Mohamud (Migration)

[2020] AATA 3326

Mohamud (Migration) [2020] AATA 3326 (30 June 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Sagal Mohamud

VISA APPLICANTS:  Master Ahmed Jama
Master Yusuf Jama
Master Abdullahi Jama
Master Nuur Jama

CASE NUMBER:  1705310

DIBP REFERENCE(S):  2015/075357

MEMBER:Russell Matheson

DATE:30 June 2020

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicants Child (Migrant) (Class AH) visas.

Statement made on 30 June 2020 at 11:38am

CATCHWORDS
MIGRATION – Child (Migrant) (Class AH) visa – Subclass 117 (Orphan relative) – bogus document – birth certificate and death certificate – custody order – hospital records and clinical notes – document integrity checks – prevalence of document fraud in Somalia – no verifiable Somali identity documents – no systematic birth and death registration – waiver of requirement – welfare and safety of the children – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 363
Migration Regulations 1994 (Cth), Schedule 2, cl 117.223; 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. This is an application for review of a decision made by a delegate of the Minister for Immigration on 14 March 2017 to refuse to grant the applicants Child (Migrant) (Class AH) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants are nationals of Somalia. They applied for the visas on 1 July 2015. The delegate refused to grant the visas on the basis that the visa applicants did not satisfy the requirements of cl.117.223 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the delegate found that the visa applicant’s did not meet Public Interest Criterion (PIC) 4020. The review applicant (the sponsor) seeks review of the delegate’s decision.

3. The sponsor appeared before the Tribunal on 12 December 2019 via video hearing to give evidence and present arguments. The sponsor’s husband attended the hearing but was not called upon by the sponsor to provide evidence.  

4. The sponsor was represented in relation to the review by her registered migration agent.

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

   Relevant law

6. The issue in this review is whether the applicant meets 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).

7. 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.

8. 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.

9. 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.

10. 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?

11. The sponsor provided to the Tribunal a copy of the primary decision record which contains the following information.

12. The sponsor provided to the Department a copy of her sister’s death certificate and birth certificate in the name of Nuro Ali Egal issued by the Mayor of Mogadishu, Mudei Mohamed Malele on 10 October 1980 with a registration date of 2016 when lodging the visa application for the applicants.

13. The delegate found it unusual that the sponsor’s half-sister’s death was registered in 2016 given the lack of civil registration throughout the country and issued by the same Mayor of Mogadishu from 1980 and in the same format. There has been a significant number of Mayors throughout the history of Mogadishu and the turnover of Mayors has been high as such it is not plausible for one person to have been Mayor of Mogadishu from 1980 to 2016. Open source information indicates that the current Mayor of Mogadishu is Yusuf Hussein JIMAALE who assumed the role in November 2015.  The delegate found it would be reasonable to expect that Mr. Jimaale would be responsible for the issuance of death certificates. On the basis of the above, the delegate found that there is evidence suggesting bogus documents have been provided as part of the visa application, specifically relating to the birth certificate and death certificate of the sponsors half-sister in support of the visa applications.

14. On 11 November 2016 the Department wrote to the sponsor and invited her to comment on the information that it considered to be false or misleading or the document that it considered to be bogus, and specify if there are any compelling circumstances affecting the interests of Australia, or compassionate or compelling circumstances affecting the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen, to justify the waiver of any or all of PIC 4020(1)(a) or (b) and PIC 4020(2) to justify the granting of the visa.  

15. The sponsor responded on 22 January 2016 stating that there was no error with the documents having been obtained through the legal process in Somalia. The sponsor further stated that she agreed with the Department that Mr Mudei Mohamed Malele was in fact not the Mayor of Mogadishu and that his title was the Deputy Mayor of the Social Sector and he had the authority to stamp official documents with Mogadishu letterheads and stamps. The sponsor also stated that the Department had been incorrectly led to believe that Mr Malele was the mayor due to translation errors. Furthermore, in regards to the issue of concern about the date of issue of the birth certificate the sponsor stated that Mr Malele signed the document to assure its authenticity which was originally dated 10 October 1980. The date on the document does not infer that Mr Malele signed the document in 1980. In regards to the death certificate the sponsor stated that 2016 is not the registration date of the document but rather it is the year in which she requested the document not the date of death.

16. The sponsor provided additional documents to the Tribunal prior to the hearing in December 2019 that include:

    ·     A custody letter from Bakol Regional Court dated 15 December 2012 handing custody of the applicants to the sponsor (TF folio 113);

    ·     A birth certificate in name the of Nuro Ali Egal dated 10 October 1980 (TF folio 134);

    ·     A death certificate in the name of Nuro Ali Egal dated 22 January 2016 (TF folio 141);

    ·     A second death certificate in the name of Nuro Ali Egal dated 29 August 2017 (TF folio 147);

    ·     Untranslated clinical notes from the Ministry of Health Yeed Hospital with telephone contact numbers (0619152140 and 0682180317) dated 9 May 2012 (TF folio 148);

    ·     Translated clinical notes from the Ministry of Health Yeed Hospital with telephone contact numbers (0619152140 and 0682180317) dated 8 November 2015 (TF folio 154);

    ·     A letterhead titled Minister of Health Yeed Hospital, signed by Dr Yusuf Mustafa, Director Yeed Hospital with contact number 252617537823 dated 10 October 2017 (TF folio149); and

    ·     A letterhead titled Ministry of Healthy (incorrect spelling Healthy) Yeed Hospital signed by Dr Yusuf Mustafa with contact number 252617537823 dated 22 October 2017 (TF folio 133).

17. On 18-19 September 2019 the Tribunal wrote to the Department of Home Affairs (Document Examination Unit) pursuant to s.363(1)(d) of the Act to examine documents to determine their authenticity and integrity. The Tribunal forwarded to the Department copies of the custody order, second death certificate, clinical notes and letterheads signed by Dr Yusuf Mustafa (TF folios 113, 133, 147, 149 and 154) as mentioned above.

18. On 9 October 2019 in response to the document examination of the custody order issued by Bakol Regional Court dated 15 December 2012, handing custody of the sponsor’s half-sister’s children to the sponsor (TF folio 113) the Department stated that the post has no ability to verify the custody order as the issuing office is located around 300km from Mogadishu and due to the security situation in Somalia, it is not possible to travel to this location (TF folio 157). 

19. On 8 November 2019 in response to integrity check referrals of hospital records provided by the Tribunal the Department stated that on 7 November 2019 at 10.30am they called the number appearing on the hospital records signed by Dr Yusuf Mustafa with the assistance of a Somali interpreter provided by the Department of Home Affairs, Nairobi. The call was not answered. At 10.32 am the Department called the two numbers appearing on the clinical notes from Yeed Hospital, however, the phone numbers were not connected. At 10.35am the Department called the number for Dr Mustafa. The call was answered and the person confirmed that they were the signatory, Dr Yusuf Mustafa. Dr Mustafa advised that he has never worked or heard of Yeed Hospital and stated that he is employed at Yardimeli Hospital located in Mogadishu. Dr Mustafa requested that the documents be provided to him via WhatsApp to allow him to undertake the verification and these were sent to him at 10.41am. At 11.15am a WhatsApp message was received from Dr Mustafa advising the Department the signature appearing on the document was not his and that he had not issued the documents. The Department advised the Tribunal based on the information provided the referral is verified as counterfeit.

20. On 11 December 2019 the Tribunal was informed by the Department that an email request was sent to the International Organisation for Migration (IOM) Mogadishu, Somalia seeking their assistance in verifying the second death certificate (TF folio 147) presented by the sponsor under the IOM Verification Services Agreement for Sub Saharan Africa. On 23 October 2019 a representative of IOM Mogadishu attended the issuing office and was advised that the records related to the death certificate have been destroyed as a result of the civil war. As there is no record available, the issuing office was unable to confirm the validity of the document.

21. The Tribunal refers to the Department of Foreign Affairs and Trade (DFAT) country information report on Somalia dated 13 June 2017. DFAT assesses that document fraud is highly prevalent in Somalia and there are no verifiable Somali identity documents and there is no systematic birth and death registration in Somalia. Verifying documents is impossible as there are no reliable government-held registries to compare against. Fraudulent documentation can take the form of fake documents, or genuine documents that have been obtained on the basis of fraudulent information.

22. At the Tribunal hearing the Tribunal asked the sponsor how she obtained the custody order from the Bakol Regional Court dated 15 December 2012 handing custody of the applicants to the sponsor. She replied that a neighbour of her sister (Safiya Bara) attended the court on her behalf to provide the information to obtain the court order for custody of the children. As previously stated fraudulent documentation can take the form of fake documents, or genuine documents that have been obtained on the basis of fraudulent information and the Department stated that the post has no ability to verify the custody order due to security issues and there is no corroborative evidence such as statements or statutory declarations in regard to the neighbour attending the court and providing the relevant information. Based on the information provided the Tribunal places little weight on the court order in regard to the death of the sponsor’s half-sister and custody rights of the children.

23. The Tribunal also asked the sponsor why she had provided two death certificates for her half-sister, one each to the Department and the Tribunal that were completely different in appearance and different in detail. The sponsor was unsure of the question and she was shown the two death certificates by her representative on his laptop computer. The sponsor responded that the death certificate originally provided to the Department had the wrong dates on it and there was an issue with who had signed the death certificate and it could have been forged. The sponsor further stated the new death certificate had the correct details and she had paid the carer of her children $100 to obtain the death certificate. The sponsor provided a copy of a money transfer receipt sent to Mr Guled on 5 January 2016. Mr Guled provided a statement dated 5 September 2017 that he paid a civil servant the $100 to provide documents in regard to the sponsor’s half-sister and he forwarded them to her. The Tribunal accepts the sponsor sent a money transfer to Mr Guled but there is little evidence before the Tribunal that he used the money to obtain the death certificate because his statement does not indicate what documents he provided to the sponsor. The Tribunal also has concerns that the statement has not been witnessed and there are no identifying documents or contact details relevant to the person making the statement. The Tribunal places little weight on the documents as corroborative evidence establishing that Mr Guled obtained a legal death certificate. In regard to the country information on Somalia DFAT assesses that document fraud is highly prevalent in Somalia and there are no verifiable Somali identity documents and there is no systematic birth and death registration in Somalia and all records related to the death certificate of the sponsor’s half-sister have been destroyed as a result of the civil war. The Tribunal finds this information problematic and is unable to confirm the validity of the document in regard to the death of the sponsor’s half-sister. 

24. The Tribunal queried the applicant as to how she obtained the hospital records and clinical notes provided to the Tribunal as evidence of her half-sister’s death. The sponsor replied that Safiya Bara with the help of others obtained the documents. The sponsor further stated that she could not remember the names of the other people who assisted in obtaining the documents. The Tribunal asked the sponsor how Safiya Bara came into possession of the documents provided to the Tribunal. The sponsor stated that Safiya obtained the documents from Yeed Hospital in Yet. The Tribunal told the sponsor that it could not locate Yeed Hospital when searching for it on the internet or the World Health Organisation’s list of hospitals in Somalia. The sponsor responded the hospital is a small clinic that is attended by NGO’s who come and assist at the hospital.

25. At the hearing the Tribunal informed the sponsor in accordance with s.359AA it was going to put new information to her that it would consider to be the reason or part of the reason for affirming the decision. The Tribunal explained the relevance and the consequences of the information to her and invited her to comment on or respond to the information. The sponsor was informed that she may respond to the information orally or in writing or she could seek additional time to comment on or respond to the information. The sponsor chose to respond orally at the hearing after a short adjournment and consultation with her representative. The sponsor’s representative also indicated to the Tribunal that he may seek additional time to respond in writing also.

26. The Tribunal informed the sponsor that it had referred the hospital records and clinical notes provided by the sponsor as evidence at the hearing to the Department (Document Examination Unit) to examine the documents to determine their authenticity and integrity and that the Department had declared the documents as counterfeit.

27. The Tribunal as previously mentioned (paragraph 19) informed the sponsor in response to integrity check referrals of hospital records provided to the Tribunal the Department stated that on 7 November 2019 at 10.30am the Department called the number appearing on the hospital records signed by Dr Yusuf Mustafa with the assistance of a Somali interpreter provided by the Department of Home Affairs, Nairobi. The call was not answered. At 10.32 am the Department called the two numbers appearing on the clinical notes from Yeed Hospital, however, the phone numbers were not connected. At 10.35am the Department called the number for Dr Mustafa. The call was answered and the person confirmed that they were the signatory, Dr Yusuf Mustafa. Dr Mustafa advised that he has never worked or heard of Yeed Hospital and stated that he is employed at Yardimeli Hospital located in Mogadishu. Dr Mustafa requested that the documents be provided to him via WhatsApp to allow him to undertake the verification and these were sent to him at 10.41am. At 11.15am a WhatsApp message was received from Dr Mustafa advising the Department the signature appearing on the document was not his and that he had not issued the documents. The Department advised the Tribunal based on the information provided the referral is verified as counterfeit. The Tribunal asked the sponsor to respond to the adverse information from the Department.

28. The sponsor responded that she had spoken to Dr Mustafa in person at Yeed Hospital on the number provided and the number is his. She further stated that she could not explain why Dr Mustafa stated that it was not his signature on the documents and that he did not issue the documents or that he had never heard of or worked at Yeed Hospital. The sponsor also stated that she had Dr Mustafa’s phone number that she had called him on. The Tribunal asked the sponsor to provide the number that she had called him on. The sponsor browsed through her mobile phone at the hearing and could not locate a number for Dr Mustafa. Based on the information provided the sponsor has caused to be given a bogus document or information that is false or misleading in a material particular. 

1. On 13 December 2019 the Tribunal wrote to the sponsor in accordance with s.359A of the Act with a request to provide further comments on or response to the adverse information provided to the Tribunal by the Department by 14 February 2020. The Tribunal informed the sponsor that it had received notification from the Department that the clinical notes that she had provided signed by Dr Yusuf Mustafa from Yeed Hospital with his contact number and dated 22 October 2017 were fake documents. The Tribunal forwarded a copy of the document (TF 133) as well as the integrity check outcome provided by the Department confirming the document as fraudulent. On 30 January 2020 the Tribunal received a request for an extension of time to provide comments or response. The Tribunal agreed to an extension of time until 28 February 2020.

2. On 26 February 2020 the Tribunal received a request from the sponsor for an extension of time to provide further comments on or response to the adverse information. The sponsor stated that she had not received the original request from her representative to provide information as she was no longer using his services and that she was now representing herself. The sponsor was granted a further extension of time until 4 March 2020 to provide comments or response.

3. On 3 March 2020 the sponsor provided a written response stating that she had received an email from the applicant’s carer with a letter issued by Yeed Hospital confirming the death of her half-sister on 13 May 2012 with detailed information about the cause of death. She further states that the letter was signed and issued by Dr Yusuf Mustafa and sealed with the hospital letterhead bearing the name of the issuing doctor with his telephone number [phone] and she had no reason to believe the letter was fake or has been tampered with. The sponsor states prior to the documents being sent to the Tribunal, her representative had contacted the hospital to confirm the authenticity of the letter and had received a response from the hospital via email on 31 October 2019 confirming that Dr Jusuf Mustafa is one of the doctors working at Yeed Hospital for the period 2010 to present and can be contacted on [phone] and the hospital contact number is [phone]. The sponsor provided a copy of the email with her response. The sponsor also stated that she has no doubt the letter is genuine. The sponsor also stated that she has recently obtained a photograph of her half-sister’s tomb indicating where she was buried. The sponsor also claims that all the documents she has provided are from people empowered to issue such documents. There is little evidence before the Tribunal to corroborate that this is the case.

4. The attached email provided by the sponsor dated 31 October 2019 shows a response from Yeed Hospital from Said Hassan Adam. The response states: “ thank you for contacting Yeed Hospital, we are considering your request to confirm you Dr Mustaf Yusuf Jama is one of the doctors working Yeed Hospital, for the period 2010 till present and you can contact him at + 252619567574”. The email also indicates the hospital telephone number + 252613833732. The Tribunal notes the name of the doctor in the email (Dr Mustaf Yusuf Jama) and the telephone numbers are different to the name (Dr Yusuf Mustafa) and telephone number + 252 617 537 823 on the Yeed Hospital letterhead provided by the sponsor with clinical notes showing the cause of her half-sister’s death that was allegedly signed by Dr Yusuf Mustafa. When the Department contacted Dr Yusuf Mustafa on phone number + 252 617 537 823 his identity and phone number were confirmed with the assistance of a Somali interpreter and the document forwarded to him for perusal. Dr Mustafa denied ever issuing or signing the document. He further stated that he has never heard of or worked at Yeed Hospital and he is currently employed at Yardimeli Hospital located in Mogadishu. Although the Tribunal is unable to determine whether Yeed Hospital actually exists the name of the doctor in the email and the name of the doctor on the documents provided to the Tribunal are not the same and do not confirm the authenticity of the document provided by the sponsor as to the cause of death of her half-sister as claimed by the sponsor. The Tribunal places little weight on the email as it appears that the sponsor has been complicit in providing bogus documents and false and misleading information to the Tribunal. Based on the information provided, the sponsor has caused to be given a bogus document or information that is false or misleading in a material particular. The Tribunal examined the photograph provided by the sponsor claiming that it shows her half-sisters tomb indicating where she was buried. The Tribunal notes that the picture is somewhat blurred and shows an unknown person pointing at the ground. The Tribunal is unable to identify whether there is a tomb or gravesite depicted in the photograph due to its poor quality. The Tribunal places little weight on the photograph as corroborative evidence of the sponsor’s half-sister’s death or burial site.   

5. Based on the evidence provided, the Tribunal finds that there is evidence that the sponsor has given, or caused to be given, to the Minister or an officer, a bogus document in relation to her visa application. Therefore, the visa applicant does not meet PIC 4020(1).

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

6. 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.

7. 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.

8. The Tribunal has considered whether there are any 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, that justify the granting of the visa.

9. For the following reasons, the Tribunal is not satisfied that the requirements should be waived.

10. With respect to the waiver the sponsor gave evidence that the visa application has been going on for five years and this has affected her health. She further stated that the applicants are dependent upon her for financial support and care and she is currently in dispute with the people caring for the children over expenses. The Tribunal accepts the visa process is a lengthy process and this may affect the sponsor’s health and there are financial implications involved with the visa application and care and support of the applicants. There is little evidence before the Tribunal such as medical records or financial records to indicate any effect on the sponsor’s health or the degree of financial stress suffered. The Tribunal is not satisfied the health of the sponsor and financial implications are compassionate or compelling circumstances to waive the PIC 4020 requirements.

11. The sponsor also gave evidence and provided a statement that she had no intention to fabricate evidence or be dishonest as she believed the documents that she provided to the Tribunal and Department were authentic. The Tribunal does not find that the sponsor’s evidence and belief the documents she provided are authentic are in themselves compassionate or compelling circumstances to waive the PIC 4020 requirements.

12. With respect to the waiver the sponsor’s representative in his submission dated 12 September 2019 states that the applicants’ mother is dead and their father is missing; the applicants are immediate family of the sponsor because of blood ties and for reasons of culture; they are for all intents and purposes the sponsor’s sons and she has obtained custody through the courts. He further states that it is difficult to think of more tragic and dangerous circumstances than which the applicant’s find themselves in. The father has disappeared, their mother is dead, their sisters have been kidnapped, tortured and disappeared, and their only carer is soon unable to offer them shelter. The representative further states the waiver ought to be applied as it affects the interest of the sponsor, an Australian permanent resident and her husband who is an Australian citizen. The representative referred to the sponsor’s plea in her statutory declaration where she states:

    I strongly believe if this visa is denied, the children will attempt to make the treacherous journey across the Mediterranean. As of now the kids are losing faith in us as the case has prolonged. They have become demoralised and we fear that once they are out of care and influence of Ahmed they might become involved in the wrong crowd as many other children their age do. Ultimately, we would like them to be physically under our care. Mostly, I want to be a mother figure for them because this is what my sister wanted. In Somali culture, your mother’s sister is your second mother. I would like to fulfil the wishes of my deceased sister and I am helpful the Department can help me achieve this.   

13. The Tribunal accepts that the sponsor wishes to be a mother figure and provide care and support to her half-sister’s children and that she has concerns for their welfare and safety and the children may be uncertain about their future. There is little corroborative evidence before the Tribunal to verify the applicant’s mother is deceased and their father is missing or the applicant’s aren’t receiving adequate care and support from some source or they intend to make any treacherous journey across the Mediterranean or there are any genuine fears for their safety and wellbeing or involved in the wrong crowd. The Tribunal accepts that the applicant’s may be disappointed in not having their visa’s approved. The Tribunal accepts that the applicant’s sister’s whereabouts are unknown but there is little corroborative evidence before the Tribunal that they have been kidnapped and tortured. The Tribunal is not satisfied the circumstances described singularly or cumulatively are compassionate or compelling circumstances to waive the PIC 4020 requirements.

14. Based on the information provided, the Tribunal finds that the death and birth certificates provided to the Department with the visa application are fraudulent and the hospital records provided to the Tribunal are also fraudulent. Therefore the applicants have 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.

15. On the basis of the above, the applicants do not satisfy PIC 4020 for the purposes of cl.117.223.

    DECISION

16. The Tribunal affirms the decision not to grant the applicants Child (Migrant) (Class AH) visas.

    Russell Matheson
    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. 

    …