LIU (Migration)

[2019] AATA 2724

LIU (Migration) [2019] AATA 2724 (17 May 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Fuxun LIU

VISA APPLICANT:  Miss Xinyi Liu

CASE NUMBER:  1621495

DIBP REFERENCE(S):  OSF2016037046

MEMBER:Kira Raif

DATE:17 May 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for a Child (Migrant) (Class AH) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 101 (Child) visa:

·Public Interest Criterion 4020 for the purposes of cl.101.223 of Schedule 2 to the Regulations.

Statement made on 17 May 2019 at 2:25pm

CATCHWORDS
MIGRATION – Child (Migrant) (Class AH) – Subclass 101 (Child) – bogus document – false birth certificate – requirements of Public Interest Criterion 4020 waived – compassionate circumstances – immediate family in Australia – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5, 65 ,101, 359A
Migration Regulations 1994 (Cth), Schedule 2, cl 101.223, Public Interest Criterion 4020

CASES
Arora v MIBP [2016] FCAFC 35
Batra v MIAC [2013] FCA 274
Plaintiff M64/2015 v MIBP [2015] HCA 50
Trivedi v MIBP [2014] FCAFC 42

STATEMENT OF DECISION AND REASONS

Application for review

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 26 October 2016 to refuse to grant the applicant a Child (Migrant) (Class AH) visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant is a national of China, born in April 1994. She applied for the visa on 23 March 2016. The delegate refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl.101.223 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the delegate found that the applicant did not meet Public Interest Criterion (PIC) 4020. The sponsor (‘the review applicant’) seeks review of the delegate’s decision.

3. The review applicant appeared before the Tribunal on 19 February 2019 to give evidence and present arguments. The Tribunal also received oral evidence from the review applicant’s spouse. The review applicant invited the Tribunal to take oral evidence from the visa applicant and his sister in law but told the Tribunal that their evidence would relate to the care arrangements of the visa applicant. As the Tribunal accepts that evidence, the Tribunal did not consider it necessary to take oral evidence from these witnesses. The Tribunal hearing was conducted with the assistance of an interpreter in the Cantonese and English languages. The review applicant was represented in relation to the review by his registered migration agent. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   Relevant law

4. The issue in this review is whether the visa applicant meets Public Interest Criterion 4020 (PIC 4020) as required by cl.101.223 for the grant of the visa. Broadly speaking, this requires that:

   ·there is no evidence that the applicant has given, or caused to be given, to the Minister, an officer, the Tribunal, a relevant assessing authority, or Medical officer of the Commonwealth, a bogus document or information that is false or misleading in a material particular in relation to the application for the visa or a visa that the applicant held in the 12 months before the application was made: PIC 4020(1); and

   ·the applicant and each member of the family unit has not been refused a visa because of a failure to satisfy PIC 4020(1) during the period starting 3 years before the application was made and ending when the visa is granted or refused, unless the applicant was under 18 at the time the application for the refused visa was made: PIC 4020(2) and (2AA); and

   ·the applicant satisfies the Minister as to his or her identity: PIC 4020(2A); and

   ·neither the applicant nor any family unit member has been refused a visa because of a failure to satisfy PIC 4020(2A) during the period starting 10 years before the application was made and ending when the visa is granted or refused, unless the applicant was under 18 at the time the application for the refused visa was made: PIC 4020(2B) and (2BA).

5. 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).

6. 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.

7. 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.

8. 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.

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

9. The review applicant provided to the Tribunal a copy of the primary decision record which contains the following information.

10. The visa applicant included with her application a notarised birth certificate claiming that her father is Fuxun Liu and her mother is Huozhen He. The visa applicant is sponsored in this application by Mr Fuxun Liu, who did not declare the applicant in his own visa applications.

11. The Department conducted checks to confirm the information provided by the applicant. It was determined that the birth certificate submitted by the visa applicant was a bogus document.

12. As the primary decision record contains very little explanation of what inquiries had been undertaken and why the birth certificate was found to be a bogus document, the Tribunal wrote to the Department to clarify these matters. On 25 February 2019 the Tribunal received advice from the Department stating that the Department officer contacted the relevant hospital and was informed that there is no record of the birth certificate or of the visa applicant’s birth. This information was put to the review applicant pursuant to s. 359A of the Act.

13. The delegate wrote to the visa applicant seeking her comments on that information. The visa applicant replied, through her migration agent. The visa applicant provided a statement from her mother. Ms He states, essentially, that she was pregnant before she was able to register her marriage to the child’s father, and could not obtain the birth permit. She gave birth at home with the assistance of a midwife, who provided a statement to confirm the birth, but the statement is now lost. The visa applicant’s parents subsequently registered marriage and decided to conceal the applicant’s birth in order to be able to have a second child. Ms He states that the visa applicant’s birth certificate was obtained by someone from the local village committee.

14. The visa applicant provided to the delegate a statement from the local village committee dated 30 May 2016 which offers the same information. It indicates that the midwife who helped with the birth and the person from the village committee who helped obtain the visa applicant’s birth certificate have both passed away. The visa applicant provided to the delegate a number of family photographs.

15. When making the application for review, the review applicant provided to the Tribunal a statement in December 2016 in which claims the delegate made a ‘big mistake’ in refusing his daughter’s application. The review applicant stated that he would be providing additional evidence at a later date. No submissions were made by the review applicant or his representative in the following two years.

16. On 20 December 2018 the review applicant provided to the Tribunal copies of several documents that had previously been submitted to the Department, as well as evidence of ongoing financial support he provided to the visa applicant. The review applicant included a letter from his former lawyer concerning the application for the Subclass 457 visa, stating that it was not his intention to bring his daughter to Australia at that time and she was left with relatives in China. There is a copy of the letter from the visa applicant’s mother explaining the circumstances of her birth, the daughter’s medical records with the diagnoses of cerebral palsy and cognitive disorder.

17. The review applicant provided a further statement to the Tribunal. He states that the delegate made a mistake in refusing his daughter’s application as the child is his natural daughter. The review applicant states that contrary to the delegate’s finding, he did declare his daughter in his Business visa application. With respect to the daughter’s birth records, the review applicant repeated the information made in various statements earlier and stated that he was willing to do the DNA test to confirm the relationship. With respect to PIC 4020, the review applicant states that there was an ‘unofficial procedure’ in obtaining his daughter’s birth certificate from the hospital that they were not aware of but they did not mean to breach PIC 4020. The review applicant states there are compassionate and compelling circumstances as three members of the family are settled in Australia while the visa applicant, who needs special care due to her disability, remains in China. She is part of the family, they talk to her daily. The review applicant addressed the issue of the child’s dependence. The review applicant provided the same evidence in his written response to the Tribunal’s s. 359A correspondence.

18. In oral evidence to the Tribunal the review applicant also explained that his wife became pregnant when they were both very young. They could not attend the hospital and had the help of a private doctor in their village.

19. The Tribunal acknowledges the review applicant’s evidence. The review applicant and the visa applicant completed a DNA paternity test which confirms that the visa applicant is the biological child of the review applicant and the Tribunal accepts that evidence. However, the issue here is not the relationship between the visa applicant and the review applicant but rather the nature of the child’s birth certificate.

20. Having regard to the information in the primary decision record and the advice from the Department received on 25 February 2019, the Tribunal reasonably suspects that the birth certificate is a bogus document within the meaning of s. 5(b) of the Act. The Tribunal finds that there is evidence that the visa applicant has given, or caused to be given, to the Minister or an officer, a bogus document in relation to her visa application. The Tribunal finds that the visa applicant does not meet PIC 4020(1).

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

21. The requirements of PIC 4020(1) and (2) may be waived where there are compelling circumstances that affect the interests of Australia, or where there are compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident, or an eligible New Zealand citizen (as defined in r.1.03), that justify the granting of the visa. The decision-maker must first be satisfied that there are such circumstances, then must consider whether to exercise the discretion to waive the requirements, having regard to those circumstances: Kaur v MIBP [2017] FCAFC 184.

22. 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.

23. For the following reasons, the Tribunal is satisfied that the requirements should be waived.

24. With respect to the waiver, the review applicant states that even though he came to Australia, he always thought about his daughter and took care of her. He made arrangements for somebody to care for his daughter and sent money but that person is no longer available. He has always been saddened by the separation from his daughter.

25. The Tribunal is mindful that the review applicant had deliberately provided false information in his permanent visa application in order to obtain the visa by not mentioning his daughter on the application. He has not sponsored his daughter as soon as he was granted permanent residence in 2008. He has not made any effort to bring his daughter to Australia until recently, telling the Tribunal it was too difficult for a variety of reasons. That is, the review applicant appeared to have had no difficulty leaving his daughter in China when making the decision to migrate to Australia and also when establishing his life in Australia. He explained to the Tribunal that he needed to be financially stable and buy a house and pay off the mortgage. The review applicant appeared to have other priorities rather than being reunited with his daughter.

26. In the circumstances where the review applicant had made the decision to separate from his daughter and live away from his daughter for such a lengthy period of time, his present claim about the existence of compelling or compassionate circumstances are problematic. The Tribunal is not satisfied that in the particular circumstances of this case, there are compassionate or compelling circumstances affecting the review applicant.

27. Nevertheless, the Tribunal accepts that all of the visa applicant’s immediate family are in Australia. The visa applicant’s parents and sibling are in Australia. The review applicant’s evidence to the Tribunal is that his wife and son travelled to China regularly to spend time with the visa applicant. He told the Tribunal that following the family’s migration to Australia, the visa applicant’s grandmother looked after her but the grandmother died a few years ago and since then her aunt looks after the visa applicant but that is not a permanent arrangement. The review applicant’s partner also told the Tribunal that since her mother passed away, it is best that the visa applicant is taken care of by parents.

28. Despite significant reservations about the review applicant’s and his partner’s credibility, the Tribunal accepts that they have made arrangements for the visa applicant’s care and provided financial support for her upbringing. The Tribunal accepts that care arrangements have been made by the review applicant and his partner and that they maintained a close relationship with the visa applicant. The Tribunal accepts that the care arrangements are inadequate at present. The Tribunal acknowledges that the review applicant and his wife and son are permanent residents of Australia. On balance, the Tribunal accepts that there are compassionate circumstances affecting the Australian citizens or permanent residents, being the review applicant’s spouse and son in Australia, that justify the grant of the visa. Therefore the requirements of PIC 4020(1) should be waived.

29. PIC 4020(2A) requires an applicant satisfy the Tribunal as to his or her identity. There appear to be no concerns relating to the visa applicant’s identity. The visa applicant meets PIC 4020(2A).

30. 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). There is no evidence that the visa applicant has previously been refused a visa because of failure to satisfy PIC 4020(2A). Therefore PIC 4020(2B) does not apply

31. On the basis of the above, the visa applicant satisfies PIC 4020 for the purposes of cl.101.223.

32. The review applicant told the Tribunal that he did not include his daughter in his application for permanent residence because their migration agent advised them it was better not to include her. The Tribunal is mindful that if the visa applicant did not pass the health checks, the review applicant would have been refused the visa. It appears that the review applicant had been deliberately untruthful in his dealings with Immigration in order to obtain the visa. The provision of incorrect answers on the form may give rise to the cancellation under s. 109 of the Act for breach of s. 101. However, this is not a matter for the present Tribunal.

    DECISION

33. The Tribunal remits the application for a Child (Migrant) (Class AH) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 101 (Child) visa:

    ·Public Interest Criterion 4020 for the purposes of cl.101.223 of Schedule 2 to the Regulations.

    Kira Raif
    Senior Member