Ali (Migration)

[2021] AATA 5394

Ali (Migration) [2021] AATA 5394 (2 December 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Mahboob Ali

VISA APPLICANT:  Mrs Azra Batool

CASE NUMBER:  1921815

HOME AFFAIRS REFERENCE(S):          BCC2018/4011470

MEMBER:Kira Raif

DATE:2 December 2021

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for a Partner (Provisional) (Class UF) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 309 (Spouse (Provisional)) visa:

·Public Interest Criterion 4020(2A) for the purposes of cl 309.225 of Schedule 2 to the Regulations

Statement made on 02 December 2021 at 12:59pm

CATCHWORDS
MIGRATION –Partner (Provisional) (Class UF) visa - subclass 309 – failed to meet PIC 4020(2A) – the Tribunal is satisfied as to the applicant’s identity – identity documents had been verified as being genuine – decision under review remitted

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl 309.225

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 Home Affairs on 5 August 2019 to refuse to grant the applicant a Partner (Provisional) (Class UF) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The visa applicant claims to be a national of Pakistan, born in January 1986. She applied for the visa on 29 June 2018. The delegate refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl 309.225 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) because the delegate was not satisfied as to the visa applicant’s identity and found that she did not meet Public Interest Criterion (PIC) 4020(2A). The sponsor (the review applicant) seeks review of the delegate’s decision.

3. No hearing was held in this case as the Tribunal was able to make a favourable decision on the material before it. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   Relevant law

4. 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: 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).

5. 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).

   The primary decision

6. The review applicant provided to the Tribunal a copy of the primary decision record. It indicates that the visa applicant’s personal identifies (facial image and fingerprints) matched the details provided in relation to a Global Special Humanitarian visa (GSH) which was submitted in 2010. The primary decision record indicates that the information provided by the visa applicant in the present application concerning her background, citizenship and family composition is different from the information submitted in 2010.

7. It is noted that in March 2016 the visa applicant attended an interview with the Australian High Commission in Islamabad to provide her biometrics and the Afghan identification documents. The visa applicant was interviewed in June 2019 and in the interview the visa applicant is stated to have admitted that in 2010 she was sponsored by a cousin for the Australian visa and in that application she provided ‘fake’ identification documents and incorrect details.

8. The delegate wrote to the visa applicant in June 2019 seeking her comments on the adverse information. In her response the visa applicant explained that she was not aware of the information provided in the GSH application which was prepared by her mother and the sponsor. The visa applicant stated that she declared her cousin Mehdi Hasasn Sharifi (the proposer in the GSH application) as her brother because he lost his parents and was brought up in her family as a sibling. The applicant claimed she mistakenly failed to include another brother in that application.

9. The primary decision record indicates that in support of her identity, the visa applicant submitted her birth certificate issued by the local government in Pakistan in March 2018, a passport issued in April 2018 and a NADRA issued identity card dated March 2018. The delegate referred to the country information which indicates that Afghan nationals have fraudulently registered themselves as Pakistani nationals and that corrupt officials have issued many thousands of computerised nationality cards to non-Pakistani nationals. For these reasons, the delegate placed little weight on the above documents as evidence of the visa applicant’s identity. The delegate also noted that Pakistani identity documents are issued on the basis of the information provided by the requestor and not on the basis of any contemporaneous identity documents and in the applicant’s case, the documents are all dated 2018.

10. The delegate noted that the applicant claimed to have lived in Pakistan her whole life but presented no evidence of that. She claimed not have received some education in Quetta but presented no evidence of that. The delegate notes that in the 2010 application the applicant claimed to be a national of Afghanistan and presented her tazkera and while the visa applicant now claims these documents were bogus, she presented no evidence from the Afghan authorities to confirm that. As a result, the applicant was not satisfied of the applicant’s identity and concluded that the visa applicant did not meet PIC 4020(2A).

    Has the applicant satisfied the identity requirements?

11. PIC 4020(2A) requires an applicant satisfy the Tribunal as to his or her identity. The review applicant provided to the Tribunal a number of documents, including a birth certificate for his son born in 2020 and his son’s Australian citizenship certificate. The review applicant provided a statement addressing the delegate’s concerns.

12. With respect to the recent issuance of the visa applicant’s personal documents, the review applicant notes that the delegate did not ask for the earlier identity documents and he presented to the Tribunal his wife’s birth certificate issued in January 1986, the NADRA ID card issued in 2005, citizenship certificate issued in 2007 and passport copies issued in 2010 and 2016. The review applicant states that even though fraudulent documents are available in Pakistan, his wife’s documents had never been ‘blocked’. The review applicant refers to his wife’s and child’s difficult circumstances.

13. The Tribunal sought verification of the visa applicant’s identity documents through the overseas post. On 25 November 2021 the Tribunal received advice that Identity card (CNIC) and passport have been found to be genuine and a record of these documents exists in NADRA. However, the birth certificate issued by the Metropolitan office in Quetta records a different name for the applicant’s mother. Due to the discrepancy in the mother’s name mentioned in the visa applicant’s birth certificate and the NADRA record, the Department expressed serious concerns about the applicant’s identity. This information was provided to the review applicant pursuant to s. 359A of the Act and in response, the review applicant stated that it is the name of the midwife, rather than the mother, that is recorded on his wife’s birth certificate. The Tribunal forwarded the review applicant’s clarification to the overseas post and on 2 December 2021 received confirmation that is, indeed, the name of the midwife on the visa applicant’s birth certificate and that the mother’s name is not recorded. The post confirmed that the presented identity documents had been verified as being genuine.

14. The Tribunal acknowledges that the visa applicant did present her identity documents to the delegate but despite these, the delegate was not satisfied of her identity. The delegate also considered the visa applicant’s general circumstances and the fact that she admitted to providing incorrect information in a previous visa application. The Tribunal does have concerns about the visa applicant’s credibility and finds aspects of her evidence concerning her circumstances unpersuasive. However, in the Tribunal’s view, these issues are not determinative of the applicant’s identity. In this case, the Tribunal has been provided with the visa applicant’s Identity Card, birth certificate and passport, all of which have been verified as genuine by the overseas post. On the basis of these records, and the outcome of the verification inquiries, the Tribunal is satisfied of the visa applicant’s identity. Therefore, the visa applicant meets PIC 4020(2A).

    Conclusion

15. On the basis of the above, the applicant does satisfy PIC 4020(2A) for the purposes of cl 309.225.

    DECISION

16. The Tribunal remits the application for a Partner (Provisional) (Class UF) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 309 (Spouse (Provisional)) visa:

    ·Public Interest Criterion 4020(2A) for the purposes of cl 309.225 of Schedule 2 to the Regulations

    Kira Raif
    Senior Member