2311969 (Migration) - [2025] ARTA 1666

2311969 (MIGRATION) [2025] ARTA 1666 (17 JULY 2025)
DECISION AND
REASONS FOR DECISION
Respondent:  Minister for Immigration and Multicultural Affairs
Tribunal:Senior Member A Murphy
Place:Melbourne
Date:  17 July 2025
Decision:The Tribunal sets aside the decision under review and 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

Statement made on 17 July 2025 at 9:50am
CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Spouse) – identity – name, date of birth, ethnicity and citizenship – second name on falsified UNHCR identity card issued in third country declared on arrival and never asserted – different spellings of names and places and other discrepancies – illiteracy and difficulties of interpreting and recording complex information – supporting statements from family and community organisation – country information and department’s policy guidelines – biometrics, documents and life story – unable to obtain official documentation and functionally stateless – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 65, 359A, 376
Migration Regulations 1994 (Cth), Schedule 2, 820.226, Schedule 4, criterion 4020(2A)
CASES
Arora v MIBP [2016] FCAFC 35
Batra v MIAC [2013] FCA 274
Trivedi v MIBP [2014] FCAFC 42
GJDB (Citizenship) [2023] AATA 3245
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 on 28 July 2023 to refuse to grant the applicant a Partner (Temporary) (Class UK) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant applied for the visa on 1 April 2020. 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 (Cth) (the Regulations). This was because the delegate was not satisfied as to the applicant’s identity as a consequence of which the applicants did not meet Public Interest Criterion 4020.
The applicant appeared before the Tribunal on 29 May 2025 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s wife [Ms A] and sister-in-law [Ms B]. The Tribunal hearing was conducted with the assistance of an interpreter in the Burmese and English languages.
The applicant was represented in relation to the review.
For the following reasons, the Tribunal has concluded that the decision under review is set aside and the matter be remitted for reconsideration.
Non-disclosure certificate
The Tribunal has before it the departmental file relating to the refusal of the partner visa. The delegate has placed restrictions on some of the material given to the Tribunal by the Department under s.376 of the Act.
The certificate is dated 16 August 2023 and states that disclosure of four identified documents on the departmental file would be contrary to the public interest because disclosure may disclose, or enable a person to ascertain the existence or identity of a confidential source of information who has not consented to the disclosure and that it would disclose lawful methods for preventing, detecting and investigating breaches or evasions of the law which would be likely to prejudice the effectiveness of those methods.
A copy of the certificate was provided to the applicant’s legal representative at the hearing. It was not suggested that the certificate was invalid.
Where a certificate is issued under s.376, the Tribunal may have regard to any matter contained in the document or to the information. If the Tribunal thinks it appropriate to do so, it may disclose any matter contained in the document or the information to the applicant or any other person who has given oral or written evidence to the Tribunal.
The s.376 certificate dated 16 August 2023 appears to be valid on its face. The documents to which that certificate attaches are an identity assessment conducted by the Department dated 24 June 2015 and related internal correspondence.
In view of the importance of the contents of the identity assessment to the matters to be determined by this Tribunal, the Tribunal discussed that information with the applicant at hearing and wrote to him pursuant to section 359A setting out a summary of that information after the hearing. The Tribunal notes that the primary documents referred to in the identity assessment, including records of interviews and earlier visa applications, were not contained in the materials provided to the Tribunal by the Department.
CONSIDERATION OF CLAIMS AND EVIDENCE
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 circumstances 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.
Has the applicant given, or caused to be given a bogus document, or information that is false or misleading in a material particular?
The term ‘information that is false or misleading in a material particular’ is defined in PIC 4020(5) and the term ‘bogus document’ is defined in s 5(1) of the Act (see the attachment to this decision). In contrast to the definition of ‘information that is false or misleading in a material particular’ in PIC 4020(5), the reference in the definition of bogus document to a document that was obtained because of a ‘false or misleading’ statement has no requirement that it be relevant to a criterion for the grant of the visa: Arora v MIBP [2016] FCAFC 35; Batra v MIAC [2013] FCA 274.
The requirement in PIC 4020(1) not to provide a bogus document, or false or misleading information, applies 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: PIC 4020(3). It also applies whether or not the document or information was provided by the applicant knowingly or unwittingly.
While PIC 4020 refers to information that is false, in the sense of purposely untrue, it is not necessary for the Minister (or the Tribunal on review) to conclude that the applicant was aware the information was purposely untrue in order for PIC 4020 to be engaged. However, an element of fraud or deception by some person is necessary to attract the operation of the provision: Trivedi v MIBP [2014] FCAFC 42.
In this case the delegate does not suggest that the applicant has provided a bogus document, or false or misleading information such as would engage the terms of PIC 4020(1). While it is apparent from the materials before the Tribunal that the applicant has provided a bogus UNCHR identity document to the Department as well as inconsistent or incorrect information about his personal history that might otherwise engage PIC 4020(1), that passport and information were provided in the context of the applicant’s entry interview in 2013 and his later application for a protection visa in 2015.
The provisions of PIC 4020(1) apply only to information given in relation to the application for the partner visa or a visa that the applicant held in the period of 12 months before the partner visa application was made. There is nothing in the partner visa application itself that has been identified by the delegate as false or misleading in a material particular, nor is it suggested that any of the documents provided in support of that visa application are bogus. The visa application records the applicant’s name, date of birth and nationality in a manner consistent with his evidence to this Tribunal and for the reasons that follow the Tribunal accepts that information to be correct.
The partner visa application was made on 1 April 2020 while the applicant’s bridging visa ceased in February 2019, more than 12 months prior to the partner visa application. As the applicant did not hold a visa of any kind in the 12 months prior to the partner visa application, there is no information other than that contained in the partner visa application itself that is capable of engaging PIC 4020(1).
Therefore, the applicant meets PIC 4020(1).
Has a visa previously been refused on the basis of a failure to satisfy PIC 4020(1)?
PIC 4020(2) requires the Tribunal to be satisfied that the applicant and each member of the family unit have not been refused a visa because of a failure to satisfy PIC 4020(1) in the period commencing 3 years before the application was made and ending when the visa is granted or refused. This requirement does not apply to a person who was under 18 at the time the application for the refused visa was made: PIC 4020(2AA).
There is no evidence to suggest that the applicant or any family unit member has been refused a visa because of the failure to satisfy PIC 4020(1) in the period commencing 3 years before the application was made and ending when the visa is granted or refused.
Therefore, PIC 4020(2) is met.
Has the applicant satisfied the identity requirements?
PIC 4020(2A) requires an applicant satisfy the Tribunal as to his or her identity and in this case the delegate wasn’t satisfied as to the applicant’s identity. In the decision record, the delegate noted that the applicant had identified himself as [applicant name] born [Date 1] and stated that he had used the alias of [Alias 1] born [Date 2].
The delegate noted that on 20 July 2021 the applicant had been invited to comment on the fact that he was known by four names and to provide evidence of his claimed identity of [applicant name]. Those four names were stated to be:
·[applicant name – spelling 1];
·[applicant name – spelling 2];
·[Alias 1]; and
·[Alias 2].
The delegate’s decision records that the applicant responded to the effect that [applicant name – spelling 1] was his birth name given to him by his parents and the name by which he was known to his family, friends and the local community. He stated that [applicant name – spelling 2] was a misspelling of his birth name as was common in Myanmar where Muslim names are not correctly pronounced and [Alias 2] is likely a misspelling or mistranslation of [applicant name – spelling 1/2]. He stated that [Alias 1] was the name on a falsified UNHCR identity card issued to him in [Country 1] which he had disclosed on arrival in Australia. He said that as a stateless person, he was unable to provide any other documentary evidence of his identity in Myanmar.
The delegate considered that response but formed the view that without verifiable documentary evidence issued by an offshore government agency or establishment, he could not be confident about the applicant’s identity.
At hearing I discussed with the applicant an Identity Assessment undertaken by the Department in 2015. In particular I noted that:
·During the entry interview which took place on 2 February 2012, he was recorded as stating that he was a stateless person born in [Village 1], Kariang (Karen) State. In the protection visa application dated April 2013 he is recorded as stating that he was born in [Village 2], [District 1], Karen State and that he was of Karen Ethnicity and a follower of Muslim faith. He stated that he did not speak any of the three Karen languages;
·He produced to the Department a card bearing his photograph that was issued in [Country 1] [in] June 2012 by UNHCR in the name of [Alias 1]. The assessor considered he had given inconsistent accounts as to why he obtained the document and noted it contained a different date of birth from that stated by the applicant in the visa application;
·In May 2015 the assessor spoke to [Mr C], who had provided a letter of support from [Organisation 1]. [Mr C] told the assessor that the applicant was [Age] or [Age] years old when they met in [a] refugee camp in Thailand and stated that he knew the applicant by the name [Short form], not [applicant name]. This caused the assessor to consider he was living at the camp at a time when residence cards were issued to its residents and likely had relevant documentation as to his identity which he had not provided;
·In April 2015, he provided a household list to the Department despite previously stating that he did not have one. The names and dates of birth shown on the household list were not the same as those disclosed to the Department and the document uses two different calendars. The identity officer stated that the household list recorded that the head of the household was a citizen of Myanmar, which appears contrary to his evidence that his family was stateless. The names shown on the household list are:
i.[Alias 2];
ii.[D];
iii.[E];
iv.[F];
v.[G];
vi.[H];
·The above matters caused the identity assessor not to be satisfied that the applicant originated from Karen state, that he was of Karen ethnicity or that he was stateless. The identity assessor concluded that he had failed to disclose information about his family in Australia or provide documents in support of his identity in a deliberate attempt to mislead the department about his identity and nationality.
Conclusions as to identity
Forming an opinion as to the applicant’s identity is an evaluative task:
8.The word ‘identity’ is not defined in the Act and it does not have a single meaning, as its meaning can vary according to the statutory or other context in which it is used. In some contexts, ‘identity’ may have a broad meaning which incorporates a person’s views of themselves and their cultural attributes. In other contexts, ‘identity’ may have a narrower meaning which focuses exclusively upon physical traits – such as those found in DNA or fingerprints – that are unique to each individual.
9.Dictionary definitions of ‘identity’ tend to incorporate a spectrum of meanings, including those referred to above. For example, one of the definitions of ‘identity’ in the Oxford English Dictionary is: ‘The sameness of a person or thing at all times or in all circumstances; the condition of being a single individual; the fact that a person or thing is itself and not something else; individuality, personality’. All but the last two words in that definition may be seen to reflect the concept of permanent sameness, whereas the last two words may be seen to reflect a broader concept of outward expression of a person’s character.
10.In my opinion, s 24(3) of the Act uses the word ‘identity’ in the sense that the person seeking citizenship is the human being that they claim to be. Identity involves a continuum: a person remains the same human being from the moment they are born until the moment they die. In between these times, many attributes associated with them – such as their name, physical appearance (such as their height, weight and the colour of their hair), personality, gender, nationality, languages spoken, manner of speaking and religion – and their life experiences and fortunes may change, but they will remain the same human being.^[2] Whilst each of these matters may assist in ascertaining a person’s identity, it is of fundamental importance that, for the purposes of s 24(3), they are not confused with, or treated as equivalent to, a person’s identity.
11.The above analysis is consistent with the observations of Mortimer CJ in BQG21 v Minister for Immigration, Citizenship and Multicultural Affairs.^[3] Her Honour stated that the concept of identity for the purposes of s 24(3) of the Act ‘is about an assessment of whether the repository of the power to confer citizenship is satisfied the human being who is the individual applying for citizenship is the person they say they are, with the relevant background to their citizenship application they rely on, and not a different human being with a different background which may affect their citizenship application.’ She added that it is erroneous to conflate a person’s names with the concept of identity.[1]
[1] GJDB and Minister for Immigration, Citizenship and Multicultural Affairs (Citizenship) [2023] AATA 3245
While the above comments were made in the context of an identity assessment for the purposes of the Australian Citizenship Act 2007, the Tribunal considers these considerations are also applicable to the assessment of identity for the purposes of PIC 4020(2A).
There is no dispute in this case that the applicant is a male in his [Decade] who originates from Myanmar, rather at issue is his name, date of birth, ethnicity and citizenship. For the following reasons Tribunal is satisfied that the applicant’s identity is [applicant name] born [Date 1] and that he was born in [Village 1] in [District 1] in Kayin state, Myanmar. The Tribunal accepts that he is of Karen ethnicity and that he is functionally stateless in the sense that he is unable to obtain official identity documentation from the authorities of Myanmar because of his membership of a minority ethnic group.
The Tribunal notes that despite the presence of a Burmese interpreter at the Tribunal hearing (unaccredited in this instance as an accredited interpreter was not able to be sourced), that interpreter’s ability to communicate with the applicant was noticeably deficient. The Tribunal observed that despite the applicant’s attempts to answer the Tribunal’s questions, some of his answers were not responsive to those questions while it appeared that other questions were unable to be communicated in any meaningful way.
In a single example, the applicant was unable to comprehend a number of differently phrased questions about his date of birth (despite having earlier provided that information when taking the oath). As a result of the obvious difficulties in interpretation, the Tribunal considered that some of the information contained on the departmental file should be put to the applicant in writing after the hearing. The applicant and his witnesses responded to that information in writing after the hearing in a fulsome manner that is consistent with country information about the situation for ethnic minorities in Myanmar, the difficulties they face obtaining official documentation in the country and the migratory pathways taken by persons fleeing the conflict in Myanmar.

At hearing the applicant gave evidence that he was born in the village of [Village 1 – spelling 1] (also spelled [Spelling 2]) in the district of [District – spelling 1] in Karen state (pronounced [Pronunciation] and also spelled [Spelling 2] and [Spelling 3] and appearing as [Spelling 4] on google maps. He did not recognise the name of the village recorded by the person who conducted the entry interview at hearing, but in a post hearing statutory declaration he stated that it likely referred to [Village 2a] on the Thai-Burmese border. He stated that [Village 2a] is not where he was born and is not in Myanmar, but he gave that location in response to a question at interview about where he crossed the border of Myanmar and Thailand to get to the refugee camp in Thailand.
I note that the recording of place names given in another language is notoriously difficult, particularly when the interviewer is not familiar with the orthography of that other language or the locations being discussed. [Village 1 – spelling 1] is phonetically similar to [Spelling 2] as is [District – spellings 2 and 1] to [Spelling 3] as recorded in the entry interview and the protection visa application. Having regard to the evidence of a number of persons known to the applicant in Myanmar (discussed below), I am satisfied that the applicant was born in [Village 1] in [District 1] in Karen state, Myanmar.
The applicant’s evidence about his date of birth at hearing was somewhat confused by the communication difficulties with the interpreter, but I accept his consistent statements to the Department and the Tribunal to the effect that he does not have a birth certificate and his knowledge of his date of birth was communicated to him by his father. This is consistent with DFAT’s advice that even today, few children in remote areas of Myanmar have a birth certificate and minority ethnic groups including the Karen experience discrimination in procuring identity documents.[2] The applicant has consistently provided his date of birth to the Department as [Date 1] and this is reflected in his Australian identity documents. I accept that date represents the date communicated to the applicant by his father and that it is the best available evidence of his date of birth.
[2] DFAT DFAT Country Information Report: Myanmar 7 April 2025
There is no dispute that at the time the applicant arrived in Australia by boat in 2013, he produced to the Department a card bearing his photograph that was issued in [Country 1] [in] June 2012 by UNHCR in the name of [Alias 1] born [Date 2]. The identity assessment records that he identified himself as [applicant name] in his entry interview and did not at any time assert that [Alias 1] was his true identity. The applicant has explained that he paid money to be issued that identity card so that he would have protection from the [Country 1] authorities and in the hope that it might make it easier for him to be resettled. I am satisfied that the applicant disclosed the UNHCR identity card to the Department at the earliest opportunity and never sought to pass himself off as [Alias 1]. I am satisfied that the information shown on the identity card as to the holder’s name and date of birth does not relate to the applicant and that the applicant’s identity is not [Alias 1] as stated on the UNHCR identity card.
I have considered the household list provided by the applicant to the Department after his identity interview in 2015. I accept that it was provided in the context of the Department explaining to the applicant that he needed official identity documents to prove his identity and that he obtained it from a family member in Myanmar. The applicant accepts there are strange things written in the household list, including incorrect names for his father and the addition of a second brother that does not exist. The applicant is unable to explain the discrepancies except to state that his own name and that of his sister and mother can be understood even though the spelling is different and that his parents would have been the informants for that list but were illiterate and would not have been able to write the details themselves.
I consider the household list to be fundamentally unreliable as its provenance is largely unknown and the information contained in it contradicts other evidence before the Tribunal in almost every significant respect. The applicant has consistently told the Department and the Tribunal that he is one of three siblings and that he has one sister and one brother, yet the household list records two brothers. It contains information in two different calendars (the applicant’s parents years of birth are recorded consistently with the Gregorian calendar, while the applicant and his purported siblings years of birth are recorded in the Burmese calendar). While there are some phonetic similarities between the names of some of the family members recorded in that document, they are outweighed in my view by other details that appear not to relate to the applicant and his family. I accept the applicant obtained this document from Myanmar and provided it to the Department, but I give it very little weight.
I have considered the concern expressed in the identity assessment to the effect that [Mr C], who had provided a letter of support from [Organisation 1], told the identity assessor that the applicant was [Age] or [Age] years old when he met him in [a] refugee camp in Thailand and was known by the name [Short form], not [the applicant’s surname]. This caused the assessor to consider the applicant had lived in that camp for longer than was disclosed to the Department and that he likely had relevant documentation as to his identity which he had not provided to the Department.
I am not satisfied this is the case. [Mr C] is now resident in Australia. In a statutory declaration made 26 June 2025, he attaches a family tree showing his relationship to the applicant indicating that they are second cousins because his grandmother is the sister of the applicant’s father. He recalls speaking to the identity assessor and confirms he was living in a refugee camp on the border of Thailand near the village in Myanmar where the applicant’s family lived. He states that he recalls occasions when the applicant visited the camp with his father, but that they would stay for a few weeks and were not residents of the camp. He states that it was very common for people in towns near the border of Myanmar and Thailand to travel back and forth across the border, which was often controlled by members of the Karen National Union (KNU), to visit relatives in the refugee camps on the border.
Similarly the applicant explains that [Mr C] is a relative ([Mr C]’s grandmother is the applicant’s father’s sister) of similar age to him and he is not sure how old they were when they met in the refugee camp. He gave evidence that he and his family frequently visited relatives in the refugee camp in Thailand, but they were not residents of that camp and did not have a camp identity document. This is also consistent with the evidence of [Mr I] and [Mrs J] set out below.
I note that country information indicates the [refugee camp] in [District 2], Tak Province in Thailand was established in [Year] to accommodate Karen refugees fleeing conflict in Kayin State and is reported to be only [Distance]km from the border of Thailand and Myanmar.[3] DFAT reports that much of Kayin state is controlled by Karen ethnic armed organisations including the KNU and that conflict in that area has led to approximately 90,000 ethnic Karen people seeking protection in Thailand. Many thousands of people reportedly cross the border unofficially between Myanmar and Thailand, along the lengthy stretches of unmonitored border areas.[4] As is discussed below, members of the applicant’s family travelled exactly this path.
[3] [Reference]
[4] DFAT DFAT Country Information Report: Myanmar 7 April 2025 [3.16] [ 5.22]
The difficulties that ethnic minorities from Myanmar face in obtaining genuine identity documentation from the Myanmar authorities are well documented. DFAT reports that ethnicity in Myanmar is a determinant of citizenship and basic rights, with many people denied these rights in law and in practice. Identity is Myanmar is complex, involving elements of ethnicity, religion, language and geographic location. Different members of the same family may identify as different races, and people’s officially recognised race and religion may be different from how they self-identify. Minority ethnic groups including the Karen experience discrimination when accessing government services and procuring identity documents.[5]
[5] DFAT DFAT Country Information Report: Myanmar 7 April 2025 [3.2], [3.16], [3.19]
The parents of the applicant’s wife, now Australian citizens, also originate from Myanmar. The applicant and his wife have been married since [Year] and have four Australian citizen children together, born between [Year] and [Year]. At hearing [Ms A] gave evidence that the applicant was known to her own parents while they were still Myanmar as they originated from the same area in Myanmar. She said that this was how he came to be at her aunt’s house in Australia, where they met as adults in 2013. At the Tribunal’s invitation, statutory declarations were provided from [Ms A] and each of her parents after the hearing. In that post hearing statutory declaration [Ms A] states that her parents told her that she and the applicant actually met as children, although she was too young to remember.
[Ms A]’s father [Mr I] also provided a statutory declaration to the effect that he was born in [Town] in Kayin (Karen) state and that he has known the applicant’s parents, [Ms K]and [Mr L], since he moved to [Village 1] when he was about 10 years old. He states that after the applicant’s parents married, they moved to [District 1] but returned to [Village 1] regularly to visit their relatives.
[Mr I] states that in or about [Year] or [Year], everyone had to leave [Village 1] because of the conflict and he and his family went to [a] refugee camp in Thailand. A few years later he met [Mr L] in that camp when [Mr L] was visiting relatives in the company of the applicant. He states that applicant’s name was commonly shortened to [Short form], just as his father’s name was shortened from [Full form] to [Short form].
[Mr I] states he next met the applicant in 2013 at his sister-in-law’s house in [Suburb], Australia, and the family was happy when the applicant and [Mr I]’s daughter fell in love and got married because the applicant was from the same culture and religion has his wife’s family. He states that he has always known the applicant’s true identity as [applicant name] whom they call ‘[Short form]’.
Similarly the applicant’s wife’s mother, [Mrs J], states that she was born in [Village 1] in Karen state and arrived in Australia as a refugee together with her family in 2006. She states she was born in the same village as the applicant’s mother, [Ms K], whom she has known since she was young. [Ms K] was married to the [Mr L – full form], also known as [Short form], and the couple moved to [District 1] after they married. She states that she has known the applicant all his life, and his parents, and she knows his true identity to be [applicant name] in formal writing, although they call him [Short form].
A statutory declaration from [Ms M], a permanent resident of Australia, states that she came to Australia from Myanmar in 2019 as the holder of a humanitarian visa and has known the applicant since he was born in [Year]. She states that he is her cousin, the applicant’s father and her own mother being siblings. Further statutory declarations from [N] and [O], attest to the same matters.
The Department’s policy guidelines for PIC4020(2A) state that a person’s identity is defined by a certain combination of characteristics or attributes that allows that person to be uniquely distinguished from another. It requires decision makers to consider a combination of elements to establish a person’s identity, known as the three pillars of identity:
·Biometrics (including facial images, fingerprints and DNA);
·Documents (including identity documents containing biographic and in some cases biometric information, noting that greater weight should be given to formal documents legitimately issued by government agencies); and
·life story (being a record or narrative description of a person’s past events or an account of all the events that happened to them during their life, and can be evidenced by knowledge, documents, qualifications, information given at interview and social footprint).[6]
[6] Department’s Policy and Operational Guidelines Sch4 4020, Public Interest Criterion 4020 – The Integrity PIC, 3.6.1 – 3.6.4
In circumstances where the country information cited above indicates that births in rural areas of Myanmar are not registered and ethnic minorities including the Karen of Kayin state face systemic discrimination that prevents them from obtaining identity documents, I consider there to be a good explanation for the applicant’s inability to produce a birth certificate or official documentation evidencing his identity. No biometric information is available linking the applicant to any particular identity prior to his arrival in Australia. It follows that in cases such as these, an applicant’s life story may be the best or indeed the only available evidence of identity.
I consider the best evidence before the Tribunal as to the applicant’s identity is the evidence of the applicant, his wife and his wife’s parents as well as the statutory declarations of the applicant’s cousins [O], [N] and [Ms M] provided to the Department. Each of those persons themselves originate from Kayin state in Myanmar and have known the applicant and his parents for many years prior to his arrival in Australia. I find that despite the apparent discrepancies in his statements over time, which I consider should be attributed to the vagaries of interpreting and recording complex information about names and locations from a person who is himself illiterate, the applicant is the person he has presented himself to be to the Department.
I find the applicant’s identity is [applicant name], that he is of Karen ethnicity and that he was born in [Village 1], [District1] in Kayin state on [Date]. I find that he is also known to his relatives by the shortened version of his name, [Short form], and that the other variants of his name including [Spelling 3], [Spelling 4] and various spellings of [Given name] are merely misspellings or transliteration errors in the conversion of the applicant’s name from the Burmese script to English.
As the Tribunal is satisfied as to the applicant’s identity, the applicant meets PIC 4020(2A).
Has a visa previously been refused on the basis of a failure to satisfy PIC 4020(2A)?
PIC 4020(2B) requires that neither the applicant nor any family unit member have been refused a visa because of a failure to satisfy the identity requirements in PIC 4020(2A) during the period starting 10 years before the application was made and ending when the visa is granted or refused. This requirement does not apply to a person who was under 18 at the time the application for the refused visa was made: PIC 4020(2BA).
There is no evidence to suggest that the applicant or any family unit member has been refused a visa because of the failure to satisfy the identity requirements in PIC 4020(2A) during the period starting 10 years before the application was made and ending when the visa is granted or refused.
Therefore PIC 4020(2B) is met.
CONCLUSION
On the basis of the above, the applicant satisfies PIC 4020 for the purposes of cl 820.226.
DECISION
The Tribunal sets aside the decision under review and remits the application for a Partner (Temporary) (Class UK) visa for reconsideration, in accordance with the order 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
Date(s) of hearing:  29 May 2025
Representative for the Applicant:           Mr Philip Alan West (MARN: 1680879)
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 ART during the review of a reviewable migration 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.
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Migration Act 1958
s 5      Interpretation
(1) In this Act, unless contrary intention appears:
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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.
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