1419529 (Migration)

[2015] AATA 3388

1419529 (Migration) [2015] AATA 3388 (3 September 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Elsaddig Mohamed Ahmed Abdelhalim

VISA APPLICANT:  Mr Yasin Mohamed Ahmed Abdelhalim

CASE NUMBER:  1419529

DIBP REFERENCE(S):  OSF2013/016350

MEMBER:Amanda Goodier

DATE:3 September 2015

PLACE OF DECISION:  Perth

DECISION:The Tribunal affirms the decision not to grant the applicant a Child (Migrant) (Class AH) visa.

Statement made on 03 September 2015 at 3:31pm

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 October 2014 to refuse to grant the applicant a Child (Migrant) (Class AH) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 23 October 2013. The delegate refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl.117.211 and cl.117.223 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the delegate was not satisfied that the visa applicant was an orphan or under the age of 18 years following the provision of bogus documents as evidence of his birth date and death of his parents.

3. The review applicant appeared before the Tribunal on 10 July 2015 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic (Sudanese) and English languages.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. The Tribunal discussed with the review applicant his family composition.  His father had 2 wives and he and his brother are children of the same father and same mother who was their father’s second wife. 

6. The review applicant told the Tribunal he and his older sister knew when the applicant was born.  The Tribunal asked them why they stated he was born in 1995 in their applications for migration to Australia.  The Tribunal indicated that according to the delegate’s decision, the family in 3 separate applications stated that the visa applicant was born in 1995 and they are now claiming he was born in1996 and was under 18 years at the time the application was lodged.  The review applicant told the Tribunal that he asked his sister that and they realised they had made a mistake.

7. The review applicant told the Tribunal that his sister in Australia sent money for his survival and after his father died, she applied to bring him and his sister to Australia.  His sister married and was no longer included.  The intention was that he would come to Australia and support himself so she would not have to support him and he could also support his brother.  The Tribunal asked why they did not include the younger brother in the application as he was very young at the time and it was claimed that both parents had died.  Essentially they were leaving him alone as a young child in Sudan.  The review applicant told the Tribunal that they had arranged for him to stay with family/friends that would adopt and care for him but as time passed they realised that these people were taking the money sent and not providing for their brother and that is why they have sought to bring him to Australia.  The Tribunal put to him that it appeared to be a long time for them to realise this as he arrived in Australia in July 2005, acquired citizenship in 2008 but did not apply to bring his brother to Australia until 2013.  The review applicant indicated they thought he was being cared for.  The Tribunal also put to the applicant that he was stating that after his mother died the visa applicant was cared for by others but the visa applicant had indicated that he lived with his brother and sister until his brother went to Australia then he stayed with friends.  The review applicant indicated that his brother must be mixed up.

8. The Tribunal indicated that they had left a young child in Sudan in the care of friends after his parents had died.  He was not included in the application to Australia with his brother and sister, and the Tribunal was not satisfied that both of the visa applicant’s parents were dead at that time.  The review applicant indicated that he produced a death certificate for his father for his visa application as well as for his mother and assumed that they would be used and verified.  The Tribunal notes that the review applicant entered Australia on an orphan relative visa.  The Tribunal did not find the review applicant’s explanation as to why his younger brother was excluded from the visa application believable.

9. The Tribunal indicated to the review applicant that it was not satisfied on the evidence provided that the visa applicant was born in 1996 and the only evidence that had been produced indicating the visa applicant was born in 1996 had been found to be fraudulent.  The Tribunal is concerned despite stating that he was aware when his brother was born, he and other family members stated his brother’s birthdate as 1995 in previous applications.  The Tribunal indicated to the review applicant that it noted his brother attended school for some time in Sudan.  The review applicant indicated that he attended 2 schools, primary and secondary.  The Tribunal asked whether they would have a record of his age, levels of schooling completed and results and was told that they would but may not be reliable as they don’t check ages but he would provide copies to the Tribunal.  The Tribunal indicated that any documents provided would be verified as to authenticity. 

10. The review applicant provided additional untranslated documents following the hearing.  These documents appear to be school documents.  As they are untranslated, the Tribunal is unable to give weight to them as supporting evidence of the visa applicant’s age.  

11. The issue in this review is whether the visa applicant meets Public Interest Criterion 4020 (PIC 4020) as required by cl.117.223 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: 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).

12. 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?

13. 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: Batra v MIAC [2013] FCA 274.

14. 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.

15. 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.

16. The visa applicant provided a birth certificate issued by Soba Hospital in Sudan as evidence of his date of birth.  The Sudanese Embassy in Cairo deemed the document unreliable and unsuitable for migration purposes and recommended that the applicant obtain a birth certificate from the Civil Registration Department in Sudan.  The visa applicant subsequently provided an official extract from the General Birth Registrar in Sudan issued 26 February 2014 indicating his date of birth as 1 November 1996, his father’s death certificate and a copy of his mother’s death certificate.   The Sudanese Embassy in Cairo confirmed that both the extract of birth and the father’s death certificate were counterfeit and all the stamps and signatures were not genuine. 

17. The review applicant referred the Tribunal to the visa applicant’s identity card and passport.  However as indicated to the review applicant, the visa applicant indicated that he obtained these documents using his birth certificate.  As such the Tribunal is unable to accept the passport and identity card as a true indicator of the visa applicant’s date of birth as they were based on documents that were not reliable. 

18. The review applicant told the Tribunal that times in Sudan were difficult at the moment and all the original documents had been lost.  He set money to his brother to obtain these documents and his brother approached the people to help.  The review applicant indicated that it was not his brother’s fault that these people took advantage of him.  The review applicant indicated it was because he was required to produce these documents for the purpose of the application that he obtained the documents.

19. The Tribunal finds based on the evidence before it, that the applicant has given bogus documents to the Minister.  The Tribunal finds these documents are the extract of birth and the father’s death certificate.  The Tribunal reasonably suspects these documents, based on the information provided by the Sudanese Embassy in Cairo, are counterfeit

20. Therefore, the applicant meets cl.4020(1).

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

21. 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.

22. 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 and 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).

23. The Tribunal is obliged to consider all the circumstances of the case including any matters put forward by an applicant, and determine on the evidence as a whole whether there are compelling and/or compassionate circumstances justifying the granting of the visa.

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

25. It has not been claimed, and the Tribunal does not accept, that there are compelling circumstances which affect the interests of Australia and justifies the granting of the visa. 

26. The review applicant told the Tribunal that it is difficult in Sudan and his brother fears being recruited by the army.  He left school as he was fearful of being recruited.  It is very difficult for his brother and times are dangerous in Sudan.  His brother is the only family member in Sudan and has no support and no family.

27. The Tribunal has considered the reasons put forward but is not satisfied that these are 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 to the visa.

28. The Tribunal has considered all the relevant circumstances advanced, both individually and cumulatively, including all the information provided with the original application and to the Tribunal, and the Tribunal is not satisfied that there are compelling circumstances that affect the interests of Australia; nor 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 to the visa.

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

30. On the basis of the above, the applicant does not satisfy PIC 4020 for the purposes of cl.117.223.

    Whether Mr Yasin Mohamed Ahmed Abdelhalim is an orphan relative

    Age – r.1.14(a)(i)

31. Regulation 1.14(a)(i) requires that the visa applicant has not turned 18.

32. According to the visa application, the visa applicant claims to have been born on 1 November 1996, which would have made him 17 at the time of the visa application. 

33. The visa applicant provided a birth certificate issued by Soba Hospital in Sudan as evidence of his date of birth.  The Sudanese Embassy in Cairo deemed the document unreliable and unsuitable for migration purposes and recommended that the applicant obtain a birth certificate from the Civil Registration Department in Sudan.  The visa applicant subsequently provided an official extract from the General Birth Registrar in Sudan issued 26 February 2014 indicating his date of birth as 1 November 1996.   The Sudanese Embassy in Cairo confirmed that the extract of birth certificate was counterfeit and all the stamps and signatures were not genuine. 

34. The review applicant referred the Tribunal to the visa applicant’s identity card and passport.  However as indicated to the review applicant, the visa applicant indicated that he obtained these documents using his birth certificate.  As such the Tribunal is unable to accept the passport and identity card as a true indicator of the visa applicant’s date of birth as they were based on documents that were not reliable. 

35. The review applicant as well as his siblings in 3 previous visa applications all declared the visa applicant to have been born in 1995.  When asked why they declared him to have been born in 1995 and were now saying he was born in 1996, the review applicant indicated that they had made a mistake.  The Tribunal put to the review applicant that he stated he knew when the visa applicant was born yet he put 1995 as his brother’s birth date back then and was now claiming he was born in 1996.  The review applicant indicated he wasn’t sure at the time so had asked his sister who now admits she made a mistake.  The Tribunal acknowledges the sworn statements provided by the review applicant’s siblings stating they made a mistake in his date of birth at the time. However the Tribunal does not accept their explanation.  There were three separate applications made in 2 different years and all were consistent in that the visa applicant was born in 1995.  The applicant’s supporting documents have been found to be unreliable.  After considering all the available evidence, the Tribunal is unable to be satisfied that the visa applicant is under the age of 18 years at the time of application. 

36. The Tribunal does not accept based on the evidence provided that the visa applicant was under 18 at the time of the visa application. Accordingly r.1.14(a)(i) is not satisfied.

37. It follows then the visa applicant is not an orphan relative of an Australian relative at the time of application.  Therefore the Tribunal finds that cl.117.211(a) is not met.

38. As the visa applicant does not meet an essential criterion for the visa the Tribunal did not need to go on to consider the other criteria.

39. This means the criteria for the grant of a Subclass 117 visa are not met.  There have been no claims advanced in respect of the other visa subclasses in Class AH.

    DECISION

40. The Tribunal affirms the decision not to grant the applicant a Child (Migrant) (Class AH) visa.

    Amanda Goodier
    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 a 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. 

    …