1829820 (Migration)

[2023] AATA 987

1829820 (Migration) [2023] AATA 987 (5 April 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mr Marziya Mohammadi

CASE NUMBER:  1829820

MEMBER:Stephen Conwell

DATE:5 April 2023

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for a Partner (Migrant) (Class BC) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 100 (Spouse) visa:

·Public Interest Criterion 4020 (2A) for the purposes of cl 100.222 of Schedule 2 to the Regulations

Statement made on 05 April 2023 at 2:48pm

CATCHWORDS
MIGRATION – Partner (Migrant) (Class BC) visa – Subclass 100 (Spouse) – failure to satisfy identity requirements – decision under review remitted 

LEGISLATION
Migration Act 1958, ss 65, 359AA, 359A, 376
Migration Regulations 1994, Schedule 2, cl 100.222; Schedule 4, Public Interest 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 Home Affairs on 25 September 2018 to refuse to grant the applicant a Partner (Migrant) (Class BC) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 29 November 2011. The delegate refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl 100.222 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) because on the evidence submitted the delegate was not satisfied as to the applicant’s identity. The delegate concluded that the applicant did not meet Public Interest Criterion (PIC) 4020(2A).

3. The applicant was represented in relation to the review by his registered migration agent (representative).

4. The applicant provided the Tribunal with a copy of the delegate’s decision record.

5. The applicant was invited to an in-person hearing on 23 February 2023. Shortly before commencement of the hearing the applicant informed that Tribunal that he was having difficulty understanding the interpreter appointed for the hearing. In light of this the Tribunal cancelled the hearing which was to be rescheduled at a future date. The review was rescheduled to an in-person hearing on a future date.

6. The applicant appeared before the Tribunal on 4 April 2023 to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor, Ms. [A] and from Mr. [B], the sponsor’s brother-in-law, who both attended in person. The Tribunal hearing was conducted with the assistance of an interpreter in the Hazaragi and English languages.

7. The representative attended the Tribunal hearing by video.

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

   s.376 Certificate

9. By emailed letter of 24 February 2023 the Tribunal informed the applicant of the existence of a s.376 certificate and explained the effect of such a certification is that the Tribunal is given discretion whether to disclose the document and/or information covered by the certificate. The certificate in this matter applied to folios 147- 148 of Dept file [deleted]. The Tribunal invited the applicant and his representative to comment on the validity of the certificate. However no response was received by the Tribunal and the issue was not raised by the representative in her written submission or during the hearing.

10. The Tribunal finds the certificate to be valid because the document and/or information covered by the certificate had been given to the Minister, or to an officer of the Department in confidence and the certificate is duly signed and dated.

11. The Tribunal finds that as the issue of the applicant’s identity is the basis for the refusal, and since this information is discussed in the delegate’s decision – which the applicant has provided to the Tribunal - there is no need to adopt the procedure in s. 359A or s.359AA of the Act, since the exception under s.359A(4)(b) applies. That is to say, the applicant has provided the Tribunal with this information for the purpose of the application. Furthermore, the representative’s written submission dated 22 February 2023 responds to each of the issues of concern raised by the information which is the subject of the certificate.  Consequently, the Tribunal places no adverse weight on the information which is the subject of the certificate.

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Background

12. The applicant was granted a Partner (Provisional) (Class UF) (Subclass 309) visa on 12 July 2014 on the basis of his spousal relationship with his sponsor, Ms [A], an Australian citizen.

13. According to the decision record, on 29 November 2011 the applicant provided information and evidence to the Department that was considered to be inconsistent and inaccurate in nature in relation to:

    ·     his sponsor’s previous marriages; 

    ·     his marriage certificate dated [date] June 2011 claimed to record his marriage to the sponsor;

    ·     his passport;

    ·     the parentage of the sponsor’s three children – specifically that two of the children were fathered by other men, not by the applicant.

14. After affording the applicant natural justice and taking into account his response dated 29 May 2018, the delegate was not satisfied as to the applicant’s identity and concluded, therefore that he did not meet PIC 4020(2A).

    ISSUE

15. The issue in this review is whether the visa applicant meets PIC 4020 and specifically PIC 4020(2A) as required by cl.100.222 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).

16. 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.

17. At the hearing the Tribunal informed the applicant that the delegate’s decision was based solely upon the applicant’s failure to meet PIC 4020(2A), which requires that the applicant satisfies the Minister as to his or her identity. The other elements in PIC 4020 are discussed by the delegate but do not form part of the reasons for the delegate’s decision. Therefore, in keeping with the President’s Direction, the Tribunal will consider only PIC 4020(2A) which was the sole basis of the delegate’s decision.

18. The Tribunal has taken into consideration, individually and completely, all the evidence in the Departmental and the Tribunal case files and the testimony given at the Tribunal hearing.

    Has the applicant given, or caused to be given a bogus document, or information that is false or misleading in a material particular?

19. Whilst the decision record notes the delegate’s concerns regarding the submission of a bogus document(s) in support of the visa application, the Tribunal finds that the delegate makes no decision with respect to PIC 4020(1) or (2). As a consequence, the waiver provisions afforded by PIC 4020(4) were also not considered by the delegate.  Therefore, and consistent with the President’s direction, the Tribunal makes no finding with respect to PIC 4020(1).

    Has a visa previously been refused based on a failure to satisfy cl.4020(1)?

20. Clause 4020(2) requires the Tribunal to be satisfied that the applicant and each member of the family unit have not been refused a visa because of a failure to satisfy cl.4020(1) in the period commencing 3 years before the application was made and ending when the visa is granted or refused. This requirement does not apply to a person who was under 18 at the time the application for the refused visa was made: cl.4020(2AA). 

21. There is no evidence that the applicant was previously refused a visa based on a failure to satisfy PIC 4020(1). The Tribunal is satisfied that PIC 4020(2) is met.

    Has the applicant satisfied the identity requirements?

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

23. The identity documents given to the Department include an Afghani passport (no. [deleted]) issued on [date] 2011 bearing the applicant’s photo, date of birth and name and his father’s name.  The Department file [also] contains two letters issued by the Consulate General of Afghanistan, in Quetta, Pakistan. The letters are fols. 51 -52 and are both dated 21 November 2017. Fol. 51 confirms that the Afghani passport (no. [deleted]) issued to the applicant is genuine. However fol. 52 advises that the marriage certificate submitted by the applicant (dated 28 June 2011) was not issued by the Consulate and is non-genuine.

24. Both these documents were assessed by the Department and were considered by the delegate before making a decision on 25 September 2018 to refuse the visa application. Also considered by the delegate prior to making a decision were the following documents submitted by the applicant on 29 May 2018 in response to the Department’s ‘natural justice’ letter:

    ·     supporting character reference letter from [Community Organisation 1];

    ·     letter from [a named doctor];

    ·     supporting character reference letter from [Community Organisation 2].

    ·     father's Tazkera (in Dari language)

    ·     English Translation of Tazkera for [Mr C] No: [deleted] issued [date] 1979

    ·     Statement from the applicant in response to the natural justice letter.

25. The representative’s latest submission dated 29 March 2023 refers to several additional documents in support of the applicant’s identity:

    1.    Tazkera of Applicant and accompanying translation – obtained from Afghan         Embassy in Canberra 25 June 2018;

    2.    Tazkera of Applicant’s Sister and accompanying translation - obtained from Afghan       Embassy in Canberra 25 June 2018;

    3.    Tazkera of Applicant’s children and accompanying translation – obtained from      Afghan Embassy in Canberra 25 June 2018;

    4.    Historical Tazkera of Applicant’s Father’s and accompanying English translation;

    5.    Evidence of Issue of Citizenship Tazkera for the family;

    6.    Form for Identity Verification and other Services for Afghan Nationals Resident     Overseas – obtained from Afghan Embassy in Canberra;

    7.    Australian Passport of Cousin, [Mr B] – indicates same place of birth as     the applicant;

    8.    Natural Justice Letter provided to the Department;

    9.    Australian Passport of Applicant’s Sister,– [indicates] same place of          birth as the applicant;

    10. Verification Letter from Consulate General of Afghanistan in Quetta, Pakistan -      extracted from departmental files and confirming Applicant’s passport is genuine –      dated 21 November 2017;

    11. Statement of [Mr D] dated 20/02/2023

    12. Tazkera of [Mr D].

26. The Tribunal notes that the first three documents listed above are dated or issued in June 2018, three months before the delegate’s decision. Also document #10 above is fol. 51 in the Department file (the Consulate letter confirming that the applicant’s passport is genuine).

27. In the hearing the Tribunal asked the applicant if, (apart from his father’s Tazkera and the letter from the Afghani Consulate in Quetta, Pakistan dated 21 November 2017) any of the supporting documents with the representative’s submission were provided to the Department before the refusal decision on 25 September 2018. The applicant told the Tribunal that whilst the documents are dated or issued in June 2018, they were not received in time to be submitted to the Department for consideration before its decision.

28. From a reading of the decision record, it is apparent that the delegate had regard to the documents provided by the applicant in his response of 29 May 2018 to the Department’s ’natural justice’ letter.  It is also apparent that the delegate had regard to the two letters issued by the Consulate General of Afghanistan, in Quetta, Pakistan (fols. 51 -52 in the Departmental file, both dated 21 November 2017, and to the applicant’s father’s Tazkera.  However, since the decision record makes no mention of any of the documents provided with the representative’s submission (with the exceptions noted above), the Tribunal finds that although much of the above-mentioned evidence is from mid-2018 and issued before the delegate’s decision, none of it seems to have been considered by the delegate in making the decision – with the exception of fols. 51-52 in the Department file and the applicant’s father’s Tazkera.

29. In the hearing the Tribunal asked the applicant to explain why his Tazkera, dated 25 June 2018 and issued by the Afghanistan Central Civil Registration Authority is numbered [number] (supporting document (1) above) however in supporting document (5) above (Evidence of Issue of Citizenship Tazkera for the family), his Tazkera is numbered [a different number]. In other words, why is the last digit. ‘0’ in his Tazkera and ‘9’ in the ‘family Tazkera’? The applicant could not explain the discrepancy, but with the assistance of his representative, the Tribunal accepts that this is a mis-transcription of the numbers in the English translation of applicant’s Tazkera. The original of the applicant’s Tazkera, upon larger magnification onscreen, shows that Tazkera number to [end with the digit ‘9’]’.  The Tribunal accepts that the serial number of the applicant’s Tazkera is consistent with the document number in the ‘family Tazkera’ and that, but for a mis-transcription in the English translation of applicant’s Tazkera, both documents bear the same, correct serial/document number.

30. The Tribunal has regard to the corroborating evidence in the applicant’s sister’s Tazkera and in the ‘family Tazkera’. The Tribunal notes the written statement of [Mr D], dated 20 February 2022, who claims to be a childhood friend of the applicant. However he did not appear as a witness at the hearing so the Tribunal gives limited positive weight to the statement.  The Tribunal has regard to the testimony of the two witnesses as to the applicant’s identity. However since the two witnesses are the spouse and brother-in-law of the applicant with a vested interest in the outcome of the merits review, the Tribunal gives limited positive weight to their testimony.

31. The Tribunal does accept that a Tazkera plays an important role in confirming Afghani identity, as explained in the representative’s submission,

    The Tazkeras are significant proof of [the applicant]’s Afghan citizenship. Country information confirming the processes for the issuance of Afghan Tazkeras indicate that Tazkeras are issued when the Afghan authorities are satisfied of the Taskera applicant’s identity and Afghan citizenship. The authorities in Afghanistan maintain record books which record the details of all Tazkeras issued within a family, which is traced through the male line.[1] The ‘[c]ore data about the [Tazkera] holder’s position in a family is registered manually and given a registration number which, among other things, refers to a particular branch of the family.’[2] Generally, a Tazkera applicant must present a Tazkera of a male relative as part of their application or have a male, preferably an elder, confirm which family tree they come from.[3] The authorities then use the male relative’s Tazkera or the witnesses’ confirmation to check the relevant page of the local record books for their family tree. According to Landinfo (2019):[4]

    A family tree is an important tool when issuing a tazkera and there are registration books showing tazkeras issued. This is systemised in line with the family network. In order to obtain a tazkera, the applicant must identify and verify his or her place in the family network (TLO 2013, p.16).

    Matching a Tazkera applicant to a recorded family tree is the crucial step in obtaining a Tazkera as this is how the authorities verify the applicant’s identity and Afghan citizenship.[5] Tazkera details of [the applicant]’s father appear on his Tazkera as evidence of his Afghan citizenship. The Afghan Tazkera issuing authorities had linked [the applicant] to his family tree based on [the applicant]’s father’s details. This confirms he was linked to his family tree on the Kunda, Record Books. It also proves that he followed the proper required processes for obtaining his Tazkera. We are advised that [the applicant] obtained his Tazkera from the Afghanistan Embassy in Canberra following the official required processes.

    [1] Landinfo, Country of Origin Information Centre, Afghanistan: Tazkera, passports and other ID documents (22May 2019) 11    < final.pdf.

    [2] Ibid

    [3] Ibid

    [4] Ibid

    [5] Ibid

32. Upon careful consideration of all of the evidence, the Tribunal, on balance, is satisfied as to the identity of the applicant in order to meet the requirements of PIC 4020(2A).

33. Therefore, the applicant meets PIC 4020(2A).

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

34. 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).

35. There is no evidence before the Tribunal the applicant, or a member of his family unit, has been refused a visa in the past because of a failure to satisfy PIC 4020(2A).

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

37. On the basis of the above, the applicant satisfies PIC 4020 for the purposes of cl 100.222.

    DECISION

38. The Tribunal remits the application for a Partner (Migrant) (Class BC) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 100 (Spouse) visa:

    ·Public Interest Criterion 4020 for the purposes of cl 100.222 of Schedule 2 to the Regulations

    Stephen Conwell
    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.

    …