1913444 (Migration)

[2020] AATA 720

1913444 (Migration) [2020] AATA 720 (18 February 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1913444

MEMBER:Rosa Gagliardi

DATE:18 February 2020

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the applications for Other Family (Migrant) (Class BO) visas for reconsideration, with the direction that the first named applicant meets the following criteria for Subclass 116 (Carer) visas:

·Public Interest Criterion 4020 for the purposes of cl.116.223 of Schedule 2 to the Regulations.

Statement made on 18 February 2020 at 4:37pm

CATCHWORDS
MIGRATION – Other Family (Migrant) (Class BO) visa – Subclass 116 (Carer) – false or misleading information in visa application – bogus document – names, dates of birth and citizenship – DNA testing – some of the children may be half-siblings – compelling or compassionate reasons for waiving the criterion – review applicant’s serious medical condition requiring constant care – sister currently caring for him unable to continue due to health – decision under review remitted

LEGISLATION

Migration Act 1958 (Cth), ss 5(1), 65

Migration Regulations 1994 (Cth), r 1.15AA(1)(c), Schedule 2, cls 116.223, 116.311, Schedule 4, Criterion 4020

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

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 13 May 2019 to refuse to grant the applicants Other Family (Migrant) (Class BO) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 11 June 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.116.223 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because it was considered that the applicants had provided false and misleading information in their application about their nationality and he/she was not convinced that there were compelling reasons for waiving the Public Interest Criteria (PIC) 4020.

3. The review applicant was represented in relation to the review by his registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. The issue in this review is whether the visa applicant meets Public Interest Criterion 4020 (PIC 4020) as required by cl.116.223 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).

6. 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?

7. 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.

8. 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.

9. 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.

10. The sponsor is a [age] year old single male who the Tribunal understands was born in [Country 1], even though in his Protection visa application he claimed to be from [Country 2]. 

11. At time of lodgement on 11 June 2011, the first-named visa applicant declared herself to be [Ms A] (born in [Year]) and declared her family members to be:

    ·Husband – [Mr B] (date of birth unknown)

    ·Son – [Mr C] ([Year])

    ·Daughter – [Ms D] ([Year])

    ·Son – [Mr E] ([Year])

    ·Daughter – [Ms F] ([Year])

    ·Son – [Mr G] ([Date])

    ·Daughter – [Ms H] ([Date])

    ·Daughter – [Ms I] ([Year] – deceased)

12. The first-named visa applicant (the applicant) declared that all her family members were born in [Country 2] and were currently residing in [Country 1] as refugees.  As evidence to support her application, she provided National identity cards of [Country 2] for herself and her children, [Ms D] and [Mr C], declaring them to be [Country 2] citizens.

13. On 9 September 2011 the applicant provided a hand-drawn family tree in which she declared her husband, [Mr B] to be deceased.  She provided a Form 80 for her son, [Mr C] on 18 December 2014, and on 19 December she submitted an updated Form 80 from [Mr C] in which he amended the country of birth for his sister, [Ms D], from [Country 2] to [Country 1].

14. On 9 July 2015, 3 new [ID] were provided, including one for [Mr C] stating that the 3 applicants were [Country 2] nationals born in [Country 2].

15. On 27 September 2016 the application was refused on the basis that the case officer was not satisfied that the primary applicant, [Ms A], was able to provide the required assistance to the Australian resident and sponsor, Mr [G]. 

16. On 21 January 2019 the application was remitted by the Tribunal with the direction that the applicant meets clause 116.221.  A statutory declaration was provided by Mr [B] (the applicant’s husband) dated 18 August 2012 which explained his history and why he was applying for a protection visa in Australia.

17. Evidence also demonstrated that Mr [B] was granted a protection visa in Australia on 18 August 2012 and is a permanent resident in Australia.  In a letter from [Health service provider], dated [November] 2014 it is claimed that Mr [B] has been living with the sponsor and his sister (the current carer for the sponsor), but was declared as their uncle instead of their father.  It was submitted at the AAT hearing that the applicants had provided false and misleading information regarding their identities when lodging their application and wished to now provide their true identities.

18. The review applicant, [Mr G], ([Date]) has stated that his true name is [Mr G’s alias] ([Date]).  His sister was in fact [Ms H’s alias] (current carer for sponsor).  His adoptive sister [Ms F] was the widowed younger sister of his mother.  His father, [Mr B], who was previously declared as deceased, was in fact living with him in Australia.  In his statutory declaration dated 30 November 2017, the sponsor wrote, “Also, I must make one important correction.  In our Carer visa application, each member of the family is recorded as being an [Country 2] national.  This is not correct.  With the exception of my father, who was born in [Country 2], the rest of us were born in [Country 1].  We all [Ethnicity] by ethnicity and [Religion] by faith”.  It has also been argued that when the sponsor’s father fled [Country 2] in his early teens, he was naturalised and became a [Country 1] citizen and thus consequently his children were [Country 1] citizens also. 

19. The review applicant explained the provision of false and misleading information by stating that he was advised by the person who arranged his travel to Australia from [Country 3], to tell the authorities that he was from [Country 2] and to make himself older.  At that stage the applicant was travelling with his sister [Ms H’s alias] who was at that stage his carer as the sponsor had had a fall in [Country 3] which meant he had become a paraplegic and was in a wheelchair.  The sponsor wrote in his statutory declaration of 30 November 2017:

    [H]e told me in very clear terms, that I must pretend to be older, and my sister younger, and we should say that we were [Country 2], not [Country 1] citizens, or else our claims would fail and it would all have been for nothing.  I told him that I knew nothing of [Country 2], and that all I knew was that we were from [Province].  He told me I must say that.  He was very firm in his instructions, and we were entirely in his hands.  We both felt compelled to say what he had told us to say.

20. The migration agent also submitted to the Tribunal previously that “the review and visa applicants admit to relying upon false identities in the visa application.  While their relationships are as claimed before the delegate – that is, the primary applicant is the review applicant’s mother, and the secondary applicants are his younger siblings – their names and national identities are not as originally claimed”. 

21. It is submitted that the correct details have now been provided for the applicants:

    ·[Ms A] ([Year) [Country 2] citizen – [Ms A] ([Date]) – [Country 1] citizen

    ·[Ms D] ([Date]) – [Ms D] ([Date]) – [Country 1] citizen

    ·[Mr C] ([Date]) [Country 2] citizen – [Mr C] ([Date]) – [Country 1] citizen

22. As evidence of their true identities the applicant provided ID cards for [Ms D] and [Mr E].  A local certificate confirming the family of [Mr B], listing his 5 children, and [Country 1] passports for [Ms A], [Ms D] and [Mr E] were also submitted. 

23. The Tribunal considered it important that the first-named visa applicant ([Ms A]) demonstrate, through DNA testing, that all the children she claimed were hers, were her biological children.  The Tribunal considered that it was important to establish the first-named visa applicant’s credibility, and to establish whether the second version of events/identities provided to the Tribunal are consistent with that revised narrative. 

24. The results of the testing are problematic.  In the first instance, the Tribunal notes that the second named visa applicant, [Mr C] did not present for testing and no explanation has been provided to explain why this is the case.  This is of concern and it is open to the Tribunal to infer from this that the identity of [Mr C] is questionable.  This again goes to the credibility of the first-named visa applicant. 

25. The results only demonstrate with some certainty that [Ms D] is the biological child of the first-named visa applicant.  It also appears that there was support for the proposition that [Mr G] and [Ms D] are full biological siblings.  And while [Ms A] is the known biological mother of [Mr G] (review applicant), [Mr E] and [Ms D], DNA testing demonstrated that it is unlikely that [Mr E] and [Ms D] are related as biological full siblings and that there is moderately strong support for the proposition that [Mr E] and [Ms D] are related as biological half siblings only.

26. In a submission dated 13 February 2020 the migration agent has written, among other things:

    …we note that the applicants resolutely maintain their full biological relationship with one another.  They were raised as full biological siblings and have never known otherwise.  In sofaras (sic) as the Sibship Analysis suggested that [Mr G] and [Ms D], and [Mr E] and [Ms D] may be half-siblings, the applicants assume there was contamination of the swab provided by their sister in [Country 1] which delivered to Australia.  As the Tribunal would appreciate, given the death of the father of the family, the mother is aggrieved at having to discuss the possibility that [Ms D] may not have been the biological child of her husband…

27. The Tribunal does not accept this explanation in terms of contamination because such analyses are conducted under strict guidelines and it is difficult to see how from Australia, it can be conjected that there was contamination of the swabs in [Country 1].  In light of the significant misrepresentations to the Department, the Tribunal finds that there is a possibility that the father of some of the children at least, is unknown. 

28. In any event it has been claimed that [Mr E] will not be migrating to Australia.  It is [Mr C] who is a secondary applicant and the Tribunal does not have any DNA data for him to determine whether (i) he is the biological son of [Ms A]; and (ii) whether he is the sibling of [Ms D].  Questions continue to remain about the identity of [Mr C]. 

29. In any event, and as pointed out by the migration agent, the secondary applicants will need to meet the criterion at cl.116.311 which requires:

    The applicant is a member of the family unit of, and made a combined application with, a person who satisfies the primary criteria in Subdivision 116.21. 

30. In light of the information before it, the Tribunal is satisfied that the first-named applicant has given or caused to be given to the Minister false and misleading information in relation to their nationality and composition of her family.

31. Therefore, the applicant does not meet PIC 4020(1).

    Should the requirements of PIC 4020(1) or (2) be waived?

32. The requirements of PIC 4020(1) and (2) 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.

33. 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.

34. Notwithstanding the extent of the misleading information provided for members of this family, the Tribunal considers that there are extenuating circumstances to warrant waiving the requirements.  Essentially, there are compassionate and compelling circumstances that affect the interests of two Australian citizens; the review applicant ([Mr G]) and his current carer, his sister, who is unable to continue in this role.

35. The review applicant is a [age] year old single male who the Tribunal understands was born in [Country 1], even though in his Protection visa application he claimed to be from [Country 2].

36. The review applicant has claimed, and the Tribunal accepts it is the case, that his sister,
    Ms [H], [age] years of age, has been his sole carer in Australia since the review applicant arrived in Australia in 2009.

37. The impairment rating required for a Carer visa under r.1.15AA(1)(c) must be equal to or exceed the impairment rating specified by the relevant legislative instrument (that is, a rating of 30).  To put into perspective the severity of the review applicant’s situation, he has a rating of 80. 

38. The review applicant’s condition is set out in detail in various medical reports tendered to the Tribunal.  Essentially he has an [injury] and [psychological] issues, sustained in [Country 3] on his way to Australia on a boat with his sister, Ms [H], whose name the Tribunal understands is actually [Ms H’s alias].  The Tribunal has sighted a general practitioner’s report, dated [July] 2018, indicating that the review applicant was in a wheelchair and had lost [Body part 1] function.  He was suffering [various medical conditions]. 

39. During his rehabilitation he was assessed by the Psychiatry Consultation Liaison Team and it was determined that the review applicant “presented with some depressive symptoms and associated post traumatic stress disorder symptoms…He also complained of frustration with his slow progress of his physical illness, his grief over his loss of [independence] …”. 

40. A detailed and more recent psychological report has been submitted to the Tribunal, dated 28 May 2018 stating:

    [Mr G] and his sister, [Ms H], arrived in Australia as refugees on boat.  On their way to Australia [Mr G] had a very serious accident in [Country 3] where he fell in [a location] that caused him [injury].  He had two surgeries [in] [Country 3].  [Mr G] has his third surgery in Perth and stayed there for six months and decided to move to Melbourne.

    [His] disability bars him to do any physical movements without a wheel chair or walking frame.  He has no control on his [Body part 1].  He has very high needs for care and hygiene.  His wound has not still healed; he needs occasional dressing and ongoing wound management.

    [Mr G] had been through multiple medical complications and safety related [accidents].  He is on high potency medication and no independent movement so medication side effects and deficiency of exercise is continuously damaging his body functioning.

    [Mr G] is on high potency pain medication for his [wound] and other physiological pains resulting from above mentioned health issues.  He is also prescribed with Zoloft for his Depression and sleep disorders.  [Mr G] had been very frustrated and agitated and had many out bursts where he may smash anything in his hands as once he smashed a TV screen. 

    [Ms H] takes care of his food, hygiene, physical support and medical needs.  [Ms H] is also experiencing severe back pain for a while.  She is taking medication to manage her pain under the management of a specialist.  Her back pain is a consequence of lifting [Mr G] for his routine care procedures.  [Ms H] is holding (off) on her plans to get married because she is waiting for the grant of her mother’s visa so that she could come and take care of him and she could start her life afterwards.

    [Mr G] and [Ms H] are quite depressed and have lost their hope for a good life.  [Mr G] presented with the symptoms of depression and feels very helpless and worthless.  He considers himself as a burden on his sister.  He has repeatedly expressed his wishes of dying as he said that there is nothing for him in this world.  According to [Mr G] there are only two reasons for him to keep living; one is [Ms H] who he cannot leave alone by herself and the other is his faith; which does not allow him to take his own life.
    ….
    [Mr G] and [Ms H] need the support and care of their family.  [Mr G] applied for visas for his mother and siblings in 2011 but unfortunately it was refused.  [Mr G]’s health and mobility had been baring him to actively follow up his application.  He told me that he took this matter further to the AAT with a hope of considerate processing of his case.
    …
    [Mr G]’s mental functioning is deteriorating very rapidly.  His psychological state is also affected by his severe disability, worrying for his sister and waiting for his family for last seven years.  His depression, stress and anxiety were interfering with his treatment outcomes.  This hopelessness is very detrimental for his overall psychological functioning…

1. The review applicant has submitted a letter from [local] City Council, dated 6 March 2018, to the review applicant’s migration agent, stating, “you advise your client has a physical [disability], requires a wheelchair for mobility and has multiple health conditions including post-traumatic stress disorder.  Unfortunately Community Care is only able to provide a basic level of support and are therefore unlikely to be able to provide the substantial amount of care you state Mr [G] requires”. 

2. Reports have also been provided as relates to the circumstances of the review applicant’s carer, Ms [H], including a psychologist’s report dated 19 November 2011 in which it was reported:

   Due to [Mr G]’s high care needs, [Ms H] cannot continue her study or skills training in order to get employment in the future.  She is stuck at home and has no life of her own.  She is getting depressed and is highly frustrated with her monotonous life for a few years now.  I would often have a quick chat when she brings in [Mr G] to his appointments.  For about one year [Mr G] has been often reporting mood swings for himself and [Ms H], which would end up in arguments and anger outbursts.  Generally [Ms H] presents as a very soft and calm person but she is getting to the point that it is becoming extremely difficult for her to cope with her painfully isolated life where she has no social support.

3. A later report from Disability Services dated [January] 2015 states:

   [Ms H] has cared for [Mr G] for six years since their arrival in Australia.  With no support or assistance in the home, [Ms H] has now injured her lower back (disc prolapse) and suffers from chronic knee pain.  [Ms H] is struggling to care for [Mr G] and is in desperate need and support from their mother and sister, both mentally and physically.  If their mother and sister were to be granted visas to live in Australia it would give [Ms H] the opportunity to pursue her student (sic) and to work to support [Mr G] and her family, which is what she wants to do.

4. Other medical evidence discusses the review applicant having falls [and] injuring his back and hips, with multiple bruising, further exacerbating his initial injuries.

5. It is argued that were [Ms H]’s health to fail further and the review applicant left without a carer, the only option would be for him to enter an aged care facility which would be inappropriate and cause further distress to the review applicant – a matter the Tribunal also accepts.

6. Having considered the evidence individually and holistically, the Tribunal is satisfied that there are two Australian citizens whose circumstances can be classified as compassionate and compelling; that is those of the review applicant and his sister who is struggling to cope with the care of her brother.  Therefore the requirements of PIC 4020(1) should be waived.

7. The Tribunal notes that significant submissions have been made in relation to the concerns held for the visa applicants overseas as [Ethnicity] living in [Country 1].  The Tribunal appreciates that their living circumstances are precarious but the regulations only require the Tribunal to consider whether there are compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident, or an eligible New Zealand citizen to engage the waiver.

   Has the applicant satisfied the identity requirements?

8. PIC 4020(2A) requires an applicant satisfy the Tribunal as to his or her identity.  The Tribunal does not have any concerns about the identity of the first named visa applicant and therefore she meets PIC 4020(2A).  This is also the case for the third named visa applicant, [Ms D].

   Has a visa previously been refused on the basis of a failure to satisfy PIC 4020(2A)?

9. PIC 4020(2B) requires that neither the applicant nor any family unit member have been refused a visa because of a failure to satisfy the identity requirements in PIC 4020(2A) during the period starting 10 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(2BA).

10. The Tribunal understands there have never been any issues about the first-named visa applicant’s identity or her daughter, [Ms D]’s, identity.  Nonetheless, the identity of [Mr C] purportedly born in [Year], is questionable, although he has not been refused a visa on this basis alone.  Further, if the Tribunal is to accept that he was born in [Year], as [Mr C] was only [age] at the time of application in 2011, this requirement does not apply to him. 

11. It should be noted, however, that the Tribunal is not making any positive finding about the relationship of [Mr C] to [Ms A], the first-named visa applicant and is not making a finding in respect of whether he is dependent, as defined, on the first-named visa applicant.

12. Therefore PIC 4020(2B) is met and does not apply in respect of the secondary applicants.

    Conclusion

13. On the basis of the above, the applicant does satisfy PIC 4020 for the purposes of cl.116.223.

    DECISION

14. The Tribunal remits the applications for Other Family (Migrant) (Class BO) visas for reconsideration, with the direction that the first named applicant meets the following criteria for Subclass 116 (Carer) visas:

    ·Public Interest Criterion 4020 for the purposes of cl.116.223 of Schedule 2 to the Regulations.

    Rosa Gagliardi
    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. 

    …