Mokonen (Migration)

[2021] AATA 1924

Mokonen (Migration) [2021] AATA 1924 (28 April 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Tsega Agegnehu Mokonen

VISA APPLICANTS:  Miss Meheret Getachew Yeshmaw
Ms Meseret Getachew Yeshmaw

CASE NUMBER:  1723692

HOME AFFAIRS REFERENCE(S):          OSF2015075562

MEMBER:John Longo

DATE:28 April 2021

PLACE OF DECISION:  Melbourne

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

Statement made on 28 April 2021 at 12:15pm

CATCHWORDS
MIGRATION – Child (Migrant) (Class AH) visa – Subclass 117 (Orphan relative) – bogus document – death certificates of parents – waiver of requirement ­– compassionate or compelling circumstances – separation between the review applicant and the visa applicants – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cls 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
Mudiyanselage v MIAC [2013] FCA 266
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 and Border Protection on 3 August 2017 to refuse to grant the visa applicants (the applicants) Child (Migrant) (Class AH) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants applied for the visas on 12 October 2015. At that time, Class AH contained three subclasses: Subclass 101 (Child), Subclass 102 (Adoption) and Subclass 117 (Orphan Relative). In this case, claims have been made by the applicants in respect of the Subclass 117 visa. The criteria for a Subclass 117 visa are set out in Part 117 of Schedule 2 to the Migration Regulations 1994 (the Regulations).

3. The delegate refused to grant the visas on the basis that the applicants did not satisfy the requirements of cl 117.223 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) because the delegate found that the applicants did not meet public interest criterion (PIC) 4020. The sponsor (the review applicant) seeks review of the delegate’s decision.

4. The review applicant appeared before the Tribunal on 16 April 2021 to give evidence and present arguments. The Tribunal also received oral evidence from the applicants. The Tribunal hearing was conducted with the assistance of an interpreter in the Amharic and English languages. The Tribunal exercised its discretion to hold the hearing by video hearing. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by video, having regard to the nature of this matter and the individual circumstances of the applicants. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by video. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The issue in this review is whether the visa applicants meet PIC 4020 as required by cl 117.223 for the grant of the visas. Broadly speaking, this requires that:

   ·there is no evidence that 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 in relation to the application for the visa or a visa that the applicants held in the 12 months before the application was made: PIC 4020(1); and

   ·the applicants and each member of the family unit have 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 applicants satisfy the Minister as to their identity: PIC 4020(2A); and

   ·neither the applicants nor any family unit members have 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 applicants were 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.

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

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 applicants: PIC 4020(3). It also applies whether or not the document or information was provided by the applicants 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 applicants were 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.

11. The review applicant provided to the Tribunal a copy of the primary decision record. It indicates that the visa applicants, who are the review applicant’s nieces, claimed in their visa applications that they were orphan relatives and that both of their parents were deceased. In support of that claim, the visa applicants provided with their applications death certificates for their mother and father, both dated 10 August 2015, and issued by the City Government of Addis Ababa.

12. Department staff sought verification of the death records. On 15 June 2016 the Department received advice that two death certificates relating to the applicants’ parents were found to be fraudulent and not registered. The delegate wrote to the applicants on 27 June 2017 seeking their comments on the above information. The applicants replied (through the sponsor) stating, essentially, that they believed the documents to be genuine and they attached documentation from Addis Ababa City Government, Kolfe Keranyo Sub City Woreda 12, Vital Statistics Registration Service.

13. In oral evidence to the Tribunal the review applicant said that she provided the death certificates to the Department and that they were obtained by her nieces who went to the city council and applied for the certificates. They also provided further evidence – Yenege Tesfa Self Helping Edir – which was obtained for the purpose of applying for the death certificates. The review applicant also stated that she provided a letter with three witnesses confirming the deaths of the parents and this was provided to the Department. The review applicant stated that she was not present when her sister died.

14. The review applicant provided to the Tribunal copies of a decision record from the Federal First Instance Court of the Federal Democratic Republic of Ethiopia establishing both visa applicants’ orphan relative status. The review applicant confirmed that this information was obtained in 2018 and not provided to the Department. The Tribunal acknowledges that evidence but the issue before the Tribunal is not whether the visa applicants are orphan relatives but whether they meet PIC 4020. The Tribunal had not sought to verify these documents because, even if they were found to be genuine and even if it is established that both the visa applicants’ parents had died, it would not assist the applicants in relation to the issue at hand. If it is determined that the earlier submitted documents were bogus documents and that the applicants have given or caused to be given the bogus document, PIC 4020 would be engaged irrespective of the authenticity, or otherwise, of the newly submitted documents (Mudiyanselage v MIAC [2013] FCA 266).

15. The review applicant’s evidence at hearing was that the death certificates were properly obtained. However, the information in the Department’s decision record indicates that the verification of these documents showed that there were discrepancies with the documents, that the signature did not record the name of the issuing officer and that the signature did not belong to anyone from their office and were determined to be counterfeit and fraudulent. The review applicant stated at hearing that when the Department asked them to comment on this matter, she responded by providing another letter with witnesses which was sent to the Department in support of the certificates.

16. The Department information stated that the death certificates were verified at the office where they were issued and that they advised that the documents were counterfeit due to the reasons described above. While the review applicant stated that the death certificates were properly obtained, they were not obtained by the review applicant and there is no evidence to verify their authenticity. The Tribunal accepts the Department’s evidence that the death certificates were counterfeit, as they have verified the documents with the issuing authority. Having regard to the information before the Tribunal, the Tribunal finds that the death certificates which the visa applicants presented with their visa applications were bogus documents because they were counterfeit or have been altered by a person who does not have authority to do so.

17. The Tribunal finds that the visa applicants have given, or caused to be given, to the Minister or an office, a bogus document which contained purposefully false or misleading information, within the meaning of s. 5 of the Act. The Tribunal finds that the visa applicants do not meet PIC 4020(1).

    Has a visa previously been refused on the basis of a failure to satisfy PIC 4020(1)?

18. PIC 4020(2) requires the Tribunal to be satisfied that the applicants and each member of the family unit have not been refused a visa because of a failure to satisfy PIC 4020(1) in the period commencing 3 years before the application was made and ending when the visa is granted or refused. This requirement does not apply to a person who was under 18 at the time the application for the refused visa was made: PIC 4020(2AA). There is no evidence that the visa applicants have been refused a visa on the basis of a failure to satisfy PIC 4020(1) and therefore PIC 4020(2) would appear to be met.

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

19. 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 reg 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.

20. 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.

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

22. The review applicant did not make any submissions to the Tribunal that there are compelling circumstances that affect the interests of Australia. The review applicant gave oral evidence that the refusal to grant the applicants a visa would affect her as she is required to support her family here as well as provide support to the applicants in Ethiopia. Providing this support has caused her considerable stress and affects her ability to focus as she is constantly worried about both applicants’ safety and circumstances. She believes that the stress associated with worrying for the applicants will affect her ability to look after her children in Australia.

23. She stated that she has provided financial assistance to the applicants, who are living with the review applicant’s sister (their aunt), with whom she left some funds when she was last in Ethiopia in March 2020. Due to her own circumstances, as only her husband is working here, she does not think she can provide further financial support. She has just given birth and would like the applicants in Australia for the baptism.

24. The applicants stated that they are very stressed by their circumstances and the stress that is being caused to the review applicant. They just wish to be in Australia where they can be safe and supported.

25. The Tribunal has had regard to the Department’s policy in considering the waiver. While the Tribunal acknowledges that there would be an emotional and physical affect of the review applicant’s separation from the visa applicants, the Tribunal has determined that these impacts on the review applicant and the visa applicants are not compelling or compassionate circumstances that lend themselves to the exercise of the waiver to justify the grant of the visas. It is inherent in this type of visa application that an element of potential separation exists between the review applicant and the visa applicants and that this separation would cause stress to both parties. However, the Tribunal does not consider that this is a compelling or compassionate circumstance that affects the interests of an Australian citizen such to justify the grant of the visas.

26. The Tribunal is satisfied that the review applicant has provided financial support to the applicants, but does not find this is a compelling or compassionate circumstance. The applicants are young adults and are living with their aunt in Ethiopia and there is no evidence, apart from the review applicant’s oral evidence to the Tribunal, that the applicants are not receiving support from their aunt. The Tribunal finds the review applicant’s desire to assist her nieces migrate to Australia is understandable, but does not find these circumstances compassionate or compelling such as to justify the grant of the visas.

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

28. On the basis of the above, the applicants do not satisfy PIC 4020 for the purposes of cl 117.223. There have been no claims advanced in respect of the other visa subclasses in Class AH.

    DECISION

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

    John Longo
    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.

    …