1501225 (Migration)

[2016] AATA 4003

1501225 (Migration) [2016] AATA 4003 (28 April 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr MD AMINUL ISLAM

VISA APPLICANT:  Mrs SUMA AKTER

CASE NUMBER:  1501225

DIBP REFERENCE(S):  OSF2012/025719

MEMBER:Alan Duri

DATE:28 April 2016

PLACE OF DECISION:  Sydney

DECISION:The tribunal remits the application for a Partner (Provisional) (Class UF) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 309 (Spouse (Provisional)) visa:

·Public Interest Criterion 4020 for the purposes of cl.309.225 of Schedule 2 to the Regulations.

Statement made on 28 April 2016 at 4:18pm

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 20 January 2015 to refuse to grant Mrs Akter a Partner (Provisional) (Class UF) visa under s.65 of the Migration Act 1958 (the Act).

2. Mrs Akter applied for the visa on 29 July 2012 on the basis that she was married to an Australian citizen Mr Islam.

3. The background to this case is as follows:

   ·Mrs Akter is a Bangladeshi citizen who claims to have been born on 29 March 1991.

   ·On 10 March 2012 Mrs Akter married Mr Islam.

   ·Mr Islam was born in 1976 in Bangladesh.  He came to Australia in 1998 on a student visa and he was granted permanent residency in 2007.  He is now an Australian citizen.

   ·Mrs Akter supplied various documents including a birth certificate, a passport and school records to confirm her identity and age.

4. The delegate refused to grant the visa on the basis that Mrs Akter did not satisfy the requirements of cl.309.225 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because public interest criterion 4020 was not met. In particular the delegate did not accept that Mrs Akter was born on 29 March 1991 and suggested that she may be a lot younger. The delegate concluded that the documents lodged in support of Mrs Akter’s claimed age (in particular a school document dated 8 January 2013) were bogus documents. In particular the delegate noted that a site visit to the school indicated that the school letter was false. The school records indicate that Mrs Akter was born in 1997.

   Hearing

5. The review applicant Mr Islam appeared before the tribunal on 29 March 2016 to give evidence and present arguments. The tribunal also received oral evidence from Mrs Akter.  The tribunal hearing was conducted with the assistance of an interpreter in the Bengali and English languages.

6. Mr Islam was represented by his registered migration agent Mr Michael Smith.

7. Before the hearing the tribunal received various material including a letter from Mrs Akter’s father indicating that when he enrolled his daughter at school he provided a younger date of birth because in Bangladesh the age limit to apply for a government job is 30 and that they sent their daughter to school very late.

   Mr Islam’s evidence

8. Mr Islam told the tribunal that he first met Mrs Akter in 2012.  He indicated that their marriage was arranged by their respective families.  Mr Islam explained that his grandfather was friends with Mrs Akter’s father.  Mr Islam told the tribunal that as far as he has been told his wife’s date of birth is 29 March 1991.  He also indicated she has a younger brother who is now 16 years old.  Mr Islam, said the age difference was due to the fact that Mrs Akter’s father worked overseas for long period of time.  

9. Mr Islam indicated he was unaware of any documents that predates the visa application to confirm his wife’s date of birth.

10. The tribunal asked Mr Islam about a reference from the school.  The tribunal noted that the school reference stated that Mrs Akter’s date of birth was 1991, when the records show that her birthdate was in 1997.  The tribunal suggested that this would imply that the document may be bogus.  Mr Akter gave confusing evidence about this document. 

11. Regarding current circumstances Mr Islam indicated that his wife gave birth to a child on 6 December 2015.  Mr Islam spends about half his time in Bangladesh and while in Australia.  He works as a security guard at St George Hospital.  Mr Islam indicated that he has not yet arranged for his child to become an Australian citizen by descent.

    Mrs Akter’s evidence

12. Mrs Akter told the tribunal that she was born on 29 March 1991.  The tribunal asked her how old she was.  She kept repeating her year, date of birth and upon further prompting she indicated she was 25 years old.  Mrs Akter indicated she has no records that predate the visa application confirming her age.  She indicated she was born in the village and a family never kept any documents.  Mrs Akter stated that she has a younger brother who was around 14 years old now.  She suggested that she may have photographs of herself and her younger brother when he was learning to walk. 

    Additional evidence

13. The tribunal indicated that it was satisfied as to Mrs Akter’s identity and foreshadowed that it did not think public interest criterion 4020(2A) applied.  However, the tribunal noted that it is apparent on the facts of bogus document was provided to the department (namely the school reference.) 

14. The tribunal indicated that on the evidence available is not satisfied as to the age of Mrs Akter.

15. The tribunal indicated that it would defer its decision until after the close of business 19 April 2016 take into account any further information or submissions.

16. On 8 April 2016 the tribunal received various photographs of what appears to be tall girl with some younger children.

    CONSIDERATION OF CLAIMS AND EVIDENCE

17. The decision under review concerns whether Mrs Akter meets public interest criterion 4020 as required by cl.309.225 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).

18. 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).  Public interest criterion 4020 is attached to this decision.

19. Clauses 4020(2) and (2B) are not applicable in this case.

    Mrs Akter’s age

20. The central question in this case concerns Mrs Akter’s age at the time of her marriage.    

21. Mrs Akter provided various documents with her visa application suggesting that she was 21 years old at the time of her marriage and visa application.  The various documents are all contemporaneous with the visa application.  The only documents concerning Mrs Akter’s age that pre-date the visa application are her school records that suggest she was 15 at the time of her marriage and visa application.   

22. The tribunal was provided with explanation that Mrs Akter’s age was “lowered” when she went to school so that she would not be disadvantaged if she were to apply for government jobs that that age restrictions. This explanation is rather unsatisfactory as it demonstrates that Mrs Akter is prepared to be whatever age suits her purpose.  However, the tribunal was provided with photos of a child who appears to be Mrs Akter with very young children, one of whom is meant to be her younger brother who is reported to be nine years younger than Mrs Akter.  If the child in question is indeed Mrs Akter’s younger brother, then the photos would corroborate her evidence that she is significantly older than her brother.  However the identities of the people in the photographs have not been confirmed.  Therefore the question about Mrs Akter’s age remains open ended.    

    Delegate’s decision (cl.4020(2A))

23. The basis of the delegate’s decision was that Mrs Akter did not meet cl.4020(2A) which requires an applicant to satisfy the Minister as to his or her identity.

24. The delegate’s reasoning was that Ms Akter has provided false or misleading information or bogus documents concerning her date of birth.  This in turn meant that identity documents such as her passport are unreliable.  The tribunal accepts that Ms Akter’s date of birth has not been satisfactorily determined.  However this does not mean that Mrs Akter is not the person who she says she is.  Notwithstanding problems with her actual date of birth, the tribunal is satisfied as to Mrs Akter’s identity.

25. Therefore cl.4020(2A) is met.

    Has the applicant given, or caused to be given a bogus document, or information that is false or misleading in material particular (cl.4020(1))?

26. Mrs Akter provided the department with a document dated 8 January 2013 from her previous school indicating that the “as per the admission register her date of birth is 29.03.1991”.  However as noted in the delegate’s decision a site visit to the school showed that the school records in fact show Mrs Akter’s date of birth as 18 August 1997. 

27. It is apparent that the document in question contains false or misleading information because the admission register at the school does not show Mrs Akter’s date of birth as 29 March 1991.

28. Therefore, Mrs Akter does not meet cl.4020(1).

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

29. 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 (as defined in r.1.03), that justify the granting of the visa.

30. There is no suggestion that there are compelling reasons affecting Australia in this case.

31. However there is an Australian citizen affected in this case -Mrs Akter’s husband Mr Islam.  Mrs Akter gave birth to a child on 6 December 2015.  To date this child has not been granted Australian citizenship.  However then tribunal has no reason to doubt that the father of the child is Mr Islam, an Australian citizen. It follows that at a prima facie level the child is eligible to become an Australian citizen by descent.

32. Given the birth of the child to an Australian citizen, the tribunal is prepared to accept there compassionate or compelling circumstances that affect the interests of an Australian citizen that justify the grant of the visa.  This is subject to Mrs Akter meeting the remaining criteria for the visa.

33. Therefore the requirements of cl.4020(1) should be waived.

34. On the basis of the above, Mrs Akter satisfies public interest criterion 4020 for the purposes of cl.309.225.

    DECISION

35. The tribunal remits the application for a Partner (Provisional) (Class UF) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 309 (Spouse (Provisional)) visa:

    ·Public Interest Criterion 4020 for the purposes of cl.309.225 of Schedule 2 to the Regulations.

    Alan Duri
    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 a 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. 

    …