Habimana (Migration)

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 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.
While PIC 4020 refers to information that is false, in the sense of purposely untrue, it is not necessary for the Minister to conclude that the review 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 also notes the guidance concerning these matters from the Full Federal Court in the matter of Singh v MIBP [2018] FCAFC 52. In particular, the Tribunal has paid careful regard to the following guidance in that decision [at 144]:
“Where an issue of the proper construction or application of PIC 4020 is raised, Trivedi and Patel authoritatively state that where a visa applicant has given or caused to be given to a relevant decision-maker a document which is a “bogus document” as defined, or information that is false or misleading in a material particular as defined, to determine whether PIC 4020 is satisfied or not, it is not necessary to show knowing complicity by the visa applicant as long as the material is purposely untrue.”
Bogus document or information that is false or misleading in material particular
A Child (Migrant) (Class AH) Orphan Relative (Subclass 117) visa application (the application) was lodged on 26 May 2020.
In support of the application, the review applicant provided a Form 40CH Sponsorship for a child to migrate to Australia.
The review applicant also provided certain documents that she claims are those of the visa applicant, in support of the application, namely a series of School Reports.
The School Reports provided were determined by the Delegate to be bogus documents that were knowingly given to the Department to support the visa applicant’s claim of being under 18 years of age at the time of the application.
The Delegate’s decision determined that the School Reports provided were “bogus documents that were knowingly given to the Department by the applicant to support the applicant’s claimed age”, and as a result the visa applicant failed to satisfy PIC 4020(1). As a result of this, the visa applicant failed to satisfy cl 117.223 of Schedule 2 to the regulations.
Subsequent to the Delegate’s decision, the review applicant provided to the Tribunal further documents, in support of the application, including what is claimed to be a Vaccination Card of the visa applicant as a young child and Birth Certificate Extracts allegedly issued on 6 June 2002 and 24 October 2019.
The School Reports
In support of the application, the review applicant provided School Reports for the visa applicant from Grade 1-6, from the primary school he attended in Burundi.
Country information concerning primary school education in Burundi, informed the delegate that there are six years of primary education in Burundi, commencing at age 7 years and finishing at age 13 years.
The initial school reports received from the review applicant included a report for Grade 6 for the 2013-2014 school year.
In completing primary school in Burundi in 2013-2014, it would mean that the visa applicant was aged 13 years during the school year, in which case the visa applicant must have been born in either 2000 or 2001. The effect of this is that the visa applicant would have been older than 18 years of age at the date of application and therefore unable to satisfy the appropriate regulation.
On 29 June 2023 the Department wrote to the review applicant outlining concerns in relation to the claimed date of birth in the application being inconsistent “… with the education documents provided in your application..”.
On 29 July 2023, the review applicant provided the Department with further documents, namely, a Grade 5 report for 2013-2014 and a Grade 6 report for 2014-2015.
However, the Grade 6 report for 2014-2015 included precisely the same results for each of the 12 listed subjects and in each of the three trimesters, as the original Grade 6 report for 2013-2014, except the year “2014-2015” had been written in by hand. However, the teacher and parent signatures at the base of each of the reports were entirely different.
The review applicant gave evidence by way of a sworn statement dated 3 November 2023, that the school year on the Grade 6 report dated 2014-2015 was handwritten as, after it had been obtained by her friend, Claudine, the report had gotten wet in the rain, which slightly blurred the reference to the school year. The review applicant claims that Claudine used a pen to handwrite the year in to make it clearer.
The effect of the Grade 6 report referring to the later school year of 2014-2015 is that it purports to show that the visa applicant completed Grade 6 at the age of 13 years in that school year, thereby supporting the visa applicant’s claim to have been born in 2002 and therefore under the age of 18 at the time the application was made.
Regarding the finishing of primary school in Burundi at the age of 13 years, the review applicant stated that it was not always the case as some children do not finish until later years because they were unable to complete the work. However, it was pointed out to her that all the reports from the visa applicant’s primary schooling were in sequential years and there was no reference or evidence at all to him repeating or missing a year.
The concerns of the Tribunal relating to the handwritten change of year on the Grade 6 report card were put to the review applicant at the Hearing. It was pointed out to the review applicant that on the face of the 2014-2015 report, the only item that had been rain-damaged was the year reference. The entirety of the page otherwise was unmarked, no other letters or numbers were damaged or required handwritten adjustment other than the year level. The review applicant stated that there was some rain damage on the other side of the report.
The Tribunal found the evidence of the review applicant in relation to these matters to be evasive, inconsistent, implausible and unhelpful. The Tribunal formed the view that the review applicant was not a truthful or credible witness.
The Vaccination Card
Additionally, the review applicant provided the Tribunal with a further document in November 2023, a Vaccination Card purporting to show the attendance by the visa applicant at a local medical clinic, evidencing vaccinations received and providing other health information including the weight of the child at certain intervals.
At the Hearing, the review applicant gave evidence that an acquaintance, Mr Claude Iradukunda, had travelled to Burundi in 2023 and had returned to Australia with a copy of the visa applicant’s Vaccination Card. She stated that Mr Iradukunda was her brother’s ex- brother-in-law.
In her sworn statement of 3 November 2023, the review applicant refers to the help she received from “…a cousin in Burundi and a local clinic…”. in obtaining the vaccination card.
At the Hearing, her evidence was that Mr Iradukunda had met with a cousin of Eric’s who gave him the Vaccination Card. She stated that the cousin had obtained the Vaccination Card from a neighbour of Eric’s family. She stated that prior to Eric’s family’s residence being burnt down by the militia, the neighbour had retrieved a bag from the house which contained clothing belonging to Eric’s mother. It is claimed that the Vaccination Card was contained in that bag. She was not aware of any other documents being retrieved by the neighbour.
The Tribunal put to the review applicant that it had several concerns in relation to the veracity of the Vaccination Card that she had provided. Firstly, that every entry in the document appeared to be in the same handwriting, notwithstanding that the earliest entries were in June 2002 and the latest entries allegedly in June 2007. Secondly, that every entry in the document appeared to be in the same blue pen and that each entry had the same level of brightness, with no fading or difference in colour, notwithstanding that the earliest entries were in June 2002 and the latest entries allegedly in June 2007. Thirdly, that in the column listing the dates on which the child’s weight had been taken, there were mistakes in relation to the year that the weight was taken (2005 - 2007) and that handwritten changes were made in three places which may suggest that all of the information was written at the one time and a mistake had been causing three sequential entries to be amended.
It was suggested to the review applicant that in the purported five year period during which the document was in use (2002-2007), it is highly unlikely and implausible that the same person would insert every detail of the document, using the same pen and that the level of brightness would be the same for all entries irrespective of the time they were written. The review applicant’s response was that at the clinic there are people who do the weighing of the children and educating the mothers but that there is only one supervisor and that person is the only one who writes in the document. She also said that in her experience blue pen is the most commonly used colour pen in Burundi.
The review applicant did agree with the Tribunal that it was exactly the same handwriting across the document.
It was suggested to the review applicant that herself or Mr Iradukunda or another person had created the document recently and that everything was written at the same time, which she denied.
Mr Iradukunda’s evidence was that he returned to Burundi in 2023 to visit family. He met with Eric’s cousin who lived close to where Eric’s family lived. The cousin had received a bag containing items which Eric’s neighbours had retrieved from the family’s home. Mr Iradukunda’s evidence is that he opened the bag at the cousin’s residence and found the document inside. He states that there were no other documents or items, only clothes.
In relation to issues concerning handwriting and the blue pen and when the document was created, he stated that when he brought the document back to Australia it was in an envelope and he never looked at it. Mr Iradukunda then stated that he had no knowledge of anything concerning the writing on the document and that he had not looked at the document. He was unaware whether it was completed or uncompleted when he retrieved the envelope.
The Tribunal finds it highly unlikely and implausible that the neighbours had retrieved a bag from Eric’s family’s home prior to it being burnt to the ground and that that bag would contain clothing of Eric’s mother and one single document namely, Eric’s childhood Vaccination Card, would be inside the bag. Further, the Tribunal finds it highly implausible that the neighbours would give the bag to Eric’s cousin who would retain it for approximately eight years and who would remain unaware of the document until Mr Iradukunda visited them in 2023.
The Tribunal found the evidence of the review applicant and Mr Iradukunda, in relation to these matters to be evasive, inconsistent, implausible and unhelpful. The Tribunal formed the view that neither the review applicant or Mr Iradukunda were truthful or credible witnesses.
The Birth Certificate Extracts
On 24 July 2023, the review applicant provided the Tribunal with two Birth Certificate Extracts of the visa applicant, the first stated as having been issued on 6 June 2002 and the second stated as having been issued on 24 October 2019.
The correspondence of the representative referred as follows to the extracts:
“The first Extract of the applicant’s birth certificate issued on 6 June 2002 has been found (see attached Extract Birth Certificate). Also attached is its English translation. The Extract Birth Certificate issued in 2019 was requested as the one issued in 2002 was misplaced but is now found. Both Extracts contain the same information - that the applicant was born on 1 June 2002”
The review applicant gave evidence that a person in Burundi obtained an extract of the visa applicant’s birth certificate by attending the hospital where the visa applicant was born. This extract stipulates that the visa applicant was born on 1 June 2002. It further states that his father was aged 32 years at the time of his birth and his mother was aged 33 years. It is stated as having been “issued” on 6 June 2002.
The review applicant then gave evidence that when her agent was putting together the documentation for the application, she could not locate this extract, so she requested another extract, which is stated as having been issued on 24 October 2019.
The Tribunal confirmed with the review applicant that she understood that an extract of a birth certificate should be an exact copy of the original certificate. Therefore, when an extract is requested, it should always reflect the exact same information as contained in the original birth certificate. The review applicant understood and agreed with this assertion.
It was pointed out to the review applicant that the purported 2002 extract refers to the parents’ ages as 32 years and 33 years respectively, whilst the purported 2019 extract refers to their ages as being 48 years and 49 years respectively.
The Tribunal put to the review applicant that as the extracts are different in relation to the ages of the parents, the 2019 document could not have been a true copy of the original birth certificate. Additionally, as the 2019 document is in exactly the same document style, font and presentation as the 2002 extract, the Tribunal put to the review applicant that it had serious concerns as to the validity of both extracts.
Additionally, it was put to the review applicant that the first extract received states that it was issued on 6 June 2002, just five days after the birth of the visa applicant, whereas the evidence of the review applicant is that she obtained this birth extract prior to the lodgement of the application.
The Tribunal then put to the review applicant that not only was information different in referring to the ages of the parents, the 2019 document didn’t account for the fact that the parents had allegedly died in a grenade explosion in 2015 and never actually attained the ages of 48 years and 49 years respectively.

The review applicant gave evidence that the hospital had got it wrong. She stated that rather than a single birth certificate, they have a book with information written in it concerning a person’s birth. When a request is made, the information is then transferred to an extract.
However, the Tribunal referred the review applicant to the fact that whether information was contained in a book or in a single document such as an original certificate, the information surrounding the birth should always be the same. In this instance, for example, the ages of the parents should always have remained the same.
The review applicant then stated that if she could have travelled to Burundi herself she would have been able to obtain the correct documentation. She stated that the authorities are aware that people are trying to get documents in order to go to another country and therefore they make it hard and charge large sums of money.
The Tribunal found the evidence of the review applicant in relation to these matters to be evasive, inconsistent, implausible and unhelpful. The Tribunal formed the view that the review applicant was not a truthful or credible witness.
The Sponsorship Form
In support of the application the review applicant provided a Form 40CH Sponsorship for a child to migrate to Australia. In that form, the review applicant stated that the visa applicant’s date of birth was 1 June 2002.
Having regard to the supplementary documents supplied to the Department and the Tribunal including: the School Reports; the Vaccination Card; and the Birth Certificates Extracts, the Tribunal finds that the review applicant gave false and misleading information in the sponsorship form by stating that the applicant’s date of birth was 1 June 2002.
For completeness, the Tribunal put to the review applicant that all three types of documents that were given as supporting evidence to verify the visa applicant’s date of birth, namely: the School Reports; the Vaccination Card; and the Birth Certificates Extracts, were bogus documents, fraudulently obtained or contrived and containing false and misleading information. Her response was that as she was not there to obtain the documents it was hard to get the correct documents. She also stated that there is corruption in the country and claims that she tried to get the right documents.
Section 5(1) of the Act defines a bogus document as follows:
"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.
PIC 4020(1) requires that the Minister is given “… a bogus document or information that is false and misleading in a material particular in relation to…. the application for the visa;”
PIC 4020(5) states that information that is false or misleading in a material particular means firstly, information that is “false and misleading at the time it is given”, and secondly, that is “relevant to any of the criteria the Minister may consider making a decision on an application, whether or not the decisions made because of that information”.
Having carefully considered all the evidence, the Tribunal finds that in relation to: the School Reports; the Vaccination Card; the Birth Certificate Extracts; and the Sponsorship Form, the review applicant provided bogus documents and/or information that was false or misleading in a material particular, in the sense that it was false or misleading at the time it was given (PIC 4020(5)(a)) 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 (PIC 4020(5)(b)), namely, in determining the age of the visa applicant at the time the application was lodged and whether he was under the age of 18 years at that time.
Therefore, the visa 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 (per: PIC 4020(4)). 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.
Whilst the Tribunal accepts that the failure to obtain the visa may be upsetting to the review applicant and/or other Australian citizen relatives of the visa applicant, it finds that this is not of a sufficient nature to amount to compassionate or compelling circumstances so as to justify the granting of the visa.
Having carefully considered all the material provided, the Tribunal finds that there is no evidence to indicate compelling circumstances affecting the interests of Australia, or compassionate or compelling circumstances affecting the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen, which justify the granting of the visa. Therefore, the review applicant has failed to satisfy Public Interest Criterion (PIC) 4020(4).
In the circumstances, the Tribunal is not satisfied that there are grounds to justify the waiver of PIC 4020. Therefore, the requirements of PIC 4020 should not be waived. Accordingly, the review applicant does not meet PIC 4020(1).
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 Howard
Member

ATTACHMENT – Extract from Migration Regulations 1994 (Cth)
Subclass 117—Orphan Relative
117.1—Interpretation
117.111
In 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 criteria
Note: 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 application
117.211
The 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).
117.212
The 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 decision
117.221
The 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.
117.222
The 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.
117.223
The applicant satisfies public interest criteria 4001, 4002, 4003, 4004, 4005, 4009, 4010, 4020 and 4021.
117.224
If 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.
117.226
If 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.
117.227
If the applicant has not turned 18, public interest criteria 4017 and 4018 are satisfied in relation to the applicant.
117.3—Secondary criteria
Note: 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 application
117.311
The 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.
117.312
The 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 decision
117.321
The applicant continues to be a member of the family unit of a person who is the holder of a Subclass 117 visa.
117.322
The sponsorship referred to in clause 117.312 has been approved by the Minister and is still in force.
117.323
The applicant satisfies public interest criteria 4001, 4002, 4003, 4004, 4005, 4009, 4010, 4020 and 4021.
117.324
If 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.
117.325
If the applicant has not turned 18, public interest criteria 4017 and 4018 are satisfied in relation to the applicant.
117.4—Circumstances applicable to grant
117.411
The applicant must be outside Australia when the visa is granted.
117.5—When visa is in effect
117.511
Permanent visa permitting the holder to travel to and enter Australia for a period of 5 years from the date of grant.
117.6—Conditions
117.611
First entry must be made before a date specified by the Minister for the purpose.
117.612
Either or both of conditions 8502 and 8515 may be imposed.
ATTACHMENT – Extract from Migration Regulations 1994 (Cth)
Schedule 4 – Public Interest Criterion 4020
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.
Note: For the definition of bogus document, see subsection 5(1) of the Act.

[2024] AATA 363

16 February 2024

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice