Teng (Migration)

Teng (Migration) [2021] AATA 3436 (20 August 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Miss Ching-hsia Teng
CASE NUMBER:  1832910
HOME AFFAIRS REFERENCE(S):          CLF2017/52264
MEMBER:Christine Kannis
DATE:20 August 2021
PLACE OF DECISION:  Perth
DECISION:The Tribunal affirms the decision not to grant the applicant a Child (Residence) (Class BT) visa.

Statement made on 20 August 2021 at 2:16pm
CATCHWORDS
MIGRATION – Child (Residence) (Class BT) visa – Subclass 802 (Child) – misleading information in the visa application – visa applicant’s name added to the parents’ Divorce Agreement – altered copy of father’s passport – parental consent form – compassionate or compelling circumstances – interests of the Australian sponsor, husband and nephew – previous voluntary separation – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 65
Migration Regulations 1994, Schedule 2, cls 802.223, 802.225; Schedule 4, Public Interest Criterion 4020; r 1.03
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
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.
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 25 October 2018 to refuse to grant the applicant a Child (Residence) (Class BT) visa under s.65 of the Migration Act 1958 (Cth) (the Act).
The applicant applied for the visa on 13 July 2017. The delegate refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl. 802.223 and 802.225 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) because the delegate found the applicant did not meet Public Interest Criterion (PIC) 4020 and PIC 4017.
The applicant appeared before the Tribunal on 2 August 2021 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s mother, Ms Ming-Fang Teng (the sponsor) and the applicant’s stepfather, Mr John O’Donnell Mansell. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
The applicant was represented in relation to the review by her registered migration agent.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The law
The issues for determination in this case are whether:
(i)the applicant satisfies PIC 4020 as required by cl.802.223 and if not, whether there are compassionate or compelling circumstances to justify waiver of PIC 4020; and
(ii)whether the applicant satisfies PIC 4017 as required by cl.802.225.
PIC 4020
Broadly speaking PIC 4020 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: cl.4020(1); and
·the applicant and each member of the family unit has not been refused a visa because of a failure to satisfy cl.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: cl.4020(2) and (2AA); and
·the applicant satisfies the Minister as to his or her identity: cl.4020(2A); and
·neither the applicant nor any family unit member has been refused a visa because of a failure to satisfy cl.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: cl.4020(2B) and (2BA).
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.
Under s. 5(1) of the Act, a bogus document is one that the Minister reasonably suspects:
(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.
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 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.
PIC 4017
PIC 4017 requires that the Minister is satisfied of 1 of the following:
(a)     the law of the applicant’s home country permits the removal of the applicant;
(b)     each person who can lawfully determine where the applicant is to live consents to the grant of the visa;
(c)     the grant of the visa would be consistent with any Australian child order in force in relation to the applicant.
The delegate’s decision
On 7 August 2018 the Department wrote to the applicant with an offer to undertake DNA testing as a number of inconsistencies had been identified in her application in relation to her name as it appeared in various documents submitted to the Department. In response, the applicant’s migration agent advised that the applicant had changed her name a few times. On 18 September 2018 the Department received the DNA test results which advised the Relative Chance of Maternity between the sponsor and the applicant is 99.99991%. The applicant’s relationship to the sponsor was accepted by the Department and is not in issue.
The letter dated 7 August 2018 also advised:
- The Divorce Agreement of the applicant’s parents included her name and the name of a sibling and it was noted her names were handwritten on the original Divorce Agreement and not typewritten as per the rest of the document. In a statutory declaration dated 17 July 2018, the sponsor said the applicant’s father has no knowledge of her being pregnant with the applicant and she has never told him. Therefore, as the applicant’s father was unaware she had been born it is unlikely she would have been included in the Divorce Order and it appears that the applicant’s name has been written in after the Divorce Order was issued.
On 20 September 2018 the Department wrote to the applicant inviting her to comment on the adverse information. In this letter the Department advised:
·The birth certificate provided with her application identifies her parents as Ching-Ping Teng (mother) and Feng-Chou Tsai (father).
·A Form 1229 – Consent to grant an Australian visa to a child under the age of 18 years provided with her application, was claimed to be signed by her father on 5 March 2017. A copy of her father’s passport was also provided for the purposes of signature verification. This passport claims to have been issued [in] 2008 and to expire [in] 2018.
·On 7 April 2018 the Department requested she provide a phone number for her father.
·On 7 June 2018 the Department received two contact phone numbers for her father.
·The Form 1229 and the contact phone numbers for her father were referred to the Department’s overseas office with a request they contact him. The Department’s overseas office made several attempts but were unsuccessful.
·On 4 July 2018 the Department advised her that the contact numbers provided for her father appeared to be incorrect and requested new phone numbers for him.
·On 18 July 2018 the Department received a statutory declaration made by her mother on 17 July 2018 in which she stated:
I have already given two contact phone numbers on of which is my ex-husband’s home number but I am not sure whether he resides there or not. However, his parents must be there. The number is [Phone number 1] and the address is [address].
I only have one mobile number that I already gave to the officer last time. That is [Phone number 2].
I have not contacted my ex-husband for past 7 to 8 years.
My daughter has never met her father as he has no knowledge about me being pregnant with our daughter. So far I have not told him.
·It was identified that her brother, Ching Hung TENG, applied for a Child (subclass 802) visa on 2 December 2011. In his application a Form 1229 signed by their father on 16 June 2012 was provided along with a copy of his passport. The passport was indicated to have been issued [in] 2003 and to expire [in] 2013.
·A comparison of copies of her father’s passport provided for both applications identified that a fraudulently altered copy of her father’s passport was provided with her application for the following reasons:
oThe same copy of her father’s passport was provided for both applications (same passport number, same picture, same quality), the only difference being the year of issue and year of expiry.
oThe year of issue of the passport has been changed from 2003 to 2008 by hand.
oThe year of expiry of the passport has been changed from 2013 to 2018 by hand.
oThe coding in the Machine-Readable Zone (MRZ) does not match the information provided above the MRZ of the passport.
·Based on the above information, the Form 1229 provided in her application appears to be a bogus document for the following reasons:
oThe form was signed on 5 March 2017 by the applicant’s mother and the applicant’s father however the mother has not had any contact with the father for the last seven to eight years.
oThe father does not know the applicant exists; however, he has signed the Form 1229 on 5 March 2017 for her to be granted a visa for Australia.
oCurrent phone contact details cannot be provided for her father.
oA fraudulently altered copy of the father’s passport was provided for the purposes of signature verification against the Form 1229.
·As a fraudulently altered copy of the applicant’s father’s passport was provided and the Form 1229 appears to be a bogus document, false and misleading information is considered to have been provided to the Department to demonstrate she meets the requirement of PIC 4017.
On 15 October 2018 the Department received documents including a statutory declaration made by the sponsor on 2 October 2018, a statement from the sponsor’s husband and a covering email from the migration agent. In the covering email the agent advised:
·The person who signed on behalf of the biological father and altered the bio page of the biological father of the applicant is overseas for the time being not in Taiwan but when he was questioned by Eva (the sponsor), he admitted his wrong doing and he will provide a statutory declaration to that effect as to the factual situation.
·The best interest of the Australian citizen will be affected, that is the best interest of the applicant’s stepfather.
In her statutory declaration the sponsor stated:
I am the mother of the applicant and refer to my Statutory Declaration sworn on 18 July 2018.
In that Statutory Declaration I did give the home phone number of the parent of my ex-husband’s parents. If anyone rings the home phone number, they may not pick up or if they pick up and find it is a stranger's call, they would hang up the phone. This is one possibility. Secondly, I need to explain the mobile number is the mobile number of the nephew of my ex-husband who resides the parents of my ex-husband. If you find his nephew, you can find where my ex-husband is now. I tried to ring his nephew and his parents' home phone many times, no one has ever picked up.
When I received the request from the case officer for my daughter, I asked my friend to go to the house of my ex-parents in law to find my ex-husband to provide his passport bio page and sign the Form 1229.
I received the signed form and the copy of the passport bio page and gave them to my agent to submit and did not look at them carefully until the latest letter from the case officer indicating the passport was altered, then I contacted my friend who admitted he did them himself.
As my daughter is under 18, I am the guardian and responsible for the document that was altered without my knowledge and consent. She has no knowledge whatsoever about this matter. If her visa application is refused purely due to the altered bio page of her biological father's passport whom she has never met, that is not fair and not just for her. I have the sole custody of my daughter and my husband loves her dearly who is sick and stays at home and my daughter often accompanies him. If her visa application is refused, the interests of the Australian citizen will be affected. My daughter is lack of love of a father figure and my husband is her best buddy now.
In his statement the sponsor’s husband said:
·He is the applicant’s stepfather.
·He loves her as his own as does not have any biological children.
·He has been sick and the applicant makes his life brighter and pleasant. He sees her as his best buddy as his wife is very busy with her work.
·If the applicant’s visa is refused, he will be very depressed and disappointed as he will lose his best friend and companion.
The delegate decided that the applicant had provided bogus documents within the definition of s.5(1) of the Act. These documents were:
· the copy of the applicant’s father’s passport which was fraudulently altered; and
· the Form 1229 signed by a person who is not the applicant’s father but signed as her father.
The delegate was satisfied that the documents were knowingly provided by the sponsor on the applicant’s behalf in an attempt to meet the parental authority requirement for the visa application.
The delegate decided there were no compelling circumstances that affect the interests of Australia or any compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen that would justify the grant of this visa.
Has the applicant given, or caused to be given a bogus document, or information that is false or misleading in material particular?
On the morning of the hearing the applicant’s representative provided documentation which included but was not limited to a written submission and medical evidence with respect to the sponsor, the applicant’s stepfather and the applicant’s cousin.
At the hearing the applicant told the Tribunal that when the visa application was lodged, she was a minor and all the documents provided in support of her visa application, including the Form 1229 and copy of her father’s passport, were prepared by the sponsor.
The sponsor told the Tribunal that she had no idea that the Form 1229 had not been signed by the applicant’s father or that an altered copy of his passport had been provided until the applicant’s visa was refused. The Tribunal put to her that an email from the applicant’s previous migration agent dated 15 October 2018, ten days prior to the refusal decision, indicated that she aware that a person other than the applicant’s father had signed the Form 1229 and that the father’s passport had been altered. The Tribunal notes that the sponsor also provided this information in a statutory declaration dated 2 October 2018. When asked about this inconsistency, the sponsor said she could not remember what happened.
The sponsor told the Tribunal that she sent the Form 1229 to a friend in Taipei and asked the friend to locate her ex-husband and have him sign the form. She said she provided the friend with her ex-husband’s address and telephone number. She said this friend owed her a favor. The sponsor said when she asked the friend about the signed Form 1229 and the altered passport, he said he signed the form and altered the passport because he was unable to locate the sponsor’s ex-husband.
The applicant’s representative submitted that the altered passport is not a bogus document because it was an altered copy of a photocopy of the father’s passport and not the original passport. He said the definition of bogus document is ambiguous and the altered copy of the passport is information about the father’s identity and therefore could be false or misleading information but does not satisfy the definition of bogus document. Following the hearing the applicant’s representative provided a written submission which was not materially different to his oral submission. No submissions were made at hearing in relation to the Form 1229 signed by a person purporting to be the applicant’s father but who was not her father.
The Tribunal accepts the applicant’s evidence that she was not aware that her father’s passport had been fraudulently altered or that the Form 1229 had not been completed and signed by her father, however, as noted, PIC 4020 applies whether or not the document or information was provided by the applicant knowingly or unwittingly. It is not necessary for the Tribunal to determine that the applicant was involved in obtaining the bogus documents or that she provided that documents knowingly.
To meet the definition of bogus document, there need only be a reasonable suspicion of a document being bogus, not probative evidence. The sponsor advised the Department that a friend had admitted that they altered the applicant’s father’s passport and signed the Form 1229 as the applicant’s father. The Tribunal has considered the oral evidence provided at hearing and also accords significant weight to the sponsor’s statutory declaration dated 2 October 2018. The Tribunal has considered the representative’s submission that the alteration to the passport was made from a copy of a passport only and was therefore not a bogus document. The Tribunal does not accept the representative’s submission and finds that it reasonably suspects that the copy of the applicant’s father’s passport was altered by a person who did not have authority to do so. The Tribunal also finds that the document is a counterfeit document because it was designed to pass as the original passport. The Tribunal finds, based on the admission by the sponsor’s friend, that the passport was purposefully false. Accordingly, the Tribunal finds the passport is a bogus document within the definition of s.5(1) of the Act (paragraph (b)).

As noted, the applicant’s representative did not make any submissions regarding the Form 1229 at the hearing. In the post-hearing submission, the applicant’s representative submitted:
Similarly, a signature of a person is also a piece of identity information. The consent in the form 1229 from the applicant’s bio-father did not exist by which it means the applicant provided false information in relation to the bio-father’s consent in the form 1229.
A Form 1229 is a Consent to grant an Australian visa to a child under the age of 18 years. The form is completed for the purpose of giving permission for a child to be granted an Australian visa. The form contains signed declarations to be made by each parent/person with parental authority in relation to the applicant child. The Tribunal considered whether the document is a bogus document within the definition of s.5(1) of the Act. ‘Counterfeit’ is not a term defined in the Act and so the Tribunal has considered the ordinary meaning of the word. In doing so it considered the (on-line) Macquarie Dictionary definition which includes pretended, an imitation designed to pass as an original, a forgery, to resemble and to simulate, not genuine. In the present matter, the Form 1229 purported to be a document evidencing consent by the applicant’s parents however the person who signed as Feng-Chou Tsai (the applicant’s father) was not but pretended to be the applicant’s father. The signature on the Form 1229 and the consent were not genuine and were forgeries. The Tribunal finds, based on the admission by the sponsor’s friend, that the Form 1229 was purposefully false. Accordingly, the Tribunal finds the Form 1229 is a bogus document within the definition of s.5(1) of the Act (paragraph (b)).
The applicant submitted the bogus documents when applying for the Subclass 802 visa and the Tribunal finds that there is 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.
The Tribunal decided that the applicant does not meet PIC 4020(1).
Should the requirements of PIC 4020(1) or (2) be waived?
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.
Regarding compelling reasons that affect the interests of Australia, the applicant said she is currently undertaking aged care studies and once completed, she will make a contribution to the Australian community.
The Tribunal had regard to the Department’s guidelines which say there may be compelling circumstances affecting the interests of Australia if:
- Australia’s trade or business opportunities would be adversely affected were the person not granted the visa
- Australia’s relationship with a foreign government would be damaged if the person is not granted the visa or
- Australia would miss out on a significant benefit that the person could contribute to Australia’s business, economic, cultural or other development (for example, a special skill that is highly sought after in Australia) if the person was not granted the visa.
And
It is departmental policy that compelling circumstances affecting the interests of Australia would not include circumstances where the applicant merely claims that, if granted the visa, they would:
·work and pay taxes in Australia,
·pay fees to an education provider; or
·spend money in Australia.
The Tribunal considered the applicant’s evidence and the guidelines and was not satisfied that there are compelling circumstances that affect the interests of Australia to justify the grant of the visa in the present case.
The Tribunal turns to consider the remaining circumstances for waiver. The applicant’s stepfather is an Australian citizen and her mother and cousin are Australian permanent residents. Accordingly, the question that arises is whether there are compassionate or compelling circumstances that affect the applicant’s stepfather and/or the applicant’s mother and/or the applicant’s cousin’s interests if the requirement to meet PIC 4020(1) is not waived.
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.
The Tribunal is required to consider all the circumstances of the case including any matters put forward by an applicant and determine on the evidence whether there are compelling and/or compassionate circumstances justifying the granting of the visa.
The applicant told the Tribunal that she has never met her biological father. She said she was raised by the maternal side of her family. She said she needs her stepfather because she did not have a father figure during her childhood. She said he needs her because he [has had specified medical procedures]. She said her stepfather has no children of his own. When asked about the care she provides to him she said she talks to him. The sponsor told the Tribunal that the applicant’s stepfather has a heart condition. She said she needs the applicant’s assistance to care for him. When asked about the assistance the applicant provides, the sponsor said she talks to her stepfather. The applicant’s stepfather told the Tribunal that he suffers from [a condition]. He said the applicant helps by being an “extra hand” and providing emotional support. In a Medical Certificate dated 12 January 2021, the applicant’s stepfather’s [diagnosis] was listed as temporary and he was certified unfit for work/study during the period 12 January 2021 to 12 April 2021. A Discharge Summary dated 12 June 2020 from [a named] Hospital shows the applicant’s stepfather was admitted for ten days in June 2020 and his principal diagnosis was [specified condition]. The applicant’s representative submitted that the emotional impact of the applicant having to depart Australia could have an unpredictable adverse consequence on her stepfather’s heart condition. No medical evidence was provided to substantiate this contention.
The Tribunal had regard to the Department’s guidelines which includes the following as a factor for consideration of waiver:
·whether there are any significant health or welfare issues affecting an Australian citizen, Australian permanent resident or eligible New Zealand citizen. Factors to consider:
a.absence of other carers in Australia
b.whether the illness of the Australian citizen, permanent resident or New Zealand citizen is debilitating, permanent and requires ongoing care (that is, it is not a temporary illness, or an illness that does not require continuous care).
The Tribunal accepts that the applicant’s stepfather suffers from a serious medical condition however the evidence did not establish that the applicant’s ongoing presence in Australia is necessary for his health or that he requires continuous care. The Tribunal does not find this to be a compassionate or compelling circumstance for the purposes of PIC 4020.
The applicant told the Tribunal that her 16-year-old cousin, James, is depressed and withdrawn and will only speak to her. She said his mother passed away recently. She said James sees a psychologist and has told the psychologist about [his symptoms]. She said James is reluctant to talk to others at school and at home. The sponsor told the Tribunal that James suffers from depression and has [experienced symptoms]. She said he had [surgery] a couple of months ago. She said it is impossible for other people to talk to James and he will only talk to the applicant. She said they were brought up together however the Tribunal notes the applicant’s evidence was that James was already residing in Australia when she arrived in 2017. Therefore, at least for some period in recent years, the applicant and James were not living together. The applicant’s stepfather told the Tribunal he is concerned about James because he will only speak to the applicant and the sponsor.
A medical report dated 25 January 2021 from clinical psychologist, Dr Yong Heng Lee, was provided. Dr Lee said he had previously seen Mr Chien-Chieh Hsu (James) in October 2020. He said James had advised him that he had recently been hospitalised for abdominal pain and that he had undergone surgery. Dr Lee noted that the original referral to him included “refusal to speak and this is the case even in his native language and communication with James requires persistent effort and patience”. Dr Lee stated that James admitted to [specified symptoms]. The medical report was addressed to a general practitioner and indicated that given the [risk factors involved], hospitalisation should be considered as an option. The report did not refer to the applicant, James’ relationship with her or her involvement in his ongoing care.
Following the hearing a report dated 11 August 2021 from Dr Lee was provided in which he said James told him the sponsor wanted a support letter in relation to the applicant’s visa application. The report said the sponsor and her family are James’ main source of support. Dr Lee said James reported that his relationship with the applicant is close and is more significant than his relationships with other family members. Dr Lee opined that a stable living environment with a supporting family is crucial for improvement in James’ mental health and to prevent deterioration.
The Tribunal accepts that the applicant’s cousin suffers from depression and accepts that he has a close relationship with the applicant. The report did not refer to the ongoing care required or future treatment. The Tribunal considers it is likely that psychological counselling will be ongoing. The report refers to the importance of stability and presumably the applicant’s cousin can continue to reside with the sponsor and her husband and therefore remain in a stable living environment. Although no evidence of the care required was provided, the Tribunal considers it likely that the sponsor and her husband could be carers if James requires care. The applicant’s stepfather told the Tribunal that James speaks to the sponsor as well as the applicant and that is apparent from Dr Lee’s recent report. In addition, the Tribunal is of the view that the applicant can continue to provide emotional support through regular electronic communication. The Tribunal does not find this to be a compassionate or compelling circumstance for the purposes of PIC 4020.
The applicant’s stepfather told the Tribunal that if the applicant is required to depart Australia, this will have an adverse impact on the sponsor’s [medical] condition. In a written submission the applicant’s representative stated that the sponsor has been diagnosed with [a condition] and said he had done his research and found that the disease can be caused by emotional or physical stress. A link to an article was provided. The Tribunal accessed the article and noted the following:
[Details deleted.]
A letter dated 27 July 2021 from [named doctor] confirmed the diagnosis was made in 2009 and that the sponsor suffered relapses in 2013 and 2019. The letter stated that the sponsor’s last [related] test on 29 January 2021 was satisfactory. There was no reference to the likelihood or impact of a relapse should the applicant’s visa not be granted.
The Tribunal accepts that the sponsor suffers from [this condition] however the evidence did not establish that the applicant’s ongoing presence in Australia is necessary for the management of the sponsor’s [condition] or that she requires continuous care. The Tribunal does not find this to be a compassionate or compelling circumstance for the purposes of PIC 4020.
The applicant told the Tribunal she needs the sponsor (her mother) because she is not mature and cannot look after herself. The applicant’s representative submitted that the applicant is financially dependent on the sponsor because she has no work rights to work in Australia. The Tribunal notes that the interests of the applicant are not relevant when considering whether a waiver should apply.
It is undisputed that after the sponsor came to Australia, the applicant initially lived with her maternal aunt and then with her maternal grandmother from 2009 to 2017, prior to her own arrival in Australia. During that time the sponsor resided in Australia and the applicant resided in China. Following the hearing the applicant’s representative provided the following statement from the sponsor:
When she was a little child, I sent her to Mainland China for my mother to look after her. She was taken care of by my mother until she arrived in Australia at the age of 15 years old. One of my sisters and my mother both of whom are not healthy at the moment, and we could not continue to burden them as my mother took care of both Camille and James (The son of my deceased sister) for so many years in the past.
Before she came to Australia, we kept in touch by phone or Internet. We contacted with each other 3 to 4 days per week. I went to see her several times personally after I came to Australia. I could not fly to her place often because I needed to make money to raise my son, my daughter and myself.
When I came here, she was still a very little child who needs a lot of care. At that time, I did not have such ability to personally raise her up because I had to have time to make money to support us. This is why I took my son here first because then he was almost able to take care of himself when I worked.
The son (James) of my deceased sister was born in Taiwan as well, but he was sent to Mainland of China when he was 4 to 5 years old and stayed with my mother. He is two years junior than my daughter. He is now having severe depression and he needs Camille’s company. Not only James needs her, my husband needs her to stay too. Most importantly, I need her to stay. We lived separately for years and finally we are together in Australia. I don’t want my daughter to pay for the mistake I made. As a mother, the bond between me and my daughter never diminished even when we lived apart. Every days and nights during those hard times years before, I dreamed for the re-union of my families.
At the hearing the applicant’s representative submitted that the separation of a mother and a child is a compassionate or compelling circumstance. He said he was not aware of the reason the applicant was not included in the sponsor’s Partner visa application in 2009 and conceded that she lived with her aunt and grandmother for several years prior to her arrival in Australia in 2017. The applicant’s representative said the applicant’s grandmother is over 70 years of age.
The applicant’s representative referred to a decision of the Tribunal, Rajesh (Migration) [2018] AATA 4635 (14 August 2018), in which PIC 4020 in the context of a Subclass 802 visa application was considered. In that decision the requirement to meet PIC 4020 was waived and the fact that the applicant had nothing to return to in India and the difficulty of the applicant’s close-knit family to relocate to a different country was noted. In that decision the Tribunal stated that it accepted that it “may not be possible, and certainly not desirable, to separate the child from her parents and brother”. The Tribunal notes that the applicant in that case was 4 years old at the time of the decision.
The Tribunal notes that it is not bound by a decision of the Tribunal. In any event, the facts in the present case were that the applicant, who is an adult, could return to live with her grandmother and as noted, the applicant has previously lived separately from the sponsor for an extended period.
The Tribunal is mindful that if the visa is not granted, the sponsor and the applicant will be geographically separated and takes into account that they were voluntarily separated from 2009 to 2017. As the applicant was 7 years old at the time, it is reasonable to assume that it was the sponsor’s decision. The sponsor’s post-hearing statement is consistent with this assumption. While the Tribunal accepts that there would be a level of emotional distress for the sponsor if the applicant has to leave Australia, the Tribunal considers that she would be able to keep in regular contact with the applicant through various media. Her post-hearing submission refers to the regular telephone and internet contact maintained when the applicant was living in China. The Tribunal does not find the sponsor’s geographical separation from the applicant to be a compassionate or compelling circumstance for the purposes of PIC 4020.
Following the hearing the applicant’s representative provided a medical report dated 17 June 2018 in relation to the applicant’s maternal grandmother. The report referred to a preliminary diagnosis of gastrointestinal dysfunction and gallbladder stones. The report was not current medical evidence. The report does not state that the applicant’s grandmother’s condition, which even if it is ongoing, precludes the applicant living with her. The applicant is now an adult and any care required by her grandmother is likely to be minimal. The Tribunal gives this evidence no weight in considering compassionate and compelling circumstances. A medical report dated 6 August 2021 which was identified as a report in relation to the sponsor’s sister in China was also provided. The report states that Yanyuan Deng is 52 years old and suffers from diabetes and hypertension. Tribunal gives this evidence no weight in considering compassionate and compelling circumstances.
This has been a difficult decision and one that has not been made easily. The Tribunal considers that the use of the words ‘compelling’ and ‘compassionate’ in the Regulations indicates a degree of gravity that is not demonstrated in the evidence before it. The provision of bogus documents to the Department is a serious matter and on balance the Tribunal was not persuaded that there are circumstances in this case that affect an Australian citizen, permanent resident or eligible New Zealand citizen, either on an individual or cumulative basis, that are of a compelling or compassionate nature that justify the waiver of PIC 4020. Accordingly, the Tribunal is not satisfied that the requirements should be waived.
On the basis of the above, the applicant does not satisfy PIC 4020 for the purposes of cl 802.223.
Does the applicant meet PIC 4017?
The applicant lodged the application on 13 July 2017 and provided a copy of her passport with the application. The passport stated her date of birth as 17 March 2002. Based on her date of birth the applicant is currently over 18. PIC 4017 is a time of decision criteria and as the applicant has now turned 18, she is not required to satisfy this criterion.
For the reasons above, the criteria for the grant of a Subclass 802 visa are not met. There have been no claims advanced in respect of the other visa subclass in Class BT (Subclass 837).
DECISION
The Tribunal affirms the decision not to grant the applicant a Child (Residence) (Class BT) visa.
Christine Kannis
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.
…

[2021] AATA 3436

20 August 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Consent