Gebremedhin (Migration)

Gebremedhin (Migration) [2021] AATA 2758 (31 May 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
REVIEW APPLICANT:  Mr Fissaha Gebremedhin
VISA APPLICANT:  Miss Zaid Mabrahtom Brhane
CASE NUMBER:  1803011
HOME AFFAIRS REFERENCE(S):          2015075507 OSF2015075509
MEMBER:Rachel Westaway
DATE:31 May 2021
PLACE OF DECISION:  Melbourne
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 117.223 of Schedule 2 to the Regulations

Statement made on 31 May 2021 at 3:03pm
CATCHWORDS
MIGRATION – Child (Migrant) (Class AH) – Subclass 117 (Orphan) – bogus documents or false and misleading information – school report cards – verification check concluded documents are counterfeit, but no reasons provided – reports issued by previous school director, and verification checker contacted new director, who doesn’t know applicant – no computerised records – letter from director stating reports impossible to verify – waiver of requirements – compassionate or compelling circumstances – review applicant raised visa applicant after her parents’ deaths – young woman in war zone with no communication possible – credible news reports of current ethnic targeting – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 65, 359(2)
Migration Regulations 1994 (Cth), Schedule 2, cl 117.223, Schedule 4, 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
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.
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 29 January 2018 to refuse to grant the applicant a Child (Migrant) (Class AH) (Subclass 117) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant applied for the visa on 8 September 2015.
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 (Cth) (the Regulations) because the delegate determined bogus documents regarding the visa applicant’s Ethiopian school records were provided to the Department of Home Affairs (the Department) thus the delegate was not satisfied the applicant met the Public Interest Criteria (PIC) 4020, namely subclause 4020(1).
On 14 May 2021 the Tribunal invited the applicant under s.359(2) of the Act to provide written information addressing the PIC 4020 requirements. A response was received within the prescribed timeframe.
The applicant provided the Tribunal with a copy of the delegate’s decision dated 29 January 2018.
The review applicant appeared before the Tribunal on 31 May 2021 by video conference using the Microsoft Teams (MS Teams) application to give evidence and present arguments. The visa applicant did not participate in the hearing.
Due to the COVID-19 pandemic, the Tribunal exercised its discretion to hold an MS Teams video hearing, determining it was reasonable to do so by having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to its objective of providing a mechanism of review that is fair, just, economical and quick. Accordingly, the Tribunal is satisfied the applicant was given a fair opportunity to give evidence and present arguments in support of his review application.
The Tribunal hearing was conducted with the assistance of an interpreter in the Tigrinya and English languages.
The review applicant was represented in relation to the review by his registered migration agent.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this review is whether the visa applicant meets PIC 4020 as required by cl.117.223 of the Regulations 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.
Background
The applicant (Mr Fissaha Gebremedhin) is a 35-year-old male citizen of Australia and lodged the 117 visa application on 8 September 2015. At time of visa application, the visa applicant was 17 years old and at time of writing this decision she is 23 years old.
The following material was provided to the Department in support of the visa application:
·   Applicant’s statement dated 1 September 2015 explaining circumstances surrounding lodgement of the 117 visa application
·   copy of visa applicant’s birth certificate (with English translations) listing her date of birth as [Date 1]
·   copy of visa applicant’s Ethiopian passport valid until 11 July 2020 listing her date of birth as [Date 1]
·   copy of applicant’s Ethiopian passport valid until 23 February 2017
·   copy of Ethiopian passport of applicant’s wife valid until 28 May 2014
·   copies of Australian National Police Certificates dated 18 June 2015 for applicant and his wife certifying no disclosable court outcomes
·   copy of applicant’s updated Australian National Police Certificate dated 12 July 2017 certifying no disclosable court outcomes
·   copy of death certificates for visa applicant’s father (Date of Death - 28 January 2000) and mother (Date of Death - 18 June 2005)
·   copy of death certificates for fathers of visa applicant’s siblings
·   copy of applicant’s 100 visa grant notice and associated cover letter dated 17 November 2014
·   certified copy of Guardian Agreement dated 28 April 2021
·   certificate copy of Court Order dated 7 May 2021 confirming applicant is visa applicant’s adoptative parent
·   copy of visa applicant’s siblings’ Ethiopian passports
·   certified copies of Ethiopian Federal Police Checks dated 23 September 2015 and 12 July 2017 certifying visa applicant has no criminal convictions
School documents
·   English translated letter from Director of May Shoho Full Elementary School dated 8 July 2017 confirming visa applicant attended their school from 20 September 2009 to 9 July 2015
·   Copy of visa applicant’s primary school report card
·   English translation of visa applicant’s National Regional State of Tigray Residence ID Card listing her date of birth as [Date 1]
·   Cover letter from visa applicant dated 17 July 2017 advising she has provided her Ethiopian National Police Certificates and medical certificates about her vaccinations
·   Letter and Kinship Testing Report from DNA Solutions dated 11 October 2017 strongly supporting an uncle / niece relationship between applicant and visa applicant
On 21 December 2017 the Department sent a natural justice letter to the applicant inviting his comments to information before the Department indicating the school in Ethiopia did not issue the documents and thus, they were found to be counterfeit and bogus documents. The applicant responded advising he had made his own enquiries and provided a further supporting letter.
After considering all the circumstances including the applicant’s response, the delegate refused the 117-visa application on 24 January 2018 as they were not satisfied the applicant met PIC4020.
On 11 February 2018 the applicant lodged a merits review application resulting in this Tribunal case number 1803011.
The following material was provided to the Tribunal in support of the applicant’s review:
·Copy of the Department’s notification letter and decision record dated 29 January 2018
Statements
·Representative’s submissions dated 26 May 2021 with annexures addressing the PIC 4020 requirements
·Applicant’s statement dated 3 February 2018 stating he did not provide a false document to the Department in support of the visa application
DNA docs
·Letter and Kinship Testing Report from DNA Solutions dated 11 October 2017 strongly supporting an uncle / niece relationship between applicant and visa applicant
Ethiopian school docs
·Letter signed by Director of Masheho Elementary School in Ethiopia dated 9 January 2018 stating visa applicant was a student at Wereda Adwa Maysheho Elementary School from 20 September 2009 to 9 July 2015
·English translation by Language Loop dated 15 May 2019 of letter from Maysheho Primary School Principal stating visa applicant was a student from 20 September 2009 to 9 July 2015
Other
·Evidence of applicant’s flight itinerary as evidence of his travel from Melbourne to Ethiopia between 28 March 2018 and 26 June 2018
·Various money transfers from applicant to visa applicant dated from July 2018 to November 2019
Support Letters
·Undated support letter from Melbourne confirming applicant is an active member of the church community
·Support medical letter from Co Health Melbourne dated 10 July 2019 about applicant’s good character and visa applicant’s family composition
·Support letter from Chairperson of Victorian Tigrayan Community Association dated 12 October 2019 confirming applicant is a contributing member and is of good character
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.
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.
The Tribunal must consider whether 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:
·purports to have been, but was not, issued in respect of the person, or
·is counterfeit or has been altered by a person who does not have authority to do so, or
·was obtained because of a false or misleading statement, whether or not made knowingly.
and/or
§‘information that is false or misleading in a material particular’ as defined in PIC 4020(5), i.e. information that is:
·false or misleading at the time it is given, and
·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.
in relation to the visa application or a visa held in the 12 months before the visa application was made.
Evidence before Tribunal demonstrating whether applicant has given a bogus document
The Department records indicate that on 7 December 2017 a representative from the International organisation for Migration (IOM) attempted to verify the school records provided by the sponsor. The response was that they were counterfeit. No explanation was provided or further detail regarding how this conclusion was made.
The Tribunal accepts however the that IOM would have made suitable enquiries regarding the documents.
The documents in question were allegedly issued by the national Regional State of Tigray, Bureau of Education and were Zaid’s report cards.
The representative’s submissions dated 26 May 2021 states the applicant strongly denies he provided bogus documents and subsequently any false or misleading information to the Department in support of the 117-visa application.
The Tribunal asked the applicant at hearing for his explanation regarding the school documents and he stated he asked his brother to bring school documents from the school Zaid attended from 2009-2015. At the time he asked for it, it was in 2017 and she had not been in attendance since 2015.
After the Department sent a natural justice letter to the applicant, a letter dated 9 January 2018 from the Director of Bureau of Education wrote “to Whom it may concern” …clarifying her file had been located and they can confirm she was a student at Wereda Adwa Maysheho elementary school from September 2009 to July 2015.
The documents which were provided to his brother by the then Director (who had since left) are the issue under review. He explained that the delegate found that the documents were not issued by the school.
The concerns occurred because the delegate wished to confirm the age of the applicant to ensure she was under the age of eighteen given she was soon to be turning eighteen when she applied for the visa. Kebele ID and school documents were requested and supplied. The Department conducted checks to confirm the information provided however the issuing office stated the documents were not issued by their school.
The applicant responded to the Department and subsequently to the Tribunal with the same explanation. He stated that the school did not have computerised documents. The sponsors brother provided the original documents which he denies are bogus. He stated that they were issued by the old director of the school. When the Department contacted the school there was a new school director. There were no computerised records to confirm student’s names and a significant period had elapsed, and the new Director stated that he has no records of Zaid attending the school. The sponsor then contacted his brother again and asked that he obtain correspondence which will clarify he issue. The Director reviewed the situation, found the visa applicant’s paper file and provided a confirmation letter. The delegate did not accept the correspondence as it had not come directly to the department.
The Tribunal asked why the director did not contact the delegate directly given the seriousness of the issues. The sponsor state he may not have known where to send it or alternatively he may not care because Zaid was no longer a student of the school.
The Tribunal asked the representative about attempts to contact the school and he stated that it has been impossible to contact the school. He explained that the war has made a difficult situation worse and he was unable to even locate the school when he tried to google it.
The Tribunal asked the applicant if he had pictures of his niece at school or in the school uniform or any material to support that his niece attended the school. He stated he has no pictures of his niece at school.
Evidence before Tribunal demonstrating whether false or misleading information was given in relation to the visa application or any visa held in the previous 12 months
The issue in this review is whether the documents provided were genuine as opposed to false or misleading.
Whilst the explanations regarding the dispute appears plausible, the Tribunal has no information before it to clarify how the IOM investigated whether the documents were counterfeit. Furthermore, the letter from the new Director clarifying the situation was on the Department file at the time the finding was made.
The Tribunal has asked the applicant if it is possible to have the school contact the Tribunal directly and the applicant and his representative have confirmed it is not possible due to the war.
The Tribunal is not satisfied with the information before it that the documents are genuine as they have not bee provided directly to the Tribunal and as the applicant stated are not able to be clarified through contact with the school directly due to the war.
Therefore, the applicant does not meet PIC 4020(1).
Should the requirements of PIC 4020(1) or (2) be waived?
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.
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.
Compelling circumstances affecting the interests of Australia that justify the grant of the visa
There is nothing before the Tribunal which would be regarded as compelling circumstances affecting the interests of Australia that justify the grant of the visa.
Compassionate or compelling circumstances affecting the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen

The sponsor is a permanent resident of Australia and the visa applicant’s uncle.
The representative’s submissions dated 26 May 2021 states the applicant is the adoptive parent of the visa applicant and is very concerned about her safety and welfare in Ethiopia given the current war and genocide targeting.
To support these claims, a DNA testing report was provided together with English translations of a Family Court Order dated 1 March 2012 and Guardian Agreement dated 7 May 2012 plus various news articles dated between November 2020 and to May 2021 evidencing the Ethiopian Government is targeting Tigrayans.
The sponsor confirmed it is his niece is who he is proposing to sponsor. He stated he has not been able to speak with her for 3 months because of the war and communication and access is impossible. He stated he is not sure if she is alive or dead. The last time he saw her was in 2018. He explained that the war has been going on for 7 months and communications is not possible.
The sponsor confirmed he came to Australia in 2014. Prior to that, he explained he brought up his niece as her father died when she was very young, and her mother died five years after her father died. He explained she was always with him and they lived in the same house. Her mother is the sponsor’s sister. The sponsor explained that his parents are still alive however they are old. He explained that he also has a brother.
His sister, the visa applicant’s mother died due to health issues. He explained that he felt it may be due to AIDS. She had three children. Zaid is the eldest however the fathers are different. The other two children were taken by another father to care for.
He explained that it was difficult for them to live alone and the two younger children did not want to be separated from each other. They were born in 2001 and 2004. Zaid was born in 1998. She was living with her grandparents and the sponsor sent her money. He confirmed he has not been able to contact his parents for three months.
He confirmed that he stopped sending money since the war commenced. He is a truck driver in Australia. He has no relatives in Australia other than his wife and children who are aged 6.5, 3.5 and 1. He and his wife married in 2012. She came to Australia prior to him and was able to sponsor him on a partner visa.
The applicant confirmed that he took his wife to meet the visa applicant in 2018 before the war and they developed a strong relationship.
The sponsor explained that he had a close relationship with the visa applicant from the time she was born because her father died when she was very young. He would drive her as he was a bus driver to her school every day; it was approximately 12km away.
He stated that the conditions are so bad in Tigray it is impossible to communicate with his family now or his niece and he is not able to contact the school she attended to attest for the genuineness of the documents because of the war. No one is sure who is alive or dead now.
He stated he did not have legal responsibility and he supported her and gave her everything and he worked as a bus driver. He looked after her more than his daughter because her mother died when she was 7 years old and he said she was so young they tried to hide it from her. He explained that her situation was difficult because her father died in 2000 possibly by AIDs as well. He was an assistant driver with his parents, and he would take her to school every day and provide her with clothing and stationary. Her grandmother washed her and he would help.
He explained that when he left to come to Australia, she was very sad, and he would contact her weekly and remained supporting her. He said he told her she would come to Australia and could continue her education however he explained he did not tell her about the visa refusal.
The applicant reiterated the genocide occurring in Tigray and the targeting of young women. He explained the psychological distress this has caused him given he had brought up his niece from the time she was an infant. He explained that she is living in the middle of a war zone and he is desperate to protect her and care for her.
The applicant provided a significant amount of news links regarding Eritrean troops killing, raping and looting in Tigray. The Tribunal notes that credible media outlets report daily on the conflict where the visa applicant lives including the situation facing the population of widespread famine. The Tribunal notes that on the day of hearing, the BBC news reported “The UN, US and UK have all warned this week of an impending large-scale famine in Tigray. The dire situation is the result of "starvation crimes" including pillage, forced displacement, destruction of food, water and health facilities, widespread rape that prevents survivors from caring for themselves and their children, and obstruction of humanitarian aid.”[i]
The situation in Tigray is significantly different from that which faced the visa applicant and sponsor when the application was first made.
The war and genocide occurring in Tigray where the visa applicant currently resides and the fact that the sponsor has now lost all communication with her and the remainder of his family is causing him significant distress and constitutes both compelling and compassionate circumstances to justify the granting of the visa.
Therefore, the requirements of PIC 4020(1) should be waived.
Has the applicant satisfied the identity requirements?
PIC 4020(2A) requires an applicant satisfy the Tribunal as to his or her identity. The applicant supplied the Department with identity documents which the delegate and also the Tribunal was satisfied supported the applicant’s identity.
Therefore, the applicant meets PIC 4020(2A).
Has a visa previously been refused on the basis of a failure to satisfy PIC 4020(2B)?
The Tribunal is satisfied 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. However, this requirement does not apply to the applicant who was under 18 at the time the application.
Therefore PIC 4020(2B) does not apply.
Concluding paragraphs
On the basis of the above, the applicant does satisfy PIC 4020 for the purposes of cl 117.223.
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 117.223 of Schedule 2 to the Regulations
Rachel Westaway
Senior 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.
…

[i] sourced 31 May 2021

[2021] AATA 2758

31 May 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Remedies