WALIA (Migration)

[2020] AATA 3419

WALIA (Migration) [2020] AATA 3419 (29 June 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Manisha Walia

VISA APPLICANT:  Mr Rajneesh Walia

CASE NUMBER:  1813456

DIBP REFERENCE(S): CLD2018/25392113 G14/12004823 P18/02110530

MEMBER:Moira Brophy

DATE:29 June 2020

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a Visitor (Class FA) visa.

Statement made on 29 June 2020 at 3:35pm

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) (Class FA) – incorrect information – failure to declare previous visitor visa refusal – no compelling circumstances – decision under review affirmed

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, schedule 2, cl 600.213, Public Interest Criterion 4020

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 21 March 2018 to refuse to grant the applicant a Visitor (Class FA) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 9 January 2018. The delegate refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl.600.213 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because Mr Walia had failed to declare he had previously been refused a visa to Australia in his application.

3. 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. The review applicant, Mrs Manisha Walia gave evidence before the Tribunal on 4 May 2020 by way of a telephone hearing. The Tribunal also received oral evidence from the visa applicant Mr Rajneesh Walia. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.

5. The review applicant was represented in relation to the review by her registered migration agent.

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

   BACKGROUND

7. The applicant, Mr Rajneesh Walia is a 46-year-old male who was born in India and he continues to live there in the Punjab with his wife and one son. He has a daughter (the review applicant) and a son living in Australia. Mr Walia is self employed in his own retail business.

8. On 9 January 2018 Mr Walia applied for a Visitor (Class FA) (Subclass 600) visa stating he would like to visit Australia in the period from 5 February 2018 to 4 May 2018. The purpose of the visit was to holiday and spend time with his daughter and her family. His daughter was due to give birth to her second child in March 2018. In answer to the question ‘Have you ever had an application for entry to or further stay in Australia refused, or had a visa for Australia cancelled’ the applicant answered no.

9. Mr Walia had previously been granted a Visitor (Class FA) (Subclass 600) visa on 25 May 2013. He had arrived in Australia on 3 June 2013 and departed on 11 July 2013.

10. In the Decision Record, a copy of which the review applicant has provided to the Tribunal, the delegate considered the evidence presented and was satisfied the applicant had provided false and misleading information by answering the question incorrectly, 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).

11. Following the hearing on 4 May 2020 the Tribunal made an application to obtain the original decision to refuse the applicant a visitor visa. Because of COVID 19 the post was not operational, and the Tribunal was not able to obtain a copy of the file. The Tribunal considered whether the applicant was in any way disadvantaged by the Tribunal proceeding to determine the matter on the evidence before it. The Tribunal was mindful the present application arose because of an omission on the application made by the applicant for a visitor visa on 9 January 2018. The reason for the previous visa being refused was not a factor. The omission to declare the refusal was the central issue in this application. That being the case the Tribunal did not consider the applicant was disadvantaged by the Tribunal proceeding to make a decision on the evidence before it.

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. The issue in this review is whether the visa applicant meets Public Interest Criterion 4020 (PIC 4020) as required by cl.600.213 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).

13. 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?

14. 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.

15. The requirement in PIC 4020(1) not to provide a bogus document, or false or misleading information, applies whether 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 the document or information was provided by the applicant knowingly or unwittingly.

16. 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.

17. The question of what constitutes false or misleading information involves several considerations. Most importantly, PIC 4020 is directed at information which is false, in the sense of purposely untrue, rather than information which lacks the necessary element of fraud or deception (e.g. in the case of an innocent or unintended mistake). The Tribunal is not satisfied the omission here was not intended to deceive in any way.

18. The Tribunal then considered whether the omission of the information as to the previous visa refusal was ‘information that is false or misleading in a material particular’ as defined in PIC 4020(5). There is no doubt there was a previous application refused and this was relevant information in that it may impact on future applications. The Tribunal accepts that a person’s visa history is relevant when determining whether there are potential risks of non-compliance if their present application is granted.

19. The Tribunal has considered the submission by the applicant that the admission was inadvertent. The applicant also submits that he was not aware of the information submitted at the time of his previous application as it was all handled by his migration agent. He provided to the agent all information requested and the agent then made the application on his behalf. If information provided was as alleged ‘false and misleading’ then that was a matter the agent should be held to account for. The Tribunal has considered this submission, but it does not explain the omission on the present application to not declare the fact there had previously been a visa refused.

20. The Tribunal is satisfied that the applicant provided information with his application that may be considered to be false and misleading in a material particular. In making this finding the Tribunal has considered the materials contained in the department file including the application dated 9 January 2018.

21. Since the Tribunal is satisfied the information provided is ‘false and misleading in a material particular’ the Tribunal finds the applicant does not meet cl.4020(1).

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

22. 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.

23. 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.

24. 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).

25. 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 whether there are compelling and/or compassionate circumstances justifying the granting of the visa.

26. 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 the review applicant, Mrs Manisha Walia to the Tribunal relate to compelling or compassionate circumstances that affect her and her two children, who are Australian citizens.

27. Mrs Walia told the Tribunal she had come to Australia on 11 December 2012 on a Student (subclass 573) visa. She has since gained her permanent residency as a skilled worker and she became an Australian citizen in January 2019. She is now working in Griffith as an assistant accountant. She married and sponsored her husband to Australia on a Partner visa. They have two children born in 2014 and 2018. She has one brother in Australia with the rest of her family remaining in India. Her mother has come to Australia when she has had her children but she worries both she and her children are missing out on time with her father and they are not being given the opportunity to develop a relationship with him. She said her son was continually asking why his grandfather was not able to come to visit as he saw other children having their grandfather come to stay. She herself wanted her father to come and to provide her with emotional care and support as it was difficult for her and her family, trying to combine their working and family roles without family 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 support to another by the various electronic communication methods available while they are apart and living in different countries.

28. 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 600 visa to the applicant. 

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

    DECISION

30. The Tribunal affirms the decision not to grant the applicant a Visitor (Class FA) 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. 

    …