Tarazi (Migration)

[2021] AATA 3455

Tarazi (Migration) [2021] AATA 3455 (25 August 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Ramzi Tarazi

VISA APPLICANT:  Mr Raja ALTarazi

CASE NUMBER:  1917590

HOME AFFAIRS REFERENCE(S):          BCC2019/1292365

MEMBER:Nora Lamont

DATE:25 August 2021

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for a Visitor (Class FA) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 600 (Visitor) visa:

·Public Interest Criterion 4020 for the purposes of cl 4020 of Schedule 2 to the Regulations and cl 600.213 of Schedule 2 to the Regulations.

Statement made on 25 August 2021 at 1:25pm

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – subclass 600 (Visa) –no intention of providing false or misleading information –applicant satisfies public interest criterion 4020 –decision under review remitted

LEGISLATION

Migration Act 1958, ss 5, 65

Migration Regulations 1994, Schedule 2, cl 600.213

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 Home Affairs on 24 April 2019 to refuse to grant the applicant a Visitor (Class FA) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

   The applicant applied for the visa on 14 March 2019. The delegate refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl 4020 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) for the following reason:

   On your application form you declared that you have never had a visa to Australia refused.
   Our records indicate that you were refused a Business Visitor Stream (FA 600) visa to
   Australia on 24 June 2016. As you did not declare your previous refused Business Visitor
   visa application, I consider that you have provided false and misleading information
   regarding your visa history to Australia. Your visa history is relevant to the assessment of
   whether you genuinely intend to remain in Australian temporarily as a visitor.

2. The review applicant appeared before the Tribunal on 17 August 2021 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic (Standard) and English languages.

3. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

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

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 (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.

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.

   Background

9. The visa applicant is a professional man who has worked for the UN in their IT Department since 2013. He makes an above average wage from his work and currently lives with his father after his mother died last year. He Included in his application was documentation related to his ongoing employment. The visa applicant explained that he put in the application to visit his brother who is an Australian citizen to attend his PhD graduation.

10. The review applicant explained to the Tribunal that he has no family in Australia at all and really wanted his brother here to share his graduation.

11. The visa applicant was asked about his 2016 visa refusal. He explained that he hired an agent to do his 2016 visa application and it was the agent who put in the application and he didn’t receive much information about it.

12. On the application form when filling it out the applicant said he just misunderstood the question and put no. He had no intention of providing false or misleading information and English is not his first language, so it was simply a misreading of the question. This was the same explanation that he gave to the Department when he responded to a natural justice letter.

13. In the response to the Department the applicant put forth the following explanation:

    “I am writing this letter regarding the natural justice I have received. Regarding your
    question about providing false and a misleading information. Let me clarify for you that what
    happened was unintentionally because I thought the question was related to the question
    before it “Has the applicant ever been in Australia or any other country and not complied
    with visa conditions or departed outside their authorized period of stay?” No Therefore, I
    thought that when it asked about refusal or cancelled, it was talking about when I was in
    Australia and because I was not ever in Australia for my visa to be cancelled or refused, I
    answered no. Now I understand the question properly and I admit that I had made a mistake
    unintentionally. I have previously had an application refused on 24 June 2016 for a Visitor
    (class FA) Visitor (Business) (subclass 600) visa.

14. The applicant was consistent with the Tribunal in that he made a simple mistake, misread the question and did not do so to try to mislead or provide false information.

15. The Tribunal accepts that the applicant made a simple mistake and notes that it was an innocent mistake and it was not made with purposeful falsity and just an error made by the applicant who does not read or write English that well and misunderstood the question.

16. The Tribunal finds that a simple mistake was made there was no intention by the applicant to deceive or provide false information.

17. As there is no purposeful falsity there is no breach of PIC 4020 (1) and therefore, the applicant meets PIC 4020(1).

    Has a visa previously been refused on the basis of a failure to satisfy PIC 4020(1)?

18. PIC 4020(2) requires the Tribunal to be satisfied that the applicant and each member of the family unit have not been refused a visa because of a failure to satisfy PIC 4020(1) in the period commencing 3 years before the application was made and ending when the visa is granted or refused. This requirement does not apply to a person who was under 18 at the time the application for the refused visa was made: PIC 4020(2AA).

    ·There is no information before the Tribunal that indicates the applicant has previously been refused a visa because of his failure to satisfy PIC 4020(1).

19. There is no information before the Tribunal to indicate that the applicant has been refused a visa in the relevant period because of the failure to satisfy PIC 4020(1). Therefore, PIC 4020(2) is met.

    Has the applicant satisfied the identity requirements?

20. PIC 4020(2A) requires an applicant satisfy the Tribunal as to his or her identity.  The Tribunal is satisfied with the applicant’s identity requirements.

21. Therefore, the applicant meets PIC 4020(2A).

    Has a visa previously been refused on the basis of a failure to satisfy PIC 4020(2A)?

22. PIC 4020(2B) requires that neither the applicant nor any family unit member have been refused a visa because of a failure to satisfy the identity requirements in PIC 4020(2A) during the period starting 10 years before the application was made and ending when the visa is granted or refused. This requirement does not apply to a person who was under 18 at the time the application for the refused visa was made: PIC 4020(2BA).

    ·There is no information before the Tribunal that indicates the applicant has been refused a visa because of a failure to satisfy the identity requirements.

23. Therefore PIC 4020(2B) is met.

24. On the basis of the above, the applicant does satisfy PIC 4020 for the purposes of cl 4020.

    DECISION

25. The Tribunal remits the application for a Visitor (Class FA) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 600 (Visitor) visa:

    ·Public Interest Criterion 4020 for the purposes of cl 4020 of Schedule 2 to the Regulations and cl 600.213 of Schedule 2 to the Regulations.

    Nora Lamont
    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.

    …