1718037 (Migration)

[2018] AATA 5956

1718037 (Migration) [2018] AATA 5956 (12 July 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1718037

MEMBER:Margie Bourke

DATE:12 July 2018

PLACE OF DECISION:  Melbourne         

DECISION:The Tribunal affirms the decision not to grant the applicants Partner (Provisional) (Class UF) visas.

Statement made on 12 July 2018 at 3:28pm

CATCHWORDS
MIGRATION – Partner (Provisional) (Class UF) visa – Subclass 500 (Student) – Public Interest Criterion 4020 – false or misleading information – knowing or unwitting provision of document or information – secondary visa applicants included applicant’s niece and nephew – not genetic relatives – abandoned baby informally adopted by applicant’s brother and sister-in-law – cared for by applicant after death of sister-in-law – DNA testing to verify relationships – applicant’s knowledge of relationships – niece and nephew did not initially present for testing – formal and informal adoption in home country – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), s 65

Migration Regulations 1994 (Cth), Schedule 2, cl 309.225

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
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 on 11 August 2017 to refuse to grant the applicants Partner (Provisional) (Class UF) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 19 November 2013. The delegate refused to grant the visas on the basis that the first named applicant (the applicant) did not satisfy the requirements of cl.309.225 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the delegate found the primary applicant did not satisfy Public Interest Criterion (PIC) 4020, and therefore the secondary applicants could not meet the secondary criterion of being dependent on a person who satisfied all the primary criteria.

3. The review applicant appeared before the Tribunal on 17 May 2018 to give evidence and present arguments. This hearing was adjourned due to dissatisfaction with the interpreter in the hearing. The review applicant appeared before the Tribunal on a second scheduled hearing day on 21 June 2018.  The Tribunal also received oral evidence from the primary visa applicant via telephone and the review applicant’s father.  The review applicant’s representative requested to give evidence on behalf of the review applicant at the second hearing. The Tribunal heard evidence from the representative and he was excused from acting as the representative. The Tribunal hearing was conducted with the assistance of an interpreter in the Amharic and English languages.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. The issue in this review is whether the visa applicant meets Public Interest Criterion 4020 (PIC 4020) as required by cl.309.225 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: PIC 4020(1); and

   ·the applicant and each member of the family unit has not been refused a visa because of a failure to satisfy PIC 4020(1) during the period starting 3 years before the application was made and ending when the visa is granted or refused, unless the applicant was under 18 at the time the application for the refused visa was made: PIC 4020(2) and (2AA); 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).

6. The requirements in PIC 4020(1) and (2) 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). PIC 4020 is extracted in the attachment to this decision.

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

7. 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.

8. 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 or not the document or information was provided by the applicant knowingly or unwittingly.

9. 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.

10. The application for the visa had included the application and sponsorship form, 47A application forms for the dependent children [Child 1] and [Child 2], Form 80, and birth certificates for the secondary visa applicants [Child 1] and [Child 2]. The secondary visa applicants [Child 1] and [Child 2] were included as the niece and nephew of the primary visa applicant. The information provided in the visa application was that the secondary visa applicants [Child 1] and [Child 2] had the same biological mother and father.

11. At the invitation of the Department the visa applicants participated in DNA testing. The conclusions of the DNA testing included the following results :- (i) the primary visa applicant was the biological full sibling to her claimed sister and brother, [Relative 1] and [Relative 2]; (ii) the two claimed children of the primary visa applicant [Child 3] and [Child 4] are full biological siblings; (iii) the claimed niece and nephew of the primary applicant [Child 1] and [Child 2] were not full or half biological siblings, and the primary visa applicant and [Child 1] are unlikely to be related as aunt and niece.

12. The review applicant and the primary visa applicant told the tribunal in written and oral evidence that they were shocked at the results of the DNA testing. The oral evidence before the Tribunal was that until the results of the DNA testing the review applicant and the primary visa applicant believed that both [Child 1] and [Child 2] were for biological siblings and were the niece and nephew of the primary visa applicant.

13. The review applicant provided a statutory declaration dated 3 October 2016. In this statutory declaration it is stated that [Child 1] and [Child 2] came to live with the primary visa applicant in 2007 after the death of their mother. The statutory declaration records that the children’s father and the primary visa applicant have different names because the children’s father was conceived in an extramarital relationship and he was brought up as the nephew of his mother rather than as her son.

14. The review applicant provided another statutory declaration dated 29 June 2017 in which he records that he and the primary visa applicant sought clarification from the elderly people of the area about the history of [Child 1] and [Child 2]. The review applicant confirms that both children had lived with the primary visa applicant since 2007 and they had been fully confident that the DNA results would have shown the children were full siblings and both were related to the primary visa applicant.

15. The review applicant states in the statutory declaration that the child [Child 2] was found when he was only 20 days old at the local Orthodox Church by [Child 1]’s mother, and she reared both children. The fact that [Child 2] was not her child was kept a secret, and was only known to the priest. The applicant provided a letter from the [priest] dated [June] 2017 that the woman [Relative 3] found the child when he was aged 20 days old, that she brought the child to the [priest], that the child’s parents could not be found and the woman agreed to bring the child up as her child. The letter records that the church officially gave the child to the woman to bring him up. The letter records that the child [Child 2] and the child [Child 1] have no blood relationship but were brought up in the same household.

16. The review applicant told the tribunal that he could not explain why the DNA results recorded that [Child 1] was not related to the primary visa applicant. The review applicant told the tribunal that the story in relation to [Child 2]’s adoption was not fabricated as it was from a priest. The review applicant stated that the primary visa applicant and the community were not aware of the circumstances surrounding [Child 2] being adopted or taken in by [Child 1]’s mother. The tribunal commented that the family or community would probably have noticed that the woman was not pregnant and then became the mother of 20-day-old child. The review applicant stated it is hard for him to believe as well.

17. The review applicant referred to the letter from the priest that he had provided as the letter from the ‘father confessor’.  The tribunal discussed with the review applicant why the fact that this woman agreed to bring up the abandoned baby needed to be kept a secret. The review applicant stated at the first hearing that he did not have knowledge as to why the claimed mother kept her adoption of the child secret.

18. The review applicant stated that the family were all living in Gondar at the time they agreed to participate in the DNA testing. He stated that [Child 1] and [Child 2] did not participate in the first DNA testing appointment because there was no room on the bus transport going to Addis Ababa. The tribunal asked the review applicant about the matters recorded in the Department decision record dated 9 August 2017, (a copy of which was provided to the Tribunal by the review applicant), which records that he told the Department that they did not attend the appointment because they were living on their own in Gondar and had refused to make travel arrangements to Addis Ababa. The review applicant stated that was not the case, and they had stayed back because there was not enough room on the transport.

19. The tribunal spoke to the primary visa applicant via telephone through the interpreter at the hearing on 17 May 2018. It became apparent that the review applicant was not satisfied with the quality of the interpreting and the hearing was adjourned to a later day for a different interpreter to be engaged. The tribunal has not taken into consideration the answers given by the primary visa applicant at the hearing on 17 May 2018.

20. At the second hearing with a new interpreter the review applicant stated that the child [Child 2] was raised as the child of his wife’s brother and his wife without disclosing that he was not their biological son because there would be stigma with social consequences if people knew that he was not their child.

21. The primary visa applicant gave evidence via telephone. She stated that the secondary visa applicants, [Child 1] and [Child 2] were her brother’s children and she gave the dates of their birth. The primary visa applicant stated she had been worried about the DNA results since being advised of the conclusions in the DNA report. As she stated the priest told her that the child [Child 2] was found aged 20 days and was raised by her brother and his wife, [Relative 3]. She stated she lived in the same area and the same village as her brother and [Relative 3]. She stated she did not meet her brother’s wife when she was pregnant with either [Child 1] or [Child 2] because she was too young.

22. The primary visa applicant stated that both [Child 1] and [Child 2] missed the first DNA appointment due to transport issues. She stated at that time they were all living in Gondar together but neither [Child 1] or [Child 2] came to the bus stop with her and the other children. The primary visa applicant stated she called [Child 1] and [Child 2] from the bus stop, but the bus was full before they arrived. She stated she travelled to Addis Ababa for the appointment, but was told she had to return when all the people who had to have the testing were present. She stated they all came back another day and had the testing at the same time.

23. The primary visa applicant told the tribunal that she had no knowledge that [Child 1] and [Child 2] were not related to each other, before the DNA report was provided. The primary visa applicant told a tribunal that she had no knowledge that [Child 1] and [Child 2] were not related to her, or not likely to be related to her, before the DNA report was provided. The primary visa applicant told the tribunal that she does not know why [Child 1] was recorded as being unlikely to be her niece. The primary visa applicant did not state that the DNA findings were incorrect. The primary visa applicant stated that she did not provide incorrect information to the Department, because she had no knowledge that [Child 1] and [Child 2] were not related to her and were not her niece and nephew, at the time the visa application was made.

24. The review applicant asked the tribunal not to take evidence from the visa applicants, [Child 1] or [Child 2], or any of the other secondary visa applicants. The review applicant stated he and his wife had not told any of the other members of the family about the DNA results. The tribunal agreed not to discuss the DNA report and its findings with the visa applicants. For this reason the tribunal did not take evidence from the visa applicants.

25. Mr [A] told the tribunal that he wished to give evidence which was relevant to its findings in relation to PIC 4020. He stated that he had come from the Gondar region, and had contacted people from that community in an attempt to find out the family history of the two visa applicants, [Child 1] and [Child 2].  He stated he had been advised that the child [Child 2] was left as an infant at the church, and that the ‘parents’ [Relative 3] and the primary visa applicant’s brother had raised the child as their own.

26. Mr [A] stated that an adoptive family would protect a child’s identity if that child had been abandoned, or unwanted. He stated the child would otherwise be known in a village as “dikhala”, which can mean of mixed race or second class or unwanted child, and is a stigmatised and insulting term. I discussed with Mr [A] that many societies had terms of offence for abandoned children or children born out of wedlock, but this did not necessarily mean the children were raised with their personal history kept in complete secrecy from all other members of the family. I discussed with Mr [A] that Ethiopia had an established formal adoption process that was recognised internationally and which involved Application through the Court of First Instance and require the approval of the Department of Women Affairs. I also discussed with Mr [A] that it was recognised that Ethiopia had a traditional customary informal adoption process whereby families took in the children unable to be cared for by their parents for many reasons, and brought them up.  The witness agreed with the tribunal in relation to both the formal and informal adoption processes in Ethiopia.  Mr [A] stated that in some instances where a child had been abandoned, the potential stigma for the undesired child would mean the adoptive family would not disclose the child’s history to the village.

27. The review applicant also submitted that the word “dikhala” explained the actions of keeping the informal adoption of the child [Child 2] a complete secret from the family and the village. The review applicant told the tribunal that the secretiveness was for the well-being of the child, and so the child did not suffer the social consequences of being known as being abandoned.

28. After the hearing, and in particular the oral evidence from the review applicant and Mr [A], the tribunal initiated its own further research into informal adoption in Ethiopia to further consider the claimed total secrecy in adopting abandoned children to prevent future social stigmatisation for the children. The tribunal has considered the country information in Ethioia UNHCR September 2014, tbinternet.ohchr.org/treaties/CRC which records the Ethiopian tradtion of informal adoption, ‘guddifachaa’, (a word in the Oromo language, not Amharic language). Guddifachaa refers to taking a child from outside the immediate family and absorbing the child into the family.

29. I also considered Adoption in Ethiopia Ten Years After the Civil Code by J.H. Beckstrom, 1972, Journal of African Law, Vol 16, No 2, 145, which advises that customary forms of adoption have a long history in Ethiopia.  I have considered that in the Department of Foreign Affairs and Trade 2006 report (no 570 – Ethiopia) DFAT advises that most customary adoptions in Ethiopia are mutual arrangements organised by relatives, and are often sanctioned in the courts.

30. I have considered the oral evidence that the total secrecy in relation to adopting an abandoned child because of the future social stigmatisation. I have given this evidence some careful assessment.  I have balanced the evidence with the country information available to me which indicates that informal customary adoption is widely practised in Ethiopia, although generally of relatives’ children.  I am not satisfied that the country information supports the contention that possible future social stigmatisation of an abandoned baby, leads the adoptive mother to maintain total secrecy from all her immediate family members of the customary adoption of the child.

31. The review applicant stated that although the DNA report does not support the fact that the visa applicant [Child 1] is the niece of his wife, they had discussed it and they have no explanation for the DNA conclusions. The review applicant stated he did not dispute the DNA report.

32. I have considered all the evidence before me in relation to the visa applicants, [Child 1] and [Child 2]. I have considered whether false and misleading information was provided to the Minister by providing the application and supporting documents to the department which claimed that the visa applicants, [Child 1] and [Child 2] were full biological siblings, and the children of both [Relative 3] and the primary visa applicant’s brother, and therefore they were the niece and nephew of the primary visa applicant.

33. I am satisfied that the conclusions in the DNA report of [Testing laboratory] dated [March] 2017 are reliable and represent the correct statement of relationships. I accept that based on the statistical analysis it is unlikely that the primary visa applicant and the secondary visa applicant [Child 1] are related as biological aunt and niece. I accept that based on the statistical analysis that the secondary visa applicants [Child 1] and [Child 2] it is extremely unlikely they are related as biological full siblings and it is unlikely that they are related as biological half siblings.

1. I have carefully considered and balanced the evidence before me.  I am not satisfied that at the time the visa application was lodged that the primary visa applicant was not aware that the secondary visa applicants, [Child 1] and [Child 2], were unlikely to be related to each other, and that [Child 1] was unlikely to be related to her as her niece. The reasons for this finding are as follows:-

   (i)I do not find as credible the claimed account that [Child 2] was informally adopted by his adoptive parents [Relative 3] and the primary visa applicant’s brother without the knowledge of anyone in the village or the family. I do not accept that the adoption of an abandoned child is so stigmatised that it is concealed by the priest, and kept hidden from all family members.   

   (ii)I do not find it credible that [Relative 3] would produce a 20-day-old child and claim the boy as her own baby within a village where she had been known not to be pregnant over the preceding year. In these circumstances the history of the child is likely to be known to at least some family members, and not revealed as a total family secret after the parents’ death.

   (iii)I have considered the credibility of the claimed total secret informal adoption of the visa applicant [Child 2] in Ethiopia, which is a country the review applicant and one of his witnesses agreed had an established formal adoption process and a recognised customary informal adoption tradition. I have balanced this with the evidence in relation to the stigma attached to adoption of abandoned babies.  I do not accept the country information in relation to adoption in Ethiopia supports the claim that such customary adoptions of abandoned babies are kept totally secret, even from immediate family members.

   (iv)I do not find it credible that it is an innocent mistake that both the claimed niece and nephew of the primary visa applicant are reported after DNA testing to be not related to each other, and both reported to be not related to the primary visa applicant.

   (v)I have considered that the actions of both visa applicants [Child 1] and [Child 2] in not attending the first scheduled DNA testing appointment, indicates that the primary visa applicant and these two secondary visa applicants knew they would not meet the relationship testing, and attempted to avoid the testing.

2. For the above reasons, I am satisfied that information that is false or misleading in a material particular was provided to the Minister in relation to the visa application. I am satisfied that the information was false or misleading in a material particular at the time information was given. I am satisfied the information was relevant to the criteria the Minister would consider when making a decision on the application. I am satisfied the false or misleading information was that the two secondary visa applicants [Child 1] and [Child 2] were related to the primary visa applicant and as her relatives met the definition of members of her family unit.

3. Therefore, the applicants do not meet the requirements of PIC 4020(1).

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

4. The requirements of PIC 4020(1) and (2) may be waived where there are compelling circumstances that affect the interests of Australia, or where there are compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident, or an eligible New Zealand citizen (as defined in r.1.03), that justify the granting of the visa. 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.

5. 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.

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

7. There was no evidence before me that there were compelling circumstances affecting the interests of Australia that justify the grant of the visa.

8. The tribunal was provided with a medical report from [a] Medical Centre dated [November] 2017, and an updated report, in the same words (except for one numeral changed) dated [May] 2018.   The author of the medical report advised the review applicant had been his patient for seven years, and his mental health and emotional state had been affected by the refusal of the application foe the visa on behalf of his wife.   The author advised the review applicant suffers from poor sleep, lack of motivation, and depressed mood. He advised the review applicant is descending into hopelessness, and believes he is stuck in a rut and unable to move forward.  The author of the report expressed concern about the review applicant’s mental state, and noted the risk inherent in a depressed mind, including the potential for self harm.

9. The review applicant’s father also gave evidence, at the hearing.  He stated he resided with his son.   The review applicant’s father expressed his concern that his son cannot focus, and his current state of mind affects all aspects of his life.   He stated his son is stressed and should be with his wife.  The review applicant’s father stated he is stressed because his son is stressed.

10. The review applicant stated he was physically and mentally unwell; he stated he suffered from depression but was not prescribed medication. He stated he suffered from skin conditions.  He stated he was anxious and could not sleep.  He stated his self esteem has suffered, but he keeps busy establishing a business. He has travelled to Ethiopia four times to see his wife.  He stated he should not have agreed to sponsor all the family members his wife wanted to include in her visa application, but he was trying to be supportive.

11. Mr [A] stated the review applicant had a [Qualification], and travelled overseas in establishing his business.  He stated that due to financial restraints, in his last overseas trip, the review applicant travelled to [Country] but was unable to go to Ethiopia to visit his wife.  Mr [A] stated the review applicant’s life had effectively been on hold since the visa application was made.   He stated his parents were well respected in the community.

12. I have considered all the evidence before me.  I accept the review applicant has medical issues, and that they affect his life to some extent.  However, I also accept that the review applicant has continued to establish his business, and has travelled overseas to set up his business.

13. I am not satisfied the evidence before me in relation to the review applicant’s mental health, physical health and his emotional well-being, amounts to compassionate or compelling circumstances that affect the interests of an Australian citizen or Australian permanent resident or eligible new Zealand citizen that justify the grant of the visa.

14. I am satisfied the review applicant is an Australian citizen. I accept his father is either an Australian citizen or an Australian permanent resident (the issue was not discussed at the hearing to be clarified).  I have considered the evidence before me, and I am not satisfied that there are compassionate or compelling circumstances that affect the interests of an Australian citizen (or Australian permanent resident), namely the review applicant and /or his father, that justify the grant of the visa.

15. Therefore the requirements of PIC 4020(1) should not be waived.

16. On the basis of the above, the applicant does not satisfy PIC 4020 for the purposes of cl.309.225.

    DECISION

17. The Tribunal affirms the decision not to grant the applicants Partner (Provisional) (Class UF) visas.

    Margie Bourke
    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.  

    …