Singh (Migration)

[2019] AATA 1663

Singh (Migration) [2019] AATA 1663 (1 February 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Tarlochan Singh
Mrs Surinder Kaur
Mr Yuvraj Singh

CASE NUMBER:  1620060

DIBP REFERENCE(S):  OSF2012/093363

MEMBER:Kira Raif

DATE:1 February 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicants Contributory Parent (Migrant) (Class CA) visas.

Statement made on 01 February 2019 at 7:39am

CATCHWORDS
MIGRATION –Contributory Parent (Migrant)(Class CA) visa – Subclass 143 (Contributory Parent) – balance of family test – false or misleading information – failure to disclose another child of family – limited provision of emotional and financial support – not compelling or compassionate circumstances – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5, 65
Migration Regulations 1994, Schedule 2, rr 1.03, 1.05, cls 143.224, 173.213, Public Interest Criterion (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

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 22 November 2016 to refuse to grant the applicants Contributory Parent (Migrant) (Class CA) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants are nationals of India. The first named applicant (‘the applicant’) was born in November 1953. The applicants applied for the visas on 5 January 2016. The delegate refused to grant the visas on the basis that the first named applicant (the applicant) did not satisfy the requirements of cl.143.224 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the delegate found that the applicants did not meet Public Interest Criterion (PIC) 4020. The applicants seek review of the delegate’s decision.

3. The applicants appeared before the Tribunal on 24 January 2019 to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   Relevant law

4. The issue in this review is whether the visa applicant meets Public Interest Criterion 4020 (PIC 4020) as required by cl.143.224 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).

5. 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).

6. 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. 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.

7. 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.

8. 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.

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

9. The applicant provided to the Tribunal a copy of the primary decision record, which contains the following information.

10. The applicants made an application for the Class UT Contributory Parent (Temporary) visas in Subclass 173 on 18 October 2012. They were granted the visas on 9 May 2014. To meet the requirements for the grant of the visas, the applicants had to meet the balance of family test in cl.173.213 and r.1.05.

11. On 30 January 2015 the applicants made the application for the Class CA Contributory Parent (Migrant) visas in Subclass 143. In July 2015 the delegate sent the applicants a letter seeking their comments on adverse information indicating that they failed to disclose another daughter in India. The applicants withdrew their application before the decision was made.

12. On 5 January 2016 the applicants again made the application for the Class CA Contributory Parent (Migrant) visas in Subclass 143. At that time the applicants continued to hold the Class UT visas.

13. Checks undertaken by the Department during the processing of the earlier application revealed a Ration Card issued by the Government of Haryana dated 19 September 2005 which showed the applicant’s family composition as follows:

    Tarlochan Singh  self
    Surinder Kaur  wife
    Harmanjeet Singh                  son
    Simranjeet Kaur  daughter
    Yuvraj Singh  son

14. The applicants completed a number of application forms for the purpose of the visa application. They provided the following information:

    a.In response to question 58 of Form 47PA, when asked about details of other family members, the applicants mentioned only two children, Mr Yuvraj Singh and Mr Harmanjeet Singh. All applicants have signed a declaration.

    b.Form 47A asked for details of child or other dependent family members aged 18 years or over. Ms Simranjeet Kaur was not included on the form. All applicants have signed a declaration.

    c.Forms 80 were completed for Tarlochan Singh, Surinder Kaur and Yuvraj Singh. None of the applicants have declared Simranjeet Kaur. 

15. The primary decision record indicates that Mr Harmanjeet Singh is an eligible child for the purpose of the balance of family test while the other two children, Ms Simranjeet Kaur and Mr Yuvraj Singh are ineligible children as they are not Australian citizens, permanent residents or eligible New Zealand citizens.

16. The delegate wrote to the applicants seeking their comment on the information concerning their daughter. The applicants replied on 15 November 2016 by stating that on 18 October 2012 (a week before lodging their temporary Contributory Parent application), the applicants lodged a notice in their local paper ‘disowning’ their daughter from their movable and immovable properties. The applicants provided an extract from The Tribune Chandigarh newspaper dated 11 October 2012 which refers to the daughter being ‘disowned from moveable and immovable properties’. The applicants also included a court document dated 24 August 2015 concerning their daughter. The Tribunal notes that the court order removes the daughter from the applicants’ property and removes other rights. There is nothing in that court order that removes the child from the exclusive custody of the parents (for the purpose of r.1.05(3)(a)). The applicants state in their submission to the delegate that they did not provide false or misleading information with the application and they did not believe PIC 4020 applied to them as the current application was made more than 12 months after their Subclass 173 application was lodged.

17. In oral evidence to the Tribunal the applicant confirmed that he had three children. He said that their daughter married in 2008 and her attitude towards her parents was not good. The daughter made demands for money and he could not meet her demands and after some time, they stopped seeing each other. In 2010 representatives from the village tried to talk to her but she did not agree to anything. The village elders suggested to him that he should legally detach the daughter from his name. A lawyer told him that he had to give a notice in the local paper and then after a year ‘detach’ the daughter from his name. The applicant said that on 11 October 2012 they gave notice in the local paper. Around the same time he talked to his son and they decided to apply for a Parent visa. They saw a migration agent in Delhi and showed all the documents to the agent and the agent told them that they had to legally remove the daughter before making the application. They told the agent about the notice in the newspaper and the agent told them it would be sufficient.

18. The Tribunal finds the applicants’ claims problematic.

19. Firstly, the newspaper publication ‘disowning’ the daughter was arranged a week before the applicants made their visa application. The extremely close proximity of the two events suggests that the act of ‘disowning’ was arranged for the purpose of the visa application and not for any other reason, which brings into question the genuine nature of that action. The applicants’ evidence to the Tribunal is that they consulted a migration agent and acted on advice of the agent but their relationship with the daughter had deteriorated some years earlier. The Tribunal is mindful that despite the claimed deterioration of the relationship, no attempt was made to ‘disown’ the daughter until the applicants were preparing their visa application.

20. Secondly, and importantly, the Tribunal does not consider that the fact that the visa applicants decided to ‘disown’ their daughter changes their parent–child relationship with the daughter. Ms Kaur continued to be the child of the applicants, even if they had chosen to disassociate from her. There is nothing in the wording of the visa application forms or the relevant legislation that limits the request for information to children who are in a good relationship with their parents. The forms are not concerned with the quality of the relationship. The forms simply require information about children or other family members. Ms Simranjeet Kaur continued to be the visa applicants’ child, even if she was ‘disowned’ by them and even if there were relationship issues.

21. To the extent that the applicants claim that the court order severs their relationship with Ms Kaur, the Tribunal considers it significant that the court order is dated 2015 while the application for the temporary visa was made in 2012. Even if the applicants or their migration agent genuinely believed that the court order severed their relationship with their daughter, that order was not in existence at the time the applicants applied for the temporary visa. The applicant told the Tribunal that their agent advised them that they could go through the court process a year after the newspaper notice and the Tribunal does not consider that the applicants believed that they no longer had a daughter on the basis of the newspaper publication alone. That is, at the time of the temporary visa application, there was nothing that would sever the applicants’ relationship with their daughter and nothing that would render Ms Kaur not to be the child of the applicants for the purpose of the application.

22. The Tribunal also notes that the newspaper article and the court order appear to relate to financial obligations and not to custody arrangements. The Tribunal does not consider it to be sufficient to sever the parent–child relationship between the applicant and Ms Kaur for the purpose of r.1.05.

23. The applicant told the Tribunal that their agent advised them that they would not meet the balance of family test but the agent said that the newspaper notice would be sufficient. For the reasons stated above, the Tribunal does not consider that the newspaper publication is sufficient and the Tribunal also does not accept that the applicants believed the newspaper publication to be sufficient. 

24. The applicant told the Tribunal that the application was prepared by the agent and he did not know whether the agent mentioned the daughter’s name in the application. The Tribunal does not accept that evidence. The applicant told the Tribunal that he disclosed his daughter’s situation to the agent, they discussed the balance of family test and the agent suggested the newspaper publication and the court order. Having had that conversation, and having been informed of the significance of the daughter’s presence to their eligibility for the visa, the Tribunal does not accept that the applicant made no inquiries of the agent about the information concerning the daughter that was provided on the application form.

25. The Tribunal also notes that the applications were signed by the applicants. The applicants thus had an opportunity to read the forms before signing. The Tribunal is of the view that they had the responsibility to check the forms before signing. The applicant explained to the Tribunal that he trusted the agent and was not responsible but the Tribunal notes that PIC 4020 applies even if the form was completed by the agent on behalf of the applicant. By instructing the agent to prepare and lodge the application and paying the fees to the agent, the applicant instructed the false or misleading information to be given.

26. The Tribunal finds that the applicants failed to disclose their daughter in the two applications for the temporary and the migrant Contributory Parent visas respectively. The Tribunal has formed the view that they arranged for the daughter to be ‘disowned’ shortly before making the application because they knew that they could not meet the balance of family test otherwise. The Tribunal finds that the applicants were aware of the balance of family test and failed to mention their daughter intentionally, knowing that the information was false or misleading, in order to obtain the visa.

27. The Tribunal finds that the applicants held the temporary Contributory Parent visa at the time the present application was made, so that the visa was held in the 12 months before the application. Although the applicants suggest that PIC 4020 should not apply to them because their temporary visa application was made more than 12 months before the present application was made, PIC 4020(1)(b) refers to visas held in the 12 months and not visas applied for.

28. The Tribunal finds that by failing to mention their daughter in the various forms for the temporary visa application, the applicants had given, or caused to be given, to the Minister or an officer, information that was false or misleading. The information was relevant for the purpose of the balance of family test in cl.173.213 and was therefore false or misleading in a material particular. The Tribunal finds that there is evidence that the applicants had given, or caused to be given, to the Minister or an officer, information that is false or misleading in a material particular in relation to a visa that the applicants held in the period of 12 months before the application was made. The Tribunal finds that the visa applicants do not meet PIC 4020(1)(b).

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

29. 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.

30. 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.

31. For the following reasons, the Tribunal is not satisfied that the requirements should be waived.

32. The applicants do not claim there are compelling circumstances affecting the interests of Australia.

33. The applicant told the Tribunal that they have disposed of their property in India and have nothing to go back to. They have no support in India and no government pension and cannot support themselves. The applicant stated that he had to sell his land to get the temporary visa and if they had not been granted the temporary visa, he would not have sold the land and his son would have achieved something. The applicant subsequently told the Tribunal that they have agricultural land which is mortgaged and cannot be used for farming. Even if that is the case, the Tribunal rejects the applicant’s evidence that he has disposed of the property in India. The applicant states that their son has been working in Australia for five years and they are settled here and if they were not granted the visas, their son could have made a name for himself in India. The applicant refers to his and his wife’s age and medical conditions and stated that they want to live their remaining years in Australia. The applicant referred to social pressure due to their relationship with their daughter.

34. The applicant said that he had lived in India for 60 years and urged the Tribunal to take his old age into account. He states that he had been a good citizen and he has lived in Australia for over five years and there have been no complaints against them. The applicant states that his behaviour as a good citizen will continue. The Tribunal notes that the applicants’ past conduct and good character are not determinative. Neither can the Tribunal recommend the grant of the visa on humanitarian or compassionate grounds. The applicant states that the grant of the visa would not be of consequence to the Australian government and while that may be the case, the applicant must meet the requirements for the grant of the visa. 

35. The Tribunal accepts that the applicants may suffer financial and other hardship if they are required to return to India. The Tribunal accepts they have been granted temporary visas and have been living in Australia for a number of years. The Tribunal accepts that they have little to return to in India and that their preference is to live in Australia. However, the Tribunal is mindful that the applicants have never held permanent visas. They have only been granted temporary visas. Unless and until they were granted permanent visas, the applicants cannot have any expectation of remaining in Australia permanently. The applicants may have made decisions to dispose of their properties and to move all their assets to Australia but those decisions were based on the applicants holding temporary visas only and not on having permanent residence.

1. Further, for the purpose of the waiver, the Tribunal also notes that these matters to which the applicant refers relate to the applicants and not to any Australian citizen or permanent resident or a New Zealand citizen.

2. The applicant provided to the Tribunal a copy of his health summary. The applicant and the sponsor spoke about the applicants’ poor health. The sponsor told the Tribunal that his parents cannot look after themselves physically and financially. The Tribunal acknowledges that evidence but the Tribunal is mindful that these matters affect the applicants who are not Australian citizens or permanent residents.

3. The applicant told the Tribunal that he helped his son in his business on a voluntary basis. He also used to work on a strawberry farm and used his income to help his son. The farm is presently closed but he intends to resume work in a number of weeks. The applicant states that his eldest son is an Australian citizen and lives here with his family. The applicant states that he helps his son financially and also in his petrol station business. The applicant told the Tribunal that his son and his son’s wife work but their income is not sufficient and he wants to help his son. Following the hearing, the applicant presented some evidence of his past employment and the Tribunal is prepared to accept that the applicant had been employed and that he provided some financial support to his son’s family. The Tribunal also accepts that the applicants help his son’s family through housework and child-minding arrangements. However, the Tribunal is not satisfied that the applicants’ son cannot make other arrangements to meet his family and financial obligations, for example through employment, savings, a loan or by other means. The applicant told the Tribunal that if his visa is granted and if he has to pay the fee in relation to the permanent visa, they would find the funds to make the payment. He referred to mortgaging the agricultural land in India. If that is the case, the Tribunal is not satisfied that the son would not be able to explore other arrangements to meet his financial needs, including income from the assets in India. In these circumstances, and on the limited evidence before the Tribunal concerning the son’s finances, the Tribunal is not satisfied the son’s financial situation constitutes a compelling or a compassionate circumstance affecting the son or the son’s family.

4. The applicant states that his son has two grandchildren and his wife looks after the grandchildren and they would be impacted if the visas are not granted. The Tribunal accepts that the applicants provide domestic support to his son’s family. The Tribunal is not satisfied such circumstances are of compelling or compassionate nature.

5. The sponsor told the Tribunal that he and his wife work while his parents help them look after the children. In the past, he used to run a fuel station which could not operate without his father’s voluntary work. However, the applicant’s and his son’s evidence is that the petrol station has not been running since the middle of last year although they hope to get it running again. If they do, there is little evidence before the Tribunal that it cannot operate without the applicant’s involvement.

6. The sponsor refers to the emotional connection between his parents and his children. The Tribunal accepts that such a connection may exist but the Tribunal is not satisfied that emotional connection can only exist when the parties live in the same household. There is no reason why the emotional support cannot continue even if the applicants were to leave Australia.

7. Ultimately, the Tribunal accepts that the applicant has provided some financial support to his son’s family, although such support appears to be limited and the Tribunal is not satisfied the support is necessary. That is, the Tribunal is not satisfied that alternative arrangements cannot be put in place to enable the sponsor to meet his financial obligations. The Tribunal accepts that the applicants support the son’s family by other means, which include raising the children, but the Tribunal does not consider such arrangements to give rise to compelling or compassionate circumstances. The Tribunal also acknowledges the applicants’ personal circumstances but does not find that these affect the interests of Australia or of Australian citizens or permanent residents or New Zealand citizens. To the extent that it is claimed that these circumstances also affect the applicants’ son, the Tribunal does not consider these to be compelling or compassionate because the applicants have never held permanent visas and the right to remain in Australia permanently. 

8. Having considered the totality of the applicants’ circumstances, the Tribunal is not satisfied there are compelling circumstances that affect the interests of Australia, or compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen that justify the grant of the visa.

9. Further, even if the Tribunal were to find that the circumstances put forward by the applicants are of compassionate or compelling nature (a claim the Tribunal does not accept) the Tribunal would not consider that such circumstances justify the grant of the visa and the Tribunal would not exercise its discretion to grant the visa. This is because the false or misleading information was central to the applicant’s eligibility for the visa. If the information about the daughter was disclosed, the applicants would not have met the balance of family test and would not have been granted the temporary visas, enabling them to live and settle in Australia. Their present circumstances arise because they had given information that was false or misleading. The Tribunal has also formed the view that the applicants had deliberately withheld the information about the daughter and that the act of ‘disowning’ the daughter was arranged for the benefit of their visa application. The applicants had gone to considerable lengths to ensure that the daughter would not be part of their application and that they would not be disqualified from visa grant because of her. In the circumstances of this case, the Tribunal does not consider that any compassionate or compelling circumstances, even if such were established, would justify the grant of the visa.

10. Therefore the requirements of PIC 4020(1) should not be waived. The Tribunal is not satisfied the applicant meets cl.143.224. The secondary applicants do not meet the secondary criteria.

    DECISION

11. The Tribunal affirms the decision not to grant the applicants Contributory Parent (Migrant) (Class CA) visas.

    Kira Raif
    Senior Member