1826951 (Migration)

[2020] AATA 1854

1826951 (Migration) [2020] AATA 1854 (7 February 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1826951

MEMBER:Justin Meyer

DATE:7 February 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 for the purposes of cl.309.225 of Schedule 2 to the Regulations.

Statement made on 07 February 2020 at 11:55am

CATCHWORDS

MIGRATION – Partner (Provisional) (Class UF) – Subclass 309 (Spouse (Provisional)) – bogus documents – burnt identity documents – left Taskera in another country – visa misplaced – has new passport – issue regarding availability of fraudulent documents – lack of evidence to support identity – father’s Taskera provided – plausible first husband kept documents – decision under review remitted

LEGISLATION

Migration Act 1958 (Cth), ss 5(1), 65,
Migration Regulations 1994 (Cth), Schedule 2 cls 309.225, Public Interest Criterion (PIC) 4020

CASES

Arora v MIBP [2016] FCAFC 35

Batra v MIAC [2013] FCA 274

Trivedi v MIBP [2014] FCAFC 42

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 August 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 29 May 2017. The delegate refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl.309.225 of Schedule 2 to the Migration Regulations 1994 (the Regulations.

3. The review applicant appeared before the Tribunal on 11 October 2019 to give evidence and present arguments. The Tribunal also received oral evidence from [the] visa applicant.

4. The Tribunal hearing was conducted with the assistance of an interpreter in the Hazaragi and English languages.

5. The review 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 matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. 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).

8. 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?

9. 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.

10. 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.

11. 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.

    Delegate’s decision

12. The delegate noted that:

    ·The applicant claimed to have resided in [Country 1] from 2005 until 2015 under the visa sponsorship of her claimed first husband.

    ·The applicant had not provided any evidence of her previous passports, [identification] cards, or details of her residence visas in [Country 1].

    ·The applicant stated that she was residing in [Country 1] for [number]years since 2005 under her previous husband’s [Country 1] visa sponsorship. While residing in [Country 1], she also travelled to other countries [for] short visits and medical treatments. However, she claimed that she was unable to provide a copy of her old passport as she lost it when she returned to Afghanistan in 2015. The applicant also claimed that she has not previously held any other taskeras (Afghan identity card) other than the taskera submitted on this application.

    ·Following the interview, an email was sent to the authorised migration agent on 13 July 2018 requesting for the applicant’s travel history since year 2000 and her previous identity documents including but not limited to taskeras, passport with entry/exit stamps, and visas or residence permits for relevant countries.

    ·On 27 July 2017, the sponsor provided a written statement declaring that the applicant burned all her photographs including her old passport out of rage to her first husband for deserting her and ruining her life.

    ·The applicant also claimed that she left her old taskera and [identity] cards in [Country 1] as she thought that she would be returning back to [Country 1]. He further claimed that the applicant is not aware of the current whereabouts of her first husband or his family and therefore it is impossible to get her identity documents back from him. In the absence of these documents, the applicant also stated that it is therefore impossible to obtain a police certificate from [Country 1].

    ·The delegate noted with concern that these explanations about the applicant’s lack of documents directly contradicted her previous explanations. The applicant originally stated that she lost her old passport on return to Afghanistan, whereas now it is submitted that she burned the old passport.

    ·The applicant also asserted that she had never had a previous taskera whereas now it is submitted that her old taskera was left in [Country 1]. The delegate found that these were contradictions and concerning.

    ·Whilst the applicant has provided her taskera which was issued in 2014 and her new passport which was issued in 2016 to support the application, the delegate  placed minimal weight on these documents due to concerns held by the Department in relation to the free availability of fraudulent documents in Afghanistan

    ·The delegate placed significant weight on the fact that the applicant has been residing in [Country 1] for [number of] years and had travelled to different countries during this period for holidays and medical reasons. Therefore, it was reasonable to expect that the applicant could provide some records of her identity documents, evidence of travels, medical procedures or any evidence of her residence in [Country 1] to support the continuity of her claimed identity.

    ·The delegate found it implausible that the applicant was not able to provide any satisfactory evidence which would support her claimed identity over the past 10 years.

    ·The delegate considered the information provided by the applicant during the interview and the submission provided by the sponsor. However, the delegate found that the reasons provided by the applicant were contradictory and implausible.

    ·The delegate found it concerning that that the only evidence provided to attest to the applicant’s identity is from 2014 onwards. Furthermore, given the information highlighted above regarding the ease of producing documents through fraudulent means and based merely on the assertion of applicants, the delegate considered themselves unable to be satisfied that this identity is genuine. The contradictory narrative, the implausibility of the applicant’s claims regarding her lack of evidence, and the country information regarding the issuance of documents, meant that the applicant was trying to conceal her exact identity in order to achieve a positive migration outcome.

    ·The delegate noted that there are no waiver provisions for PIC4020(2A) and as such no waiver consideration had been made.

    ·The delegate was not satisfied that the criterion prescribed at subclause 309.225 had been met

    Written submission of review applicant (sponsor)

13. The review applicant (sponsor) submitted the following on 23 September 2019:

14. “As further evidence of the identity of my wife I have provided:

    Copy and translation of my wife's father's Taskera (and translation) issued in 1981 (the original shall be brought to the hearing). You will note that the Volume (8) Page (147) and Registration No (1333) are exactly the same as those listed on my wife's Taskera for her fathers details

    Copy of her father’s passport (the original shall be brought to the hearing).

    Copy of her brothers Taskera and Translation (the original cannot be provided as her brother has the original and requires the original document. You will note that the Volume (8) Page (147) and Registration No (1333) for her brothers father are exactly the same as those listed on my wife's Taskera for her father’s details and those on her father’s Taskera.

    You will note that the year of birth on her father’s Taskera is [Year 1] while my wife said that his year of birth is [Year 2]  in her application forms. My wife is uneducated and further people in Afghanistan do not pay any attention to dates of births so when I asked my wife her father's date of birth for the application forms she just guessed as she did not know the date of birth and the date of birth in her application forms is incorrect and the correct date of birth is[Year 1].

    I have also provided historical photos of my wife with her deceased father evidencing that her father is the same man as the man in the Taskera and passports.

    In Afghanistan Taskera's are issued on the basis of the person's fathers details and all the evidence above shows that my wife obtained her Taskera and passport through legitimate means by providing her fathers documents.

    Also, it must be noted that the Taskera of her father provided was issued in 1981, and when the Tribunal views the original document at hearing the age of the document will easily be seen. The passport of the father was issued in 2003 and is also an old document and the original can be viewed at hearing. These together with the historical photos clearly shows that my wife's father is her father and evidences her identity and that the Taskera and passport provided with the application were provided through legitimate means.”

    Issue in this case

15. The issue is whether the visa applicant has established her identity, not providing bogus documents in the process. 

    Oral evidence

16. The review applicant (sponsor) gave the following oral evidence. He came to Australia in 2015. He was initially granted a protection visa. The family is a split family. He had children in Australia from his first wife. She passed away in Afghanistan. He was sponsored by his daughter. His daughter came to Australia because her grandmother was in Australia and sponsored her.

17. In [Country 1] [the] visa applicant (the review applicant’s (sponsor’s) wife) may have had a passport and a Taskera, yet he was not quite sure of the situation. She had been married before and was divorced. Her former husband knew of the whereabouts of the document. The visa applicant returned to Afghanistan with a passport.

18. I asked the review applicant (sponsor) whether his wife had misplaced certain documents. He said that the documents got lost. The applicant said he was not quite sure how this occurred. The review applicant said that he was aware of circumstances in Afghanistan. People were always moving house. She was not his wife at the time.

19. I asked the applicant whether he had ever had a conversation with his wife about how these documents became missing. He said once, when he was about to begin sponsorship - and he did not know how they got lost.

20. I pointed out to the applicant page 3 of the decision record, which was supplied to the Tribunal by the applicant. There was mention of photographs and a passport burned in anger.

21. I asked the applicant if he knew whether that was written down and/ or said to the department. The review applicant (sponsor) said he was aware of the issue and that she did not burn the passport.

22. I asked the review applicant whether the statement that the passport had been burned was an error when he wrote it down. The review applicant said that yes he had made a mistake and it was an error. The same applies to the taskera.

23. The taskera was also lost. The marriage contract was lost. He was not sure whether she had one or not. Women often do not have a taskera in their own right in Afghanistan.

24. I asked the review applicant whether his wife had an ID card in [Country 1]. He said he did not know.

25. The Tribunal also spoke by telephone to the visa applicant.

26. I asked the visa applicant whether she had any passports of documents when she lived in [Country 1]. She said she had a passport. I asked the visa applicant what had happened to it. She said that she had left it in Afghanistan. It was misplaced - it was in a handbag.

27. I asked if the visa applicant had an ID card for living in [Country 1]. The applicant said he did not know. I asked if her ex-husband had an ID card. She said she did not know.

28. I asked the visa applicant when she was living in [Country 1] whether she had her own taskera. She said that she did. I asked what had happened to it. She said when she came to Afghanistan a passport was given to her by her ex-husband. She did not know she had needed it. She said her ex-husband only gave her the passport. I asked whether the visa applicant destroyed any documents or photographs. The visa applicant said that she had photographs on her and her ex-husband and she burnt them. She only burned the photographs.

29. I asked about the year her father died. She said she did not remember. I asked how old her father was when he died. The visa applicant said she did not exactly remember but she estimated he was between [a range] years old.

30. I asked the applicant what current husband’s health was like. She said that he was well physically and his mental health was good.

31. I pointed out to the applicant that according to a doctor’s visit he was anxious and depressed. She said that she had heard about that and that her husband was worried about her. I asked the visa applicant whether her husband had difficulty sleeping. She said yes but she did not know if he was on medication.

32. The visa applicant confirmed the details of her sponsor’s previous marriage and that the previous wife of the sponsor had [died]

33. The review applicant (sponsor) then said that he did not have a mental problem but that he had ‘a little depression’. He had been to see a psychologist. He had been taking medication for depression. He said the medication was “not bad” and helped him slightly. His main concern is that he was worried no matter where he went. His separation from his current wife had affected his mental health. He said a lot of his problems are about being away from his wife.

    Documents submitted to Tribunal

34. The applicant’s representative submitted:

    ·Photographs showing the visa applicant and her father.

    ·An Afghan driver’s licence of the visa applicant’s father (with authorised translation).

    ·Taskeras of the visa applicant’s brother (with authorised translation).

    ·Passport of visa applicant’s father.

35. The process for obtaining a taskera is to submit one’s father’s original taskera, the representative submitted. This was document was submitted to the Tribunal. The identity number of the father’s taskera was noted on the visa applicant’s taskera. This was the same number it was said.

36. The driver’s licence of the visa applicant’s father has an ID photograph. The individual in this photograph has a strong likeness to the older male in the family photographs.

37. The female in the family photographs has a strong likeness to the identifying photograph on the applicant’s visa application to the department. The age and era of the photographs is in line with the period claimed by the applicant in which she had contact with her father. The Tribunal accepts these photographs as being of the people claimed.

    Findings

38. The Tribunal is satisfied as to the visa applicant’s identity.

39. The visa applicant’s deceased father, by all accounts, had a Taskera and the Tribunal has sighted it. It has the same registration number as the visa applicant’s 2014 Taskera.  It has also sighted his driver’s licence and passport. From the photographs, documents and oral evidence, I find the visa applicant is his child.

40. That the visa applicant did not have her original, historical Taskera to readily produce is not irregular given the more subordinate role of women in Afghanistan. It is plausible that her first husband kept it and other important documents.

41. The oral evidence and other evidence has corrected a statement that ID was burned. I find that the visa applicant only burned old photographs of herself and her first husband. Errors can be made when a husband is filling out forms for or making statements to support his wife, albeit unknowingly. Performing this task could readily have been left to him, and the visa applicant may not have the cultural norm of checking and taking responsibility for her own official forms.

42. While the delegate has correctly mentioned that there are many false documents in Afghanistan, I note that neither these documents nor any others appear to have been referred to document authentication experts. Thus I am not drawn to the view that the documents are bogus in this case.

43. The visa applicant has now provided additional identity documents, which support the continuity of her claimed identity. They are not out of harmony with her 2014 taskera.

1. I find that there is not evidence of information that is false or misleading before me.

   Has the applicant satisfied the identity requirements?

2. PIC 4020(2A) requires an applicant satisfy the Tribunal as to his or her identity.  The applicant meets PIC 4020(2A).

   Has a visa previously been refused on the basis of a failure to satisfy PIC 4020(2A)?

3. PIC 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 PIC 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: PIC 4020(2BA).

4. As there is no evidence before me that this is the case I find neither the applicant nor any member of the family unit (as defined in r.1.12) have been refused a visa in the relevant period because of a failure to satisfy PIC 4020(2A);

5. Therefore PIC 4020(2B) is met.

6. On the basis of the above, the applicant does satisfy PIC 4020 for the purposes of 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 for the purposes of cl.309.225 of Schedule 2 to the Regulations.

   Justin Meyer
   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. 

   …