Rajesh (Migration)

[2018] AATA 4635

Rajesh (Migration) [2018] AATA 4635 (14 August 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Natasha Shreya Rajesh

CASE NUMBER:  1808121

DIBP REFERENCE(S):  CLF2016/58436

MEMBER:Kira Raif

DATE:14 August 2018

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for a Child (Residence) (Class BT) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 802 (Child) visa:

·cl. 802.213 of Schedule 2 to the Regulations; and

·Public Interest Criterion 4020 for the purposes of cl.802.223 of Schedule 2 to the Regulations.

Statement made on 14 August 2018 at 4:49pm

CATCHWORDS

MIGRATION – Child (Residence) (Class BT) visa – Subclass 802 (Child) visa – Public Interest Criterion (PIC) 4020 – Requirements of PIC 4020(1) not met but waived – bogus documents/misleading information – adoptive parent – residence overseas was arranged for adoption purposes – decision under review remitted for reconsideration

LEGISLATION

Migration Act 1958, ss 5, 65

Migration Regulations 1994, Schedule 2, cls 802.212, 802.213, 802.216, 802.223, 802.226A

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 19 March 2018 to refuse to grant the applicant a Child (Residence) (Class BT) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant is a national of India born in July 2014. She applied for the visa on 27 September 2016. The delegate refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl.802.223 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the delegate was not satisfied the applicant met the Public Interest Criterion (PIC) 4020. The applicant seeks review of the delegate’s decision.

3. The applicant (through her father) appeared before the Tribunal on 14 August 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the child’s mother. The applicant was represented in relation to the review. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   Relevant law

4. At the time of application, the Child (Residence) (Class BT) visa contained Subclass 802 (Child) and Subclass 837 (Orphan Relative). In this case, claims have only been made in respect of Subclass 802 (Child). The criteria for a Subclass 802 visa are set out in Part 802 of Schedule 2 to the Migration Regulations 1994 (the Regulations). As there is no letter of support from a State or Territory government welfare authority (cl.802.216, 802.226A), the criteria to be met in this case include cl.802.213.

5. If the Australian citizen, permanent visa holder or eligible New Zealand citizen of whom the applicant must be a dependent child under cl.802.212(1) is an adoptive parent of the applicant, the applicant must have been under 18 when the adoption took place, and must meet one of a number of alternative requirements relating to the nature and circumstances of the adoption and the status of the adoptive parent at the time of application: cl.802.213.

6. Another issue in this review is whether the visa applicant meets Public Interest Criterion 4020 (PIC 4020) as required by cl.802.223 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).

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. 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.

    Adoption

11. The circumstances of the parent – child relationship in this case are set out below. When making the application, the applicant claimed to be a biological child of the sponsor but she subsequently advised the Department that she was adopted by the sponsor. An adoption order and various adoption papers were submitted with the application.

12. The Tribunal has considered the requirements of cl. 802.213.

13. There is no evidence that the adoption of the applicant was in accordance with the Adoption Convention and that an Adoption Compliance Certificate has been issued and is in force in relation to the adoption. The Tribunal is not satisfied the applicant meets cl. 802.213(2).

14. According to the primary decision and oral evidence before the Tribunal, the applicant’s parents obtained Australian permanent residency in 2012 while the adoption took place in December 2015. As the adoptive parents were Australian permanent residents at the time of adoption, the Tribunal is not satisfied the applicant meets cl. 802.213(3).

15. There is no evidence that Australia approved the adoptive parent and there is no evidence of adoption being approved by any Australian authority. The Tribunal is not satisfied the applicant meets cl. 802.213(4).

16. The applicant was adopted in India in December 2015. At the time of adoption, the parents were Australian permanent residents. The Tribunal finds that cl. 802.213(5)(a) is met. According to the primary decision record, the child’s mother had been living outside of Australia for over 500 days prior to adoption and the requirements of cl. 802.213(5)(b)(i) are met. The delegate was also satisfied that as a result of adoption, the adoptive parents had lawfully acquired full and permanent parental rights. The requirements of cl. 802.213(5)(d) are met.

17. The delegate was not satisfied the applicant met cl. 802.213(5)(c). In response to the information request from the delegate, the sponsor wrote to the Department outlining the circumstances of the adoption. The sponsor referred to the long waiting periods for adoption and other onerous requirements. The sponsor stated that for these reasons, they decided that his wife would stay in India to pursue the adoption and supervise their son’s study while he remained in Australia due to employment commitments. The delegate quotes information from the Indian Adoption Authorities which indicates that the Indian adoption laws requiring an Indian national to be residing in India for at least 12 months. The delegate concluded that the mother’s residence in India was arranged purely to enable the family to adopt the applicant.

18. The delegate also noted that the family did not disclose the child’s adoption in the present visa application or in the child’s earlier Visitor visa application, finding that the parents had deliberately provided incorrect information to circumvent the Australian laws. With respect to that finding, the Tribunal notes that cl. 802.213(50(c) refers to overseas residence to circumvent the laws, rather than the provision of false or misleading information, which is not relevant for the purpose of this provision.

19. In oral evidence to the Tribunal the sponsor explained that they planned to adopt the child since he and his wife married. They gained permanent residence in 2012 and started the adoption process around 2012 or 2013. At the time it was a deregulated process. They approached the local agency and the application was registered. When the agency visited their home, they only saw the grandparents but not the parents and it was mandatory for a parent to be present, so they made the decision that one of the parents had to be present in India. His wife returned to India with their son while he stayed in Australia due to work commitments. When his wife was in India, the agency did some home studies. In 2014 the adoption process was taken over federally by the Central Adoption Authority. In 2015 they met their daughter, who was an abandoned child and they started the process, which included getting birth certificate and other papers. When they first saw the child, the sister in charge arranged hearings before a tribunal and the Adoption Authority. The agency checked the parents’ health and finances and once the process was approved, they were able to take the child. They were able to get the adoption deeds and later on, the court order and the birth certificate.

20. The child’s parents told the Tribunal that one of the reasons they moved to India was because their son had asthma when he was living in Melbourne and also because they wanted the son to complete his schooling in India but they both state that the main reason for the residence in India was to meet the adoption requirements. The sponsor states that residence in India was required for the Adoption Agency to do home study and they did not know when the home study would be carried out. At the time they did not know anything about the Australian immigration laws and the arrangements to travel overseas was not for migration purposes but rather for adoption purposes. The sponsor states that their actions had nothing to do with entry to Australia but to meet the Indian adoption requirements. They did not make inquiries about the Australian visa processes for adopted children because they thought that once they had the birth certificate and the passport showing the child as their child, they could bring the child to Australia.

21. The delegate found that because the child’s mother lived in India for adoption purposes, such residence was arranged to circumvent the Australian immigration requirements. The Tribunal also finds that the residence overseas was arranged for adoption purposes and both parents admit that was the case. However, it does not follow that the residence was contrived to circumvent the Australian entry requirements. The Departmental policy provides that it is legitimate to arrange overseas residence to meet the adoption requirements. In the Tribunal’s view, distinction must be made between making arrangements for the purpose of adoption and making arrangements for the purpose of circumventing Australian entry requirements. In this case, the sponsor’s evidence is that they were unfamiliar with the Australian immigration requirements because they believed that once the child was adopted, she would be considered as their own child and would be allowed to enter Australia on that basis. The Tribunal accepts the parties’ evidence that the overseas residence was arranged to enable the parents to meet the Indian adoption requirements and to allow the adoption to take place. Such residence was not ‘contrived’ to circumvent the Australian entry requirements but rather arranged to meet the adoption requirements. The Tribunal is satisfied that the requirements of cl. 802.213(5)(c) are met.

22. The delegate was satisfied that all other requirements of cl. 802.213 are met. The applicant meets cl. 802.213.

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

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

24. The applicant provided a number of documents with her application concerning her birth and identity. These included the birth certificate issued in February 2016. The birth certificate refers to the applicant’s mother as Maria Saritha Pokish and the applicant’s father as Rajesh Kanna Ramasamy. The applicant included her passport which identifies her father as Rajesh Kanna Rasamamy and her mother as Maria Saritha Pokish. In response to Question 14 of Form 40CH which the applicant submitted with the application, the applicant stated that she is the natural child of the sponsor. The sponsor also stated in response to question 18 of Form 40CH that he has the sole right to determine where the applicant is to live.

25. In February 2017 the delegate wrote to the applicant noting that the applicant claimed to be a biological child of Rajesh Kanna Ramasamy and Maria Saritha Pokish but the Departmental records show that Ms Pokish was in Australia on the day the child was born in India. On 22 February 2017 the sponsor contacted the Department advising that the child was legally adopted. The sponsor said that they did not want their daughter to know about the adoption and did not want to disclose that information. The same information was given to the Tribunal in oral evidence by the child’s mother. The parents state that they did not intend to mislead. It is unclear to the Tribunal how disclosing information to the Department in relation to a visa application would inform a small child about her parents and about adoption, given that the child is unlikely to have any practical involvement with the application and the paperwork.

26. The sponsor provided various papers concerning the adoption. The sponsor outlined the reasons for, and the circumstances of the adoption. The Tribunal acknowledges that evidence but it is not in dispute that the child is an adopted child and not a biological child of her parents.

27. With respect to the child’s birth certificate, the sponsor explained to the Tribunal that under the Indian law, once the formal adoption takes place, the child is issued with a birth certificate identifying the adoptive parents as parents. He states that the birth certificate is a valid document issued by the Indian government. The sponsor states that he made a mistake when referring to the child as a natural child in the visa application forms and also in the earlier Visitor visa.

28. The Tribunal finds that the response to Question 14 of Form 40CH which refers to the applicant being a natural child of the sponsor contains information that is false or misleading. The child’s father also told the Tribunal that the child was identified as the natural child in her Visitor visa application forms and that visa was held in the 12 months before the present application was made. The Tribunal finds that the applicant has given, or caused to be given, information that was false or misleading in relation to the present visa application and in relation to the visa held in the 12 months before the application was made. In the Tribunal’s view, that information was relevant to determining whether the child was the child of the sponsor, for the purpose of cl. 802.212 and it was also relevant to Public Interest Criterion 4017. The Tribunal finds that the information was false or misleading in a material particular.

29. The Tribunal finds that there is evidence that the applicant has given, or caused to be given, to the Minister or an officer a ‘bogus document’, as defined in s.5(1) and also ‘information that is false or misleading in a material particular’ as defined in PIC 4020(5). The information was given in relation to the visa application. Therefore, the applicant does not meet PIC 4020(1).

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

30. 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.

31. 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.

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

33. The applicant’s father spoke to the Tribunal about their close-knit family. The applicant presented a psychological report and a character statement and the Tribunal accepts that evidence. The sponsor told the Tribunal that his children have now settled in Australia and both attend schools. They have nothing in India to return to. He referred to his son’s health concerns, saying that when he lived in India, he was very ill and had to be hospitalised. The sponsor stated that he does not want to live in India because he is afraid his sister in law will have an influence on his family. He also said he has never worked in India and it would be difficult to settle there.

34. The Tribunal accepts that the applicant’s parents and brother are Australian citizens or permanent residents and are usually resident in Australia. The Tribunal accepts that the family is a close-knit family and that there are strong connections among the family members. The sponsor provided to the Tribunal a variety of documents concerning the family’s settlement in Australia and the Tribunal accepts that it would be difficult for the family to relocate to a different country. The Tribunal also accepts that it may not be possible, and certainly not desirable, to separate the child from her parents and brother. The Tribunal is satisfied there are compassionate or compelling circumstances that affect the interests of Australian citizens and an Australian permanent resident that justify the granting of the visa. Therefore the requirements of PIC 4020(1) should be waived.

1. PIC 4020(2A) requires an applicant satisfy the Tribunal as to his or her identity. There is nothing to suggest that the applicant’s identity is at issue. The applicant meets PIC 4020(2A).

2. The Tribunal finds that the applicant meets PIC 4020 for the purposes of cl.802.223.

   DECISION

3. The Tribunal remits the application for a Child (Residence) (Class BT) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 802 (Child) visa:

   ·cl. 802.213 of Schedule 2 to the Regulations; and

   ·Public Interest Criterion 4020 for the purposes of cl.802.223 of Schedule 2 to the Regulations.

   Kira Raif
   Senior Member