1828473 (Migration)

[2022] AATA 2291

1828473 (Migration) [2022] AATA 2291 (3 June 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1828473

MEMBER:Michael Cooke

DATE:3 June 2022

PLACE OF DECISION:  Sydney

DECISION:The Tribunal sets aside the decision and finds that the applicant meets the following criterion for a Partner (Temporary) (Class UK) visa:

·cl.820.226 of Schedule 2 to the Regulations

Statement made on 03 June 2022 at 4:59pm

CATCHWORDS

MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Spouse) – passport renewal – unreasonable to require the applicant to hold a passport – attempts to acquire a valid passport – no travel documents – no right of return to Australia – certificate of identity – financial hardship – Angolan diplomatic representation – decision under review set aside     

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 820.226; Schedule 4, Public Interest Criterion 4021

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 Home Affairs to refuse to grant the applicant a Partner (Temporary) (Class UK) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 22 December 2016 on the basis of his relationship with his sponsor. At that time, Class UK contained only one subclass: Subclass 820 (Partner). The criteria for the grant of this visa are set out in Part 820 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). The primary criteria must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria.

3. The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl 820.226 because he did not meet criterion Public Interest Criterion (PIC) 4021.

4. The applicant appeared before the Tribunal on 4 March 2022 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the French and English languages.

5. The applicant’s sponsor ([Ms A]) submitted various documents to the Tribunal. This included the delegate’s decision record and correspondence to the Department:

   Date: 2 May 2018 at 4:55:01 pm AEST

   Subject: Re: IMMI RFI Partner Sponsorship - –[File number] - [MS A]

   Dear Rebecca,

   Hope this message finds you well. I am just writing about the visa application of my husband [named]. Could we please know about when this application can be finalised. [His] mother is sick in [Country 1]. [He] is unable to travel because his passport has expired. For him to apply for a travel document "certificate of identity", we were told that [the applicant] visa needed to hold another type of visa, not a bridging visa.

   We are looking forward to hearing from you.

   Kind regards,

   [Signed by Ms A]

   15 September 2018

   Dear sir / madame

   I referred to the phone conversation of Monday 10 July 2018 regarding copy of passport for visa application above.

   As stated on the declaration made by my husband [named], his passport has expired since [a day in] 2017.

   My husband [named] does not have a valid passport. He is unable to acquire new passport because government of Angola has no representative in Australia.

   We contacted the Migration and Foreigners Services in Luanda and then Angolan Embassy in South Africa about obtaining a new passport. We were informed that to apply for an Angolan passport, the applicant must submit IN PERSON a passport application because applicants are fingerprinted when they apply for and when they receive their passport. Because of the fingerprinted requirement, no one is allowed to apply or receive the passport on behalf of an applicant.

   I am looking forward to hearing from you.

   Regards,

   [Signed by Ms A]

   I [applicant’s name], of [address]

   make the following declaration under the Statutory Declarations Act 1959:

   1.        I make the following statements in support for an application for review of the decision to refuse my application for a partner visa. The decision made on 18 September 2018 by the Department of Immigration.

   2.        I am not satisfied with the ground on which my application for a partner visa was refused. I travelled to Australia on a valid passport, which expired on [a day in] 2017.

   3.        I am from Angola. The government of Angola does not have a representative in Australia. To apply for a new passport, passport applicant is fingerprinted and the application for the passport must be submitted in person.

   4.        I provided all this information to the Department of Immigration when I was requested to supply a valid passport. However, the Department of Immigration did not take into account the fact that here in Australia, there is no Angolan embassy so I can obtain a passport.

   5.        I have enclosed Evidence in support of this application for review:

   ·Email sent to the Department of immigration on 2 May 2018 advising stating that my passport has expired

   ·Email sent to the Department of Immigration on 15 September explain the reason why it would be unreasonable for me to have a passport.

   ·Declaration dated 31 August 2018 explaining why I do not have a passport

   ·UNHCR, Procedure for acquiring a passport in Angola

   ·Angola — Apply for a new passport.

   ·Copy of notification of refusal of application for a partner visa

   6. I am opinion that I met the requirement of the Public Interest Criteria 4021(b) which states that it would be unreasonable to require the applicant to hold a passport, because of the following:

   ·My country Angola has no representative in Australia

   ·I am required to apply for and collect the passport in person at the Angolan embassy. In Australia there is no representative of Angola

   ·I have to be fingerprinted when I apply for and when I receive the passport

   ·Because of the fingerprinting requirement, no one is allowed to apply for or receive the passport on my behalf.

6. The applicant also provided an Internet document from the Immigration Refugee Board of Canada to do with protocols for the issuance of Angolan passports.

7. For the following reasons, the Tribunal has concluded that the decision under review should be set aside.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in the present case is whether the applicant does meet Public Interest Criterion (PIC) 4021.

   The Hearing

9. The applicant was asked why he had not renewed his passport. He said, that when he came to Australia, he had a valid passport - with 18 months still open on the validity. He came to Australia [in] May 2016 on a Prospective Marriage (Subclass 300) visa to marry his wife – the sponsor. He came by airplane from Angola via South Africa and [another country] he informed.

10. The Tribunal asked the applicant why, with the passport nearing its end date in 2017, he did not pursue the renewal of his passport. He said there was no available Angolan Embassy to renew it. At the same time, he was getting all the marriage preparations underway.

11. The Tribunal asked him why in view of his awareness of the importance of renewing his passport he did not make a trip overseas to Angola to renew it. He informed that ‘he had spent all his money on the wedding’ and was unable to afford a ticket. He did approach Immigration about the problem. He said they informed that he could not get travel documents on a Bridging visa. He did not know what to do.

12. He was asked whether he thought it would be unreasonable to require him to hold a valid passport. He replied - forcefully - that he did not find it unreasonable.

13. The Tribunal then explored the applicant’s personal situation. It asked him if he was working. He said he was not working. The Tribunal asked him why this was so, as he had separately confirmed to the Tribunal that he had permission to work. He insisted that because of his Bridging visa being temporary it actually discouraged employers from hiring him for permanent jobs. The applicant indicated he was in difficult financial straits. He had been working in the [specified] industry but got laid off in the COVID19 pandemic. He had not found work - despite trying. He essentially lived from his sponsoring partner’s income.

14. The applicant in his personal statement thanked the Tribunal for listening to him. He professed a desire to remain Australia. His mother in Angola was very sick. He indicated he needed blood pressure medication and his Medicare card had expired and he asked whether the Tribunal could facilitate a new one for him.

    Public Interest Criterion (PIC) 4021

15. PIC4021 states:

    Either:

    ·the applicant holds a valid passport that: was issued to the applicant by an official source; and is in the form issued by the official source; and is not in a class of passports specified by the Minister in an instrument in writing for this clause; or

    ·(b) it would be unreasonable to require the applicant to hold a passport.

16. The applicant lodged a valid application for a Partner (Temporary) (Class UK) (Subclass 820) visa and a Partner (Residence) (Class BS) (Subclass 801) visa on 4 February 2016 on the grounds of being in a partner relationship with an Australian Citizen ([Ms A]), who lodged a sponsorship in support of the application.

17. The delegate’s decision (tendered by the applicant) discloses that on 7 August 2018, he was requested to provide evidence that he held a valid passport. He was provided with 28 days to provide this information or evidence that he had taken steps to obtain a valid passport.

18. On 10 September 2018, the Department called him and advised the applicant that he must show evidence that he had tried to apply for a passport, such as an email or receipt from the relevant Angolan issuing authority indicating that he had made an attempt to acquire a valid passport.

19. The delegate’s decision discloses that on 15 September 2018, his sponsor ([Ms A]) responded to the Department via an email. The email stated that the applicant was unable to acquire a new passport because the government of Angola had no representatives in Australia.

20. The delegate noted that the Department did not receive any evidence, such as an email or receipt from the relevant issuing authority indicating that he had made an attempt to acquire a valid passport. The applicant’s sponsor, for her part, has also claimed that the applicant contacted the Migration and Foreigners Services in Luanda, Angola and the Angolan Embassy in South Africa. The applicant claimed that he was informed that to apply for an Angolan passport the passport application had to be submitted in person as fingerprints were required.

21. The delegate noted that the applicant had not provided evidence to the Department to support his claims that he had contacted the Angolan authorities or that he was required to apply in person as fingerprints are required. As he had not provided evidence to the delegate that he had taken steps to obtain a valid passport he was found to not satisfy subclause (a) of Public Interest Criteria 4021. As there was no evidence before the delegate that it would be unreasonable to require the applicant to hold a passport it was further found that he did not meet subclause (b) of Public Interest Criteria 4021.

22. As the delegate found that subclauses (a) and (b) of Public Interest Criteria 4021 had not been met by the applicant it was found that he did not meet the criteria in Public Interest Criteria 4021 and, subsequently, clause 820.226 was not met at the time of the delegate’s decision.

    Reasons and Findings

23. The delegate had acknowledged the failure of the applicant or sponsor ([Ms A]) to submit any ‘evidence, such as an email or receipt from the relevant issuing authority indicating that he had made an attempt to acquire a valid passport’.

24. However, the Tribunal is aware from information furnished by her to the Tribunal (in his favour) that the sponsor did write in support of the applicant to the Department as follows:

    Dear sir / madame

    I referred to the phone conversation of Monday 10 July 2018 regarding copy of passport for visa application above.

    As stated on the declaration made by my husband [named], his passport has expired since [a day in] 2017.

    My husband [named] does not have a valid passport. He is unable to acquire new passport because government of Angola has no representative in Australia.

    We contacted the Migration and Foreigners Services in Luanda and then Angolan Embassy in South Africa about obtaining a new passport. We were informed that to apply for an Angolan passport, the applicant must submit IN PERSON a passport application because applicants are fingerprinted when they apply for and when they receive their passport. Because of the fingerprinted requirement, no one is allowed to apply or receive the passport on behalf of an applicant.

    I am looking forward to hearing from you. Regards,

    [Signed by Ms A]

25. The sponsor maintained that she had contacted ‘the relevant issuing authority’ on behalf of the applicant with no success and she gave the reasons why. The Tribunal acknowledges that it appears from her statement she made some effort to gain the correct information and possibly did it by telephone.

26. The Tribunal observes that the applicant’s sponsoring partner has obtained and submitted reliable information from the Internet to the Tribunal concerning how to get an Angolan passport. This was website information derived from the Immigration and Refugee Board of Canada Research Directorate. This information confirmed that:

    According to a consular assistant at the Embassy of the Republic of Angola in Washington, DC, to apply for a passport an individual must submit a passport application along with their Angolan identification card and birth certificate to the Migration and Foreigners Services (Servicos de Migracao e Estrangeiros, SME) office (5 Mar. 2003). The consular assistant stated that the only SME office is located in Luanda, although a second office may have opened in Benguela state since the signing of the peace accord in 2002 (ibid.).

    Applicants are fingerprinted when they apply for and when they receive their passport, which takes approximately one week to process (ibid.).    Because of the. fingerprinting requirement, no one is allowed to receive the passport on behalf of the applicant (ibid.). Any Angolan citizen will be issued a passport in their name.

27. The Tribunal observes that the applicant has outlined a significant number of problems in securing a new and valid Angolan passport as follows:

    ·He informs that he lost his Angolan ID card in South Africa.

    ·He informs that he must personally present himself to the only SME (Migration and Foreigners Services) office, which is located in Luanda, the Angolan capital. This requires him to return to and be present in Angola for the issuance of the passport.

    ·Applicants are fingerprinted when they apply for and when they receive their passport. This requires him to be present in Angola for the processing of the passport.

    • No person, other than the applicant, is allowed to receive the passport on behalf of the applicant. This requires him to be present in Angola for the processing of the passport.

    ·He claims he is unable to afford an airline ticket to Angola.

    ·He has no travel documents with which to travel - other than an expired passport.

28. The applicant applied initially for a Prospective Marriage (Subclass 300). He was granted this visa on 20 April 2016 and arrived in Australia [in] May 2016. A requirement of the Subclass 300 visa is that an applicant intends to marry their prospective spouse before the visa period ends. Having performed this obligation, [in] Aug 2016, the applicant then applied for the visa (the subject of this review) on 22 December 2016. He was granted a Bridging A visa in the interim.

29. Constructing a timeline for the purposes of the review, the Tribunal notes the following chronology:

    • The applicant’s Subclass 300 visa was granted on 20 April 2016
    • The applicant’s Subclass 300 visa ceased on 20 January 2017.     
    • The applicant arrived in Australia [in] May 2016.
    • The applicant married his sponsor [in] Aug 2016 - within the visa sanctioned time.
    • The applicant applied for his Subclass 820/801 visa on 22 December 2016.
    • The applicant was granted a Bridging visa A on 22 December 2016.

    ·The applicant’s Angolan passport expired [in] 2017.

    ·The applicant was requested (by the delegate) on 7 August 2018 to evidence a valid passport or steps he had made in attempt to obtain a valid passport.

    • The applicant was further requested (by the delegate) on 10 September 2018 to evidence he had tried to apply for a valid passport with the Angolan authorities.

    ·The applicant’s Subclass 820/801 visa was refused on 18 September 2018 for failure to present a valid Angolan passport.

30. The applicant has claimed in the hearing (in his own defence) that “the Department informed that he could not get travel documents on a Bridging visa”.

31. The Tribunal concedes that, as a Bridging A visa holder, if he had decided to travel and leave Australia with this passport, he would not have been able to return on it. This is because a Bridging Visa A that is in effect will cease upon departure from Australia. He (through the sponsor) informed the Tribunal that “for him to apply for a travel document "certificate of identity", we were told that [he] needed to hold another type of visa, not a bridging visa”.

32. The correspondence with the Department (according to submitted evidence) was ongoing from around 1 November 2017 as the parties were still to finalize the Subclass 820 visa that followed from the initial grant of the earlier Subclass 300 visa. The problem was that when the Department got round to requesting the evidence of the applicant having a valid passport (2018) the applicant’s Angolan passport had already expired. The applicant’s submitted information (see above) indicates that the parties began to pursue assistance with the Department because of the expiry of the applicant’s passport.  In particular, the applicant (see above) informed the Department formally (via Statutory Declaration) that his Angolan passport had expired [in] 2017.

33. The Tribunal was curious as to why the applicant did not avail himself of this opportunity. In the hearing the applicant was asked why he did not buy a ticket to Angola prior to the refusal decision on 18 September 2018. The applicant indicated, in response, that he was impecunious. He had spent all his money ‘on the wedding’.

34. When asked for a reason why he did not renew his passport subsequently, the applicant blamed general impecuniosity and the lack of diplomatic access in Australia to passport renewal. When asked why he was impecunious, he indicated he was not working but readily agreed that he did have ‘permission to work’. He blamed his lack of employment on having only a Bridging visa. He claimed, in mitigation of his unemployment, that the temporary situation of a Bridging visa discouraged employers from giving him full-time employment. The Tribunal acknowledges the possibility of this situation but saying that a significant number of Bridging visa holders do work full or part as permission to work (when granted) is specifically aimed at providing Bridging visa holders with the right to work full or part time - due to financial necessity - as is the case with the applicant.

35. He also claimed that the later onset of the COVID19 pandemic caused his continuing unemployment in the [specified] industry. The Tribunal finds this second claim to be plausible - during the actual pandemic. However, it is public knowledge that the onset of the pandemic was in late 2019 and it surfaced essentially in early 2020 in Australia. The applicant was refused his visa on 18 September 2018.

1. The Tribunal is of the view that unforeseen bureaucratic inertia has played a crucial part in the applicant’s travails. He was granted a Subclass 300 visa on 20 April 2016. The applicant subsequently performed his Subclass 300 obligations properly. The applicant applied for his Subclass 820/801 visa on 22 December 2016. The applicant was granted a Bridging visa A on 22 December 2016. He probably anticipated this would be followed rapidly by the grant of a Subclass 820 Partner visa. However, the passport validity shot clock was ticking and his Angolan passport expired on [a day in] 2017 prior to 2018 when the Department began its processing.

2. The Tribunal notes, that the applicant is a proven international traveller who would be very aware of the importance of maintaining a valid passport for travel. Evidence of this contention is found in his oral evidence. He firmly insisted that he had 18 months passport validity left when he applied for his initial visa. More importantly, his passport was his primary means of identification. This was because (he informed in his submission) he had lost his Angolan ID when living in South Africa.

3. In normal circumstances the applicant would have approached consular or diplomatic assistance for a new passport. But as can readily be seen Angola provides no available means for renewal of a passport other then presenting oneself to the authorities in person in the actual country and being fingerprinted. He claimed to the Tribunal that - after approaching the Department - he was advised could not be issued with a travel document - a ‘Certificate of Identity’ - as a Bridging visa holder.

4. The sponsor has made the Tribunal aware that she was in contact with the Department (on his behalf) regarding his predicament. However, the information she has provided to the Tribunal indicates any dealing with the Department - post-dates the expiry date of his Angolan passport. He claimed to the Tribunal that he spoke to the Department about procuring a travel document - and was unsuccessful. He has claimed in his information to have been seeking (unsuccessfully) a Department-issued ‘Certificate of Identity’ which would allow him to travel overseas as a non-citizen to renew his passport. This document is issued precisely because a person no longer has a valid passport.

5. Additional information (tendered by the sponsor to the Tribunal) discloses that an Angolan passport can only be issued in Luanda, Angola directly to the person applying for same.  The applicant has presented a proposition to the Tribunal claiming that ‘it would be unreasonable to require the applicant to hold a passport’ because of these above factors being the inability to secure a passport due to the general inaccessibility of Angolan diplomatic representation.

6. The Tribunal gives this argument significant weight as the information available online indicates that Angola has very stringent and possibly unique passport renewal protocols. It is nigh on impossible for the applicant in his existing situation to comply with the protocols in his present Bridging visa situation. Furthermore, as the applicant explained in the hearing, he engaged in travel to Australia to marry (his now wife) with a passport with 18 months validity. He did not anticipate that his visa processing would take so long that his passport ran out. His wife indicated there was only one avenue available for renewal – a return to Angola. This suggestion has two problems. The parties - due to unemployment and COVID19 - have limited funds and both rely on her income - he advised in oral evidence. Additionally, it appears he is not eligible for a ‘Certificate of Identity’ to return to Angola and has no Angolan Identity Card.

7. The Tribunal does accept under these peculiar circumstances it is appropriate to extend some discretion to the applicant. Thus, it finds ‘it would be unreasonable to require the applicant to hold a passport’ under the circumstances outlined above. The Tribunal finds that the above explanation does, therefore, ground a finding he meets PIC4021(b). 

8. As the applicant does now meet PIC 4021, he does, resultingly, meet cl.820.226 of the Regulations.

9. For the reasons above, the applicant does satisfy the criterion for the grant of the visa.

   DECISION

10. The Tribunal sets aside the decision and finds that the applicant meets the following criterion for a Partner (Temporary) (Class UK) visa:

    ·cl.820.226 of Schedule 2 to the Regulations

    Michael Cooke
    Senior Member