DULLEH (Migration)

[2019] AATA 1659

DULLEH (Migration) [2019] AATA 1659 (30 January 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Seyeh DULLEH

VISA APPLICANT:  Miss Mabongor Losene TAWULLEH

CASE NUMBER:  1619631

DIBP REFERENCE(S):  F2012/050477 OSF2012/050477

MEMBER:Kira Raif

DATE:30 January 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for a Child (Migrant) (Class AH) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 117 (Orphan Relative) visa:

·Public Interest Criterion 4020 for the purposes of cl.117.224 of Schedule 2 to the Regulations.

Statement made on 30 January 2019 at 2:22pm

CATCHWORDS
MIGRATION – Child (Migrant)(Class AH) visa – Subclass 117 (Orphan Relative) – bogus documents – detrimental effect to Australian citizens and residents – impact of instability on work and finances – compassionate circumstances – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5, 65
Migration Regulations 1994, Schedule 2, r 1.03, cls 117.223, 117.224

CASES
Arora v MIBP [2016] FCAFC 35
Batra v MIAC [2013] FCA 274
Kaur v MIBP [2017] FCAFC 184
Mudiyanselage v MIAC [2012] FMCA 88
Plaintiff M64/2015 v MIBP [2015] HCA 50
Trivedi v MIBP [2014] FCAFC 42

STATEMENT OF DECISION AND REASONS

Application for review

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 30 September 2016 to refuse to grant the applicant a Child (Migrant) (Class AH) visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant is a national of Liberia, born in November 1995. She applied for the visa on 10 December 2012. The delegate refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl.117.223 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the delegate found that the applicant did not meet Public Interest Criterion (PIC) 4020. The sponsor (‘the review applicant’) seeks review of the delegate’s decision.

3. The review applicant appeared before the Tribunal on 7 January 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   Relevant law

4. 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).

5. 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).

6. The term ‘information that is false or misleading in a material particular’ is defined in PIC 4020(5) and the term ‘bogus document’ is defined in s.5(1) of the Act. In contrast to the definition of ‘information that is false or misleading in a material particular’ in PIC 4020(5), the reference in the definition of bogus document to a document that was obtained because of a ‘false or misleading’ statement has no requirement that it be relevant to a criterion for the grant of the visa: Arora v MIBP [2016] FCAFC 35; Batra v MIAC [2013] FCA 274.

7. 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.

8. 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.

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

9. The review applicant provided to the Tribunal a copy of the primary decision record which contains the following information. It indicates that the visa applicant stated on her application that she is an orphan as her mother is deceased and the whereabouts of her father are unknown. The visa applicant provided with her application a death certificate for her mother. The departmental decision record shows that verification checks were carried out in relation to the mother’s death certificate and these show that the death certificate is not genuine.

10. In response to the natural justice letter, the sponsor provided a death certificate for Fatuma Dulleh and an affidavit confirming the death of the visa applicant’s mother. The sponsor also provided evidence of money transfers to the visa applicant. In his submission to the delegate, the sponsor states that he was shocked by the finding that the death certificate was a bogus document and they did not intend to present a bogus document. The sponsor states that in Guinea, corruption and dishonesty are highly entrenched and this is the classic case of dishonesty on the part of those they entrusted to obtain a genuine death certificate where his sister died. The review applicant presented the same submission to the Tribunal.

11. The Departmental verification process shows that the death certificate initially presented with the applicant is a bogus document. The Tribunal acknowledges that the review applicant subsequently presented another death certificate for the child’s mother but that does not affect the operation of PIC 4020 if it is found that the first document was a bogus document (Mudiyanselage v MIAC [2012] FMCA 88)

12. The review applicant provided a further submission to the Tribunal on 27 December 2018. He states that he was not given time by the delegate to provide additional documents which was a ‘gross procedure failure’. The review applicant states that they had made the best effort to provide the death certificate for his sister but due to the corruption of officials, it is not uncommon for the officials to keep the fees but make no record of the documents. The review applicant refers to the high level of corruption in Guinea and states that it was not his intention to provide a bogus document to the Department, rather they had no control over the matter. The Tribunal acknowledges that submission, however, as is stated in Trivedi, it is not necessary to establish that the provision of bogus documents was made knowingly or intentionally for PIC 4020 to be engaged.

13. In oral evidence, the review applicant told the Tribunal the visa applicant was in a refugee camp and gave the money to someone else who did not know how to do the ‘proper’ documents. They did not do the papers themselves but relied on another person. The review applicant outlined the reasons the visa applicant could not travel to apply for the documents herself and why she had to rely on another person to obtain the document. The review applicant states that they did not know until hearing from Immigration that the document was a bogus document. The review applicant referred to the endemic corruption.

14. The Tribunal acknowledges the review applicant’s evidence that neither he nor the visa applicant were involved in the provision of bogus documents but were the victims of someone entrusted to obtain the document. As noted above, PIC 4020 applies whether or not the document or information was provided by the applicant knowingly or unwittingly. It is not necessary for the Tribunal to determine that the visa applicant was involved in obtaining the bogus document or that she provided that document knowingly.

15. Having regard to the information in the primary decision record, the Tribunal finds that the mother’s death certificate was a bogus document within the meaning of s. 5(b). The Tribunal finds that there is evidence before the Tribunal that the applicant has given, or caused to be given, to the Minister or an officer, a ‘bogus document’, as defined in s.5(1), Therefore, the visa applicant does not meet PIC 4020(1).

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

16. 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.

17. 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. For the following reasons, the Tribunal is satisfied that the requirements should be waived.

18. In his written submission to the Tribunal the review applicant outlined the detrimental effect the visa refusal would have on the visa applicant. He states that the refusal will also have a detrimental effect on him and his Australia n citizen children. The review applicant refers to his study and employment. He states that the refusal of the visa would impact on his ability to hold a stable job in Australia as he would have to go to Guinea every time the visa applicant cries out to him. He had travelled in the past to search for the visa applicant’s father and siblings and to reassure her and it took him time to find a job. The loss of a job would compromise the best interests of his dependent child and the visa applicant, who are supported by him. He has a debt to the Commonwealth through his education and if he cannot keep the job, he will be unable to repay the debt. Also if he continues to travel in an unplanned manner, his business interests would be compromised, which could lead to financial burden and will have implications for his ability to provide basic necessities to his children. The review applicant submits there are compelling circumstances. The review applicant presented to the Tribunal evidence of having provided financial support to the visa applicant and the Tribunal accepts that evidence

19. With respect to the waiver, the review applicant told the Tribunal in oral evidence that if the visa is not granted, he and his children, as well as the visa applicant, would be affected emotionally and psychologically. The review applicant states that whenever the visa applicant experienced ill-health, he had to travel to Guinea and he lost his job. His children were affected as a result. His mental state has also been affected. He has also experienced psychological illness as a result of the stress related to the visa application. The review applicant states that the visa applicant is the only surviving member of her family and has nobody else to take care of her. If they are not reunited, his health and state of mind cannot be restored.

20. The review applicant told the Tribunal he travelled to see the visa applicant twice, once in 2013 and once in 2015. He said it was expensive and difficult for him to make these trips and he could not leave his family in Australia for longer periods. He cannot care for his own children because of his concern for the visa applicant. The review applicant said the visa applicant grew up with his own children. His children have been allowed to live in Australia and they are affected if the visa applicant cannot join them. 

21. On 29 January 2019 the review applicant provided to the Tribunal further evidence concerning the waiver. The review applicant presented a psychological assessment prepared by a Mental Health Social Worker Halakhe Ganyu. Mr Ganyu refers to the review applicant being ‘diagnosed with acute stress, depression, anxiety’. The report refers to the applicant being administered the DASS test and the treatment that he has received. It is not entirely clear to the Tribunal how a social worker with qualifications in social work and apparently without medical qualifications, could reach such a diagnosis. Nevertheless, the Tribunal acknowledges Mr Ganyu’s opinion of the sponsor’s condition.

22. The review applicant also presented a report from Ms Kay, a psychologist. Ms Kay also refers to the applicant suffering from a major depressive episode and severe generalised anxiety with panic attack which may be due to his ongoing concern about his niece.

23. The Tribunal accepts that the review applicant’s mental health has been affected as a result of his concerns for the visa applicant and her well-being. The Tribunal accepts that the review applicant’s employment had been affected by his travel needs and that he will continue to travel to visit the visa applicant if she is not granted the visa. The Tribunal also accepts the review applicant’s evidence that his children had been affected by the separation with the visa applicant.

24. Considering these circumstances as a whole, the Tribunal accepts that such circumstances constitute compassionate circumstances that affect the interests of Australian citizens or permanent residents.

25. The Tribunal finds that there are compassionate 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. Having regard to these circumstances, the Tribunal considers that the requirements of PIC 4020(1) should be waived.

    Has the applicant satisfied the identity requirements?

26. PIC 4020(2A) requires an applicant satisfy the Tribunal as to his or her identity.  There is nothing to suggest that visa applicant’s identity is at issue. Therefore, the applicant meets PIC 4020(2A).

    Has a visa previously been refused on the basis of a failure to satisfy PIC 4020(2A)?

27. PIC 4020(2B) requires that neither the applicant nor any family unit member have been refused a visa because of a failure to satisfy the identity requirements in PIC 4020(2A) during the period starting 10 years before the application was made and ending when the visa is granted or refused. This requirement does not apply to a person who was under 18 at the time the application for the refused visa was made: PIC 4020(2BA).

28. There is no evidence that the visa applicant has previously been refused a visa on the basis of a failure to satisfy PIC 4020(2A). Therefore PIC 4020(2B) does not apply].

29. The Tribunal finds that the visa applicant satisfies PIC 4020 for the purposes of cl.117.224.

    DECISION

30. The Tribunal remits the application for a Child (Migrant) (Class AH) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 117 (Orphan Relative) visa:

    ·Public Interest Criterion 4020 for the purposes of cl.117.224 of Schedule 2 to the Regulations.

    Kira Raif
    Senior Member