Kim (Migration) - [2022] AATA 2804

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…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading Kim (Migration)

Details

AGLC: Kim (Migration) [2022] AATA 2804
Case: [2022] AATA 2804
Decision Date: 26 June 2022

CaseChat Overview and Summary

This matter concerned an application for a Child (Migrant) (Class AH) visa, subclass 101, lodged by the review applicant's parents. The primary legal issue before the Tribunal was whether the applicants had failed to satisfy Public Interest Criterion (PIC) 4020, specifically concerning the provision of a bogus document and false or misleading information in relation to the first applicant's identity. The Tribunal was required to determine if the circumstances warranted a waiver of the PIC 4020 requirements.

The Tribunal found that the first applicant had provided a death certificate for her mother, Kuoy Ngim, which indicated a date of death of 15 May 2006. However, other documentation suggested Kuoy Ngim died in 2003, and that the first applicant's mother was, in fact, Chea Sambath. Furthermore, the first applicant had provided a birth certificate listing Kuoy Ngim as her mother, and a high school completion certificate listing Taing Houy Ngim as her mother. The Tribunal concluded that these conflicting documents, particularly the death certificate, constituted a bogus document under the Migration Act 1958, and that the information provided was false or misleading in a material particular, thus failing PIC 4020(1). The Tribunal also noted that the applicants had not provided satisfactory grounds to justify waiving the requirements of PIC 4020, nor were there compelling circumstances affecting the interests of Australia or compassionate or compelling circumstances affecting the interests of an Australian citizen, permanent resident, or eligible New Zealand citizen.

Consequently, the Tribunal affirmed the decision not to grant the Child (Migrant) (Class AH) visas to the applicants.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.consideration of claims and evidenceBackgroundThe 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.

Decision

Reasons for decision

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 DarcyMemberATTACHMENTMigration Regulations 1994Schedule 44020(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 1958s 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.…

Ratio Decidendi

Legal Principle Established

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