Turay (Migration) - [2017] AATA 611

Turay (Migration) [2017] AATA 611 (13 April 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
REVIEW APPLICANT:  Mr Adam Mohammed Turay
VISA APPLICANT:  Mr Musa Abu Turay
CASE NUMBER:  1612507
DIBP REFERENCE(S):  OSF2006033029, CLF2008/133565, OSF2013/089801
MEMBER:Kate Millar
DATE:13 April 2017
PLACE OF DECISION:  Adelaide
DECISION:The Tribunal remits the application for a Child (Migrant) (Class AH) visa for reconsideration, with the direction that the applicant meets the following criterion:
·Public Interest Criterion 4020 for the purposes of cl.101.223, 102.223 and 117.223 of Schedule 2 to the Regulations.

Statement made on 13 April 2017 at 2:52pm

CATCHWORDS
Migrant – Child (Migrant) (Class AH) visa – Subclass 102 (Adoption) – cl 102.223 – Public Interest Criterion 4020 – Counterfeit adoption order – Customary adoption documents – Legal impediment to migration – Compassionate and compelling circumstances to waive criterion – Emotional distress from separation – Volatile security situation in Guinea
LEGISLATION
Migration Act 1958, ss 5(1), 65, 359A, 363(A)
Migration Regulation 1994, Schedule 1 Item 1108, Schedule 2 cl 201.223, Schedule 4
CASES
Hasran v MIAC [2010] FCAFC 40
Lokuwithana v Minister [2017] FCCA 176
Arora v MIBP [2016] FCAFC 35
Batra v MIAC [2013] FCA 274
Plaintiff M64/2015 v MIBP [2015] HCA 50
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

Mr Adam Turay came to Australia from Guinea as the spouse of Mawata Fofana, and is now an Australian citizen. Mr Turay states he has cared for Musa Turay since birth, and Musa applied for a Child (Migrant) (Class AH) visa on 10 January 2013. Musa is a citizen of Liberia, and is currently living in Guinea.
With the application, Mr Turay provided an Adoption Order stated to be from the Conakry Court of Appeal, Kaloum County Court, Guinea which he said shows he has adopted Musa. The Department for Immigration and Border Protection sought verification of the Adoption Order, and found it was counterfeit. As a result, on 12 July 2016 a delegate of the Minister for Immigration and Border Protection refused Musa’s visa under s.65 of the Migration Act 1958 (the Act).
PROCEDUAL ISSUES
On 22 June 2016, the Department wrote to Mr Turay inviting him to comment on adverse information. This information was that an adoption order dated 28 November 2012 was found to be bogus. In response, Mr Turay said the adoption order was obtained on 16 September 2003 and not 28 November 2012, and that he had followed all the procedures he had been advised to follow in obtaining the document.
As Mr Turay had submitted that the Department had used an incorrect date in seeking verification of the Adoption Order, the Tribunal sought further verification of the authenticity of the document. The following response was received from the Department, and was put to Mr Turay in a letter dated 19 January 2017 under s.359A of the Act:
a.On 17 January 2017 the International Organisation for Migration conducted a site visit Cour DAppel De Conakry Instance De Kaloum to verify the adoption…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Turay (Migration)

Details

AGLC: Turay (Migration) [2017] AATA 611
Case: [2017] AATA 611
Decision Date: 13 April 2017

CaseChat Overview and Summary

This matter concerned an application for a Child (Migrant) (Class AH) visa, Subclass 102 (Adoption). The applicant, Musa, was seeking to migrate to Australia. The central dispute revolved around Public Interest Criterion (PIC) 4020, which requires that an applicant has not provided a bogus document to the Minister or an officer. The decision was made by Kate Millar, a Member of the Tribunal.

The legal issues before the Tribunal were whether the applicant met PIC 4020, and if not, whether the requirements of PIC 4020 should be waived due to compelling or compassionate circumstances. Specifically, the Tribunal had to determine if the adoption order provided by the applicant was a "bogus document" as defined by the Migration Act 1958, and if so, whether the circumstances warranted a waiver of this criterion.

The Tribunal found that the adoption order provided was indeed a bogus document, as evidenced by advice from the International Organisation for Migration indicating it was counterfeit, not recorded on the relevant register, and bore non-authentic stamps and incorrect completion. Consequently, the applicant did not meet PIC 4020. However, the Tribunal considered the waiver provision under cl 4020(4). It noted the emotional distress the applicant's sponsor, Mr Turay (an Australian citizen), would experience due to continued separation, exacerbated by the volatile security situation and risks in Guinea. The Tribunal concluded that these constituted compelling and compassionate circumstances affecting the interests of an Australian citizen, justifying a waiver of PIC 4020.

Accordingly, the Tribunal remitted the application for reconsideration by the Minister, with a direction that the applicant satisfied PIC 4020 for the purposes of cl.101.223, 102.223, and 117.223. The Tribunal also noted that a further adoption order had been obtained, which might affect other visa criteria, and highlighted the importance of timely compliance with procedural requirements.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The issue in this review is whether the visa applicant meets PIC 4020) as required by cl.101.223, 102.223 or 117.223 for the grant of a Class AH visa.CONSIDERATION OF CLAIMS AND EVIDENCE As it applies to Musa, PIC 4020(1) requires that there is no evidence that he 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 term ‘bogus document’ is defined in s.5(1) of the Act and is set out in the attachment to this decision. In contrast to the definition of ‘information that is false or misleading in a material particular’ in cl.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 cl.4020(1) not to provide a bogus document 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: cl.4020(3). It also applies whether or not the document or information was provided by the applicant knowingly or unwittingly. In this case, while Mr Turay says he followed advice in obtaining the document, there is evidence, being the advice from the International Organisation for Migration (IOM) that the Adoption Order provided for the purpose of the application purports to have been, but was not, issued in respect of Musa, and that it is counterfeit. There is evidence from the IOM that there is no record of this order on the register, that the authenticating stamps on the documents are not those normally used by the issuing body and that the document is not correctly completed and signed by the issuing office. It follows that there is evidence that a bogus document as defined in s.5(1) has been provided to an officer and therefore Musa does not meet PIC4020(1)Should the requirements of cl.4020(1) be waived? The requirements of cl.4020(1) 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, that justify the granting of the visa (cl.4020(4)). A consideration of cl.4020(4) requires:· An identification if the Australian citizens, Australian permanent residents or eligible New Zealand citizens whose interests may be affected;· Identifying the circumstances that may affect their interests, and determining if these are compelling or compassionate; and, if so;· Determining whether these circumstances justify the grant of the visa. The evidence before me is of the effect on Mr Turay and the effect on Musa. I am only permitted by cl.4020(4) to consider the interest of Australian citizens or permanent residents, therefore I can consider the effect on Mr Turay.

Decision

Reasons for decision

If PIC 4020 is not waived this will result in a continued separation of Mr Turay and Musa, and Mr Turay will experience distress. Whether this distress would be heightened as Musa is in Guinea is not something on which the representative chose to provide information or submissions. However Guinea is stated to suffer domestic instability due to conflicts in neighbouring states. Forced child labour is an issue and Guinea is identified as a source country for forced labour for mines in West Africa.[1] The Australian Department of Foreign Affairs and Trade states the security situation in Guinea is volatile and there is a high risk of violent crime.[2] I infer the situation in Guinea adds to the distress Mr Turay experiences in being separate from Musa. [1] >While there remain questions about whether Musa otherwise meets the requirements of the visa, these are best addressed by a delegate in making an original decision on other visa criteria.Having considered the information before me and the country information on Guinea I am satisfied that there are compelling and compassionate circumstances that affect the interests of an Australian citizen that justify the grant of the visa, and the requirements of cl.4020(1) should be waived.On the basis of the above, Musa satisfies PIC 4020 for the purposes of cl.101.223, 102.223 and 117.223, and the appropriate course is to remit the matter to the Minister for reconsideration.Mr Turay has not been well served by his representative. He lost his right to a hearing after the documents were provided one day late, which is particularly unfortunate in this case as an adverse decision could result in a child remaining without a parent in a volatile country. Care must be taken in complying with prescribed time limits in these matters. A further adoption order has been obtained that may affect Musa’s ability to meet other criteria for the grant of a visa. There was a lack of other information, such as information to identify the Australian citizens or permanent residents whose interests are affected, direct statements or statutory declarations about how the person’s interests are affected and country information about Guinea. This is information that could readily have been provided in the time made available for submissions. DECISIONThe Tribunal remits the application for a Child (Migrant) (Class AH) visa for reconsideration, with the direction that the applicant meets the following criterion:·Public Interest Criterion 4020 for the purposes of cl.101.223, 102.223 and 117.223 of Schedule 2 to the Regulations.Kate MillarMemberATTACHMENTMigration Regulations 1994Schedule 44020(1) There is no evidence before the Minister that the applicant has given, or caused to be given, to the Minister, an officer, the Tribunal during the review of a Part 5 reviewable decision, a relevant assessing authority or a Medical Officer of the Commonwealth, a bogus document or information that is false or misleading in a material particular in relation to:(a)the application for the visa; or(b)a visa that the applicant held in the period of 12 months before the application was made.(2)The Minister is satisfied that during the period:(a)starting 3 years before the application was made; and(b)ending when the Minister makes a decision to grant or refuse to grant the visa;the applicant and each member of the family unit of the applicant has not been refused a visa because of a failure to satisfy the criteria in subclause (1).(2AA)However, subclause (2) does not apply to the applicant if, at the time the application for the refused visa was made, the applicant was under 18.(2A)The applicant satisfies the Minister as to the applicant’s identity.(2B)The Minister is satisfied that during the period:(a)starting 10 years before the application was made; and (b)ending when the Minister makes a decision to grant or refuse to grant the visa;neither the applicant, nor any member of the family unit of the applicant, has been refused a visa because of a failure to satisfy the criteria in subclause (2A).(2BA)However, subclause (2B) does not apply to the applicant if, at the time the application for the refused visa was made, the applicant was under 18.(3)To avoid doubt, subclauses (1) and (2) apply whether or not the Minister became aware of the bogus document or information that is false or misleading in a material particular because of information given by the applicant.(4)The Minister may waive the requirements of any or all of paragraphs (1)(a) or (b) and subclause (2) if satisfied that:(a)compelling circumstances that affect the interests of Australia; or(b)compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen;justify the granting of the visa.(5)In this clause:information that is false or misleading in a material particular means information that is:(a)false or misleading at the time it is given; and(b)relevant to any of the criteria the Minister may consider when making a decision on an application, whether or not the decision is made because of that information. …Migration Act 1958s.5 Interpretation(1) In this Act, unless contrary intention appears:…bogus document, in relation to a person, means a document that the Minister reasonably suspects is a document that:(a)purports to have been, but was not, issued in respect of the person; or(b)is counterfeit or has been altered by a person who does not have authority to do so; or(c)was obtained because of a false or misleading statement, whether or not made knowingly. …

Ratio Decidendi

Legal Principle Established

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