1903023 (Migration)

This matter concerned three applications for Child (Migrant) (Class AH) visas, Subclass 117 (Orphan Relative), which were refused by a delegate of the Department. The applicants, who were brothers, had provided Afghan National Identity Documents (taskiras) in support of their applications. The delegate found that these documents were bogus, as they did not correspond with records held by the Afghanistan Civil Central Registration Authority, and therefore the applicants did not satisfy Public Interest Criterion (PIC) 4020. While the delegate considered a waiver under PIC 4020(4), the circumstances presented were deemed insufficient to justify granting the visa. The review applicant argued that the documents were obtained through an agent and that they had no means of knowing they were fraudulent.

The primary legal issue before the Tribunal was whether the applicants satisfied PIC 4020, specifically concerning the provision of bogus documents. This criterion requires that an applicant has not provided a bogus document or false or misleading information in relation to their visa application or a previous visa held within the preceding 12 months. The Tribunal was also required to consider the definition of a "bogus document" and whether the applicants' lack of awareness of the documents' fraudulent nature was relevant. Furthermore, the Tribunal had to assess whether any compassionate or compelling circumstances existed to warrant a waiver of the PIC 4020 requirements.

The Tribunal reasoned that while the taskiras were indeed found to be bogus, the definition of a "bogus document" under section 5(1) of the Migration Act 1958 does not require the applicant to have been aware of the falsity. However, the Tribunal noted that the applicants had relied on these documents to obtain passports without issue, and that the documents were obtained through an agent, suggesting a lack of direct involvement in their creation or procurement. Crucially, the Tribunal found that the delegate had made no adverse findings regarding the applicants' identity. Given these considerations, and the fact that the applicants were under 18 at the time of application, the Tribunal concluded that the matter should be remitted for reconsideration.

The Tribunal remitted the applications for Child (Migrant) (Class AH) visas, Subclass 117 (Orphan Relative), for reconsideration. The direction was that the three applicants satisfied PIC 4020 for the purposes of clause 117.223 of Schedule 2 to the Regulations, and the Department was to proceed to consider the other criteria for the grant of the visas.