1723920 (Migration)

1723920 (Migration) [2019] AATA 1880 (22 March 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
REVIEW APPLICANT:  Mr [A]
VISA APPLICANT:  [Miss B]
CASE NUMBER:  1723920
DIBP REFERENCE(S):  OSF2016/037162
MEMBER:Hugh Sanderson
DATE:22 March 2019
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a Child (Migrant) (Class AH) visa.
Statement made on 22 March 2019 at 2:14pm
CATCHWORDS
MIGRATION – Child (Residence) (Class AH) visa – subclass 101 (Child) visa – bogus documents – failed to meet the criteria in PIC 4020(1) – inconsistent names and dates of birth – no compassionate or compelling circumstances – requirements of PIC 4020(1) shouldn’t be waived – decision under review affirmed

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, r 1.03, Schedule 2, cls 101.223, 101.221

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

This is an application for review of a decision made by a delegate of the Minister for Immigration on 23 August 2017 to refuse to grant the applicant a Child (Migrant) (Class AH) visa under s.65 of the Migration Act 1958 (the Act).
The applicant applied for the visa on 2 September 2016. The delegate refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl.101.223 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the delegate was not satisfied that the applicant met the criteria in Public Interest Criteria 4020 (PIC 4020).
Background
The review applicant was born in China and is currently 51 years old. He was granted a subclass 100 Partner (Residence) visa and first entered Australia on 10 July 2011. He is an Australian citizen. He was sponsored for his visa by his wife, [Ms C], who first arrived in Australia in 2008 and was granted a Protection visa in 2010. She is now an Australian citizen. They were married in [year].
In the visa application, the review applicant disclosed he had the following children:
·[Miss D], daughter, born [date] and resident in China;
·[Miss E], daughter, born [date] and resident in Australia;
·[Miss F], daughter, born [date] and resident in Australia;
·[Miss G], daughter, born [date] and resident in Australia;
·[Miss H], daughter, born [date] and resident in China;
·[Mr I], son, born [date] and resident in Australia; and
·[Miss B], daughter, born [date] and resident in China.
The review applicant sponsored [Miss H] and [Miss B], for the grant of subclass 101 Child visas for each of them. The application of [Miss H] was refused by the Department on the same grounds as the refusal of the visa applicant in this decision. The application of [Miss H] was subject to a separate review application, file number 1723930. For the purposes of this decision, [Miss H] and [Miss B] are hereinafter referred to as the children.
The review applicant claimed that the children are the daughters of himself and his wife. It was claimed that [Miss H] was born [in] June [year] which was confirmed in her passport, her household registration documents and a notarial birth certificate. A medical certificate of birth issued on 19 April 2014 disclosed her date of birth [in] November [year] and the review applicant and his wife as her parents.
It was claimed that [Miss B] was born [in] July [year] which was confirmed in her passport, her household registration documents and a notarial birth certificate. A medical certificate of birth issued on 19 April 2014 disclosed her date of birth [in] December [year] and the review applicant and his wife as her parents.
It was claimed that when they were born, because of China’s family-planning policy they were sent to a friend’s home and were adopted by their foster parents. It was claimed [Miss H] was adopted by [Couple 1]. It was claimed [Miss B] was adopted by [Couple 2]. Both their foster parents then changed their dates of birth when registering the children in their household so that they appeared older than they actually were purportedly so that they could commence school early. It was claimed that the children’s foster parents started having difficulty with both children and in 2014 the review applicant and his wife took back control of the children.
A Civil Judgement from The People’s Court of Fuqing City Fujian Province dated 15 April 2014 in respect of both children was provided to the Department. In that judgement, for the [Miss H], the following was claimed:
·[Miss H] was born [in] June [year] and is a biological child of the review applicant and his wife;
·[In] August [year] the biological parents sent [Miss H] to the foster parents for adoption;
·At the time of the adoption, the foster parents already had two sons of their own;
·No formal adoption procedures were undertaken by anyone;
·The adoption was not valid as the parties did not go through the adoption formalities in the People’s Civil Affairs Department and as the foster parents already had two sons of their own they were not allowed to adopt any other children; and
·The adoption was invalid and [Miss H] was now to be raised by her biological parents.
In the judgement provided in respect of [Miss B] the following was stated:
·[Miss B] was born [in] July [year] and is a biological child of the review applicant and his wife;
·[In] September [year] the biological parents sent [Miss B] to the foster parents for adoption;
·At the time of the adoption, the foster parents already had two sons of their own;
·No formal adoption procedures were undertaken by anyone;
·The adoption was not valid as the parties did not go through the adoption formalities in the People’s Civil Affairs Department and as the foster parents already had two sons of their own they were not allowed to adopt any other children; and
·The adoption was invalid and [Miss B] was now to be raised by her biological parents.
Due to inconsistent information provided in support of the application, the Department requested the applicants provide their passports with their correct dates of birth and evidence of their change of names. In response, both visa applicants provided the following documents:
·Change of Name Certificate dated 10 February 2017 and sealed by Longtian Police Station, Fuqing Public Security Bureau;
·Statements dated 10 February 2017 about the children’s change of name and date of birth sealed by the Longtian Police Station, Fuqing Public Security Bureau; and
·Statements dated 16 March 2017 that the police station cannot change a resident’s date of birth sealed by the Longtian Police Station, Fuqing Public Security Bureau.
Those documents were then referred to the Foreign Affairs Office of Fujian Provincial People’s Government for verification. On 6 June 2017, the Department received an official written response from the Foreign Affairs Office stating that the documents concerned were not issued by the Longtian Police Station, Fuqing Public Security Bureau and the official stamps chopped on the documents were counterfeited.
On the basis of this information, the Department believed that the visa applicant’s had given, or caused to be given, to the Department bogus documents in relation to their applications. The Department wrote to the visa applicants and review applicant with this information inviting them to comment on or respond to the information.
A statement was provided from [Couple 2] who claimed to be the foster parents of the children. It was claimed they changed their names and dates of birth during the period of a population census.
The review applicant provided a statement where he made the following claims:
·The documents issued by Longtian Police Station, Fuqing Public Security Bureau are true and valid documents;
·He had not been able to obtain a new Chinese passport for the children as the local police staff refused to accept his request due to troublesome procedures;
·He had used an agent through friends to obtain the documents referred to by the Department, but the agent did not want to take responsibility and therefore did not leave their name and signature on the documents which was why the police station could not verify the documents as genuine;
·In 2014 the review applicant and the children were found to be petitioners by the local government due to their attempts to obtain the correct documents and they have now been threatened by the local police;
·There was no need to make fake documents because both children were within the age range for child migration;
·The dates of birth were changed by the children’s foster parents had nothing to do with the review applicant or the children; and
·DNA testing has confirmed that the review applicant is the biological father of the children.
The delegate who considered the application first considered whether bogus documents had been provided in support of the application and whether, if bogus documents were found to have been provided, the requirement to meet that criteria should be waived. The delegate noted the following:
·The opinion of the Foreign Affairs Office of Fujian Provincial People’s Government is a reliable and credible third-party source which found that the documents were bogus;
·Even if the documents were issued by a corrupt official or an agent, this does not mean the documents are not bogus;
·The review applicant has continued to claim the documents are genuine despite the information showing the documents are bogus;
·No submissions had been made of any compassionate or compelling circumstances that affect the review applicant or any other Australian resident;
·Although it is claimed that the review applicant and his family in Australia have a close personal relationship with the children, this is the same for any applicant in the family stream;
·The review applicant and his wife had not disclosed the children in their previous applications made to the Department; and
·There was no information that the interests of Australia are affected in any way.
Taking into account the above matters, the delegate found that bogus documents have been provided in support of the applications and therefore both applications did not meet the criteria in PIC 4020(1). The delegate was not satisfied that the criteria in PIC 4020(1) should be waived pursuant to PIC 4020(4).
The delegate then considered whether the children satisfied the identity criteria in PIC 4020(2A). In respect of this issue, the delegate noted the following:
·Due to the children’s inconsistent names and dates of birth provided in the documents in support of the application the delegate could not be satisfied as to their identity;
·There was no objective information to support the claim that the children’s foster parents had changed their names and dates of birth during the period of a population census;
·There is no objective evidence to support the claim that the identity documents for the children have been properly issued to them both; and
·Although the children may be the biological children of the review applicant, there is a real chance the children would use the alternate identities should the issue not be properly addressed.
Taking these matters into account, the delegate was not satisfied that the children met the identity criteria in PIC 4020(2A) and noted there was no waiver provision if the children did not meet this criteria.
Accordingly, as the delegate found the children did not meet PIC 4020 they did not meet the criteria in cl.101.223 and refused their applications. The delegate noted that no claim had been made that the children met any alternate visa subclass.
Information to the Tribunal
The review applicant provided a statement to the Tribunal where he repeated the claims previously made to the Department. He provided a statement where the following was claimed:
I applied 101 child visa for (the children) but the application was refused on 24/08/2017. I understand there are a few confusions caused by the inconsistent information on medical certificate of birth and household register, as well as other legal document legally produced by Chinese authorities according to household register book because to apply notarial birth certificate, passport and other document, we all have to bring household register as reference. All document produced accordingly is to follow information on this census register information.
I seek methods to provide passport which can display my daughter’s real birthdate as requested by immigration officer. But under Chinese law I had to seek help from local police station to change my daughter’s census register first. This was the thing I have tried in 2014 when I got back my daughter from foster parent. But the officer refused to process it because of the troublesome procedure. Though I tried to do it again through formal procedure, the answer I got remains the same. I had to find some relationship through friends to get the certificate issued even it bothers them a lot. Finally I obtained the certificate with truths stating on it and I thought the justice has been made. However, when the immigration officer sent request to verify the authenticity, it was right the time that the politics and law system of the city carrying out the inner discipline inspection and supervision. As there was no exact police officers name on the certificate, no one was willing to take the responsibility of issuing this certificate.
However, all document submitted to immigration department, especially the three document accused as “bogus document”, are exactly the document I obtained from Longtian Police Station, Fuqing Public Security Bureau. I didn’t counterfeit any of it, neither did I dare to fake the official stamp. I could only swear for myself that I am actually the victim in this matter if the justice could not be made…
The review applicant and his wife appeared before the Tribunal on 20 March 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages. The review applicant was represented in relation to the review by his registered migration agent who attended the hearing.
The review applicant provided details of his and his children’s life in Australia. He said that apart from his wife and children, he had no other family in Australia. He had [a number of] brothers and [a number of] sisters who continued to live in Fujian. He said they all had one, two or three children and so he had lots of nieces and nephews in China.
The review applicant said that he had returned to China on four occasions since first entering Australia. The last time was in 2017 when he visited his father-in-law who was sick. He said that his wife had returned to China on three occasions. He said they had no problems when they returned to China. He provided details of the trips back to China his children in Australia had made.
The review applicant said that after giving the children up for adoption he had no contact with them for more than 10 years. He said that in about 2010 he first made contact with the foster parents as they were both having problems with the children. He made direct contact with his children for the first time in 2012. He changed this to say that it was before he came to Australia he started to have face-to-face contact with the children.
The review applicant said that he had not referred to the children in any previous application to the Department because he had given them up for adoption and the foster parents did not want the children to know they had been adopted. He said that as the children were not on his Household Registration he could not mention them to the Department when applying for any visa to enter Australia. He said that he only got the birth certificates for the children in 2014. He said that he had very little contact with the children before he came to Australia. He said that his wife had no contact with the children before she entered Australia.
The Tribunal referred to the Civil Judgements dated 15 April 2014 where it was declared that the children were not properly adopted by their foster parents. The review applicant said all the information provided to the Court and included in that document was correct. The Tribunal noted that in respect of [Miss H] it was stated that she was born [in] June [year] and had been sent to the foster parents for adoption [in] August 1997. In respect of [Miss B] it was stated that she was born [in] July [year] and had been sent to the foster parents for adoption [in] September [year]. This was inconsistent to the information now being provided as the dates of birth of the children.
The review applicant said that he didn’t really check the elements of the application. He just knew that for both children they were adopted 30 days after they were born. He said that as it was 15 or 16 years ago he didn’t remember the date the children were adopted. He said that the foster parents made the application so they provided the dates based on the dates they claimed the children had been born and their Chinese identity cards for when the children were put in their care.
The review applicant said that [Miss H] was living in China. She attends boarding school and when not at boarding school stays at the family home with the review applicant’s sister. He said that [Miss B] was a student in [another country]. He said that he met all the expenses for the children.
The Tribunal referred to the documents which had been identified by the Department as bogus. The review applicant said that he was in Australia when the Department asked for the documents. He said that he spoke to a friend in China to get documents for them. He said that person asked a friend in the police station to get documents. He said that it was one of his relatives who asked a friend of his in the police station for help. He said that they needed help because if something needed to change it was difficult. He said that if you went to the police station they could only provide documents on their file and not get the documents he needed. He said that in China you needed to pull strings to get things done.
The review applicant said that when they wanted to change the Household Registration they were told they could not change the birthdays of the children. He said that they were always getting excuses when they had tried for two years to get documents from the police. He said that in China if you needed to get things done you needed to ask a friend.
The review applicant said that a relative had told him the documents were genuine. He said that he did not know why the Department would have found the documents bogus. He said that it was only because the police station said they were false. He said that because the police were not supposed to give documents that were not on the file at the police station, the police officer who violated the procedural regulations by providing the documents said they were fake.
The Tribunal noted that if the Tribunal concluded that the documents were bogus it could waive that requirement if there were compelling circumstances that affect the interests of Australia or compassionate or compelling circumstances that affect the interests of an Australian citizen or permanent resident to justify the granting of the visa. The review applicant was invited to provide any reasons as to this aspect of the application.

The review applicant said that he was not really sure if the documents were false. He said the children’s age would still meet the requirements for the visa. He said the children should live in Australia because the foster parents do not get along with the children. He said that it was only he and his wife who provided financial and emotional support to the children and he did not know how he would maintain a relationship with them if they were not in Australia. He said that the children would hold a grudge against him if he did not get them the visa. The review applicant said that if the documents were not genuine then he was also a victim as he expected genuine documents to be provided.
The review applicant said that when he had said that you had to “pull some strings to get things done in China” he did not mean that the documents provided were not genuine, just that it would be easier to have a friend within the organisation to provide the genuine document.
The review applicant’s wife provided details of her work and other aspects of her life in Australia. She said that she was not involved in getting any of the documents in support of the children’s applications. She said that her husband had asked a friend to help him get the documents and that was all she knew. She confirmed that she had returned to China on three occasions since entering Australia. She said that she usually stayed at her mother’s home and she had no problems while staying in China because she mainly stayed at the hospital where her father was.
The review applicant’s wife said that they had always provided genuine documents to the Department. She said she wanted the children to come to Australia because everything was better in Australia, especially education for the children.
After the hearing, the review applicant provided a statement where he again claimed that he never deliberately provided bogus documents to the Department. He believed that he was a victim in the matter. He claimed that he, his wife and family all appreciate being able to live in Australia and hope that the two visa applicants could unite with their parents and five brothers and sisters in Australia. If they are not able to reunite, they would all suffer great hardship.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this review is whether the visa applicant meets PIC 4020 as required by cl.101.223 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).
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 a material particular?
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.
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.
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.
The documents identified by the Department as having been provided in support of the visa application and potentially being bogus were the following:
·Change of Name Certificate issued to [Miss B] [dated] 10 February 2017 and sealed by Longtian Police Station, Fuqing Public Security Bureau;
·Statement dated 10 February 2017 about the change of [Miss B]’s name and the date of birth sealed by Longtian Police Station, Fuqing Public Security Bureau; and
·Statement dated 16 March 2017 that the police station cannot change a resident’s date of birth sealed by Longtian Police Station, Fuqing Public Security Bureau.
All the documents were provided in support of the application to show that the visa applicant was the child of the review applicant and provide information in support of an application and the claims made in that application.
The documents were referred to the appropriate office to confirm they had been genuinely issued by Longtian Police Station, Fuqing Public Security Bureau. The Foreign Affairs Office of Fujian Provincial People’s Government has found that those documents were counterfeit and not issued by Longtian Police Station, Fuqing Public Security Bureau. The official stamps chopped on these documents were stated to be counterfeit.
The Tribunal places significant weight on the information provided by the appropriate authorities in China that the documents purportedly issued by Longtian Police Station, Fuqing Public Security Bureau are bogus.
The review applicant was not able to provide any clear information as to how those documents were obtained. He said that he asked for a friend (possibly his relative) to obtain the documents requested by the Department to enable the visa application to proceed from the appropriate authorities. He said that this person then asked a friend who was a police officer to provide the necessary documents.
It is clear that the review applicant was not aware of the actual procedures adopted by his friend or relative in China to obtain the documents. He believed that his friend or relative was asking a friend of his who was a police officer to provide the documents. It appears that he was aware that the documents were not obtained by making an application through the legitimate processes. The review applicant claimed that this was just the way things were done in China and that he needed to pull some strings to get things done. He complained that obtaining documents previously from the appropriate authorities took him over two years.
The Tribunal finds that the documents provided in support of the application purportedly from Longtian Police Station, Fuqing Public Security Bureau have not been issued by them. The Tribunal finds that the information provided in those documents was purposefully untrue. There is no information which would indicate the review applicant or his agent ever took steps to obtain these documents using the legitimate and proper processes. The Tribunal does not accept that getting the documents by “pulling strings” or “asking a friend” means that the documents were obtained in a proper and legitimate manner. By obtaining documents in this manner there is an element of fraud. The proper authority has assessed the genuineness of the documents and found they are bogus and not issued by Longtian Police Station, Fuqing Public Security Bureau. The Tribunal finds these documents to be bogus documents provided in relation to the application.
As the Tribunal has concluded that the applicant has provided a bogus document in relation to the application for the visa the applicant does not meet PIC 4020(1).
Should the requirements of PIC 4020(1) be waived?
The requirements 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.
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.
No information has been provided of any compelling circumstances that affect the interests of Australia to justify the granting of the visa.
There is little information before the Tribunal of any compassionate or compelling circumstances that affect the interest of an Australian citizen or permanent resident to justify the granting of the visa. No specific claims were made by the review applicant or his wife as to any particular circumstances which the Tribunal should take into account. When this issue was put to them at the hearing, their responses centred on their denial that the documents were bogus.
It was claimed by the review applicant that both children were placed with another family about 30 days after they were born. The review applicant’s wife did not have any contact with those children before she arrived in Australia in 2008. The only opportunity she has had to have any direct physical contact with them is on the three occasions since then that she has returned to China. The review applicant claims that he had met the children just before he entered Australia, but had not had any direct physical contact with them before that. He did not include either child in his Partner visa application or notify the Department of their existence. Since arriving in Australia in 2011 the only opportunity he has had to see the children is on the four occasions he has returned to China. The review applicant and his wife live with four of their children who currently reside in Australia.
The review applicant and his wife have been able to return to China on multiple occasions since coming to live in Australia. The children have also returned to China on occasion for holidays. There is no information that any member of the review applicant’s family had any difficulties when they returned to China or that they would not be able to maintain contact with both children who continue to reside in China. Although the review applicant and his wife may wish to have the children living in Australia, there is nothing to indicate they would not be able to develop and maintain any relationship they do have with the children if they remained living in China or any other country outside Australia.
The Tribunal has considered all the circumstances of the review applicant and his family who live in Australia. The Tribunal is not satisfied that there are any compassionate or compelling circumstances that affect the interests of the review applicant or any other member of his family which would justify the granting of the visa. His children have had little or no relationship with the children, the subject of the visa. The review applicant and his wife have had only limited contact with these children since 2011. The review applicant and his wife have the support of their four children who live in Australia. All the family have been able to return to China for holidays and spend time with the visa applicants. The Tribunal accepts the review applicant and his wife want the visa applicants to live in Australia and see advantages for the visa applicants and themselves in their being able to live in Australia. The Tribunal is not satisfied, however, that there is anything in the nature of the relationship between the visa applicants and their parents and siblings who reside in Australia which would provide a compassionate or compelling circumstance to justify the granting of the visa.
For the above reasons, the Tribunal is not satisfied that the requirements should be waived. Therefore the Tribunal finds the requirements of PIC 4020(1) should not be waived.
Has the applicant satisfied the identity requirements?
The Tribunal has found that the applicant has given or caused to be given to the Minister a bogus document and does not meet the criteria in 4020(1)(a). The Tribunal has concluded that the requirements of PIC 4020(1)(a) should not be waived pursuant to PIC 4020(4). Accordingly, the applicant does not meet the criteria in cl.101.223.
The Department in their decision also found the applicant did not meet the criteria PIC 4020(2A) which requires that an applicant satisfy the Tribunal as to his or her identity. The only effect that a further finding that the applicant does not meet PIC 4020(2A) is the possible restriction on further applications by the visa applicant. As the visa applicant was under the age of 18 at the time of the application these restrictions do not apply. Accordingly, as the Tribunal has already found the applicant does not meet the criteria in PIC 4020 for the reasons set out above it is not necessary to consider whether the visa applicant meets the criteria in PIC 4020(2A).
For the above reasons, the visa applicant does not satisfy PIC 4020 for the purposes of cl.101.223.
There is no information before the Tribunal that the visa applicant would meet the criteria for the grant of any other subclass within the class of visa sought.
DECISION
The Tribunal affirms the decision not to grant the applicant a Child (Migrant) (Class AH) visa.
Hugh Sanderson
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.
…

[2019] AATA 1880

22 March 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice

Jurisdiction