1617151 (Migration)

[2018] AATA 332

1617151 (Migration) [2018] AATA 332 (23 January 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1617151

MEMBER:Susan Trotter

DATE:23 January 2018

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal remits the application for a Child (Migrant) (Class AH) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 117 (Orphan Relative) visa:

·Public Interest Criterion 4020(1) for the purposes of cl.117.223 of Schedule 2 to the Regulations.

Statement made on 23 January 2018 at 5:43pm

CATCHWORDS
Migration – Child (Migrant) (Class AH) visa – Subclass 117 (Orphan Relative) – Fraudulent documents – Death certificate – Persecution of Hazaras – Separation from family – Visa applicant’s young age

LEGISLATION
Migration Act 1958, ss 5(1), 65
Migration Regulations 1994, Schedule 2 cl 117.223, Schedule 4 PIC 4020

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

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

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 and Border Protection [in] August 2016 to refuse to grant the visa applicant a Child (Migrant) (Class AH) visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant applied for the visa [in] January 2014. The delegate refused to grant the visa on the basis that the visa applicant did not satisfy the requirements of cl.117.223 of Schedule 2 to the Migration Regulations 1994 (the Regulations). The decision was made on the basis that the delegate was not satisfied that the visa applicant met Public Interest Criterion (PIC) 4020(1) as required by cl.117.223 on the basis that he had provided bogus documents and that there were not sufficient compelling circumstances justifying the grant of the visa.

3. The review applicant lodged an application for review of the delegate’s decisions with the Tribunal on 17 October 2016.

4. The review applicant appeared before the Tribunal on 14 December 2017 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Hazaragi and English languages.

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

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in this review is whether the visa applicant meets PIC 4020(1) 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.

8. PIC 4020 is extracted in the attachment to this decision.

9. 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. 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 in the Act 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.

10. The requirement in PIC 4020(1) not to provide a bogus document, or false and 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 was provided by the applicant knowingly or unwittingly. 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 (Trivedi).

11. The requirement in PIC 4020(1) can be waived if there are certain compelling or compassionate reasons justifying the granting of the visa: PIC 4020(4).

12. 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.

13. It follows that the issues to be determined by the Tribunal are as follows:

    (a)  Has the applicant given, or caused to be given a bogus document or information that is false or misleading in a material particular?, And, if so,

    (b)  Are there compassionate or compelling circumstances that would allow for wavier of the PIC 4020(1) requirement?

    CONSIDERATION

14. Detailed written submissions, and documents, including a statutory declaration of the review applicant dated [in] November 2017, were provided to the Tribunal, additional to the documents before the Department of Immigration and Border Protection (the Department).

15. The review applicant’s evidence before the Tribunal (in his statutory declaration and at hearing) included as follows:

    (a)  He is one of [the] children of the same parents, with the children including [a number of] boys [and] girls. He is the biological brother of the visa applicant.

    (b)  In 1994 he was taken to Pakistan by his father to obtain treatment for his [condition]. His father returned to Afghanistan. His father was taken by the Taliban in the late 1990s. He does not know the exact day because he was in Pakistan. His mother and his siblings then fled to Quetta in Pakistan.

    (c)  His brother [died] in Pakistan in approximately 2007 leaving a wife, [Ms A], and [several] children.

    (d)  His sister [used] to live in [another country] with her husband but they now live in Pakistan.

    (e)  The visa applicant, was born in Afghanistan and his date of birth has been recorded as [date] which means that he was [age] years of age as at the date of the visa application and is now [age] years of age (as the date of the Tribunal hearing).

    (f)    His mother passed away [in] January 2011 after being sick for some time. Up until their mother passing away, the visa applicant lived with her and his brothers, [Mr B] and [Mr C]. [Mr C] came to Australia in early 2012 and was granted a protection visa and has since applied for Australian citizenship. Several months after [Mr C] left Pakistan, [Mr B] disappeared leaving the visa applicant with [Ms A]. [Mr B]’s whereabouts have been unknown since 2012. The visa applicant has lived with only [Ms A] and her children since that time. He sends money to [Ms A] to support the visa applicant. He made an application for a visa for the visa applicant because he had no-one to properly care for him and being the [brother], and being in a position to care for him, he thought it was in the visa applicant’s best interests to be in his care in Australia.

    (g)  In or around April 2013, he asked the visa applicant to go the General Consulate of the Islamic Republic of Afghanistan in Quetta, Pakistan (the Consulate) to get a Tazkira. The visa applicant was only [an age] at the time so [Ms A] accompanied him. They had to go in to different areas as males go to one area and females go to another. The visa applicant, at [age] years of age, was therefore left to get his identity documents by himself. He had to ask for someone’s assistance as the forms he was required to complete were in Dari whereas he only speaks and understands Hazaragi. The visa applicant was asked to return a few days later to collect the Tazkira, which he did.

    (h)  In July 2013, he asked the visa applicant to go back to the Consulate to get their mother’s death certificate. The visa applicant was told to bring five people who attended their mother’s funeral to the Consulate for an interview (or get a letter from a religious leader) and to provide photographs of their mother’s grave. He later took five such persons to the Consulate together with photographs of their mother’s grave. A few days later he was able to pick up the death certificate.

    (i)    In August 2013, the visa applicant again attended the Consulate and arranged for a passport, which he collected two weeks later.

    (j)    The visa applicant sent all the documents to him so they could be given to the Department for the visa application. At no point in the process did they think that they were fraudulent documents. When the Department said the Tazkira and death certificate were fake, he was shocked as the visa applicant had followed procedure by going to the Consulate to get the documents, particularly when the passport, which was applied for in the same manner as the other documents, was found to be true.

    (k)   He arranged for the visa applicant to go back to the Consulate again to query the fake documents and on that occasion he redid the forms and was told to post everything to Kabul with a letter from the Consulate, which he did. He then returned to the Consulate to collect the new documents.

    (l)    He has only recently learned that Afghan identity documents issued in Quetta can sometimes not be genuine. Consulate staff are Pashtuns and the treatment they provide to Hazaras, such as his brother, depends upon which Pashtun person is serving. It can be really hard for Hazaras to get assistance from Pashtun workers, and even harder for the visa applicant, a minor at the time, to get the right assistance.

    (m) Whilst the visa applicant now lives with [Ms A], she takes care of her own children primarily and the visa applicant, since [age] years of age, has had to take care of himself.

    (n)  The visa applicant has never received a formal education because of his illegal status in Pakistan but has taken private classes from other people in the Hazara community. He has tried to get [work] informally for a Hazara man but does not get enough work to live and relies upon money he (the review applicant) and [Mr C] send him. He cannot work outside of [a suburb in Quetta] because it is too risky because of his unlawful status.

    (o)  The visa applicant wishes to study in Australia and he (the review applicant) will financially and emotionally support him to obtain a formal education.

    (p)  If the visa applicant’s visa is not granted, he (the review applicant) is unable to return to Pakistan. Whilst he returned to Pakistan for [Mr C’s] wedding, he does not know whether he can lawfully live and work in Pakistan on his Australian passport. They cannot relocate to Afghanistan because it is too dangerous for Hazaras. Permanently relocating to Pakistan would also endanger his immediate family’s life. He and his family returned to Pakistan for [Mr C’s] wedding but were fearful of their lives and took many precautions (as detailed in his statutory declaration) to ensure their safety during their time there. They were also comforted that their Australia passports meant they could not be deported to Afghanistan if found, unlike the visa applicant’s current situation.

    (q)  It is very high risk for the visa applicant to leave [a suburb in Quetta]. He cannot work in Pakistan. He cannot obtain proper work.

    (r)   The position is different for his sister and her husband because they are living in Pakistan legally via her husband.

    (s)  The visa applicant wanted to flee Pakistan for Europe in 2015 but he promised he would do everything he could to get him to Australia to look after him. He did not want him going to Europe because he was underage and would have had to travel illegally to [another country] and then Europe and the risk to him was great.

    (t)    He has one brother who has passed away and another brother whose whereabouts they do not know. He feels a responsibility, as the [remaining] brother, to the visa applicant. His concern for the visa applicant has caused him considerable stress. When he hears news about the risk in Pakistan, it affects him because of his concern for the visa applicant. It affects his work. It affects his family. His past work, from June 2012 to December 2015, supporting youths and unaccompanied minors as [an occupation] has made his concerns deeper, knowing of the risks a person of the visa applicant’s age face. He has been sending money back to Pakistan ever since he arrived in Australia.

16. Submissions on behalf of the review applicant included as follows:

    (a)  The Australia Department of Foreign Affairs and Trade (DFAT) have stipulated that documentary fraud is rife throughout Afghanistan. The visa applicant was not complicit in deceptive practices when he tried to obtain authentic documents for the visa process but merely did as he was instructed to do by the Consulate. He went through official channels by going to the Consulate. He innocently tried to obtain lawful documents and was the victim of the fraudulent actions of others.

    (b)  It would be inconsistent with the legal framework (which protects minor visa applicants from being penalised from three-year and 10-year non-grant periods because of the fraudulent actions of their parents or guardians) to attribute blame by the operation of PIC 4020(1) to the visa applicant who was innocently trying to obtain genuine documents.

    (c)  In any event there are grounds for waiving PIC 4020(1) including:

    (i)Continuing separation of immediate family members because of an inability of the Australian citizen to reside in the visa applicant’s country of resident or a third country – Pakistan, with country information supporting the persecution of Hazaras in Pakistan, with the review applicant’s brother [having] fallen victim to persecutory acts against Hazaras and been killed in Pakistan in around 2007.

    (ii)Continuing separation of immediate family members because of an inability of the Australian citizen to reside in the visa applicant’s country of residence or a third country – Afghanistan, with country information supporting that Hazaras are persecuted in Afghanistan and with the review applicant not being able to relocate there.

    (iii)The best interest of a child, specifically the review applicant’s [age] year old children, Australia citizens, would not be served by either relocating from Australia or living separately from the review applicant if he travelled to care for the visa applicant.

    (iv)Expectations of the Australian community would not be to support penalisation of an Australian citizen, the review applicant, to overcome discrimination in Pakistan, including in relation to the country’s public record systems, to bring an immediate family member to Australia.

    Issue 1 - Has the applicant given, or caused to be given a bogus document or information that is false or misleading in a material particular?

17. A Tazkira and death certificate of his mother was provided for the visa applicant’s application. Those documents were verified by the Department and found to be fraudulent and fake and bogus.

18. Nothing in the definition of a bogus document or the application of PIC 4020 requires the applicant’s knowledge or consent or even involvement in the production or provision of a bogus document. PIC 4020(1) is enlivened whether or not the bogus document or information was provided by an applicant knowingly or unwittingly.

19. The Tribunal accepts the evidence before it that the visa applicant (and review applicant) relied upon what they thought were the correct processes to obtain the documents and accepts that there was no intention to purposely deceive and no element of fraud or deception on their behalf.

20. In the Tribunal’s view, however, Trivedi relates to circumstances where there is an honest mistake or a typographical error. In the present case, if the relevant documents are found to be bogus documents, for example, because they are counterfeit or issued by a person without authority to do so, that in itself implies an element of fraud or deception, whether on the part of the applicant or another person, and such circumstances would not be covered by the reasoning in Trivedi. The fact that the visa applicant may have been unaware of the provision of a bogus document does not alter the application of PIC 4020.

21. Country information on document fraud in relation to Afghan identity documents, as noted in the most recent DFAT Country Information Report Afghanistan (18 September 2017) includes:

    5.23 The most common and important form of identification is a taskira certificate. Taskiras are printed on plain paper, and include the names of the bearer, his/her father and grandfather; date and place birth; place of residency; type of occupation; and military service status. Information included on Taskira certificates is sometimes incomplete. Other than stamped seals, they do not include any security features, and the information on them is often incomplete. The Population Registration Department (PRD) of the MOI (Ministry of the Interior) in is responsible for issuing taskiras.

    …

    5.27 Document fraud is a major issue in Afghanistan. Because of the process for obtaining some documents is decentralised to the provincial level, and because the documentation itself generally does not contain robust security features, the system is vulnerable to fraud.

    ….

22. Earlier such DFAT reports, with information likely to be contemporaneous to when the visa applicant obtained the relevant documents include the DFAT Country Information Report Afghanistan (18 September 2015), note that most of the fraudulent documents come from Afghan applicants based in Pakistan, as follows:

    5.37 The Identity Checking Unit (IDCU) within the Ministry of the Interior can, in many cases, verify the full range of officially issued Afghan identity documents. For example, the Australian Embassy in Dubai (which carries out immigration responsibilities for Afghans applying to come to Australia) had a total of 506 Taskeras checked for verification by the IDCU over the three-year period to August 2014. Of the Taskeras checked, 249 or 49.2% were found to be non-genuine, or genuine but based on forged documentation. Most of the fraudulent documents (230 out of 249) came from Afghan applicants based in Pakistan. Only 19 of the 171 documents received from Afghan based applicants were found to be non-genuine. It is important to note that these rates of fraud may not be representative of the rates of fraud for Taskeras generally, as only documents that were suspected of possibly being fraudulent were referred for verification. Nonetheless, Afghan documentation including Taskeras, handwritten passports or other official Afghan documentation originating from Quetta in Pakistan should be independently verified due to the high incidence of fraud.

23. The Tribunal relies on the independent verification check from the Afghan issuing authorities obtained by the Department concluding that the visa applicant’s Taskira and the death certificate for his mother were fraudulent/bogus documents, and finds accordingly. The test in PIC 4020(1) requires the Tribunal to be satisfied that there is no evidence that an applicant has given, or caused to be given, a bogus document in relation to the application for the visa. An applicant is not permitted to correct their action, by for example provision of new documents, to avoid the operation of PIC 4020(1) (as has occurred in this case).

1. Therefore, PIC 4020(1) is not met.

   Issue 2 – Are there compassionate or compelling circumstances that would allow for wavier of the PIC 4020(1) requirement?

2. In considering whether there are compassionate or compelling circumstances that would allow for waiver of the PIC 4020(1) requirement, the Tribunal has had regard to the relevant circumstances including but not limited to matters identified in the Department’s Procedures Advice Manual (PAM3) which canvasses the factors that can be taken into account when considering a waiver, including the nature of the fraud. The Tribunal accepts that the fraud has been perpetuated without the visa applicant’s (or review applicant’s) knowledge and that they followed the procedures they understood to be correct to obtain the necessary documents for the visa application. Notably, the visa applicant was only [age] years of age at the time of obtaining the documents and was reliant upon persons who did not speak the same language as him. Whilst the documents in question have been found to be fraudulent, the information contained in the documents is consistent with the other evidence before the Tribunal as to the visa applicant’s age and identity and his mother’s death.

3. PAM3 lists other factors that may be taken into account. One factor there is that a decision not to waive would result in the continuing separation of immediate family members, because of an inability of the Australian citizen to reside in the applicant’s country of residence or a third country. In this context regard is to be had to whether the applicant’s country of residence is a war zone or the sponsor has been found to be a person to whom Australia owes protection. Another relevant factor is whether there are any significant health or welfare issues affecting an Australian citizen. It is of some concern that notwithstanding the grant of a protection visa to the review applicant upon his arrival in Australia, he has nonetheless travelled to Pakistan since then. However, country information supports that Hazaras are persecuted in Pakistan[1] and the Tribunal accepts that the review applicant took extensive protection measures, as detailed in his evidence. The Tribunal further accepts that country information supports that Hazaras are persecuted in Afghanistan such that it would not be reasonable for the review applicant and/or family to relocate there.[2] The Tribunal further accepts that it would not be reasonable based upon the country information for the review applicant to reside in either Pakistan or Afghanistan on a long-term basis to be with the visa applicant. The Tribunal is satisfied that this would not be in the best interests of the review applicant’s wife (an Australian permanent resident) or Australian citizen infant children, or his family generally, either if they resided there with the review applicant or if they were separated from their father.

   [1] DFAT Country Information Report Afghanistan (1 September 2017) at 3.14.

   [2] Amnesty International, Forced Back to Danger: Asylum-seekers Returned from Europe to Afghanistan, 5 October 2017 at (accessed 23 January 2018 and United States Department of State, 2016 Report on International Religious Freedom – Afghanistan, 15 August 2017, available at: (accessed 23 January 2018).

4. The review applicant is not the visa applicant’s parent but rather is his [brother]. The Tribunal is, however, satisfied that he has assumed a paternal responsibility for the visa applicant, because of the death of their parents, his status as the [remaining] male in the family and because of the visa applicant’s young age and vulnerability of living circumstances. The review applicant told the Tribunal of the emotional and psychological impact of the family’s traumas and history which is continuing because of the separation from the visa applicant. He has lived in Australia since 2009 and at the time of coming to Australia his mother and his [other] brothers were still living in Pakistan with the visa applicant. However, one of those brothers is now missing and the other has been granted protection status in Australia. Whilst the review applicant’s and visa applicant’s sister lives in Pakistan, she, as is customary in their culture, is part of her husband’s family and has legal status in Pakistan by virtue of her husband, unlike the visa applicant. Further, whilst the visa applicant has been residing with [Ms A] and her children, the Tribunal accepts that he has essentially been left to care for himself since 2012 and has been predominantly reliant upon financial assistance from the review applicant. The review applicant’s evidence also included details of the stress and mental health struggles he is impacted by because of his concern for the visa applicant, to whom he feels responsibility as the [remaining] male member of the family. Whilst he has not sought professional help in this regard, the Tribunal accepts that the review applicant is nonetheless significantly impacted as claimed and the Tribunal considers his position entirely understandable and plausible given his family’s history as outlined in evidence, which the Tribunal accepts.

5. The Tribunal is satisfied, on balance, that there are compassionate or compelling circumstances affecting the interests of Australian citizens (the review applicant and his children) and an Australian permanent resident (the review applicant’s wife) that justify the grant of the visa. The Tribunal finds that PIC 4020(4) is satisfied and that the requirements of PIC 4020(1) should be waived.

   OTHER MATTERS

6. The Tribunal observes that it is has confined its review to whether PIC 4020(1) for the purposes of cl.117.223 is met, consistent with paragraph 8.2 of the Tribunal’s President’s Direction - Conducting Migration and Refugee Reviews (30 June 2015), which provides that as a general rule, where the delegate has made an adverse decision on particular criteria or issue, the Tribunal should restrict its review to only that criteria. The Tribunal has therefore not considered the requirement in PIC 4020(2A) given that it was not canvassed in the departmental reasons and the Tribunal may not have all of the information in relation to that issue before it. However, the Tribunal observes that further identity documents have now been provided by the visa applicant and the Tribunal has formed the view that genuine claims have been made about the visa applicant’s age and circumstances and relationship with the review applicant.

   Conclusion

7. Given the findings above, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 117 visa.

   DECISION

8. The Tribunal remits the application for a Child (Migrant) (Class AH) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 117 (Orphan Relative) visa:

   ·Public Interest Criterion 4020 for the purposes of cl.117.223 of Schedule 2 to the Regulations.

   Susan Trotter
   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.

   …