Sultani (Migration)

[2024] AATA 43

Sultani (Migration) [2024] AATA 43 (9 January 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Mohammad Ali Sultani

VISA APPLICANTS:  Mr Jan Mohammad Sultani
Mr Nematullah Sultani

REPRESENTATIVE:  Dr Patricia Rushton

CASE NUMBER:  2305339

HOME AFFAIRS REFERENCE(S):          2013020668

MEMBER:Peter Emmerton

DATE:9 January 2024

PLACE OF DECISION:  Adelaide

DECISION:The Tribunal remits the applications for Child (Migrant) (Class AH) visas for reconsideration, with the direction that the applicants meet the following criteria for Subclass 117 (Orphan Relative) visas:

·Public Interest Criterion 4020 for the purposes of cl 117.211 of Schedule 2 to the Regulations

·Public Interest Criterion 4020 for the purposes of cl 117.223 of Schedule 2 to the Regulations

·cl 117.211 of Schedule 2 to the Regulations meeting r.1.14

Statement made on 09 January 2024 at 12:50pm

CATCHWORDS

MIGRATION – Child (Migrant) (Class AH) visa – Subclass 117 (Orphan Relative) – orphan relative of an Australian relative – death of both parents – unverified death certificates for mother – illegal migrants in Pakistan – mosque verification of burial – compassionate or compelling circumstances – Hazara Shias in Pakistan – decision under review remitted    

LEGISLATION

Migration Act 1958, ss 5(1), 65
Migration Regulations 1994, Schedule 2, cls 117.211, 117.223; Schedule 4, Public Interest Criterion 4020; rr 1.03, 1.12, 1.14

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 Home Affairs on 24 March 2023 to refuse to grant the applicants Child (Migrant) (Class AH) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants applied for the visas on 16 May 2013. The delegate refused to grant the visas on the basis that the applicants did not satisfy the requirements of cl 117.211 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) because they were unable to satisfy regulation 1.14 as the delegate was not satisfied that the applicant’s parents were deceased. In addition, they were not satisfied that cl 117.223 was met because was PIC 4020 was unmet as they determined that the applicant has given, or caused to be given, to the Minister, a bogus document or information that is false or misleading in a material particular.

3. The review applicant appeared before the Tribunal on 9 January 2023 to give evidence and present arguments. The Tribunal also received oral evidence from Ms Gulbibi Akhlaye.

4. The Tribunal hearing was conducted with the assistance of an interpreter in the Hazaragi and English languages.

5. The review applicant was represented in relation to the review.

6. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in this review is whether the visa applicant meets Public Interest Criterion 4020 (PIC 4020) as required by cl 117.211 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).

8. 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?

9. 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.

10. 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.

11. 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.

    Clause 117.211 (criteria to be satisfied at time of application) reg 1.14(b)

12. The Tribunal accepts that the 2 visa applicants and the review applicant are brothers with the same biological parents. DNA testing was utilised to verify this fact and it was not disputed by the delegate. The correlations were greater than 99.9999999%. This was corroborated orally at the hearing. The Tribunal notes that this application was originally submitted in May 2013 and for a range of policy reasons irrelevant to the decision at hand, the application was not decided by the Department until March 2023, a decade later.

13. The Tribunal has been provided with and assisted by additional evidence not made available to the delegate at the time of their decision.

    Father’s Death

14. One issue in dispute relates to the death of the 3 sibling’s father. The Tribunal notes that the account of their father’s death varied between the 3 siblings. The review applicant had stated on his arrival in Australia in 2010 that his father had died as a result of frostbite incurred when trying to obtain food for his family under the harsh climatic conditions and the tyranny of the Taliban regime at the time. The 2 younger siblings stated in 2012, when 1 was 14 and the other 13, they believed their father was killed by the Taliban. They were infants at the time of his demise. The Tribunal believes it possible that some degree of poetic license may have occurred at the time the written statement recorded by another person was produced on their behalf.

15. In both accounts their father was killed in essence by the Taliban either directly or indirectly. It is understandable that the 2 younger siblings would have a view that the Taliban were responsible directly even though it is plausible and indeed highly probable, the death was an indirect result of their actions. The sponsor was able to describe in detail the injuries occurred to his father’s body, which lead to his death, as a result of his needing to trudge through knee deep snow in lethal weather conditions in order to avoid the scrutiny of the Taliban.

16. The delegate was concerned by the Facebook post indicating the 2 visa applicants were posing in a photograph with their parent according to the delegates interpretation. They believed this indicated the father was not deceased. It appears more likely that the notation according to other interpretations is associated with a term for grandparent. This issue was explored by the Tribunal at the hearing with the sponsor. The Tribunal has formed a view that the reference in effect refers to a sign of respect paid to a senior aged person much as has been common in Australia to refer to a respected older person by a younger person as ‘aunt’ or ‘uncle’ even though there is no familial relationship. A study of the photograph in question indicates no obvious physical features in common as might reasonably be expected if the older person was in fact the applicant’s father.

17. It is reasonable to accept that 2 young people in this societal structure, without any parents to support them, would gravitate towards an older man as mentor and protector. The Tribunal accepts that the explanation offered by the applicants that the older gentleman was a distant relative to be the most likely explanation. It would be unlikely that they would publish such a photograph on a publicly accessible media if a deception was intended as they would know it would be discovered during assessment of their ongoing immigration application processing.

18. The Review Applicant and Visa Applicants have waited a decade to resolve their immigration status. In contrast to Afghan culture, Australian administration relies heavily on documents and supporting evidence. It is noted, that in an effort to satisfy the Tribunal their father died in 2002, the Visa Applicants travelled to Afghanistan in December 2023. They went to their father’s home village and obtained a Death Certificate. They then returned crossing illegally back into Pakistan where they wait in hiding in fear of likely deportation in the current political climate, as publicly stated by the Pakistan Government. The Tribunal accepts the document as genuine but notes that the possibility of false documents being produced even when obtained legitimately and at the behest of a genuine attempt to demonstrate the truth. It is accepted by the Tribunal that the Australian immigration officials accepted the version of events provided by the review applicant when his application was processed.

    Mother’s Death

19. The delegate quite reasonably disputed the document provided which indicated the registration of the mother’s death following a check with the relevant authorities which indicated the registration number was incorrect and assigned to another deceased person. This does not mean that the document was bogus. An equally likely scenario is a failure of the official who undertook the task and collected money for that purpose chose to not register her death appropriately even though they issued a genuine certificate. This would suggest either incompetence of avariciousness. It is noted by the Tribunal, the early teen years of the applicants at the time of this occurrence. It is unlikely they could have undertaken a falsehood. The Tribunal explored this issue in detail at the hearing with the sponsor.

20. The review applicant believes this would have occurred because the mother lived as an illegal immigrant in Pakistan. The police refuse to provide a police clearance for Afghan refugee. It is equally probable the cemetery bureaucracy might have had the same attitude about registering the death of illegal immigrants. The affidavit of refusal of police clearance and the police policy notice gives an indication of the difficulty for illegal Hazara immigrants obtaining official documents. It is well known that seeking the help of officials such as the police may result in identification as an illegal immigrant and subsequent deportation.

21. The Tribunal has considered this carefully and has chosen to view this evidence in the context of the additional verbal and written evidence provided to it which it has found compelling.

22. The mother, Naz Bano, wife of Sultan and mother of the review applicant and the visa applicants, was brought by her son, the review applicant, with her younger sons who were 4 and 6 years old, to Pakistan for relative safety. This was an illegal border crossing and subsequent illegal residence undertaken to avoid persecution. This is a very familiar circumstance well known to the Tribunal. Pakistan is now in the process of attempting to reverse this and seeking to deport all illegal immigrants from Pakistan back to Afghanistan where they face imminent danger of persecution and death inflicted upon them by the Taliban. The Hazara people are in the greatest danger as the Taliban consider them socially and religiously unacceptable. This migration took place in 2003, after the death of the husband and father Sultan. For clarity it is noted the visa applicants are easily identifiable as Hazara due to their physical features.

23. As stated by Gulbibi Akhlaqy, the wife of the review applicant and mother of his three children, she travelled with them. She and her children lived together with Naz Bano and her sons. They all lived in Pakistan as illegal immigrants. When the Review Applicant left to seek asylum in Australia where he arrived in 2010, (a common occurrence) the two women remained living together and caring for their children.

24. In her statement and subsequent verbal evidence to the Tribunal, Gulbibi Akhlaqy sets out in a convincing manner what she remembers of the circumstances of the illness, suffering and death of her mother-in-law.

25. The Iman Masjid (Mosque) of Abulfazlabbas, Shaikh, Mohammad Ibrahim Hussaini, has also provided a signed statement declaring that Naz Bano died on 27 December 2011. He declares that he personally officiated at the Muslim ceremony at the burial of Naz Bano at the Hazara Cemetery in Hazara Town and that relatives and neighbours attended. The Tribunal believes it unlikely a Hazara Shia Muslim Iman would tell lies about the death of the mother, an illegal immigrant who fled to Pakistan, and her Muslim burial rites.

26. The Tribunal notes the 2 detailed Statutory Declarations made by Ewaz Shojayie and Mohammad Joma Sharifi, both dated December 2023. It has placed considerable weight on the two eye-witness accounts and the community knowledge stated in the Statutory Declarations and their accounting for the family circumstances which corroborate the applicant’s claims.

27. The Tribunal is satisfied based on the substantial range of corroborating evidence in relation to the deaths of both parents of the review applicant and his siblings, the visa applicants, that both parents are deceased and have been for a substantial time.

28. The Tribunal has determined the applicants do satisfy the requirements of cl 117.211 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) because they were able to satisfy regulation 1.14 as the Tribunal is satisfied that the applicant’s parents are both deceased.

    cl 117.223 were the requirements of PIC 4020 met?

29. As previously stated, the delegate was not satisfied that cl 117.223 was met because the requirements of PIC 4020 were unmet as they determined that the applicant has given, or caused to be given, to the Minister, a bogus document or information that is false or misleading, in a material particular.

30. The Tribunal once again notes 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.

31. The Tribunal refers to the evidence discussed in paragraphs 11-28 of this Decision. It is unable to substantiate that an element of fraud or deception occurred. It is however substantially convinced that neither the review applicant nor the visa applicants had any involvement in deception or fraud. It believes it most likely that poor or possibly dishonest administrative practices occurred at the time the mother’s Death Certificate was produced. It is noted that not all countries or officials operate in the same careful or accurate manner as is the foundation of Australian bureaucracy. It is not substantiated that anything more than carelessness, failure to accurately complete a task, a lack of attention to detail or potential fraud against the visa applicants occurred in relation to an inaccurate registration number.

32. Therefore, the applicants meet PIC 4020(1).

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

33. 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).

34. There is no evidence before the Tribunal 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).

35. Therefore, PIC 4020(2) is met.

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

36. For clarity the Tribunal notes that as it has determined that the requirements of PIC 4020 (1) and (2) are met a determination is not required to be made on this issue. However, it has chosen to comment in the interest of completeness in the current circumstances facing applicants in similar situations.

37. 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.

38. 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.

39. The Tribunal quotes the representative’s written submission made to it on 22 December 2023. It concurs with the reasoning put forward and the potentially devastating impacts likely to occur if the visa applicants are forced to remain in Pakistan and are subsequently deported back to Afghanistan under the current Taliban regime’s control.

    Impact on Australian permanent residents

    ‘Since the Delegate’s decision the reason for the Review Applicant and his wife and children to feel concern has been heightened by the situation of illegal immigrant Hazara Shia Muslims in Pakistan. On 3 October 2023 the Pakistan government announced a determined deportation of illegal immigrants. Reuters reported this included 1.73 million Afghans.[1]

    They report "We have given them a November 1 deadline," said Interior Minister Sarfraz Bugti, adding that all illegal immigrants should leave voluntarily or face forcible expulsion after that date.[2]

    On 3 November the ABC reported the chaos and brutally ensuing.[3]

    Pakistani authorities have been searching neighbourhoods and demolishing mud-brick homes to force Afghans to leave.[4]

    Police are going house to house demanding identity cards or other documentation and arresting those not able to produce acceptable documents. We submit that the plight of the Visa Applicants in such a precarious situation is having a deeply stressful impact on the Review Applicant and his family.

    Impact on Australia’s interests

    We also submit that it is in Australia’s interest not to ignore the real possibility that a rejection of these Visa Applications could result in the orphan relatives of an Australian permanent resident being deported to a country where they are certainly likely to be subject to persecution including violence and death on the grounds of religion and ethnicity. Hazaras are easily recognisable because of their distinctive facial features. Their religion is viewed as heretical by the ruling Taliban. While technically this is not a case of chain refoulement as the Visa Applicants are not asylum seekers under Australian law, the practical effect on these two young men is the same.’

    [1] Asif Shazad, Pakistan orders illegal immigrants, including 1.73 mln Afghans, to leave, Reuters Asia Pacific, 4 October 2023,

    [2] Ibid

    [3] Toby Mann, Pakistan demolishes homes, raids neighbourhoods to force millions of Afghans to leave, ABC, 3 November 2023, immigrants-afghanistan-deport-taliban/103061000

    [4] Ibid

    Has the applicant satisfied the identity requirements?

1. PIC 4020(2A) requires an applicant satisfy the Tribunal as to his or her identity. The Tribunal has viewed the identity documentation and DNA testing provided and is satisfied that there is no evidence before it which would leave it to conclude that the applicants are not as they claim to be. It is noted that the delegate concluded likewise.   

2. Therefore, the applicant meets PIC 4020(2A).

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

3. 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).

4. The Tribunal has no evidence before it 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(2A).

5. Therefore PIC 4020(2B) is met.

6. On the basis of the above, cl 117.211 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) is satisfied because the requirements of regulation 1.14 are satisfied. The applicant does also satisfy PIC 4020 for the purposes of cl 117.211 and cl 117.223.

   DECISION

7. The Tribunal remits the applications for Child (Migrant) (Class AH) visas for reconsideration, with the direction that the applicants meet the following criteria for Subclass 117 (Orphan Relative) visas:

   ·Public Interest Criterion 4020 for the purposes of cl 117.211 of Schedule 2 to the Regulations

   ·Public Interest Criterion 4020 for the purposes of cl 117.223 of Schedule 2 to the Regulations

   ·cl 117.211 of Schedule 2 to the Regulatons meeting r.1.14

   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.

   …

   
   

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