERATION OF CLAIMS AND EVIDENCE

16. In making its findings, the Tribunal has considered the documents contained in the Department and Tribunal files as well as the oral evidence provided at the hearing. It has also taken into account the information received after the hearing.

17. The issue in this review is whether the visa applicant meets Public Interest Criterion 4020 (PIC 4020) as required by cl.309.225 for the grant of the visa. Broadly speaking, this requires that:

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

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

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

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

18. 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?

19. 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.

20. 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.

21. 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.

22. The Tribunal is satisfied that the applicant provided information with her application that may be considered to be bogus. In making this finding the Tribunal has considered the materials contained in the department file including the documents that were referred for further checks on 3 February 2015. These documents were referred after concerns were raised as to the authenticity of the documents, because the holograms appeared to be a poor quality item.  On 2 August 2015 information was received that an independent document verification check had determined the document provided was a counterfeit document in that it had not been issued by or registered with the relevant Afghan government authorities. The Tribunal notes the submissions received from the review applicant that the form was completed at the time of the wedding and taken for registration in Kabul the following day. The forms were then picked up the following day. The review applicant submits that he is not familiar with procedures in Afghanistan as he left there when he was aged eleven. His uncle who lived there assisted him during the process. The Tribunal has considered the submission however is satisfied the applicant bears the onus of providing genuine documents.

23. The Tribunal is satisfied the determination the document was a non genuine document was made by a person qualified to make that assessment and the Tribunal accepts those findings.

24. Since the Tribunal is satisfied the information provided is a bogus document the Tribunal finds the applicant does not meet cl.4020(1).

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

25. 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.

26. 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.

27. The Explanatory Statement states that it is intended that the granting of the waiver relates solely to compelling circumstances affecting Australia’s interests, or the compassionate or 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.  The types of circumstances that may involve compelling or compassionate reasons for waiving the requirements of PIC 4020 include:

    ·Family reasons (for example, unexpected serious or fatal family situations over which the applicant had no control, such as the incapacitation or death of a partner or child or another member of the family unit);

    ·That family members in Australia would be left without financial or emotional support; and

    ·A parent in Australia would be separated from their child (for example, if the child was removed with their non-resident parent and would therefore be subject to an exclusion period).

28. The Tribunal is required to consider all the circumstances of the case including any matters put forward by an applicant, and determine on the evidence as a whole whether there are compelling and/or compassionate circumstances justifying the granting of the visa.

29. The parties have not made any submissions or claims that there are compelling circumstances that affect the interests of Australia in this matter. The submissions by Mr Siddiqi to the Tribunal relate to compelling or compassionate circumstances that affect Mr Siddiqi and his family, who are Australian citizens.

30. Mr Siddiqi, his parents and his witness submitted that the parties are in a genuine and continuing spousal relationship and separation would therefore cause them emotional hardship. Mr Siddiqi relied on evidence from his treating psychologist. In the report dated 6 March 2018 his treating psychologist Evguenia Anikeev referred to his reporting of symptoms of adjustment disorder with mixed anxiety and depressed mood for several years and of the condition being exacerbated by the current visa problems. Mr Siddiqi gave evidence that he was not taking medication as it made him feel dizzy and he had not taken time off work.

31. In considering this submission the Tribunal was mindful of his evidence he could not go to Afghanistan to be with his wife because of the financial obligations he has. He has to pay the mortgage on the property he has purchased. The Tribunal accepts he has a very sizeable mortgage in his name alone and he has the responsibility to maintain the repayments especially given his parents are not in paid employment but dependent on government benefits. This is, in itself, an overwhelming responsibility with consequent stresses especially given his relatively young age. While the Tribunal appreciated the stress he is under the Tribunal was mindful he entered into the purchase of the property and the consequent mortgage arrangement in April 2015, that is, after he was put on notice of the concerns about the authenticity of the documents provided. He proceeded with the arrangement in the knowledge the visa application may not be granted and if that were the case he and his wife may continue to be separated.

32. Mr Siddiqi spoke of his concerns for his wife, and his need and the family expectation he provide her with support. The Tribunal is not persuaded that providing emotional care and support is dependent upon living in the same household. It is open to the parties to continue to provide psychological support to another by the various electronic communication methods available while they are apart during any exclusion period.

33. If Mr Siddiqi ultimately decided to move to Afghanistan, he could make arrangements for the property he owns to be rented to enable payment of the mortgage. Alternatively it may be that other members of his family could supplement the rent assistance paid to his mother by Centrelink to service the mortgage for the time Mr Siddiqi was absent from Australia. While it may well be difficult for Mr Siddiqi to find work in Afghanistan, it is open to him to continue with his full-time employment in Australia. There may be some financial hardship to Mr Siddiqi if he decides to relocate to Afghanistan, but there is no requirement on him to leave Australia or resign from his employment.

34. The Tribunal has considered the submission that the failure to obtain a visa has called into question Mr Siddiqi’s and his family’s standing both in his community in Australia and the applicant’s community in Afghanistan. While the Tribunal accepts people will continue to make judgement without knowing the facts the Tribunal is not prepared to accept the submission that those circumstances should be considered to be compelling. Further the Tribunal does not accept the assertion that it would cause severe emotional turmoil to all parties if Mr Siddiqi decided to remain in Australia for three years and reapply for the visas.

35. After considering all of the evidence before it the Tribunal is not satisfied that there are any circumstances in this case that affect an Australian citizen, Australian permanent resident or eligible New Zealand citizen, either on an individual or cumulative basis, that are of a compelling or compassionate nature that justify the waiver of PIC 4020 and the grant of a Subclass 309 visa to the applicant. 

36. Therefore the requirements of cl.4020(1) should not be waived.

37. On the basis of the above, the applicant does not satisfy PIC 4020 for the purposes of cl.309.225 of Schedule 2 to the Regulations.

    DECISION

38. The Tribunal affirms the decision not to grant the applicant a Partner (Provisional) (Class UF) visa.

    Moira Brophy
    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. 

    …