1718042 (Migration)

[2020] AATA 5617

1718042 (Migration) [2020] AATA 5617 (13 July 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1718042

MEMBER:Nicholas McGowan

DATE:Monday July 13 2020

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicants Child (Migrant) (Class AH) visas.



Statement made on 13 July 2020 at 11:19am

CATCHWORDS

MIGRATION – Child (Migrant) (Class AH) visa – Subclass 101 (Child) – identity – DNA evidence supports applicants’ claim to be sponsor’s children – bogus documents – fraudulent national identity documents – credibility – inconsistent and unreliable evidence by sponsor – nationality and whereabouts of sponsor’s husband – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 65, 356(3), 366(1), 368(3)(b)

Migration Regulations 1994 (Cth), Schedule 2, cl 101.323, Schedule 4, criterion 4020(2A)

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.

WRITTEN STATEMENT OF DECISION

Statement

1. This statement fulfils this tribunal’s obligations under the Migration Act: s.368. While this statement sets out this tribunals’ decision - the reasons for it - and findings on material matters (including the evidentiary basis), to fully appreciate this decision a third-party would need to appraise themselves with the documentary evidence in the Department of Immigration (‘department’) and tribunal (Administrative Appeals) case files.

   Evidence to the Secretary

2. As required under section 368(3)(b) of the Act, the Tibunal will provide to the Secretary a copy of the new documentary evidence on which material findings of facts are based.

   Background

3. This is an application for review of a decision made by a delegate of the Minister for Immigration on 8 June 2017 to refuse to grant the applicants Child (Migrant) (Class AH) visas under s.65 of the Migration Act 1958 (the Act).

4. The applicants applied for the visas on 19 September 2012. The delegate refused to grant the visas on the basis that the first named applicant (the applicant) did not satisfy the requirements of cl.101.323 of Schedule 2 to the Migration Regulations 1994 (the Regulations).

5. The review applicant appeared before the Tribunal during a public hearing (with the resumption of that hearing conducted via telephone) to give evidence and present arguments. The Migration Act 1958 gives the Tribunal the authority to conduct a hearing via telephone: Section 366(1). Additionally, and consistent with the discretion under the Migration Act 1958: s.356(3), the Tribunal conducted the resumed hearing without opening it to the public (the initial hearing was open to the public). Public attendance at the resumed hearing was deemed impracticable during the COVID-19 epidemic as increased public presence may present a heightened risk of acquiring or vectoring the virus. The Tribunal hearing was conducted with the assistance of an interpreter in the Urdu (Pakistan) and English languages.

6. The review applicant was represented in relation to the review by her registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. In this matter, two children have applied to the Minister for permanent child visas. The first child, [Ms A], declares she was born [Date 1] and is an Afghan national according to her permanent visa application (Subclass 101) lodged 19 September 2012. [Ms A] was [Age 1] years old when she applied for the visa. The second child, [Master B], claims he was born on [Date 2] and is an Afghan national according to his permanent visa application (Subclass 101) lodged 19 September 2012. [Master B] was [Age 2] years old when he applied for the visa.

9. The sponsor for both the children’s visas is their mother, [Mrs C]. [Mrs C] is also known by the aliases [Aliases 1-3].

10. [Mrs C] claims to have been born on [Date 3] in Malistan District, Ghanzi Province, Afghanistan (though she has also claimed she was born in “[Date 4]” in a statement she provided on 12 February 2010 as part of her protection visa application). [Mrs C] was detained [in] January 2010 at the Territory of Christmas Island by Australian authorities.  [Mrs C] was granted a Protection Visa (subclass 866) visa which entitled her to permanent residency. [Mrs C] had claimed as part of her protection claim that she was a baby when her family fled Afghanistan for Pakistan and does not remember much about her village in Afghanistan. [Mrs C] claimed in December 2009 she fled Pakistan for Australia because Hazaras (the ethnicity to which she claims to belong in her protection visa application) were being targeted by Pashtuns and Baluchs and being a young woman with no male protection made her situation more vulnerable. [Mrs C] claimed her husband, [Mr D], who supported his family “by [doing a job task] around the hazara area of Quetta”(according to her protection visa statement) travelled to Afghanistan around 2006 and she has not seen him since. Evidence of this claim is provided by [Mrs C] in a statement she gave as part of her application for protection (dated 12 February 2010), in which she stated: 
    
    “About [Number] years ago, when I was pregnant with my daughter, [Mr D] decided to go to Afghanistan to see if it was safe for us to return there to live. He believed that is was safe to return as he had heard that conditions were improving for the Afghan people. My father and I begged him not to go to Afghanistan. I told him that the Taliban was everywhere in Afghanistan: that if you checked under every rock, the Taliban would be there. [Mr D] travelled to Afghanistan by himself. I do not know what has happened to him, but I have not seen him since that day and I have no news of his fate I miss him very much because he was good husband and we were very happy together.”

11. Schedule 2 of the Migration Regulations 1994 sets out the criteria to be met by the applicants for the grant of the Subclass 101 visas. Regulation 101.323 is a mandatory requirement for the grant of the visas. It requires each applicant, among other public interest criteria, satisfy public interest criteria 4020. Relevantly in this case, 4020(2A) requires the Minister to be satisfied as to an applicant’s identity. There is no waiver provision if the Minister is not satisfied that subclause 4020(2A) is not met.

12. The children’s Subclass 101 visa applications were refused by a delegate of the Minister for Immigration on 7 June [2017]: Regulation 4020(2A) of Schedule 4 to the Act.

13. Under delegation, the Minister’s delegate found that while DNA evidence supported the applicants claim they were the sponsor’s biological children, they had both provided identity documentation, and information throughout their application (including information provided by the children’s mother acting as their sponsor) that failed to satisfy  the delegate as to the identity of the children. In particular, the Minister’s delegate found the taskera (a form of national identity in Afghanistan) was fraudulent (bogus under the Act and regulations) as provided by each of the children in their applications. As the children’s handwritten Afghan passports were based on the fraudulent taskeras, the delegate found they could not be relied upon as evidence of the children’s claimed identity.

14. The applicant has provided this Tribunal with a copy of the refusal decision. An application for review of the delegate’s refusal decision was lodged with the Tribunal on 15 August 2017.

15. In respect to both applicants’ applications, the sponsor (the applicants mother) concedes to the Tribunal that the taskeras were bogus. The sponsor has provided an account to the Tribunal, including an explanation the circumstances in which she claims the taskeras were provided.

16. Relevantly, the Tribunal is satisfied, having considered the taskeras, and the admission and account by the sponsor, that the Minister was provided with bogus identity documentation (including both the childrens passports which relied on the fraudulent taskeras). It follows that on these document alone, the Tribunal cannot be satisfied as to the identity of the applicants: PIC4020(2A).

17. However, this Tribunal has had regard to the Explanatory Memorandum, and where relevant, it suggests a decision-maker may take into account the fact the applications were the product of an adult (the applicants sponsor and mother), and as such this may be considered.

18. Relevant to this matter is the mother’s identity. It is relevant because the mother has, since the time of application, provided additional evidence and argument. As clause 101.323 is a time of decision criterion, it is important to take all information into account. It is also relevant in this review because the Tribunal may have regard to the Explanatory Memorandum when applying the law. Specifically, the memorandum, suggest the fact the applications of the Child visa were children, may be a reason to reflect upon the totality of the evidence provided over the course of the application.

19. In regards the above, the Tribunal has had regard to the evidence and argument provided in submissions by the applicant’s agent, documents provided by the applicant, and the department’s files, including the applicant’s (the children’s mother’s protection application file, the contents of which this Tribunal took care to put formally the contents of that file (consistent with the requirement of the Act and Regulations during its hearing into the matter), as the Tribunal obtained this information from the Minister.

20. In regards to the full circumstances of the applicants, and their mother, the Tribunal notes two emails (dated 26 May 2020, and 2 June 2020) provided by the applicant via her agent in the submission dated  3 June 2020. In these emails the applicant claims she has never claimed her husband is missing. The applicant cannot explain why her own documents do not reflect what she believes she has said previously. Specifically, the applicant claims she is of Pakistani nationality, as are the children, and states they have no ties to Afghanistan. The applicant puts her previous claims in her protection application (including her nationality and place of birth) down to “a great miscommunication”.

21. The Tribunal granted additional time post-hearing, to allow the applicant time to respond to the information formally put, and provide any further argument or evidence whatsoever. On 7 July 2020 the applicant’s agent provided a submission. This submission reiterates, among other things, much of the information which formed the basis for her being granted a protection visa, including her nationality, the children’s nationality, and her husband’s claimed disappearance. The applicant’s agent states the applicant believes this is a “miscommunication and misinterpretation”.

22. The Tribunal has considered the above claims with all the evidence before it. Even were the Tribunal to accept the applicant’s latest claims, the question remains, why didn’t the applicant inform the Minister or Department of Immigration that their decision on her humanitarian visa application was based on incorrect information, including her nationality, her actual circumstances, and the matters in respect to her husband’s whereabouts. The applicant’s arguments offered as part of this review are entirely inconsistent with her previous statements and claims made in respect to her humanitarian visa.

23. Given the applicant’s humanitarian visa was based on, among other considerations, the applicant’s own claims made during interview with immigration officials, her claims that she has received poor advice from previous agents, or that somehow her position has been either misconstrued or wrongly-represented (including fraudulently) are made without foundation.

24. The Tribunal, in the circumstances outlined above, finds the credibility of the applicant’s oral and written claims in respect to this review, to be highly unreliable. In such circumstances, this Tribunal is not satisfied of the applicant’s identity. It follows, given all the above, that the Tribunal is not satisfied as to the identity of the applicant’s children. While the Tribunal accepts they are her biological children, as it is not satisfied as to her identity, the Tribunal is likewise not satisfied as to theirs. The Tribunal comes to this decision, having considered the totality of the documentary evidence, including document’s outlined in the agent’s submission dated 7 July 2020 and itemised on page 2.

25. Therefore, the applicants do not meet PIC 4020(2A).

26. As the applicants have failed to meet a requisite criterion, it is not necessary for the Tribunal to continue to consider the other criteria in these matters.

27. On the basis of the above, the applicants do not satisfy PIC 4020 for the purposes of cl.101.323.

    DECISION

28. The Tribunal affirms the decision not to grant the applicants Child (Migrant) (Class AH) visas.

    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. 

    …