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

1. 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).

2. 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].

3. 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.

4. 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.

5. 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 applicant met Public Interest Criterion (PIC) 4020. PIC 4020 is extracted in the attachment to this decision.

6. Specifically, the delegate found that each visa applicant did not meet PIC 4020(1) as each visa applicant had given a bogus document in support of their application. Confusingly, in each case, the delegate specified that this was a bogus document purporting to be a death certificate for the claimed father of each of the visa applicants. However, the bulk of each refusal decision detailed that the school records which had been submitted were checked with the school and that the result of that checking suggested that, in each case, these documents were bogus documents.

7. As noted in each primary decision, subsequently, on 18 December 2017, the Department wrote to each visa applicant outlining the outcome of the verification check and inviting them to respond to this adverse information and also to specify whether there were any 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 to justify the granting of the visa.

8. Each primary decision outlines the review applicant’s comments of 25 January 2017, in response. The review applicant claimed that:

   ·At the time that the Department requested the visa applicants’ school records, the review applicant had the school transcripts but that they were lost. (He claimed to have found them later).

   ·‘[T]hey’ (presumably the visa applicants or their agent/s) had approached the headmaster at his office and requested that he reissue the visa applicants with similar school transcripts, but the headmaster declined, insisting that he had already issued them.

   ·The visa applicants had been approached by ‘a would-be crook’ who had ‘exploited the[ir] immature age and low consciousness’ and ‘deceived and coaxed’ them ‘into inventing spurious and counterfeit School Transcripts for them under the name of [a] School’. 

   ·The visa applicants had no intention to mislead or deceive the Department, rather, they had been ‘tempted by a would-be crook without their full knowledge, free accords or consent’ and that they had not believed that submission of the documents would adversely affect their applications for the visas.

   ·‘In the middle of attending the school, the three Orphaned siblings temporary quitted their class for six months on some compelling circumstances or grounds. Now, they are ready to resume the class at the school. Unlike false assertions and claims made by your private contractor, the three Orphaned sibling students were at the school, until they were temporarily quitted their class on compelling grounds’.

9. The review applicant concluded by stating that he had ‘attached and posted the initial School Transcripts’ to the Department—presumably the ones which had been lost and later found.

10. In each case, the delegate also considered whether the requirements of cl.4020(1) should be waived in accordance with cl.4020(4). However, in each case, the delegate was not satisfied that there were 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 justified the grant of the visa.

11. On 1 May 2017, the review applicant applied to the Tribunal for review of the three primary decisions. He has been unrepresented in relation to the review.

12. On 1 July 2020, the Tribunal wrote to the review applicant about the impacts of COVID-19, specifying that the Tribunal had identified that an in-person hearing is required to progress the review and to inform that the Tribunal was unable to hold in-person hearings at the time. The letter stated that the Tribunal would be in contact when circumstances had changed, and an in-person hearing could proceed.

13. Subsequently, the Member determined that a video hearing would be a suitable alternative to an in-person hearing.

14. Due to the COVID-19 pandemic, the Tribunal did not hold an in-person hearing. Rather, on 25 August 2020, the review applicant appeared, by video from Western Australia, before the Tribunal to give evidence and present arguments. The Tribunal also received oral evidence from Ms [D] (the review applicant’s daughter, aged in her [age]) and Ms  [E] (the review applicant’s partner)—both by video from the same location in Western Australia. The Tribunal hearing was conducted with the assistance of an interpreter in the Tigrinya and English languages who participated by video from a different location. The three visa applicants were available to give their oral evidence by telephone from Ethiopia but, having heard the oral evidence of the review applicant, Ms [D] and Ms [E], the Tribunal did not consider it to be necessary.

15. Following the hearing, on 26 August 2020, Ms [D] sent an email to the Tribunal with further information in respect of matters discussed at the hearing.

16. On 29 September 2020, the Tribunal wrote to the review applicant inviting him to provide DNA evidence of both the claimed biological relationship between the three offshore visa applicants and the claimed biological paternal uncle/niece and paternal uncle/nephew relationship between the review applicant and the three offshore visa applicants.

17. Subsequently, the review applicant accepted the invitation to provide DNA evidence and the Tribunal liaised with the Department in respect of the request for DNA testing.

18. On 21 January 2021, the company which undertook the DNA testing sent its report, dated 20 January 2021, to the Tribunal. The final paragraph of the accompanying letter ‘strongly urge[d]’ the Tribunal to contact the writer if the Tribunal had any questions or needed additional clarification on any aspects of the report.

19. Given that the information in the DNA report has the potential to have very serious consequences for the visa applicants with respect to their applications for the visas and moreover, their sense of identity, on 19 March 2021, the Tribunal wrote to the company that prepared the report to ensure that it correctly understood the information in that report.

20. On 24 March 2021, the company provided a letter in response, dated 23 March 2021.

21. On 30 March 2021, the Tribunal wrote to the review applicant to provide him with a copy of the report of the DNA test results, to inform him that the Tribunal had sought clarification from the company to ensure that it correctly understood the information in that report and had received a response from the company (attaching copies of the correspondence), and, finally, to invite him to comment on or respond to certain information in the report pursuant to s.359A of the Act. The Tribunal invited the review applicant to comment on or respond to the information, or seek an extension of time, by 13 April 2021 and outlined the consequences of failing to do so.

22. The letter relevantly stated:

    The results indicate that there is ‘extremely strong support’ for a full sibling relationship between [Child A] and [Child C]. (The probability of the relationship is 99.998%, using a prior probability of 0.5). The laboratory has confirmed that the result of its testing in this regard is reliable and that [Child C] and [Child A] are ‘highly likely to be related as full siblings’.

    However, the Tribunal has concerns about other results contained in the report.

    Please note, however, that we have not made up our mind about the information.

    The particulars of the information are:

    With respect to [Child B]:

    ·     The X-Chromosome results indicate that [Child B] and [Child A] do not share the same biological father.

    o   The laboratory has confirmed that these results are conclusive.

    ·     The results of a re-constructed DNA genotype for the biological mother of [Child A] and [Child C], indicate that it is ‘unlikely’ that [Child B] shares the same biological mother as [Child A] and [Child C].

    o   The laboratory has explained that these results are deemed to be highly likely/reliable.

    ·     The kinship statistical results indicate that the likelihood of you and [Child B] being related as uncle/niece is ‘inconclusive’. These results indicated the likelihood of the relationship compared to unrelated individuals was calculated as 0.16 to 1.

    o   The laboratory has explained that ‘a result of <1 would deem the relationship unlikely, however it is not a conclusive result’. The laboratory has explained that the likelihood ratio generated was based on you being a full biological uncle to [Child B] because you were related as a full biological sibling to the parent of [Child B]—not as a half biological sibling to the parent of [Child B].

    With respect to [Child C]:

    ·     The results of the Y-chromosome short tandem repeat autosomal DNA testing indicate that you are ‘excluded’ from being related to [Child C] as uncle/nephew. With respect to these results, the report concluded you and [Child C] ‘do not share the same paternal lineage and are therefore NOT related as paternal uncle and nephew’.

    o   The laboratory has confirmed that this is a conclusive result. (Note that the laboratory explained that if you and the father of [Child C] are half brothers (only sharing the same mother and having two different fathers) then a different Y-Chromosome between you and [Child C] would be obtained).

    ·     The kinship statistical results indicate that the likelihood of you and [Child C] being related as uncle/nephew is ‘inconclusive’. These results indicate the likelihood of the relationship compared to unrelated individuals was calculated as 0.20 to 1.

    o   The laboratory has explained that this is ‘a second independent test’, that these results were based on a full uncle/nephew comparison, that a low likelihood ratio of 0.20(<1) was obtained and that the relationship would be deemed unlikely or, using the more conservative approach, as inconclusive.

    With respect to [Child A]:

    ·     The kinship statistical results indicate that there is ‘no support’ for the likelihood of you and [Child A] being related as uncle/niece. These results indicated the likelihood of the relationship compared to unrelated individuals was calculated as 0.065 to 1.

    o   The laboratory referred to a statement in the AABB Standards for Relationship Testing (13th edition) that ‘likelihood ratios less than 0.1 shall be considered genetic evidence not supporting the tested relationship’.

23. It should be noted that the s.359A letter did not raise the issue of whether or not each visa applicant would meet cl.117.211 or cl.117.221, which respectively require that, at the time of application and at the time of decision, a visa applicant is the orphan relative of an Australian relative. This is because the Tribunal is mindful of the practice direction made by the President of the Tribunal entitled Conducting Migration and Refugee Reviews President’s Direction. Clause 8.2 of this direction provides:

    As a general rule, where the Minister for Immigration … or delegate has made an adverse decision on particular criteria or issues, the AAT should restrict its review to those matters.

24. Rather, the Tribunal’s letter explained that the information that was particularised (in respect of s.359A) was relevant for the following reasons.

    This information is relevant to the review because if the Tribunal relies on this information in making its decision, it may conclude that, despite your oral evidence and claims, you are not the paternal uncle of each of the visa applicants. The Tribunal may find that this information affects the Tribunal’s consideration of Public Interest Criterion (PIC) 4020(4)(b). That is, if the Tribunal finds that you are not the paternal uncle of the three visa applicants, this may affect the Tribunal’s consideration of whether there are compassionate or compelling circumstances affecting the interests of an Australian citizen, an Australian permanent resident, or an eligible New Zealand citizen that justify the granting of the visa.

    …

    … It may also cause the Tribunal to impugn your general credibility. This would be the reason, or part of the reason, for the Tribunal not to exercise the discretion to waive the requirements in PIC 4020(1). This would cause the Tribunal to conclude that, in each case, the visa applicants do not meet PIC 4020 and therefore that they each do not meet cl.117.223. The consequence of the Tribunal relying on this information is that it would be the reason, or part of the reason, for the Tribunal to affirm the decision under review not to grant each of the visa applicants Child (Migrant) (Class AH) visas.  

25. On 13 April 2021, the review applicant wrote to the Tribunal requesting an extension of time. He advised the Tribunal that he was in a ‘bad situation and disturbed’ due to a war in his ‘hometown’ of Tigray in Ethiopia, which had displaced a lot of his family members. He also informed the Tribunal that it had taken him some time to find someone to help him make his written request in the English language.

26. On 14 April 2021, the Tribunal wrote to the review applicant to inform him that it had granted an extension of time until 27 April 2021.

27. Late on the evening of 26 April 2021, the review applicant provided written comments/his response to the s.359A invitation. He relevantly stated:

    The DNA results of [Child A], [Child B] and [Child C]] have come as a complete shock to me and my family. It is hard for me and my family to know what to think or say because as far as we have ever known, they are my brother’s children. I am able to provide all necessary evidence to prove that [Child A], [Child B] and [Child C] have grown up as the children of my brother, [name deleted]. I do have Live Eyewitnesses from Family members and neighbours. The DNA results have made us question that maybe my brother might have had a very personal life that no one was aware of while he was alive. We have no way of confirming this with him now but what I do know is that these kids have always been my family and I have always supported them and will continue to support them. I am the only family that they have left and I feel very protective of them. [Child A], [Child B] and [Child C] have grown up as siblings in one household their entire life and spent their lives thinking that they all have the same [f]ather and mother. I have been working hard and tirelessly, I spend a lot of money [on] my nephew/[n]ieces. [Child A], [Child B] and [Child C] are [p]art of the [f]amily and I want them to be united with the rest of their family. I worry daily about them and want them to be with me. The stress of sponsoring them and worrying about their well being has caused a huge strain on my mental health. I have spent so much time and money and sacrificed so much so that I could do everything I can to bring them to Australia and there is nothing more I would want th[a]n for them to come here and be a part of my family.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Issue for determination

29. 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.

30. 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).

31. 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

32. 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.

33. 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?

1. 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.

2. The requirement in PIC 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: PIC 4020(3). It also applies whether the document or information was provided by the applicant knowingly or unwittingly.

3. 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.

   Is the death certificate for the visa applicant’s father, that was submitted, a bogus document?

4. In the written submissions dated 4 November 2017, which were received by the Tribunal on 14 November 2017, the review applicant submitted that, ‘[i]n contrast to Senior Immigration Officer’s unsubstantiated claims, the applicants have never provided and lodged a bogus document proving a death certificate for their father’.

5. There is no information or evidence on any of the three Departmental files that suggests that the death certificate in respect of the visa applicants’ claimed father that has been submitted is a bogus document. The Tribunal finds that the delegate’s statement, in each primary decision, that the document purporting to be a death certificate for the claimed father of each of the visa applicants was a bogus document was made in error. Rather, as outlined in each primary decision, a representative of the Department, who attended the school to verify the school records which had been submitted, was advised by the school that the school had not issued the documents and that the information contained in the documents does not match information appearing in their records. This issue is discussed below. 

6. At the hearing, the Tribunal discussed with the applicant its then preliminary view that the delegate had made an error when stating that a document purporting to be a death certificate for the claimed father of each of the visa applicants was a bogus document. The applicant said simply that he knew that his brother had died.

   Are the initial school records, that were submitted, [2] bogus documents?

   2The Tribunal notes that, in the review applicant’s response to the Department of 25 January 2017 and in the written submissions of 4 November 2017 in this review, the review applicant referred to the school records that he claims to have lost, later found and then submitted to the Department as ‘the initial School Transcripts’. However, in these reasons, the Tribunal uses the term ‘initial school records’ to refer to the school records which were first submitted to the Department—not those claimed to have been first issued by the school.

7. On 21 September 2016, the Department sent a letter requesting a number of documents,[3] including ‘[s]chool records original and translated versions for all the applicants for the past 5 years’. The letter requested that the documents be provided within 28 days of the date of the letter. The letter contained the following statement:

   If you provide us with fraudulent documents, false or misleading information, this may result in processing delays and possibly your application being refused.

   3It is unclear from the records on the Department’s files whether this letter was sent to each visa applicant or to [Child C] only. Each of the hard-copy files contains a copy of the letter that was sent to [Child C].

8. From review of the Department’s files, it is unclear on which date the initial school records said to have been issued by [the] school were submitted to the Department. However, the Tribunal finds that, in the course of applying for the visas, each of the visa applicants caused to be given to an officer of the Department school records as evidence of their schooling.

9. As noted in the primary decisions, on 18 January 2017, the Department sent a letter to each of the visa applicants inviting comment on adverse information. These letters explain that the Department had conducted checks on the school records which had been submitted, specifying that, from 27–29 December 2016, a representative of the Department had attended [the] School. The letters on the Department’s files relevantly state that the representative was advised by the school that:

   ·     [Child A] had never been a student at the school and the document was not issued by the school.

   ·     [Child B] was enrolled at the school on 11/09/2013 ‘GC’ (which the Tribunal assumes means Gregorian calendar) and was no longer a student at the school. The school also advised that the school records provided were not issued by the school and that the information contained in the documents does not match information appearing in their records.

   ·     [Child C] was enrolled at the school on 12/06/2007 ‘EC’ (which the Tribunal assumes means Ethiopian calendar) and was no longer a student at the school. It was noted that [Child C]’s date of birth was listed as [age] years at the time of enrolment. The school also advised that the school records provided were not issued by the school and that the information contained in the documents does not match information appearing in their records.

10. On 25 January 2017, within the required timeframe, the review applicant replied with the claims that were outlined earlier in these reasons. These submissions were reiterated in the written submissions of 4 November 2017 which were filed in this review.

11. At the hearing, the review applicant gave oral evidence that the Director of the school had given him a report for the visa applicants but that he had not submitted these documents when lodging the applications for the visas. He stated that, when the Department requested school records for each visa applicant for five years be submitted within a short timeframe, he had contacted the person who is caring for the visa applicants and asked her to give him reports for five years as soon as possible. He said that she went to the school but could not find the Director. He said that he did not know how she came to get the records that were submitted. He said that he did not know whether they had found the Director or whether another person had done it for them. He said that he received these records and then submitted them, not knowing that they were false. He stated that he would not have knowingly submitted false documents to the Department.

12. When the Tribunal asked the review applicant about his previous claim that the visa applicants had been approached by someone who then provided false transcripts, he said that this was not correct. Then the Tribunal referred the applicant to his letter of 4 November 2017, but he reiterated his earlier oral evidence that he did not know how the visa applicants came to have the documents.

13. When the Tribunal asked the review applicant whether he conceded that the school transcripts which had been submitted initially were bogus documents, he told the Tribunal that he did not know. He said words to the effect, ‘the only thing I know is that this document came from the school. Whether it came from the school director or by another person, it came from the school’.

14. The Tribunal then asked the review applicant why he had stated, in his letter of 4 November 2017, that the visa applicants had been coaxed into providing false documents.

15. The review applicant told the Tribunal that a man named [Mr F], who knows Tigrinya (the language), had written the letter to the Department for him. (Some of the claims in which, the Tribunal notes, were repeated in the review applicant’s written submissions of 4 November 2017). The review applicant said that he had told [Mr F] that he did not know whether the documents were true or false. He said that he had not said that he was sure that the documents were false. He said that he did not know how [Mr F] had understood him. 

16. The Tribunal asked the review applicant whether [Child A] had been enrolled at the school before 27 December 2016 (which, it will be recalled, was the date the representative of the Department had attended [the] School). The review applicant gave oral evidence that he was not sure because he is living in Australia. The Tribunal followed up by asking the review applicant whether his answer would be similar with respect to [Child B] and [Child C], that is, that it was difficult for him to know whether they were attending the school because he lives in Australia. The review applicant said that he was not sure because every time that he is in contact with them, he asks whether they are attending school and that they tell him that they are.

17. When the Tribunal asked the review applicant about his previous claim that the contractor who was engaged by the Department to verify the school transcripts had engaged in corrupt behaviour,[4] he replied that no one had approached them but said words to the effect that, ‘generally, those contractors act that way’; ‘I’m speaking generally’. He that, from his knowledge of the country, there is corruption and people ask about bribes. He reiterated that no one had asked him or ‘the children’ to pay bribes.

    4In addition to the claim made on 19 March 2019, that was extracted earlier, the Tribunal notes that the review applicant’s letter to the Department of 25 January 2017 also claimed that ‘false assertions and claims’ had been made ‘by your private contractor’.

18. Having had the opportunity to observe and hear the review applicant give his oral evidence over a video hearing of around two hours’ duration (not including the adjournment), and having considered the review applicant’s response to the s.359A letter, the Tribunal found him to be credible. Accordingly, the Tribunal accepts the review applicant’s oral evidence. The Tribunal finds that there was no knowing fraud or deception on his part. Further, the Tribunal accepts the review applicant’s claim that a man named [Mr F] ‘assisted’ him to prepare a letter to the Department, the content of which was repeated in written submissions in this review and that, due to the review applicant’s limited English language skills, he did not verify what was submitted. The Tribunal accepts the review applicant’s oral evidence that his comments in the written submissions of 19 March 2019 were speculative, based on his knowledge of corruption within the country rather than knowledge of corruption on the particular occasion.

19. The Tribunal has considered all of the evidence before it. The Tribunal relies on the evidence obtained by the Department’s representative or contractor who attended the school. This evidence causes the Tribunal to find that each of the earlier-mentioned school records is a bogus document because each of the documents purports to have been, but was not, issued by the school in respect of each visa applicant. There was fraud or deception by some person, as required by Trivedi v MIBP. Accordingly, the Tribunal finds that there is evidence that each of the visa applicants has caused to be given to an officer of the Department a ‘bogus document’—as that term is defined in s.5(1) of the Act.

20. In the Tribunal’s view, the fact that the applicants relied on another person—their carer—to obtain the documents does not affect the operation of PIC 4020. There is no requirement that there be personal involvement or intention. Further, once cl.4020(1) is engaged by an applicant providing a bogus document, an applicant cannot undo its operation by offering the correct version of the document, as the review applicant sought to do by providing ‘the initial School Transcripts’ in his letter of 25 January 2017.

21. Therefore, the Tribunal finds that each of the three visa applicants does not meet PIC 4020(1).

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

22. The requirement of PIC 4020(1) 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. The ordinary meaning of ‘compassionate’ relates to feelings of sympathy, sorrow, pity or concern for others. 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.

24. For the following reasons, the Tribunal is satisfied that the requirements should be waived.

25. At the hearing, the review applicant told the Tribunal that he did not consider that, in this case, there were compelling circumstances that affect the interests of Australia. Accordingly, the Tribunal has not considered whether, in this case, there are compelling circumstances that affect the interests of Australia.

26. The review applicant submitted that there were compassionate circumstances that affect the interests of Australian citizens, namely him and his family. He said that the visa application process has taken a very long time and has caused much stress to him and his family. He explained that Ethiopia was not in a peaceful position because of ethnic disputes between the Amhara and Tigrayan people. He said that this has a negative impact on him and his family. He said that the stress of the visa application process and the refusals had affected his way of life because it had affected his relationship with his wife and children. He said that whenever he wants to send money to the visa applicants, it causes tension in the family because they cannot spare the money. In addition, he said that his children had expected their cousins—the visa applicants—to join them in Australia so, when the applications for the visas were refused, they had ‘felt it, of course’.

27. The Tribunal asked the review applicant whether he had any physical or mental health conditions from the stress and whether he had seen a doctor or a psychologist. He said that he had no mental illness and therefore no need to see a psychologist or other specialist.

28. He acknowledged that he had made a mistake, albeit not knowingly or deliberately. He said that he was very sorry for this mistake. He said that he had been pursuing the matter for four years and that he had expended a lot of money, energy and thought about the problem. He said that it creates problems for him in his daily life and he appealed to the Tribunal to have consideration of this when making the decision.

29. Next, the Tribunal heard from Ms [D]. The Tribunal asked her whether, in this case, there were any compassionate circumstances that affect the interests of an Australian citizen. Ms [D] gave oral evidence that the whole process had been difficult for her father because of the length of time it had taken (many years) and because of the language barrier. She said that the stress of the process had affected him ‘a lot’. She said, ‘we can see how much he struggles, and he really wants this’. She said that, because of this, the process had also affected the family. She said that her father was so focused on the applications that he had disengaged from family life. She also noted the financial stress on her father and on the family. She said that the review applicant was working two jobs in order to afford the expenses. She said that he would pay willingly for the applications, even if this may put him behind with his other bills. She said that this had meant that things were not easy for the rest of the family in the home. She said that she, like the others in her family, had met the visa applicants. She said that, when she speaks to them, it is very difficult to hear what they are experiencing. She also said that she could see how difficult it was for her father to know that the visa applicants are still in Ethiopia. She said that he would prefer them to be in Australia, where he could look after them, saying, ‘because they don’t actually have anyone to look after them’. She said that her father was the only person who was sending them money and supporting them. She said that it would be better for her father and for the rest of the family if the visa applicants were in Australia.    

30. Finally, the Tribunal heard from Ms [E]. Ms [E] gave oral evidence that both she and Ms [D] are Australian citizens. The Tribunal notes that the Department’s file in respect of [Child C]’s application for the visa contains a certified copy of Ms [E]’s certificate of Australian citizenship. Ms [E] gave oral evidence about how the applications for the visas had been affecting her family. She said that everyone in the family had expected a positive outcome and to welcome the children to Australia. She said that, when they had learned that the applications had been refused, they felt dissatisfied and that the news created problems in the family. She said that questions were asked about why the children were not coming and who had made the mistake. She said that they were always talking about the case. She said that both her and her children ‘felt it’, that is, that the children could not come to Australia.

31. After the hearing, on 27 August 2020, Ms [D] wrote to the Tribunal, relevantly stating:

    During [t]he interview my father was asked if he suffered any mental health issues due to the applications being refused and my father did not 100% understand that he was in fact suffering from [m]ental health issues and used words such as ‘stress’ to try to explain that he was struggling. As my father is poorly educated he is not 100% familiar with the term mental health and didn’t know how to correctly identify that he has been suffering mentally. I just want to write to you to let you know that my Dad has been suffering mentally for many years due to this visa application and has had to seek further help. Therefore affecting the rest of the family’s mental health and worry for his well being. During the interview even though I did allude to mental health issues I was scared to name it mental health issues in front of him. As I explained to him after the video chat what was meant he understood and explained that I should send an email.

32. Further, on 24 February 2021, the review applicant wrote to the Tribunal, relevantly stating:

    there is currently a genocide occurring in the Tigray region of Ethiopia. Tigriyans have been subjected to murder, [r]ape and displacement since November 4th 2020. This has affected my mental health drastically as I worry immensely about the well being of my family. I hope you will be able to take this into consideration when finalising your decision.

33. The Tribunal is mindful that the Smart Traveller website for the Australian Government Department of Foreign Affairs and Trade (DFAT) states that ‘[t]here are ongoing armed clashes and deadly violence in the Regional State of Tigray and its border areas’.[5] There are many other sources of information about what may be referred to as the Tigray war or genocide.

    5DFAT, Smartraveller, Ethiopia, last updated on 6 June 2021, still current as at 15 June 2021. type="1">

34. The Tribunal also notes that, in the review applicant’s response to the s.359A letter, he stated that, ‘[t]he stress of sponsoring them and worrying about their well being has caused a huge strain on my mental health’.

35. As noted earlier, the Tribunal found the review applicant to be credible. Accordingly, the DNA test results has not caused the Tribunal to impugn the review applicant’s general credibility. The Tribunal accepts the veracity of the review applicant’s evidence that he has always considered the visa applicants to be his brother’s children and, accordingly, as part of his family. The Tribunal also accepts his claims to ‘have always supported them’ and that he will continue to do so, notwithstanding the DNA test results.

36. The Tribunal has considered all the evidence before it. With respect to whether there are any compelling circumstances that affect the interests of Australia, the Tribunal considers that there is no evidence of any such circumstances. Accordingly, the Tribunal is not satisfied that there are compelling circumstances within the meaning of PIC 4020(4)(a). However, the Tribunal is satisfied that there are compassionate or compelling circumstances that affect the interests of an Australian citizen—being the review applicant, and possibly members of his family such as Ms [E] and Ms [D] as well—within the meaning of PIC 4020(4)(b). This is for the following reasons.

37. The Tribunal accepts the evidence that the review applicant, Ms [E] and Ms [D] are all Australian citizens. Having had the opportunity to question all three persons in a video hearing, the Tribunal found them to give credible oral evidence about all matters. The Tribunal notes that Ms [D] gave her oral evidence in English and the Tribunal found her to be particularly compelling and very credible.

38. The Tribunal has reflected on the fact that the term ‘interests’ in PIC 4020(4)(b) refers to any present or future state of affairs that is or may be of benefit or to the advantage of the relevant person, and that ‘circumstances that affect’ requires a comparison between the position the relevant person will be in if the visa applicant is granted a visa, with the position the relevant person will be in if the visa applicant is not granted a visa: Singh v MIBP [2017] FCCA 2461 at [29]–[32]. On the basis of the compelling and credible oral evidence given at the hearing and the correspondence received after the hearing, the Tribunal is satisfied that the review applicant’s mental health and financial position will be adversely affected if the visa applicants are not granted the visas.

39. The Tribunal has had regard to the Department’s policy. However, the Tribunal is also mindful that it is not bound to follow the Department’s policy but rather it is obliged to consider all the circumstances of the case and determine, on the evidence as a whole, whether it is satisfied that there 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. Whether a circumstance is compelling and/or compassionate is a question of fact and degree for the Tribunal. Accordingly, at the time of this decision, the Tribunal is satisfied that there are compassionate or compelling circumstances that affect the interests of an Australian citizen, being the review applicant, that justify the granting of the visa. Further, having had regard to those circumstances, the Tribunal considers that the requirements in PIC 4020(1)(a) should be waived.

40. Therefore, the requirements of PIC 4020(1) should be waived.

    Has the applicant satisfied the identity requirements?

41. PIC 4020(2A) requires an applicant satisfy the Tribunal as to his or her identity.  

42. These provisions were introduced because identity fraud was considered a matter of serious concern given that a person’s identity is the foundation of all checks, including national security and character checks.[6] The Explanatory Statement to the Regulation that introduced this requirement suggests that in considering this criterion, decision-makers may have regard to a range of identity documents, including a person’s passport but will need to consider the applicant’s individual circumstances, including whether they have access to identity documents, when determining if the identity requirements are satisfied.[7] 

    [6]        Explanatory Statement to SLI 2014, No 32, at 3.

    [7]        Ibid.

43. Each of the visa applicants provided the Department with certified copies of their birth certificates, the bio-pages of their Ethiopian passports and relevant police clearance certificates. These documents state that:

    ·[Child A] was born on [date] (the birth certificate uses the format ‘[date]; the passport uses the format ‘[date]’; the police clearance certificate uses the format ‘[date]’).

    ·[Child B] was born on [date] (the birth certificate uses the format ‘[date]’; the passport uses the format ’[date]’; the police clearance certificate uses the format ’[date]’).

    ·[Child C] was born on [date] (the birth certificate uses the format [date]; the passport uses the format ‘[date]’; the police clearance certificate uses the format ‘[date]’).

44. On 21 September 2016, the Department sent a letter pursuant to s.57 of the Act to [Child C] (presumably letters were also sent to [Child B] and [Child A] but the paper files do not contain copies of any letters that may have been sent to them) querying how [Child B] and [Child A] would share the same mother if they were born four months apart, based on their dates of birth as given in their respective birth certificates. The letter also stated, ‘I also question the authenticity of the documents provided as proof of birth for all the applicants’. The letter stated, ‘[b]efore I make a determination on the case, your sponsor is given an opportunity to comment on the above information’.

45. As was noted earlier, the DNA test results suggest that it is ‘unlikely’ that [Child B] and [Child A] share the same biological mother. Neither the delegate nor the review applicant had that information in 2016.

46. On 1 October 2016, the review applicant responded, relevantly submitting:

    As the Birth Certificate of Miss [Child B] was officially issued by pertinent Tigray National Regional State authority, she was precisely born on [date]. There is no dispute about it. However, [Child A] was born on [date], instead of [date]. It was unfortunate and an unintended consequence that the discrepancy in their birthdate had emerged because the Tigray National Regional State authority unwittingly committed this minor/technical mistake while issuing Birth Certificate to [Child A]. Currently, relevant Tigray National Regional Government authority actively works to correct the Birth Certificate of Miss [Child A]. As soon as the Regional Government authority finalizes the Birth Certificate of Miss [Child A], I will post it to the Department of Immigration and Border Protection. Bear in mind that there is no need of raising suspicion about the authenticity of the documents provided by Tigray National Regional State authority as proof of birth for all the applicants, because no mistakes had been deliberately committed to mislead or deceive the Department of Immigration and Border Protection.    

47. Subsequently, an Ethiopian document and accompanying English translation were provided (folios 63 and 64 of the Department’s file in respect of the visa application made by [Child A]). This document is a birth certificate which gives [Child A]’s date of birth as [date]. The date of the registration of the birth certificate is said to be [date].

48. The three ensuing primary decisions make no mention of these events or whether the delegate continued to ‘question the authenticity of the documents provided as proof of birth for all the applicants’.

49. The Tribunal has reviewed some information in the Department of Foreign Affairs and Trade’s (DFAT) country information report on Ethiopia,[8] specifically the statements that:

    ·‘Ethiopian civil documents such as birth … certificates are issued on the basis of statements made by the applicant and supporting witnesses – limited supporting documentation is required’.[9]

    ·‘Ethiopian law requires the registration of all children within 90 days of birth. In practice, only a small percentage of births are registered and children issued birth certificates’.[10]

    ·‘The format of birth and death certificates is not uniform, and varies by state. All legitimate birth … certificates contain a photograph of the applicant and wet seals of the issuing authority’.[11]

    ·‘Documents considered to be higher-risk in terms of fraud include birth certificates’.[12] 

    ·‘A Certificate of Good Conduct (“police clearance certificates”) is required when a person seeks to emigrate from Ethiopia. For migration purposes, a police clearance certificate can only be issued by the Federal Police Forensic Investigation Department in Addis Ababa. A police clearance certificate confirms the applicant has never partaken in any criminal activity’.[13]

    ·‘Documents assessed as being at low-risk of fraud include police clearance certificates’.[14]

    ·‘Fraudulent passports are rare and expensive to produce because of their security features. Local sources told DFAT that Ethiopian passports are typically genuine and reliable’.[15]

    ·‘Genuine documents containing inaccurate information about the document holder (e.g.  relating to their age) are reportedly common’.[16]

    [8]        DFAT, DFAT Country Report Ethiopia, 12 August 2020.

    [9]        Ibid [5.64].

    [10]       Ibid [5.43].

    [11]       Ibid [5.46].

    [12]       Ibid [5.65].

    [13]       Ibid [5.53].

    [14]       Ibid [5.65].

    [15]       Ibid [5.63].

    [16]       Ibid [5.66].

50. The Tribunal has considered the documentary evidence that has been submitted to corroborate the visa applicants’ claims as to their identity. The Tribunal acknowledges that it is possible that some or all of these documents may be genuine documents but contain some inaccurate information. For example, if [Child A]’s date of birth is [date]—not [date], then the first birth certificate that was submitted as well as the bio-pages of her Ethiopian passport and police clearance certificate will all contain the incorrect date of birth. There is no evidence before the Tribunal to suggest that any of the identity documents provided in respect of [Child B] and [Child C] contain any inaccurate information.

51. The Tribunal has also considered the DNA test results and whether any of this information undermines the visa applicants’ claims as to their respective identity; that is, whether they are not who they claim to be.

52. Having had a video hearing with the review applicant and having found him to be credible, the Tribunal accepts the review applicant’s evidence, provided after the hearing, that the DNA test results came as a ‘complete shock’ to him and his family. The Tribunal also accepts his claims that:

    I am able to provide all necessary evidence to prove that [Child A], [Child B] and [Child C] have grown up as the children of my brother, [name deleted]. I do have Live Eyewitnesses from Family members and neighbours.

    …

    [Child A], [Child B] and [Child C] have grown up as siblings in one household their entire life and spent their lives thinking that they all have the same [f]ather and mother.

53. In the circumstances, notwithstanding that their parentage may not be what they believed, the Tribunal finds that the visa applicants are who they claim to be.

54. Accordingly, each visa applicant has satisfied the Tribunal as to her or his identity.

55. Therefore, each of the visa applicants meets PIC 4020(2A).

    Has a visa been refused previously based on a failure to satisfy PIC 4020(2A)?

56. PIC 4020(2B) requires that neither the applicant nor any family unit member have been refused a visa because of a failure to satisfy the identity requirements in PIC 4020(2A) during the period starting 10 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: PIC 4020(2BA).

57. There is no evidence before the Tribunal to suggest that any of the visa applicants has been refused a visa previously based on a failure to satisfy PIC 4020(2A). Further, the Tribunal notes that each of the visa applicants in the current review claim that they were under 18 years of age at the time that they applied for the visas the subject of this review.

58. Therefore, PIC 4020(2B) is met or does not apply.

    CONCLUSION

59. On the basis of the above, the visa applicants satisfy PIC 4020 for the purposes of cl.117.223. Given the findings above, the appropriate course is to remit the applications for the visas to the Minister to consider the remaining criteria for the Subclass 117 (Orphan Relative) visas.

    DECISION

60. 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.

    Justine Clarke
    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. 

    …