Gonwokay (Migration) - [2025] ARTA 342

GONWOKAY (MIGRATION) [2025] ARTA 342 (13 MARCH 2025)
DECISION AND
REASONS FOR DECISION
Applicant:Ms Angeline Kalee Gonwokay
Visa Applicants:  Mr Josiah M Whapoe
Miss Johnet Whapoe
Master Abendnego Whapoe
Master Josiah Joel Whapoe
Master Abraham Whapoe
Respondent:  Minister for Immigration and Multicultural Affairs
Tribunal Number:  2216580

Tribunal:Peter Emmerton
Place:Adelaide
Date: 13 March 2025

Decision:The Tribunal affirms the decisions not to grant the applicants Partner (Provisional) (Class UF) visas.

Statement made on 13 March 2025 at 4:05pm
CATCHWORDS
MIGRATION – Partner (Provisional) (Class UF) visa – subclass 309 – applicant provided false or bogus documentation – applicant does not meet PIC 4020 – provided false information and evidence to claim Johnet Whapoe was the biological child of the applicant – requirements of PIC 4020(1) should not be waived – decision under review affirmed

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl 309.225
CASES
Arora v MIBP [2016] FCAFC 35
Batra v MIAC [2013] FCA 274
Kaur v MIBP [2017] FCAFC 184
Trivedi v MIBP [2014] FCAFC 42
STATEMENT OF REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister on 25 October 2022 to refuse to grant the applicants Partner (Provisional) (Class UF) visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants applied for the visas on 4 February 2019. The delegate refused to grant the visas on the basis that the first named applicant (the applicant) did not satisfy the requirements of cl 309.225 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) because they did not meet PIC 4020 because the applicant has knowingly provided false and misleading information to circumvent the migration regulations.
The review applicant appeared before the Tribunal on 13 March 2025 to give evidence and present arguments. The Tribunal also received oral evidence, via Teams video, from the primary applicant Mr Josiah M Whapoe.
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 309.225 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 circumstances 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 a 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 has read and carefully considered all the evidence presented to the Department and the delegate.
The Tribunal has read and carefully considered all the evidence presented to it prior to the hearing.
It has been claimed that on 25 December 2014 the applicant and the sponsor met in Buderam refugee camp.
They further claimed that on 1 December 2017 the applicant and sponsor committed to a shared life together.
On 2 August they subsequently married in Ghana.
The applicant in his application has claimed 4 children as dependents, declaring he is the biological father of each. Birth Certificates were provided for each child and the parents in each case were stated.
Miss Johnet Whapoe  Born 2004
Master Abendnego Whapoe              Born 2007
Master Josiah Joel Whapoe            Born 2009
Master Abraham Whapoe                  Born 2011
On 1 July 2021 the applicant was requested to undertake DNA testing in relation to each of his claimed biological children. This was agreed to and undertaken by Sonic Genetics.
On 26 July 2021, the sponsor provided the Department with a Statutory Declaration indicating she was the biological mother of Johnet Whapoe however the applicant was not the father. She also confirmed the information on the Birth Certificate was incorrect.
On 13 September 2021 the Sonic Genetics DNA tests were received which confirmed the following.
‘DNA testing with dependent children and Josiah Whapoe:
✃ Josiah Whapoe is excluded from being the biological father of Johnet Whapoe
✃ Josiah Whapoe is excluded from being the biological father of Abendnego Whapoe
✃ Josiah Whapoe is excluded from being the biological father of Abraham Whapoe
✃ Josiah Whapoe is not excluded from being the biological father of Josia Joel Whapoe
DNA testing with dependent children and Beatrice Baryou:
✃ Beatrice Baryou is excluded from being the biological mother of Johnet Whapoe
✃ Beatrice Baryou is excluded from being the biological mother of Abendnego Whapoe
✃ Beatrice Baryou is not excluded from being the biological mother of Josiah Joel Whapoe
✃ Beatrice Baryou is excluded from being the biological mother of Abraham Whapoe
DNA testing between Abraham Whapoe and Victoria Mendabor confirms that she is not
excluded from being his biological mother.’
On 29 October 2021, the applicant was invited by the delegate to comment on the findings as the findings do not align with the information submitted regarding his claimed children and statements about previous relationships.
On 15 November 2021 the applicant stated the following. In summary the applicant stated he was surprised at the DNA evidence. This was further canvassed during the hearing and the Tribunal is unable to confirm this claim, it did however believe it was plausible. He had believed himself to be the father of the 4 dependant children in the visa application and had cared for them as such. He was unable to obtain information from Beatrice Baryou as she refused to comment other than claims she is the biological mother of all the children, including those the DNA testing shows as not possible.
In the case of Victoria Mendabor, the child Abraham Whapoe whom she claimed was with the applicant, is established to be from a father other than applicant. The testing also establishes she is the mother. The applicant again stated he believed this child was his and has raised them.
It is clear from the DNA testing that the requirement in PIC 4020(1) not to provide a bogus document, or false or misleading information has been breached. It is possible that the applicant did this without knowledge of the falsity as he claims. It is also plausible that he was complicit in the deception as there are multiple deceptions. In either case the applicant fails to meet the requirements of PIC 4020(1).
In addition, in his statement dated 15 November 2021 the applicant admits that there was a deliberate decision to provide false information and evidence to claim Johnet Whapoe was the biological child of the applicant in order to assist his wife under her claimed traumatic life circumstances. This included the provision of a fraudulent Birth Certificate a copy of which the Tribunal has viewed, falsely naming him as the father, (which is knowingly false) and the sponsor as the mother. The Tribunal has no evidence before it to refute the claimed awful fate which befell the sponsor and therefore accepts it as truthful. However, this act of deception was a deliberate action designed to circumvent the provisions of the Australian immigration system. This is viewed very seriously by the Tribunal.
In summary, based upon the evidence available, the Tribunal is satisfied the applicant provided false or bogus documentation as defined in s 5(1) of the Act which was obtained because of a false or misleading statement, whether or not made knowingly.
This is in addition to information that is false or misleading in a material particular as defined in PIC 4020(5). That is 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.
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 not satisfied that the requirements should be waived.
The Tribunal notes neither the applicant, nor the sponsor made a submission to the delegate in relation to exercising a PIC 4020 waiver. The applicant, it is noted, did however in the statement made on 15 November 2021 briefly apologise for the deception perpetrated against the Australian immigration system by the provision of ‘incorrect information’. He also appealed to the delegate to make a decision to unite he and his family.
No submission was made to the Tribunal in relation to it exercising the provision of a PIC 4020 waiver prior to the hearing.
The Tribunal has been unable to identify compelling circumstances that affect the interests of Australia associated with this case. Nor were any such circumstances provided by the sponsor or applicants.
Under questioning at the hearing, the sponsor asked the Tribunal for a favourable outcome for her and her family. Apologised for the false information provided and emphasised how important it was for her and her husband and the children to be united in Australia. It was also stated she appreciated how hard it is to find a man such as her husband who is accepting of her previous difficult life events. Issues associated with her physical health challenges were canvassed and medical evidence which was provided prior to the hearing of such issues has been accepted as fact by the Tribunal. This is not considered at a level which is compelling or elicits a compassionate response.
The Tribunal notes the apology made by the applicant in relation to the deception associated with the children found to not be his due to claimed deceptions of previous partners. He went on to explain that as a man and considering his culture he believed in necessary to protect his wife by participating in the deception and production of a Birth Certificate for his wife’s daughter claiming he was the father. The Tribunal can appreciate his motivation whilst not being satisfied it was a reasonable course of action in the context of Australian values.
No medical evidence has been provided to indicate concerns regarding the mental health of the individuals associated with the case. The Tribunal does accept the verbal evidence provided by the sponsor of the stress the circumstances are causing her.
The Tribunal accepts the statements of support made by the sponsor’s community and Church as genuine in their desire for a positive outcome for the sponsor and acknowledges any concerns about the sponsor’s wellbeing they may have should a negative outcome result. The Tribunal finds this does not reach the level which elicits a compelling or compassionate response in this case. It does however believe the sponsor is a person who is genuinely attempting to make a positive contribution to her community and Australia.
It also accepts as fact the series of photographs provided showing the couple in what can be interpreted as an apparently close relationship. It in addition accepts the reasonable assertion that the parties involved wish to be united in Australia and progress their lives in a positive manner.
The Tribunal acknowledges that separation from a partner is not a desirable option for either member of a couple and their family situations. It is frequently viewed as a negative circumstance in most instances. This however is not sufficient to elicit a response that is overly compelling. Nor does it evoke great compassion in the eyes of the Tribunal in this instance.
None of the evidence presented prior to the hearing or at the hearing, alters the fact that at least 1 deliberate act or possibly a series of deliberate acts were employed to deceive the Australian Government and circumvent the Immigration legislation which is designed to protect Australia and its citizens.
The contents of paragraphs 42 - 44 of this decision were explained to the sponsor and the visa applicant at the hearing. It was also explained that the deliberate deception undertaken by the parties and the possible lack of compelling or compassionate reasons necessary to waive the requirements of PIC4020 may be the reason or part of the reason the Tribunal would affirm the delegate’s decision. The Tribunal checked with both parties that they understood what was being stated. It also checked early in the proceedings that the sponsor had a clear understanding of why the visa was refused and had discussed the issue with her representative. She affirmed this was the case.
The sponsor and the applicant were asked if they would like to comment on the information associated with the possible affirmation of the delegates decision. They explained their motivations, and once again they both apologised for their actions. They explained why they were so desperate to start their life together in Australia with the individuals they had believed were their children. The applicant stated he believed his actions as a man at the time of deliberately deceiving the Department were understandable as he wanted to protect his wife from shame and negative behaviours from the community. He also expressed remorse for the incorrect actions. It is noted by the Tribunal that the sponsor’s community in Australia appears to have not behaved in that manner and their statements indicate a supportive environment. It also observes that may not have been the case in the applicant’s community. The Tribunal accepts the parties may not have fully understood the very serious ramifications of deliberately committing fraud against the Australian Government in immigration matters. For clarity this is in relation to the child of the sponsor and the provision of knowingly false information on documentation, (Birth Certificate).
The Tribunal views false or misleading statements, or the provision of false physical evidence or information provided to circumvent a legitimate visa application process very seriously. Accurate and honest documentation and associated information gathering, and verification procedures provide many of the key pillars to our border security. As such, the Tribunal views the legal responsibilities associated with them as sacrosanct.
The Tribunal has formed the view there is insufficient evidence before it that indicates 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.
Therefore, the requirements of PIC 4020(1) should not be waived.
On the basis of the above, the applicant does not satisfy PIC 4020 for the purposes of cl 309.225.
Assessment against other streams
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.
The applicant has only sought to satisfy the criteria for a Partner (Provisional) (Class UF) 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.
Secondary applicants
The secondary applicants Abraham Whapoe, Josiah Joel Whapoe, Abendnego Whapoe and Johnet Whapoe are not able to meet the secondary criterion of clause 309.321 by virtue of being a dependant or member of the family unit of a person who, having satisfied the primary criteria, is the holder of a Partner (Provisional) (Class UF) (Subclass 309) visa.
DECISION
The Tribunal affirms the decisions not to grant the applicants Partner (Provisional) (Class UF) visas.
Date of hearing:  13 March 2025
Representative for the Applicant:           Ms Vaishalee Karanjgaokar (MARN: 1574036)
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 ART during the review of a reviewable migration 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.
…