Burns and Minister for Immigration, Multicultural and Indigenous Affairs
[2004] AATA 814
•5 August 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 814
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2003/1055
GENERAL ADMINISTRATIVE DIVISION ) Re HELEN BURNS Applicant
And
MINISTER FOR IMMIGRATION, MULTICULTURAL & INDIGENOUS AFFAIRS
Respondent
DECISION
Tribunal Deputy President Don Muller Date5 August 2004
PlaceBrisbane
Decision The Tribunal affirms the decision to reject an application by Patrick Thomas Burns to enter Australia by way of a Child Class (AH) Subclass 101 Dependent Child Visa. .................SIGNED.............................
D.W. MULLER
DEPUTY PRESIDENT
CATCHWORDS
IMMIGRATION – birth certificate and passport with false date of birth – applicant older than 25 years (32 at date of application) – not dependent on sponsor (mother) - did not satisfy the regulations - not of good character due to tender of false documents – no scope to exercise any discretion
Migration Act 1958: s501
Migration Regulations 1994 : R.1.03, 1.05A, 101.21
REASONS FOR DECISION
Deputy President Don Muller 1. Helen Burns, the Review Applicant, is the mother of Patrick Burns, the Visa Applicant. Helen Burns was born in Ghana and she is an Australian citizen.
2. On 8 May 2001, Patrick Burns, a citizen of Ghana, applied to enter Australia by way of a Child Class (AH) Subclass 101 Dependent Child Visa (the Visa), on the basis that he is the dependent son of Helen Burns.
3. On 31 October 2003, the Respondent’s delegate refused Patrick Burns’ application for the visa on the ground that he did not satisfy the “good character” test set out in subsection 501(b)(c)(ii) of the Migration Act 1958 (the Act).
4. The assessment of the delegate that Patrick Burns did not satisfy the good character test was based on the fact that the documents required to be submitted by Patrick Burns in support of his Visa application contained a birth certificate purporting to show his date of birth as 9 August 1980, when his actual date of birth was 9 August 1969. Patrick Burns also submitted a passport with the false birth date on it.
BACKGROUND
5. The following matters are not in dispute and the Tribunal finds as follows:
(a)Helen Burns (nee Thomas) was born in Ghana on 14 January 1951.
(b)On 9 August 1969, Helen Burns gave birth to a son, Patrick Thomas, in Ghana.
(c)On 20 June 1972, Helen Burns gave birth to a second son, Louis Thomas, in Ghana.
(d)The father of the two boys passed away in 1977.
(e)On 11 May 1981 Helen Burns married an Australian citizen, Jason Alexander Burns, in Accra, Ghana. Patrick Thomas was then 11 years old and Louis Thomas was 9 years old. The boys took on the name of Burns.
(f)Jason and Helen Burns settled near the Ghanian town of Assin Breku where they commenced a farming project to grow cocoa and palms.
(g)The marriage of Jason and Helen Burns produced two more children, Emelia Burns born on 18 February 1982 and Hamish Burns born on 28 April 1985.
(h)In 1982 Jason Burns made application to a government department in Ghana, to adopt Patrick Thomas Burns and Louis Thomas Burns. His application was not successful. The government department apparently decided that Jason Burns was not of sufficient means or stability to allow him to adopt the boys.
(i)It is now clear that when Jason Burns was going through the process of applying for adoption of the two boys Patrick and Louis, he obtained their birth certificates. The documents show that he obtained a birth certificate for Patrick Thomas on 4 May 1982. That certificate shows Patrick Thomas was born at Assin Fosu, Ghana, on 9 August 1969.
(j)Helen Burns was not aware until a few years ago that Jason Burns had obtained a birth certificate for Patrick.
(k)In 1991, Jason Burns returned to Australia to live permanently. He brought with him Helen Burns and their two children Emelia Burns and Hamish Burns. Patrick Thomas Burns and Louis Thomas Burns remained behind in Ghana.
(l)Helen Burns required a visa to enter Australia. Jason Burns filled in and filed the documentation on behalf of Helen Burns. Although Helen Burns speaks very good English, she cannot read and write.
(m)Jason Burns made application for a visa on behalf of Helen Burns on 12 March 1991. On the application form Jason Burns entered details about Helen Burns’ four children. The entries showed the dates and places of birth of each of the four children. In particular, Patrick Thomas was shown to have been born on 9 August 1969 at Assin Fosu, Ghana.
(n)Helen Burns became an Australian citizen on 18 May 1994.
(o)In 1995, Jason Burns abandoned Helen Burns and the two children of their marriage. Jason Burns applied to the Family Court of Australia for dissolution of the marriage. He obtained a decree nisi on 23 January 1996 which became absolute on 24 February 1996.
(p)In 1995, Helen Burns made application to the Australian government authorities, for the entry into Australia of her two older sons Patrick and Louis. Her application was disallowed on the grounds that she did not have the financial resources to support them or to sponsor them.
(q)In the year 2000, Helen Burns travelled to Ghana from Australia for the first time, to attend her father’s funeral. She remained in Ghana for about three weeks before returning to Australia. Whilst in Ghana she spent time with her two sons, Patrick and Louis. She told them that at her age she had difficulty getting a well paid job in Australia and that she would not be able to sponsor them. She told them to study hard and get good qualifications, with a view to migrating to Australia to be with her and their other brother and sister.
(r)In 2001, Louis travelled to Australia on a visitor’s visa, for a holiday. He then returned to Ghana to complete his studies in computer technology.
(s)Patrick was studying electrical engineering in Ghana.
(t)On 8 May 2001, Patrick lodged an application for the Visa in Nairobi. He declared his date of birth to be 9 August 1980, which would have made him appear to be 20 years of age at the time, instead of his actual age of 31.
(u)Patrick’s application for the Visa was accompanied by a birth certificate which showed his date of birth to be 9 August 1980. The certificate showed that the birth had been registered on 14 September 2000 and that the certificate had been obtained on 15 December 2000.
(v)Patrick filled in all parts of the application forms. Those parts of the forms which would normally have been filled in by his mother, were answered by Patrick on his mother’s behalf, because she cannot read or write.
(w)On 29 January 2002, a delegate of the Immigration Section in the Australian High Commission, Nairobi, wrote to Helen Burns to tell her that documentation from Ghana was regarded as unreliable and that it would be necessary for her and her son Patrick to take DNA tests. There was also a request that Patrick undergo a bone scan to assess his age. The delegate also included her “Case Summary”, dated 11 December 2001, in which she alluded to the discrepancy in the birth dates of Patrick in the documents lodged by him compared to those lodged on behalf of his mother in 1991.
(x)The DNA and bone scan tests were carried out in August and September 2002. They showed that Helen Burns could not be excluded as the mother of Patrick and that Patrick was at least 19 years old.
(y)On 11 April 2003, Patrick Burns provided to the Respondent, photocopies of an affidavit from him, and an affidavit from Hayford Osei Bonsu, an elder of Patrick’s village, who had been responsible for producing the birth certificate with the incorrect date.
(z)The affidavit of Patrick Burns was to the effect that he did not know his date of birth and that he relied entirely on Mr. Bonsu to secure the birth certificate for him. He claimed not to know that the birth date on the certificate was wrong.
(aa)The affidavit of Mr. Bonsu was to the effect that he had known the family for many years when they lived in his community. He said it was not part of the custom in his community to record birth dates, they tended to associate people’s ages with events or occasions which occurred at about the time of their birth. He said that he had to “guess a date” and arrange for the certificate. He said that he guessed the date without any input from Patrick.
6. Helen Burns gave evidence to the Tribunal she said (among other things):
· She is not working full-time;
· She is in poor health;
· She is in regular contact by telephone with Patrick;
· She desperately wants to be re-united with her two sons Patrick and Louis;
· Her sons are Christians and they are good people.
7. Patrick Thomas Burns gave evidence by telephone. He said (among other things):
· He completed high school and then went on to complete a Diploma of Associate Membership at the Professional Technical Training Centre of Amutech Electronics. He completed a three year course in radio and television repair work on 20 June 2002.
· His English is fair.
· He filled in the application forms relating to his visa.
· He did not know his age when he filled in the forms.
· He knew that he was the eldest of his mother’s four children.
· He filled in the correct birth dates for the other three children.
· He relied on the old man in the village to organise his birth certificate.
· He cannot explain how the old man happened to “guess” the correct day and month of his birth (that is the 9th of August).
· He denied that he told the old man to put in the incorrect year of his birth (1980) on the birth certificate.
· He knew at the time he filled in the forms that to qualify for a dependent child visa, he had to be younger than 25 years of age.
· He denied that he had put his mind to the proposition that if he had been born in 1969 he would not have qualified.
· He is not married and he has no dependent children.
8. The relevant legislation is contained in the following Regulations and Subsections of the Migration Act 1958.
“R. 101.21 Criteria to be satisfied at time of application (for a Dependent Child Visa)
101.211 (1) The applicant:
(a)is a dependent child of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen; and
(b)subject to subclause (2), has not turned 25; and
(c)either:
(i) is the natural child, or step-child, of the Australian citizen, Australian permanent resident or eligible New Zealand citizen mentioned in paragraph (a); or
(ii)…..
(2)Paragraph (1)(b) does not apply to an applicant who, at the time of making the application, was a dependent child within the meaning of subparagraph (b)(ii) of the definition of “dependent child”.
R.1.03 “dependent child”(1)
means the natural or adopted child, or step-child, of a person (other than a child who has a spouse or is engaged to be married), being a child who:
(a) …
(b) has turned 18 and:
(i) ….
(ii)is incapacitated for work due to the total or partial loss of the child’s bodily or mental functions.
Regulation 1.05A. Dependent (1)
1.05A. (1)Subject to subregulation (2), a person (the “first person”) is dependent on another person if:
(a)at the time when it is necessary to establish whether the first person is dependent on the other person:
(i)the first person is, and has been for a substantial period immediately before that time, wholly or substantially reliant on the other person for financial support to meet the first person’s basic needs for food, clothing and shelter; and
(ii)the first person’s reliance on the other person is greater than any reliance by the first person on any other person, or source of support, for financial support to meet the first person’s basic needs for food, clothing and shelter;
S.501 Refusal or cancellation of visa on character grounds
Decision of Minister or delegate – natural justice applies
(1)The Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test.
…
(6)For the purposes of this section, a person does not pass the character test if:
(c)having regard to either or both of the following:
(i)….
(ii)the person’s past and present general conduct;
The person is not of good character.”
9. On 23 August 2001, the then Minister for Immigration and Multicultural Affairs issued a Direction which contained the following:
“Subparagraph 501(6)(c)(ii) – past and present general conduct
1.9 In considering whether a non-citizen is not of good character against subparagraph 501(6)(c)(ii), decision-makers should consider the following matters (where they are relevant to the facts of the particular case), and where they are relevant, would, in the absence of any countervailing factors, constitute a failure to pass the Character Test;
(b) whether the non-citizen has, in connection with any application for the grant of a visa or any kind of Government benefit, provided a bogus document or made a false or misleading statement;”
10. I find that Patrick Thomas Burns deliberately set out to mislead the delegates of the Australian Government by knowingly producing a birth certificate with a false date of birth on it for the purpose of passing himself off as a person who was under 25 years of age at the date of his application for the Visa. I find that he colluded with Mr. Bonsu to produce the false document. I do not accept that Mr. Bonsu guessed the date of 9 August 1980. I make the above findings for the following reasons:
·Patrick Burns knew the dates of birth of his two brothers and sister when he completed his application form. It is unlikely that under the circumstances he did not also know his own birthdate.
·Patrick Burns knew that his younger brother Louis was born in 1972. Therefore, he knew that his own birth date had to be before 1972.
·Patrick burns has a good command of English and is well educated.
·Any suggestion that Mr. Bonsu guessed Patrick’s date of birth to be 9 August, with no input from Patrick, is so unlikely that I do not accept it.
11. Whilst I accept the assertion by Helen Burns that her son Patrick is otherwise a decent, god-fearing human being, I believe that the Australian public takes a dim view of people who attempt to hoodwink government officials with false documentation. The delegate correctly applied the Minister’s Direction when she found Patrick Thomas Burns to be a person who does not pass the character test.
12. At any event, Patrick Thomas Burns was clearly older than 25 years and he was not incapacitated for work due to any loss of bodily or mental functions at the date of his application. I am also not satisfied that he was dependent on Helen Burns. Therefore he did not satisfy Regulation 101.21 (quoted above).
13. Patrick Thomas Burns did not qualify for the Visa he sought irrespective of his character status. Consequently, there is no point in determining whether, notwithstanding that the character test was not satisfied, any discretion should have been exercised.
14. The decision to refuse the Visa is affirmed.
I certify that the 14 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President Don Muller
Signed: .....................................................................................
B. Hitchcock, Personal AssistantDate/s of Hearing 30.4.2004, 7.5.2004
Date of Decision 5 August 2004
Applicant Mrs. Burns, herself
Solicitor for the Respondent Blake Dawson Waldron
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