1722179 (Migration)

This matter concerned an application for Child (Migrant) (Class AH) visas, Subclass 117 (Orphan Relative), made by the applicants on 27 December 2011. The delegate of the Minister for Immigration refused to grant the visas on 5 September 2017, finding that the applicants did not satisfy Public Interest Criterion (PIC) 4020. The applicants claimed to be siblings of the review applicant, an Australian permanent resident, and asserted their parents were deceased. The refusal was based on the submission of death certificates for the applicants' parents, which were found to be bogus documents as they were not registered with the relevant Afghan issuing authorities.

The primary legal issue before the Tribunal was whether the applicants met PIC 4020, which requires that an applicant has not provided a bogus document or false or misleading information in relation to a visa application. The Tribunal was also required to consider the definition of a "bogus document" and whether the non-registration of the death certificates rendered them bogus, irrespective of whether the applicants were aware of their falsity. The Tribunal noted that the provision of a bogus document can engage PIC 4020 even if the applicant was unaware of its falsity, although an element of fraud or deception by some person is necessary.

The Tribunal reasoned that while the death certificates were not registered with the relevant Afghan authorities, the evidence presented by the review applicant, including statutory declarations, identity documents, and correspondence with Afghan authorities, raised questions about the initial assessment of the documents as definitively bogus. The Tribunal concluded that the matter should be remitted for reconsideration, indicating that the initial decision may not have adequately considered all the evidence or the complexities surrounding record-keeping in Afghanistan. The Tribunal directed that the applicants meet PIC 4020 for the purposes of cl.117.223 of Schedule 2 to the Regulations upon reconsideration.