Arok (Migration)

Arok (Migration) [2020] AATA 1564 (29 April 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
REVIEW APPLICANT:  Mr Manyang Arok Arok
VISA APPLICANTS:  Miss Elizabeth Adut Arok
Master Joseph Mayen Arok
Master Moses Mayen Arok
Master Andrew Atem Arok
Master James Mayen Arok
CASE NUMBER:  1904006
DIBP REFERENCE(S):  2016047241 OSF2016047241
MEMBER:Justin Owen
DATE:29 April 2020
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicants Child (Migrant) (Class AH) visas.
Statement made on 29 April 2020 at 3:31pm
CATCHWORDS
MIGRATION – Child (Migrant) (Class AH) visa – Subclass 117 (Child (Orphan Relative)) – bogus documents or false or misleading information – death certificates for child visa applicants’ parents obtained from hospitals by children’s guardian – not true copies of national register – fraudulent hospital discharge summaries – review applicant’s purposeful falsity – no definite evidence of deaths – waiver of requirements – compassionate or compelling circumstances – review applicant’s mental health – no documentary evidence of diagnosis or treatment – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5(1)(b), 65
Migration Regulations 1994 (Cth), Schedule 2, cl 117.223, Schedule 4, criterion 4020(1), (4), (5)
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

This is an application for review of a decision made by a delegate of the Minister for Immigration on 22 January 2019 to refuse to grant the applicants Child (Migrant) (Class AH) visas under s.65 of the Migration Act 1958 (the Act).
The applicants applied for the visas on 26 September 2016. The delegate refused to grant the visas on the basis that the applicants did not satisfy the requirements of cl.117.223 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the applicants had not satisfied Public Interest Criteria 4020 (‘PIC 4020’). The delegate found that the applicants had not satisfied PIC4020(1) as they had provided a bogus document, or false or misleading information in each of their subclass 117 Child (Orphan Relative) visa applications. The delegate noted that no information had been submitted by the applicants indicating they were seeking a waiver of PIC4020(1) on the basis that there were compelling circumstances that affect the interests of Australia; or compassionate or compelling circumstances that affect the interests of an Australian citizen, Australian permanent resident or an eligible New Zealand citizen: PIC4020(4). The delegate found, based on the evidence and information before her, she was not satisfied that the applicants met PIC 4020(1). As the applicants failed to meet PIC4020(1) and there were no grounds submitted to waive the requirements of PIC4020(1)(a) or (b), the delegate found the applicants did not satisfy PIC4020 and cl.117.223 was not met.
The review applicant appeared before the Tribunal on 18 March 2020 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Chol Atem and Mr Timothy Pearce. The Tribunal hearing was conducted with the assistance of an interpreter in the Dinka and English languages.
The review applicant was represented in relation to the review by his registered migration agent. The representative participated in the Tribunal hearing via telephone.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
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.
Has the applicant given, or caused to be given a bogus document, or information that is false or misleading in material particular?
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.
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.
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.
The review applicant provided the Tribunal with a copy of the delegate’s decision records for the visa applicants.
At the hearing the Tribunal explained to the review applicant that the delegate had found that bogus documentation had been provided to the Department as part of the visa applicant’s applications. The Tribunal went through examples of the bogus documents that had been provided in the visa applications through the review applicant.
The Tribunal notes that PIC 4020 requires that there is no evidence that the visa applicant has given, or caused to be given, false or misleading information or a bogus document. The Tribunal notes that the documentation the Department found to be bogus documents was in fact ‘supplied’ to the Department by the review applicant. The Tribunal is satisfied however that an agency relationship clearly exists between the review applicant and the visa applicants who are all minors. The visa applicants at the time of application on 26 September 2016 were 7 years of age (James), 9 years of age (Andrew), 10 years of age (Moses), 11 years of age (Joseph) and 12 years of age (Elizabeth). The visa applicants were all minors at the time of application and the review applicant is their uncle. He claims to be looking after their interests. The Tribunal is satisfied that an agency relationship exists between the visa applicants and their uncle the review applicant, and the documents physically supplied by the review applicant to the Department are in fact documents that were given, or caused to be given, by the visa applicants through this agreement.
These documents include the death certificate for Akuol Arok Mayen, the claimed mother of three of the visa applicants (Elizabeth, James and Moses) which was deemed to be bogus because the issuing authority – the Department of Civil Registration National Office – advised that the details contained in the death certificate were not a true copy of the register held in their offices. The Department claimed there was no corresponding record for the person in the register and the claimed entry number was for Thika West, not Uasin Gishu.
The Tribunal noted from the decision record the review applicant provided that he had responded to the Department of Home Affairs when this matter was raised and stated he was surprised at this finding and claimed the document was obtained through the hospital.
The applicant explained to the Tribunal at the hearing that this was in fact the case. He stated he lived in Australia and was unable to obtain the documentation himself. He said he asked a woman named Mary – who he states looks after the visa applicants offshore – to make the enquiries. He stated he sent her money to obtain this and other documentation which has also been found to be bogus in this review. The applicant stated he believed the death certificate was a true document and he was shocked when informed it was not. He stated he had not intended to deceive the department or provide documentation that was not genuine.
The Tribunal at the hearing noted from the decision record that after the Department expressed its concerns about the document to the review applicant, further documentation was obtained from the hospital supporting his claim pertaining to the death of Akuol Arok Mayen. The review applicant agreed this was the case and that these documents were also found to not be ‘real’.
The review applicant stated he had no way to verify whether the documents were genuine or not. He maintained that Mary had sought the documents from the hospital, and they had been genuinely provided by the hospital.
The Tribunal noted the evidence that had been provided of a hospital discharge summary from the Moi Teaching and Referral Hospital for Akuol Arok Mayen which had been found by the delegate to be a bogus document. The Tribunal noted that this had been provided to the delegate by the review applicant on 25 October 2018 after the delegate had requested information on the suspected non-genuine information that had been provided to the Department as part of the visa application process. The Tribunal noted from the decision record the review applicant provided that the email address on the letter did not exist and an examination of the document by the Department’s Integrity Unit revealed the document was counterfeit and bogus. The decision record the review applicant stated the investigation by the Department’s Integrity Unit revealed that the signature of the claimed issuing officer had been printed onto the document and not signed with a pen; the wet seal for the hospital had been printed onto the document and not stamped onto the document with ink; and the signature and wet seal appeared to have been added to the document together and not separately as would be expected. The Tribunal noted the review applicant had responded to the delegate that it was not his intention to deceive the Department and he had no means to verify whether the document was legitimate or not.
The Tribunal invited the applicant to comment on the evidence pertaining to the hospital discharge summary for Akuol Arok Mayen at the hearing. The review applicant stated he just wanted to be honest and said that he had accepted the documentation his friend Mary had obtained form the hospital was real and genuine. He said that she was the only person he trusted. In response to the Tribunal’s question he said he simply didn’t know whether the document was genuine or fake.
The Tribunal raised with the review applicant several other documents that the Department considered to be bogus documentation. These included the death certificate for Malang Arok – the claimed mother of visa applicants Joseph and Andrew Arok; the death certificate for Arok Aguer Mayen – the claimed father of visa applicants Joseph and Andrew Arok; and a Kenyatta National Hospital discharge summary for Malang Arok.
The Tribunal stated to the review applicant that, according to the decision record he provided, the death certificates for both Malang Arok and Arok Aguer Mayen were deemed to be bogus because the issuing authority – the Department of Civil Registration National Office – advised that the details in the death certificate were not a true copy of the register of death held in their offices and there was no corresponding record for this person in the register.
The Tribunal noted that the review applicant had written back to the delegate stating he was surprised by the finding the death certificates were counterfeit.
In relation to the discharge summary for Malang Arok by Kenyatta National Hospital, the Tribunal noted at the hearing that this had been provided by the review applicant to the delegate on 8 November 2018. The Tribunal noted that in the decision record he provided it stated that on 20 November 2018 the Department received an email from Kenyatta National Hospital advising the letter was fraudulent and not issued by them. The review applicant subsequently had replied to the delegate on the issue stating that the documents had been obtained from the hospital by Mary who was looking after the visa applicants.
At the hearing the Tribunal invited the review applicant to respond to this information relating to the three purportedly bogus documents. The review applicant provided a similar explanation as to his previous responses to the documents purportedly pertaining to Akuol Arok Mayen. He stated that he had asked his friend Mary to help him obtain the various documents he required for the visa applications as he was in Australia. He stated his friend Mary had obtained the documents such as the discharge summary for Malang Arok from the hospital and believed the documents were genuine. He stated he believed they were genuine.
The review applicant also made written submissions through his representative to the Tribunal on 10 March 2020 in relation to the delegate’s findings as to the provision of non-genuine information to the Department as part of the visa applicants’ applications. The review applicant submitted that he had provided no false documents or statements within the meaning of PIC 4020.
The review applicant again submitted he was surprised to be notified that the death certificates that had been submitted were counterfeit. He stated the certificates and documentation were exactly what had been provided to him as requested through the hospitals and he had no way to identify or verify them as counterfeit documents. The applicant claimed his friend Mary visited the hospitals and was informed that the documents had no issues and were correct.
The review applicant claims that the written documentation purportedly issued by the hospitals is strong evidence that the parents of the visa applicants are deceased.
The review applicant noted he is living in Australia and he essentially had no way to deny the documentation received was not genuine. He stated the correspondence that had been submitted to the Department were original copies. He disavowed any knowledge as to how the hospitals utilised signatures and stamps on the documentation.
The review applicant through his written statement claimed the delegate failed to provide any sources for the finding as to why the delegate had concluded the documents in question were bogus. It is claimed the review applicant was excluded from the opportunity of making a detailed explanation in relation to the visa applications.
The review applicant has submitted that the documents the delegate found to be bogus do not meet the definition of ‘bogus documents’ as defined in s.5 of the Migration Act as neither the review applicant or the visa applicants made statements to the authorities that issued the death certificates and the other documentation outlined earlier in this decision record which the delegate found to be bogus. The review applicant submits that ‘whatever mistakes or inconsistencies the issuing authority made, it has nothing to do with the visa applicants or the review applicant’.
The review applicant has also raised policy and PAM3 and the issue of purposeful falsity in relating to the alleged bogus documentation in question.
The review applicant raised PAM 3 and the statement:
‘a visa applicant would not necessarily fail to satisfy PIC4020 if they could explain an innocent mistake in a document or information provided by them or on their behalf.
If an applicant gives, or causes to be given, a bogus document or information that is false or misleading in a material particular, in order to refuse the visa on the basis of PIC 4020 it is necessary that the information or document have the quality of purposeful falsity whether or not the visa applicant can be shown to have personal knowledge of that fact.
In the circumstances where an applicant could explain an innocent mistake, and the delegate believes the applicant’s claims, then it would be open to the delegate to find that there is no purposeful falsity, and the document meets PIC 4020.’
The review applicant has claimed that he and the visa applicants do not know why the death certificates and the discharge summary documents contained inconsistencies or were bogus documents. They claim none of them can explain this ‘100%’ as they did not issue the documents. For this reason, the review applicant claims that there was no purposeful falsity and, according to PAM3, the visa applicants meet PIC 4020. The review applicant has submitted that even if the documents in question were bogus, there was no purposeful falsity on the part of either the review applicant or the visa applicants.
The Tribunal has considered the evidence before it and the oral and written submissions that have been made that the documentation in question does not constitute ‘bogus documents’ that were given or caused to be given as part of the visa application process.
The Tribunal does not concur with the review applicant’s submissions.
The Tribunal is satisfied that the documentation – the death certificates of Akuol Arok Mayen, Malang Arok and Arok Aguyer Mayen; the Moi Teaching and Referral Hospital Discharge Summary for Akuol Arok Mayen and the Kenyatta National Hospital Discharge Summary for Malang Arok are bogus documents.
In relation to the three death certificates that were submitted for Akuol Arok Mayen, Malang Arok and Arok Aguyer Mayen, the Tribunal notes that the issuing authority itself has declared these documents to be non-genuine. The Kenyan Department of Civil Registration National Office, as outlined in the decision records the review applicant supplied, has confirmed the documents were not issued by them as purported. They have confirmed that there is no corresponding number for each of these three individuals on their records. In relation to Akuol Arok Mayen, the claimed entry number is for the wrong district. The Tribunal is of the firm opinion this documentation is clearly and demonstrably bogus.
The Tribunal notes that the review applicant provided the two hospital discharge summaries – from the Moi Teaching and Referral Hospital for Akuol Arok Mayen and from the Kenyatta National Hospital for Malang Arok – after the visa applicants had been notified by the Department and provided 28 days to comment on the supply of suspected non-genuine information – being the three aforementioned death certificates – to the Department. The Tribunal notes from the decision record the review applicant provided that on 20 November 2018 the Kenyatta National Hospital confirmed via email the discharge summary for Malang Arok was fraudulent and not issued by them. The Tribunal accepts this assertion from the Kenyatta National Hospital and finds the purported hospital discharge summary in the name of Malang Arok to be fraudulent and a bogus document. In relation to the hospital discharge summary purportedly issued by the Moi Teaching and Referral Hospital for Akuol Arok Mayen, the Tribunal notes the Department has been able to verify that the email address appearing on the document did not exist whilst the Department’s Integrity Office have discovered other inaccuracies in relation to signatures, the seal and printing. On the evidence before it the Tribunal is of the firm opinion the hospital discharge summary purportedly issued by the Moi Teaching and referral Hospital for Akuol Arok Mayen is a bogus document.

The Tribunal concludes that the death and hospital discharge certificates submitted by the review applicant and for the purposes of PIC 4020 by the visa applicants through the agency relationship that exists with the review applicant - as part of their visa applications are bogus documents that were purported to have been issued in respect of the claimed deaths of their mothers and in the case of Joseph and Andrew Arok their fathers.
The Tribunal has considered the review applicant’s other submissions in relation to the documents.
The review applicant claimed he was excluded from the opportunity of making a detailed explanation to the delegate in relation to the visa applications and the bogus documentation. The Tribunal rejects this assertion. The delegate wrote to the visa applicants after deeming the three death certificates were bogus documents and provided 28 days to comment on the suspected non-genuine information. The review applicant availed himself of this opportunity and indeed submitted further documents that the Tribunal has also deemed to be bogus. The Tribunal considered the applicants had ample opportunity to make detailed explanations on these matters to the delegate. Furthermore, the review applicant and the visa applicants have had further opportunity to raise any matters they wish through the Tribunal review process. The Tribunal gives the review applicant’s assertion no weight.
The Tribunal has considered the review applicant’s claim the delegate failed to provide any sources for the finding as to why the delegate had concluded the documents in question were bogus. The Tribunal gives this submission no weight. The Tribunal notes that the Kenyan Department of Civil Registration National Office itself confirmed the three death certificates purportedly issued by itself were bogus. Similarly, the Kenyatta National Hospital has stated that the discharge summary for Malang Arok purportedly issued by itself was counterfeit. The Tribunal is satisfied that these organisations are capable of assessing whether documents purportedly issued by their own officers are genuine or counterfeit. Finally, the discharge summary purportedly issued by the Moi Teaching and Referral Hospital was found to be bogus after investigations by the Department’s Integrity Unit. In the absence of any other credible evidence before it verifying the information contained in the summary purportedly issued by the Moi Teaching and Referral Hospital, the Tribunal is satisfied with the findings of the Department’s Integrity Unit that the document is in fact counterfeit. The Tribunal is satisfied that the review applicant has been provided credible sources for the delegate’s findings that the documents were bogus. The Tribunal itself is similarly satisfied that the sources for the finding that the documents in question were bogus are credible and the conclusion the documents are bogus is both satisfactory and accurate.
The Tribunal has considered the review applicant’s submission that he and the visa applicants had no intention to deceive the Department with these documents and the documents were obtained in good faith by his friend Mary from the relevant authorities and similarly submitted to the delegate in the honest belief they were genuine. The review applicant has raised PAM 3 and stated there is a need essentially for the Tribunal to demonstrate ‘purposeful falsity’ on the part of the applicants in submitting the documents in question. The Tribunal notes that for the requirements in cl.4020(1) and (2) to be engaged, it is not necessary to show knowing complicity by the visa applicant in the fraud.
Nevertheless, on the evidence before it the Tribunal does not accept the review applicant was unaware that the five documents in question were bogus. The Tribunal notes that the three death certificates the review applicant included in the visa applications were confirmed as counterfeit by the relevant Kenyan Government department that had purportedly issued the documents. The review applicant – claiming through his friend Mary – then sought documentation from two separate hospitals pertaining to the alleged deaths of the visa applicants’ parents. These ‘follow up’ documents have been demonstrated – by both one of the hospital’s itself as well as the department’s Integrity Unit, to be counterfeit and bogus documents. The Tribunal considers it extraordinary to consider that five separate documents – from two separate hospitals and a government department at two separate stages of the Department’s consideration – have all been found to be bogus. The Tribunal finds the review applicant’s claims both previously and at its hearing that he had no knowledge that any of these documents were bogus until being informed by the Department as quite frankly implausible. He has claimed he had no way of assessing whether the various documents were genuine, but the Tribunal prefers the view that the review applicant was in fact conversant with the inherent deficiencies and falsities of the documents in question at the time they were submitted. The Tribunal does not accept the claim that multiple Kenyan government bodies have supplied the review applicant through his friend Mary with bogus documentation and does not accept the review applicant’s claim that he was unaware the documentation was bogus until the matter was brought to his attention by the department . The Tribunal is of the opinion that the review applicant was aware that the documents in question were in fact bogus at the time each was submitted to the Department. The Tribunal would also note that applicants are responsible for the submissions they submit. The Tribunal does not accept on the evidence before it that the review applicant was unaware the documents in question were bogus and does not accept the documents were submitted to the Department in the innocent belief that they were genuine. In response to the review applicant’s submission, the Tribunal is of the opinion, based on the evidence before it, that the bogus documents were submitted to the delegate with ‘purposeful falsity’.
The review applicant provided to the Tribunal photographs of grave sites with a timber cross as evidence of the deaths of two of the three parents of the visa applicants (T1, Folio. 96) but the photographs provide no satisfactory evidence whatsoever that the visa applicant’s parents are deceased as claimed in the bogus death certificates and hospital discharge certificates.
On the evidence before the Tribunal the review applicant has provided bogus documents in the form of three death certificates for the visa applicant’s parents: Akuol Arok Mayen, Malang Arok and Arok Aguyer Mayen; a discharge summary from the Moi Teaching and Referral Hospital Discharge Summary for Akuol Arok Mayen and a discharge summary from the Kenyatta National Hospital for Malang Arok. The Tribunal considers this evidence is relevant to its assessment whether there was an element of fraud or deception by the applicant which has attracted the operation of PIC4020(1): Trivedi v MIBP [2014] FCAFC 42. The Tribunal considers the provision of false and misleading information to the department in the visa applicants’ 117 Child (Orphan Relative) visa applications involved an element of fraud or deception on the part of the review applicant.
The Tribunal finds the review applicant has provided bogus documentation in relation to the visa applicants’ 117 Child (Orphan Relative) visa applications. The Tribunal finds the evidence before it of the provision of multiple bogus documents is substantial. The Tribunal considers the review applicant’s explanation – and his attempt to claim a lack of any knowledge whatsoever as to the veracity of these multiple documents – quite frankly implausible.
The Tribunal again notes that PIC 4020 requires that there is no evidence that the visa applicant has given, or caused to be given, false or misleading information or a bogus document. The Tribunal notes that the documentation the Tribunal has found to be bogus documents was in fact ‘supplied’ to the Department by the review applicant. The Tribunal however has considered and finds that it is the visa applicants that have ‘given, or caused to be given’ the bogus documentation to the Department. As discussed earlier in this decision record, this is because the Tribunal is satisfied that an agency relationship clearly exists between the review applicant and the visa applicants who are all minors. The visa applicants at the time of application on 26 September 2016 were 7 years of age (James), 9 years of age (Andrew), 10 years of age (Moses), 11 years of age (Joseph) and 12 years of age (Elizabeth). The visa applicants were all minors at the time of application and the review applicant is their uncle. The Tribunal finds that the visa applicants did cause the bogus documents to be given because of the agency relationship that exists between the visa applicants and their uncle the review applicant.
The Tribunal’s findings and reasons about whether there is evidence before the Tribunal that the applicant has given, or caused to be given, to the Minister an officer, the Tribunal, a relevant assessing authority of a Medical Officer of the Commonwealth therefore are as follows:
·A ‘bogus document’, as defined in s.5(1), i.e. a document that the Tribunal reasonably suspects is a document that:
opurports to have been, but was not, issued in respect of the person, or
ois counterfeit or has been altered by a person who does not have authority to do so, or
oWas obtained because of a false or misleading statement, whether or not made knowingly.
And/or
·‘information that is false or misleading in a material particular; as defined in PIC 4020(5), i.e. information that is:
ofalse or misleading at the time it is given, and
oRelevant 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.
oin relation to the visa application or a visa held in the 12 months before the visa application was made.
There is evidence before the Tribunal that the applicant has given, or caused to be given, to the Minister, an officer, the Tribunal, a relevant assessing authority or a Medical Officer of the Commonwealth a ‘bogus document’ as defined in s.5(1)(b) and/or information that is false or misleading in a material particular’ as defined in PIC 4020(5). This evidence is as follows:
In regard to a ‘bogus document’, as defined in s.5(1):
oDeath certificate for Akuol Arok Mayen purportedly issued by the Kenyan Department of Civil Registration National Office;
oDeath certificate for Malang Arok purportedly issued by the Kenyan Department of Civil Registration National Office
oDeath certificate for Arok Aguyer Mayen purportedly issued by the Kenyan Department of Civil Registration National Office
oDischarge summary for Akuol Arok Mayen purportedly issued by the Moi Teaching and Referral Hospital;
oDischarge summary for Malang Arok purportedly issued by the Kenyatta National Hospital.
The Tribunal therefore finds that these documents meet the definition of a bogus document under s.5(1)(b): they are counterfeit documents.
The Tribunal thus finds that the applicant supplied ‘bogus’ documents to the Department as defined in s.5(1), thus giving ‘information that is false or misleading in a material particular’ to the Department as defined in PIC4020(5). This information, the Tribunal considers, is false or misleading in a material particular because these documents – in particular the three death certificates – are central in the assessment of the claim of the visa applicants that they are orphan relatives of the review applicant as required by the Regulations. The information pertaining to the status of the visa applicants’ parents – that is whether they are living or deceased - would have been relevant to the assessment of whether the visa applicants are in fact orphans as claimed and as required by the Regulations.
Therefore, the visa applicants do not meet PIC 4020(1).
Should the requirements of PIC 4020(1) or (2) be waived?
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.
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.
The Tribunal invited the applicant at the hearing to submit any compelling circumstances that affected 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 justified the granting of the visa. The Tribunal noted the applicant failed to submit information to the delegate seeking a waiver of PIC 4020(1) on such a basis.
In his written submission the review applicant, an Australian citizen, submitted that he was suffering from mental health issues and severe symptoms of depression and anxiety. He submitted that granting of the visas would help him overcome his mental health issues which he claims are directly linked to being separated from the visa applicants and fears as to what might happen to them offshore. It is claimed that reunification of the review applicant with the visa applicants would enable him to provide them with a good education, a better future and subsequently greatly improve his mental health.
At the hearing the review applicant spoke about his concerns for the visa applicants and the impact their current situation was having on his mental health. He stated that he was confused and shocked and didn’t know what to do about them. He said if he were offshore with them then he could have looked after the whole visa situation. He said he needed the visa applicants with him.
In relation to his mental health, the review applicant said that since the loss of his brother he had not been the same. He said he had been thinking of the visa applicants and how they lived. The review applicant stated he was regularly supplying money to the visa applicants which was very stressful. He stated he needed the visa applicants with him and could not abandon them as they were his brother’s children. He said he last saw them in December 2017. The review applicant said he was concerned his stress levels might impact upon his job.
The review applicant’s comments about his concerns for his mental health were reflected in the submissions both oral and written by his employer Mr Timothy Pearce of Novatex Products and his cousin Chol Atem. The review applicant’s employer Mr Pearce provided both oral testimony and a letter of support for the review applicant. Mr Pearce stated that the review applicant had been employed by Novatex since 2012 and became full-time in 2013. He stated that the review applicant on some days was down and ‘not himself’ due to the stress of caring for the visa applicants offshore.
The Tribunal asked the review applicant questions about his mental health claims and what evidence did he have to support his claims. No documentary corroborative evidence was submitted. The review applicant stated that he consulted his GP because he wasn’t sleeping at night and his GP advised him that he was stressed and thinking too much. He said at times he went to hospital. The review applicant provided no mental health plan or other documentary evidence. The Tribunal notes the oral testimony of Mr Pearce that the review applicant was on occasion ‘down’ or ‘not himself’ at work but in the absence of corroborative documentary medical evidence gives the claim in relation to the review applicant’s mental health limited weight.
The Tribunal has carefully considered the review applicant’s claims pertaining to his mental health and whether, in the circumstances of this case, the claims represent a compassionate or compelling reason that affects the interest of an Australian citizen to justify the granting of the visa. On the evidence before it the Tribunal is not satisfied that the claims represent compassionate or compelling reasons. There is no corroborative evidence of the review applicant seeking any professional mental or psychological health treatment during the period he claims to have been providing support to the visa applicants. There is no mental health plan and no corroborative evidence of the review applicant seeking advice from his GP in relation to his mental health as he has claimed. The Tribunal does accept that providing financial support to the visa applicants would generate a degree of extra stress on the visa applicant (as identified by Mr Pearce in his own evidence) as he balances maintaining a full-time job and attempting to pursue his own ambitions (such as study). That is to be expected in the circumstances. PIC 4020(4) allows the Tribunal to waive PIC 4020(1) if there are if there are compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen; that justify the granting of the visa. The Tribunal does not consider, in the absence of corroborative specialist medical opinion and evidence, that the review applicant’s mental health is a compassionate or compelling circumstance for it to waive PIC 4020(1). The Tribunal does not on the extremely limited evidence before it accept the submission that the review applicant suffers from mental health issues such as ‘severe symptoms of depression and anxiety’ (T1, Folio. 89) that warrant the Tribunal exercising the waiver. The Tribunal will not waive PIC 4020 (1) in these circumstances.
The Tribunal has considered the review applicant’s claim that he wishes to provide the visa applicants with a good education and a better future. The Tribunal accepts that he wants the best for his family. The Tribunal notes however that he claims to have made financial significant contributions to the visa applicants for a number of years. The Tribunal does not accept both his ability and desire to provide the visa applicants with a good education and a better future is reliant upon the grant of this visa. The Tribunal does not consider these compassionate or compelling circumstances to waive PIC 4020(1).
The Tribunal has considered the review applicant’s claim that he needs the visa applicants with him. The Tribunal accepts that he would prefer the visa applicants to be with him in Australia: that is a common situation for many individuals that desire their family to join them in Australia. The Tribunal does not accept that this represents a compassionate or compelling circumstance to waive PIC 4020(1). The review applicant is in full-employment. If he so desires, he can choose (admittedly post the lifting of travel restrictions imposed due to the pandemic at the time of decision) to visit the visa applicants off-shore. He can communicate with them regularly via a wide range of modern communication avenues.

The Tribunal has considered the review applicant’s claim he has not been the same since the loss of his brother. The Tribunal notes the claims of the review applicant pertaining to his brother and accepts the loss of a sibling is a sorrowful situation for any individual. The Tribunal does not however consider this a compassionate or compelling circumstance for it to waive PIC 4020(1). The Tribunal on the evidence before it does not accept the claim that the review applicant’s brother is deceased and notes documentation supposedly supporting the claim of the death of the applicant’s brother has been found to be bogus. Given the Tribunal does not accept the claim that the review applicant’s brother is deceased, it cannot accept the claim that the claimed death of the review applicant’s brother – and the impact allegedly on the review applicant – is a compassionate or compelling circumstance for it to waive PIC 4020(1).
The Tribunal has considered the review applicant’s claim that he cannot abandon his brother’s children. The Tribunal notes the review applicant has claimed to provide a significant amount of ongoing financial support to the visa applicants. There is no evidence to suggest the review applicant will not continue to do so in the future. The Tribunal does not accept refusing the applications of the visa applicant’s will result in the review applicant ceasing any support – both financial and emotional - he might provide. The Tribunal does not consider this claim is a compassionate or compelling circumstance for it to waive PIC 4020(1).
The Tribunal has considered whether the ongoing costs the review applicant claims he has sustained since 2014 represent compassionate or compelling reasons for it to waive PIC 4020(1). The review applicant discussed in some detail the considerable financial drain maintaining such support was causing him.
The review applicant’s cousin Chol Atem also provided oral testimony on this matter to the Tribunal. He stated the review applicant looked after all the needs of the visa applicants since the death of the review applicant’s brother in 2014. He said that the cost of looking after the review applicants offshore was prohibitive for the review applicant. Granting the visa applicants their visas would allow the review applicant to take out a mortgage and finally buy a house rather than rent.
The applicant’s employer Mr Pearce similarly noted the review applicant’s financial situation and the support he provided the visa applicants. Mr Pearce stated that he was aware the review applicant sends monies overseas to support the visa applicants and to assist him, Novatex Products has given the review applicant as much support as possible in areas such as overtime. Mr Pearce noted that he became aware in 2014 that the review applicant’s brother had died and the following month his sister in law had deceased in a motor vehicle accident. He stated that the review applicant needed to take a few weeks off at that time and needed to find ways to help support the orphaned children of his deceased brother and sister in law. He said the business had attempted to assist in providing the review applicant with extra support.
The Tribunal notes the evidence submitted of funds from the review applicant to a Mayen Aguer between 2017 and 2019 some 33 times as well as 3 transfers to a Michael Aguer in 2019-2020. There are also 6 transfers to a Deng Mabior between 2017 and 2019 and 5 transfers to an Abuk Garang between 2018 and 2020. The Tribunal notes evidence of further transfers in 2015 and 2016 in the Departmental file from the review applicant to other individuals including Elizabeth Adheu DengAwer, Deng Mabior Major and Adau Bul Auyl. The review applicant has submitted these documents as evidence of his support for the visa applicants and that these transfers are funds for benefit of the visa applicants.
The Tribunal accepts the review applicant has transferred funds to the aforementioned people named but does not accept this is necessarily evidence of monies being sent to and/or for the benefit of the visa applicants. The Tribunal notes that the review applicant in his oral testimony said he had been sending monies to Ms Mary Abuk for the purposes of obtaining information concerning the deaths of the visa applicants’ parents. He has provided correspondence from the property agents of the apartment he claims the visa applicants reside in. This states Mary Abuk is the tenant who rents the property the visa applicants reside in. He has stated that she is the individual that looks after the visa applicants. There is no documentary evidence however before the Tribunal of any financial transactions being made to Ms Abuk.
For the purposes of this review the Tribunal is prepared nevertheless to accept that the review applicant has provided some financial support to the visa applicants since his arrival in Australia. The Tribunal accepts his claims that he is concerned for their wellbeing and wants the best for them.
The Tribunal however cannot accept on the limited evidence before it that the parents of the visa applicants are deceased. The Tribunal notes that the corroborative evidence that has been submitted by the review applicant has been found to be bogus: multiple documents from a range of institutions. The Tribunal is not satisfied that the photographs of two gravesites that have been subsequently submitted constitutes corroborative evidence of their deaths and the orphan status of the visa applicants. The Tribunal acknowledges the supportive oral testimony of his cousin Mr Atem but in the absence of further satisfactory corroborative information gives the evidence limited weight. Given the Tribunal either does not accept the corroborative evidence submitted or finds the corroborative documentary evidence of the death of the visa applicants’ parents to be bogus, the Tribunal cannot be satisfied that the parents of the visa applicants are in fact deceased.
The Tribunal subsequently is not satisfied that the ongoing costs he has sustained in supporting the visa applicants is a compelling or compassionate circumstance for it to waive PIC 4020(1). The Tribunal is not satisfied on the evidence before it that the visa applicants are orphans as has been claimed. The Tribunal does not accept the claim that the visa applicants are entirely financially reliant upon the review applicant. The Tribunal accepts the review applicant is providing a degree of ongoing financial support for his family offshore. This does not, in the Tribunal’s opinion, lead to the necessary conclusion that the visa applicants are orphans and he is virtually single-handedly responsible for their financial welfare. The Tribunal appreciates the testimony of Mr Pearce as to the support the review applicant is providing the visa applicants, but notes his knowledge is based largely upon what he has been told by the review applicant.
The Tribunal accepts the review applicant is incurring costs in supporting his family members such as the visa applicants offshore. The Tribunal notes that his own financial expenditure is ultimately a decision for him to make. The Tribunal notes the claims he is obliged to support his visa applicants for family reasons but, given the Tribunal cannot accept on the evidence before it that the visa applicants’ parents are deceased, the Tribunal cannot accept that the visa applicants are reliant on the review applicant as he has claimed. The Tribunal has considered the financial costs the review applicant incurs in supporting the visa applicants but does not accept they are compelling or compassionate circumstances for it to waive PIC 4020(1).
The review applicant in his oral testimony discussed his job at Novatex Products and the stress the situation of the visa applicants was causing him with his job. The Tribunal has considered whether the impact of the ongoing situation facing the visa applicants on the review applicant was a compelling or compassionate reason for it to waive PIC 4020(1). The Tribunal notes the review applicant has been employed at Novatex since 2012 and in a full-time role since 2013. The evidence of Mr Pearce of Novatex is that the review applicant is a very good employee which the Tribunal accepts. The Tribunal accepts supporting the visa applicants financially and emotionally may cause him an increased amount of stress that can impact in the work place. Nevertheless, the Tribunal does not consider this a compelling or compassionate circumstance to waive PIC 4020(1). Employees often have to manage a range of emotional and financial family issues whilst maintaining their focus and commitment to their own employment. The review applicant has successfully maintained his job full-time since he claims he commenced providing support for the visa applicants in 2014. There is no corroborative documentary evidence he has sought professional specialist assistance to deal with stress being caused by the situation surrounding the visa applicants. Whilst the Tribunal can accept the review applicant’s situation with the visa applicants may increase the stress he feels, the Tribunal does not consider it to be exceptional, onerous or, for the purposes of this review, a compelling or compassionate circumstance for the waiver of PIC 4020(1).
The applicant submitted that he had a desire to study for qualifications in criminology. He intimated that the financial demands of supporting the visa applicants offshore precluded him from being able to study. If they were to come to Australia, he would have a greater opportunity to pursue this goal. The Tribunal found the review applicant to be a motivated, articulate and intelligent individual. The Tribunal has little doubt he would do well in any future studies he may undertake. Making decisions as to what to prioritise his personal expenditure is a matter for the review applicant. The Tribunal does not consider his desire to study – and the detrimental impact of any financial support he is providing to the visa applicants has upon this desire – is a compelling or compassionate circumstance for the Tribunal to waive PIC 4020(1).
The applicant submitted in his oral testimony that the visa applicants’ safety in Kenya due to the coronavirus pandemic was a concern. The visa applicants, he submitted, would be safer in Australia. The review applicant provided no corroborative evidence to support his assertion. The Tribunal appreciates the concerns but notes as a compassionate or compelling circumstance it is not, in relation to the visa applicants, affecting the interests of an Australian citizen, an Australian permanent resident or an eligible NZ citizen and therefore does not meet the requirements of PIC 4020(4).
The Tribunal has also considered whether the coronavirus pandemic and the visa applicants’ potential safety in Kenya could be seen as a compassionate or compelling circumstance affecting the interest of an Australian citizen – being the review applicant himself– that justifies the grant of the visa. The Tribunal notes that the review applicant has not provided any corroborative or documentary evidence as to how the visa applicants’ particular and specific safety will be compromised due to the coronavirus pandemic by them remaining in Kenya rather than Australia. The Tribunal notes that the coronavirus is a global pandemic and on the very limited and general evidence before it does not consider, as it relates to the review applicant and the concerns he holds for the visa applicants, to represent a compelling or compassionate circumstance that would justify the waiver of PIC 4020(1) and the grant of the visa.
The applicant’s representative raised the issue of fraudulent and counterfeit documents in Kenya and his knowledge of such problems from a previous case. He intimated that junior staff could be involved in such behaviour and stated the review applicant never intended to mislead the Department. The Tribunal accepts that fraudulent and counterfeit documentation can be an issue in such visa applications. On the matter before the Tribunal however, the five documents in the Tribunal’s opinion are clearly bogus and have been utilised in support of the visa applications for the five visa applicants in relation to a material particular. This issue is directly relevant to whether the visa applicants’ parents are living or deceased – and is relevant to the assessment of whether the visa applicants are in fact orphans as claimed and as required by the Regulations. The Tribunal accepts the documents in question are clearly bogus and were held out to be genuine by the applicants in their application. The Tribunal does not consider the potential existence of other bogus documentation in Kenya is a compelling or compassionate reason for it to waive the requirement to meet PIC 4020(1).
No submissions were made to waive PIC 4020(1) on the basis that there were compelling reasons that affect the interests of Australia that justify the grant of the visa.
The Tribunal has nevertheless considered the review applicant’s current employment – and whether any adverse impact the refusal of the visa applicant’s applications may potentially have upon his ability to maintain the good standards of work he provides to his Australian employer – could be seen to be a claim that affects the ‘interests of Australia’. This is a question of fact and evidence for the Tribunal. The Tribunal accepts the review applicant is a good employee and will be disappointed by the refusal of the visas. On the evidence before it however, the Tribunal does not consider any potential adverse impact the refusal of the visa applicants applications may have upon the review applicant’s work as an employee of Novatex Products can be seen to constitute compelling circumstances that affect the interests of Australia that justify the grant of the visa.
There is no evidence to suggest that Australia would miss out on a significant benefit that a person could contribute to Australia’s business, economic, cultural or other development if the visa applicants’ visa was not granted. There is no evidence to suggest Australia’s relationship with a foreign government will be damaged if the visa applicants were not granted the visa. There is no evidence Australia’s trade or business opportunities would be adversely affected were the visa applicants not granted the visa.
The Tribunal is subsequently satisfied on the evidence before it that there are no compelling reasons that affect the interests of Australia that justify exercising the waiver and the granting the visa.
Therefore, the requirements of PIC 4020(1) should not be waived.
On the basis of the above, the applicants do not satisfy PIC 4020 for the purposes of cl.117.223.
Having concluded that the applicants do not meet PIC 4020 the Tribunal finds no evidence that the applicants meet the criteria for any other subclass within the class of visa sought.
The Tribunal may refer the case to the Department for consideration by the Minister pursuant to s.351 which gives the Minister discretion to substitute for a decision of the Tribunal another decision that is more favourable to the applicant, if the Minister thinks that it is in the public interest to do so. The issue of Ministerial referral was raised by the review applicant in his written submission to the Tribunal. The Tribunal has carefully considered the review applicant’s circumstances and the claims he has made in relation to the visa applicants. The Tribunal has considered the applicant’s case and the Ministerial guidelines relating to the discretionary power set out in the Department’s Procedures Advice Manual (PAM3) but does not find the circumstances compelling and compassionate. The Tribunal has decided not to refer the matter.
DECISION
The Tribunal affirms the decision not to grant the applicants Child (Migrant) (Class AH) visas.
Justin Owen
Senior 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.
…

[2020] AATA 1564

29 April 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice

Standing