1803441 (Migration)

[2018] AATA 5647

1803441 (Migration) [2018] AATA 5647 (2 November 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1803441

MEMBERS:Denis Dragovic (Presiding)

Peter Britten-Jones

DATE:2 November 2018

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass (155) (Five Year Resident Return) visa.

Statement made on 02 November 2018 at 10:49am

CATCHWORDS

MIGRATION – cancellation – Return (Residence) (Class BB) visa – Subclass (155) (Five Year Resident Return) – satisfied as to the visa holder’s identity – applicant arrived in Australia under a different name – Australian certificate of identity with a different nationality – document identity checks – blood feuds – power to cancel the visa does not arise – decision under review set aside        

LEGISLATION

Migration Act 1958 (Cth), ss 116, 501

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to s378 of the Migration Act 1958 and replaced with generic information.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 20 March 2017 made by a delegate of the Minister for Immigration and Border Protection to cancel the applicant’s Subclass (155) (Five Year Resident Return) visa under s.116 of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa under s.116(1AA) on the basis that the Minister’s delegate was not satisfied as to the visa holder’s identity. It is worth quoting the decision:

   The visa holder initially arrived in Australia as the holder of a visa subclass 202, Global Special Humanitarian. Throughout his dealings with the Department he has maintained his identity as [Mr A] b. [DOB 1], in [Country 1]. It was only when being interviewed on 1 October 2007, in relation to his then fiancé's visa, and confronted with information provided by the Albanian police who detained the visa holder in July 2007, were questions arose about his identity. At this interview the visa holder continued to maintain his identity as [Mr A], and denied advise received from the Albanian police who had information which indicated that the visa holder's actual name and date of birth is [Mr B], born on [DOB 2], in [a named district in] Albania.

   It was post this interview that on 17 January 2008, the visa holder's then migration agent, [Ms C], provided an admission from the visa holder claiming to be [Mr B] born [DOB 2], a citizen of Albania. [Ms C] submitted several documents in evidence of the visa holder's Albanian identity as already mentioned. However, in further submissions through [Ms C], information was presented to the Department that "...the client still has an identity crisis, and despite his admissions and stated contrition, can't seem to decide if he is [Mr B] or still [Mr A], a refugee from [Country 1]." In reference to this "crisis" of identity, the visa holder has continued to maintain his identity as both [Mr A] b. [DOB 1], and [Mr B] b. [DOB 2], in his dealings following his admission in January 2008, not only with the Department but with outside authorities such as [the state corrective services], and medical practitioners, including a psychiatric report dated 6 May 2008.

   While his identity remains questionable, I have acknowledged that the visa holder has in January 2008, through his then migration agent, admitted to providing false information to the Department and come forward with documentary evidence of his actual Albanian identity. However, there is no evidence before the Department that these documents were assessed as genuinely issued, and I remain unsure that the visa holder has declared his full life account an identity.

   I find the visa holder has deliberately and knowingly provided inconsistent personal information at each stage in dealing with the Department to gain a migration advantage.

3. The issue in the present case is whether the ground for cancellation is made out, and if so, whether the visa should be cancelled.

4. The applicant appeared before the Tribunal on 27 August 2018 to give evidence and present arguments. The Tribunal also received oral evidence from [two named witnesses]. The Tribunal hearing was conducted with the assistance of an interpreter in the Albanian and English languages.

5. The applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing.

6. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. Under s.116 of the Act, the Minister may cancel a visa if he or she is satisfied that certain grounds specified in that provision are made out. Relevantly, to this case, these include the ground set out in s.116(1AA) which reads:

   Subject to subsections (2) and (3), the Minister may cancel a visa if he or she is not satisfied as to the visa holder’s identity.

8. Sections (2) and (3) refer to prescribed grounds of cancellation which do not apply to the applicant.

   Does the ground for cancellation exist?

9. As the delegate correctly noted, the applicant came to Australia under the name of [Mr A] of the then former [Country 2] and it was not until presented with evidence strongly suggesting that he was not who he claimed to be that he then provided documentary evidence supporting claims that he is [Mr B] of Albania.

10. The documents submitted in support of his [Country 2] personality are limited:

    ·    An Australian travel document dated January 2001 identifying him as a family member of the [Mr A] family and allowing him to travel to Australia as a [Country 1] refugee.

    ·    A certificate of identity dated August 2001 issued by the Australian government which lists his name as [Mr A] but strangely lists him as Albanian.

    ·    An incoming passenger card from 2007 in which he self-reported as being [Mr A]

    ·    Application for a partner visa dated March 2007

    ·    A departmental document that summarises a psychiatrists report and a letter from the parish priest both purportedly submitted by the applicant and dated from after January 2008

11. These pieces of evidence all trace their provenance back to the applicant’s arrival to Australia under the name [Mr A]. The applicant claims that the real [Mr A] was imprisoned by the [Country 2] authorities just prior to the family’s departure and with a vacant family member position they sold the visa slot to him. Problematically for the Department, possibly highlighting a flawed integrity system, the applicant obtained an Australian certificate of identity that stated his nationality as Albanian despite there being no evidence available to support such a claim. Nevertheless, from the point of his arrival the applicant assumed the name as his own and used it when engaging with the government including completing an incoming passenger card or applying for a partner visa. He also admits to having continued to use it within the community as he claimed that people such as his psychologist and priest knew him as [Mr A] and he didn’t want to change this situation.

12. In October 2007 the Australian government received documentation from Albanian police of the applicant’s arrest in Albania and of his false identity. The applicant did not come forward with this information but was confronted by it through the then ongoing process of a s.501 of the Migration Act cancellation of his visa. In January 2008 the applicant had a change of mind and provided new evidence to the Department supporting the view that he was [Mr B]. The evidence included:

    ·Albania passport with a date of issue [in] 2008

    ·Catholic marriage registration document, from the Catholic Church in Albania, dated [in March] 2008

    ·Baptism certificate, from the Catholic Church in Albania, undated

    ·Birth certificate, from the Albanian authorities, dated [in] January 2008

    ·Family certificate, from the Albanian authorities, dated [in] January 2008

13. We note that there is considerable reporting on document fraud in Albania, a matter discussed with the applicant at the hearing including reading to the applicant some of the material detailed below:

    In October 2005, the Albanian Telegraphic Agency (ATA) reported the takedown of a "mega laboratory" in Albania that was forging various travel documents, including passports and visas, as well as American Green Cards, unspecified ID cards, bank cards and telephone cards (7 Oct. 2005). During the raid about 1,000 passports from 29 countries, including Canada, the United States, and Australia were confiscated (ATA 7 Oct. 2005). Additionally, a number of border passage stamps for Greece and Italy were found, as well as stamps from the Albanian consulate in Washington, other unnamed Albanian ministries, and entry and exit stamps for Rinas Airport (ibid.). The Associated Press (AP) also reported that the same police operation involved the arrest of nine individuals, including four Tirana airport law enforcement agents, three other airport officials and two tourism agency owners who were all charged for forging travel documents and selling them to prospective illegal migrants (7 Oct. 2005).[1]

    The introduction of biometric passports and ID cards has gone some way to counter the production of forged and fraudulent documents but as an article in Balkan Insight, dated 20 September 2013, highlighted it remains a problem. The article, Albanian Police Bust Forgery Workshop, stated that: During the search of the Tirana home of one of the suspects, Azem Tahiri, police sequestered 16 high-end printing and offset machines that were used to produce fake documents. Tahiri was arrested in Greece on September 12, together with Panajot Bare and Eduard Zeneli, who were in possession of high-quality forged documents. “During their arrest, Greek officers found identity cards from different EU countries, Schengen visas, passports and borders stamps,” Tirana police said in a statement. According to the preliminary investigation, police believe Tahiri produced forged documents in his home and smuggled them into Greece where they were sold.’[2]

    In addition there is relevant material in a report by the Canadian Immigration and Refugee Board, Albania: Availability of fraudulent identity documents, including incidents where individuals were detained for using these false documents and government measures designed to address this situation.[3]

    [1] United Kingdom: Home Office, Country of Origin Information Report - Albania, 25 March 2011, available at: [accessed 24 August 2018]

    [2] United Kingdom: Home Office, Country Information and Guidance - Albania: Background information, including actors of protection, and internal relocation, 21 August 2015, Version 1.0, available at: [accessed 24 August 2018]

    [3] Immigration and Refugee Board of Canada, Albania: Availability of fraudulent identity documents, including incidents where individuals were detained for using these false documents and government measures designed to address this situation (2005 - September 2006), 16 October 2006, ALB101902.E, available at: [accessed 24 August 2018]

14. The applicant submitted to the Tribunal a report prepared by the Department’s Document Identity Unit which examined the applicant’s marriage certificate, birth certificate, family certificate and Albanian passport. The report from the Unit included a summary finding on each document as follows:

    ·Marriage Attestation document: ‘Due to the lack of security features and the lack of reference material, my findings are inconclusive’

    ·Birth Certificate: ‘It is my opinion that this is a legitimately manufactured document, issued in the expected manner with no fraudulent alteration.’

    ·Family Certificate: ‘It is my opinion there is qualified support that this is a legitimately manufactured document, issued in the expected manner with no fraudulent alteration.’

    ·Albanian Passport: ‘It is my opinion that this is a legitimately manufactured document, issued in the expected manner with no fraudulent alteration.’

15. The applicant was asked to explain who he is. In doing so he provided background to his circumstances. He claimed that he was involved in a blood feud before coming to Australia. Back in [year] at the age of [age] he was living in [Country 3] together with his brother. They were out in a nightclub with friends when his brother got into a fight with one of his friends and was subsequently killed by him. The applicant had to take his brother by taxi to the hospital and then home. At that time he was masquerading as being [from Country 1] so it took some time to convince the authorities to send him and the coffin to Albania. Due to fears of a blood feud between his family and that of the killer the applicant claims that he was told to stay inside their home in Albania. His father then sought out a person he knew who could help him get a visa to Australia. This person arranged for the purchase of the visa slot with the [Mr A] family. Having arrived to Australia on an assumed identity the applicant maintained it until it was exposed.

16. While we have concerns over this narrative it is generally consistent with country information of blood feuds, his telling of it has been consistent across a period of several years and he provided photographs to the Tribunal of his brother’s grave in Albania. The photographs show the name, birth date and the date of the brother’s death which all align with his earlier evidence.

17. The applicant had two witnesses appear at the Tribunal. The Tribunal heard from the witnesses separately and while the applicant remained outside of the hearing room. In both cases the witnesses knew the applicant from his younger years while growing up in Albania and provided evidence such as descriptions of the house the applicant grew up in which aligned with how the applicant described it. Both applicants used the Albanian interpreter made available to them by the Tribunal.

18. The Department’s Document Identity Unit has assessed the primary documents to be legitimately manufactured. We accepted a narrative supported by the witness statements which does not undermine these findings by the Department. While there are concerns over the availability of fraudulently obtained legitimate documents there is no evidence to suggest that this occurred in this instance. For these reasons we find that the applicant is [Mr B].

19. We note that the visa was cancelled under s.116(1AA) and as such the grounds for cancellation are that the Tribunal must be satisfied with the visa holder’s identity. It is not relevant to consider other material which the delegate engaged with including whether the applicant deliberately and knowingly provided inconsistent personal information. What matters with a cancellation under this section of the Act is whether we are satisfied in knowing who the applicant is. In this instance we are. As such for these reasons, the Tribunal is not satisfied that the ground for cancellation in s.116(1AA) exists. It follows that the power to cancel the applicant’s visa does not arise.

    DECISION

20. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass (155) (Five Year Resident Return) visa.

    Denis Dragovic
    Senior Member

    
    

    Peter Britten-Jones
    Deputy President