Hussaini (Migration)

[2021] AATA 1167

Hussaini (Migration) [2021] AATA 1167 (16 February 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Zakir Hussain Hussaini

VISA APPLICANTS:  Mr Ghulam Hussain Hussaini
Mr Sultan Hussain Hussaini

CASE NUMBER:  1834574

DIBP REFERENCE(S):  2012/002984

MEMBER:Roger Maguire

DATE:16 February 2021

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal affirms the decision not to grant the applicants Child (Migrant) (Class AH) visas.

Statement made on 16 February 2021 at 5:00pm

CATCHWORDS

MIGRATION ­– Child (Migrant) (Class AH) visa –117 (Orphan Relative) visa – applicants had both provided bogus documents – applicants failed to meet PIC 4020(1) – no compelling circumstances – requirements of PIC 4020(1) should not be waived– decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5, 65

Migration Regulations 1994, r 1.03 Schedule 2, cl 117.223

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 16 September 2018 to refuse to grant the applicants Child (Migrant) (Class AH) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 10 December 2012. The delegate refused to grant the visas on the basis that each of the applicants (the applicants) did not satisfy the requirements of cl.117.223 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because they had both provided bogus documents, namely in respect of the Applicant Zakir Hussain Hussaini a Tazkira with serial number 314138 which was verified as fraudulent by the Afghan issuing authority, and in respect of the Applicant Ghulam Hussain Hussaini, a Tazkira with serial number 314137 which was verified as fraudulent by the Afghan issuing authority.

3. The review applicant appeared before the Tribunal on 15 February 2021 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Hazaragi and English languages.

4. The review applicant was represented in relation to the review by his registered migration agent.

5. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The issue in this review is whether the visa 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 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).

7. 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 applicant given, or caused to be given a bogus document, or information that is false or misleading in material particular?

8. 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.

9. 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.

10. 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.

11. Each of the applicants provided documents which purported to be lawfully issued Tazkiras.

12. A Tazkira is an official identity certificate issued by Afghanistan’s Population Registration Directorate (PRD) to Afghan nationals. The PRD is responsible for registering details relating to births and deaths and is the only authority that issued documents such as birth certificates and other security release forms for Afghan citizens. A Tazkira serves as an Afghan citizen’s primary form of identification and means of accessing legal entitlements. Every Afghan is required to have a Tazkira and it is necessary to have one in order to (amongst other things) apply for jobs, admission to school or university, obtain a passport, register marriages with the Supreme Court of Afghanistan, and obtain permission to run a business or to rent, and to buy or sell a property.

13. The documents which purported to be Tazkiras were sent to Afghanistan Civil Central Registration Authority for verification, and in both instances the Department received advice that the Tazkiras provided had not been issued by the PRD.

14. There is therefore, evidence before the Tribunal that each of the applicants has given, or caused to be given to the Minister, a “bogus document” as defined in section 5 (1) of the Act, as in each instance, the documents have been issued by a person or persons without authority to do so. Indeed, at hearing, it was conceded that the documents were bogus.

15. Therefore, the applicants do not meet PIC 4020(1).

    Should the requirements of PIC 4020(1) or (2) be waived?

16. 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 r.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.

17. 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.

18. For the following reasons, the Tribunal is not satisfied that the requirements should be waived.

19. The Tribunal has had regard for the written submissions received prior to the hearing.

20. The applicant told the Tribunal that the Department rejected the applications because fraudulent Tazkiras were obtained through someone who had charged a commission, and they were not aware the he had obtained them fraudulently, and they would not have provided them had they known so. The recent Tazkiras were genuine and obtained by his brothers. The applicant conceded that the previous Tazkiras were fraudulent documents.

21. At the hearing, the review applicant did not contend that there are compelling circumstances that affect the interests of Australia that justified the granting of the visas.

22. The applicant expressed concerns about his health to the Tribunal. He said that at night he has a lot of worry about his brothers, as one is in Indonesia and one is in Afghanistan, and neither of them is safe, and this causes him to not have good sleep at night. The applicant said that he is not under any medical treatment but his doctor has written a letter saying that he has stress and depression, and his employers have confirmed that he is under an extreme amount of stress. He has worked for his current employer since October 2014. The longest period of time he has had off sick has been is a day or two, when he can’t bear the very cold work environment. He works in an abattoir in the boning room.

23. The review Applicant was also asked to inform the Tribunal of compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen that justify the granting of the visa.

24. The applicant said that it has been eight to nine years since he applied for his brothers’ visas, and he hopes that the Tribunal can make a positive decision in that regard. He said that the case with his brothers had put him under a lot of pressure, he has a lot of trouble sleeping. His brother in Indonesia is not in a good state, and the brother in Afghanistan is not in a safe place. He is alone in Australia and does not have anyone. He would like them to be with him to care for him if one day he becomes sick and cannot work, they will be able to support him.

25. The applicant said that the situation in Afghanistan is not safe. Refugees in Indonesia are committing suicide, and his brother has been there for the last five years, and he has a lot of worry about it.

26. The Tribunal accepts the evidence of the review applicant but does not consider that it establishes the requisite compassionate or compelling circumstances.

27. Therefore the requirements of PIC 4020(1) should not be waived.

28. On the basis of the above, the applicant does not satisfy PIC 4020 for the purposes of cl.117.223.

29. The Tribunal has also considered whether the applicants meet primary criteria for either of the other two subclasses in Class AH. There was no evidence presented to the Tribunal to indicate that the visa applicants would meet the criteria for the grant of an Adoption (subclass 102) or Child (subclass 101) visa.

    DECISION

30. The Tribunal affirms the decision not to grant the applicants Child (Migrant) (Class AH) visas.

    Roger Maguire
    Member

    ATTACHMENT

    Migration Regulations 1994

    Schedule 4

    4020(1)         There is no evidence before the Minister that the applicant has given, or caused to be given, to the Minister, an officer, the 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.

    …

    Migration Act 1958

    s.5      Interpretation

    (1) In this Act, unless contrary intention appears:

    …

    bogus document, in relation to a person, means a document that the Minister reasonably suspects is a document that:

    (a)purports to have been, but was not, issued in respect of the person; or

    (b)is counterfeit or has been altered by a person who does not have authority to do so; or

    (c)was obtained because of a false or misleading statement, whether or not made knowingly. 

    …