QUEE (MIGRATION)

[2018] AATA 1049

QUEE (MIGRATION) [2018] AATA 1049 (22 MARCH 2018)

CORRIGENDUM

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Prince Demba Bubakarr Quee

VISA APPLICANTS:  Master Prince William Quee
Master Francis William Quee

CASE NUMBER:  1701832

DIBP REFERENCE(S):  OSF 2015/046061, OSF2015/046062

MEMBER:Nicholas McGowan

DATE OF DECISION:  22 March 2018

DATE CORRIGENDUM

SIGNED:28 March 2018

PLACE OF DECISION:  Melbourne

AMENDMENT:  The following corrections are made to the decision:

The following sentence in Para 5 of the decision record has been deleted:

‘Currently the applicant’s husband is living in Iraq with the applicant and so is separated from his children who are Australian citizens usually resident in Australia and his other close relatives’.

Nicholas McGowan
Member

WRITTEN STATEMENT AND RECORD

Division:Migration & Refugee Division

Review Applicant:  Mr Prince Demba Bubakarr Quee

Visa Applicant:  Master Francis William Quee

Master Prince William Quee

AAT case number <> DIBP ref.:     1701832 <> BCC2015/046061

Member and place:Nicholas McGowan (Melbourne)

Visa refusal:  Child (Class CH) Child Subclass 101

CATCHWORDS
Migration – Bogus documentation submitted – Bona fide relationship – Positive DNA testing – Compassionate or compelling circumstances – Review applicant separated from his Australian citizen children and barred from participating in family life

LEGISLATION
Migration Regulations 1994, Schedule 2 cl 101.223 Schedule 4 Criteria 4020

Decision

1. Remit the visa applications with the direction that the public interest criteria (PIC) 4020(4) is met for the purposes of PIC 4020(1) and cl.101.223 relevantly.

   Consideration of claims and evidence

2. On 28 November 2016 the applicants were refused a permanent child visa to their father in Australia. The applicants were refused the visas because the Department of Immigration (‘department’) found they did not meet the public interest criteria 4020 because they provided bogus education records: PIC 4020(1).

3. On 22 March 2018, this Tribunal held a public hearing. At that hearing both the review applicants agent and the review applicant conceded to the Tribunal the document declared ‘bogus’ by the Department of Immigration was non-genuine. They provided an explanation which defers responsibility for the provision of the document, and denies having knowingly done so, nonetheless the legislation makes no distinction in those regards. Given these admissions, the question before the Tribunal is whether there is a compassionate or compelling circumstance to waive PIC 4020 in this case. Where relevant, the Tribunal may take into consideration any compelling circumstances that affect the interests of Australia, though this has not been claimed by the applicant, nor does the Tribunal believe such circumstances are present based on all the evidence before it.

4. The Tribunal has had no cause throughout its public and private enquiries to doubt the bona fides of the parties’ relationships (father and sons). In fact the DNA result undertaken by the parties confirms their claimed parentage.

5. Having considered all of the circumstances, however, the Tribunal believes the more relevant question in this case is whether the Tribunal is satisfied there are compassionate or compelling circumstances that affect the interests of an Australian citizen that justify the grant of the visa. In this regard the Tribunal is mindful of the Australian citizen’s interests, in addition to those of his immediate family in Australia.  Currently the applicant’s husband is living in Iraq with the applicant and so is separated from his children who are Australian citizens usually resident in Australia and his other close relatives.

6. For an Australian citizen to be required to be separated from his family indefinitely, particularly children, even adult children, obviously adversely affects that citizen’s interests.

7. Further, for his Australian children, as well as his new family, to be potentially permanently separated from his children and effectively barred from participating in the family life he will build, will in all likelihood have a significant impact on his their interests. The Tribunal believes that it is in the Australian communities interest that visas be granted to allow for family reunion and only be withheld where there are clear countervailing reasons. It can see no reason why this family should be forced to have their interests so significantly affected when it has long been recognised that uniting families is in the best interests of all Australians, not just the review applicant and his family. As well as their separation being a circumstance that compels the Tribunal to waive PIC 4020(1), the Tribunal also finds that stripping the Australian citizen of any hope of integrating his wife into the shared life of his new family is a compassionate circumstance that justifies the grant of the visa.

8. The Tribunal finds that there are compelling, and in fact compassionate, circumstances that affect the interests of Australian citizens that justify the grant of the visa. Accordingly, the applicant meets PIC 4020(4) for the purposes of PIC 4020(1), and cl.101.223 relevantly. Therefore, the application is remitted for the Minister to consider the remaining visa criteria.

   
   Statement made on 22 March 2018 at 4:17pm