2116833 (Migration) - [2025] ARTA 522

2116833 (MIGRATION) [2025] ARTA 522 (3 MARCH 2025)
DECISION AND
REASONS FOR DECISION
Respondent:  Minister for Immigration and Multicultural Affairs
Tribunal Number:  2116833

Tribunal:General Member Downes
Place:Brisbane
Date: 3 March 2025
Decision:The Tribunal affirms the decision not to grant the applicant a Partner (Provisional) (Class UF)

Statement made on 03 March 2025 at 3:53pm
CATCHWORDS
MIGRATION – Partner (Provisional) (Class UF) – Subclass 309 (Spouse (Provisional)) – identity – biometric investigation – facial image and fingerprints matched to previous application for refugee visa under different name and date of birth – supporting documentation for first identity provided – second identity is that of sponsor’s cousin and applicant unaware of that application – no supporting documentation about second identity provided – department’s non-disclosure certificate covering methods of investigation – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 65, 353, 376
Administrative Review Tribunal Act 2024 (Cth), s 74(1)
Migration Regulations 1994 (Cth), Schedule 2, cl 309.225(a), Schedule 4, criterion 4020(2A)
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to an order under section 70 of the Administrative Review Tribunal Act 2024 and replaced with generic information.
STATEMENT OF REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 11 October 2021 to refuse to grant the visa applicant (applicant) a Partner (Provisional) (Class UF) Subclass 309 visa under section 65 of the Migration Act 1958 (Cth) (the Act).
The applicant applied for the visa on 9 March 2019 based on his relationship with the review applicant (the sponsor). The delegate refused to grant the visa because they were not satisfied as to the applicant’s identity, for the purposes of Public Interest Criteria 4020 (PIC 4020) and cl 309.225 of Schedule 2 to the Regulations.
The sponsor appeared before the Tribunal on 21 November 2024 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant. The Tribunal hearing was conducted with the assistance of an interpreter in the Tigrinya and English languages.
The review applicant was represented in relation to the review.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
ISSUE AND LAW
The issue in this review application is whether the applicant PIC 4020(2A), as required by

cl 309.225(a) of Schedule 2 to the Regulations. PIC 4020(2A) requires that the applicant satisfies the Minister as to his or her identity.
Explanatory Statement to SLI 2014, No 32, which introduced PIC 4020(2A) relevantly provides:
The amendments to the Migration Regulations 1994 (the Principal Regulations) in Schedule 1 of the Migration Amendment (2014 Measures No. 1) Regulation 2014 (the Regulation) seek to prevent identity fraud in Australia's visa and citizenship programmes, by expanding the application of Public Interest Criterion (PIC) 4020 so that a relevant visa could not be granted unless the Minister is satisfied as to the identity of the visa applicant.
The accurate identification of non-citizens underpins the integrity of Australia's migration and citizenship programmes. All elements of granting a visa rely on accuracy in identifying non-citizens. The utility of national security and character checks are wholly dependent on accurately identifying each non-citizen who applies for a visa to enter Australia.
Strengthening identity integrity is consistent with the Government's agenda to improve identity management. The new identity requirement will clearly communicate the primacy of accurately identifying non-citizens to the integrity of Australia's migration programme. As the 'gatekeeper' for border control, the department must ensure it accurately establishes the identity of non-citizens who cross Australia's border.
…
The new identity requirement is designed to encourage cooperation and compliance by visa applicants with the department to ensure accuracy in establishing their identity. The new identity requirement will also cater for an applicant who does not cooperate and provide information or documents where requested to assist the department to be satisfied as to their identity. This is because under the new identity requirement, the Minister must be satisfied as to the identity of an applicant to grant a visa. If insufficient information/documents are provided, or an applicant becomes uncooperative, the visa must be refused. The department would have discretion to consider a range of identity-related documents (not only a passport), as well as individual applicant circumstances (such as the availability of identity documents to the applicant) in determining whether it is 'satisfied' as to the identity of an applicant.
The Explanatory Statement also notes that ‘the burden of proving an applicant's identity’ is on the applicant.
CONSIDERATION OF CLAIMS AND EVIDENCE
Background
Factual matters
The applicant claims to be a [Age]-year-old man from Eritrea. He applied for the visa that is the subject of this review application based on his relationship with the sponsor, a [Age]-year-old woman who was born in [Country] and became an Australia citizen in 2010.
The core issue in this application is summarised in the delegate’s decision record, which relevantly provides:
The applicant applied for the Partner Combined (UF309/BC100) visa on 09/03/2019. The applicant stated that his name is [visa applicant name] and he was born in Eritrea on [Date 1]. Together with the application, the applicant provided a Temporary Eritrean identification document issued by the Eritrean Embassy in [City, Country] [in] 01/2019 and a copy of his certificate of birth issued by the Municipality of Asmara in Eritrea [in] September 2007.
Departmental checks matched the applicant’s facial image and fingerprints, provided on 18/03/2019, to an application for a refugee visa (subclass 201) applied for at the Cairo office on 01/03/2018. The name and date of birth given on that application was with that application [Mr A] born on [Date 2] and a national of Eritrea. This is a completely different name, and date of birth to that provided on this application.
…
Departmental biometrics comparisons concluded that [visa applicant name] born on [Date 1] and [Mr A] born on [Date 2] are one in the same person.
The applicant gave written and oral evidence to the Tribunal to the effect that:
a.The applicant is [visa applicant name], not [Mr A].
b.The applicant has met [Mr A]. [Mr A] is the sponsor’s cousin.
c.The applicant has never made a visa application using the identity of [Mr A].
d.The applicant does not know or understand how the biometric information submitted with the present visa application matched with a visa application made using the identity of [Mr A].
The applicant also submitted evidence to the Tribunal to corroborate his claim that he is [visa applicant name] and not [Mr A], including identity documents (including his birth certificate, temporary Eritrean identity card and passports) and statements from the sponsor, the sponsor’s parish priest and the sponsor’s friend.
On 22 November 2024, following the hearing of this matter, the Tribunal wrote to the department in the following terms:
The Tribunal is deciding an application for review in relation to the abovementioned visa application.
The decision record dated 11 October 2021 relevantly states:
Departmental checks matched the applicant’s facial image and fingerprints, provided on 18/03/2019, to an application for a refugee visa (subclass 201) applied for at the Cairo office on 01/03/2018. The name and date of birth given on that application was with that application [Mr A] born on [Date 2] and a national of Eritrea. This is a completely different name, and date of birth to that provided on this application.
…
Departmental biometrics comparisons concluded that [visa applicant name] born on [Date 1] and [Mr A] born on [Date 2] are one in the same person.
The Tribunal has previously issued a summons for the subclass 201 department file, which has been received.
At the hearing, the review applicant raised a procedural fairness issue that she had sought additional information about 201 department file and the biometrics comparisons undertaken but had been refused access to the information under FOI. The Tribunal does not have any evidence of review applicant’s alleged FOI request.
The review applicant has also submitted that the biometric comparison is flawed and that the match was made in error.
Neither department file contains any evidence about the departmental biometric comparisons undertaken. The only information available to the Tribunal about the biometric comparisons undertaken is that contained in the decision record.
Request
The Tribunal requests that the Department provide evidence of the biometric comparisons undertaken, so that the Tribunal can properly assess the review application. This includes evidence of any identification tests conducted, including any referrals and reports by the Identify Resolution Centre.
Could you please provide this evidence by 29 November 2024.
The Tribunal followed up on the request of the department on 4 and 12 December 2024. The Tribunal then issued a summons under s 74(1) of the Administrative Review Tribunal Act 2024 (Cth) and a request pursuant to s 353 of the Act that identification tests be undertaken by the Identity Resolution Centre.
The department did not answer the summons within the statutory timeframe. However, on 24 January 2025 and 7 February 2025, the Tribunal received reports from the department regarding the applicant’s identity.
Non-disclosure certificate and adverse information
The reports were subject to a certificate and notification dated 6 February 2025 regarding the Tribunal’s discretion to disclose certain information under s 376 of the Act. The certificate certifies that disclosure of the material covered by the certificate would be contrary to the public interest because ‘they disclose lawful methods for preventing, detecting and investigating breaches or evasions of the law which would or be likely to prejudice the effectiveness of those methods’.
On 12 February 2025, the Tribunal wrote to the applicant’s representative in the following terms:
I am writing in relation to the application for review made by you in respect of a decision to refuse to grant a Partner (Provisional) (Class UF) visa.
Request for additional information
Following the hearing, the Tribunal requested certain information from the department about the biometric comparisons undertaken in relation to the visa application.
The Tribunal ultimately issued a summons under section 74(1) of the Administrative Review Tribunal Act 2024 (Cth) for relevant documents and issued a request for further identity investigations under section 353 of the Migration Act 1958 (Cth).
The Tribunal has now received documentation from the department in response to the Tribunal’s requests.
Certificate
Enclosed is a copy of a certificate dated 6 February 2025 regarding the disclosure of certain information to the Administrative Review Tribunal under s 376 of the Migration Act 1958 (Cth).
You are invited to make submissions:
•on the validity of the certificate; and
•to seek a favourable exercise of the Tribunal’s discretion to disclose any information or matter contained in the documents to which the certificate apply.
Please provide this information, in writing, by 27 February 2025. If the information is in a language other than English, it should be accompanied by an English translation from an accredited translator.
If you are unable to provide the requested information by 27 February 2025, you should contact us before this date.
Adverse Information
In conducting the review, we are required by the Migration Act 1958 (Cth) to invite you to comment on or respond to certain information which we consider would, subject to your comments or response, be the reason, or a part of the reason, for affirming the decision under review.
Please note, however, that we have not made up our mind about the information.
The particulars of the information (the Adverse Information) are:
·The visa applicant’s facial image was submitted for biometric searching and was determined to be a match with the facial image submitted for the identity ‘[Mr A]’.
·The applicant’s facial image and the image of [Mr A] were submitted to a Facial Image Examiner, who provided an opinion that they represent the same person.
·Based on these reports, it appears that [visa applicant name], date of birth [Date 1] and [Mr A], date of birth [Date 2] are the same person.
This information is relevant to the review because it is a criteria for the grant of the visa that the applicant satisfies Public Interest Criteria 4020(2A), which requires the applicant to satisfy the Minister as to the applicant’s identity. The Adverse Information suggests that the visa applicant has more than one identity and it is not clear which, if any of these identities, is correct.
If the Tribunal relies upon the Adverse Information, the Tribunal may not be satisfied as to the applicant’s identity and may affirm the decision under review.
You are invited to give comments on or respond to the above information in writing.
Your comments or response should be received by 27 February 2025. If the comments or response are in a language other than English, they must be accompanied by an English translation from an accredited translator.
If you cannot provide your written comments or response by 27 February 2025, you may ask us for an extension of time in which to provide the comments or response. If you make such a request, it must be received by us by 27 February 2025and you must state the reason why the extension of time is required.
At the time of this decision, the Tribunal has not received a response from the applicant to the letter, or a request for an extension of time to respond.
I have considered the certificate and find it is a valid certificate, that it is signed and a public interest reason cited. I have decided not to exercise my discretion to disclose the material covered by the certificate because the applicant has been notified of the gist of the material, and has not requested the full material be disclosed.
Does the applicant satisfy PIC4020(2A)?
I have carefully considered the evidence and submissions before me and, on balance, I am not satisfied as to the applicant’s identity, for the purposes of PIC4020(2A).
I acknowledge that the applicant has submitted official documentation that indicates that his identity is that of [visa applicant name]. I have also considered the information and submissions made about the applicant’s circumstances, and his ability to procure additional identity documents from Eritrea. However, I am concerned that no reasonable or credible explanation has been provided for the identity match with [Mr A]. Without such, I cannot be satisfied as to the applicant’s identity.
The representative submitted, among other things, that:
10. While biometric data such as fingerprints and facial recognition can be useful tools for verifying identity, these systems are not without limitations, particularly in refugee processing environments. Errors in biometric identification, especially among individuals from closely related ethnic groups, have been well-documented. In these cases, facial similarities can lead to false matches.
11. In [the visa applicant’s] case, there is no evidence that he has used any other identity in any visa applications. The fingerprints submitted for his current Partner Visa application are the only biometric data provided by him in relation to any immigration process. Given the potential for misidentification, it is critical that the Tribunal also weighs the documentary evidence provided, which conclusively establishes his true identity.
Identity proof beyond Biometric Data
12. The reliance on biometric data alone should be contextualised with the official documents that [the visa applicant] has submitted. These include his Certified Birth Certificate, Temporary Eritrean ID, and Eritrean Passport, all of which have been authenticated by Eritrean authorities. These documents provide an unbroken record of [the visa applicant’s] identity and prove beyond any reasonable doubt that he is [visa applicant name].
13. The fact that [the visa applicant] has only ever submitted biometric data under his true identity in his current visa application further substantiates the reliability of his documentation. There is no history of him applying for any other visa or fingerprinting under the name [Mr A].
I do not accept this submission. No information or evidence has been submitted to the Tribunal to support the claim that ‘errors in biometric identification… have been well-documented’. Further, the material submitted by the department as to the biometric testing undertaken appears to be reliable and well-explained.
It is also noteworthy that no evidence has been submitted in relation to the identity of [Mr A]. On the parties evidence, [Mr A] is the sponsor’s cousin. Presumably, the sponsor’s family would have some evidence (for example, photographs, if not official identity documentation) that could support their claim that [Mr A] and [the visa applicant] look similar but are different people. Further, no evidence was provided by the sponsor’s father, who was the primary visa applicant in the visa application concerning [Mr A].
The representative also submitted that the Tribunal ought to waive PIC4020(2A) for compelling and compassionate reasons. I do not accept this submission, noting that the waiver available under PIC4020(4) does not apply to PIC4020(2A).
For the reasons set out above, the applicant does not satisfy cl 309.225 of Schedule 2 to the Regulations. The decision under review must be affirmed.
Date(s) of hearing: 21 November 2024
Representative for the Applicant: Mr Blaise Itabelo (MARN: 1571548)