Sesay (Migration)

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 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.
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.
The Tribunal notes the following statement made by the delegate in their most recent decision dated 15 November 2023 which is the subject of this review. ‘This application was refused on 14 October 2020 under clause 117.211. One of the reasons for refusal was the Department was not satisfied the applicant's mother is deceased. This decision was appealed at the Administrative Appeals Tribunal (AAT). On 14 March 2023 the AAT remitted this decision on the basis the AAT was satisfied the applicant met clause 117.211.
‘In assessing the application after the AAT decision a number of addition checks were completed, including open source checks (internet), to esstablish that the applicant's claims and evidence are consistent and genuine. These checks have identified information that contradicts the applicants claims her mother is deceased.’
In summary the delegate concluded that the status of the applicant’s may be false based upon social media and associated family members friends lists on social media. In addition, they make assertions that similarity of family members names suggests the applicant claims that a number of her siblings are missing and whereabouts are unknown indicates the provision of false information and misleading information.
The delegate found that posts made on the applicant’s mothers social media site indicate that she had not passed away and was therefore still alive. They claimed from the information located stated below, she is still alive.
·Various Social Media posts reveal Jomah referring to a picture ofMawata Talawalay and Makaka Sesay in which he states 'lifelong mom'.
·Various social media posts indicate the applicant's mother was present in photographs posted in 2020, 2021 and 2022 which indicate she is alive and not deceased as claimed.
·On 8 May 2021 Jomah posted 'Happy mother's day to my beloved mum's God give you long life'
·The applicant a posted a photo on 7 October 2020 wishing her parents a blessed Eid. She also posted on 17 June 2022 in which Jomah and Makoya also commented
·Posts have continued on the applicant's mother's social media page after her claimed death with the last update being made in October 2020.
·The applicant's mother's social media page is still active and has a friends list which includes the applicant, Makoya Sesay, Jomah Sesay, and Seleke Trawally.
The Tribunal finds the evidence inconclusive. The similarity of names and the well-known tradition of repurposing names to indicate familial relationships or respect for venerable individuals, does cause a level of confusion and uncertainty for society members not of that social structure where the tradition is strong. This makes it very challenging to reliably determine family lineage and it can be made even more challenging as names are frequently altered in their spelling for the same person. The Tribunal does not believe conclusive evidence has been presented and therefore views the statements made by the delegate quoted in paragraph 11 of this decision as supposition based upon their assessment of incomplete evidence. It places little weight on these conclusions.
The Tribunal notes the statement made by the applicant on 12 October 2023, in their response to the Department’s assertion of false information.
‘Whereabouts of my family members
Unfortunately, I have never met nor have known any of my missing family members. I was not yet born when my family had to flee Liberia in 1990. Until today we do not know their whereabouts nor do we know whether they are still alive
Although I have Facebook friends with the same family name as my father (SESAY) or mother (TRAVALLY) it does not mean that I know them personally, nor does it mean that they are blood relatives.
I want to emphasize that there are many people in my community who have similar names; making any assumptions based solely on names is highly unreliable.’
Based upon its past experiences, the Tribunal finds the explanation offered by the applicant to be plausible and reasonable.
In relation to the conclusion the applicant’s mother is still alive based on activity on her social media and other associated individual’s social media is inconclusive and somewhat tenuous. The Tribunal is extremely cautious when considering purported evidence on social media. It can be, and often is, manipulated or misinterpreted by individuals for purposes other than intended in the original data entered. This can be done both in innocence and misinterpretation due to the lack of full contextualisation or for nefarious purposes. This data and messaging are almost completely beyond reliable control or accurate verification once published.
The Tribunal is experienced in and has observed the ongoing use of social media accounts of deceased individuals, particularly at times of importance such as Birthdays, Mother’s Day or important religious or societal observances. Photographs are often placed on the deceased individual’s site as well as the sites of significant individuals associated with them such as family and friends. Such photographs often show gatherings of significance or happier times. If they include the deceased person, they refer to a time prior to their death. It is rarely possible to accurately determine the exact time and date they were taken unless meta data is provided. This does not indicate they are alive but acts as a memorialisation of their previous existence. The Tribunal is aware that had the individuals concerned wished, they could have removed them before the visa decisions.
The Tribunal is not satisfied that the applicant’s mother is still alive based upon the social media account activity. It accepts as reasonable the assertions made by the applicant as to how and why her mother’s social media was accessed, and posts were made. The Tribunal places some weight on the statement quoted below regarding a post of a photograph including both parents claimed by her to be deceased. The Tribunal observes the delegate chose to refer to the mother’s image only and did not comment upon the deceased father’s image. It additionally notes that meta data has not been provided in relation to any of the entries under scrutiny by the Department. This renders them unreliable and unverifiable. Therefore, the Tribunal does not place substantial weight on the associated images or statements placed on social media.
The Tribunal notes the following statement made by the applicant. ‘I have shared a particular image on numerous occasions, which is a digital collage commemorating Fid and featuring both my mother and father. Although Fid is a time of celebration and joy, it can also evoke a sense of sorrow for those who remember past happy moments with departed loved ones, so I took it as an opportunity to celebrate and remember both my deceased parents
I'd like to emphasize that it's a common practice for individuals to share historical photos on Facebook. The posts made by my brother and me in 2020, 2021, and 2022 all featured historical pictures of my mother’
The Tribunal is satisfied that there is not sufficient credible evidence to conclude that the applicants have given, or caused to be given a bogus document, or information that is false or misleading in a ‘material particular’.
Therefore, the applicants meet PIC 4020(1).
Should the requirements of PIC 4020(1) and (2) be waived?
Whilst it is not necessary as the Tribunal has already determined the applicants meets PIC 4020(1), it has for completeness turned its mind to the issue of compelling and compassionate circumstances and whether the requirements of PIC 4020(1) or (2) should be waived had it not already decided PIC 4020(1) was met.
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 reg 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.
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.
For the following reasons, the Tribunal is satisfied that the requirements should be waived had they not already decided PIC 4020(1) was met.
The Tribunal has determined there are compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident. That is in relation to the review applicant / sponsor, Ms Makoya K Sesay and her children.
The Tribunal notes and quotes the submission made to the delegate which was subsequently quoted in the delegate’s decision as stated below.
‘The Australian sponsor, Makoya SESAY (Ms Sesay), shares a biological sibling relationship with both the applicants, Jomah SESAY and Majaka SESAY. Ms Sesay and her six children are all Australian citizens. Upon learning of the visa application rejection in November 2021, the subsequent Tribunal hearing, the remitting of the decision, and the PIC 4020 request has added to her distress and significantly impacted her mental health.
Each day, the visa grant is prolonged, Ms Sesay bears the weight of concern, agonising over the well-being of her family members in Guinea. The visa's approval is imperative to end the prolonged separation and alleviate the distress suffered by Ms Sesay and her family in Guinea.
Her fears are well founded as recent protests in Conakry and other towns in Guinea have turned violent, resulting in several death and injuries. According to the Smart Traveller website for the Australian Government Department of Foreign Affairs and Trade (DFAT), 'there are heightened political and social tensions in Conakry, with the potential for the situation to deteriorate without warning? There are many other sources that corroborate this information. Her family have previously had to move due to safety concerns.
Moreover, Ms Sesay endured the loss of her spouse in May 2021. Tragically, her husband, Varlee Jardu, lost his life in a workplace accident. His sudden death has left Ms Sesay without her husband, companion, and the primary source of emotional and financial support. She faces a lack of both social and familial support. She is in dire need of her family's presence in Australia as she now shoulders the responsibility of raising six children all on her own.
The combination of Ms Sesay grieving her husband's death, the stress of widowhood and shouldering the sole responsibility of raising her six children as well as the uncertainty of the visa process has further deteriorated her mental health since the refusal letter.
Ms Sesay has sought counselling at STTARS, reporting anxiety, sadness, appetite loss, sleep problems, and intrusive thoughts related to her siblings' hardships in Guinea. The letter from STTARS confirm her ongoing mental health issues. Her counsellor believes reuniting with her siblings in Australia would immediately contribute to her and her children's wellbeing and development. Ongoing visa uncertainty and safety concerns will continue to impede her improvement and recovery.’
Unlike the delegate, the Tribunal has been significantly moved to a state of compelling compassion when considering the totality of the applicant’s plight and current circumstances. It is unsurprising to the Tribunal the applicant is distressed by the uncertain state of her family living in dangerous circumstances, in a state of poverty, separated from herself and her children. It is to be expected that her mental health has been affected and it is unreasonable to believe that without substantial and meaningful changes to the circumstances, it is likely to improve. The following is also noted.
‘According to the Smart Traveller website for the Australian Government Department of Foreign Affairs and Trade (DFAT), 'there are heightened political and social tensions in Conakry, with the potential for the situation to deteriorate without warning.’
This would reasonably be expected to place further negative pressure upon the review applicant’s mental health.
The verified death of her husband in May 2021 from a work-place accident, leaving her financially and emotionally unsupported whilst raising 6 children elicits substantial feelings of compassion which the Tribunal finds to be compelling. The Report provided by STTARS further compels the Tribunal to a point of compassion as it is clearly substantiated that her mental health is poor and exacerbated as a tragically newly widowed person by having to care for 6 children on her own, emotionally, financially and logistically. Having her family to support her might reasonably be expected to assist both her and her children.
Having considered all the factors referred to in paragraphs 22-34, the Tribunal finds itself compelled by the circumstances and the compassion subsequently enlivened for the sponsor and her 6 children, all of whom are Australian citizens. For clarity the Tribunal refers to preceding paragraphs and again acknowledges it has been satisfied that the requirements of PIC 4020(1) have been met which makes a subsequent determination on the requirements of PIC 4020(1) or (2) being waived unnecessary but appropriate so as to ensure a complete understanding of the circumstances presented in this case.
Has a visa previously been refused on the basis of a failure to satisfy PIC 4020(1)?
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).

The Tribunal has no evidence before it that the applicant or any member of the family unit (as defined in reg 1.12) have been refused a visa in the relevant period because of a failure to satisfy PIC 4020(1)
Therefore, PIC 4020(2) is met.
Has the applicant satisfied the identity requirements?
PIC 4020(2A) requires an applicant satisfy the Tribunal as to his or her identity.
In Australia, the National Identity Proofing Guidelines, established by the Attorney-General’s Department, defines identity as “... some combination of characteristics or attributes that allow a person to be uniquely distinguished from others within a specific context”. The Department of Home Affairs (the Department) relies on a system that establishes a migrant’s identity by exploring the ‘three pillars of identity’, regardless of whether they are applying for protection or more regular migration pathways. The three pillars are: biometrics (physical attributes); documentation; and narrative. The narrative pillar comprises both objective data points such as nationality and ethnicity and subjective material including family composition, schooling, employment and training, or travel history.
The Tribunal having reviewed the visa applicants Passport photographs and details in conjunction with the verified relevant life and work history, has concluded that the identity of the visa applicants is as asserted by them. The Tribunal does not have any evidence before it to demonstrate a different conclusion is warranted. It notes the Department has not proffered any evidence challenging the identity of the applicant.
Therefore, the applicant meets PIC 4020(2A).
Has a visa previously been refused on the basis of a failure to satisfy PIC 4020(2A)?
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).
There is no evidence before the Tribunal that 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. Therefore PIC 4020(2B) is met.
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 Emmerton
Member
ATTACHMENT
Migration Regulations 1994
Schedule 4
4020(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 1958
s 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.
…

[2024] AATA 1090

27 March 2024

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Immigration

Statutory Interpretation

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Judicial Review

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