Amoah (Migration)

[2024] AATA 2511

Amoah (Migration) [2024] AATA 2511 (14 May 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Mouricia Amoah

VISA APPLICANT:  Mr Richie Konadu-Yiadom

REPRESENTATIVE:  Mr Celestine Ifeanyi Ceefyne Ogbonna (MARN: 1804068)

CASE NUMBER:  2402401

HOME AFFAIRS REFERENCE(S):          BCC2022/1185279

MEMBER:Stephen Conwell

DATE:14 May 2024

PLACE OF DECISION:  Perth

DECISION:The Tribunal remits the application for a Prospective Marriage (Temporary) (Class TO) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 300 (Prospective Marriage) visa:

·Public Interest Criterion 4020 for the purposes of cl.300.223 of Schedule 2 to the Regulations.

Statement made on 14 May 2024 at 11:29am

CATCHWORDS
MIGRATION – Prospective Marriage (Temporary) (Class TO) visa – Subclass 300 (Prospective Marriage) – identity – educational certificate provided with previous application has different year of birth – probable error by issuer – not submitted as identity, but education history – statutory declarations by applicant and mother – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 300.223, Schedule 4, criterion 4020(2A)

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

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 to refuse to grant the visa applicant a Prospective Marriage (Temporary) (Class TO) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The visa applicant (the applicant) applied for the visa on 6 April 2022. At the time the visa application was lodged, Class TO contained only one subclass: Subclass 300 (Prospective Marriage). The criteria for a Subclass 300 visa are set out in Part 300 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). The primary criteria must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria. Relevantly to this matter the primary criteria include cl 300.223 which requires that an applicant meet several public interest criteria, including Public Interest Criterion (PIC) 4020.

3. The delegate refused to grant the visa because on the evidence submitted the delegate was not satisfied as to the applicant’s identity. The delegate concluded that the applicant did not meet Public Interest Criterion (PIC) 4020(2A).

4. The review applicant (the sponsor) was represented in relation to the review by her registered migration agent (representative).

5. The sponsor provided the Tribunal with a copy of the delegate’s decision record.

6. On 29 February 2024 the sponsor applied to the Tribunal for a priority hearing, for mental health reasons. The request was granted on 11 March 2024.

7. The applicant appeared before the Tribunal via video-link on 18 April 2024 to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor, Ms. Mouricia Amoah, who attended in person. The representative also attended the hearing in person.

8. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Background

9. On 6 April 2022 the applicant lodged a Prospective Marriage (Class TO) (Subclass 300) visa under the name KONADU-YIADOM, Richie ([DOB]). The applicant provided the following supporting documents which corroborated his identity:

   ·Ghana birth certificate issued on 20 December 2018

   ·Ghana passport issued on 27 February 2019

   ·Ghana driver’s licence issued on 11 January 2021

10. According to Departmental records, a year earlier, in April 2021, the applicant lodged a Student visa for which he submitted a West African Examination Certificate (WAEC) as part of the evidence of his studies. The WAEC Certificate recorded the applicant’s year of birth as being 1989 (not 1993 as recorded in all other identity documents pertaining to him). In all other respects the Certificate identified the applicant in accordance with his other identity documents submitted in 2022 in support of his Prospective Marriage (Class TO) (Subclass 300) visa application.

11. On 30 August 2023 the Department issued the applicant with a ‘natural justice’ letter regarding the apparent discrepancy in his year of birth in the WAEC Certificate and his other identity documents. In response the applicant resubmitted his Ghanian birth certificate, passport and driver’s licence as well as the following documents:

    ·Economic Community of West African States (ECOWAS) identity card issued on 9 May 2020;

    ·Letter from Kings College dated 15 December 2020;

    ·A written submission from his previous representative dated 19 September 2023.

12. The following day the applicant submitted his statutory declaration deposed in the Ghana High Court, dated 31 August 2023.

13. In response to the hearing invitation a bundle of supporting documents were submitted in support of the application, including but not limited to, the following documents:

    ·the representative’s several written submissions;

    ·Clinical weighing card (immunisation record & growth chart) – date first seen: 25/10/1993 (original);

    ·Biometric birth certificate - certified copy of entry in Register of Birth No. 050110- 36846-2018 for the applicant issued 20/12/2018;

    ·ECOWAS National Biometric Identity Card number (ENBIC) GHA-718260408-0 issued 09/05/2020 (copy);

    ·Statutory declaration - correction of error on date of birth - declared on 31/08/2023;

    ·Australian Biometric Collection Centre, Ghana Appointment Letter issued on 06/04/2021 (copy);

    ·Australian Biometric Collection Centre, Ghana Appointment Letter issued on 06/04/2022 (copy);

    ·Letter of Attestation - Eben International & Junior High School, Maakro, Kumasi, Ghana issued 01/02/2024 (original);

    ·Graduation Certificate - Eben International & Junior High School, Maakro,Kumasi, Ghana issued 21/07/2006 (original);

    ·Letter of attestation - Kings College issued 15/12/2020 (original);

    ·Letter of attestation - Kings College issued 30/01/2024 (original);

    ·Sealed Letter from Ministry of Foreign Affairs and Regional Integration - Republic of Ghana issued 02/02/2024 (original);

    ·Statutory declaration by Daizy Osei APPIAH (the applicant’s mother) declared on 26/01/2024;

    ·ECOWAS National Biometric Identity Card number GHA-718224212-7 for Daizy Osei APPIAH - issued 11/01/2020;

    ·Biometric birth certificate - certified copy of entry in Register of Birth No. 050110-36846-2018 for the applicant issued 20/12/2018;

    ·National Biometric Identity Card number GHA-718260408-0 for the applicant (ECOWAS) - issued 09/05/2020.

14. After affording the applicant natural justice and taking into account his response, the delegate was not satisfied as to the applicant’s identity, finding that he did not meet PIC 4020(2A).

    ISSUE

15. The issue in this review is whether the visa applicant meets PIC 4020 and specifically PIC 4020(2A) as required by cl.300.223 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).

16. 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). PIC 4020 is extracted in the attachment to this decision.

17. The Tribunal has taken into consideration, individually and completely, all the evidence in the Departmental and the Tribunal case files and the testimony given at the Tribunal hearing.

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

18. As per the decision record, the Tribunal notes that the delegate makes no decision with respect to PIC 4020(1) or (2). As a consequence, the waiver provisions afforded by PIC 4020(4) were also not considered by the delegate. Therefore, and consistent with the President’s direction, the Tribunal makes no finding with respect to PIC 4020(1).

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

19. 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). 

20. There is no evidence that the applicant was previously refused a visa based on a failure to satisfy PIC 4020(1). The Tribunal is satisfied that PIC 4020(2) is met.

    Has the applicant satisfied the identity requirements?

21. PIC 4020(2A) requires an applicant satisfy the Tribunal as to his or her identity.

22. The many identity documents given to the Tribunal all have the same full name and date of birth of the applicant (including the year of birth as being 1993). It is not in dispute that the only official document showing a discrepancy is the applicant’s WAEC, which bears the same full name and date of birth of the applicant, except for his year of birth, which it records as 1989, not 1993. In all other respects the WAEC document has the same details for the applicant as all other identity documents submitted.

23. The Tribunal notes the delegate’s concern that the WAEC document was not corrected, when, according to the WAEC website, it appears to be possible to do so. The Tribunal is less troubled by this. The Tribunal has regard to the letter from Kings College (the applicant’s high school) dated 30 January 2024 (a few days after the delegate’s decision) which explains that the WAEC website’s mention of rectification of errors in fact means that rectification is only possible whilst the registration of data and examination results are still current; once the results are finally published, rectification is no longer possible. The Tribunal finds this a plausible explanation.

24. Having carefully considered all the evidence and having the advantage of the applicant’s testimony by video-link and finding him to be a credible witness, it is satisfied that the preponderance of identity documents submitted all uniformly identify the applicant by the same name, day, month and year of birth. As mentioned above, the WAEC document also identifies the applicant in all respects other than his year of birth, which it records as 1989, not 1993. This strongly suggests to the Tribunal that the discrepancy came about not through fraud or intent but through a typographical error by Kings College when submitting student data to WAEC, from which the latter produced its results and its certificates.

25. As noted by the representative, the WAEC document was not submitted to the Department as an identity document – not in the applicant’s earlier Student visa application nor in the Prospective marriage (subclass 3000 visa, the subject of this review. The WAEC document was submitted as evidence of the applicant’s study record.  It is noteworthy that although his Student visa application was refused, the Department’s record of the application has his year of birth as [Date], notwithstanding the WAEC document appearing in the submission for the Student visa.

26. The Tribunal sighted several pieces of original evidence which it found persuasive: in particular, the applicant’s original ‘growth chart’ issued to his mother. It records his parents’ names, his date of birth ([Date]) and that he was first seen by the maternity nurse four days after his birth, i.e. on [date] 1993. The Tribunal is satisfied as to the document’s authenticity, bearing what is most likely, the hand-written notations of the maternity nurse at each visit.  It is equally satisfied by the applicant’s certified copy of his birth certificate, his passport and driver’s licence. With the increased security of biometrics data to obtain such documents in Ghana and the consistency of the applicant’s identity in all of these documents, other than a typographical discrepancy of his year of birth in the WAEC document, the Tribunal is satisfied that the applicant is correctly identified in these official documents.

27. The delegate placed adverse weight on the fact that the identity documents provided by the applicant were all issued on or after 20 December 2018. The Tribunal accepts the explanation offered by the representative in his submissions,

    Ghana's Births and Deaths Registry (BDR) began re-registering handwritten birth certificates and clinical weighing cards on its electronic platform and issuing biometric birth certificates in 2014. Afterwards, the biometric birth certificate became the only type accepted for passport applications.[1]

    …

    The fact that the BDR started issuing the biometric certificate in 2014 in Ghana means that there was nothing untoward about the visa applicant’s current biometric birth certificate, issued in 2018, 4 years after the exercise began. Given that the visa applicant required a new birth certificate to acquire his Ghana passport, this is consistent with the country’s drive toward digitalising public agencies.[2]

    [1]  The representative’s amended submission, [para 54]

    [2]  Ibid [para 59]

28. Positive weight is also given to the statutory declarations of the applicant and his mother; the applicant makes the simple claim that the error of his year of birth was simply an inputting error by his high school (King’s College) when sending students’ data to WAEC. Given that the weight of evidence supports this claim, the Tribunal finds this to be the most plausible explanation for the discrepancy.

29. Upon careful consideration of all of the evidence, and having made a positive assessment of the applicant’s credibility, the Tribunal is satisfied as to the identity of the applicant in order to meet the requirements of PIC 4020(2A).

30. Therefore, the applicant meets PIC 4020(2A).

    Has a visa previously been refused on the basis of a failure to satisfy PIC 4020(2A)?

31. 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).

32. There is no evidence before the Tribunal the applicant, or a member of his family unit, has been refused a visa in the past because of a failure to satisfy PIC 4020(2A).

33. Therefore PIC 4020(2B) is met.

34. On the basis of the above, the applicant satisfies PIC 4020 for the purposes of cl 100.222.

    DECISION

35. The Tribunal remits the application for a Partner (Migrant) (Class BC) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 100 (Spouse) visa:

    ·Public Interest Criterion 4020 for the purposes of cl 300.223 of Schedule 2 to the Regulations

    Stephen Conwell
    Member