Amini (Migration) - [2021] AATA 2881

Amini (Migration) [2021] AATA 2881 (28 July 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
REVIEW APPLICANT:  Mr Hassan Reza Amini
VISA APPLICANTS:  Ms Zarifa Mohammad Amin
Ms Farzana Mohammad Amin
CASE NUMBER:  1925817
HOME AFFAIRS REFERENCES:             2012/002902 and OSF2012/002904
MEMBER:Rosa Gagliardi
DATE:28 July 2021
PLACE OF DECISION:  Australian Capital Territory
DECISION:The Tribunal remits the applications for Child (Migrant) (Class AH) visas for reconsideration, with the direction that the applicants meet the following criteria for Subclass 117 (Orphan Relative) visas:
·Public Interest Criterion 4020 for the purposes of cl.117.223 of Schedule 2 to the Regulations.

Statement made on 28 July 2021 at 2:57pm
CATCHWORDS
MIGRATION – Child (Migrant) (Class AH) visa – Subclass 117 (Orphan Relative) – false or misleading information given in application – national identity cards, obtained through agent in third country, found to be fraudulent – passports obtained on basis of these cards – compelling or compassionate reasons justifying grant of visa – information not purposely false or misleading – young females relying on assistance – prevalence of unauthorised agents – later travelled to home country at some risk to obtain genuine documents – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5(1), 65
Migration Regulations 1994 (Cth), Schedule 2, cl 117.223, Schedule 4, criterion 4020
CASES
Arora v MIBP [2016] FCAFC 35
Batra v MIAC [2013] FCA 274
Trivedi v MIBP [2014] FCAFC 42
Vyas v Minister for Immigration [2012] FMCA 92
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 16 July 2019 to refuse to grant the applicants Child (Migrant) (Class AH) visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants applied for the visas on 6 December 2012. The delegate refused to grant the visas on the basis that the first named applicant (the applicant) did not satisfy the requirements of cl 117.223 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) because it was considered that false and misleading information was provided to the Department and the applicants did not meet Public Interest Criteria (PIC) 4020. There also did not appear to be any compelling or circumstances that justified the grant of the visa.
The review applicant/sponsor appeared before the Tribunal on 25 June 2021 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicants in Afghanistan. The Tribunal hearing was conducted with the assistance of an interpreter in the Hazaragi and English languages.
The review applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this review is whether the visa applicant meets Public Interest Criterion 4020 (PIC 4020) as required by cl 117.223 for the grant of the visa. Broadly…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Amini (Migration)

Details

AGLC: Amini (Migration) [2021] AATA 2881
Case: [2021] AATA 2881
Decision Date: 28 July 2021

CaseChat Overview and Summary

This matter concerned applications for Child (Migrant) (Class AH) visas, Subclass 117 (Orphan Relative), made by Ms Zarifa Mohammad Amin and Ms Farzana Mohammad Amin. The applicants claimed to be siblings of the sponsor, Mr Hassan Reza Amini. The dispute arose when the Department of Home Affairs concluded that the Tazkiras and passports provided by the applicants were fraudulent, leading to a failure to satisfy Public Interest Criterion (PIC) 4020. The decision under review was made by a Member of the Tribunal, Rosa Gagliardi.

The primary legal issue before the Tribunal was whether the applicants met the requirements of PIC 4020, specifically concerning the provision of fraudulent documents and the satisfaction of identity requirements. The Tribunal was required to consider whether any compelling or compassionate circumstances justified a waiver of the relevant provisions of PIC 4020, noting that waivers were not available for identity requirements under PIC 4020(2A) and (2B).

The Tribunal reasoned that while the applicants had provided fraudulent documents, this was not done with the intention of deceiving the Department. It was explained that the applicants, young females residing in Pakistan without a male guardian, had relied on an unauthorised agent to obtain their identity documents, believing them to be genuine. The Tribunal also noted that the applicants had later taken steps to obtain genuine documents and had travelled to their home country at some risk to do so. Considering these factors, the Tribunal concluded that there were compelling or compassionate reasons justifying the grant of the visa, and that the applicants met PIC 4020 for the purposes of the visa application.

Consequently, the Tribunal remitted the applications for reconsideration with a direction that the applicants met the requirements of PIC 4020 for the grant of the Subclass 117 (Orphan Relative) visas.

Orders

Orders of the court

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Background

Background to the litigation

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.Background The first-named visa applicant, Ms Zarifa Mohammad Amin, applied for an Orphan Relative visa on 6 December 2012 on the basis of her claimed sibling relationship with the sponsor, Mr Hassan Reza Amini. At the time of the application Ms Zarifa Mohammad Amin claimed to be 16 years of age and unmarried. The second-named visa applicant, Ms Farzana Mohammad Amin similarly applied for an Orphan Relative visa on 6 December 2012, also on the basis of her claimed sibling relationship with Mr Hassan Reza Amini. At the time of application Ms Farzana Mohammad Amin claimed to be 13 and unmarried. It is claimed that Ms Farzana Mohammad Amin and Ms Zarifa Mohammad Amin are biological siblings and are Afghani nationals. The sponsor came to Australia on 22 April 2011 as an illegal maritime arrival but has now regularised his status in Australia. At the time of application, the siblings provided their Tazkiras to support their claims regarding their identities. · Zarifa’s tazkira reflected a serial number of 811431. Her Afghan passport OA1726177 purportedly issued by the Kabul Police Department on 2 October 2012. · Farzana’s tazkira had a serial number of 814330. She also presented an Afghan passport OA1728179 purportedly issued by the Kabul Police Department on 2 October 2012. The Department received written advice from NSIA, however, that the serial numbers provided did not correspond to their records and “had not been issued by the relevant authority” and therefore it was concluded that the tazkiras were fraudulent. The sponsor and applicants were provided with an opportunity to comment on the adverse information that pointed to their tazkiras being non-genuine. On 15 July 2019 the sponsor submitted a statutory declaration advising that his siblings moved to Pakistan in January 2012 following the death of their father and remarriage of his mother to another Afghan male, who is not obliged by custom to care for his spouse’s children. The sponsor also advised that as his siblings were resident in Quetta, Pakistan, and in the absence of a male guardian, they requested a local agent to obtain their identity documents. As is common in many applications from a similar cohort that have been assessed by the Department the applicants claimed to have obtained the tazkiras without knowing they were fraudulent through the agent. It is claimed that the tazkiras were thought to be genuine. It is also claimed that the biological mother remained living with her husband in Afghanistan. The biological mother is claimed to have been killed in a traffic accident in April 2012. It is claimed that neither the applicants nor their siblings were able to attend her funeral.

Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.CONSIDERATION OF CLAIMS AND EVIDENCE The issue in this review is whether the visa applicant meets Public Interest Criterion 4020 (PIC 4020) as required by cl 117.223 for the grant of the visa. Broadly speaking, this requires that:·there is no evidence that the applicant has given, or caused to be given, to the Minister, an officer, the Tribunal, a relevant assessing authority, or Medical officer of the Commonwealth, a bogus document or information that is false or misleading in a material particular in relation to the application for the visa or a visa that the applicant held in the 12 months before the application was made: PIC 4020(1); and·the applicant and each member of the family unit has not been refused a visa because of a failure to satisfy PIC 4020(1) during the period starting 3 years before the application was made and ending when the visa is granted or refused, unless the applicant was under 18 at the time the application for the refused visa was made: PIC 4020(2) and (2AA); and·the applicant satisfies the Minister as to his or her identity: PIC 4020(2A); and·neither the applicant nor any family unit member has been refused a visa because of a failure to satisfy PIC 4020(2A) during the period starting 10 years before the application was made and ending when the visa is granted or refused, unless the applicant was under 18 at the time the application for the refused visa was made: PIC 4020(2B) and (2BA). 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.Background The first-named visa applicant, Ms Zarifa Mohammad Amin, applied for an Orphan Relative visa on 6 December 2012 on the basis of her claimed sibling relationship with the sponsor, Mr Hassan Reza Amini. At the time of the application Ms Zarifa Mohammad Amin claimed to be 16 years of age and unmarried. The second-named visa applicant, Ms Farzana Mohammad Amin similarly applied for an Orphan Relative visa on 6 December 2012, also on the basis of her claimed sibling relationship with Mr Hassan Reza Amini. At the time of application Ms Farzana Mohammad Amin claimed to be 13 and unmarried. It is claimed that Ms Farzana Mohammad Amin and Ms Zarifa Mohammad Amin are biological siblings and are Afghani nationals. The sponsor came to Australia on 22 April 2011 as an illegal maritime arrival but has now regularised his status in Australia. At the time of application, the siblings provided their Tazkiras to support their claims regarding their identities. · Zarifa’s tazkira reflected a serial number of 811431. Her Afghan passport OA1726177 purportedly issued by the Kabul Police Department on 2 October 2012. · Farzana’s tazkira had a serial number of 814330. She also presented an Afghan passport OA1728179 purportedly issued by the Kabul Police Department on 2 October 2012.

Decision

Reasons for decision

On the basis of the above, the applicants satisfy PIC 4020 for the purposes of cl. 117.223.DECISION The Tribunal remits the applications for Child (Migrant) (Class AH) visas for reconsideration, with the direction that the applicants meet the following criteria for Subclass 117 (Orphan Relative) visas:·Public Interest Criterion 4020 for the purposes of cl 117.223 of Schedule 2 to the Regulations.Rosa GagliardiMemberATTACHMENTMigration Regulations 1994Schedule 44020(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 1958s 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.…

Ratio Decidendi

Legal Principle Established

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