Sesay (Migration) - [2024] AATA 1090

Sesay (Migration) [2024] AATA 1090 (27 March 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REVIEW APPLICANT:  Miss Makoya K Sesay
VISA APPLICANTS:  Mr Jomah Sesay (1)
Ms Majaka Sesay (2)
Master Moriba Sesay (3)
REPRESENTATIVE:  Ms Anna Wood – Refugee Legal
CASE NUMBER:  2319349
HOME AFFAIRS REFERENCE(S):          2019022321
MEMBER:Peter Emmerton
DATE:27 March 2024
PLACE OF DECISION:  Adelaide
DECISION:The Tribunal remits the applications for Child (Migrant) (Class AH) visas for reconsideration, with the direction that the first (1) and second (2) named applicant meets the following criteria for Subclass 117 (Orphan Relative) visas:
·Public Interest Criterion 4020 for the purposes of cl 117.223 of Schedule 2 to the Regulations
The Tribunal remits the applications for Child (Migrant) (Class AH) visas for reconsideration, with the direction that the third (3) named applicant/ secondary applicant meets the following criteria for Subclass 117 (Orphan Relative) visas:
·Public Interest Criterion 4020 for the purposes of cl 117.321 of Schedule 2 to the Regulations

Statement made on 27 March 2024 at 11:08am
CATCHWORDS
MIGRATION – Child (Migrant) (Class AH) visa – Subclass 117 (Orphan relative) – false or misleading information – applicant’s claim that her mother is deceased – social media activity – inconclusive evidence – waiver of requirement – compassionate or compelling circumstances that affect the interests of an Australian citizen – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cls 117.223, 117.321; 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 Home Affairs on 15 November 2023 to refuse to grant the applicants Child (Migrant) (Class AH) visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants applied for the visas on 20 September 2018. The delegate refused to grant the visas on the basis that the first named applicant (the applicant) did not satisfy the requirements of cl 117.223 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) because they were not satisfied the requirements of PIC 4020 were met.
The review applicant was represented in relation to the review.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this review is whether the visa applicant meets Public Interest Criterion 4020 (PIC 4020) as required by cl 117.223 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…

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.

Continue reading Sesay (Migration)

Details

AGLC: Sesay (Migration) [2024] AATA 1090
Case: [2024] AATA 1090
Decision Date: 27 March 2024

CaseChat Overview and Summary

This matter concerned an application for a Child (Migrant) (Class AH) visa, Subclass 117 (Orphan Relative). The applicant's claim that her mother was deceased was questioned due to social media activity, leading to inconclusive evidence. The decision under review was made by the Tribunal, presided over by Member Peter Emmerton.

The central legal issue before the Tribunal was whether the visa applicant met Public Interest Criterion (PIC) 4020, a mandatory requirement for the grant of the Subclass 117 visa. This criterion encompasses several sub-requirements, including the absence of bogus documents or false or misleading information provided in relation to the visa application or a previous visa, and the applicant satisfying the Minister as to their identity. The Tribunal also considered the possibility of waiving certain PIC 4020 requirements under compelling or compassionate circumstances affecting the interests of an Australian citizen.

The Tribunal reasoned that the applicant did satisfy PIC 4020 for the purposes of the visa application. While the text details the various components of PIC 4020, including definitions of "bogus document" and "information that is false or misleading in a material particular," and the conditions for waiver, it ultimately concludes that the applicant meets the criterion. The Tribunal did not elaborate on the specific evidence that led to this conclusion, nor did it detail the social media activity or the reasons for the initial doubt.

Consequently, the Tribunal remitted the applications for Child (Migrant) (Class AH) visas for reconsideration. The direction was that the first and second named applicants meet PIC 4020 for the purposes of cl 117.223 of Schedule 2 to the Migration Regulations 1994, and the third named applicant/secondary applicant meets PIC 4020 for the purposes of cl 117.321 of Schedule 2 to the Regulations.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.CONSIDERATION OF CLAIMS AND EVIDENCE The issue in this review is whether the visa applicant meets Public Interest Criterion 4020 (PIC 4020) as required by cl 117.223 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). 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.Has the applicant given, or caused to be given a bogus document, or information that is false or misleading in material particular? 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. 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.

Decision

Reasons for decision

On the basis of the above, the applicant does satisfy PIC 4020 for the purposes of cl 117.223 of Schedule 2 to the Migration Regulations 1994 (Cth).DECISION The Tribunal remits the applications for Child (Migrant) (Class AH) visas for reconsideration, with the direction that the first (1) and second (2) named applicant meets the following criteria for Subclass 117 (Orphan Relative) visas:·Public Interest Criterion 4020 for the purposes of cl 117.223 of Schedule 2 to the Regulations The Tribunal remits the applications for Child (Migrant) (Class AH) visas for reconsideration, with the direction that the third (3) named applicant/ secondary applicant meets the following criteria for Subclass 117 (Orphan Relative) visas:·Public Interest Criterion 4020 for the purposes of cl 117.321 of Schedule 2 to the Regulations Peter EmmertonMemberATTACHMENTMigration Regulations 1994Schedule 44020(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 1958s 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.…

Ratio Decidendi

Legal Principle Established

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