Farah (Migration)

[2020] AATA 5768

Farah (Migration) [2020] AATA 5768 (28 September 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Anab Yussuf Farah

VISA APPLICANT:  Miss Hoodo Abdirisack Mohamud

CASE NUMBER:  1824187

DIBP REFERENCE(S):  2017023476 OSF2017023476

MEMBER:Roger Maguire

DATE:28 September 2020

PLACE OF DECISION:  Brisbane

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

Statement made on 28 September 2020 at 11:20am

CATCHWORDS

MIGRATION ­– Child (Migrant) (Class AH) visa – subclass 101 (Child) visa – Public Interest Criterion 4020 (PIC 4020) – compassionate or compelling circumstances – mental health condition – insufficient evidence – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 65, 359, 360, 363

Migration Regulations 1994, r 1.03, Schedule 2, cl 101.223

CASES
Arora v MIBP [2016] FCAFC 35
Batra v MIAC [2013] FCA 274
Hasran v MIAC [2010] FCAFC 40
Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617
Kaur v Minister for Immigration and Border Protection [2014] FCA 915
Manna v Minister for Immigration and Citizenship [2012] FMCA 28
Minister for Immigration and Citizenship v Li[2013] HCA 18
Minister for Immigration and Border Protection v Singh [2014] FCAFC 1

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 11 June 2018 to refuse to grant the applicant a Child (Migrant) (Class AH) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 12 September 2017. The delegate refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl.101.223 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the applicant did not satisfy PIC 4020 for the purposes of clause 101.2 to 3 in Schedule 2 to the Regulations.

3. On 10 September 2020 the Tribunal wrote to the applicant pursuant to s.359 of the Act, inviting the applicant to provide information to support her claim that she met Public Interest Criteria 4020, and information to support any claim she wished to make that there are compelling circumstances that affect the interests of Australia, or compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen so as to justify the grant of the visa.

4. The invitation was sent to the last address provided in connection with the review and advised that, if the information was not provided in writing by the date specified the Tribunal may make a decision on the review without taking further steps to obtain the information and the review applicant would lose any entitlement she might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

5. The applicant has not provided information within the prescribed period and no extension has been requested or granted. In these circumstances, s.359C applies and pursuant to s.360(3) the review applicant is not entitled to appear before the Tribunal. The effect of s.363A of the Act is that if a review applicant has no entitlement to a hearing, the Tribunal has no power to permit him or her to appear:[1]

   [1] Hasran v MIAC [2010] FCAFC 40

6. The Tribunal has considered whether, in the circumstances of this case, information that the review applicant meets the requirements of the Act and Regulations is likely to be forthcoming and whether the review applicant has had a fair opportunity to provide relevant information already.

7. The Tribunal has given consideration to whether it should adjourn the review under s.363(1)(b) of the Act to allow the applicant additional time in which to provide further evidence to support the review application. In doing so, the Tribunal has had regard to the decisions in Huo v Minister for Immigration and Multicultural Affairs[2] and Manna v Minister for Immigration and Citizenship[3] where the Courts have held that the Tribunal is not required to indefinitely defer its decision-making processes. It has also had regard to Minister for Immigration and Citizenship v Li[4] regarding the reasonableness of any request for an adjournment, and the Full Federal Court decision in Minister for Immigration and Border Protection v Singh[5] which considered analogous issues, as well as the decision of Kaur v Minister for Immigration and Border Protection.[6]

   [2] [2002] FCA 617

   [3] [2012] FMCA 28

   [4] [2013] HCA 18 (8 May 2013)

   [5] [2014] FCAFC 1 (4 February 2014)

   [6] [2014] FCA 915 (28 August 2014)

8. In these circumstances, for the reasons set out in this decision record above, the Tribunal considers that the applicant has had a fair opportunity to provide relevant information.

9. Accordingly, the Tribunal has decided not to exercise its discretion under s.363(1)(b) of the Act to adjourn the review any further to allow the review applicant more time. In these circumstances, the Tribunal has decided to proceed to make a decision having regard to the information it has before it, including the information previously provided by the review applicant to the Department.

10. Ultimately, a decision maker is not required to make the review applicant’s case. It is for the review applicant to satisfy the Tribunal that the requirements of the Act and Regulations have been met. Although the concept of onus of proof is not appropriate to administrative decision-making, the relevant facts of the individual case have to be supplied by the review applicant, in as much detail as is necessary to enable the examiner to establish the relevant facts.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. The issue in this review is whether the visa applicant meets Public Interest Criterion 4020 (PIC 4020) as required by cl.101.223 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).

13. 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?

14. 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.

15. 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.

16. 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.

17. In support of her application, the applicant presented a Kenyan police clearance certificate in an effort to meet PIC 4001. The department undertook a verification process, in respect of this certificate and was advised by the issuing office that they had not issued it. The Department found the certificate to be counterfeit, and therefore found that the applicant had provided a bogus document in support of her application.

18. On 7 May 2018, a natural justice letter was sent to the applicant inviting comment on this finding. On 30 May 2018, the applicant’s migration agent submitted a response which did not challenge the decision that the Kenya police clearance certificate was fake.

19. Based on this evidence, the Tribunal finds that the applicant provided a bogus document in support of the application and therefore fails to satisfy PIC 4020(1)(a).

20. Therefore, the applicant does not meet PIC 4020(1).

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

21. 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.

22. 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.

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

24. There is no information before the Tribunal that indicates the existence of compelling circumstances affecting the interests of Australia.

25. The Tribunal has considered if there are any compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen that would justify granting the applicant this visa.

26. The sponsor has stated that the applicant was separated from her since she was two years old. As at the time of writing this decision, the applicant is 24 years old. The sponsor has stated that she has felt stressed by being separated from the applicant since she came to know of her existence in 2015. The sponsor has other children in Brisbane, whom she has been financially supporting. The sponsor has also stated that a refusal of this application would be devastating to her and her family, and would threaten her ability to continue to provide for her family and the applicant.

27. The evidence before the Tribunal as to the financial impact affecting the interests of an Australian citizen so as to justify the grant of the visa is broad, vague, and non-specific. There is not sufficient evidence before the Tribunal so as to enable it to conclude that this amounts to a compassionate or compelling circumstance for the purposes of PIC 4020 (4).

28. The Tribunal has had regard for the medical certificate issued by Dr James Hong on 28 November 2018. This certificate is in very broad terms and does not relate the sponsors health to anything specifically pertaining to this application. The Tribunal therefore gives it little weight.

29. The Tribunal has also had regard for the report dated 28 February 2019 by Gigi Cheung, Registered Psychologist, who diagnosed Adjustment Disorder with depressed mood “since the beginning of 2018.” The Tribunal gives little weight to this assertion, as the psychologist stated that the sponsor had been his or her patient since an unspecified date the previous month, January 2019. Moreover the psychologist appears to have had some expectation that the sponsor’s condition was likely to improve with regular psychological therapy to learn strategies to manage her condition. The psychologist stated “if her symptoms do not improve in 2 to 3 months, I will suggest her to seek help from a psychiatrist for medical support.” In addition, the psychologist appears to have crossed the professional line by barracking for the application in stating “I hope the appropriate and ethical actions can be taken as soon as possible.” There is no evidence before the Tribunal that the need for reference to a psychiatrist eventuated. Neither is there any evidence before the Tribunal that the sponsor’s mental health condition has at any time been medicated, or required psychological therapy extending beyond the stated period of 2 to 3 months.

30. There is not sufficient evidence before the Tribunal so as to establish that the sponsor’s mental health condition amounts to compassionate or compelling circumstances so as to satisfy PIC 4020 (4). The Tribunal therefore does not consider this to be a basis to waive the requirements of PIC 4020 (1).

31. Therefore the requirements of PIC 4020(1) should not be waived.

32. On the basis of the above, the applicant does not satisfy PIC 4020 for the purposes of cl.101.223.

33. There is no claim or evidence before the Tribunal so as to support a finding that the applicant has been adopted by the sponsor and meets the criteria for a Subclass 102 Adoption (Migrant) visa.

34. Neither is there any claim or evidence before the Tribunal so as to support a finding that the applicant meets the criteria for a Subclass 117 Orphan Relative visa.

    Decision

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

    Roger Maguire
    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.  

    …