ALI (Migration)

[2019] AATA 6027

ALI (Migration) [2019] AATA 6027 (30 September 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Frozan ALI

VISA APPLICANTS:  Mr Nazir Hussain MOHIBI
Mrs Gul Bakht NOORI

CASE NUMBER:  1824647

DIBP REFERENCE(S):  BCC2018/854966

BCC2018/855329

MEMBER:S. Georgiadis

DATE:30 September 2019

PLACE OF DECISION:  Adelaide

DECISION:The Tribunal affirms the decision not to grant the applicants Visitor (Class FA) visas.

Statement made on 30 September 2019 at 6:50pm

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – Sponsored Family stream – identity – previous applications for humanitarian visas under different names and dates of birth – family nickname – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 65, 359AA

Migration Regulations 1994 (Cth), Schedule 2, cl 600.213, Schedule 4, criterion 4020(2A)

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of decisions made by a delegate of the Minister for Immigration on 4 and 5 July 2018 to refuse to grant the applicants Visitor (Class FA) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 22 February 2018. The delegate refused to grant the visas on the basis that the visa applicants did not satisfy the requirements of cl.600.213 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the delegate was not satisfied as to the applicants’ identity for the purposes of Public Interest Criterion (PIC) 4020(2A). A copy of the delegate’s decision for each applicant was attached to the application for review.

3. The review applicant appeared before the Tribunal on 22 May 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Dari and English languages.

4. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. The issue in this review is whether each visa applicant meets Public Interest Criterion 4020 (PIC 4020) as required by cl.600.213 for the grant of the visa. Broadly speaking, this requires that (relevantly, in bold):

   ·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).

6. 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 (as considered here) in PIC 4020(2A) - and (2B). PIC 4020 is extracted in the attachment to this decision.

   Has the applicant satisfied the identity requirements?

7. In addition to the other requirements mentioned above for PIC 4020, PIC 4020(2A) requires that each applicant satisfies the Tribunal as to his or her identity.

8. At the time of application for the visas on 22 February 2018, the applicants applied for Sponsored Family Stream (FA 600) visas under the name MOHIBI Nazir Hussain (DOB 28/02/1950), and for the same subclass visa under the name NOORI Gul Bakht (DOB 06/08/1956) respectively. The electronic visa application form lodged for the applicants includes a declaration that none of these persons have been known by any other names.  

9. Departmental records however, reveal inconsistencies in relation to biographical information provided (Folio 105 of BCC2018/855329). The applicants had applied for Class XB-202 Refugee Humanitarian visas on 29 November 2010 under the names of MOHEBZADA, Nazir (DOB 01/01/1950) and MOHEBZADA, Sirin Gul (DOB 01/01/1955) respectively. The Tribunal notes the comments on page 4 of the delegate’s decision relating to Departmental records showing applications on three different earlier occasions (30/08/2010; 01/02/2010 and 20/06/2011) for Global Special Humanitarian Offshore XB-202 visas using different identities, MOHEBZADA, Nazir (DOB 01/01/1950) and  MOHEBZADA, Shirin Gul (DOB 01/01/1955) respectively.  In consideration of this, the Department requested further information on 30 April 2018 regarding the applicants’ identity by asking for personal particulars (Form 80) for assessment, including character assessment.  In response to this request, the applicants provided the completed Form 80 on 9 May 2018. 

10. The applicants maintained that they have not been known by any other name in the past (including any alias or pseudonym - as raised at question 4 of the Form 80), and the applicants have made declaration of such in response.

11. The applicants were provided by the delegate with additional time (28 days) to comment on the above identified inconsistent / inaccurate / inadequate information supplied to the Department relating to their identity.  In response, the review applicant re-stated that her parents (the applicants) have never applied for any other visas in Australia other than their visitor visas granted in 2016.  She explains that her parents visited her in Australia for about 3 months, complied with the visa conditions and then returned home to Afghanistan. She adds that in 2010 she [the review applicant] was not in Australia. The review applicant further states in her written response: ‘... I can verify that my parents has (sic) never been known by any other names ...” However, this is inconsistent with her oral evidence provided at the hearing which is discussed further below. 

12. In accordance with the procedure under s.359AA of the Act the Tribunal put to the review applicant at the hearing that it wished to discuss information that, subject to her response, would be the reason or part of the reason, for affirming the decision to refuse the visa applicants’ Subclass 600 visas. The Tribunal explained that the review applicant would be asked to respond to this unfavourable information and could seek additional time to comment on, or respond to, adverse information, which the Tribunal would consider.

13. The Tribunal put to the review applicant that in circumstances where it was not satisfied with the responses in the Form 80 relating to the applicants’ identity or that responses inconsistent with other evidence relating to other names used by the applicants in the past, if unexplained, would result in the Tribunal affirming the decision refusing the Subclass 600 visas on the grounds of character assessment (identity). The Tribunal put to the review applicant that this information is relevant to the review because in the absence of satisfaction as to the applicants’ identity, each applicant could not satisfy the provisions of PIC 4020(2A) for the purposes of cl.600.213 for the Subclass 600 visas sought.

14. The review applicant responded straight away to the Tribunal and admitted in oral evidence that an incorrect answer had been provided in the Form 80 relating to her parents’ (the applicants) identity.  The review applicant explained that her parents were ‘known in the house by other names.’ When asked to explain what she meant by this, the review applicant added that ‘My father called my mother by her ‘nick name’, Shirin Gul as well as her real name, Gul Bakht NOORI.’  She explained that this ‘nick name’ means ‘sweet flower’ and was therefore, used by her father as he loves his wife.  The Tribunal asked if she could explain why another name was used in respect of her father. The review applicant responded (unconvincingly in the Tribunal’s assessment) that she was 18 years of age at the time and ‘doesn’t remember’ the other name adopted by her father. The Tribunal notes however, the review applicant’s (undated) statement received on 24 August 2018 where she states: ‘In relation to my Father’s Name, his legal name is Nazir Hussain MOHIBI (DOB 28/02/1950).’

15. The Tribunal pointed out to the review applicant that her oral evidence in respect of other names used for her parents is now inconsistent with the ‘no other names’ declaration made on the Form 80 and that this taints credibility as witnesses of truth. The review applicant asserted that although her mother’s ‘nick name’ was used, it is still her name, just not her ‘legal name’.  She added that in 2010 it was her sister who made the application for the Subclass 600 visas for their parents and that she, the review applicant, was ‘not even in Australia’ at that time.

16. The Tribunal put to the review applicant that it has difficulty accepting the reasons for the use of different names, i.e. the ‘nick name’ in respect of her mother and her inability to recall the other name used by her father.  The Tribunal raised firstly, it seems strange and implausible that a ‘nick name’ meaning ‘sweet flower’ would be used in a formal document for an application for a visa instead of one’s legal name.  Secondly, there was ample opportunity to raise this discrepancy of use of an additional name or to correct the assertion of ‘no other names’ (earlier than just at the hearing), particularly when the declaration makes it clear, at question 4 of the Form 80, that this relates to any ‘alias or pseudonym’ which, in the Tribunal’s view would include a ‘nick name’. The review applicant’s response, that there was ‘probably no time’, is unconvincing and the Tribunal is not persuaded that the applicants or the review applicant have been truthful in this regard.

17. The matter is further compromised by the conflicting dates of birth (above) recorded in respect of the visa applicants. The Tribunal is not convinced by the review applicant’s explanation when invited to comment on this point that this was probably ‘a mistake’ or due to her father’s poor literacy or numeracy.  The Tribunal is cognisant of the fact that refusal on the grounds of not meeting the criteria in PIC 4020(2A) will affect a subsequent application made for a visa that contains the requirement that an applicant satisfies PIC 4020, and may prevent the grant of a further visa for a considerable period of time.

18. Having carefully considered the evidence before it discussed the Tribunal, on balance, is not satisfied as to the identity of the visa applicants in this case to meet the provisions of PIC 4020(2A) for a Subclass 600 visa sought by each applicant.  There is no evidence, or application, that the applicants meet the criteria for any other subclass within the class of visa sought.

19. Therefore, each applicant does not meet PIC 4020(2A).

20. On the basis of the above, each applicant does not satisfy PIC 4020 for the purposes of cl.600.213.

    DECISION

21. The Tribunal affirms the decision not to grant the applicants Visitor (Class FA) visas.

    S. Georgiadis
    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. 

    …