1709452 (Migration) - [2021] AATA 3314

1709452 (Migration) [2021] AATA 3314 (15 June 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1709452
MEMBER:Justine Clarke
DATE:15 June 2021
PLACE OF DECISION: Melbourne
DECISION:The Tribunal remits the applications for Child (Migrant) (Class AH) visas for reconsideration, with the direction that the visa applicants meet the following criteria for Subclass 117 (Orphan Relative) visas:
·Public Interest Criterion 4020 for the purposes of cl.117.223 of Schedule 2 to the Regulations.

Statement made on 15 June 2021 at 4:05pm

CATCHWORDS
MIGRATION – Child (Migrant) (Class AH) visa – Subclass 117 (Orphan Relative) visa – applicant had provided bogus documents– DNA evidence – review applicant is not the paternal uncle of the three visa applicants – applicants have grown up as siblings in one household their entire life – compelling circumstances that affect the interests of an Australian citizen – decision under review remitted

LEGISLATION
Migration Act 1958, ss 5, 65, 359
Migration Regulations 1994, r 1.03, Schedule 2, cl 117.223, Public Interest Criterion (PIC) 4020

CASES
Arora v MIBP [2016] FCAFC 35
Batra v MIAC [2013] FCA 274
Kaur v MIBP [2017] FCAFC 184
Plaintiff M64/2015 v MIBP [2015] HCA 50
Singh v MIBP [2017] FCCA 2461
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

This is a combined application for the review of three decisions made by a delegate of the Minister for Immigration on 6 March 2017 to refuse to grant the applicants Child (Migrant) (Class AH) visas under s.65 of the Migration Act 1958 (the Act).
At the time of this decision, the review applicant [is] a [age]-year-old Australian citizen.[1] It is claimed that he is the paternal uncle of the visa applicants.
1A certified copy of his certificate of Australian citizenship is on the Department’s file in respect of [Child C]’s application for the [visa].
On 24 June 2015, the visa applicants [Child A], [Child B] and [Child C] applied for Child (Migrant) (Class AH) visas. The review applicant is the sponsor of each application for the visa.
At the time of application, Class AH contained three subclasses: Subclass 101 (Child), Subclass 102 (Adoption) and Subclass 117 (Orphan Relative). Claims have been made in respect of the Subclass 117 visa. The criteria for a Subclass 117 visa are set out in Part 117 of Schedule 2 to the Migration Regulations 1994 (the Regulations). Relevantly to this case, the criteria include cl.117.223, which is a time of decision criterion.
The review applicant provided the Tribunal with copies of the three decision records, that is, where each of the visa applicants was the sole applicant. In each case, the same delegate refused to grant the visas on the basis that each visa applicant did not satisfy the requirements of cl.117.223 because the delegate was not satisfied that each visa…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading 1709452 (Migration)

Details

AGLC: 1709452 (Migration) [2021] AATA 3314
Case: [2021] AATA 3314
Decision Date: 15 June 2021

CaseChat Overview and Summary

The Administrative Appeals Tribunal reviewed a decision concerning three Child (Migrant) (Class AH) visa applications, subclass 117 (Orphan Relative). The review applicant, who claimed to be the paternal uncle of the visa applicants, disputed the primary decision-maker's finding that the applicants had provided bogus documents. The visa applicants had grown up together as siblings in one household.

The central issue before the Tribunal was whether the visa applicants met Public Interest Criterion (PIC) 4020, as required for the grant of the visa. Specifically, the Tribunal had to determine if the applicants had provided a bogus document or false or misleading information in relation to their visa applications, and whether they satisfied the Minister as to their identity. The Tribunal also considered whether there were compelling circumstances that justified waiving the requirement under PIC 4020(1), noting that such a waiver did not extend to identity requirements.

The Tribunal considered documentary evidence, including submissions from the review applicant, a letter from a primary school, and school reports. The review applicant asserted that the visa applicants had been misled into providing counterfeit school transcripts and denied providing fraudulent documents. The Tribunal also noted submissions alleging bias by a departmental contractor and claims of attempted bribery. Crucially, DNA evidence indicated that the review applicant was not the paternal uncle of the three visa applicants.

Given the conflicting evidence and the finding that the review applicant was not the paternal uncle, the Tribunal concluded that the matter should be remitted for reconsideration.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.CONSIDERATION OF CLAIMS AND EVIDENCEIssue for determination The issue in this review is whether, in each case, the visa applicant meets PIC 4020 as required by cl.117.223 for the grant of the visa. PIC 4020 is extracted in the attachment to this decision. Broadly speaking, this relevantly requires that:·there is no evidence that the applicant has given, or caused to be given, to the Minister or an officer a bogus document or information that is false or misleading in a material particular in relation to the application for the visa: PIC 4020(1); 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). 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). However, this waiver does not apply to the identity requirements in PIC 4020(2A) and (2B).Evidence In assessing these issues, the Tribunal has had regard to all documents on the Department’s and the Tribunal’s files, as well as to the oral evidence given at the hearing. The Tribunal notes that, in this review application, the review applicant submitted a number of documents, including:·written submissions dated 4 November 2017 denying that the visa applicants had submitted a bogus document with respect to the death of their father and reiterating the claim, that was outlined in each primary decision, that the visa applicants had been ‘coaxed’ by a ‘would-be crook’ to provide counterfeit school transcripts, ‘without their full knowledge, free accords or consent’ and claiming, notwithstanding, that ‘they have never provided any bogus or fraudulent documents or information’; ·the original and a NAATI certified translation of a ‘to whom it may concern’ letter dated 6 April 2017, signed [by] the Director of [the] Primary School, stating that, ‘after a period of interruption due to some personal reasons’, the named visa applicants had resumed their studies at the school; ·written submissions dated 19 March 2019 requesting priority processing of the review application stating, amongst other things, the following:when the Department’s private/independent Contractor (an Ethiopian national/ethnic Amhara) despatched to [the] Public School for the main purpose of investigating the three Orphaned siblings’ learning activities, he showed prejudiced or biased tendency towards the three siblings, who are ethnic Tigre, in which he misled the Department of Home Affairs by misconstruing the statement or report of the School Director/Principal and by deliberately lying that the Death Certificates of the deceased parents were not submitted. Moreover, appallingly enough to say, he asked the three siblings for kickback or bribes; and·a number of school reports in respect of the visa applicants.Has the applicant given, or caused to be given a bogus document, or information that is false or misleading in a material particular?

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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