Habib (Migration)

[2019] AATA 2157

Habib (Migration) [2019] AATA 2157 (3 May 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  George Habib

CASE NUMBER:  1804271

HOME AFFAIRS REFERENCE:                CLF2017/37369

MEMBER:Lilly Mojsin

DATE:3 May 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant an Other Family (Residence) (Class BU) visa.

STATEMENT MADE ON 03 MAY 2019 AT 9:55AM

CATCHWORDS
MIGRATION – Other Family (Residence) (Class BU) – Subclass 835 (Remaining Relative) – false or misleading information – element of fraud or deception – near relative – biological father – estranged – suffered abuse and neglect – Ministerial Intervention requested – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), rr 1.03, 1.15; Schedule 2, cls 835.212, 835.221, 835.223, 835.235; Schedule 4, PIC 4020

CASES
Batra v MIAC [2013] FCA 274
Ignatious v MIMIA [2004] FCA 1395
Koitaki Para Rubber Estates Ltd v Federal Commissioner of Taxation (1941) 64 CLR 241
MIMIA v Hidalgo [2005] FCAFC 192
Scargill v MIMIA [2003] FCAFC 116
Trivedi v MIBP [2014] FCAFC 42

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. The applicant applied for an Other Family (Residence) (Class BU) visa on 19 May 2017. At that time, Class BU contained three subclasses, Subclass 835 (Remaining Relative); Subclass 836 (Carer) and Subclass 838 (Aged Dependent Relative). In the present review, the applicant is seeking to satisfy the criteria for the grant of a Subclass 835 visa which are set out in Part 835 of Schedule 2 to the Migration Regulations 1994 (the Regulations).

2. The delegate refused the visa and found the applicant did not met cl. Clauses 835.212 and 835.223 and also did not meet cl.835.223(a) of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the applicant did not meet PIC 4020. The delegate determined the applicant had given false and misleading information within the meaning of s.5(1) of the Act and accordingly the applicant did not meet Public Interest Criterion (PIC) 4020.

3. The delegate further determined there were no compelling circumstances affecting the interests of Australia, or compassionate or compelling circumstances affecting an Australian citizen, permanent resident, or eligible New Zealand citizen that would justify the grant of the visa.

4. The applicant appealed that decision attaching a copy of the delegate’s decision to his application for review.

5. The applicant appeared before the Tribunal on 4 April 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the and English languages.

6. The applicant was assisted in relation to the review by his registered migration agent.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. In the application form, the applicant declared that his father, Ragi Habib is an Australian Citizen, New Zealand Citizen or Australian Permanent Resident.

8. He also stated:

   "I hear from community contacts that I have step siblings however I do not know any details about who they are, how many, what gender and what date of birth or where they live".

   and

   My father abandoned us from a very young age and we never seeing him since, neither do we know his whereabouts".

9. On Form 80 he declared that he had "unknown step-siblings".

10. In a submission from his migration agent it was also written:

    The Applicant's biological father has abandoned his family: consisting of his wife (the Sponsor), his daughter, and son (the Applicant) long time ago, while the children were in their primary years, the applicant heard from community rumours that his father has remarried and has children from his second marriage, but the applicant does not know the whereabouts of his father or step-siblings. The applicant is unable to obtain any evidence of their whereabouts or details including the whereabouts of his father".

11. The delegate stated that departmental systems showed that the applicant’s father was in Australia during the periods 3 March 2015 to 4 September 2015 and 6 September 2015 to 2 May 2016.  During each of those periods, his father lodged an application for a Visitor visa and in each of those applications he claimed he would be residing with his daughter, Julianna Hilal. Julianna Hilal was also the authorized contact for receiving communication for each of these applications.

12. The applicant’s declaration stated that he was unable to provide insight into the usual country of residence of his father or any information about his father's new family because he and his family had no contact with him since the applicant was young.

13. On 25 August 2017, the applicant was invited by the Department to comment on the initial assessment that his claims to have had no contact with his father since the end of his parent’s marriage and his inability to provide any information regarding his "step-siblings".  The migration agent stated that an error was made in the application form when she transcribed information provided by the applicant about his father’s status in Australia to a new copy of Form 470F. She provided a copy of a handwritten copy of Form 470F which, it was claimed, was completed by the applicant. In that form, his father was not declared to be an Australian Citizen, Australian permanent resident or New Zealand Citizen.

14. By submission to the Department the applicant said that

    ·his father arrived at his daughter’s home unannounced in March 2015. Despite their strained relationship, she felt an obligation to welcome her father into her home. Their father spent the rest of his holidays in Australia with his brother Ralph Edward (aka Rifaat Habib). The father asked his daughter to extend his Visitor visa and she felt culturally obliged to do so.  She respects her father but chose to keep a distance from him.

    ·Ms Halal had contact with her father during his visits to Australia.

    ·The applicant resided with his father temporarily in the United Kingdom in 2003.

15. In a Form 80 the applicant declared he had no way of finding any information about his father and his father's new family. He also declared in his Form 80 that his father was a British Citizen since 2000.

16. The delegate found that the applicant’s claim to have no way to source information about his father and his father’s new family to be false and misleading. 

17. The applicant claimed that while residing in the UK he suffered from depression and was treated for drug addiction. It was the advice of his counsellor in the UK to reside with his mother and sister as his separation from them was contributing to his depression. He claims that his mental and physical health have improved since being in Australia.

18. By s.359A letter the Tribunal put to the applicant as follows:

    In order to be granted the visa you must satisfy cl.835.223 of Schedule 2 to the Migration Regulations, which requires that you to satisfy Public Interest Criterion 4020 (PIC4020).

    PIC 4020 relevantly requires that there is no evidence before the Tribunal that an applicant has given or caused to be given a bogus document or information that is false or misleading in relation to the application for the visa.

    The particulars of the information are:

    •It was claimed by you in your application dated 19 May 2017 for a Subclass 835 visa that you and your family members had had no contact with your father since you were very young in 1997. You also claimed that you were unable to obtain any evidence about the whereabouts of your father and "step-siblings". Your sponsor, your mother, has also confirmed the lack of contact by you with your father, by statutory declaration, made to the Department.

    •Visitor visa applications, in 2015 and 2016, made by your father in order to travel to Australia show Julianna Hilal, your sister, was the authorized contact for receiving communication for each of these applications.

    Your uncle has stated in a declaration to the Department that his brother (Ragi Habib) has had no connection with the family since he deserted them in 1997. He stated that his brother stayed with him when he visited Australia in 2015 and 2016.

    This information suggests that your father, a British citizen, is alive and you and your family are all aware of the whereabouts of your father.

    This information is also relevant to the review because it may lead the Tribunal to find (subject to your comments and response) that there is evidence you have given information to the Department that is false or misleading in a material particular in relation to the visa application.

    If the Tribunal finds that you have given or caused to be given a bogus document or information that is false or misleading in relation to the application for the visa, unless the requirement of PIC 4020 is waived by the Tribunal (which it can only do if it is satisfied that there are compelling circumstances that affect the interests of Australia or compelling or compassionate circumstances that affect the interests of an Australian citizen, permanent resident or an eligible New Zealander), the Tribunal would find that you do not satisfy an essential criterion for the grant of a visa and may affirm the decision under review.

    You are invited to give comments on or respond to the above information in writing, including information relating to any compelling circumstances that affect the interests of Australia or compelling or compassionate circumstances that affect the interests of an Australian citizen, permanent resident or an eligible New Zealand.

19. The applicant responded, providing a statutory declaration from himself, his mother and his sister.

20. The applicant’s mother explained that she had no contact with her ex-husband since separation in 1997 and she was not aware of his visits to Australia in 2015 and 2016 or to their daughter’s residence. She learned this from their legal representative, in August 2017. Her daughter then explained that because of the broken relationship she did not tell her mother about his visit to her residence, nor did she tell her brother.

21. The applicant’s sister Julliana Hilal stated that in 1990, the family moved to the UK from the Sudan with their parents. Her father in 1997 deserted them. She did not see him again until his sudden appearance at her doorstep on 3 March 2015, when she opened the front door. He came with her cousin without any prior notice.  Around May 2015 he visited her again requesting that she assist him with an online application to extend his visitor visa using his ImmiAccount. She did so reluctantly. Around December 2015 he visited again requesting that she assist him again with another extension of his visitor visa. He came because he just needed to use her address as his place of residence and her email to receive communication from the Department. She did not tell her mother or brother about any of his visits. She further states that her mother suffers from ill health and a heart condition. As she has 3 children and a husband she is not able to look after her mother. She relies on her brother to help their mother and to care for her all the time. The applicant resides with his mother.

22. The applicant stated that until he received a letter from the Delegate dated 25 August 2017 inviting him to comment on information, he was not aware of the visit of his natural father to Australia. From 1997, his father stopped any care or control of his children. In 2003, he joined his mother on her partner visa. He departed Australia around May or June 2003 prior to the finalisation of the visa application. He resided with his father who kicked him out between July and September 2003. He was homeless and approached the homeless people's hostel who took him and provided him shelter. This required his father to surrender him to the local government. In 2016, after completion of a rehabilitation program he was reunited with his mother and sister. His treating Psychologist and Counsellors highly recommended that it would be in his best interest to reside with his mother and sister in order to curb his depression as they concluded that his distance from his family was causing depression which ultimately resulted in his need for rehabilitation and had resulted in addiction. Since being with his mother and sister he has improved immensely both mentally and physically,

23. The applicant provided a post hearing submission. The lengthy submission repeats evidence provided to the Department and the Tribunal and seeks that the Tribunal finds that the applicant meets cl. 835.212, by finding that the biological father is not to be considered as a ‘near relative - parent, because the father’s whereabouts are unknown, there is no evidence before the Tribunal that he is alive at the present and it is not reasonably possible to find this out and the applicant’s father has relinquished himself from the role, duties and responsibilities of a father since 1997.

24. Further the Tribunal should apply  Article 3, of the United Nations Human Rights Convention on the Rights of the Child and based on the ‘Best interests of the Child’ the following as:

    ·causing the child to suffer serious psychological harm caused by his abandonment

    ·the serious neglect of the applicant as his child,

    ·amounts to abuse and thus it is the in best interest of the applicant that his abusive biological father is NOT considered as a near relative.

    ·The father was ‘missing in action as he has given up his parent's role since the applicant was a minor ie since 1997 which over twenty-two years ago, when he abandoned and deserted his wife and children.

25. It was also submitted that the applicant's father, has on numerous occasions, abandoned his responsibilities as a father to the applicant and should not be considered to be a father in the eyes of the law as well.

26. Further the Tribunal should consider the definition of child abuse and neglect as defined internationally: by the World Health Organization and legally considering both the Australian Civil Child Protection Laws.

27. The applicant also submitted that deciding that an abusive father is considered a near relative and a parent will have an adverse psychological effect and will traumatise the applicant and the sponsor who were victims of this father for years.

28. The submission included a letter to the Minister seeking Ministerial intervention. 

    REASONS AND FINDINGS

29. The issue in this review is firstly whether the applicant meets Public Interest Criterion 4020 (PIC 4020) as required by cl.835.235 for the grant of the visa.  

30. If the applicant meets PIC 4020 then the Tribunal must assess whether the applicant meets cl.835.212 and cl.835.221.

31. Broadly speaking, cl.835.235 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: cl.4020(1); and

    ·the applicant and each member of the family unit has not been refused a visa because of a failure to satisfy cl.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: cl.4020(2) and (2AA); and

    ·the applicant satisfies the Minister as to his or her identity: cl.4020(2A); and

    ·neither the applicant nor any family unit member has been refused a visa because of a failure to satisfy cl.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: cl.4020(2B) and (2BA).

32. The requirements in cl.4020(1) and (2) can be waived if there are certain compelling or compassionate reasons justifying the granting of the visa: cl.4020(4). However, this waiver does not apply to the identity requirements in cl.4020(2A) and (2B). PIC 4020 is extracted in the attachment to this decision.

33. The term ‘information that is false or misleading in a material particular’ is defined in cl.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 cl.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: Batra v MIAC [2013] FCA 274.

34. The requirement in cl.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: cl.4020(3). It also applies whether or not the document or information was provided by the applicant knowingly or unwittingly.

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. The applicant’s sister was adamant that she did not advise her brother about their father’s visits to Australia due to their family situation. The applicant and his mother state they were not aware of the father’s presence. The delegate found that the applicant had provided false and misleading information about the applicant’s knowledge of contact by his sister and uncle with his father. The Tribunal was not able to interview the applicant’s uncle. As the Tribunal is unable to be satisfied that the applicant was aware of his father’s presence in Australia, the Tribunal gives the applicant the benefit of the doubt. Therefore the Tribunal finds it has insufficient evidence before it to be satisfied that there was an element of fraud or deception by some person. The Tribunal is therefore satisfied the applicant meets PIC 4020(1).

37. The visa application was made on the basis that the applicant is the remaining relative of Theresa Manoli who the applicant claims is his Australian relative. For the purposes of this application, ‘Australian relative’ means a ‘relative’ of the applicant who is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen: r.1.03. ‘Relative’ is also defined in r.1.03 and means a ‘close relative’ as defined, or a grandparent, grandchild aunt, uncle or niece or nephew (or their step equivalents).

38. In this review, Theresa Manoli is the applicant’s mother and is an Australian citizen and therefore is not an Australian relative for these purposes.

39. To be granted a Subclass 835 visa the applicant must be a ‘remaining relative’ of an ‘Australian relative’ at time of application, and continue to be a ‘remaining relative’ at time of decision: cl.835.212 and cl.835.221. ‘Remaining relative’ is defined in r.1.15 of the Regulations, which is set out in the attachment to this decision.

40. Broadly speaking, an applicant will be a remaining relative of an Australian relative if that person is a parent, brother, sister, step-parent (for visa applications made prior to 1 July 2009), step-brother or step-sister of the applicant and is ‘usually resident in Australia’.

41. The applicant, together with his or her spouse or where relevant, de facto partner, must also have no ‘near relatives’, with the exception of certain relatives in Australia. As the Australian relative in this review is the mother of the applicant, r.1.15(1)(a) is met. .

1. The dual factors of physical residency and intention are essential elements in the notion of ‘usually resides’ for the purpose of r.1.15: Scargill v MIMIA [2003] FCAFC 116 (‘Scargill’); Ignatious v MIMIA [2004] FCA 1395; and MIMIA v Hidalgo [2005] FCAFC 192. Generally speaking, an individual’s place of residence is to be determined by reference to where he ‘eats and sleeps and has his settled or usual abode’; Koitaki Para Rubber Estates Ltd v Federal Commissioner of Taxation (1941) 64 CLR 241 at 249, endorsed in Scargill at [17]. Scargill also confirms that the test for usual residence in r.1.15 can extend to the circumstances of a person living lawfully in Australia on a temporary visa.

2. As the Australian relative is usually resident in Australia, r.1.15(1)(b) is met

3. Regulation 1.15(1)(c) requires that the applicant have no ‘near relatives’ except those that are usually resident in Australia and are Australian citizens, permanent residents or eligible New Zealand citizens.

4. ‘Near relative’ for these purposes is defined in r.1.15(2) of the Regulations and means a person who is a parent, brother, sister, step parent (for visa applications made prior to 1 July 2009), step-brother or step-sister of the applicant or of their spouse or where relevant, de facto partner. It also includes a child, or step-child, of the applicant or their spouse or de facto partner who either: has turned 18 and is not a ‘dependent child’; or has not turned 18 and is not wholly or substantially in the daily care and control of the applicant or their spouse or partner.

5. The Tribunal accepts that the applicant and his father have been estranged since at least 2003. The Tribunal has no reason to doubt that the applicant has suffered abuse and neglect at the hands of his biological father whilst he was a child. The Tribunal notes that the applicant is now a 33 year old adult. Therefore the Tribunal rejects the applicant’s claims that the Tribunal should consider Article 3, of the United Nations Human Rights Convention on the Rights of the Child or any other international instrument or Australian law relating to children.

6. The applicant submits that his biological father is not to be considered as a ‘near relative - parent, because the father’s whereabouts are unknown, there is no evidence before the Tribunal that he is alive at the present and it is not reasonably possible to find this out and the applicant’s father has relinquished himself from the role, duties and responsibilities of a father since 1997. The Tribunal has no discretion to consider the relationship between the applicant and his father in assessing whether r.1.15(1)(c) is met.

7. The Tribunal has considered a document received at the Tribunal hearing, being a document signed in Sudan on 25 April 2017 by the applicant’s father attesting to his lack of support for the applicant and also stating “I didn’t live in UK anymore”.  This document was signed after the applicant’s father left Australia.

8. The Tribunal has considered Departmental policy that specifically provides:

   “If … claims that a near relative is dead, or missing and presumed dead, but there is no court presumption of death decision makers should still take account of the [rebuttable] common law presumption that a person who is missing for 7 years is dead when deciding the visa application…”

9. The common law presumption of death is commonly expressed as follows:

   If, at the time when the issue whether a man is alive or dead must be judicially determined, at least seven years have elapsed since he was last seen or heard of, by those in the circumstances of the case would according to the common course of affairs to have received communication from him or have learned of his whereabouts, were he living then, in the absence of evidence to the contrary, it should be found that he is dead. (Axon v Axon (1937) 59 CLR 395 at [404-51])

10. The Tribunal has considered the evidence provided by the applicant and his family. There is no death certificate relating to the applicant’s father. The evidence before the Tribunal is that the applicant’s uncle has had contact with the applicant’s father and the applicant’s sister in the past 7 years.  The evidence is that applicant’s father departed Australia in May 2016. He was alive in 2017 when he provided a document, via his brother, stating he is not living in the UK. The applicant’s father was alive at the time of application for the visa. The Tribunal is not satisfied that the applicant’s father is missing or deceased and as no evidence has been presented to the Tribunal as to what enquiries have been made regarding the applicant father’s whereabouts. The Tribunal does not accept that it is not reasonably possible to find this out. Therefore the Tribunal is not satisfied, on the evidence before it that the applicant’s father, a British citizen is deceased or missing.

11. As the Tribunal is not satisfied the applicant’s father is deceased and as he is not usually resident in Australia, the Tribunal is satisfied the applicant has a near relative, his father.

12. For these reasons, the Tribunal is not satisfied there are no near relatives other than those permitted by the regulations and therefore r.1.15(1)(c) is not met.

13. For the reasons set out above, the Tribunal is not satisfied that the applicant is the remaining relative of an Australian relative at the time of application and the time of decision for the purposes of cl.835.212 and cl.835.221.

14. For the reasons above, the applicant does not meet the criteria for a Subclass 835 visa. In respect of the other visa subclasses there is no material which would permit a finding that the applicant meets prescribed criteria for the visa sought.

15. The applicant has requested that the Tribunal refer his application to the Minister. The Tribunal refers the application as the applicant lives with and assists in the care of his mother. He would not be able to do so if he is unable to remain in Australia.

    DECISION

16. The Tribunal affirms the decision not to grant the applicant an Other Family (Residence) (Class BU) visa.

    Lilly Mojsin
    Member

    
    

    ATTACHMENT - Extracts from the Migration Regulations 1994

    1.15     Remaining relative

    (1)An applicant for a visa is a remaining relative of another person who is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen if the applicant satisfies the Minister that:

    (a)the other person is a parent, brother, sister, step-brother or step-sister of the applicant; and

    (b)the other person is usually resident in Australia; and

    (c)the applicant, and the applicant’s spouse or de facto partner (if any), have no near relatives other than near relatives who are:

    (i)usually resident in Australia; and

    (ii)Australian citizens, Australian permanent residents or eligible New Zealand citizens; and

    (d)if the applicant is a child who:

    (i) has not turned 18; and

    (ii) has been adopted by an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen (the adoptive parent) while overseas:

    at the time of making the application, the adoptive parent has been residing overseas for a period of at least 12 months.

    (2)In this regulation:

    near relative, in relation to an applicant, means a person who is:

    (a)a parent, brother, sister, step-brother or step-sister of the applicant or of the applicant’s spouse or de facto partner (if any); or

    (b)a child (including a step-child) of the applicant or of the applicant’s spouse or de facto partner (if  any), being a child who:

    (i)has turned 18 and is not a dependent child of the applicant or of the applicant’s spouse or de facto partner (if any); or

    (ii)has not turned 18 and is not wholly or substantially in the daily care and control of the applicant or of the applicant’s spouse or de facto partner (if any).