Habimana (Migration) - [2024] AATA 363

Habimana (Migration) [2024] AATA 363 (16 February 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REVIEW APPLICANT:  Mrs Immaculee Habimana
VISA APPLICANT:  Mr Eric Nitegeka
CASE NUMBER:  2315391
HOME AFFAIRS REFERENCE(S):          CLF2020/18644
MEMBER:Edward Howard
DATE:16 February 2024
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision not to grant the visa applicant a Child (Migrant) (Class AH) visa.

Statement made on 16 February 2024 at 10:04am

CATCHWORDS
MIGRATION – Child (Migrant) (Class AH) visa – Subclass 117 (Orphan Relative) – bogus documents – misleading information – School Reports – Vaccination Cards – Extract Birth Certificate – variations in parents’ ages – compassionate or compelling circumstances – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5, 65
Migration Regulations 1994, Schedule 2, cls 117.211, 117.223; Schedule 4, Public Interest Criterion 4020; rr 1.03, 1.14, 1.15
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
Singh v MIBP [2018] FCAFC 52
Trivedi v MIBP [2014] FCAFC 42
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 30 August 2023 to refuse to grant the visa applicant a Child (Migrant) (Class AH) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The visa applicant applied for the visa on 26 May 2020. At that time, Class AH contained three subclasses: Subclass 101 (Child), Subclass 102 (Adoption) and Subclass 117 (Orphan Relative). In this case, claims have been made in respect of the Subclass 117 visa.
The criteria for a Subclass 117 visa are set out in Part 117 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations).
The delegate refused to grant the visa because the visa applicant failed to meet Public Interest Criterion (PIC) 4020 and therefore was unable to satisfy cl 117.223 of Schedule 2 to the Regulations.
The review applicant appeared before the Tribunal on 23 January 2024 to give evidence and present arguments. The Tribunal also received oral evidence from Claude Iradukunda and Dr John Bosco Ngendakuriyo. The review applicant appeared before the Tribunal for a further Hearing on 12 February 2024 to give evidence and present arguments.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The review applicant is Ms Immaculee Habimana, an Australian citizen. The visa applicant is Mr Eric Nitegeka, born in Burundi and currently resident in Malawi.
The review applicant claims to be the aunt of the visa applicant who lodged a claim for an Orphan Relative visa (Subclass 117), on 26 May 2020.
Consideration of Public Interest criterion (PIC) 4020
The issue in this review is whether the review applicant meets Public Interest Criterion 4020 (PIC 4020) as required by cl 117.223 for the grant of the visa. Broadly speaking, this requires that:
·there is no…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Habimana (Migration)

Details

AGLC: Habimana (Migration) [2024] AATA 363
Case: [2024] AATA 363
Decision Date: 16 February 2024

CaseChat Overview and Summary

This matter concerned an application for an Orphan Relative visa (Subclass 117) lodged by Mr Eric Nitegeka, a resident of Malawi, with his aunt, Ms Immaculee Habimana, an Australian citizen, as the review applicant. The Administrative Appeals Tribunal was required to determine whether Mr Nitegeka met Public Interest Criterion (PIC) 4020, a mandatory requirement for the grant of the visa under clause 117.223 of the Migration Regulations 1994.

The Tribunal was tasked with assessing whether Mr Nitegeka had provided, or caused to be provided, a bogus document or information that was false or misleading in a material particular in relation to his visa application or a previous visa held within the preceding 12 months. The Tribunal also considered whether Mr Nitegeka and his family unit had been refused a visa due to a failure to satisfy PIC 4020(1) within specified periods, and whether Mr Nitegeka satisfied the identity requirements under PIC 4020(2A) and (2B). The Tribunal noted that while the requirements of PIC 4020(1) and (2) could be waived for compelling or compassionate reasons, this waiver did not extend to the identity requirements.

The Tribunal found that the definition of a "bogus document" under section 5(1) of the Migration Act 1958 did not require the document to be relevant to a criterion for the grant of the visa, unlike the definition of "information that is false or misleading in a material particular" under PIC 4020(5). The Tribunal concluded that Mr Nitegeka had failed to satisfy PIC 4020(1) because he had provided a bogus document or misleading information. Consequently, the Tribunal determined that Mr Nitegeka did not satisfy clause 117.223 at the time of the decision.

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

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.CONSIDERATION OF CLAIMS AND EVIDENCE The review applicant is Ms Immaculee Habimana, an Australian citizen. The visa applicant is Mr Eric Nitegeka, born in Burundi and currently resident in Malawi. The review applicant claims to be the aunt of the visa applicant who lodged a claim for an Orphan Relative visa (Subclass 117), on 26 May 2020.Consideration of Public Interest criterion (PIC) 4020 The issue in this review is whether the review applicant meets Public Interest Criterion 4020 (PIC 4020) as required by cl 117.223 for the grant of the visa. Broadly speaking, this requires that:·there is no evidence that the review 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 review applicant held in the 12 months before the application was made: PIC 4020(1); and·the review 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 review applicant was under 18 at the time the application for the refused visa was made: PIC 4020(2) and (2AA); and·the review applicant satisfies the Minister as to his or her identity: PIC 4020(2A); and ·neither the review 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 review 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.Has the review 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.

Decision

Reasons for decision

Therefore, having found that the review applicant does not satisfy PIC 4020(1), the Tribunal finds that at the time of this decision, the review applicant does not satisfy cl 117.223.DECISION The Tribunal affirms the decision not to grant the visa applicant a Child (Migrant) (Class AH) visa.Edward HowardMemberATTACHMENT – Extract from Migration Regulations 1994 (Cth)Subclass 117—Orphan Relative117.1—Interpretation117.111In this Part:Australian relative means a relative of the applicant who is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen.Note: dependent child, eligible New Zealand citizen, relative and settled are defined in regulation 1.03, orphan relative is defined in regulation 1.14, de facto partner is defined in section 5CB of the Act (also see regulation 1.09A), and spouse is defined in section 5F of the Act (also see regulation 1.15A).117.2—Primary criteriaNote: The primary criteria must be satisfied by at least one member of a family unit. The other members of the family unit who are applicants for a visa of this subclass need satisfy only the secondary criteria.117.21—Criteria to be satisfied at time of application117.211The applicant:(a) is an orphan relative of an Australian relative of the applicant; or(b) is not an orphan relative only because the applicant has been adopted by the Australian relative mentioned in paragraph (a).117.212The applicant is sponsored:(a) by the Australian relative, if the relative:(i) has turned 18; and(ii) is a settled Australian citizen, a settled Australian permanent resident, or a settled eligible New Zealand citizen; or(b) by the spouse or de facto partner of the Australian relative, if the spouse or de facto partner:(i) has turned 18; and(ii) is a settled Australian citizen, a settled Australian permanent resident or a settled eligible New Zealand citizen; and(iii) cohabits with the Australian relative.117.22—Criteria to be satisfied at time of decision117.221The applicant:(a) continues to satisfy the criterion in clause 117.211; or(b) does not continue to satisfy that criterion only because the applicant has turned 18.117.222The sponsorship referred to in clause 117.212 has been approved by the Minister and is still in force.Note: Regulation 1.20KB limits the Minister’s discretion to approve sponsorships.117.223The applicant satisfies public interest criteria 4001, 4002, 4003, 4004, 4005, 4009, 4010, 4020 and 4021.117.224If the Minister has requested an assurance of support in relation to the applicant, the Minister is satisfied that the assurance has been accepted by the Secretary of Social Services.117.225(1) Each member of the family unit of the applicant who is an applicant for a Subclass 117 visa is a person who satisfies public interest criteria 4001, 4002, 4003, 4004, 4005, 4009, 4010 and 4020.(2) Each member of the family unit of the applicant who is not an applicant for a Subclass 117 visa is a person who:(a) satisfies public interest criteria 4001, 4002, 4003 and 4004; and(b) satisfies public interest criterion 4005, unless the Minister is satisfied that it would be unreasonable to require the person to undergo assessment in relation to that criterion.117.226If a person (in this clause called the additional applicant):(a) is a member of the family unit of the applicant; and(b) has not turned 18; and(c) made a combined application with the applicant—public interest criteria 4015 and 4016 are satisfied in relation to the additional applicant.117.227If the applicant has not turned 18, public interest criteria 4017 and 4018 are satisfied in relation to the applicant.117.3—Secondary criteriaNote: These criteria must be satisfied by applicants who are members of the family unit of a person who satisfies the primary criteria.117.31—Criteria to be satisfied at time of application117.311The applicant is a member of the family unit of, and made a combined application with, a person who satisfies the primary criteria in Subdivision 117.21.117.312The sponsorship referred to in clause 117.212 of the person who satisfies the primary criteria includes sponsorship of the applicant.117.32—Criteria to be satisfied at time of decision117.321The applicant continues to be a member of the family unit of a person who is the holder of a Subclass 117 visa.117.322The sponsorship referred to in clause 117.312 has been approved by the Minister and is still in force.117.323The applicant satisfies public interest criteria 4001, 4002, 4003, 4004, 4005, 4009, 4010, 4020 and 4021.117.324If the Minister has requested an assurance of support in relation to the person who satisfies the primary criteria, the Minister is satisfied that:(a) the applicant is included in the assurance of support given in relation to that person, and that assurance has been accepted by the Secretary of Social Services; or(b) an assurance of support in relation to the applicant has been accepted by the Secretary of Social Services.117.325If the applicant has not turned 18, public interest criteria 4017 and 4018 are satisfied in relation to the applicant.117.4—Circumstances applicable to grant117.411The applicant must be outside Australia when the visa is granted.117.5—When visa is in effect117.511Permanent visa permitting the holder to travel to and enter Australia for a period of 5 years from the date of grant.117.6—Conditions117.611First entry must be made before a date specified by the Minister for the purpose.117.612Either or both of conditions 8502 and 8515 may be imposed.ATTACHMENT – Extract from Migration Regulations 1994 (Cth)Schedule 4 – Public Interest Criterion 40204020 (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.Note: For the definition of bogus document, see subsection 5(1) of the Act.

Ratio Decidendi

Legal Principle Established

The review applicant claims to be the aunt of the visa applicant who lodged a claim for an Orphan Relative visa (Subclass 117), on 26 May 2020.Consideration of Public Interest criterion (PIC) 4020 The issue in this review is whether the review applicant meets Public Interest Criterion 4020 (PIC 4020) as required by cl 117.223 for the grant of the visa. Broadly speaking, this requires that:·there is no evidence that the review 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 review applicant held in the 12 months before the application was made: PIC 4020(1); and·the review 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 review applicant was under 18 at the time the application for the refused visa was made: PIC 4020(2) and (2AA); and·the review applicant satisfies the Minister as to his or her identity: PIC 4020(2A); and ·neither the review 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 review 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.Has the review 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 review applicant: PIC 4020(3). It also applies whether or not the document or information was provided by the review applicant knowingly or unwittingly.