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 certificate of Musa Turay. It advises:
i.The authenticating stamps on the document are not those normally used by the office
ii.The document is not correctly completed and signed by the issuing office
iii.The reported event does not concur/agree with the official civil status record.
b.The comment provided was:
Cour DAppel De Conakry Instance De Kaloum issue an official letter in French. The Translations stated the adoption order for Musa Turay, No215 issued 16/09/2003 that the premiere office has found no record of the document in the register that is kept as prescribed by law. The document is not authentic.
Mr Turay was advised this was relevant to the decision under review as to meet cl.101.223 or cl.102.223 of the Schedule 2 of the Migration Regulations 1994 (the Regulations), Musa must meet Public Interest Criterion 4020. This requires that there is no evidence that the applicant has given, or caused to be given, to the Minister, an Officer or the Tribunal a bogus document. It advised that if the Tribunal relied on the information it would find Musa had provided a bogus document.
The letter also advised that unless the Tribunal is satisfied that there are compelling circumstances that affect the interests of Australia, or compassionate or compelling circumstances that affect the interests of an Australian citizen, Australian permanent resident or eligible New Zealand citizen that justify the grant of the visa this would mean the Tribunal would find Musa Turay does not meet PIC 4020. It also advised that if he does not meet Public Interest Criterion 4020, he will not meet cl.101.223 or 102.223 of Schedule 2 of the Regulations, and the decision under review would be affirmed.
The letter further advised that if the comments were not provided in writing by 2 February 2017, the Tribunal may make a decision on the review without taking further steps to obtain his views on the information and he would lose any entitlement he might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.
The letter was sent to Mr Turay’s registered migration agent and the authorised recipient, at the address advised on the application for review of the decision.
Comments were received on 6 February 2017. As the comments were received after the prescribed period and no extension had been sought or granted, s.359C applies and under s.360(3) Mr Turay is not entitled to appear before the Tribunal.
The effect of s.363A of the Act is that if a review applicant has no entitlement to a hearing, the Tribunal has no power to permit him or her to appear: Hasran v MIAC [2010] FCAFC 40, Lokuwithana v Minister [2017] FCCA 176. The hearing scheduled for 1 March 2017 was therefore cancelled.
This is unfortunate as Mr Turay asserts he has been Musa’s carer for many years there is an arguable case for establishing compelling and compassionate circumstances that affect the interests of an Australian citizen.
As a result, Mr Turay was given seven days after the scheduled hearing date to provide further documents and submissions. Mr Turay again failed to provide documents within the required time, and his representative submitted that she was seeking the translation of “customary adoption” documents to provide to the Tribunal. The Tribunal allowed further time to provide the translation of the document.
On 8 March 2017, a translation of a document was provided. The translation states it is issued by the Appeal Court of Conakry on 6 March 2017 on the petition of Mr Almamy Toure and orders the adoption of Musa Turay by Adam Mohammed Turay.
THE VISA SUBCLASS
The delegate refused the visa on the basis that Musa did not meet cl.102.223 of Schedule 2 of the Migration Regulations 1994 (the Regulations). Under Item 1108 of Schedule 1 of the Regulations, a Child (Migrant)(Class AH) visa contains three subclasses: Subclass 101 (Child) visa, Subclass 102 (Adoption) and Subclass 117 (Orphan Relative).
Each of these subclasses has a provision that requires the applicant to meet Public Interest Criterion 4020 (PIC 4020). These are cl.101.223, 102.223 and 117.223 respectively.
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.
Mr Turay has said his daughter has arrived in Australia, and while there may be an effect on his daughter, there is nothing before me to show whether she is an Australia citizen or permanent resident.
The expression ‘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.
In his statutory declaration of 1 February 2017, Mr Turay states he has cared for Musa since birth and has been responsible for him since then. He declares the only time he has been separated from him was when he had to travel to Australia. He declares he was required to have Musa with him during his medical appointment which he did. Mr Turay further declares that Musa was in the process of coming to Australia with his daughter. His daughter arrived on 16 December 2016 and this is the first time Musa has been apart from his adoptive sister.
The statutory declaration states Musa depends on him and it will be heartbreaking to lose the opportunity to reunite. Musa is currently living with Mr Turay’s mother, Musa’s grandmother.
School records for Musa were provided to the Department which states Mr Almamie Turay is the caretaker of Musa. Receipts for money transfers provided by Mr Turay show he transfers money to Almamy Toure. A document from Mr Turay states Almamy is caretaker of his family in Nzerekore. Mr Almamy Turay is stated to be the petitioner for the adoption order.
Mr Turay has a brother called Almamie Turay, and I would have liked to ask Mr Turay if Musa is living with Mr Turay’s brother and mother in Guinea. Mr Turay came to Australia in 2007, and arrangements for Musa’s care in Guinea are longstanding.
Mr Turay provided a translated document stating it is from the Kankan Court of Appeal, County Court of Nzerekore dated 4 December 2015. This states Adam Turay seeks a certificate justifying that a person adopted under Guinean law can re-join the adopted parent. It relies on the Adoption Order of 2003. The document records that there is no Guinean law that opposes an adopted child living with an adopted parent if the overall interest of the adopted child is guaranteed. It further orders that Musa Turay is free to travel and live with Adam Turay, his adopted parent, in Australia. Given there is evidence that the Adoption Order is bogus, and this later document was issued on the basis of the Adoption Order, I place no weight on this document.
A further document dated 6 March 2017 was produced that states it is from the Appeal Court of Conakry and pronounces the adoption of Musa by Mr Turay. The petitioner in this matter is Almamy Toure.
I note that a summons of Mr Turay’s spouse visa application shows that Musa was listed as his adopted son in his visa application dated 8 June 2006. This supports that Musa was declared as his adopted son a considerable period of time before the visa application.
The compassionate and compelling circumstances identified in Mr Turay’s statutory declaration are that he would be heartbroken if Musa is not able to come to Australia.
Mr Turay came to Australia in 2006. Musa remained with family members, and has been separated from Mr Turay for some time. Mr Turay says that Musa’s sister has arrived in Australia, and that this is the first time they have been separated. It is unfortunate that the representative did not provide information on whether his sister is an Australian permanent resident and if so the effect on her if Musa is not granted the visa.
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.
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.
Kate Millar
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.
…