1823371 (Migration)

[2021] AATA 1871

1823371 (Migration) [2021] AATA 1871 (22 May 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1823371

MEMBER:Jennifer Cripps Watts

DATE:22 May 2021

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for a Child (Residence) (Class BT) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 802 (Child) visa:

·Public Interest Criterion 4020(1) for the purposes of cl 802.214 of Schedule 2 to Migration Regulations 1994

Statement made on 22 May 2021 at 4:13pm

CATCHWORDS
MIGRATION – Child (Residence) (Class BT) visa – Subclass 802 (Child) – false or misleading information – marital status – inconsistent answers recorded in various medical documents – diagnosed with schizophrenia – acute psychosis and delusional beliefs – statements made in various medical documents are wholly unreliable – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 802.214; Schedule 4, PIC 4020

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs (the delegate), on 7 August 2018, to refuse to grant the applicant a Child (Residence) (Class BT) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa, that is the subject of the review, on 24 May 2017. The delegate refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl 802.214 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) because the delegate found that the applicant had given information to the Minister that was false or misleading in a material particular, namely his marital status, in relation to the application for the visa and the applicant did not therefore satisfy Public Interest Criteria (PIC) 4020(1).

3. On 13 August 2018, the applicant lodged a review application and provided the Tribunal with a copy of the delegate’s decision.  The applicant was invited to attend a hearing scheduled on 25 May 2021.  However, the applicant’s representative and authorised recipient provided the Tribunal with recent and updated information, relevant to the material issue under review. 

4. The Tribunal carefully considered all relevant facts and information and was satisfied that the review could be decided in the applicant’s favour on the basis of the material before it.  The applicant’s representative was informed and the hearing scheduled on 25 May 2021 was cancelled.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The issue under review is whether the visa applicant meets PIC 4020(1) as required by cl 802.214 for the grant of the visa.

7. Relevantly, in this case, the delegate found that the applicant had provided false or misleading information relating to his marital status in response to a question in the visa application that is the subject of this review.  It is a requirement of PIC 4020(1) that an applicant not provide false or misleading information when they apply for the visa. 

   Background

8. The applicant is a national of Vietnam, born in [year].  He first arrived onshore in August 2004 holding a [student] visa and has resided predominantly in Australia since then.  He appears to have remained onshore since 2009.  In 2008 he was granted a second student visa which was cancelled in 2012 and the applicant remained onshore unlawfully for about two years, from 2012 to 2014.  The applicant applied for a protection visa in 2014 which was refused.  The decision to refuse his protection visa was affirmed in 2017 by the Tribunal (differently constituted).  

9. Department records indicate that the sponsor, the applicant’s mother [Ms A], arrived onshore in June 2012 holding a Subclass 309 visa and was subsequently granted the related 100 visa in October 2015.

10. The applicant’s parents, have both remarried and moved from Vietnam to Australia, as have the applicant’s two younger siblings.

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

11. The term ‘information that is false or misleading in a material particular’ is defined in PIC 4020(5), included in an attachment to this decision.    

12. The visa was refused because the applicant did not meet cl.802.214, essentially on the basis that the applicant declared in his visa application made in 2017 that he had never been married and around the time of a hospital admission in 2018, when he was diagnosed with schizophrenia, it is recorded in some paperwork that he had been married or divorced. The delegate found that the applicant had provided false or misleading information relating to his marital status. Section cl.802.214 requires:

    (1)If the applicant has turned 18:

    (a)   The applicant:

    (i)is not engaged to be married; and

    (ii)does not have a spouse or de facto partner; and

    (iii)has never had a spouse or de facto partner; and

    (b)   the applicant is not engaged in full-time work; and

    (c)   subject to subclause (2), the applicant has, since turning 18, or within 6 months or a reasonable time after completing the equivalent of year 12 in the Australian school system, been undertaking a full-time course of study at an educational institution leading to the award of a professional, trade or vocational qualification.

    (2)Paragraph (1)(c) does not apply to an applicant who, at the time of making the application, is a dependent child within the meaning of subparagraph (b)(ii) of the definition of dependent child.

13. The sponsor is the applicant’s mother, [Ms A], born [year]. The definition of ‘dependent child’ includes, among other things, relevantly given the relationship between the child and sponsor in this case, a child who ‘is incapacitated for work due to the total or partial loss of the child’s or step‑child’s bodily or mental functions’; r.1.03 of the Regulations, subparagraph (b)(ii). However, no claim has been made to the Tribunal, nor probative evidence provided, in this regard. Therefore, the Tribunal has considered the same material issue on which the visa was refused, that is, whether the applicant has ever had a spouse; cl.802.214(1)(iii) for the purpose of PIC 4020.

14. The applicant, who was born in [year], lodged the Subclass 802 visa application on 24 May 2017 and declared that he had never been married and had not dependent members of his family unit.  He was, at the time of application, over 18 years of age.  He is now nearly [age]. 

15. The delegate, on the basis that the applicant had given inconsistent answers as to his marital status, recorded in various documents including a mental health plan, hospital admission under s.22 of the Mental Health Act 2007, a letter from a cardiologist and his visa application, found the applicant had provided false or misleading information and his visa was refused.  Essentially, documents relating to the applicant include, variously, that he is not married, has never been married, has been married, is divorced, has a child who was [age] years of age in 2018, that the mother and child are residing in Vietnam, and that his marital status is unknown. 

16. It is noted in the delegate’s decision that in the Form 47CH lodged with the visa application, the applicant:

    ·Declared at q.14 that he had never been married or in a de facto relationship

    ·Answered ‘no’ to the question ‘Does the applicant have any members of the family unit’, and provided no details in the next section of a [age] year old child.

17. Evidence provided, both at the time of application and this decision, satisfies the Tribunal that the applicant was, in January 2018, medically diagnosed with schizophrenia.    

18. The applicant has now provided the Tribunal with additional documents, including a letter, dated 21 May 2021, from [Dr B] (FRANZCP) Psychiatrist, which provides an ‘update’ on the applicant’s ‘mental illness’, and includes the following information:

    a. The applicant’s first contact with mental health services was in January 2018, when he was taken to hospital by police under s.22 of the Mental Health Act 2007, due to an ‘episode of aggression and bizarre behaviour and making violent threats to the police and members of community’.

    b.   At the hospital ‘he had been disorganized in behaviour, thought disordered with bizarre persecutory and grandiose delusions’.

    c.   The applicant also ‘made statements that he is married but separated and has a [age] year old son who returned to Vietnam’.

    d.   Then later in the assessment ‘it had been made clear that these statements were not true and were made in the context of acute psychosis with delusional beliefs’

    e.   Since the January 2018 episode, the applicant has ‘sustained a diagnosis of schizophrenia.

    f.    He was case managed by [a specified] Mental Health Service until February 2021 and was then discharged to his family doctor, [Dr C], for continuation of care.

    g.   The applicant needs ‘long term treatment’.

    h.   [Dr B] had ‘brief contact’ with the applicant on 14 May 2021 and reports that he ‘is currently reasonably stable in remission, that he ‘did not have significant positive psychotic symptoms, but that he ‘had shown mild residual psychotic symptoms mostly auditory hallucinations and delusions of reference which were of fluctuating intensity’.

19. The doctor’s qualifications and credentials are not in dispute and the Tribunal is satisfied that the information contained in the report can be taken as credible.  For that reason, and given that the applicant has been managed at [a specified] Health Service by [Dr B] for around three years and is now under the care of his family doctor, the Tribunal relies on the information in the report relating to the applicant’s marital status and reasons given by [Dr B] why the applicant’s statements should not be believed.

20. In the visa application lodged on 24 May 2017, the applicant declared himself never to have been married and not to have any dependent members of his family unit.  The Tribunal is satisfied, relying on the evidence provided from [Dr B], that any information provided by the applicant around the time he was diagnosed with schizophrenia, from January 2018, ‘were made in the context of acute psychosis with delusional beliefs’.  It is acknowledged that the applicant has also provided letters from [Dr D], dated 13 August 2019, and [Dr E], dated 2 February 2019, which include information consistent with the facts and opinions provided by [Dr B].  The applicant has also provided the Tribunal with single status certificates from Victoria and Vietnam, dated 2019.  The applicant also provided a letter from [Dr F], Renal and General Physician, dated 8 May 2021, of [a specified] Renal Services who includes a ‘problem list’, declaring the applicant to suffer from a number of medical conditions (listed) and health problems, together with a full list of his medications, including the medications specified in [Dr B]’s letter.

21. On the basis of [Dr B]’s opinion that any statements the applicant made around the time of his diagnosis of schizophrenia in January 2018, relating to a marriage or a child, were made in the ‘context of acute psychosis and delusional beliefs’, the Tribunal considers any statements made by the applicant relating to either matter at that time to be wholly unreliable.

22. The Tribunal has considered whether the applicant has given, or caused to be given, to the Minister, an officer, the Tribunal, a relevant assessing authority or a Medical Officer of the Commonwealth ‘information that is false or misleading in a material particular’ (cl.802.214), as defined in PIC 4020(5), in relation to the visa application.

23. Having carefully considered evidence material to the issue under review, the Tribunal is satisfied that the applicant meets PIC 4020(1) for the purpose of cl.802.214 of Schedule 2 to the Regulations relating to the visa that is the subject of this review.

    DECISION

24. The Tribunal remits the application for a Child (Residence) (Class BT) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 802 (Child) visa:

    ·Public Interest Criterion 4020(1) for the purposes of cl 802.214 of Schedule 2 to the Regulations

    Jennifer Cripps Watts
    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.

    …