1908218 (Migration)

[2020] AATA 2108

1908218 (Migration) [2020] AATA 2108 (16 April 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1908218

MEMBER:Meena Sripathy

DATE:16 April 2020

PLACE OF DECISION:  Sydney

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 100 (Spouse) visa.

Statement made on 16 April 2020 at 12:37pm

CATCHWORDS

MIGRATION –  cancellation – Partner (Migrant) (Class BC) visa – Subclass 100 (Spouse) – no declaration in visa application of other names known by – passport in another name sent to applicant – forensic facial image examination – two men with several passports each – Ghanaian passport procedures – prevalence of identity fraud in Ghana – credibility – inconsistent and contradictory evidence – either or both men may not be who they claim to be – insufficient evidence to establish finding – further investigations may be warranted – anonymous allegation of visa fraud – relationship with sponsor wife and daughter – decision under review set aside

LEGISLATION

Migration Act 1958 (Cth), ss 101, 107, 109, 359A

Migration Regulations 1994 (Cth), r 2.41

CASES
McDonald v D-G of Social Security (1984) 1 FCR 354
Mian v MILGEA (1992) 28 ALD 165
MIEA v Wu Shan Liang (1996) 185 CLR 259
Nagalingam v MILGEA (1992) 38 FCR 191
Singh v MIEA (unreported, Federal Court of Australia, Sackville J, 6 December 1994)
Sullivan v Civil Aviation Safety Authority (2014) 226 FCR 555
Sun v Minister for Immigration and Border Protection [2016] FCAFC 52
Swan Television & Radio Broadcasters Ltd v ABT (1985) 8 FCR 291
SZEEM v Minister for Immigration [2005] FMCA 27
Zhao v MIMA [2000] FCA 1235
Zhong v MIAC (2008) 171 FCR 444

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 to cancel the applicant’s Subclass 100 (Spouse) visa under s.109(1) of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa on the basis that the delegate found the applicant did not comply with s101 of the Act because he did not provide a response to a question on his Partner visa application form regarding other names he has been known by.  The delegate found that the applicant has also used the [name]  and this is his alias. The delegate considered the prescribed circumstances in r.2.41 and other relevant considerations and concluded the visa should be cancelled.

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

4. The applicant appeared before the Tribunal on 17 October 2019 to give evidence and present arguments. The Tribunal also received oral evidence from [applicant using alias]. The Tribunal hearing was conducted with the assistance of an interpreter in the Akan (Ghana) and English languages.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Notice of intention to consider cancellation (NOICC) letter

6. A notice of intention to consider cancellation (NOICC) was sent to the applicant on 20 December 2018 (which superseded an earlier notice sent on 19 November 2018 that did not contain all the relevant information from Departmental records relating to the applicant’s alleged non compliance). The notice said the delegate considered that the applicant has not complied with s101(a) of the Act which required that all questions on an application must be answered. The notice advised that the non-compliance relates to his Partner visa application made on 30 November 2010. At Question 14 of Form 47SP he was asked to state other names he has been known by, including aliases.  He recorded no answer to this question. 

7. The NOICC referred to the following information before it

   ·A male named [alias] applied for a Partner visa on 9 April 2014.  His case was referred to a Complex Identity Analyst because there were no movement records of his arrival into Australia and he provided inconsistent identity details. On 17 October 2017 a Forensic Facial Image Examiner compared a facial image of the applicant with facial images of [alias] and concluded that the images represented the same person. 

   ·In November 2012 a package containing a Ghanaian passport [Number 1] in the name of [alias] addressed to the applicant at [Address, Suburb 1], was intercepted by the UK Border Agency in Ghana.  Departmental records show this to be the address [alias] provided as his residence and also the applicant’s address from 13 December 2012 to 17 November 2016.

   ·In 2011 and 2012 the Department received allegations from an anonymous source that [the applicant] organised for his [cousin]’ to assume his identity and paid his sponsor to enter into a contrived marriage with him.  Once [cousin] obtained his PR, [the applicant] will assume his PR identity from his cousin and his cousin will become an unlawful non citizen. It was alleged that [the applicant] and his cousin live together and neither live with the sponsor.

   ·There are no movement records relating to the arrival of a person by the name of [alias] into Australia.

8. The NOICC alleged that the applicant has also used the [name] and this name is his alias. Therefore he did not comply with s101(a) by failing to provide this information at Question 14 in his Partner visa application form.

   Applicant’s Response to the NOICC

9. The applicant provided responses to the first and second notices on 28 November 2018 and 10 January 2019.  In his first response on 28 November 2018 he denied that he is [alias] or has ever used that, or any other, alias. He claimed that someone may have been using his documents and identity without his knowledge as he was advised by the ATO that he had understated his income. When he lived at the [Suburb 1] address there were 6 other people and one of these people may have been involved. He submitted that it makes no sense for him to apply for a Partner visa in a different name because he was already granted a Partner visa with [Ms A], with whom he has a child.  He travelled to Ghana last year from 21 May 2017 to 23 August 2017 and had no problems leaving or returning to Australia.

10. In his response on 10 January 2019 to the second NOICC he stated that he accepts that he has not complied with s101(a) which obliges him to complete the application in such a way that all questions are truthfully answered, however he would like consideration of the exercise of the discretion not to cancel his visa and made arguments addressing the circumstances referred to in r.2.41 of the Regulations.  He went on to state that the view of the Forensic Facial Image Examiner is contentious and he believes it is a case of mistaken identity, however even if he had an alias as [alias] it would not have affected his grant of a Partner visa.  He has a child with his sponsor wife and cancelling his visa would not be in his child’s best interests. He has lived in Australia for a substantial period of time and is gainfully employed and subcontracts to others who rely on him for work.   

    Other information on Department File           

11. The following further documents are included in the Department file [Number 1]:

    ·Letter dated 21 March 2019 from [Ms A] stating that she is married to the applicant and continues to be married, and they have a daughter together whom the applicant supports and who will be adversely affected if his visa is cancelled.

    ·Enrolment form for [Suburb 2] Child Care Centre relating to child [Child 1], stating the child lives with her mother and referring to grandfather as Guardian 2.

    ·Birth certificate of [Child 1], born [Date 1], naming the applicant as her father.  The Birth Certificate states the full name of the child was previously recorded as [Child 1, alternative name].

    ·Departmental requests for information from Department of Human Services indicating [Ms A]’s relationship status is recorded as separated from April 2014 and she has two dependents, [Child 1] born [Date 1], and [Child 2] born [Date 2].

    ·Departmental requests for information from Department of Human Services indicating applicant’s relationship status is recorded as separated from April 2014.

    ·Identity Assessment Report relating to [alias name] dated 16 March 2018 – subject to a non disclosure Certificate under s375A.

12. The Tribunal also has before it the Department’s file [Number 2] relating to the applicant’s Subclass 309 Class UF visa.

    Evidence before the Tribunal

13. On 7 October 2019 the Tribunal received a submission from the applicant to ‘set out to correct and explain any misapprehension following his earlier response to the Department. As I stated in respond to the Department, I accept the fact that I have not complied with subsection 101(a) that obliges me to fill my application form in such a way that all questions are answered truthfully. However I would like you to exercise your discretion not to affirm the delegate’s decision. The prescribed circumstances for the purposes of s109(1)(c) of the Act found in r.2.41 which you must have regard to, I rely on subparagraph (e).  The applicant goes on to make submissions relating to his present circumstances, and specifically relating to his relationship with his daughter, the impact on her if he were to be required to depart Australia and his parental role and financial support of her.  He also makes submissions that he is making a significant contribution to the community by his employment as a farmworker (sic) specialising in stripping and concreting. He states there is no evidence of non compliance by him since he came to Australia, apart from the current issue. He also refers to the substantial period between the grant of the provisional and permanent partner visas and the issue at foot.

    Tribunal hearing

14. On 17 October 2019, the Tribunal invited the applicant and the review applicant in a related matter before it, case 1920345, [alias name], to a hearing at the same time and place.  Two separate people appeared in response to the invitation for hearing.  The Tribunal explained its purpose in bringing the two applicants before it was because of the common issue arising in their case, namely the allegation that they were in fact one and the same person.  Given that two separate persons attended, it proceeded to hear the cases separately, noting that any relevant evidence arsing in each other’s matters would be put to the other for comment. 

15. The following evidence was provided by the applicant at a hearing on 17 October 2019.

16. Contrary to his submission to the Department dated 10 January 2019 and to the Tribunal on 7 October 2019, he does not accept that he did not comply with s101(a) as alleged.  He said he was assisted to write those submissions by a friend and he does not understand why the friend wrote that.  When asked to provide the name of his friend, he declined to provide a name other than [named], with whom he played soccer. When asked if he had read and understood the information contained in the NOICC letters provided to him in November and December 2018 he indicated that he did.  He was aware of the particulars about the intercepted passport in [alias] name that was addressed to him at the [Suburb 1] address.  He said he does not know why this would have been sent to him.  He knew a person by the name of [alias used] lived at that address, but he did not live there with him at any time.  [Named alias] lived there after he had left.  The applicant was also aware of the information in the NOICC regarding the Facial Image Examination report which concluded that the pictures of him and [alias named] were one and the same person.  He denies this is correct.   He was also aware of the allegation made regarding immigration fraud and denies it. 

17. The applicant stated that he currently lives at an address in [Suburb 3] with a friend, also named [name] but not the same person who assisted him to prepare his submission. He is separated from [Ms A] for the past 4-5 years. They had a daughter together, named [Child 1], who was born on [Date 3]. He used to see her regularly but then he had a job in [City] and the mother wanted someone else to be stated as next of kin for the child so the grandfather was named. He claims he has paid child support for the child for many years, He last saw her about 6 months ago, she lives with her mother but he does not know the address.

18. The Tribunal asked the applicant about the child’s full name as recorded on her birth certificate.  He was aware the mother included a family name of [Family name] which he was not happy with and this was part of the problems between them that led to the end of the relationship. When asked if the child was known by any other names he did not appear to know.  When asked who [Child 1, alternative name] was he said that is the same child. He said he does not know why the mother included these names for the child or why the child does not have his family name. The Tribunal put to him that information before it indicates the child is not in Australia and has not been here for some time and this contradicts his evidence that he last saw her 6 months ago.  In response the applicant said this is the first he knows that the child is not in Australia.

19. The Tribunal put to the applicant given his evidence regarding the child it has serious doubts whether he is her father as claimed, as he has provided incorrect information about her date of birth, has demonstrated little knowledge about her family names and does not know of her whereabouts. In response he said he had problems with her mother about these matters and this is why he does not know these things.

20. The Tribunal asked the applicant about his migration history.  He said he came to Australia on 4 November 2011 as the partner of [Ms A].  Since his arrival he travelled once, from 21 May to 23 August 2017, to Ghana to visit his family. The Tribunal asked about the passport he used for this travel, noting it was different to the one he used to travel to Australia in 2011.  He said he lost that passport and made a report to the police about it.  He approached the Ghanaian Embassy in Australia about getting a new passport and was told that they would issue him an International Travel Certificate to allow him to return to Ghana and he could apply for a passport there.  He decided instead to ask a friend back home to send him a passport he had there which was still valid, and he used that old passport.  The Tribunal asked the applicant if he had this passport still.  He said he does but did not bring it to the hearing.  The Tribunal asked him to provide the passport and indicated that it may conduct verification checks on this document.  Following the hearing, the applicant provided the Tribunal a passport number [Number 2] in his name that he used to travel from, and back to, Australia in 2017.

21. The Tribunal asked the applicant about his family in Ghana.  He said his father, [Mr B] and mother, [Ms C] live in Sunyani.  He also has a brother, [Mr D] and sister [Ms E].  They are both married and have children. He has two children, [Ms F] born [Date 4] and a son [Mr G] born [Date 5].  Their mother is [Ms H], they were in a relationship together from 1999 to 2008.  He is in contact with [Ms H] only in relation to the children. He said he saw his children when he went back to Ghana in 2017. 

22. The Tribunal put to the applicant that it has some serious concerns about his identity arising from his appearance and evidence at the hearing.  Specifically it has concerns that he does not physically resemble the person shown as [the applicant] in identification documents and photos before the Tribunal, including previous passports and photos on Department files. It has concerns about whether he is the father of [Child 1] given his evidence about her. It also has concerns about the authenticity of the passport he used to travel to Australia in 2017 and asked the applicant to bring a physical copy of this document to the Tribunal as it may wish to conduct verification checks on it.

23. In response the applicant reiterated that he is [the applicant] and this is the only name he has ever been known by.  He has paid child support for the child [Child 1] for many years and he would not do that if he was not her father.  He said as far as he is aware he is her father, but only the mother knows this.  Given he did not know until now that the child was not in Australia, he may also be wrong about this. 

24. The Tribunal noted that correspondence he has provided to the Tribunal including the most recent submission dated 7 October 2019, have been sent from the email address of Tony Assante, who is the registered migration agent authorised by him to receive communication.  Given this, it may have difficulty accepting his denial at the hearing about the content of the submissions in which he acknowledged non compliance with s101(a).  The applicant stated that he only uses Mr Assante’s email address because he does not have his own, but he is no longer represented by Mr Assante.

    Evidence of [alias name]

25. Following the applicant’s evidence, the Tribunal took evidence from Mr [alias name], in respect of his own review application before the same Tribunal. The following is evidence he gave which is relevant to the present case.

26. [alias named] denied that he is, or has ever been known as, [the applicant].

27. The Tribunal asked him about the history of the passports he has held since his arrival in Australia. He said he has no knowledge of the passport on which he entered the country.  The first passport he obtained was arranged by a lawyer he met in Australia, to whom he provided his birth certificate and filled out forms. He understood the agent applied to Canberra for the passport to be issued. In November 2017, he approached the Consulate General of Ghana in Sydney to seek to renew this passport because it was due to expire in January 2018. He provided his birth certificate and a photo and they took his old passport from him.  He received his new passport, which was issued in Accra, through the Consulate.

28. The Tribunal asked [alias named] about the allegation that [the applicant] is involved in immigration and identity fraud and that a passport in his name was included in a package addressed to [the applicant]. In response [alias named] acknowledged he lived at [Address, Suburb 1] from 2012-2014 with a number of other people, including the other person who attended this hearing today (the applicant). However he did not know him as [the applicant], he only knew him as [nick name] which he thought was his nick name. He knew his wife also, a woman called [Ms A], who used to visit him but he does not know if she lived there or elsewhere.  There were 4 other men living there at the time.  He recalls at that time that he had given his birth certificate to the agent to get his passport and so he does not know if his identity was used.  When the Department sent him a NOICC in relation to his bridging visa he was contacted by his former agent Mr Assante. When he attended at his office the person who came to this hearing (the applicant), who he knows as “[nick name]” was present.

    Post hearing s359A letter and request for third party information

29. On 25 October 2019, the Tribunal sent the applicant a letter in accordance with s359A of the Migration Act, to invite his comments or response to information which, subject to his response, would be the reason or part of the reason to affirm the decision under review. Specifically, the Tribunal put particulars of evidence given to the Tribunal by [alias name] that he had lived at [Address, Suburb 1] between 2012 and 2014 and that the applicant was among the people who lived with him there, but that he knew the applicant by the name ‘Nana Yaw’ and not [the applicant]. Particulars of the movement records of [Child 1] was also put to him indicating that she departed Australia on 1 Jun 2018 and has not returned since. The Tribunal explained that this information is relevant because [alias name]’s evidence is consistent with and supports the allegation received by the Department in 2011 and 2012 and together with other evidence, may lead the Tribunal to have doubts about the applicant’s credibility and reliability of his evidence and it may find that he is [nick name] and used the identity of [the applicant] to enter Australia. It may also find that he is not the father of [Child 1] as claimed. If the Tribunal made these findings it would contribute to the reasons for affirming the decision under review.

1. On 4 November 2019 the applicant provided a response to the s359A letter. He reiterated that he has never been known by the name [nick name] and is [the applicant] and that [alias named] must have mistaken him for someone else. He stated the allegation made was spurious and frivolous and it was sent by a person he has later come to know owed him money. In any event, the name ‘[nick name]’ and ‘[variation of the nick name]’ are two different names the former is male and the latter is female. Regarding his daughter, he stated at the hearing he was unaware she had travelled ot Ghana and despite this he has been paying child support for her.

2. On 10 December 2019 a request for information was sent to the Ghana Consulate, Sydney in response to a series of questions relating to the current passports issued to the applicant and Mr [alias name], scanned copies of which were attached.  The applicant and [alias names] were informed prior to this request being made and were given an opportunity to object. No objection was received from the applicant.  Relevantly for the applicant’s matter, the Tribunal asked whether new passports to Ghanaian nationals in Australia were issued in Australia or sent to Ghana to be issued and to comment on the authenticity of the applicant’s passport.

3. On 10 March 2020 the Honorary Consul of the Consulate-General of the Republic of Ghana responded stating that all applications for renewals or replacement passports submitted to a Ghana mission in Australia are sent to the Passports Office in Ghana for final processing and production. No comment was made on the authenticity of the applicant’s passport on the basis of the scanned copy sent, without an original passport. The Consul General confirmed that no application was made to the Sydney Consulate in relation to this passport.

   CONSIDERATION

4. Section 109(1) of the Act allows the Minister to cancel a visa if the visa holder has failed to comply with ss.101, 102, 103, 104, 105 or 107(2) of the Act. Broadly speaking, these sections require non-citizens to provide correct information in their visa applications and passenger cards, not to provide bogus documents and to notify the Department of any incorrect information of which they become aware and of any relevant changes in circumstances.

5. The exercise of the cancellation power under s.109 of the Act is conditional on the Minister issuing a valid notice to the visa holder under s.107 of the Act, providing particulars of the alleged non-compliance. Where a notice is issued that does not comply with the requirements in s.107, the power to cancel the visa does not arise. Extracts of the Act relevant to this case are attached to this decision.

   Did the notice comply with the requirements in s.107? 

6. In respect of this first issue, the Tribunal accepts the notice of intention to consider cancellation (NOICC) of 20 December 2018 is valid. The Tribunal finds the delegate reached the necessary state of mind to issue the NOICC because the delegate expressly stated in the NOICC that he formed the view that there has been non-compliance and provided a basis for those findings, being the information before it on which the conclusion about his alias was based. 

7. Next, the Tribunal must identify the particulars provided in the notice and consider whether they are sufficient. Relevant case law about the role and sufficiency of particulars provides that the particulars must be sufficient to fairly inform the visa holder of the basis upon which cancellation is being considered so that the visa holder is adequately equipped to provide such relevant information as may be available and to make such submissions as may be open[1] and that It would not be enough to generically claim that the visa holder has breached a section of the Act without giving particulars of the facts and circumstances which are said to give rise to the possible breach of the particular provision.[2]  

   [1] Zhao v MIMA [2000] FCA 1235 (French, Hill and Carr JJ, 1 September 2000) at [25], cited with approval by the Federal Court in MIAC v Brar (2012) 201 FCR 240 at [57]-[58], which concerned a s.107 notification.

   [2] Zhong v MIAC (2008) 171 FCR 444 at [80].

8. Taking these authorities into account, the Tribunal considers there are two possible ways to read the manner in which the non compliance has been described in the NOICC.  The first, and more narrow reading, is that it alleges the applicant provided incorrect information in his response to Q14 of Form 47SP because he failed to state his alias as [alias name], as alleged by the Department on the basis of information before it.

9. Alternatively, a second and broader reading is that the NOICC particularised the non-compliance as that he provided incorrect information by not providing a response to Q14 on the Partner application form to whether he had an alias he is known by, and the information before the Department, provided in the notice, indicated the applicant had an alias of [alias name].

10. On either of the readings above, the notice has identified the claim that is alleged to be incorrect information and has indicated the information on which the allegation is based, and therefore complies with s.107.

    Was there non-compliance as described in the s.107 notice?

11. The next issue for the Tribunal is to decide whether there has been non-compliance in the way described in the s.107 notice, being the manner particularised in the notice which frames the Tribunal’s enquiry,[3] and if so, whether the visa should be cancelled.

    [3] SZEEM v Minister for Immigration [2005] FMCA 27, relying on Allsop J in Saleem v Migration Review Tribunal [2004] FCA 234

12. The Tribunal proceeds in this review on the basis that the non-compliance identified and particularised in the s.107 notice was non-compliance with s101(a) in his response to Question 14 of his Partner visa application form which asked for him to state all names he has been known by, including aliases.  He left this question blank.

13. The delegate concluded that he provided incorrect information because he did not provide the name [alias], which it was alleged was his alias.  The allegation that he is also known as [alias] was based on information including an analysis of a Forensic Facial Image Examiner who examined facial images of the applicant and those of [alias name] contained in another Department file; anonymous allegations made in  2011 and 2012 suggesting the applicant was involved in a contrived marriage;  information in Department records regarding the interception in November 2012 of a package containing a Ghanaian passport in the name of [alias name] addressed to the applicant; and the absence of any movement records relating to the arrival into Australia of [alias name]. 

14. The applicant’s responses to the Department’s allegation provided on 28 November 2018 and 10 January 2019 were contradictory and confusing. Initially he denied that he is [alias name] or has ever used that alias. However in his subsequent response on 10 January 2019 he accepted the non compliance with s101(a) and requested consideration of the exercise of the discretion not to cancel his visa. In this response he disputed the conclusion of the Forensic Facial Image Examiner and also argued at the same time that even if he had an alias of [alias name] it would not have affected the grant of a Partner visa to him as he had a spouse and child with his sponsor, which were also circumstances relevant to the exercise of the discretion in his case.

15. Before the Tribunal the applicant also submitted contradictory and inconsistent responses to the allegation of non compliance.  In a written submission dated 17 October 2019, he again conceded that he had not complied with subsection 101(a) of the Act and sought exercise of the discretion not to cancel his visa.  However, in his evidence in person to the Tribunal on 17 October 2019, he retracted this and maintained that he is not, and has never been known as, [alias name].  Another person claiming to be [alias name] attended the hearing the same day and time.

16. The Tribunal finds the applicant’s multiple contradictory and inconsistent responses to the Department and Tribunal in this matter raises serious issues about the credibility and the reliability of his evidence. These concerns were only increased by his physical attendance before the Tribunal on 17 October 2019, where he gave evidence about his family circumstances that contradicted and was inconsistent with information he had provided previously and is contained in Department files.

17. As indicated above, the applicant was invited to attend a hearing at the same time and place as the applicant in a related case, 1920345, and the Tribunal notes that two different persons attended.  The Tribunal took evidence from each of them separately. 

18. The Tribunal notes that the same delegate was involved in making the primary decisions the subject of both reviews presently before the Tribunal, and the decisions were made on the same conclusions reached on the basis of the same information.  Despite this, the delegate never interviewed the applicants together or individually.

    Establishing non compliance

19. With regard to the onus of establishing non-compliance, it is well established that civil law concepts such as onus and standard of proof are generally inappropriate in the administrative law context.[4] However, where, as in cancellation cases, the existence of facts grounds the exercise of a statutory power, the onus of establishing those facts is on the Minister (or on review, the Tribunal).[5]  Although the visa holder must be invited to show that the ground does not exist, or if it does, to show cause why the discretion should not be exercised, this does not place an onus on the visa holder to establish at that point that the visa should not be cancelled. at [25]:

    ‘The decision-maker, acting under s 116, must be satisfied of one or other of the matters set out in that section before the visa can be cancelled. That state of satisfaction is a real state of satisfaction which must be reached on a consideration of the available material. A visa cannot be cancelled simply because the visa holder has failed to show cause why it should not.’ [6]

    [4] MIEA v Wu Shan Liang (1996) 185 CLR 259 at 282-283; Nagalingam v MILGEA (1992) 38 FCR 191 at 200, McDonald v D-G of Social Security (1984) 1 FCR 354 at 357; and Swan Television & Radio Broadcasters Ltd v ABT (1985) 8 FCR 291 at 297.

    [5] Mian v MILGEA (1992) 28 ALD 165 at 169; Singh v MIEA (unreported, Federal Court of Australia, Sackville J, 6 December 1994) at [14].

    [6] Zhao v Minister for Immigration and Multicultural Affairs [2000] FCA 1235 (French, Hill and Carr JJ, 1 September 2000). While that case was concerned with cancellation under s.119, the Court’s comments would be equally applicable to s.109.

20. In a case such as the present, in deciding whether the ground for cancellation is made out the Tribunal considers it is appropriate to bear in mind the nature of the allegations and the gravity of the consequences.[7]  It is clear here that the consequence that flows from the decision that the applicant gave incorrect information in his Partner visa application being the basis to make out the ground of non compliance, is undeniably serious, being cancellation of a permanent visa held by him for over seven years now.

    [7] Sullivan v Civil Aviation Safety Authority (2014) 226 FCR 555 and Sun v Minister for Immigration and Border Protection [2016] FCAFC 52. Eg. The Court in Sullivan observed at [120] ‘When making findings of fact which have “serious” consequences to a party, or “grave” consequences, the Tribunal is free to consider the evidence and other materials before it. The more centrally relevant a particular fact may be to the decision reached, the Tribunal it may be accepted would express greater caution in evaluating the factual foundation for the decision to be reached.’

21. For reasons explained more fully below, the Tribunal is not satisfied on the evidence before it that the applicant provided incorrect information in Q14 by leaving the answer blank, because it is unable to find with confidence that he was at that time, or is, known by an alias.  Contrary to the finding of the delegate, the Tribunal is not satisfied that the applicant is also known as [alias name].  It also cannot find with confidence, that he is also known as [nick name] or [nick name].  Although the evidence before the Tribunal discloses some basis for it to have concerns and suspicions about this, the Tribunal considers ultimately that there is insufficient evidence before it on which to confidently base a finding that he is also known as this person. 

22. Therefore, the Tribunal is not satisfied that the applicant provided incorrect information in his response to Q14 of the Partner visa application form by leaving the question blank. Below, it sets out its consideration and analysis of the evidence and information before it and the reasons for this conclusion.  

    Allegation that the applicant is [alias name]

23. The Tribunal is not satisfied that the applicant is, or is also known as, [alias name].  Two different people who claim to be the applicant and [alias named], respectively, attended in person before the Tribunal at the same time and place on 17 October 2019.  On this basis the Tribunal finds the applicant and [alias named] are not one and the same person.

24. The Tribunal has considered the possibility that either or neither of the individuals who appeared before the Tribunal are the persons they claim to be. This is clearly a distinct possibility, and one that is not implausible.

25. The Tribunal has considered the whether the evidence before it supports this conclusion.

    Passport evidence

26. The applicant and Mr [alias] provided to the Tribunal a current and an expired Ghanaian passport to support their claimed identities.  The Tribunal has serious concerns about the authenticity of these documents.

27. Their current passports were both issued in 2017 but one (the applicant’s) is a biometric one and the other (Mr [alias’]) is a non biometric passport.  Independent information before the Tribunal indicates that Ghana started issuing biometric passports in April 2010.[8]  The Tribunal was unable to find independent corroboration to support that Ghana still issues non biometric passports since then. A 2015 research response by Canada’s IRB indicated the website of Ghana’s Ministry of Foreign Affairs stated that Ghanaians  abroad qualify under the law for biometric passports and should apply through Ghana’s missions abroad.[9]  Meanwhile, information from a variety of sources was located by the Tribunal indicating visa fraud and identity theft is a known and prevalent phenomenon in Ghana.[10]

    [8] Canada: Immigration and Refugee Board of Canada, Ghana: Requirements and procedures for obtaining a passport, both within and outside the country; types of documents accepted as proof of identity and citizenship (2008-2013), 3 January 2014, GHA104709.E , available at: 7 April 2020]

    [9] Canada: Immigration and Refugee Board of Canada, Ghana: Requirements and procedures to replace a lost or stolen passport; whether applicants are fingerprinted to determine the issuance of previous passports; whether replacement passports have the same serial number as the one being replaced, 17 April 2015, GHA105154.E, available at: 7 April 2020]

    [10] 'Ghana’s visa fraud problem has triggered a rise in identity theft', Quartz, 20 December 2017, CXC90406621091, 'The true story of the fake US embassy in Ghana', Guardian, The, 28 November 2017, CX6A26A6E31178

28. The applicant applied for and was issued his passport in Ghana, whereas Mr [alias] applied for his from the Consulate General’s office in Sydney, which sent it to Ghana for production and issue. There were differences in the evidence the applicant and Mr [alias] gave to the Tribunal about the advice they each obtained from the Consulate General regarding passport renewal and this concerned the Tribunal.  

29. Following the hearing, the Tribunal provided scanned copies of the passports and requested verification from the Consulate General of Ghana. It also asked for information about the procedure for renewing a passport for Ghanaian nationals in Australia. In response the Tribunal was informed by the Honorary Consul that passports applications are sent to Ghana to be issued and produced there and the copy of Mr [alias’] current passport was verified as genuine on the basis that he made the application through their office. The Consul General confirmed the applicant did not make his application through them and declined to verify the authenticity of his passport having not seen the original. Regarding the question of how Mr [alias]  would have been issued a non biometric passport in 2017, the Honorary Consul responded as follows: Ghana missions in Australia are yet to be provisioned with biometric reading equipment required for the biometric passports.  If the holder of a biometric passport submits a renewal to a Ghana mission in Australia, then the biometric information held by the Passports Office in Ghana for that applicant is used (e.g. photos, fingerprint and signature).  Only the older style passports are issued for all other applications that are submitted to a Ghana mission in Australia. As mentioned above the Tribunal was unable to find any other sources of information to corroborate or support this statement that genuine older style passports are still being issued.

30. The Tribunal has also taken into consideration and finds relevant here, notes on the applicant’s Partner visa file which indicate that in October 2011, at the time he was granted a 309 visa, he was unable to depart Ghana on his then still valid non biometric passport ([Number 3], issued on 8 June 2009 and valid to 7 June 2019).  He was required to apply for a new [series] biometric one, which he did ([Number 4], issued 17 October 2011 valid to 16 October 2016). 

31. He told the Tribunal he lost this passport and gave evidence that he used another old but still valid passport ([Number 2]) to depart and re-enter Australia in 2017. The Tribunal observes that this passport indicates a date of issue of 11 October 2008 and expiry of 10 October 2018 and contains an image that in no way resembles the image on the biometric passport of [the applicant] used for his first entry to Australia ([Number 4]).  Other concerns the Tribunal has with this document are that it is unsigned, states a different place of birth (Kumasi not Sunyani) and its date of issue and validity overlaps with the passport he previously held ([Number 3]) referred to above that he was previously unable to use to depart Ghana in 2011 because of the introduction of biometric passports.  All of this leads the Tribunal to conclude that passport [Number 2] is not a genuine document, and his evidence about how he obtained and used this document reflects poorly on his credibility.  Despite this, the Tribunal accepts that movement records indicate this document was used in relation to a movement from and back into Australia between May and August 2017.  It is somewhat perplexed how this occurred. 

32. The Tribunal observes that the biometric passport provided by the applicant to the Tribunal ([Number 5]) that was issued on 10 August 2017 in Accra, also states his place of birth as Kumasi not Sunyani and contains an image similar if not identical to that on [Number 2]. These images also most closely resemble the person who appeared before the Tribunal as the applicant in this matter.

33. Taking into consideration all of the above and these concerns, the Tribunal has serious concerns about the passport evidence submitted to the Tribunal by the applicant.  It finds these passports are of questionable reliability and authenticity and the Tribunal does not accept these documents as evidence of the applicant’s identity as stated.

    Forensic Facial Image Examination report

1. The Tribunal has considered the evidence of the opinion of the Facial Image Examiner who examined an image of the applicant provided in the passport he submitted with his Partner visa application with an image of [alias name] provided in the passport he submitted with his Partner visa application.  On the basis of the two images compared, an opinion was provided that they represent the same person. The Tribunal observes that neither of these images correspond to the individuals who appeared before the Tribunal on 17 October 2019.

2. The Tribunal concurs with the opinion of the facial image examiner that the images may be of the same person. However this does not of itself lead to the conclusion that the applicant is the same person as Mr [alias], just that [alias named] appears to have used the image of [the applicant] to obtain the passport issued in 2013. The Tribunal also observes that the image in the current passport of the applicant bears little to no resemblance to either of the images previously examined, suggesting that the applicant who presently claims to be [the applicant] may not be [the applicant] even if he is not [alias named].

   Package containing Ghanaian passport of [alias named] addressed to applicant intercepted in November 2012

3. The delegate referred in the NOICC to a package intercepted in November 2012 by UK Border Agency containing a Ghanaian passport [Number 1] in the name of [alias name] addressed to the applicant.  The Tribunal sought further information from the Department about this, including any evidence of the document referred to.  On further investigation it appears this information is solely based on an email notification from the UK authorities and the actual package or passport document was never provided to the Department.  Mr [alias], in his evidence to the Tribunal denies any knowledge of this matter and maintains the only passports he has ever held are the ones he obtained after arrival in Australia, in 2013 and 2017 referred to above.  In the absence of any further evidence, the Tribunal places no weight or significance on this information.

   Allegations to Department in 2011 and 2012 that applicant was involved in a contrived relationship and permitted [cousin] to assume his identity

4. The allegations received by the Department in 2011 and 2012 from an anonymous source that [the applicant] organised for his [cousin] to assume his identity and paid his sponsor to enter into a contrived marriage with him, appears to be supported by the evidence provided to the Tribunal from [alias name] that he knew the applicant while sharing the address with him at [Address, Suburb 1], as “[nick name]”. The Tribunal put this information to the applicant in writing following the hearing, explaining that if relied on it may support a conclusion that he is also known as [nick name] and assumed the identity of [the applicant] to enter Australia.  In response, the applicant denied he is or was ever known as [nick name].

5. The Tribunal has considered the information in the allegation made to the Department, together with the evidence of [alias named] at the hearing and the applicant’s other evidence at hearing about his family circumstances as well as his denial of the allegation.  During the hearing the applicant was unable to provide accurately the date of birth of his claimed daughter, nor satisfactorily explain her name as recorded on the birth certificate.  He was unaware that she had departed the country in 2018. While he claimed he had been, and continues to pay child support in respect of her he provided no evidence to support this.  His evidence to the Tribunal that he had separated from her mother 4-5 years ago, contradicted the evidence from her provided to the Department dated 21 March 2019, where she stated they are still married.  All of this taken together leads the Tribunal to have serious doubts about the credibility and reliability of his evidence, or that he is the father of this child.  These credibility concerns add to doubts the Tribunal has about the genuineness of his relationship with his sponsor and its concerns overall about his true identity. 

   Conclusions on the evidence

6. Taking into account all of the above, the Tribunal strongly suspects that the applicant is not [the applicant] and may be a person by the name [nick name], who assumed the identity of [the applicant] to enter Australia.   However, apart from the positive identification of the applicant by that name by [alias named] at the hearing on 17 October 2019, and the anonymous allegations made to the Department in 2012, there is no other substantive, reliable evidence before the Tribunal to support such a finding. 

7. In all of circumstances, including concerns arising from the evidence about the reliability of [alias named]’s evidence, the Tribunal cannot make a confident finding on the available evidence that the applicant is [nick name] or is also known as [nick name]. 

8. For these reasons, the Tribunal cannot be satisfied of non-compliance by the applicant in the way described in the s.107 notice. It follows that the discretionary power to cancel the applicant’s visa does not arise. 

9. The Tribunal observes that, having regard to the doubts and concerns referred to above concerning the applicant’s true identity, further investigations may well be warranted.  Should this investigation lead to more concrete and reliable evidence, it may well be open to the Department to consider cancellation on other grounds in future. 

   DECISION

10. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 100 (Spouse) visa.

    Meena Sripathy
    Member

    
    

    ATTACHMENT – Migration Act 1958 (extracts)

    5Interpretation

    (1)In this Act, unless the 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.

    97Interpretation

    In this Subdivision:

    application form, in relation to a non‑citizen, means a form on which a non‑citizen applies for a visa, being a form that regulations made for the purposes of section 46 allow to be used for making the application.

    passenger card has the meaning given by subsection 506(2) and, for the purposes of section 115, includes any document provided for by regulations under paragraph 504(1)(c).

    Note:Bogus document is defined in subsection 5(1).

    98Completion of visa application

    A non‑citizen who does not fill in his or her application form or passenger card is taken to do so if he or she causes it to be filled in or if it is otherwise filled in on his or her behalf.

    99Information is answer

    Any information that a non‑citizen gives or provides, causes to be given or provided, or that is given or provided on his or her behalf, to the Minister, an officer, an authorised system, a person or the Tribunal, or the Immigration Assessment authority, reviewing a decision under this Act in relation to the non‑citizen’s application for a visa is taken for the purposes of section 100, paragraphs 101(b) and 102(b) and sections 104 and 105 to be an answer to a question in the non‑citizen’s application form, whether the information is given or provided orally or in writing and whether at an interview or otherwise.

    100Incorrect answers

    For the purposes of this Subdivision, an answer to a question is incorrect even though the person who gave or provided the answer, or caused the answer to be given or provided, did not know that it was incorrect.

    101Visa applications to be correct

    A non‑citizen must fill in or complete his or her application form in such a way that:

    (a)all questions on it are answered; and

    (b)no incorrect answers are given or provided.

    107Notice of incorrect applications

    (1)If the Minister considers that the holder of a visa who has been immigration cleared (whether or not because of that visa) did not comply with section 101, 102, 103, 104 or 105 or with subsection (2) in a response to a notice under this section, the Minister may give the holder a notice:

    (a)     giving particulars of the possible non‑compliance; and

    (b)     stating that, within a period stated in the notice as mentioned in subsection (1A), the holder may give the Minister a written response to the notice that:

    (i)if the holder disputes that there was non‑compliance:

    (A)shows that there was compliance; and

    (B)in case the Minister decides under section 108 that, in spite of the statement under sub‑subparagraph (A), there was non‑compliance—shows cause why the visa should not be cancelled; or

    (ii)if the holder accepts that there was non‑compliance:

    (A)give reasons for the non‑compliance; and

    (B)shows cause why the visa should not be cancelled; and

    (c)      stating that the Minister will consider cancelling the visa:

    (i)if the holder gives the Minister oral or written notice, within the period stated as mentioned in subsection (1A), that he or she will not give a written response—when that notice is given; or

    (ii)if the holder gives the Minister a written response within that period—when the response is given; or

    (iii)otherwise—at the end of that period; and

    (d)     setting out the effect of sections 108, 109, 111 and 112; and

    (e)      informing the holder that the holder’s obligations under section 104 or 105 are not affected by the notice under this section; and

    (f)      requiring the holder:

    (i)to tell the Minister the address at which the holder is living; and

    (ii)if the holder changes that address before the Minister notifies the holder of the Minister’s decision on whether there was non‑compliance by the holder—to tell the Minister the changed address.

    (1A)The period to be stated in the notice under subsection (1) must be:

    (a)     in respect of the holder of a temporary visa—the period prescribed by the regulations or, if no period is prescribed, a reasonable period; or

    (b)     otherwise—14 days.

    (1B)Regulations prescribing a period for the purposes of paragraph (1A)(a) may prescribe different periods and state when a particular period is to apply, which, without limiting the generality of the power, may be to:

    (a)     visas of a stated class; or

    (b)     visa holders in stated circumstances; or

    (c)      visa holders in a stated class of people (who may be visa holders in a particular place); or

    (d)     visa holders in a stated class of people (who may be visa holders in a particular place) in stated circumstances.

    (2)If the visa holder responds to the notice, he or she must do so without making any incorrect statement.

    108Decision about non‑compliance

    The Minister is to:

    (a)consider any response given by a visa holder in the way required by paragraph 107(1)(b); and

    (b)decide whether there was non‑compliance by the visa holder in the way described in the notice.

    109Cancellation of visa if information incorrect

    (1)The Minister, after:

    (a)     deciding under section 108 that there was non‑compliance by the holder of a visa; and

    (b)     considering any response to the notice about the non‑compliance given in a way required by paragraph 107(1)(b); and

    (c)      having regard to any prescribed circumstances;

    may cancel the visa.

    (2)If the Minister may cancel a visa under subsection (1), the Minister must do so if there exist circumstances declared by the regulations to be circumstances in which a visa must be cancelled.