Awudu (Migration)

[2021] AATA 4020

Awudu (Migration) [2021] AATA 4020 (7 October 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Petrina Valerie Awudu

VISA APPLICANT:  Ms Maridiya Mohammed

CASE NUMBER:  1918117

HOME AFFAIRS REFERENCE(S):          2018012479 OSF2018012479

MEMBER:SM Justin Owen

DATE:7 October 2021

PLACE OF DECISION:  Sydney

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

Statement made on 07 October 2021 at 9:55am

CATCHWORDS

MIGRATION ­– Child (Migrant) (Class AH) visa – subclass 101 (Child) visa –– bogus documents – failed to meet the criteria in PIC 4020(1)– review applicant had withdrawn her sponsorship – no satisfactory grounds to waive the requirements of PIC4020 – lack of the sponsorship at the time of decision – sponsorship of the review applicant is no longer in force at the time of decision– decision under review affirmed

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, Schedule 2, cls 101.212, 101.222, 101.223

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 20 May 2019 to refuse to grant the visa applicant a Child (Migrant) (Class AH) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The visa applicant applied for the visa on 7 February 2017. At the time of application, the Child (Migrant) (Class AH) visa contained Subclass 101 (Child), Subclass 102 (Adoption) and Subclass 117 (Orphan Relative). In this case, claims have only been made in respect of Subclass 101 (Child).

3. The criteria for a Subclass 101 visa are set out in Part 101 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). Relevantly to this case, they include cl. 101.222 which is a time of decision criteria that requires the sponsorship referred to in cl. 101.212 from the time of application, has been approved by the Minister and is still in force.

4. The delegate refused to grant the visas on the basis that the visa applicant did not satisfy the requirements of cl.101.223 of Schedule 2 to the Regulations because the visa applicant had not satisfied Public Interest Criteria 4020 (‘PIC 4020’). The delegate found that the visa applicant had not satisfied PIC4020(1) as she had provided a bogus document, or false or misleading information in her subclass 101 Child visa application, namely a bogus school record in relation to her schooling in Ghana. The delegate found that she was not satisfied that there were any 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 that would justify the grant of the visa: PIC4020(4). The delegate found, based on the evidence and information before her, she was not satisfied that the applicant met PIC 4020(1). As the applicant failed to meet PIC4020(1) and there were no satisfactory grounds in the delegate’s opinion to waive the requirements of PIC4020(1)(a) or (b), the delegate found the applicant did not satisfy PIC4020 and cl.101.223 was not met.

5. The Tribunal received from the applicant a valid application for review on 6 July 2019. The review applicant, Mrs Petrina Valerie Awudu, was the stepmother of the visa applicant and an Australian citizen.   

6. The Tribunal exercised its discretion to hold the hearing by teleconference. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical, and quick, and the delay to the matter if the hearing was not to be conducted by telephone.  The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.

7. On 25 June 2020 the review applicant wrote to the Tribunal withdrawing her sponsorship of the visa applicant for this visa.  The letter was signed by her, and sent by her representative, stating she had withdrawn her sponsorship.  The letter noted the visa applicant’s father now had acquired permanent residency and enquired into changing sponsors.

8. Noting the review applicant’s withdrawal of her sponsorship, on 7 July 2020 the Tribunal contacted the review applicant through her representative to ascertain if she also wished to withdraw her review before the Tribunal.  The review applicant’s representative again stated that the review applicant wanted to change the sponsor on the case. The Tribunal advised the review applicant’s representative that this could not be done in the circumstances of this case and visa subclass, and directed the parties to contact the Department.

9. On 7 July 2020 the Tribunal furthermore wrote to the review applicant about also withdrawing the review here at the Tribunal.  The Tribunal noted that there is a requirement that the sponsorship referred to at the time of application has been approved by the Minister and is still in force for the grant of a Child visa. The review applicant was again advised to contact the Department for further information.

10. On 3 August 2020 the review applicant telephoned the Tribunal regarding withdrawing the application for review. The Tribunal noted it had sent an email on 7 July 2020 to the review applicant through her representative requesting the withdrawal of application form it had provided be completed and returned to the Tribunal. The review applicant stated that she had received an email from her Representative concerning this, and would complete it as soon as possible.

11. In her telephone conversation to the Tribunal the review applicant stated that the reason for her withdrawal was that the visa applicant's documents were doctored, and these documents are fraudulent. The review applicant stated that her partner, the visa applicant’s father, had since misled her and left her.  The review applicant made a number of other adverse comments pertaining to the visa applicant’s father. 

12. The review applicant enquired as to whether the visa applicant’s father could also still sponsor the child now that she would be withdrawing the application for review at the Tribunal. The review applicant was directed to the Department.

13. The review applicant never subsequently withdrew her application for review. On 14 September 2021 the Tribunal therefore wrote to the review applicant inviting her to a hearing through her representative, to be held on 29 September 2021.  

14. On 16 September 2021 the review applicant contacted the Tribunal, enquiring if she could receive a refund for her Tribunal application for review. The review applicant was told her review application was still on foot and subsequently a hearing for her to attend had been scheduled for 29 September 2021. The review applicant confirmed she was still in touch with her representative.  The review applicant stated that her ex-husband, the visa applicant’s father, had left her and hadn't been in contact with her.  She stated that the visa applicant’s father now had either permanent residency or citizenship, so could sponsor his daughter, the visa applicant, on his own.  The Tribunal stated again to the review applicant that the sponsorship could not  simply be swapped from her to the visa applicant’s father in the existing Child visa application. The Tribunal enquired of the review applicant if she wanted to formally withdraw her application for review by completing a withdrawal form.  The review applicant stated she said she would only do that if she could receive a refund, and if she couldn't receive a refund, she wanted to proceed to a hearing. The review applicant stated her ex-husband, the visa applicant’s father, was better placed to participate in the hearing.  The review applicant confirmed she would complete the invitation to hearing form and return it to the Tribunal.

15. On 20 September 2021 the review applicant and the visa applicant’s father both contacted the Tribunal separately.  Both claimed that the review applicant’s representative was asking them to pay outstanding legal fees they could not afford.  The Tribunal advised the review applicant that it could not intervene on issues pertaining to her representative.  The Tribunal advised the review applicant that she could nevertheless still proceed with her hearing and review without a representative.  The review applicant was provided with an MR6 form. The visa applicant’s father stated he would communicate with the review applicant and make sure the form was completed and returned in the next day. The visa applicant’s father was informed of the time and date of the hearing, and that it would be via teleconference.

16. On 23 September 2021 the Tribunal received from the visa applicant’s father a Change of Contact Details – MR Division form.  Whilst in the name of the visa applicant, the visa applicant’s father has signed the form which purports to cancel the existing representative, and appoints the visa applicant’s father as the authorised recipient in this matter. The form is not signed by the review applicant or the visa applicant.  It is invalid. 

17. On 23 September 2021 the Tribunal also received a response to hearing invitation form from the visa applicant’s father.  There is a tick in the box that states the review applicant will not participate in the hearing and consents to the Tribunal making a decision on the papers without taking further steps to allow the review applicant to appear.  Witnesses are listed including the visa applicant’s father, the visa applicant’s mother Ms Sadia Ali, and the purported Assistant Headmaster – Academic at the visa applicant’s claimed school in Ghana, Mr Baazeng Jacob, whose contact details were given as an email address.  The response to hearing invitation form was signed by the visa applicant’s father.  The Tribunal does note however that the visa applicant’s father has no standing to make such claim: his role in the hearing and the review is that of a witness.     The Tribunal is not satisfied that these forms were completed by the review applicant.  The Tribunal nevertheless, based on the communications received from the review applicant, is satisfied that the visa applicant’s father has completed them with the knowledge and consent of the review applicant. 

18. Just prior to the scheduled hearing at 9.30am on 29 September 2021 the Tribunal received a telephone call from the review applicant. She stated she could not read the hearing invitation and couldn’t read the telephone number to dial in.  The Tribunal provided all details again.  The review applicant appeared before the Tribunal via telephone just prior to the commencement of the hearing at 9.30am on 29 September 2021 and stated she did not wish to provide evidence to the hearing, and departed the hearing. The visa applicant’s father telephoned into the hearing at the scheduled time. The Tribunal received oral evidence from the visa applicant’s father.

19. The review applicant was represented in relation to the review by her registered migration agent.  At the time of decision, the Tribunal is not satisfied that the review applicant has properly cancelled her representative, as no signed form from the review applicant cancelling the authorisation has been received. 

20. Despite the absence of the review applicant, the Tribunal nevertheless determined to open the hearing at 9.30am in order to address a number of matters to the visa applicant’s father – who the Tribunal is satisfied is in close contact with his daughter, the visa applicant, who is in Ghana.  The Tribunal considered that in the interests of procedural fairness it would proceed with the scheduled hearing.

21. The Tribunal informed the visa applicant’s father that the determinative issue before it, even before considering the Public Interest Criteria 4020 and the bogus documentation issue which was why the visa applicant’s application was refused in 2019, was the issue of sponsorship – and that the sponsorship of the visa applicant by the review applicant and sponsor must be approved and in force at the time of decision.  The sponsorship, or rather lack of the sponsorship at the time of decision, was the determinative issue before the Tribunal.

22. The Tribunal noted that the primary review applicant and sponsor was not at the hearing.  The Tribunal explained to the visa applicant’s father that this was essentially her case as the primary review applicant; the Tribunal’s obligation was to her as the primary review applicant.

23. The Tribunal explained to the visa applicant’s father that the review applicant had withdrawn her sponsorship of the visa applicant over a year ago.  The Tribunal explained that because of this, at the time of decision, the visa applicant would not be able to satisfy the primary criteria for the grant of the visa.  The Tribunal explained that whilst this matter was refused originally by the delegate on the issue of bogus documentation and the failure to satisfy PIC 4020, the immediate issue was that over a year ago, in June 2020, the sponsor had withdrawn her sponsorship of the visa applicant. 

24. The Tribunal explained that to meet the criteria for the grant of the visa, the visa applicant must be sponsored by a person who has turned 18 and is an Australian citizen, Australian permanent resident or eligible New Zealand citizen.  The Tribunal explained that this was not the case.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

26. The issue in this case is whether, at the time of decision, the visa applicant sponsored the grant of the visa.

    Sponsorship

27. Clause 101.212 requires that, at the time of application, the visa applicant is sponsored by a person who has turned 18, is an Australian citizen, permanent visa holder or an eligible New Zealand citizen. The sponsor must be either the person for whom the visa applicant is their dependent child, or a cohabiting spouse or de facto partner of that person. At the time of decision, this sponsorship must have been approved and still be in force: cl. 101.222.

28. On 7 February 2017, the review applicant sponsored the visa applicant for a visa. At the time of application, the Child (Migrant) (Class AH) visa contained Subclass 101 (Child) visa. The review applicant claimed in the Form 40CH Sponsorship for a child to migrate to Australia that the visa applicant was her step-child (D1, Folio. 17).  She claimed a daughter from a previous relationship.  The review applicant claimed to be in a married or de facto relationship with the visa applicant’s father at the time of application. 

29. The review applicant was born on 13 July 1975 in Tasmania, Australia.  She is an Australian citizen by birth.  A copy of her Birth Certificate was supplied to the delegate.

30. The Tribunal is satisfied that the visa applicant was sponsored by a person who has turned 18 and is an Australian citizen, Australian permanent resident or eligible New Zealand citizen. The Tribunal is satisfied that that person is either the same person upon whom they are dependent for the purpose of the Subclass criteria or their cohabiting partner, who in this case was the visa applicant’s father. 

31. The Tribunal notes that the visa applicant was 21 years of age at the time of application. 

32. The Tribunal accepts that the visa applicant was sponsored at the time of application by an eligible Australian citizen. 

33. To meet the criteria for the grant of the visa, cl.101.222 requires that at the time of decision, the sponsorship must be approved and still be in force. 

34. On 25 June 2020, the review applicant’s representative wrote to the Tribunal.  He stated that the review applicant had requested to withdraw her sponsorship of the visa applicant.  A copy of the review applicant’s withdrawal letter was attached to his correspondence.  It stated that review applicant was withdrawing her sponsorship of the visa applicant. 

35. The Tribunal furthermore notes the review applicant’s statements in her telephone call to the Tribunal of 3 August 2020.  The Tribunal notes that the review applicant claimed that the reason for her withdrawal is that the visa applicant's documents were doctored and these documents are fraudulent. The Tribunal notes her claims that her partner, the visa applicant’s father, has since misled her and left her.

36. At the hearing the visa applicant’s father, as a witness, stated that the review applicant now lives in Perth, Western Australia.  He stated that he and the review applicant are still in a relationship together despite residing in different States.  He stated that they have been in a relationship for seven to eight years and have a child together.  He confirmed he has now acquired permanent residency. 

37. The Tribunal asked the visa applicant’s father about the review applicant’s claims about the fraudulent documents submitted by the visa applicant in her application, and the claim that he had left her.  The visa applicant’s father stated that the documents that were found by the delegate to be bogus were in fact correct and the error in originally informing the Department they were non-genuine was a mistake by the school.  He claimed that he had not left the review applicant.  He made comments that there had been issues previously between himself and the review applicant in relation to her friends and drinking, and this conflict led to the review applicant withdrawing her sponsorship and contacting the Tribunal to make allegations concerning himself and their relationship. 

38. The Tribunal has taken into account the testimony of the visa applicant’s father.  The Tribunal nevertheless notes that the review applicant’s sponsorship of the visa applicant was withdrawn on 25 June 2020.  This withdrawal is confirmed by both the handwritten and signed correspondence of the review applicant, and in the email sent to the Tribunal by the review applicant’s representative. 

39. There is no claim made or submission before the Tribunal that the review applicant did not withdraw her sponsorship of the visa applicant.  There is no claim or evidence of any attempt to reinstate the previous sponsorship in the period of over 15 months since the Tribunal was informed of the withdrawal of the sponsorship.

40. There is furthermore no mechanism available to the visa applicant to change sponsors in such circumstances after the lodgement of her Subclass 101 visa application.    

41. As the sponsorship of the review applicant is no longer in force at the time of decision, the visa applicant is unable to meet cl. 101.222 and is unable to satisfy the criteria for the grant of the visa.

42. The Tribunal noted the two witnesses that were listed on the response to hearing invitation form.   The Tribunal asked the visa applicant’s father at the hearing why there was a desire for them to give evidence to the hearing and how this evidence would assist the Tribunal decide the determinative issue in this review, which was whether the visa applicant was sponsored at the time of decision.  The visa applicant’s father said that the visa applicant’s mother, his former partner, had permitted their two other biological children to come to Australia, both of whom are now over 18 years of age.  In relation to the school representative, he stated the witness would confirm the school made an initial mistake in their responses to the Department concerning the visa applicant, and confirm the visa applicant had in fact been a student at the school as claimed.  The Tribunal considered the comments of the visa applicant’s father but decided not to take evidence from either the visa applicant’s biological mother or the claimed school representative.  The Tribunal explained this was because of the lack of a sponsor of the visa applicant at the time of decision: and the Tribunal considered the issue of sponsorship was the determinative issue in this case.  The Tribunal stated that it did not consider any evidence provided by both parties would assist it to decide the determinative matter, namely, at the time of decision was the visa applicant still sponsored for the grant of the visa.  The Tribunal subsequently did not take oral testimony from the two proposed witnesses.      

1. Accordingly, on the basis of the evidence before the Tribunal, and submitted by the review applicant, the requirements in cl. 101.222 are not met.

2. For the reasons above, the criteria for the grant of a Subclass 101 visa are not met. There have been no claims advanced in respect of the other visa subclasses in Class AH (Subclass 102 and Subclass 117).

   DECISION

3. The Tribunal affirms the decision not to grant the visa applicant a Child (Migrant) (Class AH) visa.

   Justin Owen
   Senior Member