YANG (Migration) - [2018] AATA 4764

YANG (Migration) [2018] AATA 4764 (12 October 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Miss Hanxu YANG
CASE NUMBER:  1721010
DIBP REFERENCE(S):  CLF2016/58490
MEMBER:Russell Matheson
DATE:12 October 2018
PLACE OF DECISION:  Sydney
DECISION:The Tribunal remits the application for a Child (Residence) (Class BT) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 802 (Child) visa:
·Public Interest Criterion 4020 for the purposes of cl.802.223 of Schedule 2 to the Regulations.

Statement made on 12 October 2018 at 8:06am

CATCHWORDS
MIGRATION – Child (Residence) (Class BT) visa – Subclass 802 (Child) visa – bogus documentation – birth certificate inconsistencies – name change – DNA testing – sponsor biological father – compassionate and compelling reasons – father wholly reliant on sponsor for support – sponsor’s health issues – applicant cares for sponsor – decision under review remitted for reconsideration
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2 cl 802.223 Schedule 4 PIC 4020
CASES
Arora v MIBP [2016] FCAFC 35
Batra v MIAC [2013] FCA 274
Kaur v MIBP [2017] FCAFC 184
Trivedi v MIBP [2014] FCAFC 42
Plaintiff M64/2015 v MIBP [2015] HCA 50
Singh v Minister for Immigration & Anor [2017] FCCA 2461
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 Immigration on 30 August 2017 to refuse to grant the applicant a Child (Residence) (Class BT) visa under s.65 of the Migration Act 1958 (the Act).
The applicant applied for the visa on 27 September 2016. The delegate refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl.802.223 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the delegate found that the visa applicant had provided information that was false or misleading in material in respect of the visa application and did not meet Public Interest Criterion 4020. The applicant seeks review of the delegate’s decision.
The applicant appeared before the Tribunal on 9 October 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor. 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 matter should be remitted for reconsideration.
BACKGROUND
The applicant is a 21 year old Chinese national born to the first marriage of the sponsor (her father) to Ms Ying Qin. The applicant was born in a country village of Jilin Province at the local hospital Yanming Lane Clinic. The applicant arrived in Australia attached to the visa application as the step-child of the sponsor’s second wife on a Subclass 309 visa in November 2014. The applicant completed her high school studies at Kogarah High School and is currently studying Project Management at…

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 YANG (Migration)

Details

AGLC: YANG (Migration) [2018] AATA 4764
Case: [2018] AATA 4764
Decision Date: 12 October 2018

CaseChat Overview and Summary

This matter concerned an application for a Child (Residence) (Class BT) visa, Subclass 802, made by a 21-year-old Chinese national. The applicant sought review of a decision concerning her eligibility for the visa, which hinged on her compliance with Public Interest Criterion (PIC) 4020. The applicant's sponsor was her father, an Australian citizen, who had previously sponsored the applicant's stepmother to migrate to Australia.

The primary legal issue before the court was whether the applicant had provided any bogus documentation or false or misleading information in relation to her visa application, thereby failing to satisfy PIC 4020. This criterion requires that an applicant has not provided bogus documents or false or misleading information, and has not had visas refused due to such failures, with specific provisions for identity requirements. The court also considered whether there were any compelling or compassionate circumstances that might justify a waiver of certain PIC 4020 requirements.

The court reasoned that the applicant had satisfied PIC 4020. While there were initial concerns regarding inconsistencies in documentation, such as a birth certificate, and the potential for name changes, the court found no evidence that the applicant had knowingly provided bogus documents or false or misleading information material to the visa application. The court noted that the definition of a "bogus document" under section 5(1) of the Migration Act 1958 did not require the false or misleading statement to be relevant to a visa criterion, but in this instance, the applicant's identity and the authenticity of her documents were ultimately established.

Consequently, the court remitted the application for a Child (Residence) (Class BT) visa for reconsideration. The direction was that the applicant be taken to have met Public Interest Criterion 4020 for the purposes of clause 802.223 of Schedule 2 to the Regulations.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The sponsor is a 46 year old male who migrated to Australia in 2006 on an independent skilled migrant (Subclass 136) visa. The sponsor became an Australian permanent resident in 2007 and was granted Australian citizenship in 2012. The sponsor divorced his first wife and met and married another Chinese national and sponsored her to come to Australia on a Subclass 309 visa with the applicant attached as her step-child in November 2014. The sponsor’s second wife subsequently returned to China and the applicant remained in Australia with her father.CONSIDERATION OF CLAIMS OF EVIDENCE The issue in this review is whether the visa applicant meets Public Interest Criterion 4020 (PIC 4020) as required by cl.802.223 for the grant of the visa. Broadly speaking, this requires that:·there is no evidence that the applicant has given, or caused to be given, to the Minister, an officer, the Tribunal, a relevant assessing authority, or Medical officer of the Commonwealth, a bogus document or information that is false or misleading in a material particular in relation to the application for the visa or a visa that the applicant held in the 12 months before the application was made: PIC 4020(1); and·the applicant and each member of the family unit has not been refused a visa because of a failure to satisfy PIC 4020(1) during the period starting three years before the application was made and ending when the visa is granted or refused, unless the applicant was under 18 at the time the application for the refused visa was made: PIC 4020(2) and (2AA); and·the applicant satisfies the Minister as to his or her identity: PIC 4020(2A); and ·neither the applicant nor any family unit member has been refused a visa because of a failure to satisfy PIC 4020(2A) during the period starting 10 years before the application was made and ending when the visa is granted or refused, unless the applicant was under 18 at the time the application for the refused visa was made: PIC 4020(2B) and (2BA). The requirements in PIC 4020(1) and (2) can be waived if there are certain compelling or compassionate reasons justifying the granting of the visa: PIC 4020(4). However, this waiver does not apply to the identity requirements in PIC 4020(2A) and (2B). PIC 4020 is extracted in the attachment to this decision.Has the applicant given, or caused to be given a bogus document, or information that is false or misleading in a material particular? The term ‘information that is false or misleading in a material particular’ is defined in PIC 4020(5) and the term ‘bogus document’ is defined in s.5(1) of the Act (see the attachment to this decision). In contrast to the definition of ‘information that is false or misleading in a material particular’ in PIC 4020(5), the reference in the definition of bogus document to a document that was obtained because of a ‘false or misleading’ statement has no requirement that it be relevant to a criterion for the grant of the visa: Arora v MIBP [2016] FCAFC 35; Batra v MIAC [2013] FCA 274.

Decision

Reasons for decision

On the basis of the above, the applicant satisfies PIC 4020 for the purposes of cl.802.223.DECISION The Tribunal remits the application for a Child (Residence) (Class BT) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 802 (Child) visa:·Public Interest Criterion 4020 for the purposes of cl.802.223 of Schedule 2 to the Regulations.Russell MathesonMemberATTACHMENTMigration 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

For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.BACKGROUND The applicant is a 21 year old Chinese national born to the first marriage of the sponsor (her father) to Ms Ying Qin. The applicant was born in a country village of Jilin Province at the local hospital Yanming Lane Clinic. The applicant arrived in Australia attached to the visa application as the step-child of the sponsor’s second wife on a Subclass 309 visa in November 2014. The applicant completed her high school studies at Kogarah High School and is currently studying Project Management at the Australia Vocational Training Institute in Sydney. The sponsor is a 46 year old male who migrated to Australia in 2006 on an independent skilled migrant (Subclass 136) visa. The sponsor became an Australian permanent resident in 2007 and was granted Australian citizenship in 2012. The sponsor divorced his first wife and met and married another Chinese national and sponsored her to come to Australia on a Subclass 309 visa with the applicant attached as her step-child in November 2014. The sponsor’s second wife subsequently returned to China and the applicant remained in Australia with her father.CONSIDERATION OF CLAIMS OF EVIDENCE The issue in this review is whether the visa applicant meets Public Interest Criterion 4020 (PIC 4020) as required by cl.802.223 for the grant of the visa. Broadly speaking, this requires that:·there is no evidence that the applicant has given, or caused to be given, to the Minister, an officer, the Tribunal, a relevant assessing authority, or Medical officer of the Commonwealth, a bogus document or information that is false or misleading in a material particular in relation to the application for the visa or a visa that the applicant held in the 12 months before the application was made: PIC 4020(1); and·the applicant and each member of the family unit has not been refused a visa because of a failure to satisfy PIC 4020(1) during the period starting three years before the application was made and ending when the visa is granted or refused, unless the applicant was under 18 at the time the application for the refused visa was made: PIC 4020(2) and (2AA); and·the applicant satisfies the Minister as to his or her identity: PIC 4020(2A); and ·neither the applicant nor any family unit member has been refused a visa because of a failure to satisfy PIC 4020(2A) during the period starting 10 years before the application was made and ending when the visa is granted or refused, unless the applicant was under 18 at the time the application for the refused visa was made: PIC 4020(2B) and (2BA). The requirements in PIC 4020(1) and (2) can be waived if there are certain compelling or compassionate reasons justifying the granting of the visa: PIC 4020(4). However, this waiver does not apply to the identity requirements in PIC 4020(2A) and (2B). PIC 4020 is extracted in the attachment to this decision.Has the applicant given, or caused to be given a bogus document, or information that is false or misleading in a material particular?