1816787 (Migration)

[2020] AATA 2184

1816787 (Migration) [2020] AATA 2184 (22 January 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1816787

MEMBER:Rosa Gagliardi

DATE:22 January 2020

PLACE OF DECISION:  Melbourne

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(2A) for the purposes of cl.309.225 of Schedule 2 to the Regulations.

Statement made on 22 January 2020 at 11:07am

CATCHWORDS

MIGRATION – Partner (Provisional) (Class UF) visa – Subclass 309 (Spouse (Provisional)) – identity – documents in similar but not identical names – original documents lost during unlawful journey to third country – refugee screening and new documents issued – attempts to provide replacement original documents, one of which found to be non-genuine – deficiencies in record keeping and issuing in home country – decision under review remitted

LEGISLATION

Migration Act 1958 (Cth), s 65

Migration Regulations 1994 (Cth), Schedule 2, cl 309.225, Schedule 4, criterion 4020(2A)

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

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 9 April 2018 to refuse to grant the applicant a Partner (Provisional) (Class UF) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 5 August 2014. The delegate refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl.cl.309.225 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because there were concerns about the applicant’s identity as he had provided identity documents in three different names, among other things and did not meet Public Interest Criteria (PIC) 4020(2A).

3. The review applicant/sponsor appeared before the Tribunal on 9 December 2019 to give evidence and present arguments. The Tribunal also received oral evidence from several witnesses, including an elder in the Oromo community in Australia who are aware of the applicant and the sponsor.  The Tribunal hearing was conducted with the assistance of an interpreter in the Amharic and Oromo and English languages.

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

5. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The issue in this review is whether the applicant satisfies the Tribunal as to his identity.  This is the issue on which the visa was refused by the Departmental delegate.  It is a requirement of Public Interest Criterion 4020 (PIC 4020) which must be met by the visa applicant, as required by cl.309.225 for the grant of the visa.

7. PIC 4020 contains a number of requirements, only one of which relates to the identity of the visa applicant. 

8. Relevantly, PIC 4020(2A) requires that ‘the applicant satisfies the Minister as to his or her identity’. 

   Background

9. The applicant, [Name] is an Ethiopian national residing in [country 1] as a refugee.  He fled his home area of Amada, as he belongs to the Oromo people who have a history of fleeing persecution in Ethiopia.  While now dated, the following provides a survey of the issues impacting on this ethnic group:

   The Oromo are the largest ethnic group both in Ethiopia and East Africa, consisting of more than a third of Ethiopia’s 100 million people. However, the group has been marginalised and discriminated against by subsequent Ethiopian governments. Oromo culture and identity have been stigmatised and pushed into the periphery of the country’s national life, while Oromo history has been filtered out of public memory…
   ….
   What are now widely referred to as the #Oromoprotests began in November 2015 when the government introduced the Addis Ababa City Integrated Master Plan, effectively expanding the territorial limits of the capital Addis Ababa into neighbouring Oromo towns and villages. Oromo political leaders and activists argued that the plan, as designed, would displace millions of Oromo farmers from their ancestral lands and would threaten to eventually cleanse Oromo culture and identity from the area.

   The protests were triggered by the announcement of the Master Plan and menacing land-grab policies that have already displaced more than 150, 000 Oromo farmers from the area, but they were also manifestations of a much deeper crisis of massive ethnic-based inequalities and discontentment that have been boiling underground, waiting to erupt.

   Since the protests have begun, the government has arrested and jailed many of its vital and outspoken activists and organisers. A recent report by the Human Rights Watch puts the death toll from the first seven months of the protest at over 400 while the figure tallied by activists is significantly higher.[1]

   [1] ‘Ethiopia’s unprecedented nationwide Oromo protests: who, what, why?’ African Arguments, by Awol Allo, 6 August 2016,

10. The applicant lodged an application based on his marriage to his Australian citizen spouse in [country 1] on 2 November 2013. 

11. The applicant entered [country 1] on 25 September 2006 via Libya by boat and applied for refugee status in [country 1].  During an interview held by the Department, the applicant confirmed that he did not have any identity documents when arriving in [country 1].  At the time of lodgement of his Australian Partner visa application, the applicant provided a copy of a [country 1’s] travel document, a [ country 1’s] residence permit and a [r country 1’s] driving licence issued to him in the name of [Name], born on [Date] in Ethiopia.  There is no evidence that the applicant submitted any primary identity documents to the [country 1] government to obtain these documents.

12. At hearing the applicant and his witnesses asserted that the applicant’s identity documents were lost on his voyage to [country 1]. 

13. Upon request from the Department the applicant’s sponsor provided a copy of the applicant’s birth certificate, issued in Ethiopia.  The document was issued on 29 January 2016 and states the applicant’s full name as [Name – variation 1], born on [Date].  The document was checked with the issuing office in Ethiopia by representatives of the Department on 25 March 2016.  It was confirmed by the issuing office that the document was genuinely issued by them and that the information contained in the document matches the information on their records.  The issuing office further confirmed that the applicant provided his Kebele ID card as evidence to support the details of his birth. 

14. The applicant was previously requested by the Department to provide his Kebele ID card, however, he stated that he did not hold a Kebele ID card and that he was unable to obtain one.  Following the above confirmation by the birth certificate issuing office in Ethiopia, the applicant was again requested to provide a copy of his Kebele ID card on 21 December 2016.  On 17 January 2017 the sponsor submitted a copy of the applicant’s Ethiopian Kebele ID card with a translation to the Department.  The document was issued on

    
    

    24 November in the name of [Name – variation 2].  The document was checked with the issuing office by representatives of the Department on 31 August 2017.  It was confirmed by the issuing office that there is no record of the ID card being issued by their office and that the seals and signatures appearing on the document had not originated from their office.

15. The Department was concerned that the applicant had presented an identity documents in three names:

    ·[Name]

    ·[Name – variation 2]

    ·[Name – variation 1].

16. The Department was also concerned that the name contained in his [country 1’s] documents, [Name], were based on the applicant’s own declarations as he arrived in [country 1] without any formal documentation from his country.  As the applicant had not presented any documents from his home country to the [country 1’s] authorities to substantiate his identity, the Department could not be satisfied that the [country 1’s] documentation was reliable. 

17. During the processing of the Partner visa application subject of review, the applicant presented a Kebele ID card issued in the name of [Name – variation 2].  This ID card was confirmed as non-genuine.  The applicant further submitted an Ethiopian birth certificate in the name of [Name – variation 1].  While this document was confirmed to be genuine, it was also confirmed that a Kebele ID card was used to obtain the birth certificate.  The information contained in the ID card presented to the Department does not match the information shown in the birth certificate and was confirmed not to be genuine.  The Department therefore, not unreasonably, was unable to accept either document, as valid evidence of the applicant’s identity. 

18. At the time of review the applicant provided a further national Kebele ID card which the applicant procured personally from Ethiopia even though he had fled that country and feared returning there.  As the previous ID had been provided by his mother and had proved non-genuine he wanted to personally clear the matter to save his marriage to the sponsor.

19. The Explanatory Statement to the Regulation that introduced the requirement in PIC4020(2A) suggests that in considering this criterion, decision-makers may have regard to a range of identity documents, including a person’s passport but will need to consider the applicant’s individual circumstances, including whether they have access to identity documents, when determining if the identity requirements are satisfied.

20. The Tribunal notes that the applicant has consistently claimed that he lost his documentation en route to [country 1].  Unfortunately, persons escaping his home country in the circumstances in which the applicant did, are required to enter into murky financial relationships with those who assist them, that is, with people smugglers who sometimes confiscate mobile phones and passports before their journey.  There is also anecdotal information of asylum seekers destroying their documents prior to entry into their host country.  This could be because they fear they might be captured and sent home. They destroy their real passports and use fake documents to leave their home land and then in turn destroy the documents because they are fraudulent because they do not accurately represent their identity or situation and might impede their asylum case.  Furthermore, this aspect of the transaction to get into a European or other country is not openly discussed by the applicants themselves who fear smugglers and do everything they can to protect the identity of those who have assisted them leave their home lands.  The Tribunal does not know that any of these scenarios are what led the applicant to not having identity documents on arrival in [country 1], but the Tribunal has to at least contemplate that it is a possibility.

21. It is also a possibility that the applicant in trying to obtain the documents retrospectively by using his elderly mother to attend the Kebele office met with difficulty because the Kebele officers may not have been co-operative, and to appease her, gave her a document regardless of its authenticity, thereby compounding the issue of the applicant’s identity even further. 

22. The country information relating to how kebele offices are run in rural areas from where the applicant was born shows that the Kebele system is not uniform, fool proof or reliable.  The Tribunal acknowledges that Ethiopia is making attempts to digitize its registration of births, deaths and marriages at a national level, using the kebele as a fundamental cornerstone of information gathering.[2]

    [2] ID4D Country Diagnostic: Ethiopia, World Bank Group, 2016, . 

23. As the World Bank has observed, and as noted with photographic evidence at hearing, “Kebele recordkeeping is very basic as are kebele office facilities.  Files are kept in folders or bundles on open shelves as shown in Figure 3.  They are vulnerable to fire, water damage, or simply deterioration.  There are no backups.  Although the kebeles provide summary information on the number and gender breakdown of their residents to their woredas every two years, the woreda does not hold records of the identities of the kebele residents.  The details of recordkeeping vary between kebeles…”.[3]

    [3] Ibid.

24. The Tribunal commissioned research on the nature of kebeles in 2009 and the Tribunal accepts that some parts of Ethiopia have now progressed in terms of their record-keeping, however, the information while now outdated, is still apposite in terms of illustrating how relying on kebele information alone to determine a person’s identity is fraught:

    Kebeles are the smallest administrative unit of the City Governments around Ethiopia, and are responsible for issuing identity cards to residents within their local area.  Their role is to maintain a history record of each and every house under their authority.  The information kept on each house may contain such things as how the house was acquired…The reliability of this information is questionable as its [sic] the responsibility of the resident to keep the Kebele informed of any changes [Tribunal emphasis].

    A Kebele card is a recognised national ID card, issued by authorities and is based on where an individual lives…

    While DIMA (what is now Department of Home Affairs) in Nairobi recognises and accepts Kebele cards as a form of identification, they question the validity of the information contained in them…[Tribunal emphasis].[4]

    [4] MRT Research Request Number: ETH35150, 29 July 2009.

25. It is notable from literature that the issuance of certificates by these city administrations and municipalities is not based upon any perceived need to record such events, but rather to respond to individual requests for certificates where their mandate requires them to give administrative services to the community.[5]

    [5] ibid.

26. The Tribunal acknowledges that efforts are being made to establish a National ID Agency in line with Proclamation No. 760/2012, and civil registration is among the youngest in the world having been established by law in August 2012, but roll out has not been uniform.[6]  In effect, the number of births (and deaths) is reported by each kebele to the state government which monitors what are the equivalent of vital statistics.  The functions would, in most countries, be peformed by the civil registry.  However, this institution, known in Ethiopia as the Vital Events Registration Agency (VERA), was only established in 2014.  It began to issue birth and death certificates and to record other vital events in August 2016.[7]

    [6] Ibid.

    [7] ID4D Country Diagnostic: Ethiopia, World Bank Group, 2016, >

    The parties were keen that the applicant should not be barred from entering Australia to pursue his relationship with the sponsor, and he therefore travelled to Ethiopia to obtain a further kebele card, from the Adama City Administration office in Adama.  This is even though those issuing the applicant with the card may not have been aware of him given his absence from the area for a lengthy period.  The Tribunal notes that this most recent card issued on 16 August 2018, again misspells the applicant’s name to read “[Name – variation 3]”, highlighting the vagaries of the kebele system.  Indeed had the applicant attempted to deceive the immigration authorities he would not have submitted a kebele card that is not consistent with other documentation.

27. The Tribunal also notes that in a recent letter of support the applicant is referred to as “[Name – variation 4]”.  The Tribunal notes that the translated document of the letter seems to have introduced a new spelling of the surname but notes that the original refers to “[Name – variation 5]”, illustrating how difficult it is to expect consistency. 

28. While the following information does not relate specifically to the kebele system and instead refers to the Documents Authentication and Registration Office in Ethiopia, it highlights that it is not advisable to impose on any form of bureaucracy in Ethiopia the same standards and level of service provided in Western countries.

    Not long ago, the Documents Authentication and Registration Office (DARO) was a good example of organizational malpractice.  When things went wrong the answer ranges from leadership, to getting the fundamentals of management, to administration, to front-line work done properly.  With this (sic) premises the situation was characterised by customer inquiries not answered speedily or courteously, and inefficient appointment systems that wasted people’s time were familiar examples of complaints about poor administration.  People who complained about having to repeat their personal details over and over again to a number of employees were complaining about lack of coordination.  Complaints about staff not having the right training or not being well supervised are about service delivery.

    Moreover, there was an area of frequently expressed dissatisfaction which is about the common good.  These complaints were not about the service itself but about equity, about feelings of unfairness in not being able to access the service.

    Individual cases involving a number of clienteles per case necessitated every member to be present in person for signing the appropriate documents resulting in an overcrowded working environment.  Even so, the average number of cases handled per day was not more than thirty, to mention a few.  It took at last three days to settle a single notary case, which was not only costly in time and money but also resulted in highly dissatisfied customers.  Employees were working under a lot of stress which was manifested through their unethical attitudes towards customers and lack of motivation…

    There was no proper record-keeping systems.  Retrieval of data was very slow.  Customers’ documents could easily be lost from the archives or misplaced.  The data were (sic) hardly reliable as it was done manually or using obsolete technology.  Frequent man made errors were so common due to sporadic work procedures and lack of application of user-friendly modern technology.[8]

    [8] “Effective and Efficient Service Delivery to the Public (EESDP), Documents Authentication and Registration Office, Ethiopia”, 1 January 2015, CISE 96CF12959.

29. The country information also illustrates that, given the challenges faced in providing reliable identification documentation by the kebele and the need to be cautious in relying on these documents, it may never be possible, through no fault of his own, for the applicant to provide consistent and verifiable evidence to meet the identity requirements. 

30. In terms of the three different names provided by the applicant, it accepts that they are variations of the same name.  As the applicant has written, “My name is [Name – variation 2], my father’s name is “[Given name]” and this name is used as my middle name in some identity documents but not in others.  Some identity documents I have my name listed with different versions, this is very commonplace in Ethiopia”.  The Tribunal finds this explanation entirely plausible as it is not uncommon even in Western countries for persons to omit using their “middle” names.  In terms of the hyphenated use of [Surname], the Tribunal does not place any adverse weight on this matter as the Tribunal considers that this does not fundamentally alter the identity of the applicant.

1. The Tribunal is inclined to accept the migration agent’s argument that although there is very slight variation in his name due to his father’s middle name being included in his name in certain identity documents, should not form part of a negative identity assessment.  “In fact, if this applicant was applying for a protection visa in Australia in this context the DHA policy is to simply reissue his IMMI card with the updated name that matches his national ID card or passport”.

2. The Tribunal has also had regard to the applicant’s police clearance in [country 1] confirming that the applicant was a person of good conduct over an extended period.

3. The Tribunal has also sighted an invoice issued by the Registry of the Courts of Criminal Jurisdiction [country 1], Government of [country 1], dated 29 November 2019 referring to the applicant as “[Name – variation 6]”. 

4. The Tribunal has considered the migration agent’s submissions that establishing identity is a key component of granting persons refugee status in Europe by the UNHCR.  Even where primary documents are not produced, the agency undertakes thorough screening asking questions about the applicant’s geographical home area and his family background.  The Tribunal concurs that it ought to place positive weight on the fact that the applicant’s identity was not an issue with the UNHCR.

5. Having had regard to the country information, the credibility of all the witnesses involved and the evidence as a whole, the Tribunal is satisfied that [Name] is the applicant and he is not attempting to establish multiple identities.  While various agencies have spelt his name differently across different documents, the Tribunal is satisfied that the applicant is not purporting to have multiple identities but that due to no fault of his own has been provided with documentation originating from the kebele system which is unreliable.

6. On the basis of the above, the applicant satisfy PIC 4020(2A) for the purposes of cl.cl.309.225.

   DECISION

7. 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(2A) for the purposes of cl.cl.309.225 of Schedule 2 to the Regulations.

   Rosa Gagliardi
   Member

   Postscript: The Tribunal understands that the applicant and the sponsor would have preferred the Tribunal to make a decision on whether the parties are in a genuine and continuing spousal relationship as well.  The medical evidence submitted to the Tribunal indicates that the sponsor is suffering from depressive symptoms associated with the applicant living in [country 1] as the separation is impacting on her health and wellbeing.  Furthermore, the parties are desperate to start a family.  The applicant is also socially isolated from her community because of attitudes towards her being married but not living with her husband and still being childless (due to fertility issues).  The Tribunal also notes that the parties have now been married for 7 years and as the sponsor stated at hearing, she was tired and tired of travelling to [country 1].

   The Tribunal considers it would not be appropriate, however, not to provide the Department an opportunity to make its own assessment about the relationship. 

   While the Tribunal is not in a position to direct the Department but would ask that this case be given some priority in view of the time it has taken to resolve the issue of the applicant’s identity.

   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. 

   …

   
   

Accessed on 20 January 2020.