1621746 (Migration)

1621746 (Migration) [2018] AATA 2516 (6 April 2018)
CORRIGENDUM
DIVISION:Migration & Refugee Division
CASE NUMBER:  1621746
MEMBER:Moira Brophy
DATE OF DECISION:  6 April 2018
DATE CORRIGENDUM
SIGNED:17 July 2018
PLACE OF DECISION:  Sydney
AMENDMENT:  The following corrections are made to the decision:

The words ‘the applicant meets the following criteria for a Subclass 820 (Spouse) visa’ in paragraph 32 should be replaced with ‘the applicant meets the following criteria for a Subclass 309 (Spouse (Provisional)) visa’.
Moira Brophy
Member

DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1621746
MEMBER:Moira Brophy
DATE:6 April 2018
PLACE OF DECISION: Sydney
DECISION:The Tribunal remits the applications for Partner (Provisional) (Class UF) visas for reconsideration, with the direction that the first named applicant meets the following criteria for Subclass 309 (Spouse (Provisional)) visas:
·Public Interest Criterion 4020 for the purposes of cl.309.225 of Schedule 2 to the Regulations.
Statement made on 06 April 2018 at 3:50pm

CATCHWORDS
Migration – Partner (Provisional) (Class UF) visa – Subclass 309 (Spouse(Provisional)) – Bogus document – Identity requirements – Originating identification documents – Unable to travel to home country – Attested Taskiras – DNA testing for children – Ongoing communication and financial support – Decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2 cl 309.225, Schedule 4 PIC4020
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.
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 26 October 2016 to refuse to grant the applicants Partner (Provisional) (Class UF) visas under s.65 of the Migration Act 1958 (the Act).
The applicants applied for the visas on 30 June 2013. The delegate refused to grant the visas on the basis that the first named applicant (the applicant) did not satisfy the requirements of cl.309.225 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the delegate was not satisfied the applicant had satisfied the identity requirements and therefore she did not meet PIC 4020 (2A).
The review applicant appeared before the Tribunal on 16 January 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the visa [applicant], from [Ms A] and from [the review applicant’s] case [worker]. The Tribunal hearing was conducted with the assistance of an interpreter in the Pashto (Afghanistan) and English languages.]
The review applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
Background
The review applicant was born in Afghanistan and is currently [age] years old. He first entered Australia on 30 June 2001 as an unlawful maritime arrival. He was granted a Protection visa on 6 July 2005. He became an Australian citizen [in] August 2013.
The review applicant married the first named visa applicant in or around October 1995 and they have six children together. The application is for the applicant and their six biological children. The original application was also for the brother of the review applicant but that application has now been withdrawn as he is deceased.
The applicants applied for the visas on 30 June 2013. In support of the application the applicants submitted their Afghani National Identity Documents (known as a Taskira) and a copy of their passports issued by the Consulate General of the I.R. of Afghanistan. The Taskiras provided were attested English translations. The passports were handwritten and had an expiry date of [2015]. The department requested they be provided with the source document for the attested Taskiras. Having been advised by the agent for the review applicant that those documents had been provided, the department advised on 15 January 2015 that the documents provided were not sufficient to satisfy the identity requirement. The applicant was given time to comment. On 3 May 2015 the applicant’s agent advised no further documentation could be obtained as the applicant was not able to travel to Kabul to obtain official identity documents. A reply was sent indicating the requirements of the legislation had not been met by the documents already provided. Further requests were made by the department. The department was able to locate copies of the original Taskiras submitted by the secondary applicants at the time application was made for Refugee and Humanitarian visas. They were not able to locate a copy of the original Taskira for the primary applicant. DNA testing was conducted on all six secondary applicants and it was supportive of the claimed familial relationship.
The delegate refused to grant the visas on the basis that the first named applicant (the applicant) did not satisfy the requirements of cl.309.225 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the delegate found that the applicant had failed to satisfy the identity requirements and as a consequence did not meet Public Interest Criterion 4020 (PIC 4020 (2A)). Since PIC 4020(2A) was not met there was no provision to waive under PIC 4020(4).
Information to the Tribunal
The review applicant provided the following prior to hearing:
·Submission;
·A statement from [the review applicant]
·Refugee and Humanitarian (Class XB) visa- Decision Record;
·Copy of Citizenship papers for [the review applicant];
·Copy of Afghan passports for visa applicants issued [in] 2017;
·Medical Certificate for [the review applicant] dated [in] July 2017;
·Certified Taskiras for six visa applicants;
·Passport biodata page for [the review applicant];
·Passport biodata page for [the applicant’s child]
Tribunal Proceedings
The review applicant told the Tribunal that he currently resides in an [apartment]. He has lived there for the past 12 years and it is a social housing property. The rent is $[amount] per month and the property has two bedrooms. He lives there alone. He is currently in receipt of a Centrelink income. He is on disability support pension and is paid $[amount] per fortnight. He said that he had previously been employed but he was hit by a [vehicle] [in] his last week of training for a job. That was in 2014 and he was not entitled to any compensation.
As a result of that accident about 13 months ago he has had to have [surgery] and he has ongoing problems. His leg is still weak and he has limited ability to move freely. Prior to this accident he had had to have [another] surgery as a result of being harmed while he was in detention camp in 2008. He also has [a physical impairment] from the use of [items] in the detention centre which has damaged his [body part]. He has been advised that correctional surgery for his [impairment] may cause damage to his [other body parts]. The review applicant said that he is currently on three types of medication, two antidepressants and one pain killer for his legs. He sees his GP on a regular basis. He is in the process of changing his psychologist and is currently awaiting an appointment.
The review applicant said that his wife and children are currently living in Islamabad in Pakistan. They are in a two story house with another family being on one floor and his family being on the first floor. This property is rented and the review applicant sends $[amount] every three months to assist with the payment of the rent. He receives assistance financially from a supporter.
When asked about his wife’s health he said that she is generally good but she has elevated blood pressure. The children are all in good health.
The review applicant said the 17 year separation from his family has been very difficult both for him and for the family. He tries to have as much contact as he can but whenever he sees the children it makes him very sad. He spoke to his wife yesterday and he generally speaks to her four or five times per week.
The visa applicant gave evidence consistent with the evidence of the review applicant in terms of where she lived and of the health and well-being of her and the children. She corroborated his evidence as to their ongoing communication and his financial support for her and the children. She said that she and the children had now been in Islamabad for four years and that she was waiting and hoping that they would soon be reunited as a family.
[A] caseworker from [an organisation] told the Tribunal that he had known the review applicant for 18 years in both a professional and personal sense. He said he had known him professionally because he had provided support services to people who were coming out of detention. He has been a member of [the organisation] since 2010. He said that he was endeavouring to allocate educational support services to the review applicant. He said that the agent representing the review applicant had contacted him about this matter and he had witnessed the impact of the separation from his family on him.
[Ms A] told the Tribunal that she had been involved with the review applicant since 2003. She had established phone contact with him while he was still in [a location] and when he was released from there she had met him and got to know him personally. She had witnessed his struggles to reunite his family and had seen how he had tried to work to support them. She said he was very supportive of other members of the community in a similar situation to his. She said where the family were now in Islamabad it was dangerous for them. [Ms A] said that he had suffered greatly from the separation and particularly when he needed surgery. That surgery was as a result of injuries sustained while he was in detention. [Ms A] said the review applicant was now like a member of her family and she has provided financial support to him to enable him to go and visit his family. She said she sees him at least on a weekly basis.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this review is whether the visa applicant meets Public Interest Criterion 4020 (PIC 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: 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).
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.
Public interest criterion (PIC) 4020 was inserted in cl.309.225 by the Migration Legislation Amendment Regulations 2013 (No.3) (SLI2013. No.146) (the amending regulations), which commenced on 1 July 2013. The transitional provision states that this amendment applies in relation to an application for a visa made, but not finally determined before 1 July 2013 or made on or after 1 July 2013: see item 2 of Schedule 10 to the amending regulations.
The requirements in PIC 4020(1) and (2) can be waived if there is certain compelling or compassionate reasons justifying the granting of the visa: PIC 4020(4).
The delegate has determined this matter applying the provisions that came into force under Select Legislative Instrument no 32 of 2014. Select Legislative Instrument no 32 of 2014 inserted PIC 4020 (2A) and this provision applied to visa applications not finally determined at 22 March 2014 and visa applications made on or after that date.
Has the applicant satisfied the identity requirements?
Clause 4020(2A) requires an applicant satisfy the Tribunal as to his or her identity. The Tribunal has set out above the documents previously provided and the efforts of the review applicant to assist when advised further and better documentation was required.
At the time of hearing a copy of Afghan passports for visa applicants issued [in] 2017 were provided along with certified copies of Taskiras for:
·[Primary visa applicant]
·[Third named applicant]
·[Name]
·[Second named applicant]
·[Sixth named applicant]
·[Fifth named applicant]
·[Fourth named applicant]
The Tribunal appreciates the concerns raised by the primary decision maker as to the lack of originating identification documents. The Explanatory Statement to Select Legislative Instrument no 32 of 2014 specifically states that when considering the applicant’s circumstances regard can be had for the availability of identity documents to the applicant. The letter dated [in] March 2016 from Deputy Consul General of the Republic of Afghanistan addresses the issue as to why there are no originating identification documents. The family claimed they were not able to travel to Kabul to obtain further documentation. The Tribunal is satisfied the explanation for the lack of originating documents is in all the circumstances reasonable. In addition to the documents listed above the Tribunal does have before it a DNA testing for all the children including [one child] DOB [deleted] who is an Australian citizen. DNA testing confirms the five children listed as secondary applicants and [the other child] are the biological children of the review applicant and the primary applicant.
When these documents are considered and in the absence of any evidence to the contrary the Tribunal is persuaded that the documents provided are sufficient to satisfy the identity requirements.
The Tribunal is satisfied on the documentation before it as to the identity of the primary applicant and the five secondary applicants.
Therefore, the applicants do meet cl.4020(2A).
Has a visa previously been refused on the basis of a failure to satisfy cl.4020(2A)?
Clause 4020(2B) requires that neither the applicant nor any family unit member have been refused a visa because of a failure to satisfy the identity requirements in cl.4020(2A) during the period starting 10 years before the application was made and ending when the visa is granted or refused. This requirement does not apply to a person who was under 18 at the time the application for the refused visa was made: cl.4020(2BA).
There is nothing before the Tribunal to indicate the applicant nor any family unit member has been refused a visa due to a failure to satisfy identity requirements.
DECISION
The Tribunal remits the application for a Partner (Temporary) (Class UK) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 820 (Spouse) visa:
·Public Interest Criterion 4020 for the purposes of cl.309.225 of Schedule 2 to the Regulations.
Moira Brophy
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.
…

[2018] AATA 2516

6 April 2018

Key Legal Topics

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Immigration

Administrative Law

Statutory Interpretation

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Judicial Review

Procedural Fairness

Natural Justice

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