Taher (Migration)

[2021] AATA 49

Taher (Migration) [2021] AATA 49 (12 January 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Mohammad Taher

VISA APPLICANTS:  Mr Ramazan Hussaini
Mrs Fatima Fatima
Mr Asif Hussaini
Mr Hassnin Hussaini
Mr Hadi Hussaini
Mr Mehdi Hussaini

CASE NUMBER:  1732127

DIBP REFERENCE(S):  OSF2011/004270 OSF2018/031843 OSF2018/031844

MEMBER:Kira Raif

DATE:12 January 2021

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicants Other Family (Migrant) (Class BO) visas.

Statement made on 12 January 2021 at 12:06pm

CATCHWORDS
MIGRATION – Other Family (Migrant) (Class BO) visa – Subclass 115 (Remaining Relative) – false or misleading information or bogus document in visa application – national identity documents found to be bogus – later provision of genuine documents does not negate earlier provision of bogus documents – non-computerised system at the time – no compassionate or compelling circumstances justifying grant of visa – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5(1), 65, 366A, 427
Migration Regulations 1994 (Cth), Schedule 2, cl 115.223, Schedule 4, criterion 4020

CASES
Arora v MIBP [2016] FCAFC 35
Batra v MIAC [2013] FCA 274
Kaur v MIBP [2017] FCAFC 184
Mudiyanselage v MIAC [2013] FCA 266; (2013) 211 FCR 27
Plaintiff M64/2015 v MIBP [2015] HCA 50
SZNSF v MIAC [2010] FCA 266
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 31 October 2017 to refuse to grant the applicants Other Family (Migrant) (Class BO) visas under s.65 of the Migration Act 1958 (the Act).

2. The visa applicants are nationals of Afghanistan. They applied for the visas on 6 March 2011. The delegate refused to grant the visas on the basis that the first named applicant (the visa applicant) did not satisfy the requirements of cl.115.223 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the delegate was not satisfied the applicant met Public Interest Criterion (PIC) 4020. The sponsor (‘the review applicant’) seeks review of the delegate’s decision.

3. The review applicant appeared before the Tribunal on 1 October 2020 to give evidence and present arguments. The review applicant was represented in relation to the review by his registered migration agent. The Tribunal exercised its discretion to hold the hearing by telephone. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.  

4. At the commencement of the hearing the applicant’s representative Mr Al-Shadidi requested an adjournment on the basis that he did not have time to prepare and because he is unwell. The Tribunal has considered the request but decided not to adjourn the hearing. Putting aside the Tribunal’s concern with the fact that the request was made at the hearing and not at any time prior to the hearing, the Tribunal is mindful that the application was made in 2017 and in the Tribunal’s view, the applicant had ample time to prepare, even accepting the representative’s evidence that he was unwell for some time prior to the hearing. The Tribunal is mindful that the issue that arises on review has been well identified in the primary decision and the review applicant had the opportunity, in the Tribunal’s view, to prepare whatever material, evidence and argument he wished to submit to the Tribunal. The applicant has also been given the prescribed period of notice to attend the hearing.

5. The representative provided to the Tribunal his medical records which show that he was unable to attend work from 8 September 2020. The hearing invitation in this case was sent on 17 August 2020. Thus, the Tribunal rejects the representative’s claim that he was unable to inform the Tribunal of his medical condition and request an adjournment prior to the hearing due to his medical condition.

6. The Tribunal has also considered the fact that  pursuant to s. 366A of the Act, an applicant appearing before the Tribunal in relation to a Part 5-reviewable decision is entitled to have another person present to assist him or her, but the assistant is not entitled to present arguments or address the Tribunal unless the Tribunal is satisfied that, because of exceptional circumstances, the assistant should be allowed to do so. The applicant has not presented to the Tribunal evidence concerning such circumstances and on the evidence before it, the Tribunal is not satisfied that exceptional circumstances exist in this case. in SZNSF v MIAC [2010] FCA 266 at [18] the Federal Court held that whilst s 427 does not exclude the power of the Tribunal to permit a migration agent to be present during a hearing, the Migration Act does not give rise to any expectation that the Tribunal will adjourn the hearing due to the unavailability of an applicant’s representative. For this reason also, the Tribunal has determined not to adjourn the hearing. The Tribunal informed the representative that he may have an opportunity to provide written submissions after the hearing.

7. Ultimately, on 4 November 2020 the Tribunal provided the applicant’s representative with a copy of the hearing recording. The Tribunal also granted the applicant time after the hearing to provide further submission and evidence he wished to rely on. In his submission to the Tribunal of 4 November 2020 the applicant’s representative Mr Al-Shadidi undertook to provide such submissions by 8 January 2021. At the time of this decision, the period has passed with no further communication from Mr Al-Shadidi. There is no explanation for the failure to comply with the undertaking to provide further submissions by 8 January 2021, nor a request before the Tribunal for more time to do so. The Tribunal also notes that prior to this decision, the Tribunal made contact with the representative on 20 and 29 October and 3 November 2020 giving opportunities to submit evidence.  In the circumstances, the Tribunal has determined to proceed to the decision without taking any further action to contact the applicant.

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

   Relevant law

9. The issue in this review is whether the visa applicant meets Public Interest Criterion 4020 (PIC 4020) as required by cl.115.223 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).

10. 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).

11. 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.

12. 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.

13. 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 material particular?

14. The review applicant provided to the Tribunal a copy of the primary decision record. It indicates that the applicants provided with the application their identity documents (tazkeras) in relation to each visa applicant. The primary decision record indicates that the tazkeras were sent to the relevant Afghan issuing authority for verification and in September 2013 the verification checks indicated that six tazkeras relating to the visa applicants were bogus. The delegate wrote to the visa applicants seeking their comments on the adverse information. The delegate noted that the applicants did not respond, but they did provide new documents relating to their identity. With respect to the new evidence, the Tribunal is mindful of the reasoning in Mudiyanselage v MIAC [2013] FCA 266; (2013) 211 FCR 27 and finds that the provision of genuine documents would not negate the fact that bogus documents had previously been provided. In such circumstances, PIC 4020 would still apply.

15. In oral evidence, the review applicant told the Tribunal that the documents they provided are genuine. The review applicant said that the system before was not computerised and that is the reason the documents could not be verified. The review applicant said the visa applicants cannot go back to Kabul as they may be killed. The applicant states that the Department initially said that the documents were genuine but later said that the process was not genuine because the applicants could not travel to Kabul to obtain the documents personally. The review applicant states that the system in Afghanistan is not well organised. The Tribunal acknowledges that evidence but notes that according to the information in the primary decision record, the Department contacted the authority responsible for the issuance of tazkeras and in the Tribunal’s view, that authority would be best placed to verify these documents. The Tribunal gives the advice from that authority considerable weight.

16. The Tribunal acknowledges the verification inquiries made by the delegate and the information received from the Afghan authorities, as set out in the primary decision record. On the basis of that evidence, the Tribunal finds that the six tazkeras to which the primary decision record refers, are bogus documents because they are counterfeit or had been altered by a person who does not have authority to do so. The Tribunal finds there is evidence that the visa applicants had given, or caused to be given, to the Minister or an officer, bogus documents within the meaning of s. 5(1) of the Act. The Tribunal finds that the visa applicants do not meet PIC 4020(1)

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

17. 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.

18. 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.

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

20. The review applicant told the Tribunal that the visa applicants cannot reside in Kabul due to being Shia Muslims and their lives are in danger. The applicant states that if he is not able to save his family, he will carry this for the rest of his life and it would severely affect him for the rest of his life, diminishing the quality of his life. The review applicant states that he is under a lot of pressure and has been seeing a psychologist until the lock-down. The applicant states that his family’s situation has been affecting him significantly, given his personal circumstances.

21. The Tribunal granted the review applicant more time to provide evidence in relation to the waiver. In particular, the Tribunal invited the review applicant to provide medical evidence in relation to his claimed poor mental health and any other material that he considered relevant to the waiver. As noted above, the applicant (through his representative) undertook to provide such evidence to the Tribunal by 8 January 2021 and to date, no further evidence has been presented to the Tribunal.

22. The Tribunal acknowledges the review applicant’s evidence about the visa applicants’ circumstances but is mindful that the waiver refers to the circumstances affecting the Australian citizens or residence and not residents overseas. The review applicant refers to the effect his family’s circumstances had on his own health and well-being. However, the review applicant’s evidence is not supported by any medical reports or other probative evidence. The Tribunal is not prepared to accept the review applicant’s evidence without the supporting materials. The Tribunal accepts that the review applicant is concerned about his family overseas and worried about their safety and well-being, but on the limited evidence before it, the Tribunal is not satisfied that these circumstances are of such significance or severity as to constitute compassionate or compelling circumstances that affect the interests of the review applicant or of another Australian citizen or resident or New Zealand citizen. There is no evidence to suggest there are circumstances affecting the interests of Australia.

23. On the limited evidence before it, 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 granting of the visa. The Tribunal does not consider that the requirements of PIC 4020 should be waived in the circumstances of this case.

24. The Tribunal finds that  the visa applicant does not meet cl. 115.223 and the secondary applicants do not meet cl. 115.321. The same considerations apply with respect to the other subclasses within Class BO.

    Conclusion

25. On the basis of the above, the visa applicants do not satisfy PIC 4020 for the purposes of cl.115.223.

    DECISION

26. The Tribunal affirms the decision not to grant the applicants Other Family (Migrant) (Class BO) visas.

    Kira Raif
    Senior Member