Koye (Migration)

Koye (Migration) [2019] AATA 4444 (9 January 2019)
CORRIGENDUM
DIVISION:Migration & Refugee Division
REVIEW APPLICANT:  Ms Aster Ayele Koye
VISA APPLICANTS:  Mr Tigest Ayele Koye
Mr Yohanes Ayele Koye
Mr Adisu Ayele Koye
Miss Hana Ayele Koye
CASE NUMBER:  1617172
DIBP REFERENCE(S):  OSF2014/013398 OSF2014/013406
MEMBER:Michael Cooke
DATE OF DECISION:  9 January 2019
DATE CORRIGENDUM
SIGNED:22 August 2019
PLACE OF DECISION:  Sydney
AMENDMENT:  The following corrections are made to the decision:

The date “9 January 2018” on page 1 of the Decision Record should be replaced with “9 January 2019”.
Michael Cooke
Senior Member

DECISION RECORD
DIVISION:Migration & Refugee Division
REVIEW APPLICANT:  Ms Aster Ayele Koye
VISA APPLICANTS:  Mr Tigest Ayele Koye
Mr Yohanes Ayele Koye
Mr Adisu Ayele Koye
Miss Hana Ayele Koye
CASE NUMBER:  1617172
DIBP REFERENCE(S):  OSF2014/013398 OSF2014/013406
MEMBER:Michael Cooke
DATE:9 January 2018
PLACE OF DECISION:  Sydney
DECISION:The Tribunal remits the applications for Child (Migrant) (Class AH) visas for reconsideration, with the direction that the first named applicant meets the following criteria for Subclass 117 (Orphan Relative) visas:
·cl.117.211 of Schedule 2 to the Regulations
·cl.117.212 of Schedule 2 to the Regulations
·cl.117.221 of Schedule 2 to the Regulations
·Public Interest Criterion 4020 for the purposes of cl.117.223 of Schedule 2 to the Regulations
Statement made on 09 January 2019 at 3:36pm

CATCHWORDS
MIGRATION – Child (Migrant) (Class AH) visa – Subclass 117 (Orphan Relative) – sponsor is half-sister of applicants – significant evidence of relationship provided – sponsor previously declared applicants as siblings to Department – Department accepted applicants are sponsor’s siblings three times in different visa applications – Department previously accepted applicants' parents are sponsor’s parents – sponsor consistently communicating with and financially supporting applicants – parents disappeared – applicants orphans and cannot be cared for by parents because of unknown whereabouts – claim of bogus documents not satisfied – applicant meets PIC 4020 – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 1.12, Schedule 2, cls 117.211, 117.212, 117.221, 117.223, Schedule 4, Public Interest Criterion 4020

CASES
Arora v MIBP [2016] FCAFC 35
Batra v MIAC [2013] FCA 274
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 Immigration on 30 August 2016 to refuse to grant the applicants Child (Migrant) (Class AH) visas under s.65 of the Migration Act 1958 (the Act).
The applicants applied for the visas on 16 November 2014. The delegate refused to grant the visas on the basis that the first named applicant (the applicant) did not satisfy the requirements of cl.117.223 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the applicants did not meet Public Interest Criterion (PIC 4020).
The review applicant appeared before the Tribunal on 28 November 2018 to give evidence and present arguments. The Tribunal also received oral evidence from an Ethiopian priest, Fr Tesfa Hirage. The Tribunal hearing was conducted with the assistance of an interpreter in the Amharic and English languages.
The review applicant was represented in relation to the review by her registered migration agent. The representative attended the Tribunal hearing.
The sponsor’s representative submitted copious additional information to the Tribunal in support of the applicants and in rebuttal of the delegate’s findings found in the decision record on the Tribunal file (T1, ff.123, 125, 135-136, 146-148, 150-157, 159-161, 105-118).
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issues in this case are whether the applicants are ‘orphan relatives’ as so defined and whether the applicant can meet PIC 4020.
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).
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.
The Hearing
The Tribunal conducted a hearing involving the sponsor/review applicant (the applicant) and an Ethiopian priest who ministers to her in Melbourne. The applicant was assisted by her representative at various times with clarification. The review applicant argued that there was no doubt that the children applicants were her brothers and sister. The one who had reached his majority was staying in Sudan as he had mental health issues. The sponsor informed that when she heard that her she urgently sought the assistance of her church. She was devastated at the news and her fellow parishioners had a “whip around” and raised sufficient funds for her to depart immediately on her mission to discover the whereabouts of her parents. The witness priest confirmed that this was what happened. He said he had an onerous task of caring for a lot of fellow Ethiopians who were refugees and suffered from that fact. The sponsor informed she was unsuccessful in her search.
The Tribunal asked her why they had disappeared after living for so long in the Sudan. She said she did not know the exact reasons as she lived in Australia. She suspected that her father’s long-term involvement in political issues may have been the catalyst for his and his wife’s disappearance. She also informed that the friend who was acting as guardian for the children in her absence was the person who has secured the information sought by the delegate. He had been looking after the children but it was becoming very onerous for him after so long doing so since 2014.
The Tribunal explored the issue of the bogus documents that were handed to the delegate twice as evidence of the applicants being siblings of the sponsor. She informed that she had been able to delve back into her phone for photos which she had taken with the applicants on her visits. She also had found and uploaded photos of her parents and the applicants to prove provenance and family ties. She insisted that they were genuinely her siblings and she was worried sick for their welfare. She had suffered stress and mental health issues as result of having to worry about them and her new family. Some of her children had behaviour issues at school. That fact, along with the worries about her siblings, had brought her to a low ebb over the many years. She could not understand how the Department had rejected the applicants because they had featured many times in her refugee paperwork. The Department had never previously questioned their biological provenance in the past nor had it imposed a PIC4020 previously on her when she had listed them as her siblings on Departmental paperwork submitted for her own migration and theirs.
The sponsor’s representative said that they questioned the ability of the delegate to seek authentication from the Sudanese Embassy in Cairo because that was not attached to the Ministry which issued the documentation requested for the parties. Furthermore the information had been sent by messenger and there had been no evidence presented officially which disproved the documentation. He referred to the extensive enquiries he had made under Freedom of Information for files stretching back many years and that many files seem to have been destroyed or were otherwise unable to be found.
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 Sponsor/Review Applicant’s Submission
The sponsor has submitted the following extensive response to the delegate’s findings:
Are the Review applicant and the Applicants siblings?
The delegate indicated in the Refusal decisions that the applicants failed to provide satisfactory evidence that would establish the relationship between them and the review applicant. The delegate noted that no birth certificate for the review applicant or the applicants had been provided. The review applicant commented on this as following.
·The review applicant was born in Ethiopia. For children who were born in Ethiopia birth certificates were issued only for those born in its capital - Addis Ababa. The review applicant was not born in the capital but in a province town of Gondar. That is why she does not have and never had a birth certificate. The applicants were born in Khartoum, Sudan and they do not have birth certificates and never had them.
·Please note that baptism certificates for the Applicants were issued in 2003, 2006 and 2011, i.e. way before the visa applications were submitted thus the baptism certificates were not issued just before the visa applications were submitted. Also, the review applicant explained that she had declared the applicants as her siblings to the Department at an earlier times as follows:
a.First time: - when her ex-husband (Mr Molla Endalew Alemu) applied for a Refugee visa (granted on 08/09/2005 - File number 03/204929) and the review applicant was included there as a dependent applicant. We attach her visa Subclass 200. However, it was her first husband who dealt with documents for this visa and she was included as his dependent and for this reason she does not have copies of application for subclass 200 visa, etc. and cannot provide it to the Tribunal. However, the review applicant remembers her husband told the Department about the applicants as her siblings. The review applicant tried to obtain copies of these documents via FOI request, but was refused as the Department explained it should be her first husband who can apply for copies of the documents. The review applicant divorced her first husband long time ago and she is not in contact with him for a long time and thus she cannot get copies of the documents from the Department. The review applicant is requesting the Tribunal to assist her to get these documents from the Department if possible. Please note this visa was processed by the same Cairo office of the Department and they never mentioned that the applicants are not the review applicant's siblings and, they never said the applicants' parents are not the review applicants' parents.
b.Second time: when the review applicant applied for her parents and the applicants to come to Australia on Humanitarian visas (Subclass 202 - File number 2011064409) in 2011, i.e. 3 (three) years before the applicants applied for the Child Orphan Relative Visas. In all documents - visa application, she as a proposer indicated the applicants as her siblings. The application was processed, and the Department never mentioned that they do not believe the applicants are not siblings of the review applicant, also the Department never mentioned they do not believe the applicants' parents are not the review applicants' parents. Thus, the Department accepted long time ago that the applicants are the review applicant's siblings and that the applicants' parents are also the review applicant's parents. We attach these Humanitarian visa application documents to these submissions.
The delegate knew (and specifically noted in internal file notes for Yohanes Ayele Koye ) that the review applicant declared the applicants as her siblings in 2011, but it was not mentioned in the Refusal decision. We attach FOI Request result page 040 where you can see the Department indicated that the review applicant declared the applicants twice to the Department - when applied for a Humanitarian visa for the applicants and her parents and when she sponsored her husband to come to Australia on a Partner visa.
c.Third time: The review applicant indicated the applicants as her siblings when she applied for a Partner visa for her second husband Mr Menekir Minale LAKEW (File number DSF2009/00647B) in 2009. We attach some documents proving this. The visa was granted to her second husband and during the process of this visa application the Department also never mentioned that the review applicant lied and that the applicants are not her siblings. Please note, the review applicant's second husband’s Partner visa application was processed by the same Cairo office of the Department.
So, as you can see the Department accepted that the applicants are the review applicant's siblings 3 times — in different years, during process of three different visa application cases. They never indicated that the applicants are not the review applicant's siblings. The PIC 4020 criterion applied to all three cases above, but the Department in all these three cases never concluded this requirement PIC 4020 was not met by the review applicant as if she was lying about her family relation with the applicants and their parents. Also, when the Department's Cairo office was processing the visas for the applicants, they looked at all these previous files involving the review applicant, so they saw that the Department accepted in the past that the applicants are the review applicant's siblings and that the applicants' parents are her parents as well. We attach FOI request results showing the Cairo office looked at all the cases mentioned above during the process of the Visas for the applicants (pages 042-044, and 046-048).
Thus, it seems to be wrong for the Department to say now that the applicants may be not the siblings of the review applicant and their parents may be not to be her parents. Additionally, the review applicant is willing to undertake a DNA test if this require proving she is the applicants' sister. Also, the review applicant provided supporting documents to the Department (such as photos) during the processing of the application, while she was living with the applicants and their parents in Khartoum, Sudan. These photos also prove that this is one family.
The review applicant in also trying to get confirmation that she is the applicants' sibling from the school where the applicants used to study — as the school administration knows she has been paying for the (visa) applicants' studies there and that she is a sister of the applicants.
The review applicant visited the applicants several times in Khartoum - (her passport with border stamps is attached).
·from 10 April 2014 to 9 June 2014,
·from 18 January 2016 to 15 March 2016,
During these visits the review applicant visited the applicants' school and spoke about their study results with the school's administration.
Additionally, the review applicant initiated a search for her and the applicants' parents through Australian Red Cross — International Tracing Service from July 2014. We attach a letter of involvement from the Australian Red Cross dated 1 August 2016. In this letter Australian Red Cross refer to Ayele Koye Kidanmariam and Ageri Shebabau Nurelied as the applicants' and the review applicant's parents. As you can see (from the letter the Red Cross) they searched for the applicants' parents in Ethiopia.
Additionally, the review applicant has been financially supporting the applicants. We enclosed as many money transfer records as she kept. Also, the review applicant has been communicating via phone with the applicants on regular basis for a very long time — since she left Sudan and came to Australia. We enclosed as many communication records of her with the applicants as she kept as well as copies of phone cards she used to make international calls to the applicants. Any reasonable person would not have done this for such a long time unless the applicants are her siblings.
Further Submission by the Applicant’s Representative
The sponsor’s representative has furnished a further submission which (with some Tribunal corrections for completeness) says as follows:
Absence of Birth Certificates issue
The applicants never had them because their mother gave birth to the applicants at home, not in a hospital. In these cases in Khartoum, Sudan children do not have birth certificates. Additionally, the review applicant explained that her and the applicants' parents went to a local council in Khartoum and applied for birth certificates for the applicants and the review applicant, but the council refused to provide the birth certificates as they were refugees in Sudan.
Also, the review applicant said the UN asked her ex-husband Mr Alemu Molla ENDALEW (DOB 01/01/1962, File number OSF 2003204929) to provide her birth certificate when he applied for a Subclass 200 visa for him and her to come to Australia, but they explained that the review applicant cannot provide it and the UN used the review applicant's Baptism Certificate instead for the purpose of the application.
Parents of the applicants and the review applicant
We attached Refugee IDs issued to the parents of the review applicant and the applicants to prove they are all related.
Please have a look at these IDs issued by the Ministry of Interior of Sudan: The Office of Refugees Commission and you will see that the address of the parents at the time of issue — 2008 — 2011 was: Safha West (Zelete), Block 16, House No.243. The review applicant explained this is the house where all the family lives until she went to Australia with her first husband and later all the family moved to a different house in Khartoum, Sudan. Also, as you can see in the ID's it says that the couple has 6 (Six) children, i.e. these are the review applicant, 4 applicants and their brother Abebaw (his Baptism Certificate is attached).
Tiqest's attempt to obtain confirmation from police station to where the parents' disappearance was reported in 2014
Regarding this issue the review applicant explained as following. Last Saturday, on 24 November 2018 the oldest applicant - Tigest - went to a police station where the disappearance of their parents was reported in 2014. Unfortunately, officer from the police station refused to do anything for her. Please find her written explanations about her visit attached. Thus, the applicants have done all within their power to get documents from the police station, but were refused.
Why Abebaw was not included into the Visa applications
The delegate noticed that the oldest child of the parents — Abebaw was included into the visa application for a Humanitarian visa, but was not included into visa applications for the Subclass 117 Visa applications. Abebaw suffers from mental health issues and he is dependent on his sister Tigest — she is looking after him most of all of the applicants. The review applicant explained that her representatives before explained to her that he cannot be included into the Subclass 117 visa applications as he is above 18 years old.
Historical photographs of the review applicant together with the applicants and their parents in Khartoum.
We are attaching additional photographs of the review applicant together with the applicants and their parents.On a family photo taken sometimes in 2003 you can see the applicants, the review applicant and the review applicant's first husband Alemu Molla ENDALEW (DOB 01/01/1962).
·     On photo 1 you can see the review applicant together with her and the applicants' mother and Hana in their home back than in 2005 before the review applicant moved to Australia. They lived at this time all together in the house in Khartoum (address: Sehafa Zelet Merba 16 Khartoum Sudan). The review applicant moved to this house to live when she was about 9 years old. At this time Ababaw and Tigest were already born. The whole family moved to a different house about in 2012 — new address — Ale Burehania Khartoum Sudan.
·     On photo 2 you can see small Yohannes and on photo 3 you can see small Nana. The review applicant has been keeping these photos as memories of her and the applicants' childhood
·     Photo 4 was taken approximately in 2004 — there you can see the review applicant with Tigest and a friend from a church who later became the review applicant's second husband Mr Menekir Minale LAKEW (Menekir). Back than they were just friends.
·     On photo 5 taken approximately in 2004-2005 you can see the review applicant together with Tigest and their friend from a church.
·     On photos 6 and 7 taken approximately in 2008 you can see the applicants with their and the review applicant's parents in a photo studio in Khartoum. The review applicant was given these photos by one of her friends who visited Sudan at that time and her parents wanted her to have these photos as memories.
Also, the review applicant provided (attached) photographs taken when she visited the applicants in Sudan in 2016. You can see the applicants' guardian on the photos.
The review applicant proposed the applicants and their parents for Refugee and Humanitarian visa (subclass 202) applications in 2011.
We attach an Acknowledgement letter and a Notification of refusal of application for a Refugee and Humanitarian (class XB) visa for the applicants and their parents (File number 20110 64409).
As you can see from these documents the Department accepted in 2011 the fact that the applicants are the review applicant's siblings and that they have same parents as:
·     In the Acknowledgement letter the Department indicated for the father 'your application includes you and ... family unit members...',
·     In the Notification of refusal the applicants were indicated as children of the parents,
·     The Department refused these visa applications due to clause 202.222 criteria - 'compelling reasons' issue, not because they are not relatives.
The review applicant has done everything in her power to get documents related to her first husband Refugee visa application (subclass 200). The review applicant lodged an FOI Request with the Department asking to provide her documents related to her first husband’s Humanitarian visa application in order to receive documents where she indicated the applicants as her siblings and their parents as her parents in 2005.
However, as you can see the Department refused to provide her these documents and the Department indicated that they cannot locate this file (0SF2003204929). As you can see from the Refusal decision record (attached) the file was missing from the containers where it was supposed to be stored. The review applicant applied for Internal review regarding her FOI Request, and the Department did not provide the documents to her, thus she exhausted all available avenues in this regards and have done everything possible to receive these documents and to present them to the Department.
Financial support from the review applicant
The review applicant started helping financially to her parents and the applicants after she came to Australia, not just after the parents went missing. We attach a document from the money transfer company indicating that the review applicant made money transfers to her parents from 2006 to 2014. After March 2014, (i.e. after the parents disappeared) the review applicant was sending money directly to the applicants. Please find attached summaries of transfers from 2 different money transfer companies.
As you can see the review applicant sent money on regular basis to her parents. This means they are her parents, otherwise why she would have been sending money starting from 2006 - i.e. for a very long period of time?
Communication between the review applicants and the applicants
The review applicant communicates with the review applicants via phone on regular basis. We are attaching Communication Records of the review applicant with the applicants for 2017-2018. The review applicant explained the oldest applicant - Tigest - changed her phone in and it is impossible for her to provide a communication records now prior to 2015. But the review applicant has all the communication records with the applicants after 2015 and can show it to the Tribunal member in her phone. Also, she will try to obtain communication records for 2016-2017.
Mental health and other issues the review applicant developed due to the situation with the applicants' visa applications.
The situation with the applicants' visa applications has caused stress and depression to the review applicant. We attach a letter from her doctor confirming this dated 24 September 2015. The review applicant still suffers from depression and takes anti-depression tablets (attached). She was also taking sleeping tablets, but stopped as she is breastfeeding her 8 weeks old daughter. The review applicant is in difficult position also because her own sons have significant problems with health/behavior. A Social Worker from the Royal Children's hospital explained some of additional issues in her letter dated 21/11/2018 (attached).
Ethiopian community in Australia supports the review applicant
The review applicant is an active member of Ethiopian Orthodox Church in Melbourne and in 2014 when she said in church that her parents disappeared and the applicants are alone now the church members made donations and they collected money of $4,000.00 and the review applicant spent this money on the trip to visit the applicants after their parents disappeared. We attach record of all donations from the church members. As you can see 76 church members in Melbourne made donations in order for the review applicant to go to support the applicants after their parents went missing. A priest from this church will be present tomorrow at the hearing and will explain details about what he knows about relationship between the applicants and the review applicant.
If the applicants were not the review applicant's siblings, if the applicants' parents were not the review applicants' parents the review applicant would not have risked this trip. Her wish was to go to Sudan after the parents disappeared and otherwise she would not have accepted donations from almost 80 Australians for this trip. This community involvement into the issue witnesses that the review applicant is a genuine person and the applicants are her siblings, and both their parents did go missing in March 2014. Otherwise the review applicant would not be so desperate to go to Sudan after the parents' disappearance.
The Review applicant went to Sudan in April 2014 - as soon as she got money from the community and received a visa, she spent time there a total of 2 months living together with the applicants (photos from this trip are attached). Any reasonable person would not have done all this unless the applicants are the review applicant's siblings and their parents are her parents too.
Bogus documents issue
We are attaching:
·     Acknowledgement of valid application for a Child (Class AN) Orphan Relative (Subclass 117) visa dated 20/11/2014. In this document a case officer Sherine Youssef (Sherine) requested the applicants to provide court orders endorsed by the Sudanese Ministry of Foreign Affairs
·     page 015 of the FOI Request results—Visa Integrity Unit — Post Referral
Please note in this document Sherine wrongly indicated that the court orders were verified with the issuing authority (i.e. Courts / Ministry) — as they never were verified by issuing authority (the Court or the Ministry). Instead the Court Orders were apparently verified with the Sudanese Embassy in Cairo, who does not relate to issuing authority — i.e. the Courts or to the Ministry. Sherine made a conclusion about fraudulent Court Orders based on apparently unrecorded phone call from someone named herself 'the ambassador's secretary' - i.e. Sherine's conclusion does not have proper legitimate grounds.
Also, please note that the documents were sent to the Embassy via messenger - i.e. by hand (oral evidence at hearing) thus the Embassy never saw originals of the Court Orders.
We attach indication on the Embassy's website for a link for messenger as a way to contact them. Additionally, the Embassy did not explain and the Department did not ask for details and reasons why they think the Court Orders are fraudulent. This absence of explanation of reasons makes all this process of verification look improper (even if the Embassy was a proper authority for the verification).
·     Invitation to comment on information for a Child (Class AH) Orphan Relative (Subclass 117) visa dated 14 July 2015. Sherine indicated that the Cairo Integrity Unit made an assessment on both documents and stated that the documents are computer generated and the stamps are not wet seals and that later the Unit subsequently contacted the Sudanese Embassy in Cairo were a further verification was conducted. The Sudanese Embassy stated that both certificates are fraudulent.
Even if the Embassy was a proper verifying authority, which it is not, still it seems wrong for Sherine to base her conclusion on the case for 4 orphans based on the phone call above without recording and verification of the person who was calling position and authority to speak on the Embassy's behalf.
·     Extract for the Ministry's web site, were you can see that the (Sudanese) Embassy is not a part of the Ministry and does not relate to the Ministry.
Additional documents
We are also attaching scanners of:
·     the applicants' and the review applicant's parents' Marriage Certificate,
·     Photographs from the review applicant's visit the applicants in 2016
Tribunal findings and reasons concerning PIC 4020
·whether there is evidence before the Tribunal that the applicant has 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’, as defined in s.5(1), i.e. a document that the Tribunal reasonably suspects is a document that:
·purports to have been, but was not, issued in respect of the person, or
·is counterfeit or has been altered by a person who does not have authority to do so, or
·was obtained because of a false or misleading statement, whether or not made knowingly.
and/or
§‘information that is false or misleading in a material particular’ as defined in PIC 4020(5), i.e. information that is:
·false or misleading at the time it is given, 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.
in relation to the visa application or a visa held in the 12 months before the visa application was made.

The delegate has insisted that the applicants have (twice) presented bogus documents to the Department following verification with Sudanese authorities in Cairo. A ‘bogus document’, as defined in s.5(1), is a document that the Tribunal reasonably suspects is a document that:
·purports to have been, but was not, issued in respect of the person, or
·is counterfeit or has been altered by a person who does not have authority to do so, or
·was obtained because of a false or misleading statement, whether or not made knowingly.
The claimed ‘bogus documents’ were as follows:
·The applicants provided a Court Order for guardianship and a Court Order in relation to their parents' whereabouts, claiming to have been issued by the Judiciary, Khartoum, Sudan, in relation to their applicant's parents’ whereabouts. These documents were referred to the Sudanese Embassy in Cairo to confirm their authenticity. The Sudanese Embassy found the documents to be fraudulent and that the stamps and signatures on them to be inauthentic.
The person who was tasked to provide the information to the Department by the family was the individual who has been acting as a guardian of the children in Sudan - Mr Shanew.
The Tribunal has considered the information found in the extensive submission presented to the Tribunal by the review applicant’s representative. The Tribunal is satisfied from the information presented (orally and written) that the review applicant has made a credible case that she is the applicants half-sister. There is an extensive trail of evidence to support this claim which has been presented by her representative including past visa application information.
The Tribunal accepts that the review applicant’s claim that her (purported) siblings are who they claim to be and there is a consistent pattern of recognition by her of that fact. She has verified this claim both physically - in visiting them - and financially through remittances over many years. Her priest and parishioners have indicated they share the belief that the claimed siblings are hers as exemplified by their crowd funded campaign/public subscription to send her urgently to the Sudan in 2014 when she discovered her parents had disappeared.
In the light of this evidence the Tribunal is disinclined to believe that she has been involved with the applicants’ erstwhile guardian (Mr Shanew) in a deliberate attempt to bamboozle the Departmental authorities with ‘bogus’ documentation. There is no evidence she has done so in the past and it appears from her submission that she has been transparent in her past dealings with the Department.
The representative has also questioned the authentication protocols for verification of the aforesaid ‘bogus’ documents by the Departmental authorities in Cairo. He has made a case that the way in which they were verified was not authoritative in that the wrong people were approached and there was not adequate transparency in the verification process. The Tribunal gives positive weight to the claims of the representative when the whole of the evidence is weighed against the review applicant’s overall dealings with the Department. She appeared at all times to be a truthful witness in the hearing and there is no evidence before the Tribunal that she has reputational issues as a person or applicant.
The Tribunal finds from the additional information provided to it by the sponsor that it is not satisfied that the verification of the claimed documents as bogus is adequate to meet the definition in s.5(1) and cause the applicants to fail to satisfy PIC4020
(1). Nor does it find that the rubric in Trivedi v MIBP [2014] FCAFC 42 is satisfied in that “an element of fraud or deception by some person is necessary to attract the operation of the provision” when that requirement is juxtaposed with the consistent history of the review applicant declaring the applicants to the Department as her (half) siblings and they doing likewise.
Therefore, the applicant meets PIC 4020(1).
Has a visa previously been refused on the basis of a failure to satisfy PIC 4020(1)?
PIC 4020(2) requires the Tribunal to be satisfied that the applicant and each member of the family unit have not been refused a visa because of a failure to satisfy PIC 4020(1) in the period commencing 3 years before the application was made and ending when the visa is granted or refused. This requirement does not apply to a person who was under 18 at the time the application for the refused visa was made: PIC 4020(2AA).
The Tribunal finds no evidence that the applicant or any member of the family unit (as defined in r.1.12) have been refused a visa in the relevant period because of a failure to satisfy PIC 4020(1)
Therefore, PIC 4020(2) is met.
Have the applicants satisfied the identity requirements?
PIC 4020(2A) requires an applicant satisfy the Tribunal as to his or her identity.
The Tribunal is satisfied as to the identity of the applicants based on the additional information submitted to the Tribunal and oral evidence establishing the relationship between the parties such as:
·photographic evidence provided by the review applicant to the Tribunal
·Refugee IDs issued to the parents of the review applicant and the applicants to prove they are all related. These are IDs issued by the Ministry of Interior of Sudan: The Office of Refugees Commission where the address of the parents at the time of issue — 2008 — 2011 was: Safha West (Zelete), Block 16, House No.243. The review applicant explained this is the house where all the family lives until she went to Australia with her first husband and later all the family moved to a different house in Khartoum, Sudan. Also, as you can see in the ID's it says that the couple has 6 (Six) children, i.e. these are the review applicant, four applicants and their brother Abebaw (whose Baptism Certificate was attached to the submission).
Therefore, the Tribunal is satisfied on the basis of this recent information that the applicants meet PIC 4020(2A).
Has a visa previously been refused on the basis of a failure to satisfy PIC 4020(2A)?
PIC 4020(2B) requires that neither the applicant nor any family unit member have been refused a visa because of a failure to satisfy the identity requirements in PIC 4020(2A) during the period starting 10 years before the application was made and ending when the visa is granted or refused. This requirement does not apply to a person who was under 18 at the time the application for the refused visa was made: PIC 4020(2BA).
The Tribunal finds no evidence that the applicant or any member of the family unit (as defined in r.1.12) have been refused a visa in the relevant period because of a failure to satisfy PIC 4020(2A);
Therefore, the Tribunal finds PIC 4020(2B) is met.
On the basis of the above, the applicants do satisfy PIC 4020 for the purposes of cl.117.223.
Orphan Relative requirements pursuant to Subclass 117
The Tribunal is thus in possession of considerable further evidence regarding the case. This information goes to a various adverse findings in the delegate’s decision as follows:
·The issue as to whether the applicants are orphans.
·Whether the applicants are related to the sponsor
·Whether the sponsor is an Australian relative of the applicants
The Tribunal (having been the recipient of copious additional information both written and oral) makes the following findings:
·The sponsor is the half-sister of the applicants and a thus a ‘close relative’ of the applicants as so defined in the Regulations meaning: (b) a child, parent, brother or sister of the person. Photographic evidence provide as additional information by the sponsor backs up her claim to meet the definition.
·The sponsor is a settled Australian citizen.
·The applicants had not turned 18 at time of application.
·The applicants at time of application did not have a spouse.
·The applicants are relatives of the sponsor.
·The applicants are orphans and cannot be cared for by either parent because each of them is dead, permanently incapacitated or of unknown whereabouts
·There is no compelling reason to believe the grant of a visa would not be in the best interests of the applicants.
The Tribunal is satisfied from the cumulative evidence presented to the Tribunal that the applicants meet the definition of ‘orphan relative’ and subsequently cl.117.211. They are sponsored by an Australian relative who is over 18 and meet cl.117.212 of the Regulations. At time of decision they continue to satisfy the criterion in clause 117.211 and thus meet cl.117.221 of the Regulations.
DECISION
The Tribunal remits the applications for Child (Migrant) (Class AH) visas for reconsideration, with the direction that the first named applicant meets the following criteria for Subclass 117 (Orphan Relative) visas:
- cl.117.211 of Schedule 2 to the Regulations
- cl.117.212 of Schedule 2 to the Regulations
- cl.117.221 of Schedule 2 to the Regulations
- Public Interest Criterion 4020 for the purposes of cl.117.223 of Schedule 2 to the Regulations.
Michael Cooke
Senior 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.
…

[2019] AATA 4444

9 January 2019

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Remedies