XU (Migration)

[2017] AATA 830

XU (Migration) [2017] AATA 830 (11 May 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr RUICHANG XU

VISA APPLICANT:  Master JINTAO XU

CASE NUMBER:  1618386

DIBP REFERENCE(S):  2016076555

MEMBER:Kira Raif

DATE:11 May 2017

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a Child (Migrant) (Class AH) visa.

Statement made on 11 May 2017 at 2:20pm

CATCHWORDS

Migrant – Child (Migrant) (Class AH) visa – Subclass 101 (Child) –  Public Interest Criterion 4020 – False or misleading information – Consent form for child to leave China – Bogus document – Informant not the child’s mother – Requirements for waiver not met

LEGISLATION

Migration Act 1958, ss 5(1), 65

Migration Regulation 1994, Schedule 2, cl 101.226, cl 101.227

CASES

Trivedi v MIBP [2014] FCAFC 42
Plaintiff M64/2015 v MIBP [2015] HCA 50

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 Immigration on 14 October 2016 to refuse to grant the applicant a Child (Migrant) (Class AH) visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant is a national of China, born in March 2001. He applied for the visa on 30 June 2016 and was sponsored in that application by his father. The delegate refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl.101.227 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the delegate was not satisfied the visa applicant met Public Interest Criterion (PIC) 4020. The sponsor (‘the review applicant’) seeks review of the delegate’s decision.

3. The review applicant appeared before the Tribunal on 11 May 2017 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages. The review applicant was represented in relation to the review by his registered migration agent. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   Relevant law

4. The issue in this review is whether the visa applicant meets Public Interest Criterion 4020 (PIC 4020) as required by cl.101.227 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: 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).

5. The requirements in cl.4020(1) and (2) can be waived if there are certain compelling or compassionate reasons justifying the granting of the visa: cl.4020(4). However, this waiver does not apply to the identity requirements in cl.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?

6. The term ‘information that is false or misleading in a material particular’ is defined in cl.4020(5) and the term ‘bogus document’ is defined in s.5(1) of the Act. The requirement in cl.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: cl.4020(3). It also applies whether or not the document or information was provided by the applicant knowingly or unwittingly.

7. 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.

8. The review applicant provided to the Tribunal a copy of the primary decision record which contains the following information.

9. When making the application, the visa applicant stated that his parents were divorced, that his father was given custody. The visa applicant provided a statement from his mother, Cui Yan Wang, giving consent for the child’s migration to Australia. In August 2016 a DIBP officer contacted Ms Wang to confirm her consent. The following information is recorded

   a.Ms Wang was asked to confirm her national ID number to confirm her identity. She stated she could not remember it.

   b.Ms Wang was asked when she divorced her husband. She could not answer the question immediately. She then said she could not hear the interviewer and hung up.

   c.The interviewer made several attempts to contact Ms Wang. On five occasions the phone rang but was unanswered and on one occasion there was a busy signal. The officer was then able to speak to Ms Wang who apologised for not picking up the phone and said she could not hear the questions clearly.

   d.Ms Wang was asked about the terms of the divorce agreement. She said the court awarded her RMB 100,000. The divorce settlement indicates her ex-husband was awarded RMB 100,000.

   e.Ms Wang stated her date of birth as 15 April 1977. Her ID document provided with the application indicates her date of birth as 14 April 1977.

   f.Ms Wang said the visa applicant attends Guangzhou No 13 middle school and his teacher’s name is Qian Wang. The case officer contacted the school and was advised there is no teacher at the school with that name.

   g.Ms Wang was unable to confirm her residential address as stated on the Consent form 1229 or the address on her ID card. She explained that she lives in a rural area and nobody knows their specific address.

10. The delegate wrote to the applicant seeking his comments on the above information. In particular, it was said that the person who signed the consent form was not the applicant’s mother and that false or misleading information had been provided with the application, giving rise to PIC 4020. The visa applicant explained through his migration agent that the person who was interviewed was definitely the child’s mother but she was working underground at the time of the interview and the phone signal was not always clear and was interrupted, which may have caused misunderstandings. The agent also advised that the mother moved to a new address recently and for that reason could not recall her correct address. The delegate noted that when the phone calls were made, there was a strong phone signal on multiple occasions when the phone was not answered and on two occasions when the phone was answered. As for the mother’s address, the delegate noted that she said she was unable to recall her address at all, rather than state her new address. The delegate found the explanations offered by the applicant implausible.

11. In oral evidence to the Tribunal the review applicant also explained that Ms Wang was busy at work and could not participate in the interview. The Tribunal has considerable difficulty with these explanations. The Tribunal is mindful that the person purporting to be the mother did participate in the interview, although apparently with some reluctance. She did answer questions. It is simply that the answers she gave were inconsistent or wrong (for example, her date of birth, the name of the child’s teacher or the nature of the divorce settlement.) In the Tribunal’s view, if she could not properly hear the questions or if she was too busy with work to answer the questions, she would not respond to these questions at all or state that she could not hear or could not continue with the interview, rather than provide incorrect answers. The person’s claimed inability to hear would not have affected her recollection of her date of birth or the child’s schooling arrangements or the divorce settlement. The Tribunal acknowledges the review applicant’s evidence that she is not well educated but the Tribunal does not consider that such matters are dependent on one’s education levels. Thus, the Tribunal does not accept the problematic evidence was caused by Ms Wang’s claimed inability to hear the questions posed to her or the fact that she was too busy.

12. In oral evidence to the Tribunal the review applicant offered further explanations about Ms Wang’s evidence. In relation to the date of birth, the review applicant explained that when his wife was born, her mother suffered complications and the mother and the child were sent to the ICU overnight and they ‘survived’ the following day. The Tribunal finds that explanation nonsensical, even if these events did occur. The birth occurred at a specific point in time.  Whether or not there were subsequent complications and medical intervention, that does not alter the date of birth. The Tribunal does not accept as plausible that Ms Wang would consider her date of birth as the date the medical intervention was completed rather than the date when she was actually born.

13. The review applicant also said that number 4 is considered unlucky by the Chinese, so his wife always celebrated her birthday not on the 14^th when she was born but the day after and she instinctively gave that date because she always used that date as her birthday. In the Tribunal’s view, the review applicant’s explanation that Ms Wang changed her date of birth from 14^th to 15^th because 4 is an unlucky number contradicts his earlier explanation that his wife considered herself to be born on the 15^th when the medical intervention was completed. The Tribunal acknowledges that number ‘4’ may be considered to be unlucky and that Ms Wang may have used any date as the date of her birthday, but the Tribunal is mindful that Ms Wang was interviewed for an official purpose by officials of the Australian embassy. The Tribunal does not accept that in such circumstances, Ms Wang would give a date of birth that she chose to use rather than the date of birth that is officially recorded on all her papers.

14. The Tribunal also notes that neither Ms Wang nor the visa applicant offered these explanations at the time of the interview or in response to the natural justice letter. For example, Ms Wang did not mention in her interview that her official date of birth is 14 April but she celebrates it on 15 April. In the Tribunal’s, if that explanation was truthful, it would have been offered earlier than at the Tribunal hearing. The Tribunal does not accept the review applicant’s explanations offered to the Tribunal.

15. With respect to the divorce settlement, the review applicant explains that circumstances developed after the divorce settlement. He said that after the divorce, he spoke to the ex-wife about the child’s living arrangements. The bulk of the funds were taken by his ex-wife’s relatives and he did not feel comfortable taking the funds back, so Ms Wang kept the settlement funds. The Tribunal’s concern with that explanation is that the question posed to Ms Wang was not about who was using the funds but who was awarded the funds under the divorce settlement. Either it was the child’s mother or the child’s father and both should have been aware of the terms of the settlement. Who subsequently used the funds is irrelevant. The review applicant explained that Ms Wang answered ‘out of instinct’ and she was not prepared. It is unclear to the Tribunal how instinct would alter Ms Wang’s recollection whether she, or her husband, were awarded RB 100,000 or why she had to prepare for that question.

16. The review applicant’s representative told the Tribunal that the ex-wife is uneducated, probably never read the divorce settlement and did not know what was in it and because she knew she had the money, she answered that she did. The Tribunal does not accept these explanations. The Tribunal is of the view that irrespective of one’s level of education, one would be aware whether or not they had been awarded RMB 100,000 through a formal process. Neither does the Tribunal accept that the ex-wife would be unaware of the content of the divorce document. The Tribunal does not accept she would have signed an official divorce document and divorce settlement having no comprehension of the document.

17. With respect to the teacher’s name, the review applicant suggest that there are over 100 teachers and whoever answered the phone probably thought it was a scam, as people should have teachers’ mobile numbers. The Tribunal finds that explanation implausible. Firstly, the review applicant has no way of knowing that the school believed it to be a scam and the Tribunal is mindful that it is common practice of the DIBP staff to introduce themselves when making inquiries. The review applicant subsequently told the Tribunal that his ex-wife spoke to the school and that is what they told her. The Tribunal does not consider it plausible that the school would recall, weeks or months after the event, the circumstances of what the review applicant claims was one of hundreds of potentially scam calls the school receives daily. The Tribunal also notes that there are no statements from the ex-wife or from the school to confirm the review applicant’s evidence. They have not made themselves available to answer the Tribunal’s questions.

18. Secondly, if the school believed this to be a scam phone call, they could have simply refused to answer the question rather than provide what the applicant claims to be false information. The Tribunal notes that the review applicant presented no evidence that such a teacher exists or works at his son’s school and if that teacher did work in that school, evidence of that teacher’s existence should be available. The Tribunal does not accept the review applicant’s explanation that due to privacy reasons the information could not be obtained, since the applicant told the Tribunal he has a mobile number of a different teacher he invited the Tribunal to contact. (The Tribunal decided not to contact a different teacher because the visa applicant’s present study is not relevant to the issues that arise on review.) The applicant’s own evidence is that teachers’ mobile numbers are available, which is why the school believed the call from Immigration was a scam call. The absence of any independent and probative evidence of the teacher’s existence is of concern.

19. With respect to the phone call to Ms Wang, the review applicant explained that she was busy at work, it was noisy and she was not allowed to talk for a long time. He said that after the phone was disconnected, Ms Wang she did not hear the subsequent calls and she also thought it may have been a scam. The Tribunal is mindful that this is quite different to the explanation the review applicant offered in response to the natural justice letter when he stated, according to the primary decision record, that there was no signal or the signal was interrupted because Ms Wang worked underground, and that is the reason she could not speak. The representative stated that maybe his answers were misunderstood and when he referred to the interrupted signal, he also meant that Ms Wang was busy. With respect, a signal being interrupted is not the same explanation as Ms Wang being busy with work and interrupted by customers and her employer. As for her being busy, as noted above, the Tribunal is of the view that if Ms Wang was unable to participate in the interview, she could have stated so.

20. The review applicant repeatedly told the Tribunal that his ex-wife was not warned about the interview and was not prepared. The Tribunal considers that evidence problematic because as noted above, the questions asked of the ex-wife were fairly basic and if the person interviewed was in fact Ms Wang, there would be no need for her to be warned or prepare for the interview to be able to answer such questions. The Tribunal also considers it problematic that none of the explanations that the review applicant offered to the Tribunal in oral evidence were contained in his response to the delegate. Again, the Tribunal is of the view that if that information was true, the explanations would have been offered at the first available opportunity. The lateness of these submissions suggests these are a recent invention.

21. The Tribunal considers Ms Wang’s evidence problematic and the review applicant’s explanations unpersuasive. For the reasons stated above, the Tribunal does not accept the explanations offered by the review applicant to the delegate and to the Tribunal. The combination of Ms Wang’s answers given in her interview with the DIBP staff suggest she had little knowledge about the visa applicant and the family circumstances. The Tribunal has formed the view that it was not the child’s mother who answered the phone call and spoke to the Immigration officers. The Tribunal acknowledges the representative’s submission that the Department could have asked the mother to attend their office to confirm her identity but that is not the issue. The issue for the purpose of Item 4020 is whether the consent form is a bogus document or whether false or misleading information had been given.

22. The representative submits that the child’s mother wants the child to migrate and there is no point in providing false information. He claims the mother’s identity could have been easily verified. It is not necessary for the Tribunal to determine anyone’s motivations. For the reasons stated elsewhere, the Tribunal is not satisfied it was the child’s mother who signed the form and who gave information during the telephone interview with the DIBP staff.

23. The Tribunal finds that the person whose information was provided on the Consent form 1229 and who was subsequently interviewed by DIBP staff was not the child’s mother. The Tribunal finds identification of the person who signed the Consent Form as the child’s mother constituted information that was false or misleading. That information was relevant to Item 4017 and it was false or misleading in a material particular. The Tribunal finds that there is evidence before the Minister that the applicant has given, or caused to be given, to the Minister or an officer information that is false or misleading in a material particular in relation to the application for the visa. The Tribunal is not satisfied the visa applicant meets PIC 4020(1).

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

24. The requirements of cl.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.

25. 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.

1. For the following reasons, the Tribunal is not satisfied that the requirements should be waived.

2. The review applicant told the Tribunal that the visa applicant lives with his paternal uncle and his family and he hopes they can be reunited. His son does not get along with his relatives and thinks his father does not want him anymore. The review applicant claims his son is being bullied by his cousin. The Tribunal is mindful that compassionate or compelling circumstances need to affect the Australian citizen or resident and not the visa applicant. The Tribunal accepts that the review applicant wants to be reunited with his son but that is not sufficient to establish the existence of compelling or compassionate circumstances affecting the Australian citizen or resident. The review applicant has not referred to any other circumstances.

3. The Tribunal is not satisfied on the evidence before it that there are compelling circumstances that affect the interests of Australia or 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. Therefore the requirements of cl.4020(1) should not be waived.

4. The Tribunal is not satisfied the visa applicant meets PIC 4020. He does not meet cl. 101.227.

5. Further, there is no evidence that the law of the applicant’s home country permits the removal of the applicant. There is no evidence that the grant of the visa would be consistent with any Australian child order in force in relation to the applicant. The Tribunal has formed the view that it was not the child’s mother who signed the Consent form. The Tribunal is not satisfied that each person who can lawfully determine where the applicant is to live consents to the grant of the visa. The Tribunal is not satisfied the visa applicant meets Item 4017 for the purpose of cl. 101.226.

6. For the same reasons, the Tribunal is not satisfied the visa applicant meets the equivalent provisions in other subclasses of this Class.

   Conclusion

7. On the basis of the above, the applicant does not satisfy PIC 4020 for the purposes of cl.101.227 and PIC 4017 for the purpose of 101.226.

   DECISION

8. The Tribunal affirms the decision not to grant the applicant a Child (Migrant) (Class AH) visa.

   Kira Raif
   Senior Member