2113489 (Migration)

[2024] AATA 2298

2113489 (Migration) [2024] AATA 2298 (6 June 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:Ms Tania Irena Mykyta

CASE NUMBER:  2113489

MEMBER:Justine Clarke

DATE:6 June 2024

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the applications for Child (Migrant) (Class AH) visas for reconsideration, with the direction that the visa applicants meet the following criteria for a Subclass 117 (Orphan Relative) visa:

· cl 117.211 of Schedule 2 to the Regulations;

· cl 117.221 of Schedule 2 to the Regulations; and

With respect to the first, second and third-listed visa applicants, there is a further direction that they each meet:

· Public Interest Criterion 4020 for the purposes of cl 117.223 of Schedule 2 to the Regulations.

Statement made on 06 June 2024 at 4:53pm

CATCHWORDS

MIGRATION – Child (Migrant) (Class AH) visa – Subclass 117 (Orphan Relative) – orphan relative of an Australian relative – age requirement – birth certificates in Somalia – whether parents were deceased – bogus document – counterfeit school records – compelling and compassionate circumstances – decision under review remitted

LEGISLATION

Migration Act 1958, ss 5(1), 65, 359
Migration Regulations 1994, Schedule 2, cls 117.111, 117.211, 117.221, 117.223; Schedule 4, Public Interest Criterion 4020; rr 1.03, 1.14

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 a combined application for review of four separate decisions made on 29 July 2021 by a delegate of the Minister for Home Affairs to refuse to grant each of the visa applicants Child (Migrant) (Class AH) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. At the time of this decision, the review applicant, [named] is [an age]-year-old Australian citizen.[1] It is claimed that she is related to each of the visa applicants.

   [1] At the Tribunal hearing, the review applicant gave credible oral evidence that she is an Australian citizen. The Tribunal accepts this evidence.

3. On 3 July 2017,[2] the visa applicants—[Visa Applicant A], [Visa Applicant B], [Visa Applicant C] and [Visa Applicant D]—applied for Child (Migrant) (Class AH) visas. The review applicant is the sponsor for each visa applicant.

   [2] This is the date of application for the visas given in each of the delegate’s refusal decisions.

4. At the time of application for the visas, Class AH contained three subclasses: Subclass 101 (Child), Subclass 102 (Adoption) and Subclass 117 (Orphan Relative). In this case, claims have been made in respect of the Subclass 117 visa.

5. The criteria for a Subclass 117 visa are set out in Part 117 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). Relevantly to this case, they include cl 117.211 which is a time of application criterion, and cl 117.221 and cl 117.223, which are time of decision criteria.

6. Clause 117.211(a) provides that, at the time of application, the visa applicant is an orphan relative of an Australian relative of the visa applicant. The visa applicant must continue to satisfy that criterion at the time of decision, or not do so only because he or she has turned 18: cl 117.221.

7. ‘Orphan relative’ is defined in reg 1.14 of the Regulations, which is extracted in the attachment to these reasons. An ‘Australian relative’ is a relative of the visa applicant who is an Australian citizen, an Australian permanent resident, or an eligible New Zealand citizen: cl 117.111. A ‘relative’ means a grandparent, grandchild, aunt, uncle, niece, nephew or a close relative, and a close relative means a spouse or de facto partner, child, parent, brother or sister (step-relationships are also included): reg 1.03. It is claimed that the review applicant is the relevant Australian relative.

8. To be an orphan relative for the purpose of the definition in reg 1.14, the person must not have turned 18 years of age (paragraph (a)(i)); must not have a spouse or de facto partner (paragraph (a)(ii)); and must be a ‘relative’ of that other person (paragraph (a)(iii)). Further, it must also be that the person cannot be cared for by either parent because each parent is dead, permanently incapacitated or of unknown whereabouts (paragraph (b)). Finally, there is no compelling reason to believe that the grant of a visa would not be in the best interests of the applicant (paragraph (c)).

9. The text of cl 117.223 is extracted in each of the delegate’s decisions made on 29 July 2021.

10. The review applicant provided the Tribunal with copies of the four decision records, that is, where each visa applicant was the sole applicant.

11. In the cases in respect of [Visa Applicant A], [Visa Applicant B] and [Visa Applicant C], the same delegate refused to grant each visa applicant the visa on the basis that they did not satisfy the requirements of cl 117.211, cl 117.221 and cl 117.223. In [Visa Applicant D’s] case, the delegate refused to grant him the visa because the delegate found that he did not meet the requirements of cl 117.211 and cl 117.221. That is, in [Visa Applicant D’s] case, the delegate did not make a finding about cl 117.223.

12. In each case, the delegate found that the respective visa applicant did not meet the time of application requirement in cl 117.211 and the time of decision requirement in cl 117.221 because they were not an orphan relative (as defined) at those times. Specifically, the delegate was not satisfied that [Visa Applicant A], [Visa Applicant B] and [Visa Applicant C] met the age requirement in reg 1.14(a)(i); that [Visa Applicant A], [Visa Applicant B], [Visa Applicant C] and [Visa Applicant D] were related to the review applicant as required by reg 1.14(a)(iii) and that, in all cases, their parents were dead as required by reg 14.14(b).

13. With respect to cl 117.223, the delegate made their findings because they were not satisfied that [Visa Applicant A], [Visa Applicant B] and [Visa Applicant C] met Public Interest Criterion (PIC) 4020. PIC 4020 is extracted in the attachment to this decision. Specifically, the delegate found that [Visa Applicant A], [Visa Applicant B] and [Visa Applicant C] each did not meet PIC 4020(1) because, in support of each application for the visa, each of them had submitted a school record which the delegate found to be counterfeit and thus a bogus document. Accordingly, in each of these three cases, the delegate found that the respective visa applicant did not satisfy PIC 4020(1)(a).

14. The delegate also considered, in [Visa Applicant A], [Visa Applicant B] and [Visa Applicant C’s] cases, whether the requirements of PIC 4020(1) should be waived in accordance with PIC 4020(4). However, in each case, the delegate was not satisfied that there were compelling circumstances that affect the interests of Australia or compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen that justified the grant of the visa.

15. The delegate concluded each primary decision by noting that the application for the visa is also a valid application for a Subclass 101 (Child) visa and for a Subclass 102 (Adoption) visa. However, in each case, the delegate found that the respective visa applicant did not meet cl 101.211(1)(c)(i) or (ii) and did not meet cl 102.211(1) and so refused the applications on that basis also.

16. Subsequent to the receipt of the four visa refusal decisions, the review applicant applied to the Tribunal for a combined review. The review applicant was represented in relation to the review.

17. On 16 February 2024, the Tribunal invited the review applicant to an in-person hearing on 21 March 2024.

18. Late in the day on 20 March 2024, the representative submitted written submissions and further evidence in support of the review.

19. In view of the late receipt of this material, on 21 March 2024, the presiding Member cancelled the hearing scheduled for 22 March. The Tribunal contacted the representative and sent correspondence to the review applicant about this.  

20. On 22 May 2024, the review applicant appeared in person before the Tribunal to give evidence and present arguments. The Tribunal also received oral evidence, in person, from [Leader A] (part of the extended family and a community leader). The Tribunal hearing was conducted with the assistance of an interpreter in the Somali and English languages. The interpreter attended in person. The representative also attended in person.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

22. In assessing and deciding the various issues, the Tribunal has had regard to all documents on the Department’s files and the Tribunal’s file as well as the oral evidence given at the hearing. The Tribunal notes that it has a greater amount of evidence in respect of the issues for determination than what had been before the delegate. For example, in this review, the review applicant submitted a document titled ‘statement of facts, issues and contentions’; a statutory declaration made by [Leader A] on 15 March 2024; a family tree and a timeline of events.

    The non-disclosure certificate said to have been made pursuant to s 376 of the Act

23. The Tribunal’s file relevantly contains a non-disclosure certificate said to be made pursuant to s 376 of the Act. This certificate, which is dated 25 May 2022, relevantly states:

    Public Interest folios

    I notify the Administrative Appeals Tribunal that s 376 applies to the documents(s)/information listed below and certify that disclosure of this material would be contrary to the public interest because it would disclose lawful methods for preventing, detecting and investigating breaches or evasions of the law which would or be likely to prejudice the effectiveness of those methods:

    ·Department Digital file [number] – [Visa Applicant A]:

    o[9006611] [number] folios 34 to 41

    o[9006613] [number] folios 112 to 135

    ·Department Digital file [number] – [Visa Applicant B]:

    o[9006618] [number] folios 36 to 38

    o[9006618] [number] folios 40 to 43

    o[9006619] [number] folios 111 to 135

    ·Department Digital file [number] – [Visa Applicant C]:

    o[9006641] [number] folio 35

    o[9006642] [number] folios 38 to 42

    o[9006643] [number] folios 108 to 128

    ·Department Digital file [number] – [Visa Applicant D]:

    o[9006647] [number] folios 34 to 36

    o[9006648] [number] folios 41 to 42

    o[9006649] [number] folios 106 to 131.

24. With respect to this certificate, the Tribunal should:

    ·assess the validity of the certificate;

    ·accord procedural fairness, including disclosing the existence of the certificate to the review applicant, providing her with a copy of the certificate and affording her with an opportunity to make submissions about the validity or otherwise of the certificate because if the Tribunal determines that the certificate is not valid, it may disclose the documents or information to the applicant;

    ·if the Tribunal considers the certificate to be validly made, afford the applicant an opportunity to seek a favourable exercise of the discretion in s 376(3)(b), that is, the Tribunal’s discretion to disclose, to the review applicant, the information subject to the s 376 certificate; and

    ·comply with the procedural code, including complying with s 359A or s 359AA, that is, giving the review applicant clear particulars of information that is adverse to the case and inviting her to comment on or respond to the information.

25. Due to an oversight, the presiding Member failed to give the review applicant a copy of the certificate at the hearing and to discuss it with her. The Tribunal records here that the certificate exists, that the Tribunal considers it to be valid and that the Tribunal does not consider the information the subject of the certificate to raise obligations for the Tribunal pursuant to s 359A or s 359AA.

    Consideration of cl 117.211 and cl 117.221

26. The first issue for determination is whether, at the time that the applications were made for the visas on 3 July 2017, [Visa Applicant A], [Visa Applicant B], [Visa Applicant C] and [Visa Applicant D] each met cl 117.211 and at the time of this decision they each meet cl 117.221 as well.

27. In the document titled ‘statement of facts, issues and contentions’, that was filed in this review, it was noted that:

    [The review applicant] provided three statements in support of her sponsorship of the orphan relative visa applications for [Visa Applicant A], [Visa Applicant C], [Visa Applicant B] and [Visa Applicant D]. Her statements are:

    ·     Statement made on 27 June 2017. This statement was not a statutory declaration.

    ·     Statutory declaration made on 12 September 2019.

    ·     Statutory declaration made on 26 February 2021.

28. The Tribunal has reviewed these documents and refers to them further below.

    Are [Visa Applicant A], [Visa Applicant B], [Visa Applicant C] and [Visa Applicant D] each an orphan relative of an Australian relative?

29. For the reasons below, the Tribunal finds that:

    ·at the time of application on 3 July 2017, [Visa Applicant A], [Visa Applicant B], [Visa Applicant C] and [Visa Applicant D] were each an orphan relative of an Australian relative and thus met cl 117.211(a);

    ·at the time of this decision, [Visa Applicant D] is an orphan relative of an Australian relative and thus continues to satisfy the criterion in cl 117.211. Therefore, he meets cl 117.221(a); and

    ·at the time of this decision, [Visa Applicant A], [Visa Applicant B] and [Visa Applicant C] do not continue to satisfy the criterion in cl 117.221 only because they have turned 18. Thus, they each meet cl 117.221(b).

    Age – reg 1.14(a)(i)

30. Regulation 1.14(a)(i) requires that the visa applicant has not turned 18.

31. In the visa applications lodged by [Visa Applicant A], [Visa Applicant B], [Visa Applicant C] and [Visa Applicant D], they gave their dates of birth as being specific dates in the [specified years] respectively. The respective sponsorship forms gave consistent information as to the visa applicants’ dates of birth. The review applicant reiterated that the visa applicants were born in these years in her signed statement of 27 June 2017.[3]

    [3] In this signed statement, [Visa Applicant B] was the only visa applicant for whom the review applicant gave the full date of birth.

32. Each visa applicant submitted to the Department copies of a number of documents to corroborate their claims that, at the time of application for the visas, they were under the age of 18 years.

33. Each of the visa applicants provided the Department with copies of the bio-pages of their Somali passports.

34. They also submitted school records confirming each visa applicant’s attendance at the [School 1] in [Country 1].

35. The first of these records consist of three ‘to whom it may concern’ letters, dated [in] June 2017, signed by [Teacher A], the ‘Head teacher,’ and stamped and said to be from the school in respect of [Visa Applicant A], [Visa Applicant B] and [Visa Applicant C]. The record for [Visa Applicant A] stated that she was a pupil in ‘[grade]’ at the time; the record for [Visa Applicant B] stated that she was a pupil in ‘[grade]’ at the time and the record for [Visa Applicant C] stated that he was a pupil in ‘[grade]’ at the time. In each case, the letter stated that the respective visa applicant had been at the school for two terms. These documents are the documents which the delegate found to be bogus documents.

36. On 2 July 2019, the Department sent a natural justice letter to [Visa Applicant A], [Visa Applicant B] and [Visa Applicant C] about the respective document being counterfeit and a bogus document and invited each visa applicant to respond in writing to the Department’s concerns. This issue is considered later in these reasons when the Tribunal discusses PIC 4020.

37. The Tribunal notes that, on 29 July 2019, when responding to the Department’s letters of 2 July 2019, the representative (on behalf of the applicants) sent updated school records for each visa applicant (including [Visa Applicant D]).

38. The Tribunal has reviewed these later school records. These records consist of four signed and stamped letters, dated [in] July 2019, from [Principal A], Principal of the [School 1] in [Country 1] to the Australian High Commission in Nairobi, Kenya concerning each visa applicant and stating that, in each case, they had been ‘illegally admitted in 2017 by the Defunct School Management and Administration’ and that, at the time of [Principal A’s] letter, [Visa Applicant A], [Visa Applicant B] and [Visa Applicant C] were each studying in ‘[Grade] class’ at the school and that [Visa Applicant D] was studying in ‘[Grade] class’ at the school.

39. In the representative’s written submissions of 29 July 2019 it was submitted:

    there appears to have been a problem with the administration of this school. The children were enrolled in the school when it was undergoing problems with the administration and, perhaps in an effort to be helpful, documents were provided without following the correct procedures.

    This has now been clarified. The principal, [Principal A], has provided new letters of introduction confirming that the children are enrolled at the school and that they were at the school in 2017. The reference [in the new letters] to being ‘illegally admitted in 2017 by the Defunct School Management and Administration’ refers to the character and behaviour of the administration and is not a reflection of the character or behaviour of the children. 

40. The Tribunal notes that the Department did not seek to have the authenticity of any of these later school records verified.

41. At the hearing, the Tribunal asked the review applicant whether she had provided all the documents that she could from the visa applicants’ primary school. She replied that she had provided all the relevant documents from that school that were available to her.

42. In each of the delegate’s refusal decisions for [Visa Applicant A], [Visa Applicant B] and [Visa Applicant C], the delegate stated:

    The applicant has not provided [their] birth documents to support [their] claimed age. The school document presented to support [their] claimed age was found to be counterfeit. The passport and refugee documents presented were not issued at time of birth and I cannot place much weight on these in assessing [their] claimed age. I find that there are insufficient documents presented to support that at the time this application was lodged on 03/07/2017, that the applicant was below 18 years of age. I am therefore not satisfied that the requirements of Regulation 1.14(a)(i) are met.

43. In the delegate’s decision for [Visa Applicant D], the delegate was silent as to whether or not the delegate was satisfied that [Visa Applicant D] met this requirement.

44. At the hearing, the review applicant gave oral evidence about the dates/years of birth of [Visa Applicant B], [Visa Applicant C] and [Visa Applicant D]. The Tribunal notes that this evidence accords with the previous evidence she has provided. The Tribunal found the review applicant to be credible and accepts her oral evidence as well as her previous evidence provided in written form.

45. The Tribunal did not ask the review applicant about [Visa Applicant A’s] date of birth or indeed any other questions about [Visa Applicant A] because, at that stage, the Tribunal understood that the review applicant was planning to withdraw [Visa Applicant A’s] application for the visa and/or the review application in respect of [Visa Applicant A]. The representative explained to the Tribunal that this was because, as communicated to the Tribunal earlier, [Visa Applicant A] had been raped and, subsequently, she had given birth to a child resulting from that rape. The representative continued by explaining that, about two months prior to the hearing, [Visa Applicant A] had left with her child and the family considered her to be missing. The representative explained that they were all very concerned about [Visa Applicant A’s] state of mind.

1. The Tribunal discussed with the review applicant the fact that no birth certificates had been submitted with respect to the visa applicants. The review applicant told the Tribunal that she did not have such documents. She noted that some of the visa applicants were her half-siblings, born from a different mother to her mother, so she did not have any documents pertaining to their birth. She said that, at the time that each visa applicant was born, she was unaware that they had been born. The Tribunal asked the review applicant whether she had submitted all the documents that she could pertaining to the visa applicants’ births. She replied that she had submitted what she had submitted. 

2. In this review, it was submitted (in the written submissions of 20 March 2024) that, at the time of application, the visa applicants had provided their passports as evidence of their age and that, in accordance with another Tribunal decision referred to in those submissions, the Tribunal should give weight to this evidence. Just prior to the conclusion of the hearing, the representative reiterated that the Tribunal should give weight to this evidence. She submitted that for nationals of Somalia, it is more common not to have a birth certificate than to have one. She submitted that this was for two reasons: first, because the Government had been unstable for such a long period and second, because it is not an ingrained habit in the Somali society to register births. She further submitted that when a Somali national seeks to obtain a passport, they are required to go through steps to verify their identity.

3. The review applicant told the Tribunal that she did not know about the process the visa applicants went through to obtain the Somali passports. She did say that she was aware that there was a Somali Embassy in [Country 1].

4. The Tribunal considers that there is no information or evidence before the Tribunal to suggest that each visa applicant’s date of birth is not what they claim it to be. To the contrary, the Tribunal considers that there is evidence—both the review applicant’s credible and consistent evidence and the visa applicants’ Somali passports—which suggest that each visa applicant’s date of birth is what they claim it to be.

5. Accordingly, the Tribunal finds that, at the time of application, reg 1.14(a)(i) was met by all visa applicants. At the time of this decision, [Visa Applicant D] is [under 18] years of age and so continues to meet reg 1.14(a)(i). However, [Visa Applicant A], [Visa Applicant B] and [Visa Applicant C] do not continue to meet reg 1.14(a)(i). The evidence is that, at the time of this decision, [Visa Applicant A] is [over 18] years of age, [Visa Applicant B] is [over 18] years of age and that [Visa Applicant C] is [over 18] years of age. 

   Spouse or de facto partner – reg 1.14(a)(ii)

6. Regulation 1.14(a)(ii) requires that the visa applicant does not have a spouse or de facto partner.

7. Each of the delegate’s decisions was silent as to whether or not the delegate was satisfied that the respective visa applicant met this requirement.

8. At the hearing, the Tribunal only asked questions about this requirement in respect of [Visa Applicant B], [Visa Applicant C] and [Visa Applicant D]. The review applicant gave credible oral evidence that at the time of application for the visas, none of these three visa applicants had been married or in a de facto relationship. When asked, she also gave oral evidence that, at the time of the hearing, none of these three visa applicants was married or in a de facto relationship. The Tribunal accepts this oral evidence.

9. There is no information or evidence before the Tribunal to suggest that any of the visa applicants—including [Visa Applicant A][4]—had a spouse or de facto partner at the time of application or that they have one at the time of this decision.

   [4] The Tribunal notes [Visa Applicant A’s] claim that she did not accept a proposal by a man known to her and that subsequently she was drugged and raped by him and became pregnant from the rape. See the translated statement on the Department’s file for [Visa Applicant A] and the photographs of an ultrasound. The Tribunal has no reason not to believe these claims and evidence. Indeed, the Tribunal takes the view that the representative’s oral submission at the hearing that [Visa Applicant A] had recently become missing, suggests that there is truth to the claim.

10. Accordingly, the Tribunal is satisfied that, in each of the four cases, reg 1.14(a)(ii) was met at the time of application and continues to be met at the time of decision.

    Relative – reg 1.14(a)(iii)

11. Regulation 1.14(a)(iii) requires the visa applicant to be a relative of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen, as defined in reg 1.03. ‘Australian permanent resident’ means a non-citizen who is usually resident in Australia and who holds a permanent visa.

12. It is claimed that the review applicant is the half-sibling to both [Visa Applicant A] and [Visa Applicant C] as [Father A] was the father for all three, but the review applicant had a different mother to [Visa Applicant A] and [Visa Applicant C]. In the review applicant’s signed statement of 27 June 2017, she stated that her father was [Father A], and her mother was [Wife A] and that together they had [number] children. She further stated that her father had had other wives and had had children with those other wives. With respect to [Visa Applicant A] and [Visa Applicant C], she explained: ‘[they] are the children of my father, [Father A], and his wife, [Wife B] (also referred to as [name variant])’.

13. It is claimed that the review applicant is the paternal aunt of [Visa Applicant B], with the review applicant’s half-brother [Relative A] being [Visa Applicant B’s] father. In the review applicant’s signed statement of 27 June 2017, she stated: ‘[Relative A] was my half-brother on my father’s side. He married [Relative B]. They had one child, [Visa Applicant B]. She is my niece’.

14. It is claimed that the review applicant is the maternal aunt of [Visa Applicant D], with the review applicant’s half-sister [Relative C] being [Visa Applicant D’s] mother. In the review applicant’s signed statement of 27 June 2017, she stated: ‘[Relative C] was my half-sister on my father’s side. She is married to [Relative D]. They had one child, [Visa Applicant D]. He is my nephew’.

15. The delegate did not accept that the review applicant was related to each of the visa applicants in the ways claimed. This was for three reasons.

16. First, because, when the review applicant migrated to Australia, she had not declared [Visa Applicant A] as her full or half sibling; [Visa Applicant B’s] claimed father as her half sibling; [Visa Applicant C] as her full or half sibling; or [Visa Applicant D’s] claimed mother as her half sibling.

17. Second, the delegate’s finding in each decision that:

    The inconsistencies in the statements, and timelines provided by the sponsor throughout this application in relation to how and when she found out about her siblings leads me to doubt the claims being made.

18. Third, ‘the absence of other testimonies and other official documentations including birth certificates’ to support the claimed relationships.

19. With respect to the first reason, in each respective decision, the delegate stated that a natural justice letter had been sent on 2 July 2019 in respect of this concern.[5] The delegate noted that, in her statutory declaration of 12 September 2019, the review applicant sought to explain the reasons why she had not included the visa applicants or their parents in her application form to migrate to Australia. However, the delegate appears not to have accepted this explanation, citing ‘[t]he inconsistencies in the statements, and timelines provided by the sponsor throughout this application’. Key amongst these was the fact that:

    Despite her initial claim that all her father’s children would spend time together,[6] the sponsor claims in a subsequent statutory declaration[7] that she in fact did not know did not meet or know of any of her ‘father’s other marriages’.   

    [5] In [Visa Applicant A's] case, [Visa Applicant B's] case and [Visa Applicant C's] case, this natural justice letter also dealt with the issue of the claimed bogus document (the first school record).

    [6] In the review applicant’s signed statement of 27 June 2017, at paragraph 4, she had stated, ‘[m]y mother and the other wives each had their own home but all of my father’s children would spend time together’. Note, this footnote has been added in these reasons for clarity. It is not in the delegate’s decision.

    [7] The review applicant’s statutory declaration of 12 September 2019 seeks, in part, to correct an inaccuracy in paragraph 4 of her signed statement of 27 June 2017. Note, this footnote has been added in these reasons for clarity. It is not in the delegate’s decision.

20. Accordingly, in each case, the delegate found that reg 1.14(a)(iii) was not met.

21. As noted earlier, the Tribunal is satisfied that the review applicant is an Australian citizen. Accordingly, in this review, the key issue for determination is whether the review applicant and the visa applicants are related as claimed.

22. At the hearing, the Tribunal only asked the review applicant questions about the requirement in reg 1.14(a)(iii) in respect of [Visa Applicant C], [Visa Applicant B] and [Visa Applicant D]. The review applicant answered in the affirmative to the Tribunal’s questions about whether:

    ·     she is the half-sibling to [Visa Applicant C] as [Father A] was father to both of them but she and [Visa Applicant C] have different mothers;

    ·     she is the paternal aunt of [Visa Applicant B], with the review applicant’s half-brother [Relative A variant] being [Visa Applicant B’s] father; and

    ·     she is the maternal aunt of [Visa Applicant D], with the review applicant’s half-sister [Relative C] being [Visa Applicant D’s] mother.

23. She told the Tribunal that, when she came to Australia, she had not known about the visa applicants.

24. The review applicant also gave oral evidence that she would be agreeable to DNA testing and noted that, when the matter was before the Department, she had not been asked to do this.

25. When the Tribunal asked the review applicant whether she had anything further to say in respect of this requirement, she replied that she had nothing further to add other than to say that she knew that ‘Somali men marry wherever they go and they have the right to marry four wives’.

26. The document titled ‘statement of facts, issues and contentions’, which was filed in this review, sought to address the delegate’s concerns. It was relevantly submitted that:

    In her second statement,[8] [the review applicant] provided clarification to the information provided in her first statement about spending time with ‘all of her father’s children’ when she lived in Somalia.

    The lack of clarity that might cause confusion in [the review applicant’s] statements is due to the fact that the person writing the statements (Tania Mykyta) was relying on information provided by [the review applicant] in Somali and then translated into English. Prior to signing the document, the statement was read over to [the review applicant] in Somali. Nevertheless, nuances of language and meaning can be lost in the process of translation and with the pressure of time to complete documents.

    [The review applicant] states that she was separated from her father in 1995 when the family was attacked. During this attack, [the review applicant] was raped and her father was so badly beaten that [the review applicant] did not know if he survived the attack.

    [The review applicant] fled with her mother and siblings to a refugee camp following this attack and did not see her father alive again.

    In 2002 or 2003, [the review applicant] applied to migrate to Australia.

    The primary visa applicants were born in [specified years around this time]. [Visa Applicant D] was not born at the time that [the review applicant] migrated to Australia.

    [The review applicant] has stated that she did not know of the other primary visa applicants when she migrated. She could not have included their details in her application as she did not know of their existence.

    [The review applicant] also stated in her statement made on 12 September 2019 that her former husband completed her application for her and that his subsequent abusive behaviour towards her when she arrived in Australia suggests that he did not demonstrate a great deal of care or attention to the process.

    [The review applicant] relied on her former husband to complete her forms for her because she did not, at that time, speak, read or write any English.

    Somali culture is based on oral traditions. People rely on word of mouth to determine who is part of their family. This is a reliable means of transmitting information. It is based on this oral tradition and community networks that [the review applicant] is satisfied that [Visa Applicant A], [Visa Applicant C], [Visa Applicant B] and [Visa Applicant D] are related to her.  

    [8] That is, the review applicant’s statutory declaration of 12 September 2019. Note, this footnote has been added in these reasons for clarity. It is not in the written submissions.

27. Having had the benefit of hearing the review applicant’s oral evidence at a lengthy in-person hearing, the Tribunal found her to be credible and accepts her evidence. Accordingly, the Tribunal accepts the submissions in the document titled ‘statement of facts, issues and contentions’ that were extracted above and the Tribunal considers that the reasons given by the delegate for not accepting the review applicant’s claims that she is related to each of the visa applicants are not the reason, or a part of the reason, for affirming any of the four decisions under review. 

28. In view of the Tribunal’s finding that the review applicant has given consistent evidence over time and her credible oral evidence given at the hearing, the Tribunal is satisfied that each of the four visa applicants is related to her as claimed. In these circumstances, the Tribunal does not consider it necessary to obtain DNA evidence. 

29. Accordingly, in each case, reg 1.14(a)(iii) was met at the time of application and continues to be met at the time of this decision.

    No parental care – reg 1.14(b)

30. Regulation 1.14(b) requires that the visa applicant cannot be cared for by either parent because each of them is either dead, permanently incapacitated or of unknown whereabouts.

31. [Visa Applicant A] and [Visa Applicant C] each claim that [Father A] is their father and that he is dead, and that [Wife B][9] is their mother and that she is dead.

    [9] Also spelled [variant].

32. [Visa Applicant B] claims that [Relative A] is her father and that he is dead, and that [Relative B] is her mother and that she is dead.

33. [Visa Applicant D] claims that [Relative D] is his father and that he is dead, and that [Relative C] is his mother and that she is dead.

34. Below, the Tribunal outlines the evidence that has been given about the claimed lack of parental care due to the parents being deceased. Then, the Tribunal considers the delegate’s concerns, before the Tribunal makes its findings in respect of the claims.

    Is [Father A] (the claimed father of the review applicant, [Visa Applicant A] and [Visa Applicant C]) dead?

35. In the review applicant’s signed statement of 27 June 2017, she stated: ‘[m]y father, [Father A], died of gunshot wounds in 2013’. She explained how she had learned this news:

    I went to Somalia in 2014 to try and find my father. I did not find him. I heard that the children and [Wife B] were in Kismaio. I didn’t go to Kismaio. I contacted [Mother A] by phone. [Wife B] explained to me that my father had died. [Wife B] told me that my half-brother, [named], was married. I did not receive very much more information at that time.

36. In her statutory declaration of 12 September 2019 she relevantly declared:

    In 2014, I went to Somalia to see my mother …

    While I was in Somalia, I went to Galkayo to see my aunt, who was my father’s sister. I had not seen my father since our family was separated in 1995.

    I arranged to stay with my aunt for around 3 weeks. During that time, my aunt told me so many things about my father. I found out that he had died in 2013. He had been shot. My family is from a tribe in Somalia that is considered very low. We don’t have power or influence. As a result, many of our tribespeople are killed.

37. At the hearing, the Tribunal asked the review applicant whether it was true that her father [Father A] had died in 2013 from gunshot wounds. She replied in the affirmative. The Tribunal asked her how it was that she knew this to be true. She replied that her paternal aunt [Aunt A] had provided her with the information. She said that she had been taken to see her father’s grave in Somalia and she was prepared to take an oath before the Tribunal on the holy book that her father [Father A] has passed away. She said that her father’s death had impacted her enormously. She spoke of the last time she had seen her father alive, when they were both subject to attacks. The Tribunal observed the review applicant wipe away tears and heard her display emotion in her voice when giving evidence about her father’s death.

38. In this review, the review applicant submitted a statutory declaration, dated 15 March 2024, made by [Leader A], who described himself as a leader in [Community Organisation 1]. He relevantly declared:

    I spent about five years in Somalia from 2017. I went there planning to spend a reasonable amount of time there, but I ended up staying longer than I planned because of COVID and the associated travel restrictions. …

    One of the people I spent time with in Kismayo was [Aunt A], [the review applicant’s] aunt who was married to my uncle. I visited [Aunt A] and we talked about [the review applicant’s] father—[Aunt A’s] brother—[Father A]. I wanted to pay my respects to [Father A] and so [Aunt A] and I made a plan to go to his grave.

    It was a two day trip to get to his grave. We went on the local form of public transport—a mini-bus. [Aunt A] could not go often to visit her brother’s grave because it cost money to travel so far. I paid most of the costs of this trip. I paid for [Aunt A’s] ticket and I bought the food.

    When we arrived at the grave, [Aunt A] and I prayed together. I can recite the Qoran from memory so I recited passages.

    It is a normal cultural practice for family members to take journeys like this. It was good to spend time with [Aunt A]. It was very emotional for her.

    [Aunt A] died from COVID. This was the last time that I saw.

    I remember [Father A] as a good man. He did have a lot of wives and children. He loved women and he loved being with them. He was a handsome man.

    He was shot dead. He had been involved in government work before his death. When the government changed, he was left exposed—vulnerable. He may have been killed because he was a government agent. He might have been killed because of tribal conflict. After the government fell, he was not as protected.

39. At the hearing, [Leader A] stated that he was not going to add anything to what he had previously declared. He simply stated that he knew that the review applicant was ‘the mother, the father and the sole carer of those children’.

    Is [Wife B] (the claimed mother of [Visa Applicant A] and [Visa Applicant C]) dead?

40. The Tribunal notes that the bio-pages of both [Visa Applicant A’s] and [Visa Applicant C’s] Somali passport each record their mother as being ‘[Wife B]’.

41. In the review applicant’s signed statement of 27 June 2017, she stated: ‘[Wife B] died in a bomb explosion in 2015’. She explained how she had learned this news: ‘[i]n 2016, I received information from one of my aunts (one of my father’s sisters) of the tragedies that had befallen the children. I was told that [Wife B] had died sometime earlier’.

42. At the hearing, the Tribunal asked the review applicant whether it was true that [Wife B] had died in 2015 from a bomb explosion. She replied in the affirmative. The Tribunal asked her how it was that she knew this to be true. She replied that, while she could not verify it, her [Aunt A] had provided the information to her in the same way that the aunt had told her information about the death of her father ([Father A]). She said that [Aunt A] had compiled the information and had helped compile the documents.

1. A document titled ‘death certificate’ in respect of [Wife B variant] was filed with the Department. The document states that, on ‘[date]/03/2015’, two named witnesses had appeared before the local government of [District A] to state that [Wife B variant] had died on ‘[date]/03/2015’ in Mogadishu from a ‘domb [sic] explosion’. It appears that the original document was not submitted to the Department.

   Is [Relative A] (the claimed father of [Visa Applicant B]) dead?

2. In the review applicant’s signed statement of 27 June 2017, she stated: ‘[m]y brother, [Relative A] died in 2012 from gunshot wounds’.

3. At the hearing, the Tribunal asked the review applicant whether it was true that [Relative A] had died in 2012 from gunshot wounds. She replied in the affirmative. The Tribunal asked her how it was that she knew this to be true. She replied that [Aunt A] had provided her with the information.

4. A document titled ‘death certificate’ in respect of [Relative A] was filed with the Department. The document states that, on ‘[date]/06/2012’, two named witnesses had appeared before the local government of [District A] to state that [Relative A] had died on ‘[date]/03/2012’ in Mogadishu from gunshot wounds. It appears that the original document was not submitted to the Department.

   Is [Relative B] (the claimed mother of [Visa Applicant B]) dead?

5. The Tribunal notes that the bio-pages of [Visa Applicant B’s] Somali passport records her mother as being ‘[Relative B]’.

6. In the review applicant’s signed statement of 27 June 2017, she stated: ‘[Relative B] died in 2016 from asthma’. She explained how she had learned this news: ‘[i]n 2016, I received information from one of my aunts (one of my father’s sisters) of the tragedies that had befallen the children. I was told … that [Relative B] had died’.

7. At the hearing, the Tribunal asked the review applicant whether it was true that [Relative B] had died in 2016 from asthma. She replied in the affirmative. The Tribunal asked her how it was that she knew this to be true. She replied that her [Aunt A] had provided her with the information.

8. A document titled ‘death certificate’ in respect of [Relative B] was filed with the Department. The document states that, on ‘[date]/01/2016’, two named witnesses had appeared before the local government of [District A] to state that [Relative B] had died on ‘[date]/01/2016’ in [location] from asthma. It appears that the original document was not submitted to the Department.

   Is [Relative D] (the claimed father of [Visa Applicant D]) dead?

9. In the review applicant’s signed statement of 27 June 2017, she stated: ‘[Relative D] died in 2008 from gunshot wounds’.

10. At the hearing, the Tribunal asked the review applicant whether it was true that [Relative D] had died in 2008 from gunshot wounds. She replied in the affirmative. The Tribunal asked her how it was that she knew this to be true. She replied that her aunt [Aunt A] had provided her with the information.

11. A translated document titled ‘death certificate’ in respect of [Relative D] was filed with the Department. The document states that, on ‘[date]/02/2008’, two named witnesses had appeared before the local government of [District A] to state that [Relative D] had died in ‘2008’ in Mogadishu from gunshot wounds. It appears that the original document was not submitted to the Department.

    Is [Relative C] (the claimed mother of [Visa Applicant D]) dead?

12. The Tribunal notes that the bio-pages of [Visa Applicant D’s] Somali passport records his mother as being ‘[Relative C]’.

100.   In the review applicant’s signed statement of 27 June 2017, she stated: ‘[m]y sister, [Relative C] married again after her husband’s death. She died in 2014 during childbirth. The child did not survive’.

101.   At the hearing, the Tribunal asked the review applicant whether it was true that [Relative C] had died in 2014 during childbirth. She replied in the affirmative. The Tribunal asked her how it was that she knew this to be true. She replied that her aunt [Aunt A] had provided her with the information.

102.   A translated document titled ‘death certificate’ in respect of [Relative C] was filed with the Department. The document states that, on ‘[date]/08/2014’, two named witnesses had appeared before the local government of [District A] to state that [Relative C] had died on ‘[date]/08/2014’ in Mogadishu while in labour. It appears that the original document was not submitted to the Department.

Conclusion in respect of reg 1.14(b)

103.   In each of the delegate’s refusal decisions for [Visa Applicant A] and [Visa Applicant C], the delegate noted that, in each case, one of the translated death certificates that had been submitted was for [Relative A] ([Visa Applicant B’s] claimed father)—not for [Father A] (the claimed father of the review applicant, [Visa Applicant A] and [Visa Applicant C]). It is unclear whether the delegate was critical of this.

104.   From review of the various Departmental files, it appears to the Tribunal that:

·no death certificate or translated death certificate was submitted to the Department with respect to [Father A];

·the translated death certificate with respect to [Relative A] appears on the Department’s files for [Visa Applicant A’s] case, [Visa Applicant B’s] case, [Visa Applicant C’s] case and [Visa Applicant D’s] case;

·the translated death certificate with respect to [Wife B variant] (the claimed mother of [Visa Applicant A] and [Visa Applicant C]) appears on the Department’s files for [Visa Applicant A’s] case, [Visa Applicant B’s] case, [Visa Applicant C’s] case and [Visa Applicant D’s] case;

·the translated death certificate with respect to [Relative B] (the claimed mother of [Visa Applicant B]) appears on the Department’s file in respect of [Visa Applicant B’s] case only; and

·the translated death certificates with respect to [Relative D] and [Relative C] (the claimed parents of [Visa Applicant D]) appear on the Department’s file in respect of [Visa Applicant D’s] case only.

105.   The Tribunal has formed the view that the fact that some translated death certificates for a particular person, such as [Relative A], appear to have been filed in more than one case is not the reason, or a part of the reason, for affirming any of the four decisions under review. 

106.   In each of the delegate’s refusal decisions for [Visa Applicant A], [Visa Applicant B], [Visa Applicant C] and [Visa Applicant D], the delegate stated:

I … have concerns of the genuineness of the two translations of the Death Certificate. All stamps on the documents are placed and angled identical, leading me to believe that the information on the documents was typed over the stamp, and therefore not representative that the information contained in the documents was in fact endorsed by the Ministry of Foreign Affairs as being claimed. I therefore have placed minimal weight on these documents to confirm that the parents of the applicant are deceased. No other documents to support this claim have been provided.

107.   The Tribunal notes that the Department did not seek to have the authenticity of any of these translated death certificates verified.

108.   Later in each decision, the delegate explained that they gave no weight to the claimed death certificates because copies of the originals had not been submitted.

109.   In this review, it was relevantly submitted that ‘[t]here is very poor record keeping of births and deaths in Somalia’ and that ‘[i]n addition to the problem of civic compliance, there is a lack of a well-developed and functioning civil registration system’. It was also submitted that, ‘[i]n the Islamic faith, it is a requirement to inter a body as quickly as possible after death’. As has been noted, the representative also referred to some of these submissions before the conclusion of the hearing. The Tribunal accepts the veracity of these submissions.

110.   At the hearing, the review applicant told the Tribunal that she had learned of the various information from others. The Tribunal asked her if she knew how her aunt [Aunt A] learned of the deaths. She said words to the effect that it was because [Aunt A] had the familial connection, because [Aunt A] and [Father A] had been siblings. She said that she had provided the translations of the death certificates because she had been asked to provide evidence. The Tribunal asked the review applicant whether she believed that the information in the death certificates was correct. She replied that she had not been present when the deaths took place and that she could not verify the authenticity of the documents. She said that she had been informed that the Department had concerns about the documents, but she said that she did not have any other evidence to provide of the deaths. She completed her oral evidence in respect of this issue by stating, ‘the parents of these orphan children have passed, and I am the sole carer. If the parents were alive, they would be in a position to care’.

111.   Having had the benefit of hearing the review applicant’s oral evidence and [Leader A’s] oral evidence in person, the Tribunal found each to be credible and accepts their evidence.

112.   Having accepted the veracity of the written submissions noted above, and having considered and weighed all the evidence cumulatively, the Tribunal finds that both at the time of application for the visas on 3 July 2017 and at the time of this decision, each of the visa applicants could not be cared for by their father or by their mother as each visa applicant’s father and mother was deceased.

113.   Accordingly, in each case, reg 1.14(b) was met at the time of application and continues to be met at the time of decision.

Best interests – reg 1.14(c)

114.   Regulation 1.14(c) requires that there is no compelling reason to believe that the grant of a visa would not be in the best interests of the visa applicant.

115.   There is no information or evidence before the Tribunal to suggest that the grant of a visa to each visa applicant would not be in their best interests. Indeed, to the contrary, it appears that it would be in their best interests.

116.   The Tribunal notes that, on 26 February 2021, the review applicant made a statutory declaration ‘to provide information about the dire circumstances that the children are in and to seek priority processing of their applications’. The review applicant details how [Visa Applicant D] was beaten by a group of thugs (including having [a specified injury]) and how [Visa Applicant B] was hit in the face at the incident. [Medical] evidence and a photograph of bruising on [Visa Applicant B’s] face were submitted in support. She declared:

The children did not report the attack to the police. They have no confidence that the police will help them. They are scared of the police. The police only help people who can pay money and the children do not have any money to spare. They rely on the money that I send them.

117.   The review applicant also detailed her knowledge of [Visa Applicant A] having been drugged, raped and become pregnant from the rape and of [Visa Applicant A] feeling ‘ashamed and frightened’ and being the subject of neighbours’ gossip.

118.   More recently, the review applicant submitted a letter from [Official A], [from Community Organisation 1], dated 19 March 2024. The letter relevantly said of the review applicant:

She is deeply concerned about the well-being of her orphan relatives who are in dire need of her support and care.

On behalf of [Community Organisation 1], we respectfully request a review of this decision. [The review applicant’s] concern for her relatives’ welfare is palpable, and she is in great need of support during this challenging time.

119.   At the hearing, the review applicant told the Tribunal that it was in the best interests of the visa applicants to come to Australia where they could have a life of meaning and education and could take on the role of her children.

120.   Accordingly, the Tribunal finds that, in each case, reg 1.14(c) was met at the time of application and continues to be met at the time of decision.

Conclusion on cl 117.211 and cl 117.221

121.   Given the findings above, cl 117.211 is met in each case.

122.   At the time of this decision, [Visa Applicant D] continues to satisfy the criterion in cl 117.211.

123.   The Tribunal also finds that, at the time of this decision, in [Visa Applicant A’s] case, [Visa Applicant B’s] case and [Visa Applicant C’s] case, they each do not continue to satisfy the criterion in cl 117.211, but only because in each case, they have turned 18 years of age.

124.   It follows that, in each of the four cases, cl 117.221 is met.

Consideration of PIC 4020 as required by cl 117.223

125.   The other issue for determination in this review is whether, in [Visa Applicant A’s] case, [Visa Applicant B’s] case and [Visa Applicant C’s] case, each visa applicant meets PIC 4020 as required by cl 117.223 for the grant of the visa.

126.   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).

127.   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.

Have [Visa Applicant A], [Visa Applicant B] and [Visa Applicant C] each given, or caused to be given a bogus document, or information that is false or misleading in material particular?

1. 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.

129.   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.

130.   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.

131.   As has been explained, the delegate found that each of the earlier-mentioned school records dated [in] June 2017 was counterfeit and thus a bogus document.

132.   Before making this finding in [Visa Applicant A’s] case, [Visa Applicant B’s] case and [Visa Applicant C’s] case, the Tribunal had noted that the subsequent letters said to be from the school, dated [in] July 2019, had each stated that the respective visa applicant’s record of performance at the school for that term was attached to the letter. However, in each of the three cases, the delegate stated:

I note that the record of performance was not submitted as stated in the claimed school’s letter. Furthermore, there are no further documents presented to support that the applicant was enrolled at [School 1] as initially submitted, including documents like school fees receipts, school report cards, etc. I find that the letter from [School 1] does not negate the counterfeit document issued in support of this application.

133.   At the hearing, the review applicant said that, when providing the first set of school records to the Department, she had not known that the documents were bogus. She stated, ‘I paid their school fee and they were attending’. She explained that she had sent money for the visa applicants and had asked their carers to enrol them in school because she wanted them to study English before coming to Australia. She explained that she had done all she could to help the children and that, to her knowledge, they had been enrolled in the school. She said that if the first documents provided by the school were invalid, it was the fault of the school—not her.    

134.   As has already been noted, having had the opportunity to hear the review applicant’s oral evidence at the in-person hearing, the Tribunal found her to be credible. The Tribunal accepts her evidence that she did not knowingly procure and submit a bogus document. Accordingly, the Tribunal finds that there was no knowing fraud or deception on her part.

135.   However, there was fraud or deception by some person, as required by Trivedi v MIBP.

136.   The Tribunal notes that AAT reference number 2113365 is another of the representative’s cases, which was decided by the presiding Member on 20 May 2024, and concerns a delegate’s finding that records provided at about the same time from the same school— [School 1] in [Country 1]—were bogus documents. In the hearing in that other case, the Tribunal had asked the representative whether there was any connection between the applicants in that case and the present case and the representative replied that, to her knowledge, there was not.

137.   There appear to be two unrelated cases before the presiding Member both with findings made by the respective delegates that records said to have been made by the same school at around the same time were bogus documents. This suggests to the Tribunal that there may have been a problem with the school administration at that time, as the representative contended in the written submission of 29 July 2019 (outlined earlier in these reasons). Or, possibly, there was fraud or deception on the part of some other person.

138.   Based on the evidence before it, the Tribunal finds that [Visa Applicant A], [Visa Applicant B] and [Visa Applicant C] each gave or caused to be given to the Department a bogus document in support of their application for the visa. Therefore, in each of these three cases, the visa applicant does not meet PIC 4020(1).

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

139.   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 reg 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.

140.   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.

141.   Whether a circumstance is compelling or compassionate is a question of fact and degree for the Tribunal.

142.   The Tribunal notes that no submissions were made that, in this case, there are compelling circumstances that affect the interests of Australia.[10] Rather, submissions were made, and oral evidence was given that there are compassionate or compelling circumstances that affect the interests of an Australian citizen, being the review applicant/sponsor.

[10] At the hearing, the review applicant confirmed that she was not seeking to make any claims in this respect.

143.   In the review applicant’s statutory declaration of 26 February 2021, she relevantly declared:

I have been so worried about the children that it has had an impact on my health. I have [a medical condition]. I take medication. I have a doctor managing my health but stress and worrying is making my health worse.

144.   In each of the delegate’s refusal decisions for [Visa Applicant A], [Visa Applicant B] and [Visa Applicant C], the delegate referred to this declaration and then stated:

The sponsor has not sufficiently supported her health claims with documentation, and this would be recommended, as the sponsor has demonstrated that the information in her statutory declarations may be inaccurate.

145.   As been noted already, in each of the three cases, the delegate was not satisfied that there were compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen that justified the grant of the visa.

146.   In this review, it was submitted, in the document titled ‘statement of facts, issues and contentions’, that:

[The review applicant] has invested a great deal of her time and money over a very long period of time to support her family members.

This support has taken a toll on her emotionally and financially. This is supported by the doctor’s letter [the review applicant] has provided to the Tribunal.

[The review applicant] has supported the primary visa applicants through many of their own difficulties. They suffered an attack; [Visa Applicant D] was beaten and [Visa Applicant B] was also injured when she went to the aid of [Visa Applicant D].

[The review applicant] is in contact with the primary visa applicants regularly.

[The review applicant] needs her family members to come to Australia so that she can support them and, hopefully, as she ages, they can support her.

…

[The review applicant] asks that the Tribunal Member take into account the compelling and compassionate circumstances that affect her.

147.   At the hearing, the review applicant gave oral evidence that her mother and aunt had suggested to her that she take on the role in providing care for the visa applicants. She said that she does not have any children of her own and had accepted the responsibility for the visa applicants, but she said that the migration process had taken much longer than she had expected and that the visa applicants’ dependency upon her had taken a high toll on her. She said that she paid for everything the visa applicants needed: their accommodation, food, medication, and anything else that they needed. She said that granting them the visas would remove the moral and financial burden that she feels for them. 

148.   The Tribunal also notes, accepts and gives weight to [Leader A’s] very credible oral evidence that the review applicant carried a ‘burden’ being the ‘mother, father and sole carer’ of the visa applicants. He concluded his oral evidence by requesting that the children be brought to Australia so that the review applicant could experience some relief from this ‘burden’.

149.   The Tribunal notes, accepts and gives weight to the letter from the medical practitioner dated 18 March 2024 that was submitted in this review, and which was referred to in the submissions above. The Tribunal also notes, accepts and gives weight to the other letters that were submitted in support, namely the letter from [Official A] that was referred to earlier as well as the letter, dated 7 March 2024, from [name], Community Support Specialist at a named organisation.

150.   Based on the credible oral evidence before the Tribunal and the documents that were submitted in support, the Tribunal is satisfied that, at the time of this decision, there are compassionate circumstances that affect the interests of an Australian citizen, being the review applicant, that justify the granting of the visa. Further, having had regard to those circumstances, the Tribunal considers that the requirements in PIC 4020(1)(a) should be waived.  

151.   Therefore, the requirements of PIC 4020(1) should be waived.

Has the applicant satisfied the identity requirements?

152.   PIC 4020(2A) requires an applicant satisfy the Tribunal as to his or her identity.  

153.   These provisions were introduced because identity fraud was considered a matter of serious concern given that a person’s identity is the foundation of all checks, including national security and character checks.[11] The Explanatory Statement to the Regulation that introduced this requirement suggests that in considering this criterion, decision-makers may have regard to a range of identity documents, including a person’s passport but will need to consider the applicant’s individual circumstances, including whether they have access to identity documents, when determining if the identity requirements are satisfied.[12]

[11]       Explanatory Statement to SLI 2014, No 32, at 3.

[12]       Ibid.

154.   There is no information or evidence before the Tribunal to suggest that [Visa Applicant A], [Visa Applicant B] and [Visa Applicant C] are not whom they each claim to be. Each of the visa applicants provided the Department with copies of the bio-pages of their Somali passports. In view of this evidence, as well as the review applicant’s credible declaratory and oral evidence that the visa applicants are her nieces and nephews, [Visa Applicant A], [Visa Applicant B] and [Visa Applicant C] have each satisfied the Tribunal as to their identity. Therefore, [Visa Applicant A], [Visa Applicant B] and [Visa Applicant C] each meet PIC 4020(2A).

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

155.   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).

156.   There is no evidence before the Tribunal to suggest that, previously, any of the visa applicants was refused a visa based on a failure to satisfy PIC 4020(2A).

157.   Therefore, in each of the three cases, PIC 4020(2B), is met or does not apply.

Conclusion on PIC 4020 for the purposes of cl 117.223

158.   Based on the above, [Visa Applicant A], [Visa Applicant B] and [Visa Applicant C] each satisfy PIC 4020 for the purposes of cl 117.223.

CONCLUSION

159.   Given these findings, the appropriate course is to remit the visa applications to the Minister to consider the remaining criteria for the visa.

DECISION

160.   The Tribunal remits the applications for Child (Migrant) (Class AH) visas for reconsideration, with the direction that the visa applicants meet the following criteria for a Subclass 117 (Orphan Relative) visa:

·cl 117.211 of Schedule 2 to the Regulations; and

·cl 117.221 of Schedule 2 to the Regulations.

With respect to the first, second and third-listed visa applicants, there is a further direction that they each meet:

·Public Interest Criterion 4020 for the purposes of cl 117.223 of Schedule 2 to the Regulations.

Justine Clarke
Member

ATTACHMENT – RELEVANT LAW

Migration Regulations 1994

1.14Orphan relative

An applicant for a visa is an orphan relative of another person who is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen if:

(a)the applicant:

(i)has not turned 18; and

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

(iii)is a relative of that other person; and

(b)the applicant cannot be cared for by either parent because each of them is either dead, permanently incapacitated or of unknown whereabouts; and

(c)there is no compelling reason to believe that the grant of a visa would not be in the best interests of the applicant.

…

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.

…