Dumbaya (Migration) - [2024] AATA 3844

Dumbaya (Migration) [2024] AATA 3844 (25 September 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REVIEW APPLICANT:  Ms Doris Dorah Dumbaya
VISA APPLICANT:  Mr Eddie Sheka Sidique
REPRESENTATIVE:  Ms Anna Woods
CASE NUMBER:  2414143
HOME AFFAIRS REFERENCE(S):          BCC2021/1630767
MEMBER:Peter Emmerton
DATE:25 September 2024
PLACE OF DECISION:  Adelaide
DECISION:The Tribunal affirms the decision not to grant the applicant a Child (Migrant) (Class AH) visa.

Statement made on 25 September 2024 at 5:01pm
CATCHWORDS
MIGRATION – Child (Migrant) (Class AH) visa – Subclass 101 (Child) – bogus document or false and misleading information given in relation to visa application – child informally cared for by family friend – court order supporting review applicant’s claim of full parental rights – verification check showed document fabricated – obtained for review applicant by another person – believed to be genuine at time of application but now accepted as non-genuine – discretion to waive requirement – inconsistencies in replacement birth certificate, minimal contact and no DNA testing done – child not declared in review applicant’s original visa application – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5(1), 65, 359AA
Migration Regulations 1994 (Cth), Schedule 2, cl 101.223(a), Schedule 2, criterion 4020(1), (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 Home Affairs on 24 April 2024 to refuse to grant the applicant a Child (Migrant) (Class AH) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant applied for the visa on 19 August 2021. The delegate refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl 101.223(a) of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) because based on the evidence and information before them, they found that the applicant has given a bogus document within the meaning of section 5(1) of the Migration Act. Therefore, they were not satisfied that the applicant meets Public Interest Criterion (PIC) 4020, subclause 4020 (1).
The review applicant appeared before the Tribunal on 25 September 2024 to give evidence and present arguments.
The Tribunal hearing was conducted with the assistance of an interpreter in the Krio and English languages.
The review applicant was represented in relation to the review.
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 101.223(a) 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…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading Dumbaya (Migration)

Details

AGLC: Dumbaya (Migration) [2024] AATA 3844
Case: [2024] AATA 3844
Decision Date: 25 September 2024

CaseChat Overview and Summary

This matter concerned an application for a Child (Migrant) (Class AH) visa, Subclass 101. The applicant sought to have a decision affirmed by the Tribunal, which had refused to grant the visa. The core of the dispute revolved around the applicant's provision of a document that was later determined to be fabricated, which had been obtained for the applicant by another individual and was believed to be genuine at the time of the visa application.

The primary legal issue before the Tribunal was whether the applicant met Public Interest Criterion (PIC) 4020, which is a mandatory requirement for the grant of the visa. Specifically, the Tribunal had to determine if the applicant had provided a bogus document or false or misleading information in relation to the visa application, and whether any such failure could be waived due to compelling or compassionate circumstances. The Tribunal also considered the identity requirements stipulated by PIC 4020.

The Tribunal reasoned that the applicant had provided a bogus document, as defined by section 5(1) of the Migration Act 1958, because it was obtained due to a false or misleading statement. While the applicant may have believed the document to be genuine at the time of application, this did not negate the fact that it was fabricated. The Tribunal noted that the waiver provision under PIC 4020(4) did not apply to the identity requirements, and that inconsistencies in a replacement birth certificate, minimal contact with the child, and the absence of DNA testing further undermined the applicant's claims. The child had also not been declared in the applicant's original visa application.

Consequently, the Tribunal affirmed the decision not to grant the applicant the Child (Migrant) (Class AH) visa, as the applicant failed to satisfy the mandatory requirements of PIC 4020.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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 101.223(a) 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.

Decision

Reasons for decision

The applicant has only sought to satisfy the criteria for a Child (Migrant) (Class AH) (100) visa. No claims have been made in respect of the other visa streams. As the requirements that must be met by a person seeking the visa in the other streams have not been met, the decision under review must be affirmed.DECISION The Tribunal affirms the decision not to grant the applicant a Child (Migrant) (Class AH) visa.Peter EmmertonMemberATTACHMENTMigration Regulations 1994Schedule 44020(1) There is no evidence before the Minister that the applicant has given, or caused to be given, to the Minister, an officer, the Tribunal during the review of a Part 5 reviewable decision, a relevant assessing authority or a Medical Officer of the Commonwealth, a bogus document or information that is false or misleading in a material particular in relation to:(a)the application for the visa; or(b)a visa that the applicant held in the period of 12 months before the application was made.(2)The Minister is satisfied that during the period:(a)starting 3 years before the application was made; and(b)ending when the Minister makes a decision to grant or refuse to grant the visa;the applicant and each member of the family unit of the applicant has not been refused a visa because of a failure to satisfy the criteria in subclause (1).(2AA)However, subclause (2) does not apply to the applicant if, at the time the application for the refused visa was made, the applicant was under 18.(2A)The applicant satisfies the Minister as to the applicant’s identity.(2B)The Minister is satisfied that during the period:(a)starting 10 years before the application was made; and(b)ending when the Minister makes a decision to grant or refuse to grant the visa;neither the applicant, nor any member of the family unit of the applicant, has been refused a visa because of a failure to satisfy the criteria in subclause (2A).(2BA)However, subclause (2B) does not apply to the applicant if, at the time the application for the refused visa was made, the applicant was under 18.(3)To avoid doubt, subclauses (1) and (2) apply whether or not the Minister became aware of the bogus document or information that is false or misleading in a material particular because of information given by the applicant.(4)The Minister may waive the requirements of any or all of paragraphs (1)(a) or (b) and subclause (2) if satisfied that:(a)compelling circumstances that affect the interests of Australia; or(b)compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen;justify the granting of the visa.(5)In this clause:information that is false or misleading in a material particular means information that is:(a)false or misleading at the time it is given; and(b)relevant to any of the criteria the Minister may consider when making a decision on an application, whether or not the decision is made because of that information.…Migration Act 1958s 5 Interpretation(1) In this Act, unless contrary intention appears:…bogus document, in relation to a person, means a document that the Minister reasonably suspects is a document that:(a)purports to have been, but was not, issued in respect of the person; or(b)is counterfeit or has been altered by a person who does not have authority to do so; or(c)was obtained because of a false or misleading statement, whether or not made knowingly.…

Ratio Decidendi

Legal Principle Established

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