1722179 (Migration)

[2020] AATA 2685

1722179 (Migration) [2020] AATA 2685 (31 January 2020)

CORRIGENDUM

DIVISION:Migration & Refugee Division

CASE NUMBER:  1722179

MEMBER:Justin Meyer

DATE OF DECISION:  31 January 2020

DATE CORRIGENDUM

SIGNED:10 July 2020

PLACE OF DECISION:  Melbourne

AMENDMENT:  The following corrections are made to the decision (bolding for convenient emphasis only):

1. In paragraph 15, the first sentence reads: ‘It is claimed the applicants’ mother passed away in 2005 and their father was killed in 2006’. This should be amended to read: ‘It is claimed the applicants’ mother passed away in January 2006 and their father was killed in February 2009’.

2. In paragraph 19, at dot-point 5, the second sentence reads: ‘As the review applicant (sponsor) does not have access to the correspondence with delegate […]’. This should be amended to read: ‘As the review applicant (sponsor) does not have access to the correspondence with the delegate […]’.

3. In paragraph 19, at dot-point 5, the final sentence reads: ‘There a number of reasons why the documents themselves were registered with the hospitals’. This should be amended to read: ‘There are a number of reasons why the documents themselves were registered with the hospitals’.

4. In paragraph 19, dot-point 8 reads: ‘The department may have asked a different representative at the hospital than who actual issued the documents.’ This should be amended to read: ‘The Department may have asked a different representative at the hospital than the one who actually issued the documents’.

5. In paragraph 19, dot-point 19 reads: ‘Application form to Provincial Council for death attestation for the review applicant’s (sponsor)’s mother’. This should be amended to read: ‘Application form to Provincial Council for death attestation for the review applicant’s (sponsor’s) mother’.

6. In paragraph 19, the final dot-point reads: ‘This is a case where the processing officer either did not receive the review applicant’s (sponsor’s) response relating to PIC 4020 on 22 Feb 2017 because of an internal Department error or failure to allocate the email the file resulting in a failure to consider credible and important information that might have otherwise avoided the decision under review. Although there are higher levels of document fraud in Afghanistan and Pakistan, the fact these documents have gone through an attestation process with the embassy in Australia, this leaves little room for doubt as to the genuineness of the documents’. This should be amended to read: ‘This is a case where the processing officer either did not receive the review applicant’s (sponsor’s) response relating to PIC 4020 on 22 Feb 2017 because of an internal Department error or failure to allocate the email to the file resulting in a failure to consider credible and important information that might have otherwise avoided the decision under review. Although there are higher levels of document fraud in Afghanistan and Pakistan, the fact these documents have gone through an attestation process with the embassy in Australia leaves little room for doubt as to the genuineness of the documents’.

7. In paragraph 20, a sentence reads: ‘The visa application process has had a profound impact on him which has resulted in him experience serious mental health issues in Australia’. This should be amended to read: ‘The visa application process has had a profound impact on him which has resulted in him experiencing serious mental health issues in Australia’.

8. In paragraph 27, the final sentence reads: ‘The hospital in question I accept could only be loosely described as being a hospital and would be more properly be placed under the heading of clinic, based upon consistent oral evidence and inferences I make about underdevelopment in rural Afghanistan’. This should be amended to read: ‘The hospital in question I accept could only be loosely described as being a hospital and would be more properly placed under the heading of clinic, based upon consistent oral evidence and inferences I make about underdevelopment in rural Afghanistan’.

9. In paragraph 28, the first sentence reads: ‘Recording keeping in such facilities is either basic or non-existent, I find’. This should be amended to read: ‘Record keeping in such facilities is either basic or non-existent, I find’.

10. In paragraph 36, at dot-point 11, the first sentence reads: ‘[information redacted]’. This should be amended to read: ‘[information redacted]’.

    Justin Meyer
    Member

    
    

    DECISION RECORD

    DIVISION:Migration & Refugee Division

    CASE NUMBER:  1722179

    MEMBER:Justin Meyer

    DATE:31 January 2020

    PLACE OF DECISION:  Melbourne

    DECISION:The Tribunal remits the applications for Child (Migrant) (Class AH) visas for reconsideration, with the direction that the 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 31 January 2020 at 9:33am

    CATCHWORDS

    MIGRATION – Child (Migrant) (Class AH) visa – Subclass 117 (Orphan Relative) – bogus document – genuineness of death certificates – non-registration of documents – record-keeping in Afghanistan – decision under review remitted

    LEGISLATION

    Migration Act 1958 (Cth), ss 5, 65

    Migration Regulations 1994 (Cth), Schedule 2, cl 173.223, Schedule 4, PIC 4020

    CASES

    Arora v MIBP [2016] FCAFC 35

    Batra v MIAC [2013] FCA 274

    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

11. This is an application for review of a decision made by a delegate of the Minister for Immigration on 5 September 2017 to refuse to grant the applicants Child (Migrant) (Class AH) visas under s.65 of the Migration Act 1958 (the Act).

12. The applicants applied for the visas on 27 December 2011. The delegate refused to grant the visas on the basis that the first named applicant (the applicant) did not satisfy the requirements of cl.117.223 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because they did not meet PIC4020, they cannot therefore, meet the requirements of clause 117.223.

13. The review applicant appeared before the Tribunal on 4 October 2019 to give evidence and present arguments. The Tribunal also received oral evidence from [Visa applicant 1]. The Tribunal hearing was conducted with the assistance of an interpreter in the Pashto and English languages.

14. The review applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

16. The issue in this review is whether the visa applicant meets Public Interest Criterion 4020 (PIC 4020) as required by cl.117.223 for the grant of the visa. Broadly speaking, this requires that:

    ·there is no evidence that the applicant has given, or caused to be given, to the Minister, an officer, the Tribunal, a relevant assessing authority, or Medical officer of the Commonwealth, a bogus document or information that is false or misleading in a material particular in relation to the application for the visa or a visa that the applicant held in the 12 months before the application was made: 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).

17. 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?

18. 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.

19. 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.

20. 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.

    Background

21. The applicants applied for an Orphan Relative (Migrant)(Class AR) Subclass 117 visa on 27 December 2011 on the basis of their familial relationship with the sponsor [the review applicant] and orphan status. The review applicant (sponsor) and the applicants claim to be siblings of one another.

22. At the time of application, all applicants were claimed to be under the age of 18. It was claimed the applicants currently reside in Pakistan. It is claimed the applicants' parents are deceased.

23. At the time of application, the review applicant (sponsor) was a [age] year old Afghan male, who arrived in Australia [in] April 2010 as an Illegal Maritime Arrival (IMA). The review applicant (sponsor) currently resides in Australia and is an Australian permanent resident.

24. There was evidence before the Minister that the applicants have provided or caused to be provided a bogus document to the Department, in relation to this application for Orphan Relative (Migrant)(Class AH) (Subclass 117) visas.

25. It is claimed the applicants’ mother passed away in 2005 and their father was killed in 2006. It is therefore claimed that the applicants cannot be cared for by either parent.

    To support these claims, the applicants provided:

    ·A death certificate related to [the applicants' mother], purportedly issued by "[a named] Hospital" in Wardak Province, Afghanistan. The document number is [number] and is dated [in] July 2012. The document is purportedly signed by the director of "[the named] Hospital", [Dr. A];

    ·A death certificate related to [the applicants' father], purportedly issued by "Population Registration and Information Office of Maidan Wardak Province" in Afghanistan. The document number is [number] and it is dated [in] July 2012. The document is purportedly signed by the director of "Population Registration and Information Office of Maidan Wardak Province", [Mr B].

26. As part of the assessment, the aforementioned death certificates were in the words of the delegate “referred to the relevant issuing authorities in Afghanistan to determine their authenticity”. The findings of the verification checks revealed that the death certificates were not registered with the relevant Afghan issuing authorities. Accordingly, the death certificates provided by the applicant were considered fraudulent/bogus.

27. The delegate did not consider the waiver provisions against PIC4020 matters to operate in this case.

    Evidence before the Tribunal

28. The review applicant (sponsor) made statutory declaration on 16 Jan 2019, including annexures:

    ·Statutory declaration of the review applicant dated 21 February 2017

    ·Application form to provincial council

    ·A taskera (identity document) confirming death of father

    ·An inheritance letter

    ·A copy of email correspondence between review applicant and Afghan embassy and Ministry of Foreign Affairs

    ·An application form to provincial council for death attestation for review applicant’s mother

    ·Copy of father’s death taskera, mother’s death taskera and inheritance certificate attested by Afghan embassy.

    ·Psychologist report dated 19 December 2018

29. The review applicant (sponsor) submitted that:

    ·The delegate in considering whether to waive PIC 4020 only looked at information the review applicant (sponsor) provided by telephone on 20 March 2017 regarding the fact his two sisters, [Visa applicants 2 and 3], had been kidnapped by the Taliban. The delegate again confirmed no response had been received regarding the documents, and proceeded to not waive PIC 4020 ultimately refusing the visa.

    ·The review applicant (sponsor) made a request for the release of documents pursuant to the FOI Act for all recordings, notes, files, decisions and correspondence with the Department of Immigration and Border Protection. These documents were released in full on 19 January 2018.

    ·The delegate failed to take into account critical information in response to the notice of adverse information. On 22 February 2017, the review applicant (sponsor) provided by email a number of documents in response to the notice of adverse information. It was submitted that had the delegate taken these documents into account, the delegate may well have decided that PIC 4020 did not apply or exercised the discretion to waive PIC 4020.

    ·The decision record refers to “verification checks” with the “relevant issuing authorities”. The documents released pursuant to the FOI Act do not reveal any record of the actual correspondence with an issuing authority detailing what information was requested or what the actual response was from the issuing authorities.

    ·Although it is unclear exactly which authority the department has contacted, it is assumed the relevant issuing authorities refer to the hospitals which issued the original documents. As the review applicant (sponsor) does not have access to the correspondence with delegate and the relevant issuing authority, it is impossible to know exactly what process the department and hospital went through to verify the documents. The decision record notes that the documents were not registered with the relevant Afghan issuing authority. It is unclear whether they were also found to be fraudulent or if this was a conclusion of the delegate. Presumably hospitals in regional Afghanistan do not undertake document verification checks to ensure the authenticity of the documents and therefore it is reasonable to assume this was a conclusion reached by the delegate. There a number of reasons why the documents themselves were registered with the hospitals.

    ·There is no central registration system within the hospital.

    ·There is no central electronic database.

    ·The department may have asked a different representative at the hospital than who actual issued the documents.

    ·The delegate incorrectly noted the date at which the review applicant (sponsor) declared his sisters had been kidnapped. The delegate refers to a phone call whereby the review applicant (sponsor) stated his sisters were kidnaped in August 2013. This is incorrect. The review applicant (sponsor) noted his sisters were kidnapped in August 2016.

    ·The two questions for the Tribunal to consider are: Has the applicant provided a bogus document or information that is false or misleading in a material particular in relation to the visa application; Where the Tribunal is satisfied as to the above, should the Tribunal exercise its discretion to waive PIC 4020 given the existence of compelling circumstances that affect the interests of an Australian citizen or Australian permanent resident justifying the grant of the visa.

    ·The review applicant (sponsor) has clarified in his statutory declaration that the documents are not death certificates as described but instead death confirmation letters.

    ·The Department’s Procedural Advice Manual states that in order to refuse the visa on the basis of PIC 4020, it is necessary that the information or document have the quality of “purposeful falsity” whether or not the visa applicant can be shown to have personal knowledge of that fact. An applicant would not necessarily fail to satisfy PIC 4020 if they could explain an innocent mistake in a document or information provided by them or on their behalf.

    ·In the case of Trivedi v MIBP [2014] FCAFC 42 it was held that an element of fraud or deception is necessary in order to attract the operation of PIC 4020. There should be some element of knowledge or intention on somebody’s part. It is submitted that a significant amount of corroborative evidence demonstrates that the review applicant (sponsor) satisfies the Public Interest Criterion (PIC) contained in clause 4020 of Schedule 4 of the Migration Regulations 1994.

    ·The original death confirmation letters provided to the Department were not documents which fall within the scope of PIC 4020. The documents provided, which are evidence of the death of his parents, do not fall within the scope of the definition of a bogus document. The identity documents and the visa applicants have sought to address this issue by further establishing the death of their parents. It follows that if the Tribunal is satisfied that the applicants’ parents are indeed deceased, the original documents provided were not counterfeit or intended to deceive or defraud.

    ·Since the Department’s decision, the review applicant (sponsor) has obtained and provided the following additional documents:

    ·Application form to provincial council;

    ·Taskera confirming death of father;

    ·Inheritance letter;

    ·Application form to Provincial Council for death attestation for the review applicant’s (sponsor)’s mother;

    ·Copy of father’s death taskera, mother’s death taskera and inheritance certificate attested by Afghan Embassy;

    ·Copy of email correspondence between review applicant and Afghan embassy and Ministry of Foreign Affairs.

    ·The review applicant (sponsor) has explained in detail the process by which his sister and he went through to obtain the further documentation which confirms that his parents are deceased. The review applicant’s (sponsor’s) statutory declaration dated 16 January 2019 at [8] – [33] was referred to. This included several steps with different levels of government within Afghanistan as well a thorough attestation process with the Afghan embassy in Australia.

    ·The review applicant (sponsor) corresponded with the Afghan Embassy in Canberra. The existence of these documents which have been verified by the Afghan government both in Kabul and in Australia puts beyond doubt that the applicants’ parents are in fact deceased.

    ·This is a case where the processing officer either did not receive the review applicant’s (sponsor’s) response relating to PIC 4020 on 22 Feb 2017 because of an internal Department error or failure to allocate the email the file resulting in a failure to consider credible and important information that might have otherwise avoided the decision under review. Although there are higher levels of document fraud in Afghanistan and Pakistan, the fact these documents have gone through an attestation process with the embassy in Australia, this leaves little room for doubt as to the genuineness of the documents.

1. The review applicant (sponsor) went on to submit that if the Tribunal formed the view that the applicants do not satisfy the PIC 4020 criterion, then there are compassionate or compelling circumstances for waiver of PIC 4020. The severity of the fraud committed by the applicant needs to be weighed against the circumstances presented. Circumstances, when considered alone, may well be considered compelling or compassionate, delegates may well have sympathy for the applicant, however when weighed against the fraud committed by the applicant these reasons may not be sufficient to dismiss the fraud and grant the visa. The review applicant has since lodging the Visa Applications consistently described the fear, he has for his siblings’ safety. The email correspondence with the department during the processing of the visas indicates well placed subjective fear of his siblings’ immediate physical safety both in Afghanistan and Pakistan. The visa application process has had a profound impact on him which has resulted in him experience serious mental health issues in Australia. Affirming the decision under review would have a detrimental impact on the review applicant’s mental health. A psychologist report was referred to. A decision to impose PIC 4020 would result in the permanent separation between the review applicant and his siblings as it is unlikely, they qualify for any other visa subclasses. The review applicant is an Afghan citizen and has no ongoing right to reside in Pakistan beyond the period allowed by the Pakistan authorities.

   Findings

2. The Tribunal has reached the conclusion that the documents cited as bogus by the delegate are not in fact documents that can be reasonably described as fraudulent, based upon the evidence before the member.

3. The delegate concluded that the findings of the verification checks revealed that the death certificates were not registered with the relevant Afghan issuing authorities.

4. The delegate wrote of a death certificate which related to [the applicants' mother], purportedly issued by “[a named] Hospital” in Wardak Province, Afghanistan. The document number is [number] and is dated [in] July 2012. The document is purportedly signed by the director of "[the named] Hospital", [Dr. A].

5. The delegate went on to state that a death certificate related to [the applicants' father], purportedly issued by "Population Registration and Information Office of Maidan Wardak Province" in Afghanistan. The document number is [number] and is dated [in] July 2012. The document is purportedly signed by the director of "Population Registration and Information Office of Maidan Wardak Province", [Mr B].

6. As part of the assessment, the aforementioned death certificates (or confirmations) were referred to the relevant issuing authorities in Afghanistan to determine their authenticity. The findings of the verification checks revealed that the death certificates were not registered with the relevant Afghan issuing authorities. Accordingly, the death certificates provided by the applicant were confirmed as fraudulent or bogus in the delegate’s view.

7. I however have come to the view that the apparent non-registration of these documents does not mean that they are fraudulent, or even more likely to be fraudulent.

8. Record-keeping in Afghanistan is piecemeal and unreliable. The deaths are said to have occurred in a thinly populated province. The hospital in question I accept could only be loosely described as being a hospital and would be more properly be placed under the heading of clinic, based upon consistent oral evidence and inferences I make about underdevelopment in rural Afghanistan.

9. Recording keeping in such facilities is either basic or non-existent, I find. Not taking a photocopy for example is unsurprising to the Tribunal. DFAT in its most recent country information on Afghanistan states the flowing points[1]:

   ·Article 52 of the Constitution commits the state to providing free preventative healthcare and treatment of diseases as well as providing medical facilities to all citizens, and to encouraging and protecting the establishment and expansion of private medical services and health centres.

   ·The Afghan health system has improved significantly since 2001, but from a very low base.

   ·Afghanistan continues to have one of the world’s highest maternal mortality rates, and recent surveys suggest that rates may be considerably higher than previously thought.

   ·Despite improvements in some areas, decades of war and conflict have had a severe impact on the health sector. Afghanistan continues to have one of the highest rates of child malnutrition in the world, with around 55 per cent of children under five suffering from chronic malnutrition.

   ·While basic healthcare services are free, medicines can be expensive and/or out of date, excluding the poor from treatment for common illnesses. The Afghan healthcare sector remains heavily dependent on foreign funding.

   ·Continuing armed conflict frequently inhibits access to health services in conflict-affected areas, with women and girls particularly affected. Medical supplies are often unable to reach remote communities due to the security situation.

   ·In 2018, UNAMA documented 62 incidents affecting health care, including direct attacks or threats of attacks against health care facilities and personnel, and incidental damage to health care facilities. UNAMA attributed almost half of the incidents to the Taliban.

   [1] DFAT Country Information Report Afghanistan 27 June 2019, [2.21 -2.25]

10. I note the Wardak province of central Afghanistan is a place of very limited means, low population[2] and low levels of literacy. The Taliban is said to have had the ascendance from 2008-09 onward. This could easily include the period in question for the applicants. The US-based Institute for the Study of War describes Maydan Wardak Province as follows:

    [2] and Terrain

    Maydan Wardak is a small province located west of Kabul, although it is part of Regional Command East. The province is divided into eight districts. The capital is the small town of Maydan Shahr.  Maydan Wardak is mountainous, with the Kott-i Baba Range in the north and the Paghman Range in the east.  Most of the land is used to raise livestock, but there are some irrigated areas for crops.

    The province has a population of about half a million. Roughly 70 percent of the population is Pashtun; Hazaras and Tajiks comprise the remainder of the population. The Tajiks live primarily in northern districts of the province, while the Hazaras live in the western part of the province. Maydan Wardak also has a small population of Qizilbash, who are ethnically Persian and practice Shi’a Islam. The major Pashtun tribes are the Ghilzai (of the Hotak and Kharoti clans) and Wardak.

    The Ghilzai are the largest Pashtun tribe, not only in Maydan Wardak Province but in Afghanistan as a whole. They form the majority in the Jalriz and Nerkh districts in the northeastern part of the Maydan Wardak province. The Ghilzai formed the backbone of the Taliban movement in its early stages. They are fiercely independent and resent the Durrani Pashtuns—of which President Karzai is part (Karzai is a member of the Popalzai sub-tribe of the Durrani). As the largest Pashtun tribe in Afghanistan, the Ghilzai desire increased political power.

    The Wardak tribe of the Pashtun is politically influential, although less numerous in Afghanistan. Large populations of the tribe live in every district except the predominantly-Hazara districts of Markaz-i Behsud and Hassah-i-Ahwal-i-Behsud in the western part of the province. Elements of the Wardak tribe, like the Ghilzai, are sympathetic to the Taliban’s ideology.

    Security

    The security landscape dramatically deteriorated after 2007. Ambushes of convoys have become more frequent, especially along the Highway One transportation corridor to Kabul. The Sayadabad district witnessed many enemy ambushes, especially during the summer of 2008. Throughout the province, but particularly in Sayadabad, there have been numerous reports of night letters threatening those who work for or are associated with the government. The governor of neighboring Ghazni Province narrowly escaped an assassination attempt by the Taliban while visiting Wardak Province in 2008. District government headquarters are also targeted, and several girls’ schools have been burnt since 2007. Non-governmental organization workers are frequently harassed in the province.

    In 2008 and early 2009, Maydan Wardak residents perceived the Taliban to be in control of six of the eight districts in the province. The population also tends to be anti-government and anti-Coalition, with only seven percent holding a positive view of NATO and US Forces.

    Turkey is leading a Provincial Reconstruction Team (PRT) in Wardak. US Forces are also operating in the province.. Blackhawk Company, 2nd Battalion, 87th Infantry Regiment, is stationed in Wardak.[3]

    [3] >

    The overall picture is one of underdevelopment, deprivation and Taliban control or influence.

11. I am unable to draw a conclusion on how the delegate found the documents to be bogus other than through a referral to the clinic in question, which does not have matching records. There is no suggestion that the document itself is written with errors or markings that reveal it to be something else, for example.

12. The lack of matching records or a record of issue is unsurprising and it does not lead me to reasonably conclude that the document is bogus on this basis.

13. The review applicant (sponsor) has gone on to obtain considerably more documentation to advance the applicants’ claims, as described earlier. Prima facie this evidence strengthens the claim about the genuineness of the documents first submitted surrounding the claimed death of the applicant’s father. However these documents are not checked by the Tribunal or referred to third parties at this point, as this is the proper role of the department upon remittal. The Tribunal makes no finding on the genuineness of the additional evidence, and only observes that at this stage it does not detract from the applicant’s case.    

14. The Tribunal makes no other finding on the family relationships of the parties.

15. As the Tribunal has found that remittal is warranted on the grounds of meeting Public Interest Criterion 4020 for the purposes of cl.117.223 of Schedule 2 to the Regulations, I do not consider the matter of waiver of the criterion.

    Description of oral evidence

16. The Tribunal asked a significant number of questions of the review applicant (sponsor) and the witness. From this the Tribunal finds that:

    ·[Information redacted pursuant to direction made under section 378]

17. The Tribunal does not make specific findings on the above evidence as given in the hearing by the witnesses and the review applicant (sponsor). However the Tribunal does not have specific concerns with any of the above-mentioned evidence’s effect upon its decision in regards to purported fraudulent/bogus documents and PIC4020.

18. There are a significant number of declarations and documents supporting this line of evidence, and the Tribunal is now furnishing the Department with this information for its consideration as the department further assesses the visa applications.     

19. Therefore, the applicant meets PIC 4020(1).

    Has a visa previously been refused on the basis of a failure to satisfy PIC 4020(1)?

20. PIC 4020(2) requires the Tribunal to be satisfied that the applicant and each member of the family unit have not been refused a visa because of a failure to satisfy PIC 4020(1) in the period commencing 3 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(2AA). 

21. I find that upon the evidence there is no indication that: 

    ·the applicant or any member of the family unit (as defined in r.1.12) have been refused a visa in the relevant period because of a failure to satisfy PIC 4020(1)

22. Therefore, PIC 4020(2) is met.

23. On the basis of the above, the applicant does satisfy PIC 4020 for the purposes of cl.117.223.

    DECISION

24. The Tribunal remits the applications for Child (Migrant) (Class AH) visas for reconsideration, with the direction that the 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.

    Justin Meyer
    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. 

    …