Le (Migration)

[2019] AATA 1861

Le (Migration) [2019] AATA 1861 (29 May 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Thi Tu Le

VISA APPLICANT:  Mr Phan Anh Khoa Le

CASE NUMBER:  1729067

DIBP REFERENCE(S):  OSF2015/071847

MEMBER:Helena Claringbold

DATE:29 May 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the visa applicant a Child (Migrant) (Class AH) visa.

Statement made on 29 May 2019 at 1:19pm

CATCHWORDS
MIGRATION – Child (Migrant) (Class AH) visa – Subclass 101 (Child) – adopted child of the sponsor – bogus document – Petition for Adoption – not recorded in the civil status book – waiver of requirement – sponsor’s medical conditions – no immediate family in Australia – no compassionate or compelling circumstances – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 101.223; Schedule 4, PIC 4020

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

1. On 10 December 2015, Mr Phan Anh Khoa Le (the visa applicant) applied for a Child (Migrant) (Class AH) visa Subclass 101 (Child). The application was based on the visa applicant claiming to be the adopted child of Ms Thi Tu Le, the sponsor and review applicant.

2. On 9 November 2017, a delegate of the Minister for Immigration and Border Protection refused to grant the visa. The delegate was not satisfied that the visa applicant meets Public Interest Criterion (PIC) 4020 due to there being evidence before the delegate that the visa applicant had provided, or caused to be provided, a bogus document or false or misleading information in relation to the visa application. Therefore, the visa applicant did not meet subclause cl.101.223 in Schedule 2 to the Migration Regulations 1994 (the Regulations) made under the Migration Act 1958 (the Act). On 21 November 2017, the sponsor provided the Tribunal with a copy of the delegate’s decision record. This is a review of the delegate’s decision brought about by the sponsor.

3. On 6 May 2019, the sponsor appeared before the Tribunal to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages. The sponsor was represented in relation to the review by her registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. The Tribunal has taken into consideration, individually and as a whole, all the evidence in the Department of Immigration and Border Protection’s (the Department’s) case file and the Tribunal’s case file and the evidence at the Tribunal hearing.

   ISSUE

6. The issue in this case is whether the visa applicant meets Public Interest Criterion 4020 (PIC 4020) as required by cl.101.223 for the grant of the visa.

   BACKGROUND ON THE EVIDENCE

7. The visa applicant was born in 1994 in Cai Lay District, Tien Giang Province, Vietnam. His biological father and biological mother live in Vietnam.  He has a sibling living in the USA. It is claimed that in 1997, the visa applicant became the adopted child of the sponsor.

8. In 1963, the sponsor was born in My Hanh Dong Commune, Cai Lay District, Tien Giang, Vietnam. In February 2000, the sponsor married Mr Van Thang Truong, an Australian citizen. There are no children from the marriage and the sponsor is now separated from Mr Truong. In April 2001, the sponsor was granted a Spouse (Provisional) (Class UF) visa. In May 2001, the sponsor entered Australia as the holder of a partner visa. In June 2004, the sponsor was granted Australian citizenship.

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Public Interest Criterion 4020

9. 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).

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

11. 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.

12. 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.

13. 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.

14. The delegate’s decision record (DDR), informed the Tribunal of the following information. The visa applicant claims that he was adopted by the sponsor on 20 December 1997.  He provided a Petition for Adoption (Adoption document)  dated 20 December 1997 certified with the stamp of the People’s Committee of My Hanh Dong Commune, showing the abbreviation for ‘thi xa Cai Lay’ (Cay Lay Town).

15. In March 2016, the visa applicant provided further information as follows:

    ·A statement from the visa applicant dated 1 March 2016, where he stated that because there were no legal documents available for child adoption at the office of My Hanh Dong Village in 1997, the adoption was written and attested on paper.  He claimed that he requested that the local People’s Committee of My Hanh Dong to attest to and confirm that his adoption is still valid.

    ·A statement from the sponsor dated 28 February 2016 where she stated that because there were no legal documents for child adoption in 1997, the birth parents and the sponsor wrote the adoption process on paper, signed the document and the document was notarised by the Peoples Committee of My Hanh Dong Commune.

    ·An untranslated copy of the minutes of Group 3, My Phu Hamlet, My Hang Dong Commune, dated August 2016 in which the vice-leader of the hamlet, the local warden and local members of the community agree that the visa applicant’s adoption by the sponsor in 1997 was true.

    ·A certification dated 2 February 2016, from the People’s Committee of My Hanh Dong Commune, Cai Lay district, Tien Giang province. This stated that the Petition for Adoption was still valid and the adoption was registered at My Hanh Dong Commune, Cai Lay district, Tien Giang province.  This document was certified by Mr Nguyen Van Tuan, Chairman on 2 February 2016.

16. As detailed in the delegate’s decision record, investigations by the Department of Immigration and Border Protection confirmed that in accordance with resolution number 130/NQ0CP issued on 26 December 2013 ‘thi xa Cai Lay’ which is part of Hang Dong Commune, was established as of the date of the resolution. Prior to the resolution and at the time of the petition, the stamp of the People’s Committee of My Hanh Dong Commune should have read ‘huyen Cai Lay’.  It also confirmed that while the adoption document was signed by Mr Nguyen Can Be, he listed himself as Chairman when he was in fact Vice-Chairman at the time of the signing of the petition.

    ·Other information provided by the delegate is that according to a translation on Family and Marriage Law, Chapter 6, to Article 37, promulgated by the National Assembly on 29 December 1986 and remaining valid until 2000. ‘Adoption is recognised by the people’s committee of the Commune, ward or township where the farmer permanently resides or recorded in the civil status book’.

    ·According to Law on Adoption (number 52/2010/QH12) chapter 1, Article 9:  Competence to Register Adoptions, ‘Peoples Committees of Communes, wards or townships (below collectively referred to as Commune-level People’s Committees) in which the persons introduced for adoption or adopting persons permanently reside are competent to register domestic adoptions’.

    ·As detailed in the delegate’s decision record, on 18 July 2016, a current registrar of the People’s Committee of My Hanh Dong Commune verbally confirmed that no record of the visa applicant’s adoption was recorded on file.

    ·Further to a request for the People’s Committee of My Hanh Dong Commune to check their records regarding the claimed adoption of the visa applicant by the sponsor and to provide evidence that the adoption was registered with them, an untranslated confirmation certified by Doan Van Phu, chairman dated 25 August 2016 was received by the Department.  It stated that the visa applicant’s adoption by the sponsor is genuine. This information is contrary to the information provided by the registrar on 18 July 2016 that no record of the visa applicant’s adoption was recorded on file.

17. On 29 September 2016, the visa applicant was invited to comment on the suspected ‘non-genuine’ information provided to the Department as follows:

    ·The Petition for Adoption dated 20 December 1997.

    ·The certification from the People’s Committee of My Hanh Commune issued on 2 February 2016.

18. In October 2016, the visa applicant stated the following: in December 1997, his biological parents and adoptive mother went to the Local People’s Committee of My Hanh Dong Commune to witness that the visa applicant was being given to the sponsor as an adopted child. Mr Nguyen Van Be was the Vice Chairman of the committee at the time. Mr Nguyen Van Be signed the document. As the person in charge of the people’s seal was away from the office, he asked his parent’s to return at another time. His parents viewed the document as an informal agreement. They lived in a remote area and did not return to the People’s Committee to have the seal affixed. Prior to lodging the visa application, his biological mother travelled back to her former homeland to meet Mr Nguyen Van Be.  After explaining their circumstances, the Local People’s Committee of My Hanh Dong Commune agreed to affix the overdue seal on the Petition for Adoption in order to assist the visa applicant’s visa application. Additionally, with regard to the People’s Committee of My Hanh Dong on 2 February 2016, advising that there are no records (of the adoption), because his biological parents and the sponsor were Vietnamese citizens his case was classified as an ‘ordinary confirmation’ and the People’s Committee of the Commune will not keep copies of ‘ordinary confirmations’. In May 2015, Mrs Nga in a letter addressed to Mr Nguyen Van Be provided the same details about the process undertaken for the visa applicant’s adoption in 1997. She also stated that they hadn’t returned to have the seal affixed and requests that the seal be affixed for adoption in order that the visa applicant can live with the sponsor. In October 2015, Mr Nguyen Van Be wrote that as he was busy on 20 December 1997 and he incorrectly wrote Chairman instead of Vice Chairman and asks the People’s Committee of My Hanh Dong to affix the seal on the Adoption document.

19. The visa applicant provided a statement dated October 2016 addressed to and certified by the People’s Committee of My Hanh Dong Commune. The visa applicant seeks certification of the application adoption document dated 20 December 1997, with seal showing that ‘thi xa Cai Lay’ was affixed to the Adoption document late by the Peoples Committee. He also seeks an explanation about the notification provided to the Australian Consulate General from the People’s Committee of My Hang Dong Commune recording that the Peoples Committee had no record of the registration of the visa applicant’s adoption. The People’s Committee confirm that the applicant’s claims were true, however, it also confirmed that they do not have a record of the visa applicant’s adoption.

20. In April 2019, the visa applicant provided information about his claimed adoption by the sponsor and information about the Adoption document he provided as part of the visa application.  He stated the following: In May 2015, Mrs Nga, his birth mother and he went to the People’s Committee to have the adoption paper formalised.  They were advised to have Mr Nguyen Van Be acknowledge that he signed the adoption paper. On 11 May 2015, Mrs Nga and the visa applicant took the adoption paper, the requested paper addressed to Mr Nguyen and his acknowledgement to the People’s Committee for processing and the People’s Committee representative affixed the seal on the adoption paper. Mrs Nga provides information in agreement with that of the visa applicant and also stated that at the time they were not aware that the Commune authority had not followed the right procedure to register the adoption in the People’s Committee book. The sponsor stated that due to the negligence of local officers the adoption agreement was not formally registered with the People’s committee and they were not aware of this at the time of lodging the visa. The Tribunal notes that the visa application was lodged on 10 December 2015, which is after May 2015 when the visa applicant and Mrs Nga claim that they went to have the adoption formalised.   

21. The visa applicant provided the Department with a translated copy dated 11 November 2015 of the Adoption document. The document recorded the following information: that Le Thi Tu, the sponsor, witnessed by a representative of the People’s Committee, adopted the visa applicant. It contained the signature of the sponsor and signatures of the visa applicant’s biological parents, Le Van Nam, his father and Phan Thi Nga, his mother. It carries the signature of the ‘Chairman, Mr Nguyen Van Be’ and the certification of ‘My Dong, December 20, 1997’ and the seal ‘thi xa Cai Lay’ for the People’s Committee of My Hanh Dong Commune.   

22. In three third party statutory declarations dated April 2019, the authors claim to have known the sponsor since 2004. They state that the sponsor told them that she had adopted the visa applicant. They state that during a visit to Vietnam in 2012, they met the visa applicant and could see how much he loved the sponsor and that he looked forward to reuniting with her in Australia. One declarant stated that she is worried about the sponsor, as she had cancer previously and now suffers from pain in her foot due to a medical condition.  Another declarant stated that the sponsor’s health is not good, that she works hard and needs someone to care for her. Another declarant stated that the sponsor is waiting for an operation on her foot and lives by herself without family or close relatives. 

23. Third party statements have been provided from Mr Le Van Teo, the sponsor’s brother who stated that on 20 December 1997, the sponsor went to the My Hanh Dong Commune to ask the government officer to certify the adoption. Mr Le Van Dien another brother and Ms Nguyen Thi Thanh Thuy, the sponsor’s sister, sister stated that the sponsor adopted the visa applicant and this announcement was confirmed by the My Hang Dong Commune. The sponsor’s sister stated that she lived with the sponsor in Vietnam. She claims that while the sponsor was in Vietnam and in 1997 the sponsor adopted the visa applicant and worked to financially support him. The sponsor’s health has deteriorated and she needs a caregiver. Other declarants claim to live in My Hanh Dong Commune and state that the sponsor adopted the visa applicant.

24. The sponsor’s migration agent provided abundant information relating to what constituted a valid adoption in Vietnam including an independent legal opinion (the legal opinion) on the implementation of adoption and the adoption of the visa applicant by the sponsor. The legal opinion also puts forward the following: the visa applicant’s parents fulfilled their responsibility in reporting the adoption to the People’s Committee where the visa applicant lived at the time of adoption. The remaining responsibility of recognising and recording the adoption in the civil status book was of the People’s Committee.  However, it appears that the People’s Committee failed to fulfil this responsibility on 20 December 1997. The fact that the adoption was not properly recorded in the civil status book at the People’s Committee was not to their knowledge and by no fault of their own. The visa applicant and his biological (parent/s) went to the People’s Committee on 8 May 2015 to ask for the petition paper to be stamped, ‘and although the petition paper was stamped, the adoption was not recorded in the civil status book’. Despite much effort to have the ‘adoption agreement’ of the visa applicant formalised, they still ended up having the original petition paper signed by one office, stamped by another and not recorded by the authority. The parties (visa applicant, his biological parent’s and sponsor) to the adoption did the right thing by asking for guidance from the People’s Committee multiple times, who unfortunately continued to fail them. Mr Nguyen Van Be admitted to making a mistake in stating his position (as Chairman) within the organisation and in not stamping the ‘petition paper’. Mr Nguyen Van Tuan, Chairman, at the time the parties went to have the ‘adoption paper’ stamped admitted to having the ‘petition paper’ verified during the time he was Chairman of the People’s Committee as per his statement 5 April 2019. Mr Nguyen Van Tuan did not expressly admit to affixing the stamp, but the relevant statements and confirmations point to the fact that the seal was affixed by his office.

25. The legal opinion argues that the word ‘dang ky’ in the Vietnamese version of folio 79 was incorrectly translated by the Consulate General, with the correct translation to mean ‘registered’, ‘In this case caused to be registered’, ‘not recorded’.  Therefore the adoption was registered at the People’s Committee, Cai Lay District, Tien Giang Province as confirmed by Mr Nguyen Van Tuan in folio 79 and later confirmed by the People’s Committee either in verbal or written statement at folio 83. Although these officers may not have followed the right procedures, there was no evidence of fraud, counterfeit, alternation, or false or misleading statements. In their opinion, all documents presented in the application were enough to show that there was no intention to deceive the authority about the adoption.

1. The Tribunal is of the view that the Adoption document dated 20 December 1997 is a bogus document. At the time of visa application, the visa applicant provided the Adoption document as having been issued on 20 December 1997 in respect of the visa applicant. It recorded a signature for Mr Nguyen Van Be, as Chairman of the People’s Committee of My Hanh Dong Commune. It stated that it was witnessed by a member of the committee and recorded the seal ‘thi xa Cai Lay’ of the committee.

2. It was drawn to visa applicant’s attention that on 20 December 1997, Mr Nguyen Van Be did not hold the title of Chairman of the People’s Committee of My Hanh Dong Commune and that the correct seal for the People’s Committee of My Hanh Dong Commune on 20 December 1997 was ‘huyen Cai Lay’ and not ‘thi xa Cai Lau’ as recorded on the document the visa applicant provided with the visa application. He was also advised that according to the Vietnamese Government’s website ‘thi xa Cai Lau’, of which My Hanh Dong Commune is a part, was established in accordance with resolution number 130/NQ-CP on 26 December 2013. 

3. The visa applicant gave the following evidence: on 20 December 1997 Mr Nguyen Van Be was Vice Chairman of the People’s Committee of My Hanh Dong Commune and he signed the Adoption document. The person in charge of the seal was away on a business trip and the visa applicant’s parents were asked to return to have the seal affixed. The visa applicant’s parents lived in a remote area and did not return to have the seal affixed. In 2015, the visa applicant found out the requirements for the visa and his biological mother went to see Mr Nguyen. After consideration and in order that the visa applicant have sufficient grounds to lodge the visa application, the People’s Committee of My Hanh Dong Commune agreed to fix the overdue seal on the Adoption document.

4. The Tribunal is of the view that the visa applicant, at the time of application, provided the Adoption document purporting to have been issued on 20 December 1997. The Tribunal does not accept the legal argument that the visa applicant’s parents fulfilled their responsibility in reporting the adoption to the People’s Committee and the fact that the adoption was not recorded was not their fault but that of the People’s Committee who failed them. On one hand, the visa applicant, his biological mother and the sponsor gave evidence that at on 20 December 1997, there were no legal documents for the adoption, however, the adoption was written and attested on paper. The visa applicant, his biological mother and the sponsor stated that the adoption document was issued 20 December 1997, however, they did not return to the People’s Committee to have the relevant seal affixed. On the other hand, the Group 3, My Phu Hamlet, My Hang Dong Commune on 20 August 2016, stated that the giving and the adoption were voluntary, however, because they are siblings (the sponsor and her brother) there was no written document and other information from the People’s Committee of My Hanh Dong Commune stated that, the visa applicant’s adoption was not registered. Other evidence is that, the Family and Marriage Law, Chapter 6, to Article 37, promulgated by the National Assembly on 29 December 1986 and valid until 2000 provided that  ‘Adoption is recognised by the people’s committee of the Commune, ward or township where the farmer permanently resides or recorded in the civil status book’.

5. The sponsor’s migration agent provided the Tribunal with substantial documentation including legal opinion supporting the genuine adoption of the visa applicant by the sponsor; The Socialist Republic of Vietnam ‘Law Marriage and Family’, ‘The Marriage and Family’, a document titled ‘The President’ quoting various orders, articles and resolutions’, ‘Report summary of the implementation of law on adoption in five years 2003-2008’, and translated documents relating to the law on adoption in Vietnam and translated media articles on mothers living away from their families or parents and about civil servants not qualified for leadership roles in Vietnam. The Tribunal considered this information and gives it no weight against its considerations as to whether the visa applicant, at the time of application, provided a bogus document and or information that is false and misleading in a material particular at the time it was given. 

6. Notwithstanding, the arguments put forward by the sponsor, visa applicant, his biological parents, the legal opinion and the sponsor’s migration agent, the Tribunal does not accept that it is plausible that the visa applicant’s biological parents in 1997, considered it important enough to travel to the People’s Committee and obtain an adoption document and then not return to have the seal affixed. The Tribunal does not accept that the adoption document was issued on 20 December 1997 as is claimed. The Tribunal reasonably suspects that the Adoption document dated 20 December 1997 is a bogus document.  It is of the view that it is counterfeit and manufactured to resemble a genuine document and purports to have been but was not issued in respect of the visa applicant on 20 December 1997 as the visa applicant initially claimed.

7. In relation to the certification from the People’s Committee of My Hanh Dong Commune issued on 2 February 2016, this document stated that the visa applicant’s Petition for Adoption remains valid and the adoption was registered at My Hanh Dong Commune, Cai Lay District. The minutes of meeting of Group 3, My Phu Hamlet, My Hang Dong Commune, dated 20 August 2016 stated that the visa applicant’s adoption by the sponsor in 1997 is ‘true’ and claimed that the self-governing resident’s group held a meeting and all aged people present confirmed the adoption. Their confirmation dated 25 August 2016 stated that the adoption is ‘true’.

8. Contrary to this information is the information provided in the delegate’s decision record that in July 2016, by the registrar (of that time) of the People’s Committee of My Hanh Dong Commune that, the visa applicant’s adoption was not registered. The Group 3, My Phu Hamlet, My Hang Dong Commune dated 20 August 2016, also stated that the giving and the adoption were voluntary, however, because they are siblings (the sponsor and her brother) there was no written document. Their confirmation dated 25 August 2016 although stating that the adoption is ‘true’, recorded that the ‘People’s Committee of Commune have no file for this announcement.’ The visa applicant in his statement of 26 April 2019 declared that the People’s committee did not have a record of the adoption on their files and that he did not receive any explanation why the adoption was not recorded in the registration books of the People’s Committee. The Tribunal considered the information individually and as a whole including the contrary and conflicting information. The Tribunal does not consider it plausible that approximately 19 years after the claimed Adoption document being issued, for the People’s Committee of My Hanh Dong Commune on 2 February 2016 to state that the visa applicant’s adoption remains valid and the adoption was registered at My Hanh Dong Commune Cai Lay District when the evidence including from the visa applicant was that the adoption was not recorded in the registration books of the People’s Committee.

9. The Tribunal finds that the information provided on 2 February 2016, in the certification from the People’s Committee of My Hanh Dong Commune, that the adoption was registered at My Hanh Dong Commune Cai Lay District, to be false and misleading in a material particular, at the time it was given and was provided to assist the visa application and to meet cl.101.211(1)(c)(ii) of Schedule 2 to the Regulations. The Tribunal finds that the visa applicant in providing information from the People’s Committee of My Hanh Dong Commune issued on 2 February 2016 and the minutes of meeting of the Group 3, My Phu Hamlet, My Hang Dong Commune as detailed above has provided information in a material particular, that is false or misleading at the time it is given.

10. Therefore, the visa applicant does not meet PIC 4020(1).

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

11. 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) of the Regulations, 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.

12. 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.

13. There is no evidence of compelling circumstances that affect the interests of Australia.

    Are there compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident, or an eligible New Zealand citizen that justify the granting of the visa?

14. Prior to and at the Tribunal hearing the sponsor provided information for consideration against compassionate or compelling circumstances that justify the granting of the visa as follows.

15. The visa applicant, in October 2016, stated the following, the sponsor held expectations that the visa applicant would take care of her. She had leg pain because she had to stand uninterruptedly and was waiting for surgery. Other information is that the sponsor is a cancer survivor and needs ongoing care to maintain good health. She is diagnosed with high blood pressure and Hallux valgus which prevents her from standing for long periods of time and is prescribed and taking medication. The sponsor gives information about an abusive marriage with her previous husband and of living alone since 2010 and being lonely. She stated that she works 38-40 hours a week to support herself and the visa applicant. She is planning foot surgery and will require around the clock care for six weeks. She claimed that the prospect of being separated from her son has affected her health both physically and mentally.  Various medical documents have been provided giving evidence about the sponsor’s medical conditions and other information relating to her employment as a chef/cook. Other information is that the sponsor has no immediate family in Australia other than a sister who lived in Victoria. The legal opinion stated that the sponsor worked many jobs and sent money to support the visa applicant. She visited the visa applicant when she had a chance. However the residency requirements to obtain Australian citizenship, her cancer treatments and employment commitments in Australia restricted her visits.

16. The Tribunal accepts that the sponsor suffers from the medical conditions as claimed. It accepts that the sponsor may have expected the visa applicant to take care of her. It empathises with the sponsor’s past life experiences and of her feeling lonely and of the challenges she may face with the proposed foot surgery. The sponsor told the Tribunal that she travels to Vietnam once a year for between 10 to 14 days. It notes that the visa applicant up until approximately two and a half years ago lived with his biological parents. It encourages the sponsor to seek the assistance and support of her health care professionals and/or government agencies to assist her during the recovery from her foot surgery. The Tribunal is not satisfied that the reasons put forward for the granting of the visa are compassionate or compelling circumstances that affect an Australian citizen, Australian permanent resident, or an eligible New Zealand citizen that justify the granting of the visa.

    Other considerations

17. The Tribunal discussed with the sponsor her statutory declaration and third party statutory declarations provided to the Tribunal. In the body of the statutory declarations the following is recorded: ‘this statement was prepared through questions and answers in Vietnamese. It was then typed in English and read back to me in Vietnamese.  I understand its content and state that it is true to the best of my knowledge’. The sponsor told the Tribunal that statutory declaration was prepared with the assistance of her migration agent. The Tribunal told the sponsor that it would be more appropriate for the authors to write their statements in their own words and language and then for those statements to be translated by an authorised person.  It explained to the sponsor that, the purpose of third party statements is to obtain individual, spontaneous and accurate statements.  The Tribunal is concerned that obtaining third party statements in this manner may not record the authors information accurately.

18. The Tribunal drew to the sponsor’s attention other third party statements provided to the Tribunal in a language other than English. These statements have been provided with English translations and accompanied by certification sheets from the translator.  The certification sheets do not reference the documents being translated and it appears to the Tribunal, that the same certification statement is attributed to numerous statements.  

19. This decision record is a synopsis of the information before the Tribunal.  The Tribunal considered all the evidence individually and as a whole. For the reasons above the Tribunal is not satisfied that there is no evidence before it that the visa applicant has given or caused to be given to the Minister a bogus document or information that is false or misleading in a material particular in relation to the application for the visa. For the reasons above, the Tribunal is not satisfied that there are compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident, or an eligible New Zealand citizen that justify the granting of the visa.

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

21. On the basis of the above, the visa applicant does not satisfy PIC 4020 for the purposes of cl.101.223.

22. There is no evidence that the visa applicant meets the criteria for any other subclass within the class of visa sought.

    DECISION

23. The Tribunal affirms the decision not to grant the visa applicant a Child (Migrant) (Class AH) visa.

    Helena Claringbold
    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.