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

1. 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).

2. 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.

3. 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.

4. 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

5. 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 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).

6. 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).

7. 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.

8. 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.

9. 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

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

11. 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.

12. 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.

13. 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?

14. 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.

15. In oral evidence, the review applicant confirmed that she had given birth to the children. She had five children and could not look after the children during the war so she gave them away for adoption and had no control over them. The review applicant could not explain why the birth certificates provided in the previous application showed another person’s name as the children’s mother, stating she was not involved in that application. The review applicant claims that she had given the children for adoption at the time of birth and no longer considered them to be her children.

16. The Tribunal invited the review applicant and visa applicants to undertake DNA testing to confirm the relationship. On 19 March 2021 the Tribunal received the results of the DNA tests which confirm that the visa applicants are the biological children of the sponsor. As such, the Tribunal accepts that the visa applicants are the children of the sponsor, irrespective of what was claimed in the previous application. Importantly, for the purpose of PIC 4020, the Tribunal notes that the visa applicants had not been granted the Humanitarian visas and did not hold such visas in the 12 months before the present application was made. As such, any provision of bogus documents in that application (such as the children’s birth  certificates listing a different person as their mother) and any false or misleading claims made in that application concerning the children’s parentage, do not give rise to the operation of PIC 4020.

17. The review applicant told the Tribunal that there was no formal adoption because it occurred during the war and the adoptive mother was her aunt. The review applicant said that it was not possible to go through formal adoption as she was living in a refugee camp. There is no evidence of any formal adoption between the visa applicants and the adoptive parents and the Tribunal finds that, at best, there was customary adoption. Relevantly, r. 1.14A confirms that with customary adoption, a parent – child relationship need not cease. As such, the Tribunal finds, for the purpose of PIC 4020, that the visa applicants were sponsored by their mother and that they are the children of the sponsor.

18. In the present application the visa applicants claimed to be the children of the sponsor. The delegate found that they had previously claimed to be the children of another person and provided birth certificates showing another person as their mother and subsequently a death certificate for her, which the delegate considered may have been a bogus document. Given the results of the DNA test, the Tribunal acknowledges that these documents were likely bogus documents and the parentage claims false or misleading but as noted above, these were given in relation to a previous visa application and the visas were never granted and never held by the visa applicants, so that PIC 4020 does not apply to the provision of bogus documents and false or misleading information in an earlier application. It is not apparent from the primary decision record that any bogus document or false or misleading information had been provided in relation to the present application and in such circumstances, PIC 4020 would not apply in this case.

19. The Tribunal is not satisfied there is evidence that the visa applicants had given, or caused to be given, to the Minister, an officer, the Tribunal, a relevant assessing authority or a Medical Officer of the Commonwealth, a ‘bogus document’, or false or misleading information. Therefore, the applicants meet PIC 4020(1).

20. However, if the Tribunal is wrong in this finding and if the visa applicants did provide false or misleading information or bogus documents in relation to the present application, the Tribunal would exercise the waiver in favour of the visa applicants, for the reasons set out below.

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

21. PIC 4020(2) requires the Tribunal to be satisfied that the applicant 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). 

22. There is no evidence that the visa applicants had previously been refused visas for a failure to satisfy PIC 4020. Therefore, PIC 4020(2) does not apply.

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

23. 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.

24. 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.

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

26. The review applicant provided a submission to the Tribunal on 17 March 2021 in which she repeated the oral evidence concerning the circumstances in which the children were given away at birth, and also providing a list of the visa applicants’ Australian relatives. The Tribunal accepts that that visa applicants have several relatives who are Australian citizens or permanent residents, including their mother, the sponsor, siblings, aunts, uncles and cousins. While minimal evidence concerning their circumstances has been provided to the Tribunal, the Tribunal acknowledges that if the waiver is not applied, it would lead to the separation of the sponsor from her biological children. The Tribunal accepts that she has re-established and maintained a relationship with them for about eight years and had provided the children with financial and emotional support in this period. The Tribunal also accepts that unless the waiver is applied, it would lead to the separation of the visa applicants from their siblings in Australia. The Tribunal acknowledges the visa applicants’ difficult circumstances as they live as refugees and are cared for by a distant relative and the continuation of such circumstances may cause emotional hardship to the Australian relative. Overall, the Tribunal considers that such separation of close family members, particularly having regard to the visa applicants’ circumstances, constitute compassionate circumstances that affect the interest of Australian citizens or permanent residents, that justify the grant of the visa.

27. Therefore, the requirements of PIC 4020(1) should be waived.

    Have the applicants satisfied the identity requirements?

28. PIC 4020(2A) requires an applicant satisfy the Tribunal as to his or her identity. There is no suggestion that the visa applicants’ identities are at issue. Therefore, the applicants meet PIC 4020(2A).

    Has a visa previously been refused on the basis of a failure to satisfy PIC 4020(2A)?

29. PIC 4020(2B) requires that neither the applicant nor any family unit member have been refused a visa because of a failure to satisfy the identity requirements in PIC 4020(2A) during the period starting 10 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(2BA).

30. There is no evidence that the visa applicants had previously been refused visas on the basis of a failure to satisfy PIC 4020.Therefore PIC 4020(2B) does not apply.

    Conclusion

31. On the basis of the above, the applicants satisfy PIC 4020 for the purposes of cl.101.223.

    DECISION

32. 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.

    Kira Raif
    Senior Member