Kim (Migration)

Kim (Migration) [2022] AATA 2804 (26 June 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
REVIEW APPLICANT:  Mr Ra Kim
VISA APPLICANTS:  Miss Dalin Ra
Mr Bunrong Ra
REPRESENTATIVE:  Mrs Lilly Chour (MARN: 0960176)
CASE NUMBER:  2012849
HOME AFFAIRS REFERENCE(S):         2019022121
MEMBER:Brendan Darcy
DATE:26 June 2022
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicants Child (Migrant) (Class AH) visas.

Statement made on 26 June 2022 at 11:35am
CATCHWORDS
MIGRATION – Child (Migrant) (Class AH) visa – subclass 101 (Child) visa – failed to meet Public Interest Criteria 4020 – bogus documents – death certificate is a bogus document – requirements of PIC 4020(1) and (2) should not be waived – no satisfactory grounds to waive the requirements of PIC4020 – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 360
Migration Regulations 1994, r 1.03, Schedule 2, cl 101.223

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
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 5 June 2020 to refuse to grant the applicants Child (Migrant) (Class AH) visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants applied for the visas on 11 September 2019. The delegate refused to grant the visas on the basis that the first named applicant (the applicant) did not satisfy the requirements of cl 101.223 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) because they were found to have submitted one or more bogus documents and therefore, they failed to meet Public Interest Criteria 4020.
A hearing was scheduled for 7 June 2022. On 25 May 2022, the review applicant responded to the invitation indicating the applicants would attend and that an interpreter in the Khmer and English languages would be required.
On 5 June 2022, the review applicant wrote to the Tribunal to provide consent to the presiding Member to make a decision on the evidence before it without attending a hearing. Attached was a ‘Response to Hearing Invitation’ form in which the review applicant selected the box marked: 'No, I will not participate in the hearing, and consent to the Tribunal making a decision on the papers without taking further steps to allow me to appear'.
The review applicant was represented in relation to the review.
Tribunal is satisfied that the applicant has provided the requisite consent to enable the Tribunal to proceed to make a decision without the applicant appearing before it. If an applicant consents to the Tribunal deciding the review without him or her appearing before it, the exception in section 360(2)(b) will apply.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
consideration of claims and evidence
Background
The review applicant
The review applicant was born on 9 October 1964 in the Kingdom of Cambodia (Royaume du Cambodge), or Cambodia.
The review applicant first arrived in Australia in 2007 on a Class TR Subclass 676 visitor visa.
Between the expiry of a visitor visa granted in December 2009, and the review applicant’s June 2015 Combined Subclasses 820/801 Partner visa application, the review applicant was unlawful for several years until he was granted a bridging visa while his partners visa was assessed.
According to a submitted marriage certificate issued by the relevant authority in the State of Victoria, the review applicant married Ms Saravin Tath of Keysborough on 27 December 2014.
On 7 June 2017, a Subclass 820 temporary partner visa was granted to the review applicant. He was later granted permanent residency as a holder of a Class BS Subclass 100 Partner which is in effect, right up to the time of making this decision.
The review applicant lodged a Class AH Subclass 101 Child visa on 11 September 2019 with the purpose to sponsor the first named visa applicant (the first applicant) and the second named visa applicant (the second applicant) to migrate from Cambodia to Australia.
According to the Departmental files, the Tribunal notes that the review applicant lodged a Freedom of Information request to access the files pertaining to both these child visa applications on 20 August 2020. A decision to release these documents was made on 28 August 2020, with only the credit card information redacted.
On the Departmental file pertaining to the first applicant is an internal email dated 17 October 2018. Its subject heading is ‘Seeking advice for possible cancellation – BS801 – Kim Ra – CID 2254361696.’ The email indicates that the applicant had been unlawful for several years until lodging an onshore partner visa. It further indicated that the applicant’s visitor visa application in 2009 had declared his wife Kuoy Ngim (aka Houy Ngim) died on 15 May 2013,that he had 4 to 5 children, and that he had been married to Chea Sambath.
The first applicant
The first named applicant or the first applicant, female, was born on 6 September 1996 in the Kingdom of Cambodia (Royaume du Cambodge or Cambodia).
On 17 October 2018, the first applicant was issued a section 57 letter by the Department. It provided an opportunity for the first applicant to comment on the adverse information before the Department in relation to the suspected bogus documents, and the applicant’s identity (this was an amended version that had been emailed a day before). The applicant was afforded 28 days to respond. The s.57 letter stated:
You have submitted a Provisional Certificate of High School Completion issued 2 September 2013 indicating your mother’s name is TAING Houy Ngim.
You have submitted a birth certificate issued 27 October 2014 indicating your mother is KUOY Ngim.
You have submitted a death certificate registered 11 March 2014 indicating KUOY Ngim passed away 15 May 2006.
Information before the Department suggests that KUOY Ngim passed away in 2003 and that your mother is an individual named CHEA Sambath.
Other information before the Department indicates you have three (3) older siblings. Please provide comment on why you have not declared these individuals within form 47CH Application for migration to Australia by a child.
The conflicting information may lead me to find you have provided information that is false or misleading in a material particular to your identity, Public Interest Criteria 4020(2A). This may also lead me to find you have provided a bogus document to the Department.
It further stated with regards to the Minister being satisfied as to the first applicant’s identity:
Country information, and the experience of this post, is that identity documents issued by the authorities in Cambodia are often issued based on self-reporting and recently issued identity documents cannot be relied upon as evidence of identity. You are therefore required to provide older identity documents in support of your identity. Specifically Family Book registration and residence book registration prior to 2010. You must also provide a current/recently registered residence book and family book. These documents are required to support your claimed identity.
Copies of original registration with the Sangkat (Commune) can be obtained from the Sangkat where the individual was originally registered. If the civil status master registration book (either Family book or Residence book) is no longer stored at the Sangkat, a request can be made at either the district office or the provincial office for a copy of the registration.
As referred to above, the earliest registration of your identity with the authorities of Cambodia was in 2014 when you obtained your birth certificate. Of further consideration is the conflicting information before the Department, as noted above, regarding the identity of your biological mother.
You may provide comment on the evidence and/or information that is considered to be inconsistent/inaccurate/inadequate in nature in relation to the claimed identity, to justify the grant of the visa.
A response was received by the Department on 16 November 2018. It included the following documents and statements to support the claim regarding the death of Kuoy Ngim in 2005, the applicants’ claimed biological mother,
·A statement dated 25 October 2018 issued by the Chief of Treuy Sla Commne, Saang District declaring KUOY Ngim and RA Bunrong are mother and son;
·A separate statement dated 25 October 2018 issued by the Chief of Treuy Sla Commune, Saang District declaring CHEA Sambath and KUOY Ngim as ‘godsister’(s);
·A separate statement dated 30 October 2018 issued by the Chief of Treuy Sla Commune, Saang District stating TANG Houy Ngim (born 5 June 1955) and KUOY Ngim (born 5 June 1955) are one and the same person;
·A separate statement dated 30 April 2019 issued by the Chief of Treuy Sla Commune, Saang District declaring KUOY Ngim passed away on 15 May 2006 and left two children behind, RA Dalin (born 06 September 1996) and RA Bunrong (born 01 February 2005);
·A statement dated 9 November 2018 by CHEA Sambath stating she is the younger godsister of KUOY Ngim who passed away on 15 May 2006 and that she accepted care of RA Bunrong in November 2009 as Kim RA departed for Australia;
·Three undated photos which are claimed to be evidence of KUOY Ngim’s funeral;
·A statement dated 21 May 2019 by Cheng Khan, a priest, declaring that he organised the funeral of KUOY Ngim on 15 May 2006;
·A statement dated 21 May 2019 by Ta Run, Abbot of Po Andet Pagoda, who advised that he was invited to organise the funeral of KUOY Ngim on 15 May 2006;
·A statement dated 21 May 2019 by Khon Bunna, a truck driver, confirming that he delivered the corpse of KUOY Ngim on 15 May 2006 from Sre Ambil district, Koh Kong to Po Leu village, Treuy Sla commune, Saang district, Kandal;
·A statement dated 09 July 2019 by Kang Saveth advising that he attended the funeral ceremony of KUOY Ngim on 16 May 2006;
·A statement dated 09 July 2019 by Thok Than advising that he attended the funeral ceremony of KUOY Ngim on 16 May 2006;
·A statement dated 09 July 2019 by Song Ith advising that he attended the funeral ceremony of KUOY Ngim on 16 May 2006;
·A statement dated 09 July 2019 by Thai Samrong advising that he attended the funeral ceremony of KUOY Ngim on 16 May 2006;
·An undated statement by Meas Sokheng and Toek Kimhorn advising that KUOY Ngim passed away on 15 May 2006 and left one daughter and one son behind;
·Furthermore, a statement by the review applicant dated 30 August 2019 informing the Department that additional statements from various individuals have been provided to support claims that KUOY Ngim passed away on 15 May 2006. In the same statement, he also advised that he is willing to undertake DNA testing to confirm the relationship.
A delegate refused to grant the first applicant a Child visa on 5 June 2020.
The second applicant
The second named applicant (or the second applicant), male, was born on 1 February 2005 in Cambodia.
In the application for a Child visa, it was claimed that the second applicant’s biological mother was KUOY Ngim (also known as TANG Houy Ngim and TAING Houy Ngim). The claimed biological mother was born 5 June 1955 and was deceased on 15 May 2006. The second applicant’s biological father is claimed to be KIM Ra (born 9 October 1964).
The second applicant has submitted a birth certificate registered in 2014 and a vaccination record issued at birth in support of the applicant’s claimed identity as the biological child of KUOY Ngim.
A copy of the same death certificate registered 11 November 2014 in support of KUOY Ngim’s claimed date of death on 15 May 2006 (referred to in the first applicant’s Child visa application) was submitted.
On 28 April 2020, the first applicant was issued a section 57 letter by the Department. It provided an opportunity for the first applicant to comment on the adverse information before the Department in relation to the suspected bogus documents, and the applicant’s identity. The section 57 letter raised similar concerns as outlined above in relation to the first applicant. Specifically, it stated:
As referred to above, there is inconsistent information regarding your biological mother. You claim to have been born 01 February 2005 and have provided a birth certificate and other documents to support this date of birth. While you have submitted a death certificate for your mother stating the date of death on 15 May 2006, official documentary evidence submitted to the Department previously indicates date of death for KOUY Ngim was 12 May 2003.
While I have noted a residence book which shows your civil status registered on 20 August 2007 showing the name of your parents as KIM Ra and KUOY Ngim, information before the Department indicates your mother is an individual named CHEA Sambath and not KUOY Ngim.
The conflicting evidence therefore raises significant concerns regarding your claimed date of birth as KOUY Ngim could not give birth to you a year after her death. Furthermore, other evidence before the Department indicates CHEA Sambath is your mother and this therefore raises concerns regarding your claims as to who are your biological parents.
This may lead me to find you have provided information that is false or misleading in a material particular to your identity as stipulated in Public Interest Criteria 4020(2A).
On 7 November 2018, the Department received the following documents (documents in Khmer having certified translations into English attached):
·An AFP certificate in relation to the review applicant;
·A Cambodian police clearance in relation to the review applicant;
·A vaccination record pertaining to the second applicant, indicating his father is the review applicant and his mother is Kuoy Ngim;
·A residence record from Saang District issued 30 October 2018 indicating that that the second applicant had been registered at the review applicant’s household in 2007 (while the first applicant had been registered in 2003). Other than the review applicant, no one else is mentioned as being registered at the household.
On 22 May 2020, the Department received a written response from the applicant. The applicant stated that in her previous visa application, there was no intention to provide any bogus document or false or misleading information to the Department. The applicant maintained that all documents presented in her previous visa application were legally and genuinely issued by the authorities. I acknowledge the applicant’s statements regarding her previous visa application and the decision made on said application. However, it is not open to the Department to revisit that refusal as part of this visa application.
On 26 May 2020, the Department received a written response from the applicant along with other documents. These documents include the following:
·Evidence of financial support to the first applicant and his sister from the sponsor by way of remittance slips;
·Completed form 929 (sponsor’s change in address);
·A copy of the sponsor’s driver’s licence;
·A copy of the sponsor’s rate instalment notice;
·A letter signed by the second applicant dated 26 May 2020 but signed by the review applicant on his behalf. It includes compelling and compassionate reasons for the grant of the visa; and
·The same attached statements/affidavits listed in paragraph 18.
A delegate refused to grant the visa to the second applicant on 10 June 2020.
The decision records indicate that the applicants have been refused a visa on the ground of providing a bogus document or false or misleading information in relation to the application for that visa. Specifically, the ‘copy of death certificate’ pertaining to the visa applicant’s biological mother was found to be bogus.
Evidence before the Tribunal
Separate applications to have the refusal decision reviewed were validly lodged on behalf of the first and second applicants on 14 August 2020, and 15 August 2020 respectively. The decision records were attached to both applications. On 18 August 2020, the applications for review were subsequently combined by the Tribunal into one matter with the designated AAT number 2012849. The parties were subsequently notified.
On 5 June 2022, the applicant submitted a written statement which is summarised below:
·     The review applicant’s consent to make a decision on the evidence provided to the Tribunal without attending a hearing;
·     The applicant is constantly anxious, nervous and unsettled about attending a hearing;
·     In the application for Child visas, the death certificate of Bunrong’s biological mother was submitted and indicated her true date of death as 15 May 2006. It is an official document provided by the government and approved by the Treuy Sla Commune Chief.
·     The applicant is unable to understand as to why 2014 was noted in the submitted document but is able to confirm the document is an authentic and genuine death certificate.
·     Furthermore, the Department has placed little weight on the photographs as evidence of the biological mother’s funeral, but the review applicant is unable to source any further images of the funeral.
·     The review applicant is grateful for the support of ‘god sister’, Chea Sambath, who has provided for his children during periods of immense misery. However, the god sister does not have any relations to the visa applicants.
·     The process of this visa application has caused great distress for the review applicant’s children. It has caused arguments as to who their biological mother is, and they are in disbelief that the position of a lifelong relation with Sambeth is being questioned.
·     With regards to there being compelling and compassionate circumstances, the review applicant married his current wife in 2014 which resulted in one child born on 30 September 2015. The review applicant and his wife work full time, and both earn roughly 1000 Australian dollars per week. The money is used to pay bills and groceries and any outstanding bills for living expenses. In addition to these expenses, there are repayments on their home loan which causes his family immense financial stress.
·     On top of all these payments, money is transferred to Cambodia for his two biological children. His daughter in Australia also has had a health issue.
·     The review applicant returned to Cambodia in 2018 to visit his children. The purpose of this trip was to introduce his youngest daughter to her half-siblings. The trip lasted three weeks.
·     The review applicant has not returned due to work commitments and he is faced with the struggle of having to leave his family members behind in Cambodia. This is a source of pain and suffering in having to decide whether to relocate to Cambodia with his wife and youngest daughter, leaving behind the inability to pay down a mortgage.
·     If his children in Cambodia could migrate to Australia, they will not live without a father figure.
·     As a traditional Cambodian man who was raised to work hard, he does not like to admit he is weak and scared, or that he has a mental health issue because he cannot sleep or stop feeling stressed or unhappy.
·     The review applicant wants his family to be happy and free from these mental stressors by having his children in Cambodia united with him and his family in Australia, and for the Tribunal to consider this information.
The review applicant also submitted:
·     A copy of two pages of his Australian daughter’s National Disability Insurance Services plan (the disability or impairment is not mentioned);
·     A medical certificate dated 4 June 2022 indicating the review applicant has a diagnosis of Type 2 Diabetes which is poorly controlled;
·     A May 2022 decision by a judge in Cambodia which certifies the visa applicants are the biological children of the review applicant, consistent with documentary evidence provided. It was accompanied with a certified translation into English;
·     Utility bill from May 2022 in the review applicant’s name;
·     A loan summary dated 31 December 2021 indicating the review applicant has a mortgage of 495,000 Australian dollars in his name and that he pays 2000 Australian dollars per month.
·     The review applicant’s tax estimate from 2019 indicating his gross salary before tax was around 53,000 Australian dollars; and his current wife’s tax estimate from 2021 indicating her gross salary before tax was 51,000 Australian dollars;
·     Fund transfers from the review applicant indicating he has transmitted funds to one of the visa applicants in Cambodia on a regular basis.

As mentioned above for the reasons stated above, the Tribunal has proceeded with this matter without a hearing. No further documents or submissions relevant to this matter were received by the Tribunal, right up to the time of making this decision.
There are no non-disclosure certificates attached to either the Departmental or Tribunal files.
Public Interest Criterion 4020
The issue in this review is whether the visa applicant meets Public Interest Criterion 4020 (PIC 4020) as required by cl 101.223 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).
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?
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.
The death certificate pertaining to Ngim Kuoy born on 5 June 1955 issued by Treuy Sla Commune in Kandal Province, was issued on 11 March 2014, according to the certified translation. It states the date of death was 15 May 2006 and that the death certificate was registered on 11 November 2014. A digital copy of the death certificate in the Khmer language is below.
Of central importance in this matter is whether the death certificate pertaining to Kuoy Ngim, the claimed mother is a bogus document.
The Tribunal has the following credibility concerns that this death certificate was a bogus document:
·Firstly, at no stage did any of the parties provide any documents pertaining to the death of Kuoy Ngim, issued earlier than the death certificate which had been issued in 2014. This was despite the Department requesting the kind of documentation it sought in the s.57 letter to the first applicant;
·Secondly, at no stage did the parties explicitly refute or explain the documentary evidence from Sre Ambel Referral Hospital and police headquarters of Sre Ambel that had been sighted by Departmental officials in Cambodia.
·Thirdly, the review applicant has not explained the reasons that in an earlier visa application, the review applicant declared that his wife, Kuoy Ngim, had died in 15 May 2013.
·Lastly, available country information and the experience of Australian officials is that identity documents issued by the authorities in Cambodia are often issued based on self-reporting, and recently issued identity documents cannot be relied upon as evidence of identity.
The parties have provided as many as 15 countervailing statements (and/or affidavits) from ten separate witnesses to corroborate the date of Kuoy Ngim’s death as occurring in 2005, which corresponds with the death certificate issued in 2014. They also submitted undated photographic evidence claiming from the day of Kuoy Ngim’s funeral.
The question of weight to be given to a document is a matter for the Tribunal.[1] In MIAC v SZJSS, for example, the plurality of the High Court found no error in the Tribunal giving ‘no weight’ to documentary evidence produced by the respondent, which it accepted as genuine, on the basis that its content was undermined by the respondent’s own evidence.[2] The High Court held that the value of the documents was a question on which reasonable minds may differ and that the Tribunal’s preference for other evidence over the documents could not be said to constitute a failure to take into account a relevant consideration, or a failure to respond to a substantial argument or to result in a conclusion that was manifestly irrational or unreasonable.[3]
[1] MIAC v SZNPG (2010) 115 ALD 303 at [24].
[2] MIAC v SZJSS (2010) 243 CLR 164) at [33]–[37].
[3] See also MZYUV v MIAC [2013] FCA 498, where the Court commented that it would have been preferable if the Reviewer had made some more detailed analysis of the documents in question, but confirmed that provided documents are not disregarded, their weight is a matter for the decision maker.
In this matter, the Tribunal places significant weight on the evidence before the Department submitted by the review applicant himself in respect to a visitor visa application. The Tribunal also places significant weight tothe due diligence the Department undertook, leading them to documentation from the hospital at which Kouy Ngim died and the police headquarters that provided permission to transport Kouy Ngim’s remains to Kandal Province. It is this background that has given rise to there being a ‘reasonable suspicion’ the applicants have given, or caused to be given, to the Minister, an officer, the Tribunal, a relevant assessing authority or a Medical Officer of the Commonwealth a ‘bogus’ document. The Tribunal is satisfied this reasonable suspicion is not mere surmise or conjecture.[4]
[4] Sun v MIBP [2016] FCAFC 52 at [86], citing George v Rockett (1990) 170 CLR 104 at 115–116, see also Logan J at [21]; cf Rani v MIBP [2015] FCCA 455 at [18], stating the evidence must be sufficient to induce a suspicion of the kind a reasonable person may apprehend, applying George v Rockett (1990) 170 CLR 104 at 112–113.
It places very little weight on the statements and photographic evidence to address the delegate’s concerns raised in the section 57 letters to the applicants. It is not satisfied that the content in those statements reflected the recollections of genuine witnesses of a funeral that took place in 2006 when there is more compelling evidence to support the funeral took place at a substantially earlier date.
With insufficient weight to allay the Tribunal’s reasonably held suspicions about the document not being bogus, the overwhelming weight of evidence is that the death certificate pertaining to Kuoy Ngim issued in 2014 is a bogus document. It is bogus in the sense that the document purports to have been, but not was issued in respect of that person and that it was obtained because of a false or misleading statement, whether or not made knowingly.
This adverse finding about the death certificate issued in 2014 also undermines the authenticity of documents submitted in these visa applications for Child visas.
Because the Tribunal finds the specific death certificate to be bogus, the Tribunal has been invited to consider findings that the death of Kuoy Ngim occurred in 2013, that the review applicant had been married or was married to Chea Sambath at the time of application, and that Chea Sambath, not Kuoy Ngim, was the biological mother of one or both of the visa applicants, as earlier indicated by the review applicant’s earlier visa application. The Tribunal is not satisfied the statements by the parties or any witnesses insisting to the contrary carry any credible weight.
For these reasons, the evidence supports the finding that Kouy Ngim died in 2003; and that the review applicant had been married to Chea Sambath at the time of application.
It follows from these findings that the following other documents in this matter were bogus:
·The first applicant’s birth certificate issued in 2014, falsely indicating her biological mother;
·The second applicant’s birth certificate issued in 2014, falsely indicating her biological mother;
·A Provisional Certificate of High School Completion issued 2 September 2013, falsely indicating the first applicant’s mother’s name;
·A vaccination record issued at birth falsely indicating the second applicant’s biological mother.
Given the statements from the review applicant and the visa applicants insisting the identity of their biological mother as Kuoy Ngim, and her date of death as in May 2006, the Tribunal is confident that each of the parties was aware the documents were purposely untruthful and that there has been a strong element of fraud and deception in submitting them.
The Tribunal is satisfied the review applicants and the visa applicants knowingly provided bogus documents, or caused to be given, to an officer acting on behalf of the Minister, as well as the Tribunal during the review of a Part 5 reviewable decision in relation to this Child visa application.
The Tribunal finds that the visa applicants do 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 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.
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.
The Explanatory Statement states that it is intended that the granting of the waiver relates solely to compelling circumstances affecting Australia's interests, or the compassionate or compelling circumstances affecting the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen, not the interests of the visa applicant. The types of circumstances that may involve compelling or compassionate reasons for waiving the requirements of PIC 4020 include:
·     Family reasons (for example, unexpected serious or fatal family situations over which the applicant had no control, such as the incapacitation or death of a partner or child or another member of the family unit).
·     That family members in Australia would be left without financial or emotional support; and
·     A parent in Australia would be separated from their child (for example, if the child was removed with their non-resident parent and would therefore be subject to an exclusion period).
The Tribunal is required to consider all the circumstances of the case including any matters put forward by an applicant and determine on the evidence whether there are compelling and/or compassionate circumstances justifying the granting of the visa.
None of the applicants, nor anyone on their behalf, have made any submissions or claims that there are compelling circumstances that affect the interests of Australia in this matter.
The submissions by the review applicant on behalf of the applicants to the Tribunal relate to compelling or compassionate circumstances that affect him, a permanent resident, and his partner and his child who are Australian citizens, as well as his Cambodian children.
For the following reasons, the Tribunal is not satisfied that the requirements should be waived.
In making this finding the Tribunal was mindful of the following.
In considering whether there were compassionate or compelling circumstances that affect the interests of an Australian citizen the Tribunal accepts the review applicant is a permanent resident and his present partner and his youngest child are Australian citizens.
The Tribunal accepts the review applicant has financial commitments to his family in Australia, including meeting mortgage payments, and to his children in Cambodia. Despite the adverse credibility findings in this matter, the Tribunal accepts that the visa applicants in Cambodia are the review applicant’s biological children. It also accepts that the review applicant himself psychologically struggles with these responsibilities, although it is noted he has not provided any supportive information from any medical professional, counsellor or psychologist.
However, the review applicant is not the sole provider for his family in Australia. He and his wife have a combined income of over 100,000 Australian dollars and his Australian citizen child is receiving support through NDIS, per the evidence submitted by the review applicant.. The review applicant has a supportive family in Australia and is in a position to access counselling and other treatments for his mental health symptoms through Australia’s accessible health system. In the absence of any further medical documents, the Tribunal does not assess the stressors of managing a family, meeting daily expenses and paying down a mortgage to be at a level whereby the circumstances are unique or warrant compelling or compassionate consideration, pursuant to this waiver.
There is insufficient evidence to suggest that the review applicant is not the biological father of the visa applicants.
In the first applicant’s May 2020 statement, it was further claimed that Chea Sambath left the visa applicants for some time and the first applicant cared for her brother. It was claimed they had no one to take care of them as they had no near relatives in Cambodia. The Tribunal is not persuaded that the review applicant’s children in Cambodia are without direct parental sustenance and/or supervision. The evidence provided by the applicant in a previous visa application is that the review applicant claimed to be married to Chea Sambath. Yet the parties have consistently but unpersuasively denied Chea Sambatt to be the mother of either of visa applicants without any qualifications or corrections.
It is highly unlikely that the first applicant, born in 1996, is the biological child of Chea Sambatt, as she was born prior to the accepted date and year of Kuoy Ngim’s death. The first applicant was an adult at the time of application and at the time of this decision she is aged around 25 years. As an adult, the first applicant is an independent person who does not require the kind of supervision and nurturing she would have required as a minor.
Meanwhile, the Tribunal is confident the evidence supports a finding that that second applicant is the biological child of Chea Sambatt as he was born after the accepted date and year death of Kuoy Ngim. The second applicant was a minor at the time of application and has not reached the age of majority (18) at the time of making this decision.
However, given the adverse finding that the partis have provided, or have caused to have given, bogus documents in this matter, there are no credible reasons for the Tribunal to accept that Chea Sambath has not been providing ongoing care and supervision of the visa applicants that would be expected and suitable based on their ages.
The Tribunal accepts that a finding not to waive will lead to a separation of the visa applicants from the review applicant and his family in Australia and adversely affect the interests of the Australian permanent resident or citizen. In making these findings, the Tribunal was mindful of the consequent exclusion period that would come into effect and would impact the children of the applicant in Cambodia.
Nevertheless, the review applicant who converses in Khmer, is able to remain in touch with his children in Cambodia and can even travel to that country as he has in the recent past. His remittances will also continue to materially assist the visa applicants. Given the exchange rate differences between the Australian and Cambodian currencies and the differences in costs of living, this will continue to make a meaningfully positive contribution to the visa applicants.
Given the adverse credibility findings above and on the basis of the review applicant not being a witness of truth, the Tribunal does not accept Chea Sambath has abandoned the visa applicants, as claimed. Given the Tribunal has made a finding of fact that Chea Sambath is the visa applicants’ actual biological mother, it does not accept there are no near relatives caring for either of the visa applicants in a typical or expected parental manner, as claimed.
The Tribunal also notes that the first applicant has further argued to the Department that Cambodia’s government is ‘unsafe’ and ‘is out of my control or any citizen’s control and that she and her brother is unable to receive protection. However, in the context of the Tribunal’s findings that the visa applicants have the ongoing assistance from Chea Sambath, the Tribunal does not have sufficient evidence for it to accept that the visa applicants will be specifically targeted for any violence, or that they cannot live in a safe manner whereby they can be nurtured, assisted and/or educated in Cambodia that amounts to compelling or compassionate circumstances.
After considering all of the evidence before it, the Tribunal was not satisfied that there are circumstances in this case that affect an Australian citizen, permanent resident or eligible New Zealand citizen, either on an individual or cumulative basis, that are of a compelling or compassionate nature that justify the waiver of PIC 4020 and the grant of a Subclass 101 visa to the visa applicants.
Therefore, the requirements of PIC 4020(1) and (2) should not be waived.
Conclusion
On the basis of the above, the applicant does not satisfy PIC 4020 for the purposes of cl 101.223.

There was no evidence the applicants were able to meet the criteria for any other subclass within the class of visa sought.
decision
The Tribunal affirms the decision not to grant the applicants Child (Migrant) (Class AH) visas.
Brendan Darcy
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.
…

[2022] AATA 2804

26 June 2022

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction