YU (Migration)

[2018] AATA 1044

YU (Migration) [2018] AATA 1044 (20 February 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr YUNXIANG YU

VISA APPLICANT:  Miss JING YU

CASE NUMBER:  1701049

DIBP REFERENCE(S):  2015069285

MEMBER:A B Baker

DATE:20 February 2018

PLACE OF DECISION:  Brisbane

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

Statement made on 20 February 2018 at 6:11pm

CATCHWORDS
Migration – Child (Migrant) (Class AH) visa – Subclass 101 (Child) – Visa applicant – Family migrated first without visa applicant – Bogus documentation – Birth certificate with fraudulent information listing the review applicant and wife as the visa applicant’s biological parents – Alleged adoption is implausible – No compelling or compassionate circumstances – Did not satisfy Public Interest Criterion 4020

LEGISLATION
Migration Act 1958, ss 5, 65
Migration Regulations 1994 Schedule 2 cl 101.223 Schedule 4 Criterion 4020

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

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 22 December 2016 to refuse to grant the visa applicant a Child (Migrant) (Class AH) visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant applied for the visa on 18 November 2015. The delegate refused to grant the visa on the basis that the visa applicant did not satisfy the requirements of cl.101.223 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the parties provided a bogus document in relation to the birth of the visa applicant.

3. The review applicant appeared before the Tribunal on 30 January 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant and the review applicant’s son. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

4. The review applicant was represented in relation to the review by his registered migration agent who also attended the Tribunal’s hearing.

5. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   BACKGROUND

6. The parties provided the Tribunal with a copy of the delegate’s decision along with the application for review.

7. The applicant is a citizen of China born on 12 September 2000 (17 years old).

8. The review applicant is a citizen of Australia by grant in July 2013. He first arrived in Australia with his wife, Shi Aiming, and son, Yu Wenjie ion 16 April 2008 on a Temporary Work subclass 457 visa. They were each subsequently granted ENS subclass 856 permanent visas in 2010.

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The issue in this review is whether the visa applicant meets Public Interest Criterion 4020 (PIC 4020) as required by cl.101.223 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 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: 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).

10. 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 material particular?

11. 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.

12. 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.

13. 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.

14. According to parties’ evidence, the review applicant and his wife claim to have been in Dongbi on 6 October 2000 when they saw an abandoned baby, the visa applicant, in a box on a street corner. The review applicant claims there was a note in the box stating that the baby was born on 12 September 2000. The review applicant and his wife decided to take the applicant home and raise her as their own.

15. When the review applicant and his wife and son moved to Australia in 2008 they were unable to include the visa applicant on the application because she did not have a household registration (Hukou). The review applicant claims that the visa applicant stayed with his brother in law whom he authorised to register the visa applicant for a Hukou on 13 June 2011.

16. In August 2015 the review applicant returned to China to discuss with the applicant her past and his plans for her migration. The parties provided a notary certified Hukou with the application showing that the review applicant’s household includes Shi Aiming, Yu Wenjie and Yu Jing. According to this Hukou, the applicant was added to this family unit on 13 June 2011 as a result of a supplementary birth report.

17. No official adoption certification has been provided with the application and no evidence has been provided on the Hukou to demonstrate the declared customary adoption claims of the review applicant. The review applicant has declared in his application that he and Ms Shi (his wife) are not the visa applicant’s biological parents.

18. The delegate contacted the relevant authorities at the Fuqing Public Service Bureau who wrote back to the delegate with the following information:

    a.The visa applicant’s Hukou was attained by submitting her birth certificate upon which the review applicant and Shi Aiming were listed as the applicant’s biological parents.

    b.They have no evidence to provide that the applicant is the adoptive child of the review applicant and Shi Aiming

    c.They were unable to locate documents the review applicant claims to have submitted to support his claims that he adopted the applicant.

    d.The Fuqing PSB has no information or evidence before them to indicate that the applicant was ever abandoned or adopted, but that all information before them, including the applicant’s birth certificate, indicates that the applicant is the biological child of the review applicant and Shi Aiming.

19. The delegate put this information to the review applicant for comment on 23 May 2016 and the visa applicant responded through his nominated representative on 22 June 2016 with the following information:

    a.The review appluicant and his wife Shi Aiming are not the biological parents of the visa applicant

    b.They found the visa applicant abandoned in 2000 and took her home and have been fostering her until now

    c.The review applicant claims that his relative applied for the Hukou in 2011 and declared to the Fuqing PSB that the visa applicant was abandoned. The relative was informed that in order to get a Hukou they needed to provide a birth certificate. The relative therefore attained a birth certificate with non-genuine information listing the review applicant and Shi Aiming as the visa applicant’s biological parents.

    d.The review applicant did not declare the visa applicant as his child at the time of his own migration to Australia because she was not on the Hukou.

    e.The review applicant claims that the visa applicant has been with his family for 16 years and even though he, his wife and son migrated to Australia in 2008, they have maintained contact via QQ, Wechat and telephone

    f.Three statements from the visa applicant’s relatives outlining her living arrangements in China between 2008 and the present.

    g.The review applicant’s wife resigned her job in Australia in August 2015 to return to China to prepare and lodge the visa applicant’s visa application.

    h.Since the review applicant acquired citizenship in 2013 it is difficult and expensive to apply for a visa to visit China.

    i.On 13 March 2016 the visa applicant was assaulted and Shi Aining returned to China to be with her on 19 March 2016

20. The delegate noted that the departmental records indicated that from 16 April 2008 when the review applicant migrated to Australia and the date the application was lodged on 18 November 2015, the review applicant was outside Australia for a total of 108 days and Shi Aining was outside Australia for a total of 214 days.

21. The delegate did not find that any compelling or compassionate circumstances exist to waive the requirement of PIC 4020 and the visa was refused. The delegate was not satisfied that the child-parent relationship between the visa applicant and the review applicant was significantly closer than any such relationship between the visa applicant and any other person.

22. In their submission to the Tribunal the parties made the following claims:

    a.In 2000 it was not possible for the review applicant and Shi Aining to formally adopt the visa applicant because of China’s strict adoption laws.

    b.In 2011 the review applicant was still unable to register the visa applicant in his household registration as an adopted child due to lack of a sound legal system. As it was critical for the visa applicant to have the registration so that she could attend school, the review applicant and Shi Aining had to rely on corrupt personal relationships and put his and his wife’s names as the visa applicant’s biological parents.

    c.The rate of informal adoption in China is very high and it is common to register an adopted child as a biological child because of the imperfect adoption legislation.

    d.Despite not living with the review applicant and his wife since 2008, the visa applicant claims that they are her birth parents in her heart and life.

    e.Because of the necessity to repay a large debt and limited income the review applicant could not visit the visa applicant but instead used his money to ensure her education.

    f.Whilst not declared as a member of the review applicant’s family, the visa applicant has been mentioned in the application of her sister-in-law’s Australian partner visa application (undated).

23. The visa applicant also provided a personal statement in which she makes the following statements:

    a.The review applicant and his wife gave her a very beautiful childhood and an elder brother.

    b.Her family members cannot call her frequently as it is difficult for them in Australia but she always felt they were her parents.

    c.In 2016 she was assaulted on her way home and the review applicant’s wife gave up everything in Australia to immediately return to China to be with her.

24. The review applicant made the following claims in a statement to the Tribunal:

    a.He picked up the visa applicant as an abandoned child in 2000 and registered her under his household in 2011.

    b.There are documents at the Longtian Police Station affirming this.

    c.Photos of the visa applicant and himself over the years prove that she grew up with his family.

    d.They did not put the visa applicant on their 457 and 856 applications because they did not have a Hukou for her.

    e.Only orphanages can issue an adoption certificate after confirmation that parent do not have the ability to conceive their own children. As the visa applicant was picked up off the street, she did not conform to the conditions for an adoption.

    f.He and his wife were accused of the crime of early marriage and childbirth in 1995 and his wife was sent to jail for three months as a result.

    g.He spent tens of thousands of RMB to get the visa applicant’s birth certificate and household registration. He claims that his relatives told him that they could the certificate to reflect the correct information in the future as long as he paid for it.

    h.He admits to be at fault but only because they were born in such a corrupt country with an imperfect legal system. They had no choice.

    i.They purchased a house in Brooksbank through hard work in and 2015 felt they were in a financial position such that they could bring the visa applicant to Australia.

    j.The visa applicant was assaulted in 2016 and the review applicant’s wife returned to China to look after her.

    k.His wife is not working and he is supporting the whole family on his own. He is only doing piece work at the moment and he misses the visa applicant and his wife who has returned to China to look after the visa applicant.

25. The Tribunal notes that the review applicant has a $500,000 mortgage and was able to make deposits of over $261,000 against that mortgage between 17 November 2015 and 11 January 2018.

    Tribunal hearing

26. The following is a summary of the parties’ evidence at the Tribunal hearing in a narrative form, and not necessarily in the order which it was given.

27. The review applicant told the Tribunal that the reason why he could not change his daughter’s birth certificate to reflect that he and his wife are not her biological parents is because there was a crackdown on corruption at the time. He claims that his relative was told that he would be able to change the information on the birth certificate in the future but because of the crackdow2n the officials did not want to get into trouble so they refused to change the certificate. The review applicant claims that he was not engaged in deceptive behaviour and the Tribunal should focus on whether his daughter is adopted.

28. The Tribunal asked for any evidence that the visa applicant had been adopted by her and he claimed that the hukou was the legal document that proved one’s identity. He claims therefore that there is an officially acknowledged document that his daughter is on his household registration.

29. The review applicant claims he picked up his daughter in October 2000 when he was on his way to his mother-in-law’s house. He claimed that he heard a baby cry near a school where he lived. He looked around and found a box and in the box there was a baby. Asked who was with him at the time the review  applicant said that there was a group of people watching and he asked them who the child belonged to. He said that he came to the view that it was abandoned because it was left there in a box and crying. He said that he asked if anyone wanted to take the baby home but he said that the family planning policies at the time were so strict that no one dared to take the baby home. He said he felt helpless and didn’t want to leave the baby so he and his wife took him home.

30. Asked why he didn’t take the baby to the authorities such as the police or a hospital or orphanage the review applicant said that he had very complex moods and suffered from the family planning police once himself because he and his wife married early and had a baby. He claims that as a result he was put in prison for three months. The Tribunal asked the review applicant what the difference between what he did in relation to taking a child off the street and taking her home and kidnapping. The Tribunal suggested that the baby may have been kidnapped herself and then abandoned and her parents may still be looking for her. The review applicant said that at the time it was very common for babies to be abandoned near a hospital or school because of family planning policies.

31. The Tribunal asked the review applicant why he risked taking another child home if the one child policy was so strict at the time and he said that he really wanted a girl and was lucky to have picked up a girl baby by chance. The Tribunal suggested to the review applicant that it could be viewed as a kidnapping as he did not report the matter to the policy. The review applicant said he wanted to protect the baby from being started. The Tribunal put to him that she wouldn’t be starved if he took her to a hospital or an orphanage. The review applicant claimed he was in disorder at the time and didn’t know what to do.

32. The review applicant told the Tribunal that when the visa applicant was five years old he declared her to the relevant authorities. Asked to clarify what that meant the review applicant claimed that he wanted to put to the baby’s name on the household registration book so that she would have a legal identity. He said that when he went to the police station to put the baby’s name in the book he was told that he needed evidence from the orphanage. The Tribunal put to the review applicant that it appeared that the police wanted to ensure that the baby was in his custody lawfully. He said that he wanted to protect the baby but when he went to get the certificate he was told that he was keeping the baby illegally. He said that he went to an orphanage but was told that he did not meet the requirements to adopt.

33. The Tribunal put to the review applicant that it was finding his account of the adoption of the visa applicant implausible. The Tribunal put to the review applicant that if it formed a view that he was not being truthful about his account of adopting the visa applicant then it would be a reason for affirming the decision. The Tribunal put to the review applicant that he should provide as much detail as he could about those events so that the Tribunal may be persuaded that the account is a genuine recollection of events and not a contrivance.

34. The review applicant claimed that he found the baby at around 5 am when he was on his way to his mother-in-law’s house. He did not recall if it was a weekday or a weekend. He said the sun was up and it was not raining and they were rushing to catch a boat to see his mother in law. He said he found the child near the third middle school and he and his wife went straight home. When they got home the review applicant said that his wife asked him to go to the shop to get some milk and bottles. The review applicant’s account of how his wife and himself came to a decision to keep the baby rather than take her to the authorities lacked credibility. At first he said that his moods were complicated and his wife suggested that they take the baby home. That evening he claims that he said that they couldn’t keep the child because of family planning policy. He said that after a week they decided that they were going to keep the baby. He said that he and his wife discussed every option including putting the baby back in a box on the street but thought that they might put her at an entrance to a hospital. Asked if they considered taking her to an orphanage or the police station in that first week the review applicant said that it wasn’t an option. He said it was complicated and he couldn’t think clearly.

1. The review applicant told the tribunal that his son was ten years old at the time he brought the visa applicant home. Asked how he explained her presence to him he said that he told his son that he had a younger sister and he was very happy. When the Tribunal questioned the review applicants son about this matter he told the Tribunal that he returned home from school one day and was told that he had a baby sister. Asked if he had ever been told the circumstances in which she was found he said that his parents didn’t tell him and he didn’t ask. He said that after he grew up he learned that the visa applicant was picked up from outside but nothing more.

2. The Tribunal asked to speak with the review applicant’s wife but was told that she spoke a dialect different to the interpreter.

3. The Tribunal asked the review applicant whether the visa applicant required a birth certificate to be enrolled in kindergarten and he said that she did not. He claimed that he did not. The Tribunal suggested that he would have needed to provide a birth certificate to enrol the visa applicant into kindergarten and he said that they only needed a birth certificate in middle school. The Tribunal put to the review applicant that it was finding that implausible.

4. The Tribunal asked what compelling and compassionate circumstances he wanted to the Tribunal consider in forming a view as to whether it would waive the PIC4020 criteria and he said that the circumstances of obtaining the document should be seen in the context of the visa applicant’s adoption. He said he did everything out of protecting the rights of his child to go to school.

5. The Tribunal asked if there was any evidence that the visa applicant lived with him as his daughter in his household between the year 2000 and 2008 and he said that there were photographs of the visa applicant from her whole life.. The Tribunal put to him that there were some statements claiming that he had adopted the visa applicant and that she had lived with him as a member of his family in those years but those statements were written in 2016 and the Tribunal may not be minded to give them much weight as they were not contemporaneous documents.

6. The Tribunal put to the review applicant that the visa applicant had spent most of her life with other relatives and not him. The Tribunal asked him how it could therefore be the case that his relationship with her was more important than her relationship with anyone else that she has been living with for longer periods of time. The review applicant said that he could not afford to bring her to Australia until 2015 as they were all in deep debt. He said that he had sent money to the visa applicant though various relatives over the years and provided some documentary evidence to support that claim.

7. The tribunal put to the review applicant that nevertheless he was able to make payments of over $261,000 against his mortgage between November 2015 and January 2018 and lend $40,000 to his niece Mei Mei Wen in April 2017. The review applicant said that his wife and son help him with the mortgage and they paid it off with their salaries. In a written submission provided to the Tribunal after the hearing the review applicant submits that their joint income between 2012 and 2018 was close to $650,000. The review applicant claims that between 2011 and 2018 he sent the visa applicant around AUD$114,528.44.

8. The Tribunal asked the visa applicant what she understood about the circumstances of her adoption and she claims that she only discovered that she was adopted in 2015 when the review applicant was preparing material for her visa application. She claims that the review applicant told her that she was picked up near the entrance to third middle school. Despite prompting the visa applicant was unable to provide the Tribunal with any further detail.

9. The Tribunal put to the review applicant that it was forming a view that their account of the adoption was contrived and asked for his response. The applicant told the Tribunal that they were victims of a corrupt system. The Tribunal put to the review applicant that it was difficult for the Tribunal to form a view about who the visa applicant actually was; if she was adopted or their natural child. The Tribunal told the review applicant that he could ask for some additional time to provide more information or evidence to the Tribunal in response to the concerns it put to him. The review applicant asked for some additional time and the Tribunal agreed to receive his submission by 13 February.

10. The parties sent the Tribunal  a number of documents after the hearing, including the following: A further statement by the review applicant; Certificate of vaccination for the review applicant; Statements by the review applicant’s brother and sister in law and transaction records regarding the visa applicants living fees from 2008-2010; Statements by friends and neighbours stating that the visa applicant was the adopted daughter of the review applicant; PAYG payslips and tax returns for the review applicant, his wife and son and a statement by Mei Mei Weng regarding the $40,000 lent to her by the review applicant.

11. Where relevant the Tribunal has incorporated this information in its reasons and findings below.

    REASONS AND FINDINGS

12. The Tribunal is satisfied that the applicant has given, or caused to be given to the Minister, and the Tribunal a ‘bogus document’ as defined in s.5(1). The Tribunal is satisfied that the information is a material particular as defined in PIC4020(5), in that it is information that was false and misleading at the time it was given and it was relevant to the criteria the Minister may consider when making a decision on an application.

13. The review applicant has admitted that he has provided a false document, in the form of the visa applicant’s birth certificate to the department. He claims that he did so because the visa applicant was found by himself and his wife on the street and she was never formally adopted because of a corrupt and deeply flawed legal system in China.

14. The review applicant claims that he declared himself and his wife as the visa applicant’s biological parents because the visa applicant was never formally adopted by them but literally picked up off the street. The review applicant told the Tribunal that he was told by his relative who made the application for a birth certificate on his behalf that they could change the details of the child’s biological parents at a later date. Asked by the Tribunal what details he planned to give the authorities about the visa applicant’s actual biological parents, the review applicant was unable to provide an answer.

15. The Tribunal has formed a view that the account of the visa applicant’s alleged adoption is so implausible as to be fanciful. The Tribunal does not accept that the review applicant and his wife found the visa applicant on the street and simply brought her home with them without notifying authorities of some kind including the police, a hospital or an orphanage. The review applicant understands that his “adoption” of the visa applicant was illegal. He gave evidence that he tried to have her registered as adopted when she was five but was required to have adoption papers which he did not have.

16. The Tribunal does not accept that the visa applicant and the review applicant’s son were given so little information about the circumstances surrounding the visa applicant coming into their family. It is no small thing, bringing home an infant that one has claimed was picked up off the street. It seems implausible in the extreme that the story of the visa applicant’s “adoption” was not discussed, told and retold within the family and that the visa applicant herself was unable to provide any relevant detail about the unusual circumstances surrounding her “adoption” by the review applicant.

17. The review applicant’s account of obtaining a birth certificate for the visa applicant in 2011 is also implausible. The Tribunal finds it hard to believe that in a totalitarian country such as China a child would be permitted to enrol in kindergarten or primary school without a birth certificate.  Whilst accepting that it may be possible for a relative to register the birth of the visa applicant and apply for a birth certificate, the Tribunal does not accept that it could be done without relevant documents, such as evidence of the child’s birth, for example. Since the entire Hukou system is a way of regulating family size and family membership, it seems counter intuitive for the Chinese authorities to be registering births of children to people without any proof.

18. The Tribunal does not place any weight on the statements of friends and neighbours hat the visa applicant is the adopted daughter of the review applicant. These statements provide no details of the visa applicant’s adoption, let alone any proof of it.

19. Nor does the Tribunal accept that the review applicant would have left the visa applicant behind if she was truly considered his daughter, adopted or otherwise. Its incomprehensible to the Tribunal that, having rescued an infant from the street despite the penalties associated with doing so, he would then abandon her in China whilst he and the rest of the family migrated to Australia.

20. Having regard to all the evidence and the totality of the parties’ circumstances, the Tribunal is satisfied that the applicant does not meet PIC 4020(1).

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

21. 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.

22. 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.

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

24. The Tribunal has considered whether there are compelling circumstances that affect the interests of Australia or of an Australian citizen that justify the granting of the visa.

25. The parties claim that the visa applicant was assaulted in 2016 and she has suffered mentally since that time. They claim that the review applicant’s wife returned to China to look after her because she was so badly affected by this event. They have provided no proof of it and even so, the Tribunal does not consider the assault as a compelling or compassionate reason such that it would justify the granting of the visa.

26. The parties claim that the visa applicant is part of the visa applicant’s family and they want to be reunited. However the evidence before the Tribunal is that the visa applicant took his wife and son to Australia in 2008 when the visa applicant was just 8 years old, thus abandoning her a second time, if his account of her ‘adoption’ is to be believed. The review applicant claims that he was not financially settled and able to bring the visa applicant to Australia prior to lodging the application in 2015. He claims that he wanted to buy a house so that the visa applicant would have somewhere nice to live when she came here. Again, the evidence is that the review applicant is financially very sound and was able to transfer to the visa applicant a sum of over $120,000 whilst paying more than $260,000 off his mortgage on a combined income of $650,000 over the same period. Be that as it may, it seems to the Tribunal that if one was determined to reunite a family, especially to bring a hitherto twice-abandoned child back into the arms of his loving family, he would not have waited for so long. In any event, the visa applicant at best has lived with the review applicant and his family for a total of 8 years. She is now 18 years old.

27. Whoever the visa applicant is, the Tribunal is not satisfied that she is either the biological or adopted daughter of the review applicant and thus holds grave concerns for her wellbeing.

28. Equally, for all the reasons above, the Tribunal is not satisfied that there are any compelling or compassionate circumstances to justify the granting of the visa.

29. Therefore the requirements of PIC 4020(1) should not be waived.

    CONCLUSION

30. On the basis of the above, the applicant does not satisfy PIC 4020 for the purposes of cl.101.223.

31. There is no evidence before the Tribunal that the visa applicant meets any of the other criteria for any other subclass of visa within the class of visa sought.

    DECISION

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

    A B Baker
    Senior 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. 

    …