Sahr (Migration) - [2021] AATA 1319

Sahr (Migration) [2021] AATA 1319 (19 March 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
REVIEW APPLICANT:  Ms Finda Sahr
VISA APPLICANTS:  Mr Jonah Samuel
Mr John Samuel
CASE NUMBER:  1828642
DIBP REFERENCE(S): CLF20178/356416 F2017/049763
MEMBER:Kira Raif
DATE:19 March 2021
PLACE OF DECISION:  Sydney
DECISION:The Tribunal remits the applications for Child (Migrant) (Class AH) visas for reconsideration, with the direction that the first named applicant meets the following criteria for Subclass 101 (Child) visas:
·Public Interest Criterion 4020 for the purposes of cl.101.223 of Schedule 2 to the Regulations.

Statement made on 19 March 2021 at 5:58pm
CATCHWORDS
MIGRATION – Child (Migrant) (Class AH) visa – Subclass 101 (Child) – false or misleading information – death certificate of claimed mother provided in previous visa application – adoptive parents – whether sponsor is biological mother of visa applicants – previous visa application not granted – PIC 4020 not applicable – waiver of requirement – separation of close family members – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 1.14A; Schedule 2, cl 101.223; 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

This is an application for review of a decision made by a delegate of the Minister for Immigration on 24 July 2018 to refuse to grant the applicants Child (Migrant) (Class AH) visas under s.65 of the Migration Act 1958 (the Act).
The visa applicants applied for the visas on 22 June 2017. The delegate refused to grant the visas on the basis that the first named applicant (the applicant) did not satisfy the requirements of cl.101.223 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the delegate was not satisfied the visa applicants met Public Interest Criterion (PIC) 4020. The sponsor (the review applicant) seeks review of the delegate’s decision.
The review applicant provided a written submission to the Tribunal on the late evening of 9 February 2021, the day before the scheduled hearing. The Tribunal considers such late submission of claims and evidence, merely hours before the hearing was due to commence, to be less than helpful and not in compliance with the Tribunal’s Practice directions. The applicant was represented by Mr Sabinus Robi of KAPRM Legal.
The review applicant appeared before the Tribunal on 10 February 2021 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Liberian English and English languages. The review applicant was represented in relation to the review by her registered migration agent. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
Relevant law
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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: Sahr (Migration) [2021] AATA 1319
Case: [2021] AATA 1319
Decision Date: 19 March 2021

CaseChat Overview and Summary

This matter concerned an appeal by the review applicant against a decision of the delegate of the Minister regarding a Child (Migrant) (Class AH) visa, subclass 101 (Child). The visa applicants claimed that Ms Finda Sahr was their biological mother, but provided no evidence to support this claim. In a previous visa application, the applicants had claimed their parents were deceased and provided a death certificate for their claimed mother, Finda Yollah. The delegate noted discrepancies, including birth certificates listing Finda Yollah as the mother and a death certificate for Finda Yollah not issued by the relevant authorities.

The primary legal issue before the court was whether the visa applicants had provided a bogus document or information that was false or misleading in a material particular, thereby engaging Public Interest Criterion (PIC) 4020. The court also considered whether the delegate had erred in not granting a waiver of this requirement.

The court reasoned that while PIC 4020 requires information to be false, it does not necessitate proof that the applicant was aware the information was deliberately untrue; however, an element of fraud or deception by some person is required for the provision to apply. The review applicant, Ms Sahr, explained that she was the biological mother who gave the children for adoption to her late aunt, Finda Yollah, under local customs. She stated that the children's grandmother, being illiterate and lacking advice, provided inaccurate information in the prior humanitarian visa application, including that the biological parents were deceased instead of the adoptive parents. Ms Sahr asserted that she re-established contact in 2013 and wished to be reunited with her children, who were already permanent residents in Australia with their siblings.

The court found that the delegate had erred in their assessment and remitted the decision to the Tribunal for reconsideration, allowing for the possibility of a waiver of PIC 4020 and further consideration of the separation of close family members.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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.Primary decision The review applicant provided to the Tribunal a copy of the primary decision record which contains the following information. The visa applicants stated when making the application that the sponsor Ms Finda Sahr was their biological mother but provided no evidence of the relationship. The primary decision record indicates that the visa applicants had previously applied for a Refugee and Humanitarian visa in Class XB in November 2011. In that application they claimed that their parents were deceased. The visa applicants provided a death certificate relating to their claimed mother Finda Yollah. The delegate wrote to the visa applicants seeking their comments on the above information and the waiver of PIC 4020. In their response, the visa applicants explained that Finda Yollah is their biological mother who had given them to a relative for adoption as she could not afford to look after them. After adoption, she did not consider them as her own children. The visa applicants explained that they were proposed for the Humanitarian visa by their grandmother but that information was not given to the sponsor. Since her arrival in Australia in 2013, the sponsor has been supporting the children financially. The visa applicants stated that their grandmother was illiterate and had no professional advice, so she gave incorrect information, including that the children’s parents were deceased, instead of stating that the adoptive parents were dead. It is stated that the adoptive mother Finda Yollah had passed away and her death certificate was legally obtained. The delegate found, however, that the visa applicants provided birth certificates listing Finda Yollah and Samuel Sahr as parents and that birth certificate was issued at the time of birth. The delegate noted that the applicants claim Finda Sahr to be their biological mother, which would indicate that the birth certificates listing Finda Yollah as the biological mother were bogus documents. The delegate also noted that the birth and death certificates for Finda Yollah had not been issued by the relevant authorities in Guinea. Have the applicants given, or caused to be given a bogus document, or information that is false or misleading in material particular? In her submission to the Tribunal of 9 February 2021 the review applicant states that she is the biological mother of the visa applicants and gave them away after birth to her late aunt Finda Yollah, in accordance with Kisi adoption customs. Having given them away for traditional adoption, she did not consider them as her children. The review applicant states that the children’s grandmother proposed them for a humanitarian visa in 2010 and provided inaccurate information in the application due to her illiteracy and lack of professional advice. She stated that the children’s biological parents, rather than adoptive parents, were deceased. The review applicant states that she had no contact with the children until 2013 when she re-established contact and provided support to them. The review applicant submits that she wants to be reunited with her children and her children in Australia need to be reunited with their siblings. She and her Australian children are permanent residents in Australia. The review applicant states that it is unsafe for the children to live in Guinea. The review applicant provided to the Tribunal evidence of the children’s schooling and of financial transfers.

Ratio Decidendi

Legal Principle Established

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