Titterton (Migration)

[2018] AATA 3674

Titterton (Migration) [2018] AATA 3674 (10 August 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Trevor John Lionel Titterton

VISA APPLICANTS:  Ms Ronghua Lin
Master Soon Wan Liang

CASE NUMBER:  1701342

DIBP REFERENCE(S):  BCC2015/3206907

MEMBER:Christine Kannis

DATE:10 August 2018

PLACE OF DECISION:  Perth

DECISION:The Tribunal affirms the decisions not to grant the visa applicants Partner (Provisional) (Class UF) visas.

Statement made on 10 August 2018 at 6:49am

CATCHWORDS
MIGRATION – Partner (Provisional) (Class UF) visa – Subclass 309 (Spouse (Provisional)) – Bogus document – False passport – Compelling circumstances – Difficulty in travelling to visit – Sponsor’s loss of clients due to absence – Decision under review affirmed


LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2 cl 309.225, Schedule 4 PIC 4020


CASES
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 30 November 2016 to refuse to grant the visa applicants Partner (Provisional) (Class UF) visas under s.65 of the Migration Act 1958 (the Act).

2. This is an application for review of a decision made by a delegate of the Minister for Immigration on 30 November 2016 to refuse to grant the visa applicants Partner (Provisional) (Class UF) visas under s.65 of the Migration Act 1958 (the Act).

3. The first named visa applicant (the visa applicant) applied for the visa on 2 November 2015 on the basis of her relationship with Mr Trevor Titterton, the review applicant. At that time, Class UF contained only one subclass: Subclass 309 (Partner (Provisional). The criteria for the grant of this visa are set out in Part 309 of Schedule 2 to the Migration Regulations 1994 (the Regulations).

4. The delegate refused to grant the visa on the basis that the visa applicant did not satisfy the requirements of cl.309.225 of Schedule 2 to the Regulations because she did not meet Public Interest Criterion 4020 (PIC 4020) and there were no grounds to waive the requirements of PIC 4020.

5. The review applicant appeared before the Tribunal on 22 June 2018 to give evidence and present arguments. The Tribunal also received evidence by telephone from the visa applicant.

6. The Tribunal was assisted by an interpreter in the Mandarin and English languages.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issues for determination in this case are whether the visa applicant meets PIC 4020 and if not, whether there are compassionate or compelling reasons for this public interest criterion to be waived (cl.4020(4)).

9. Broadly speaking PIC 4020 (as required by cl.309.225) for the grant of the visa 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: cl.4020(1); and

   ·the applicant and each member of the family unit has not been refused a visa because of a failure to satisfy cl.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: cl.4020(2) and (2AA); and

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

   ·neither the applicant nor any family unit member has been refused a visa because of a failure to satisfy cl.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: cl.4020(2B) and (2BA).

10. The first issue for determination in this case are whether the applicant has given, or caused to be given, information that is false or misleading in material particular.

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

11. The term ‘information that is false or misleading in a material particular’ is defined in PIC 4020(5) and 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.

12. The requirement in PIC 4020(1) 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(1) 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.

14. The evidence before the Tribunal indicates that on 4 November 2015 the visa applicant provided her personal identifier to the Department, which included providing her finger prints and a photograph. The photograph was found to match a different identity, that of Ms Phang Wai Mum, a Malaysian citizen who was in Australia from August 2013 to February 2015 on a student visa.

15. On 21 September 2016 the Department conducted an interview with the visa applicant during which she made an admission that she had used the identity of Ms Phang to study in Australia because she was informed by a friend that it was easier to obtain an Australian student visa as a Malaysian citizen. She said she had not been truthful because she was scared she would not be able to enter Australia and see her husband. The applicant said she had paid a syndicate to arrange for her to be provided with a fraudulently issued Malaysian passport.

16. The review applicant did not take issue with the Department’s decision that the visa applicant had provided false and misleading information.   The visa applicant told the Tribunal she had provided a false passport to the Department.

17. The Tribunal, relying on the admissions made by the visa applicant at the hearing and the interview on 21 September 2016, finds that there is evidence the visa applicant has given, or caused to be given, to the Minister or an officer, information that is false or misleading in a material particular because it goes to her honesty and therefore her character (PIC 4001).

18. The Tribunal decided that the applicant did not meet PIC 4020(1).

    Should the requirements of cl.4020(1) be waived?

19. 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.

20. 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.

21. The Tribunal has had regard to Department’s procedural guidelines (PAM3).

22. The guidelines suggest that compelling circumstances affecting the interests of Australia may include situations where:

    ·Australia’s trade or business opportunities would be adversely affected were the person not granted the visa;

    ·Australia’s relationship with a foreign government would be damaged if the person is not granted the visa; or

    ·Australia would miss out on a significant benefit that the person could contribute to Australia’s business, economic, cultural or other development (for example, a special skill that is highly sought after in Australia) if the person was not granted the visa. 

23. While these situations are merely guidance, in that they are not reflected in the legislation and the Tribunal is thus not bound by them, they are indicative of the sort of matters that are relevant. The review applicant did not contend that there are any compelling reasons that affect the interests of Australia.

24. The guidelines suggest that circumstances for consideration must be of compassionate or compelling nature in the way they affect the Australian citizen, permanent resident, or eligible New Zealand citizen.  The guidelines further suggest that to waive the requirements of any or all of PIC 4020(1)(a), 4020(1)(b) and 4020(2), the applicant’s claims must have a compelling or compassionate element particular to that individual case that are beyond those usually present in that visa caseload. It suggests that these would include “a child who is an Australian citizen, permanent resident or eligible New Zealand citizen residing in Australia who would be adversely affected by a decision not to waive.”

25. Under policy, the types of circumstances that may involve compelling or compassionate reasons for waiving the requirements of PIC 4020 include, although not exhaustive:

    ·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).

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

27. On 13 October 2016 the Department sent the visa applicant a Natural Justice letter inviting her to comment on the false and misleading information she had provided and to advance any compelling or compassionate reasons which would justify waiver of PIC 4020.

28. On 7 November 2016 the visa applicant responded to the Natural Justice letter and provided written statements made by her and the review applicant. In her statement she said her mother-in-law was 90 years old and her husband was 62 years old. She said her husband was still working and he did not always have time to cook a proper meal for himself or clean his house. She said she was heartbroken to see him in that state and that he was living alone and he deserved to be taken care of by her. The written statement provided by the review applicant (dated 31 October 2016) contained information that was not materially different to the information provided by the visa applicant. He also said he had felt lonely for a long time and wanted to spend the rest of his life with the visa applicant.

29. The review applicant told the Tribunal that he found it difficult travelling back and forth overseas to visit the visa applicant. He said he visits the visa applicant twice a year, most recently for two months in February and March of this year. The review applicant said he is a self-employed electrical contractor and because of his lengthy absences from Australia he loses clients. He said his clients use another contractor because the consequence of his unavailability is that he is considered unreliable.

30. The review applicant said his mother passed away in January 2018. He said he wants to live a normal married life like other people.

31. The visa applicant told the Tribunal that the review applicant’s travel to visit her is exhausting and tiring for him. She said the review applicant is lonely and they want to be together and to take care of each other.

32. The Tribunal decided that there are no compassionate or compelling circumstances in the present case. The visa applicant and the review applicant are likely to endure a level of emotional hardship whilst they are not living in the same country and this hardship will affect an Australian citizen (the review applicant). The Tribunal does not consider this separation to be a compassionate or compelling circumstance because separation of parties is not an uncommon element in Partner visa applications and no other significant matter was raised. The review applicant’s loss of clients is a consequence of his choice to depart Australia for lengthy periods and no evidence was provided regarding the actual financial impact on his business.       

33. Having found that there are no compassionate or compelling circumstances in this case the Tribunal did not need to determine whether it should exercise its discretion to waive the requirements of PIC 4020(1).

34. The Tribunal decided the requirements of PIC 4020(1) should not be waived.

35. On the basis of the above, the applicant does not satisfy PIC 4020 for the purposes of cl.309.225.

36. For the reasons above, the visa applicant does not satisfy the criteria for the grant of the visa.

37. The visa applicant has not satisfied the criteria for the grant of the visa.  It follows that the secondary visa applicant does not meet the criteria for the grant of the visa and he therefore does not meet cl.309.311 to the Regulations.

    DECISION

38. The Tribunal affirms the decisions not to grant the visa applicants Partner (Provisional) (Class UF) visas.

    Christine Kannis
    Member

    
    

    ATTACHMENT  -  Extract from 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. 

    …