1920345 (Migration) - [2020] AATA 2956

1920345 (Migration) [2020] AATA 2956 (30 April 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1920345

MEMBER:Meena Sripathy
DATE:30 April 2020
PLACE OF DECISION: Sydney
DECISION:The Tribunal remits the application for a Partner (Temporary) (Class UK) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 820 (Spouse) visa:
·Public Interest Criterion 4020 for the purposes of cl.820.226 of Schedule 2 to the Regulations; and
·cl.820.221(3)(b)(ii) of Schedule 2 to the Regulations.

Statement made on 30 April 2020 at 3:17pm

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Spouse) – evidence of the applicant’s true identity – bogus document – applicant’s passport allegedly not genuine – facial images assessed as identical to another applicant – biometric passports – verified birth certificate and other identity documents – relationship ceased – withdrawal of sponsorship – potential separation from Australian child – decision under review remitted
LEGISLATION
Migration Act 1958, ss 5, 65, 820.221, 820.226
Migration Regulations 1994, Schedule 2, cls 820.221, 820.226; Schedule 4 Public Interest Criterion 4020
CASES
Srour v MIMA [2006] FCA 1228
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

This is an application for review of a decision made by a delegate of the Minister for Immigration on 4 July 2019 to refuse to grant the applicant a Partner (Temporary) (Class UK) visa under s.65 of the Migration Act 1958 (the Act).
The applicant applied for the visa on 9 April 2014. The delegate refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl.820.226 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the delegate was not satisfied on the evidence before the Department as to the applicant’s true identity and therefore he does not meet PIC 4020(2A).
The applicant appeared before the Tribunal on 17 October 2019 to give evidence and present arguments. The Tribunal also received oral evidence from [Mr A]. The Tribunal hearing was conducted with the assistance of an interpreter in the Akan and English languages.
The issue in the present case is whether the applicant meets the identity requirement in PIC 4020(2A), which requires an applicant satisfy the Tribunal as to his or her identity.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
Information before the Department
The delegate’s decision record, provided by the applicant with the review application, sets out in detail the evidence before the Department that raised concerns about the applicant’s identity. In summary, the Department referred to the following information:
· The information provided by the applicant about the circumstances of his arrival in Australia in interviews with the Department on 10 and 11 February 2014
· The information on which the decision on 30 January 2019 to cancel the applicant’s Bridging Visa C was made
o That the document presented to the Department purporting to be his Ghanaian passport issued [in] 2013 is not genuine.
o That there are no arrival records under his name.
o That a Forensic Facial Examiner was of the opinion that facial images of the applicant and facial images of a male Ghanaian national named [Mr A] were the same person.
o That facial images of the applicant appears on a biometric Ghanaian passport [Number 1] in the name of [Mr A].
o Information before the Department that a package was intercepted in November 2012 containing a Ghanaian passport [Number 2] in the applicant’s name addressed to [Mr A] at [Address 1], which was the same address as recorded for the applicant.
o Information received by the Department from an anonymous source that [Mr A] was involved in immigration fraud and identity fraud and would become an unlawful non citizen after he obtained permanent residence.
The decision record notes the response and attachments provided by the applicant’s representative on 21 May 2019, in which he denied that he is the same person as [Mr A] or has ever presented himself as [Mr A], and that he has provided sufficient evidence to confirm his identity. The submissions referred to the following evidence submitted in support of his identity:
oStudent report dated [in] December 2004
oLetter from [a named] Hospital dated 5 April 2004
oBaptismal Testimonial dated [date]
oReceipt from Ghanaian Consulate General dated [in] 2017
oElectoral Commission Cards of [the applicant’s parents]
oSupport letters from [three persons and an employer].
Tribunal Hearing
The Tribunal invited the applicant and the review applicant in a related matter before it, case 1908218, [Mr A], to a hearing On 17 October 2019 at the same time and place. Two applicants appeared in person. 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 applicants appeared, 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.
The following evidence was provided by the applicant at the hearing on 17 October 2019.
The applicant confirmed his denial that he is, or is, or has ever been also known as, [Mr A]. The Tribunal asked the applicant and his representative why he withdrew his review of the Bridging Visa C which was made on that basis. His representative stated that as the applicant already held a Bridging Visa E, he just wanted to focus on the substantive visa application and for this reason withdrew the other review as the decision was made to refuse his Partner application.
The Tribunal asked the applicant how he obtained the passport number [Number 3]. He said when he came to Australia he met a person called [Lawyer A], who was a lawyer and he arranged to obtain the passport for him. The applicant handed up a business card of [Lawyer A], [of a named business], with a handwritten notation on the back “Passport- $950- 4/1/13, 11/3/13 $6000” . He said he gave [Lawyer A] his Birth Certificate, filled out the forms and he understands the agent applied to Canberra for the passport to be issued.
He said prior to this passport he had never held a passport. He came to Australia with a group for [an event] in 2006 and the [named organiser] had all the travel documents with him. The [organiser had a specified role]. He arrived in [city], and was asked to stay with a man called [name] who got him a job at [an employer]. After about 2 months the applicant said he saved enough money and went to Sydney. From there he obtained various casual jobs, [in specified roles].
In or around 2013 or 2014 he started talking to lawyers about his immigration status. He did not do it earlier because of financial issues. He did not have enough money to take any action. The Tribunal noted there is no evidence before the Department or Tribunal to support his presence in Australia in the period 2006 to 2014. The Tribunal asked the applicant if he opened a bank account in this period. He said he only did that after 2014. It asked if he visited a doctor or hospital or had any medical records. He said he did not.
In 2014 he lodged a [different permanent] visa application and provided biometrics for [that] visa application. By then he had also met a woman, [Ms B] and his agent at that time [Representative A], advised him to withdraw [this other] visa application and pursue a Partner visa application so he did that.
The Tribunal asked the applicant about his status with [Ms B] now. He said their relationship is not so good now but they have a child together, [named], she is [age]. The applicant provided the Tribunal the Birth Certificate and photos of the child.
He presently lives in [a named suburb]. He was living at the same address with [Ms B] and his daughter but she moved out around April 2019. They now live about 5 minutes away. Apart from [Ms B] and his daughter, he has no other family in Australia. She has family in [city] but she is not close to them.
The Tribunal asked the applicant about his current passport No. [Number 4] which he provided to the Tribunal. He said he knew his previous passport was about to expire in [2018] so he approached the Consulate General to apply for another one. He provided his birth certificate, and photo and they took the old passport and gave him the receipt he has provided.
The Tribunal put to the applicant that information before it indicated Ghana started using biometric passports in 2010 and which might raise concerns about the authenticity of his passport given it is not a biometric one. In response he said that the Embassy does not issue biometric passports, only in Ghana. The representative interjected that they have tried to obtained verification from the Consulate General about the passport, but have yet to receive a response.
The Tribunal put to the applicant that the Department suggested that he may have entered Australia [in] November 2011 using the passport of [Mr A] and asked for his comment on that. He said it is not true.
The Tribunal asked what other evidence he has to establish his identity. He said he has nothing more than what he has provided.
The Tribunal asked his response to the information that the Facial Examination Report suggests the pictures of him and [Mr A] are the same person. He said his passports indicate he is [applicant’s name] and this is the only identity he has ever had.
It asked what he says to the allegation that [Mr A] is involved in immigration and identity fraud and that a passport in his name was included in a package addressed to [Mr A]. He acknowledged he lived at [Address 1] from 2012-2014 with a number of other people, including the other person who attended this hearing. However he did not know him as [Mr A], he only knew him as “[Alias A]” which he thought was his nick name. He knew his wife also, a woman called [name], 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 gave 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 the NOICC he was contacted by his former agent [Representative A]. When he attended at his office the person who came to this hearing, who he knows as “[Alias A]” was present.
CONSIDERATION
The issue in this review is whether the visa applicant meets Public Interest Criterion 4020 (PIC 4020) as required by cl.820.226 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).
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.
The issue in the present case is whether the applicant meets the identity requirement in PIC 4020(2A), which requires an applicant satisfy the Tribunal as to his or her identity.
Has the applicant satisfied the identity requirements?
PIC 4020(2A) requires an applicant satisfy the Tribunal as to his or her identity. That is, the Tribunal must be satisfied that the applicant is who he says he is. The Tribunal is not aware of any case law or judicial guidance on the correct interpretation of PIC 4020(2A) and must give those words their ordinary meaning.
The applicant claims to be [the applicant’s name]. As indicated above, he provided various documents and evidence to support this claimed identity to the Department and Tribunal including two Ghanaian passports, his own birth certificate that has been verified as genuine by the Department’s DEU, a NSW birth certificate for his daughter born in Australia naming him as father, and various support letters from individuals who know him for substantial periods here and in Ghana.
On the other hand, the Tribunal has considered the information and allegations before the Department that raise doubts and concerns about the applicant’s documentation and claimed identity, described above. This includes the opinion of a forensic Facial Image examiner that the applicant’s image presented to the Department in his Partner visa application is identical to a facial image provided for [Mr A] in a biometric passport submitted to the Department with his Partner visa application; information about alleged intercept of a package containing a passport for the applicant addressed to [Mr A] in Australia in November 2012; and an anonymous allegation made in 2011 that [Mr A] was involved in immigration and identity fraud.
The Tribunal has carefully considered each of the above. In respect of the first, the opinion of the facial image examiner, in essence, the Department alleges that the applicant and [Mr A] are one and the same person, and hence was not satisfied of the applicant’s claimed identity as [the applicant’s name]. The Tribunal, while not without its own significant doubts and concerns about the identity and documentation submitted by the applicants’ claiming to be these two men, does not accept on the available evidence, that they are one and the same person.
The Tribunal also has before it a review in respect of a decision to cancel the visa of [Mr A] (AAT ref. 1908218). Upon inviting the applicants in these two matters to a hearing at the same time and place, two separate individuals attended. On this basis, the Tribunal is unable to conclude they are the same person. While it is entirely possible the person who attended as [Mr A] was not in fact [Mr A] but another person, the Tribunal has no conclusive evidence on which to make such a finding and therefore was unable to so find.
Consequently, for the purposes of the present review, the Tribunal is not satisfied on the evidence before it that the applicant, [name], is or is also known as, [Mr A].
The Tribunal does nevertheless have significant concerns about the integrity of the passports presented by the applicant. The Tribunal has carefully examined that evidence, and agrees that the image of the applicant contained in the passport number [Number 3] he submitted with his Partner visa application is remarkably similar if not identical to the photo image of [Mr A] contained in passport number [Number 1] submitted with [Mr A’s] Partner visa application. This, of itself however, is not conclusive evidence that the two men are one and the same person, only that the same image has been used to obtain their passport documents.
In addition to the photo image used in passport [Number 3], the Tribunal has other concerns about the integrity of this document, including the manner in which it was obtained (being issued in Accra when the applicant was allegedly in Australia), and that it is a non biometric passport yet issued in 2013 some 3 years after biometric passports had been introduced in Ghana[1]. For the same reasons the Tribunal is concerned about the genuineness and integrity of the applicant’s subsequent and current passport, [Number 4], allegedly issued [in] 2017 in Accra, and also non biometric. While the Tribunal acknowledges the explanations provided by the applicant about how he obtained these documents, and the confirmation provided by the Honorary Consul of the Ghanaian Consulate Generate in respect of this explanation, it also accepts there is independent information about the incidence and prevalence of passport fraud and corruption in Ghana[2] including passport impersonation and fraudulent acquisition of passports[3], and given this, it remains concerned about the genuineness and integrity of these passport documents.
[1] 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: '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 Immigration and Refugee Board of Canada 2014, GHA104710.E - Availability of fraudulent identity documents, including instances of officials issuing fraudulent documents, including passports, 3 January < Accessed 5 May 2016 <OG61C530258>
[3] Ghana Immigration Service 2009, Annual Report for 2008, 19 February, p.8 <
In addition to the passports provided to support his identity, the Tribunal acknowledges that the applicant also provided a birth certificate which was verified as genuine by the Department when submitted with his [other] visa application. There is also before the Tribunal evidence of voter enrolment cards for the persons who are named as his parents, a school record relating to himself in Ghana a health record relating to himself in Ghana and a baptismal certificate all of which support his claimed identity as [the applicant].
He provided biometrics for the purposes of his [different permanent] visa application. He is named as the father of a child born in Australia of his relationship with the sponsor for the purposes of the present application (although that sponsor has since withdrawn sponsorship). Additionally he has provided four statements and Statutory Declarations from separate individuals who know him for substantial periods both here in Australia and previously in Ghana and who vouch for his identity as [the applicant] as claimed.
The Tribunal notes that the absence of any evidence of his entry into Australia in 2006 or at any time is of concern. It is also of concern that there appears to be no evidence to support his existence or presence in Australia prior to 2014, when he first engaged with the Department to apply for [the different permanent] visa. It is therefore not surprising given these gaps in the evidence that suspicions as to how and when he arrived in Australia arise.

However, after carefully considering all of the above, on the basis of the totality of the evidence before it and the absence of reliable evidence to substantiate that he is anyone else, the Tribunal is of the view that there is a sufficient basis for it to be satisfied as to the applicant’s identity as [the applicant’s name]. There is also no information before it that he poses any risk with regard to security, criminality or health, to the Australian community. Therefore, it finds therefore that he meets PIC 4020(2A).
Therefore, the applicant meets PIC 4020(2A) for the purposes of cl.820.226.
Sponsor withdrawal
The Tribunal is aware of information on the Department file that on 8 February 2019 the sponsor informed the Department that the relationship between herself and the applicant had broken down irrevocably and she withdraws her sponsorship of the application. It notes that the Department took no steps to inform the applicant of this information and made no reference to it in its decision to refuse the application made on 4 July 2019.
However, given the favourable finding on the PIC 4020(2A) issue, the Tribunal decided to address this additional issue clearly arising on the material before it.
At the hearing on 17 October 2019 the applicant confirmed that his relationship with the sponsor was not going well and that she had moved out some months ago and now lives a short distance away from him. He also advised they have a child together and presented to the Tribunal a NSW Birth Certificate in respect of this child and a bundle of photos of himself with his daughter.
On 6 April 2020 the Tribunal wrote to the applicant to invite his comment or response to the information the sponsor provided to the Department that she withdraws sponsorship of the application, explaining to him that unless he meets the requirements of subparagraphs (2) or (3) o regulation 820.221, reliance on this information may lead the Tribunal to affirm the decision under review.
The applicant responded on 20 April 2020 with a letter from his representative. He confirmed the applicant’s evidence given at the hearing that the sponsor had moved out of the former matrimonial home in April 2019, but that they share a commitment to the long term care of the child of the relationship, [name], born [on date]. It was submitted that the child lives with her mother close by to the applicant and he spends time with her on weekends and during the week. It was also submitted that he provides financial support for the child. There are no court orders or parenting plan in relation to the child because the parties are able to collaborate with each other regarding arrangements for the child.
Where a spousal or de facto relationship has ceased and both the visa applicant and the sponsoring partner have ongoing legal rights or obligations in respect of a child, the visa applicant may be eligible for the Partner visa despite the relationship having ceased: cl.820.221(3)(b)(ii). The Tribunal accepts, on current judicial authority,[4] that the requirements of the child exception will be satisfied where the visa applicant and sponsoring partner are the biological parents of a child as long as there is no Court order which contradicts their relevant general law obligations.
[4] Srour v MIMA [2006] FCA 1228 (Moore J, 15 September 2006)
The Tribunal accepts, on the applicant’s evidence and the birth certificate provided, that [daughter’s name] is a child of the relationship. The applicant has stated that there are no court orders to contradict the general law obligations of the parents, and in the absence of any evidence to the contrary, the Tribunal finds that the applicant meets cl.820.221(3)(b)(ii).
Given the findings above, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Partner (Temporary) (Class UK) visa.
DECISION
The Tribunal remits the application for a Partner (Temporary) (Class UK) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 820 (Spouse) visa:
·Public Interest Criterion 4020(2A) for the purposes of cl.820.226 of Schedule 2 to the Regulations; and
·cl.820.221(3)(b)(ii) of Schedule 2 to the Regulations.
Meena Sripathy
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.
…