Ali (Migration)

[2021] AATA 4456

Ali (Migration) [2021] AATA 4456 (1 November 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Asho Aden Ali

VISA APPLICANTS:  Mr Abdi Dahir Aden
Ms Fathi Dahir Aden
Mr Mahamud Dahir Aden

CASE NUMBER:  1923511

HOME AFFAIRS REFERENCE(S):          2017023802 OSF2017023802

MEMBER:Christine Kannis

DATE:1 November 2021

PLACE OF DECISION:  Perth

DECISION:The Tribunal affirms the decision not to grant the visa applicants Child (Migrant) (Class AH) visas.

Statement made on 01 November 2021 at 6:38am

CATCHWORDS

MIGRATION – Child (Migrant) (Class AH) visa – Subclass 117 (Orphan Relative) – bogus document – death certificate verified as counterfeit – neighbour’s witness statement – compassionate or compelling circumstances to waive the criteria – limited financial assistance – decision under review affirmed          

LEGISLATION

Migration Act 1958, ss 5(1), 65
Migration Regulations 1994, Schedule 2, cl 117.223; Schedule 4, Public Interest Criterion 4020; r 1.03

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 23 July 2019 to refuse to grant the visa applicants Child (Migrant) (Class AH) visas under s.65 of the Migration Act 1958 (Cth) (the Act).

2. The visa applicants applied for the visas on 14 December 2017. The delegate refused to grant the visas on the basis that the visa applicants did not satisfy the requirements of cl 117.223 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) because the delegate found they did not meet Public Interest Criterion (PIC) 4020.

3. The review applicant appeared before the Tribunal on 12 October 2021 to give evidence and present arguments. The Tribunal also received oral evidence from the review applicant’s daughter-in-law, Ms Halimo Abdullahi, by telephone from Kenya.

4. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

   The law

5. The issue for determination in this case is whether the visa applicants satisfy PIC 4020 as required by cl.117.223 and if not, whether there are compassionate or compelling circumstances to justify waiver of PIC 4020.

6. 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).

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. 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. Under s. 5(1) of the Act, a bogus document is one that the Minister reasonably suspects:

   (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.

9. 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.

10. 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.

11. 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.

    The delegate’s decision

12. In the Form 40CH Sponsorship for a Child to Migrate to Australia the review applicant stated that the visa applicants are her nephews (Mahamud Dahir Aden and Abdi Dahir Aden) and niece (Fathi Dahir Aden). She claimed that she and the visa applicants’ father, Mr Dallir Aden An, were siblings. The applications were made on the basis that the visa applicants’ parents, Mr Dallir Aden An and Ms Sacdiyo Mahad Abdi, are deceased.

13. In support of the applications the visa applicants provided a death certificate for their mother, Sacdiyo Mahad Abdi, issued by the Registrar for Garissa District, Kenya. The certificate indicates that the date of death was “04/06/2016” and the date of registration was “10/06/2015”. The certificate was issued on “21/09/2016”.

14. The Department conducted a verification check on the death certificate through the issuing office, the Department of Civil Registration National Office. The Visa Integrity Unit advised that the Department of Civil Registration National Office at Hass Plaza advised by letter that the entry number on the death certificate does not exist for Garissa District. Based on this information the death certificate referral was finalised as COUNTERFEIT.

15. On 4 July 2019, the Department wrote to the visa applicants and invited them to comment on the evidence suggesting that they had provided a bogus document as part of their visa application, specifically relating to their claimed biological mother's death certificate. They were advised that the Department had conducted checks on the death certificate by attending the issuing office, the Department of Civil Registration and:

    The following information was obtained from the checks:

    The entry number of the death certificate does not exist for Garissa District

    On the basis of the above, there is evidence suggesting that you have provided a bogus document as part of your visa application, specifically relating to your mother’s death certificate.

16. The visa applicants were invited to comment on the information that is considered to be false or misleading or the document that is considered to be bogus, and asked whether there were any compelling circumstances affecting the interests of Australia, or compassionate or compelling circumstances affecting the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen, to justify the waiver of PIC 4020.

17. In response, the review applicant provided a statutory declaration dated 7 July 2019 in which she said that the visa applicants’ mother’s death certificate may not have been properly registered with the relevant authorities. She said their parents were deceased and offered to undertake DNA testing to prove her relationship to the children. The review applicant also said:

    I am informed by Abdullahi Ore and I believe that the mother of the applicant children Sacdiyo Mahad Abdi passed away on 4^th June 2015 at a house in Garissa, Kenya and her death was subsequently registered but the details of her death may not have been properly registered as revealed in the checks undertaken by the department.

18. The review applicant also provided information in relation to the compassionate or compelling reasons to justify waiver of PIC 4020.

19. The delegate decided that the death certificate was a bogus document provided by the visa applicants in support of their application. The delegate decided there were no compelling circumstances that affect the interests of Australia or any compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen that would justify the grant of this visa.

    Information provided prior to the hearing

20. Prior to the hearing the review applicant provided:

    ·     Written statement dated 24 April 2019 from Abdullahi Ore who described himself as the custodian of the visa applicants and said both their parents had passed away. He said he is a friend of the children’s aunt, the review applicant, and said she came from Australia on 17 April 2019 and instructed him to transfer custodianship of the children to her daughter-in-law. 

    ·     Written statement dated 5 October 2021 from Abdikani Abdullahi Ahmed who described himself as a neighbour of the visa applicants’ mother. He said on 4 June 2015 he rushed to her house when he heard of her passing. He said she left two boys and a girl who were taken by Adbullahi Ore after the children’s aunt requested they stay with him in the short term.  

    ·     Patient Health Summary dated 5 October 2021 issued by Mirrabooka Medical Centre. The document listed the review applicant’s Active Past History which included Generalised Stress Anxiety Disorder (GSAD), Diabetes Type 2 and Hypertension. Her current medications were listed as Diabex XR (for diabetes) and Olmetec Plus (for hypertension). No medication was listed for GSAD.

    ·     Evidence of money transfers on 5 September 2018 (AUD$225.00), on 1 January 2021(AUD$5.00) and on 22 June 2021 (AUD$259.00) from the review applicant’s son, Qani Abdi Faisal, to her daughter-in-law, Abulhah Xalimo. 

    ·     Evidence of money transfers from the review applicant to her daughter-in-law, Halimo Abdullahi, on 28 September 2021 (AUD$153.28) and on 6 October 2021 (AUD$255.98)

    ·     Evidence of money transfer from the review applicant to Halima Abdullah Muhumer on 31 August 2021 (AUD$141.75).

21. At the commencement of the hearing the review applicant indicated that Abdullahi Ore and Abdikani Abdullahi Ahmed would give oral evidence to the Tribunal by telephone from Kenya. The Tribunal informed the review applicant that it accepts that the visa applicants’ mother is dead and she left three children. The review applicant told the Tribunal that these witnesses would only confirm the information they provided in their written statements and it was therefore not necessary to contact them to give oral evidence at the hearing.

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

22. The Tribunal noted that the written statements provided prior to the hearing referred to the death of the visa applicants’ mother and their care following her death. The Tribunal explained to the review applicant that although the criteria which must be met for a Subclass 117 visa includes that an applicant cannot be cared for by either parent because each of them is either dead, permanently incapacitated or of unknown whereabouts, this is not the issue in the current review. The Tribunal explained that the issue is whether the visa applicants satisfy PIC 4020 as required by cl.117.223 and if not, whether there are compassionate or compelling circumstances to justify waiver of PIC 4020.

23. The review applicant told the Tribunal that she was not the person who obtained the death certificate and offered an apology for providing a counterfeit document.

24. The review applicant told the Tribunal that she asked the people who attended the death and burial of the visa applicants’ mother to obtain the death certificate. She said she did not know where they obtained the document. In response to the Tribunal asking whether she had made any enquiries about how the death certificate was obtained after the Department advised that it was a counterfeit document, she said she was told that the document was not prepared by the hospital and was written by the local community who had witnessed the death. It is clear that the review applicant did not apply for the death certificate through a proper and formal process however she gave no reason for not doing so.

25. The Tribunal notes that the Certificate of Death provided to the Department purports to be issued and signed by the District/Assistant Registrar. The document refers to a Date of Registration and an Entry No. however the Department’s verification process found that the entry number did not exist.

26. The Tribunal accepts the review applicant’s evidence that she was not aware that the death certificate counterfeit, however, as noted, PIC 4020 applies whether or not the document or information was provided by the applicant knowingly or unwittingly. It is not necessary for the Tribunal to determine that the visa applicants or review applicant were involved in obtaining the bogus documents or that they provided that documents knowingly.

27. To meet the definition of bogus document, there need only be a reasonable suspicion of a document being bogus, not probative evidence. The Department’s verification process assessed the death certificate provided as counterfeit. The Tribunal has considered the review applicant’s response to the natural justice letter and the oral evidence provided at hearing however accords significant weight to the outcome of the Department’s verification process. Accordingly, the Tribunal reasonably suspects that the death certificate is counterfeit and finds that it is a bogus document within the definition of s.5(1)(b) of the Act.

28. The Tribunal notes the death certificate the Department found to be a bogus document was provided to the Department by the review applicant. The Tribunal is satisfied however that an agency relationship clearly exists between the visa applicants who are all minors and the review applicant who is their aunt. The Tribunal finds that the visa applicants did cause the bogus document to be given because of the agency relationship.  The visa applicants submitted the document when applying for orphan relative visas and the Tribunal finds that there is evidence that the visa applicants have 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.   

29. For this reason, the Tribunal is not satisfied that the three visa applicants meet the requirements of PIC 4020(1).

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

30. 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.

31. The review applicant told the Tribunal there were no compelling reasons that affect the interests of Australia.

32. The Tribunal considered the evidence and was not satisfied that there are compelling circumstances that affect the interests of Australia to justify the grant of the visa in the present case.

33. The Tribunal turns to consider the remaining circumstances for waiver. The review applicant is an Australian citizen.  Accordingly, the question that arises is whether there are compassionate or compelling circumstances that affect her interests if the requirement to meet PIC 4020(1) is not waived. 

34. 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.

35. The Tribunal is required to consider all the circumstances of the case including any matters put forward by an applicant and determine on the evidence whether there are compelling and/or compassionate circumstances justifying the granting of the visa.

36. The review applicant explained that following the death of the visa applicants’ mother, Abdullahi Ore cared for the children until 2019. She said it was difficult for Abdullahi Ore to look after the visa applicants because he is disabled and has nine other children in his care. 

37. The review applicant told the Tribunal that the visa applicants are in a very bad situation and need care. When asked to explain the bad situation she said the visa applicants have been living with her daughter-in-law since 2019 and it is burden for her son and her daughter-in-law to care for them. She said her son is an Australian citizen and he returned to Kenya earlier this year. The review applicant said her son and her daughter-in-law want to live in Australia and if they come here without the visa applicants there will be nobody left to care for them. The Tribunal does not consider these compassionate or compelling circumstances to waive PIC 4020(1).

38. The Tribunal put to the review applicant’s daughter-in-law that the review applicant had described the visa applicants as being in a bad situation and asked her about their current circumstances. She confirmed that the visa applicants had been living with her and said they do not attend school because there is nobody to take them. The visa applicants are currently aged 13, 11 and 7.  She said there is nobody to provide for the visa applicants. The review applicant’s daughter-in-law said she cooks for the visa applicants but she cannot take them to school because she has an 18-month-old child of her own. She confirmed that her husband is currently in Kenya but when asked if he could take the children to school, she responded that he does not live in Kenya permanently. The review applicant’s daughter-in-law told the Tribunal that the children are not happy and want to live with their aunt (the review applicant).  The Tribunal notes that for waiver it is not the interests of the visa applicant which are taken into account but that of an Australian citizen, an Australian permanent resident, or an eligible New Zealand citizen. The Tribunal does not consider these compassionate or compelling circumstances to waive PIC 4020(1).

39. The review applicant told the Tribunal that the visa applicants have nobody who can provide care and said they need financial and psychological support. In response to the Tribunal asking about the visa applicants’ maternal family, the review applicant said they fled from Somalia to Kenya however she has never met them and does not know where they are now. The Tribunal notes that the visa applicants’ mother died in 2015 and since that time they have been in the care of the review applicant’s friend (Abdullahi Ore ) and more recently, from April 2019, in the care of the review applicant’s daughter-in-law. The Tribunal does not consider these compassionate or compelling circumstances to waive PIC 4020(1).

1. The review applicant told the Tribunal that she suffers from high blood pressure and diabetes. She said when she is worried about the visa applicants having nobody to look after them her blood sugar and her blood pressure rise. The Tribunal accepts the medical evidence provided which indicates that the review applicant takes medications for diabetes and blood pressure. The review applicant confirmed that she does not take any other medication. The Tribunal accepts that the review applicant has suffered anxiety as a result of the circumstances of her nephews and niece however separation from family is not uncommon in these cases and no medical evidence, apart from a diagnosis of GSAD for which the review applicant is not receiving treatment, was provided. The Tribunal does not consider the circumstance of the review applicant’s anxiety to be compassionate or compelling circumstances to waive PIC 4020(1).

2. The review applicant told the Tribunal that she is in regular contact with the visa applicants and said she visited them in Kenya in 2016 and in 2019.

3. The review applicant told the Tribunal that she has provided financial assistance to the carers of the visa applicants since 2015. Evidence of financial assistance provided on six occasions (once in 2018 and five times in 2021) was provided to the Tribunal. She said her three sons have also provided financial assistance at times.

4. The review applicant said she has experienced difficult times before and now she just wants her nephews and her niece to live together with her in Australia.

5. The Tribunal acknowledges that the review applicant wants the visa applicants to join her in Australia. While sympathetic to the review applicant’s circumstances, the Tribunal considers that the use of the words ‘compelling’ and ‘compassionate’ in the Regulations indicates a degree of gravity that is not demonstrated in the evidence before it.  The provision of a bogus document to the Department is a serious matter and on balance the Tribunal was not persuaded that there are circumstances in this case that affect an Australian citizen, permanent resident or eligible New Zealand citizen, either on an individual or cumulative basis, that are of a compelling or compassionate nature that justify the waiver of PIC 4020. Accordingly, the Tribunal is not satisfied that the requirements should be waived.

6. Therefore, the requirements of PIC 4020(1) should not be waived.

7. On the basis of the above, the visa applicants do not satisfy PIC 4020 for the purposes of cl 117.223.

8. There is no evidence before the Tribunal, and no claims have been made, in respect of the other visa subclasses in Class AH (Subclass 101 and Subclass 102).

   DECISION

9. The Tribunal affirms the decision not to grant the visa applicants Child (Migrant) (Class AH) visas.

   Christine Kannis
   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.

   …