Yambot (Migration)

[2017] AATA 1492

Yambot (Migration) [2017] AATA 1492 (29 August 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Maribel Yambot

CASE NUMBER:  1615215

DIBP REFERENCE(S):  BCC2015/2280102

MEMBER:Jennifer Cripps Watts

DATE:29 August 2017

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a Partner (Temporary) (Class UK) visa.

Statement made on 29 August 2017 at 11:50am

CATCHWORDS

Migration – Partner (Temporary) (Class UK) visa – Subclass 820 – Public Interest Criteria 4020 – Misleading information – Compelling or compassionate reasons – Claimed no previous marriage – Registration record of previous marriage – Claimed mistaken identity

LEGISLATION

Migration Act 1958, ss 5(1), 65

Migration Regulation 1994, Schedule 2 cl 820.226, cl.4020(1); Schedule 4

CASES

Arora v MIBP [2016] FCAFC 35
Batra v MIAC [2013] FCA 274
Trivedi v MIBP [2014] FCAFC 42
Plaintiff M64/2015 v MIBP [2015] HCA 50

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 19 September 2016 to refuse to grant the applicant a Partner (Temporary) (Class UK) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 8 August 2015. The delegate refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl.820.226 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because she provided a bogus document or false or misleading information in her application and the delegate was not satisfied there were any compelling or compassionate reasons for waiving Public Interest Criteria 4020.

3. The applicant appeared before the Tribunal on 29 August 2017 to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor, Colin Warild, and the applicant’s sister, Abighail Medrana. 

4. The applicant did not request an interpreter.  The Tribunal checked with her before beginning the hearing that she did not request an interpreter.  She said she did not request one and she did not require one.  The Tribunal proceeded and considered that, even though English is not her first language, the applicant participated fully in the hearing and understood the questions and the proceedings.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The issue in this review is whether the visa applicant meets Public Interest Criterion 4020 (PIC 4020) as required by cl.820.226 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: 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).

7. The requirements in cl.4020(1) and (2) can be waived if there are certain compelling or compassionate reasons justifying the granting of the visa: cl.4020(4). However, this waiver does not apply to the identity requirements in cl.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?

8. The term ‘information that is false or misleading in a material particular’ is defined in cl.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 cl.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.

9. The requirement in cl.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: cl.4020(3). It also applies whether or not the document or information was provided by the applicant knowingly or unwittingly.

10. 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.

11. The Tribunal has considered whether there is evidence before the Tribunal that the applicant has given, or caused to be given, to the Minister, an officer, the Tribunal, a relevant assessing authority or a Medical Officer of the Commonwealth:

    §a ‘bogus document’, as defined in s.5(1), ie a document that the Tribunal reasonably suspects is a document that:

    ·purports to have been, but was not, issued in respect of the person, or

    ·is counterfeit or has been altered by a person who does not have authority to do so, or

    ·was obtained because of a false or misleading statement, whether or not made knowingly.

    and/or

    §‘information that is false or misleading in a material particular’ as defined in cl.4020(5), ie information that is:

    ·false or misleading at the time it is given, and

    ·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.

    in relation to the visa application or a visa held in the 12 months before the visa application was made.

12. The application for the visa that is the subject of this review was lodged on 21 September 2014 and refused by the Department in its written decision dated 19 September 2016 because the applicant did not meet Public Interest Criteria (“PIC”) 4020 and consequentially did not meet the criteria for the grant of a subclass 820 visa, specifically she did not meet cl.820.226.

13. The applicant indicated in her visa application that she had not been married to anyone other than the sponsor.  The Department informed the applicant, on 21 April 2016, that it had done an “Advisory on Marriages” check with the Philippines Statistics Authority and found that there is a marriage registered on 15 July 2005 between the applicant and Mr Virgilio D Urbano Jr, and gave the applicant an opportunity to provide any evidence of 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.

14. The applicant responded to the Department, on 3 August 2016, and said that she had never been married to anyone other than the sponsor, she does not have a child in the Philippines and the outcome of the verification is mistaken identity (meaning it is not her).  At the Tribunal hearing, the applicant said the same. 

15. At the Tribunal hearing, it was pointed out to the applicant that the personal information in her application, her birth certificate (including her birthdate, place of birth and her parents) was consistent across all three documents, that is the application, the birth certificate and the marriage certificate and that it seemed unlikely that all this information would be accurately consistent if there was, as the applicant claimed, a case of mistaken identity.

16. The Tribunal asked the applicant if, as she was claiming that she is not the person in the Philippines marriage certificate who married Virgilio Urbano and that it is false information, had she contacted the relevant department in the Philippines and tried to sort out the problem.  The applicant said she had tried contacting a lawyer in the Philippines by email but that the process would be very expensive and, in any event, she cannot leave Australia to deal with it because she is currently only holding a bridging visa, but has not provided any evidence that she has done so or any evidence that leads the Tribunal to form a view that the Philippines marriage certificate is not a valid document.

17. The applicant was told by the Tribunal that it appeared, as there was no evidence to the contrary, that the marriage certificate from the Philippines was a valid document and the Tribunal was inclined to make such a finding.  It was pointed out to the applicant that there was no evidence to indicate it is not a valid document and that the Tribunal is entitled, reasonably, to find that it is.

18. The non-disclosure of the previous marriage of the applicant is considered to be a material matter and to have been false or misleading at the time it was given, that is, at the time of application.  It is relevant to the criteria of whether the parties in this matter are spouses in a married relationship. 

19. Therefore, the applicant does not meet cl.4020(1).

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

20. Clause 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 cl.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: cl.4020(2AA). 

21. There is no evidence before the Tribunal that the applicant or any member of the family unit (as defined in r.1.12) has been refused a visa in the relevant period because of a failure to satisfy cl.4020(1) and, if so, the applicant was under 18 at the time the application for the refused visa was made, such that cl.4020(2) does not apply.

22. Therefore, cl.4020(2) does not apply.

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

23. The requirements of cl.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.

24. 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.

25. For the following reasons, the Tribunal is not satisfied that the requirements should be waived.  The Tribunal has considered whether the applicant has claimed or there is evidence of 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.

26. Therefore the requirements of cl.4020(1) or (2) should not be waived.

27. On the basis of the above, the applicant does not satisfy PIC 4020 for the purposes of cl.820.226.

28. There is no evidence before the Tribunal that the applicant meets the alternative criteria in cl.820.211 (people entering Australia to marry and who have subsequently married, and death, family violence, child exceptions).

    DECISION

29. The Tribunal affirms the decision not to grant the applicant a Partner (Temporary) (Class UK) visa.

    Jennifer Cripps Watts
    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. 

    …