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

1. 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).

2. 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).

3. The review applicant appeared before the Tribunal on 25 September 2024 to give evidence and present arguments.

4. The Tribunal hearing was conducted with the assistance of an interpreter in the Krio and English languages.

5. The review applicant was represented in relation to the review.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. 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).

8. 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?

9. 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.

10. 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.

11. 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.

12. The Tribunal has read and carefully considered all the evidence submitted to the Department and the delegate prior to their decision.

13. The Tribunal has read and carefully considered all the evidence provided to it prior to the hearing as detailed below.

    ·Birth Certificate of Eddie Sheka

    ·Evidence of Money Transfers

    ·Death Certificate of Mamoud Sidique

    ·Disclosure of Eddie on Citizenship Application

    ·Receipt of payment for DNA testing

    ·Medical Certificate.

    ·Certificate in Individual Support

    ·Photos and communications between sponsor and applicant.pdf

    ·Representative Submission of 18 September 2024

14. Evidence is before the Minister and the Tribunal that the applicant has provided, or caused to be provided, a bogus document or false or misleading information in relation to this visa application.

15. The visa application was lodged on 19 August 2021. On 8 June 2023, during the assessment of the application, the Department requested evidence that the applicant’s claimed mother had sole parental rights.

16. The Department received a response from the applicant’s authorised recipient on 6 July 2023. It contained a statement that the visa applicant was residing with Hannah N'Bompa Turay, who was claimed to be a trusted elder. It was further stated the mother, Ms Doris Dorah Dumbaya, (the review applicant) wished to take over the parental responsibility from Hannah N'Bompa.

17. On 17 July 2023, the Department sent a request to the applicant’s authorised recipient for evidence that an applicant under 18 can be granted a visa.

18. In response, on 11 August 2023, the applicant provided a court order claimed to be issued from the High Court of Sierra Leone. It supported the claims that the mother, Doris Dorah Dumbaya had full parental rights.

19. The Department contacted the Master and Register at the High Court in Sierra Leone on 18 August 2023 requesting verification of the Court Order provided to them.

20. On 20 October 2023 they advised that the order was not issued by their court and the stamp on the order is not theirs. The following response was received from the Master and Registrar at the High Court in Sierra Leone:

21. “Going through the Court Order sent to us, as the Master & Registrar I can confirm that this was not issued by our Courts. It does not tally with anything on our Cause Book and this is not our Stamp.  In conclusion this Order was fabricated”.

22. On 24 October 2023, the applicant was sent a Natural Justice letter to provide a comment on the suspected ‘non-genuine’ information supplied to the Department. This letter was sent via email to the authorised recipient.

23. On 29 October 2023, the authorised recipient, (Ms Doris Dorah Dumbaya), responded to the Natural Justice letter. Ms Dumbaya denied the document being bogus and stated they were raising this concern with the relevant authorities to provide a response to the Department.

24. The Department, on 22 November 2023, provided additional information regarding their findings that the information was provided to them by the Master and Register at the High Court in Sierra Leone.

25. On 04 December 2023, the authorised recipient responded to the delegate, requesting additional time to secure the documents required to support the visa application. She claimed the intention to travel to Sierra Leone to engage with the authorities and obtain the documents in question. This travel was verified by the Tribunal at the hearing and by viewing Departmental travel documents. 

26. On 11 March 2024, the authorised recipient responded to the Natural Justice letter. This response included Affidavit’s from Ms Doris Dumbaya (mother) and Hannah N'Bompa Turay (claimed guardian). No claims were made regarding the bogus document in these affidavits. The Tribunal asked why this was the case during the hearing and received the response from Ms Dumbaya that she acknowledges she now knows the Court documents were false. She also went on to say that the response sent to the department was written by a family friend and she trusted the response was correct as she has trouble reading and writing in English.

27. The Tribunal in addition asked the review applicant if they had knowingly provided a false document in the form of the purported Court Order. They claimed they did not. When asked if they had another explanation, they were unable to provide a satisfactory answer. It was stated the document was obtained on her behalf and she paid for it to be obtained.  

28. The claim was made that another person, claimed to be a lawyer, was provided AUD $500 to obtain the Court Order on behalf of the sponsor, his original fee was negotiated down from US $500. The sponsor claims that she believed the document to be genuine at the time but now accepts it was not.

29. The sponsor claims to have travelled to Sierra Leone with the purpose of ascertaining whether or not the claimed Court document was genuine or not as a result of the delegate’s decision refusing the visa. She was unable to contact the previous lawyer and subsequently consulted another lawyer who in turn contacted the High Court and it was stated the document was in fact fraudulent. The Tribunal accepts the photographic evidence that she did however spend time with the applicant at that time.

30. The Tribunal notes the claim made by the representative in the submission to the Tribunal, dated 18 September 2024, that the Department’s request for proof of parental rights was not needed. This is not correct as the Department is entitled to request information to demonstrate a minor is legally able to be removed from their home country and the sponsor has sole parental rights and the applicant who is under 18 can be granted a visa. In any case a fraudulent document was provided by the sponsor. This has been determined by the Department, by the Court authorities in Sierra Leone and admitted to by the sponsor following an investigation made by her lawyer when she returned to Sierra Leone.

31. The Tribunal further notes no DNA testing has been completed to demonstrate the sponsor is in fact the mother of the visa applicant. This could have been undertaken independently regardless of the Department choosing to not continue the process. The Tribunal notes the sponsor admitted inconsistencies in the replacement Birth Certificate of the applicant. This is specifically the stated place of Birth. It is not unreasonable that the Department would require evidence of the familial genetic connection. It is also reasonable to assume the review applicant had some understanding of its importance in light of the fee being paid and the Department’s original request for such DNA evidence.

32. The Tribunal is unable to determine definitively who is responsible for providing the Bogus Document. However, it is satisfied that such a document was in fact provided. Whether by the review applicant or the visa applicant is not relevant. Nor is it relevant that did so knowingly or not.

33. The following is noted by the Tribunal in relation to the provision of a bogus document.

34. 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.

35. 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.

36. No satisfactory information or evidence has been provided by the review applicant to indicate the claimed bogus document was in fact anything other than a bogus document provided by her to the Department. 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), 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.

37. The Tribunal finds it difficult to believe that following the Department’s direct enquiry to the Master and Register at the High Court in Sierra Leone, they would have provided false statements. It believes the claim made by the High Court that the document was not from the Court and therefore purposely false. Again, it notes the admission by the review applicant that her lawyer had been provided the same information when she enquired upon contact with the Court. This indicates a counterfeit document purposely provided and knowingly made by an individual that is false or misleading in a material particular.

38. The Representative acknowledged that the requirements of PIC 4020(1) were not met during her written submission prior to the hearing and in her summarising comments at the conclusion of the hearing.

39. Therefore, the Tribunal has concluded the applicant does not meet PIC 4020(1).

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

40. 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 reg 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.

41. 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.

42. The Tribunal has already concluded the applicant does not meet PIC 4020(1). It has turned its mind to the issue of compelling and compassionate circumstances and whether the requirements of PIC 4020(1) or (2) should be waived.

43. 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 reg 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.

44. 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.

45. For the following reasons, the Tribunal is satisfied that the requirements should not be waived.

46. The Tribunal has been unable to identify that there are compelling circumstances that affect the interests of Australia associated with this case. Nor were any such circumstances provided by the applicants.

47. The Tribunal confirms the review applicant, Ms Dumbaya, is an Australian citizen. It acknowledges the Department did not undertake DNA testing to determine a genetic link indicating whether or not the review applicant is in fact the biological mother of the visa applicant, Mr Eddie Sheka Sidique. The review applicant has not undertaken the testing procedure privately as might reasonably be expected if the genetic link would assist the mother/son claim. A claim was made by the representative that due to her education and poor language mastery the review applicant didn’t know how to obtain a DNA test or that it was necessary.

48. It notes the Birth Certificate provided indicating the review applicant is his mother. It further notes the visa applicant’s claimed deceased father’s name appears on the Birth Certificate. It is also observed that the claimed father of the visa applicant died in 2019. Both of these documents were included with an Affidavit made before a Notary Public in Sierra Leone and later certified as a true copy of the documents presented to a Justice of the Peace in South Australia. In addition, the Tribunal has read the Affidavit provided by Ms Hannah N’Bompa Turay, the claimed guardian of the visa applicant, again later certified in South Australia. In it she states the review applicant as the visa applicant’s mother, and that the claimed father, who she identifies is deceased.  However, it is not possible to determine the genuineness or otherwise of these documents. Under questioning the review applicant stated because of her poor language proficiency she was unaware inaccurate information was stated, it was a miscommunication. She went on to say that her son had always been looked after by her friend from the time she left Sierra Leone. The Tribunal has a level of scepticism in light of the provision of a High Court Order which has been determined to be fake.

1. The Tribunal having read the Affidavit sworn by the review applicant on 12 January 2024, before a Notary Public in Sierra Leone and subsequently verified by a Justice of the Peace in South Australia, quotes the following from that document.

   ‘Upon the death of the biological father of Eddie Skeka Sidique, I took my son to my family friend Hannah N’Bompa Turay to take care of Eddie Skeka Sidique for me whilst I was out of Sierra Leone. The arrangement to take care of my son was done on an informal basis.’

2. The Tribunal notes the review applicant arrived in Australia on 16 October 2014. This is 2.5 years approximately after the birth of the visa applicant, who she claims is her son. According to Departmental travel records the next time the review applicant left Australia to visit her claimed son was 19 December 2023 and she returned to Australia on 23 January 2024. This demonstrates unequivocally that the statement, ‘I took my son to my family friend Hannah N’Bompa Turay to take care of Eddie Skeka Sidique for me whilst I was out of Sierra Leone’, in paragraph 49 of this decision is false as the review applicant was not present in Sierra Leone at the times claimed. It again notes and has considered the explanation provided by the review applicant.

3. The Tribunal notes the statements made by the review applicant stating the following in her forementioned Affidavit.

   ‘I am a fit and proper person to take care of my son in Australia and I miss my son dearly and it pains me every day that we are apart, especially since the death of his father.’

   And

   ‘I am deeply worried that my dear son will be emotionally and psychologically affected because he is living in Sierra Leone with no direct relative to care, nurture and love him.’

4. The Tribunal finds it challenging to reconcile these statements with the fact that the review applicant had not visited her claimed son from the age of 2.5 years until more than 11 years later when he was approximately 13 years of age. It accepts that a mother could reasonably be expected to miss her son and wish to care for him. Likewise, it would be reasonable to assume it was in the best interests of a child to be with his mother and the mother could reasonably be expected to find the separation emotionally challenging. However, there appears to have been minimal contact in over a decade, or no evidence submitted to show otherwise. No DNA testing has been undertaken. Some evidence has been presented to indicate limited financial support of the visa applicant by the review applicant. The review applicant stated that she was unable to provide much financial support from her Centrelink payments. The Tribunal has not been reassured that the claimed mother/son relationship is genuine as no substantiable evidence has been provided.

5. The Tribunal was concerned that the review applicant did not acknowledge she had a son when she immigrated to Australia. She only declared his existence in 2018 when she applied for Australian Citizenship. It would have been possible to have declared her child when she immigrated to Australia with her family. However, she chose not to, potentially fearing for the impact upon herself as a person producing a child out of wedlock, even though she understood the conditions in Sierra Leone. This suggests placing her own wellbeing above that of a child she claims is hers in an environment she claims is hostile and dangerous.

6. The Tribunal acknowledges the review applicant and her 2 children are Australian citizens. It accepts it is reasonable that from their perspective, if the visa applicant is related, the preferable outcome would be to have him live in Australia and his inability to do so may be detrimental to their wellbeing. It is further noted the 2 Australian born children have not met the visa applicant in person.

7. The Tribunal notes the 1 sentence Medical Certificate dated 16 September 2024 indicating the sponsor is suffering a major depressive illness for which she takes (name of medication provided). No time-period in relation to treatment has been indicated.

8. The Tribunal acknowledges several pages of call logs dated between 16 August 2024 and 6 September 2024 indicating audio and video calls between the sponsor and the applicant. It also notes a number of photographs which appear to show interactions between the review applicant and the visa applicant and 1 photograph showing a family composition picture.

9. There is evidence of approximately AUD $1,000 being transferred to contacts in Sierra Leone in 5 transactions between April and October 2019. The representative’s made a statement on behalf of the review applicant, that the recipients were in relation to her child and also stated they were friends of her deceased partner.

10. The Tribunal acknowledges the circumstances in Sierra Leone are poor and potentially dangerous and threatening to children. It accepts the written evidence provided by the representative to that effect and notes recent Country Information Reports[1] and United States Department of State Report on Huan Rights Practices.[2] On this basis it raises the question as to why a mother would have left a child in such circumstances as the conditions in Sierra Leone have been as they are now, long before she came to Australia.

    [1] Australian Government Department of Foreign Affairs and Trade, Sierra Leone

    < accessed 17 September 2024.

    [2] Unites States Department of State, 2023 Country Report on Human Rights Practices in Sierra Leone (22 April

11. The Tribunal takes the matter of false or misleading statements, or the provision of false physical evidence or information given during a visa application process very seriously. These documents, associated information gathering, and verification procedures provide one of the key pillars to our border security and as such the Tribunal views the legal responsibilities associated with them as sacrosanct.

    Disclosure of adverse information at a hearing

12. The Tribunal formally made a disclosure of adverse information at a hearing under SS.359AA in which the following was stated.

13. ‘I am now going to put to you formally under the law under Sub Section 359AA some pieces of information that I have. This is information that would be the reason or part of the reason for affirming the decision under review.

    I will also explain to you why the information is relevant to my decision. Please tell me if you don't understand the information or if you don't understand why, it is relevant.

    I will then ask you to comment on or respond to that information. You don't have to respond now you can ask for more time to comment or respond to the information. You already know about most of this information, I am however required to put it to you formally.

    Let me take you through the information and I shall ask you to comment or respond to that information.

    The information is as follows         

14. Departmental records were consulted in conjunction with the assessment of this visa application. These records indicate the following:

15. In relation to a document provided to the Department, by the review applicant indicating the right of the review applicant to remove her claimed child from Sierra Leone and relocate him to Australia which she provided on 11 August 2023, which was purporting to be from the High Court of Sierra Leone, they advised on 20 October 2023 that the order was not issued by their court and the stamp on the order is not theirs. The following response was received from the Master and Registrar at the High Court in Sierra Leone:

    “Going through the Court Order sent to us, as the Master & Registrar I can confirm that this was not issued by our Courts. It does not tally with anything on our Cause Book and this is not our Stamp.  In conclusion this Order was fabricated”.

    It is clear from this evidence that you provided a counterfeit document and provided false information to the Department in support of your application by so doing.

16. In addition, the following document was provided to the Tribunal by the review applicant. An Affidavit sworn by the review applicant on 12 January 2024, before a Notary Public in Sierra Leone and subsequently verified by a Justice of the Peace in South Australia, it in part states the following.

    ‘Upon the death of the biological father of Eddie Skeka Sidique, I took my son to my family friend Hannah N’Bompa Turay to take care of Eddie Skeka Sidique for me whilst I was out of Sierra Leone. The arrangement to take care of my son was done on an informal basis.’

17. The Tribunal notes the review applicant arrived in Australia on 16 October 2014. This is 2.5 years approximately after the birth of the visa applicant, whom she claims is her son. According to Departmental travel records the next time the review applicant left Australia to visit her claimed son was 19 December 2023 and she returned to Australia on 23 January 2024. This demonstrates unequivocally that the statement, ‘I took my son to my family friend Hannah N’Bompa Turay to take care of Eddie Skeka Sidique for me whilst I was out of Sierra Leone’, is false as the review applicant was not present in Sierra Leone at the times claimed.

18. The Tribunal finds that a bogus document has been presented to support this application and a false documented claim was subsequently made to the Tribunal. It is a material particular in relation to the Departmental decision which is the subject of this decision.

19. The Tribunal has concluded an element of fraud or deception was undertaken by some person which is necessary to attract the operation of the provision: Trivedi v MIBP [2014] FCAFC 42. It notes there was no attempt to correct the inaccurate information regarding when the review applicant left her child with her friend prior to the hearing. This was only stated to be a miscommunication at the point in time the Tribunal raised the inconsistency with the review applicant.

20. The Tribunal concludes the applicant has provided false and misleading information to the Department and also to the Tribunal. Therefore, the applicant does not meet PIC 4020 (1). for the purposes of Schedule 2 to the Regulations.

    The information is relevant because

21. This has subsequently, lead the Tribunal to the belief that this is the reason or part of the reason to affirm the delegate's decision. The Tribunal has determined that this is relevant because it has determined that bogus documents in the form of false written statements have been provided to the delegate and Department in support of the visa application and also to the Tribunal. Subsequently the provisions in Public Interest Criterion 4020(1) were not satisfied. That means that the requirements for your 100-visa could not be satisfied because c1.100.223(a) was not satisfied. In simple terms your visa therefore subsequently can-not be approved as c1.100.223 is not satisfied because of your failure to meet the requirements in Public Interest Criterion 4020 or commonly called PIC 4020.

22. I will now ask you to comment on or respond to that information. You don't have to respond now you can ask for more time to comment or respond to the information.’

23. The review applicant chose to request a pause in proceedings in order to confer with her representative. The proceedings were adjourned for 15 minutes.

24. Following the resumption of the hearing the review applicant stated the following points. It was reiterated the statement regarding taking her child to be looked after by her friend was a miscommunication due to her language comprehension ability and it was not intentional. She emotionally pleaded that she has been away from her son for 10 years and she needed to be with him. She further stated he is asking when he can join her in Australia and her 2 children in Australia are asking when the visa applicant will come to be with them in Australia. It was further stated the review applicant is suffering from depression and is not sleeping well because she misses her son so much. The Tribunal has some sympathy for the circumstances facing the applicants.

25. It is clearly established by the evidence before the Tribunal and the inability of the applicants to provide evidence that counteracts the assertion that false information and documentation was knowingly provided in the application process. Therefore, an element of fraud or deception by some person has occurred, as is necessary to enliven the operation of the PIC 4020(1) provision: Trivedi v MIBP [2014] FCAFC 42.

26. Subsequently, the applicant does not meet the requirements in PIC 4020(1).

27. 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 reg 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.

28. The representative in their verbal submission in the hearing requested the Tribunal delay its decision until after DNA testing could be obtained, if it was unable to find in favour of the applicant. The Tribunal declined as it stated there has been considerable time during which this action could have been undertaken. It explained that until the Tribunal makes its decision, and should it not be in favour of the applicants no other action on behalf of the visa applicant would be possible and the visa applicant would potentially remain in Sierra Leone for a greater period of time. In light of the testimony of the review applicant and the written submission prior to the hearing this may not be the preferable outcome.

29. The Tribunal was somewhat surprised by the assertion stated by the applicant’s representative in a brief written submission to it after the hearing that … ‘Whilst it appears that the Member presiding over this case had already made up his mind in relation to this review application prior to the hearing today’ … . This is not the case. The Tribunal has turned its mind to the evidence before it. The Tribunal has carefully listened to and considered all of the evidence presented to it prior to the hearing and during the hearing.

30. It acknowledges the Department’s decision was only handed down on 24 April 2024. The Tribunal is keen to deal with such cases as quickly as possible and notes it is 5 months between the Department’s decision and the Tribunal hearing. It acknowledges the assertion that waiting for DNA testing to be completed prior to handing down the decision may delay the process no longer than awaiting a review should the Tribunal’s decision be unfavourable. This is not an unreasonable argument in itself. However as previously stated there has been adequate time to undertake such action if the applicant thought it necessary or had she sought a representative who may have so advised her. The applicant’s inaction is their responsibility. The Tribunal notes they did approach the representative’s organisation for assistance, and they started acting on their behalf on 18 June 2024. The representative could have advised DNA testing at that point had they thought it appropriate. 

31. It is accepted the Department did not respond to the request for the relevant file when requested by the representative in a timely manner. To that end the Tribunal granted an extension of time before the hearing was held and immediately responded to the representative’s request to obtain a copy of the Departments file. They were provided with it on 12 September 2024. This was the day of their request, and it was actioned as soon as the legal redactions necessary were undertaken. The thank you note from the representative for the speedy response was appreciated.

32. The Tribunal is not satisfied that there are any compelling circumstances that affect the interests of Australia.  Nor is it satisfied there are sufficient 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 reg 1.03), that justify the granting of the visa.

33. Therefore, it has decided not to exercise the discretion to waive the requirements, having regard to those circumstances: Kaur v MIBP [2017] FCAFC 184. The requirements of PIC 4020(1) OR (2) should not] be waived.

34. On the basis of the above, the applicant does not satisfy PIC 4020 for the purposes of cl 101.223(a).

    Assessment against other streams

35. In accordance with the Migration Regulations, the Tribunal assessed whether the criteria for the grant of a visa within any other stream within this visa subclass have been satisfied.

36. 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

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

    Peter Emmerton
    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.

    …

    
    

2024) < accessed

17 September 2024