Afghan (Migration)

[2018] AATA 984

Afghan (Migration) [2018] AATA 984 (19 March 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Mir Afghan

VISA APPLICANTS:  Ms Tahira
Master Husnan Haider Mir Afghan

CASE NUMBER:  1703177

DIBP REFERENCE(S):  2013/031210 OSF2013/031210 OSF2017/053430

MEMBER:Kira Raif

DATE:19 March 2018

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the applications for Partner (Provisional) (Class UF) visas for reconsideration, with the direction that the first named applicant meets the following criteria for Subclass 309 (Spouse (Provisional)) visas:

·Public Interest Criterion 4020 for the purposes of cl.309.225 of Schedule 2 to the Regulations.

Statement made on 19 March 2018 at 2:25pm

CATCHWORDS
Migration – Partner (Provisional) (Class UF) visa – Subclass 309 (Spouse (Provisional)) – Requirement for Tribunal to be satisfied as to the applicant’s identity – Insufficient evidence of identity provided to Department – Sufficient evidence subsequently provided to Tribunal

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl 309.225, PIC 4020(2A)

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 on 19 February 2017 to refuse to grant the applicants Partner (Provisional) (Class UF) visas under s.65 of the Migration Act 1958 (the Act).

2. The visa applicants are nationals of Afghanistan. The first named applicant was born in 1984. The second named applicant is the child of the first named applicant (the visa applicant) and the sponsor.  The applicants applied for the visas on 13 May 2013. The application initially included the sponsor’s mother and siblings as secondary visa applicants but their applications were refused in May 2014 and that decision was affirmed by the AAT in November 2015. The matter is presently before the courts.

3. The delegate refused to grant the visas to the visa applicants on the basis that the visa applicant did not satisfy the requirements of cl.309.225 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the delegate was not satisfied as to her identity. The sponsor (‘the review applicant’) seeks review of the delegate’s decision.

4. No hearing was held in this case as the Tribunal was able to make a favourable decision on the material before it.

   Relevant law

5. The issue in this review is whether the visa applicant meets Public Interest Criterion 4020 (PIC 4020) as required by cl.309.225 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: cl.4020(1); and

   ·the applicant and each member of the family unit has not been refused a visa because of a failure to satisfy cl.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: cl.4020(2) and (2AA); and

   ·the applicant satisfies the Minister as to his or her identity: cl.4020(2A); and

   ·neither the applicant nor any family unit member has been refused a visa because of a failure to satisfy cl.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: cl.4020(2B) and (2BA).

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

6. There is no evidence that the visa applicants had given, or caused to be given, a bogus document or information that is false or misleading in a material particular. The Tribunal is satisfied that PIC 4020(1) is met.

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

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

8. There is no evidence that the visa applicants were previously refused visas on the basis of a failure to satisfy PIC 4020(1). The Tribunal is satisfied that PIC 4020(2) is met.

   Has the applicant satisfied the identity requirements?

9. Clause 4020(2A) requires an applicant satisfy the Tribunal as to his or her identity. The review applicant provided to the Tribunal a copy of the primary decision record which offers the following information.

10. When making the application, the visa applicant provided, as evidence of her identity, a passport issued by the Afghan Consulate in Quetta in August 2013 and a Proof of Registration card issued by the National Database and Registration Authority (NADRA) in Pakistan. The delegate wrote to the visa applicant requesting further identity documents and, in particular, the tazkera. The visa applicant replied by stating that her tazkera was in Afghanistan and they were unable to obtain it due to safety reasons. The visa applicant advised that she obtained the passport without providing any identity documents but by paying a sum of money to obtain the travel document. The delegate formed the view that the presented documents were insufficient to establish the visa applicant’s identity. The delegate was not satisfied as to the visa applicant’s identity and found that she did not meet PIC 4020(2A).

11. The review applicant presented further identity documents to the Tribunal, including tazkeras and birth records and proof of registration cards for the visa applicant and their child. The Tribunal requested verification of these documents through the overseas post and received advice in October 2017 and on 19 March 2018 that these documents were genuine.

12. The Tribunal finds that there is evidence of the visa applicants’ identity in the form of tazkeras which has been verified as genuine. On the basis of these documents, the visa applicants’ identity can be established. The Tribunal is satisfied as to the visa applicants’ identity. The Tribunal finds that the requirements of cl. 4020(2A) are met.

    Conclusion

13. On the basis of the above, the visa applicant does satisfy PIC 4020 for the purposes of cl.309.225.

    DECISION

14. The Tribunal remits the applications for Partner (Provisional) (Class UF) visas for reconsideration, with the direction that the first named applicant meets the following criteria for Subclass 309 (Spouse (Provisional)) visas:

    ·Public Interest Criterion 4020 for the purposes of cl.309.225 of Schedule 2 to the Regulations.

    Kira Raif
    Senior Member