Hall (Migration) - [2022] AATA 3661

Hall (Migration) [2022] AATA 3661 (13 September 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
REVIEW APPLICANT:  Mr Robert Desmond Hall
VISA APPLICANT:  Miss Xianize Gem Taboada Tenejeros
REPRESENTATIVE:  Mrs Garima Pasoria (MARN: 1803063)
CASE NUMBER:  2101213
HOME AFFAIRS REFERENCE(S):          BCC2019/1064996
MEMBER:Kira Raif
DATE:13 September 2022
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a Extended Eligibility (Temporary) (Class TK) visa.

Statement made on 13 September 2022 at 2:23pm
CATCHWORDS
MIGRATION – Extended Eligibility (Temporary) (Class TK) visa – Subclass 445 (Dependent Child) visa – visa applicant did not meet Public Interest Criterion (PIC) 4020 – applicant provided information that was false or misleading – no basis to conclude that the birth certificate is a bogus document – separation of the mother and the young child constitutes a compassionate circumstance – requirements of PIC 4020(1) should be waived –visa applicant doesn’t have a parent who is a ‘visa holding parent’ –– decision under review affirmed

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 445.225, 445.221

CASES
Arora v MIBP [2016] FCAFC 35
Batra v MIAC [2013] FCA 274
Chou v MICMSMA [2021] FCAFC 130
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 November 2020 to refuse to grant the applicant a Extended Eligibility (Temporary) (Class TK) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The visa applicant is a national of the Philippines born in June 2013. She applied for the visa on 1 March 2019. The delegate refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl 445.225 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) because the delegate found that the visa applicant did not meet Public Interest Criterion (PIC) 4020. The sponsor (the review applicant) seeks review of the delegate’s decision.
The review applicant appeared before the Tribunal on 13 September 2022 to give evidence and present arguments. The Tribunal also received oral evidence from his partner Ms Tenejeros. 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.
Relevant law
The issue in this review is whether the visa applicant meets Public Interest Criterion 4020 (PIC 4020) as required by cl 445.225 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 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).
Another requirement that is relevant in this case is related to cl. 445.221. A criterion to be satisfied at the time of application is that the visa applicant is sponsored by the nominator or sponsor of the visa-holding parent: cl.445.211(b). At the time of decision, cl. 445.221 provides that the parent of the applicant must continue to be a visa-holding parent. Clause 445.111 relevantly defines a visa-holding parent as follows:
For this Part, the parent of an applicant is a visa-holding parent if he or she holds any of the following visas:
(a)Subclass 309 (Spouse (Provisional));
(aa)Subclass 309 (Partner (Provisional));
(b)Subclass 310 (Interdependency (Provisional));
(c)Subclass 445 (Dependent Child);
(d)Subclass 820 (Spouse);
(da)Subclass 820 (Partner);
(e)Subclass 826 (Interdependency).
Has the applicant given, or caused to be given a bogus document, or information that is false or misleading in material particular?
The term ‘information that is false or misleading in a material particular’ is defined in PIC 4020(5) and the term ‘bogus document’ is defined in s 5(1) of the Act (see the attachment to this decision). In contrast to the definition of ‘information that is false or misleading in a material particular’ in PIC 4020(5), the reference in the definition of bogus document to a document that was obtained because of a ‘false or misleading’ statement has no requirement that it be relevant to a criterion for the grant of the visa: Arora v MIBP [2016] FCAFC 35; Batra v MIAC [2013] FCA 274.
The requirement in PIC 4020(1) not to provide a bogus document, or false or misleading information, applies whether or not the Minister became aware of the bogus document or information that is false or misleading in a material particular because of information given by the applicant: PIC 4020(3). It also applies whether or not the document or information was provided by the applicant knowingly or unwittingly.
While PIC 4020 refers to information that is false, in the sense of purposely untrue, it is not necessary for the Minister (or the Tribunal on review) to conclude that the applicant was aware the information was purposely untrue in order for PIC 4020 to be engaged. However, an element of fraud or deception by some person is necessary to attract the operation of the provision: Trivedi v MIBP [2014] FCAFC 42.
Primary decision
The review applicant provided to the Tribunal a copy of the primary decision record. It indicates that the visa applicant made the application on the basis of being a dependent child of the review applicant’s partner Ms Gemma Tenejeros Hall. As part of her application the visa applicant provided a birth certificate issued by the Philippine Statistics Authority on 19 July 2013 referring to the visa applicant’s mother as Gemma Toboada Tenejeros and father unknown. It is stated that Ms Gemma Tenejeros made the application for a Partner visa in May 2017 and in that application Ms Tenejeros stated that when the child was born, her brother was looking for someone to look after his child as he could not afford to and she was told that if she was willing to look after the child, the child would be registered under her name, to which Gemma agreed. It was stated that Gemma had provided for the child’s needs and looked after the child. It is stated that Gemma did not declare the child in her application because the child is not her biological or adoptive child.
The primary decision record indicates that the information provided by Ms Tenejeros in her application contradicts the information in the child’s birth certificate, which shows Ms Tenejeros as the mother of the child. The delegate wrote to the visa applicant seeking comments on that information but it is recorded that no response was received. The delegate concluded that the applicant provided information that was false or misleading in a material particular as the child is not the biological child of Ms Gemma Tenejeros.
In his submission to the Tribunal of 10 September 2022 the review applicant acknowledges that the visa applicant may no longer meet the visa requirements because his partner has been granted the permanent visa. The review applicant provided statements from the child’s biological parents and from his partner, outlining the circumstances around the child’s parentage. Ms Gemma Tenejeros states that she had an agreement to be the legal mother of the child because her brother and his wife did not want to have a child. Ms Tenejeros states that she has always acted as the child’s mother and her daughter is not aware that she is not her biological child. The Tribunal has been provided with the agreement between Ms Gemma Tenejeros and the child’s biological mother, the child’s school certificate referring to Gemma Tenejeros as the mother, and other documents.
Was the information false or misleading?
The delegate’s findings are based on the fact that Ms Gemma Tenejeros appears on the visa applicant’s birth certificate and is identified as the child mother, even though she is not the biological mother of the child. However, in the Tribunal’s view, that reasoning is not supported by authority such as Chou v MICMSMA [2021] FCAFC 130. In that case (which was also concerned with the nomination of a non-biological father on the child’s birth certificate), the Full Court determined that a parent identified on a birth certificate need not be limited to a biological parent. This is consistent with the Migration Act itself which recognises parent – child relationships other than biological relationships.
Ms Tenejeros told the Tribunal in oral evidence that her brother and sister in law could not care for the child and she has always been considered as the mother of the child. She told the Tribunal that her brother and sister in law had never had any involvement with the child’s upbringing and did not provide any emotional, financial, physical or other help to the child.
The evidence before the Tribunal is that Gemma Tenejeros has had parental responsibilities in relation to the child from the time of the child’s birth. She had always acted as a mother of the child, made decisions about the child’s welfare and daily activities and the child believes she is the biological mother. The Tribunal accepts the description of how Ms Gemma Tenejeros came to look after the child. There is nothing to contradict that evidence. The Tribunal is satisfied that Ms Gemma Tenejeros has had parental responsibilities in relation to the child and has been recognised by others (including the child) as the mother of the child. Thus, the Tribunal is not satisfied that the reference to Ms Gemma Tenejeros as the child’s mother on the visa applicant’s birth certificate, or the reference to Ms Gemma Tenejeros as the visa applicant’s mother in the application forms, constitutes information that was false or misleading in a material particular.
Is the birth certificate a bogus document?
The Tribunal has also considered whether the birth certificate itself is a bogus document. Ms Tenejeros told the Tribunal that her brother and sister in law had asked the midwife to put her name down as the biological mother of the child and that is allowed in the Philippines.
The Tribunal does not consider that false or misleading statement was provided in order to obtain the birth certificate. Ms Tenejeros’ evidence to the Tribunal (and there is nothing to contradict that evidence) is that the midwife put her name down on the birth certificate and that document was then used for registration with the authorities. The midwife would be well aware that Ms Tenejeros was not the biological mother of the child and Ms Tenejeros told the Tribunal the arrangement was permitted by the authorities. There is no evidence that any false or misleading statement was given in order to obtain the birth certificate. There appears to be no basis to conclude that the birth certificate is a bogus document because it was issued on the basis of a false or misleading statement.
The Tribunal has formed the view that the requirements of PIC 4020(1) are met. However, even if the Tribunal is wrong in its findings, the Tribunal would exercise the discretion to waive the requirements of PIC 4020(1) for the reasons set out below.
Should the requirements of PIC 4020(1) be waived?
The requirements of PIC 4020(1) and (2) may be waived where there are compelling circumstances that affect the interests of Australia, or where there are compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident, or an eligible New Zealand citizen (as defined in reg 1.03), that justify the granting of the visa. The decision-maker must first be satisfied that there are such circumstances, then must consider whether to exercise the discretion to waive the requirements, having regard to those circumstances: Kaur v MIBP [2017] FCAFC 184.
The expressions ‘compelling circumstances’ and ‘compassionate or compelling circumstances’ are not defined for these purposes. To be compelling, the circumstances must force or drive the decision-maker irresistibly to be satisfied: see Plaintiff M64/2015 v MIBP [2015] HCA 50. The ordinary meaning of ‘compassionate’ relates to feelings of sympathy, sorrow, pity or concern for others.
For the following reasons, the Tribunal is satisfied that the requirements should be waived.
The Tribunal has found that Ms Tenejeros has always acted as the mother to the child from the time of the child’s birth and recognised by everyone as the mother of the child. She has always had, and continues to have, parental responsibilities in relation to that child. Ms Tenejeros is now a permanent resident of Australia. The Tribunal is satisfied that separation of the mother and the young child constitutes a compassionate circumstance
The Tribunal finds that the requirements of PIC 4020(1) should be waived. The Tribunal finds that the visa applicant satisfies PIC 4020 for the purposes of cl 445.225.
Is the parent of the visa applicant a “visa holding parent”?
As noted above, at the time of decision, a parent of the visa applicant must be a ‘visa holding parent’ which is effectively defined as a person who is a holder of a temporary visa. Electronic records before the Tribunal indicate that the visa applicant’s mother was granted the permanent, subclass 801 visa, in January 2022. This information was provided to the review applicant pursuant to s.359A of the Act in the Tribunal’s letter of 1 July 2022 and in response to the Tribunal’s correspondence, the review applicant requested the Tribunal to make a finding in relation to PIC 4020, which the Tribunal has done above.
There is no evidence that either parent of the visa applicant is a ‘visa holding parent’ at the time of this decision. The Tribunal is not satisfied that at the time of this decision, the visa applicant has a parent who is a ‘visa holding parent’. The Tribunal is not satisfied that the visa applicant meets cl. 445.221.
decision
The Tribunal affirms the decision not to grant the applicant a Extended Eligibility (Temporary) (Class TK) visa.
Kira Raif
Senior Member