Ayana (Migration)

[2020] AATA 618

Ayana (Migration) [2020] AATA 618 (7 February 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Raheal Worku Ayana

VISA APPLICANTS:  Mr Tibebu Tesfaye Kibret
Ms Habte Kasu Tesfaye
Master Abayneh Kasu Tesfaye

CASE NUMBER:  1807832

DIBP REFERENCE(S):  BCC2016/1935202

MEMBER:Christine Kannis

DATE:7 February 2020

PLACE OF DECISION:  

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

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

the second and third named applicants meet the     following criteria:

·Public Interest Criterion 4020 for the purposes of cl.309.323 of Schedule 2 to the Regulations.

Statement made on 07 February 2020 at 6:43am

CATCHWORDS

MIGRATION – Partner (Provisional) (Class UF) – Subclass 309 (Spouse (Provisional)) – bogus documents – school records not genuine – incorrect educational documents provided – ethnic bias at school – Amhara/Oromo background – no element of fraud or deception – decision under review remitted

LEGISLATION

Migration Act 1958 (Cth), ss 5, 65
Migration Regulations 1994 (Cth), Schedule 2 cls 309.225, 309.323, Public Interest Criterion (PIC) 4020

CASES

Arora v MIBP [2016] FCAFC 35
Batra v MIAC [2013] FCA 274
Rani v MIBP [2015] FCCA 445
Sandhu v MIMAC [2013] FCCA 491
Trivedi v MIBP [2014] FCAFC 42

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 26 January 2018 to refuse to grant the visa applicants Partner (Provisional) (Class UF) visas under s.65 of the Migration Act 1958 (the Act).

2. The first named visa applicant (the visa applicant) applied for the visas on 3 June 2016 on the basis of his relationship with his sponsor, the review applicant. At that time, Class UF contained only one subclass: Subclass 309 (Partner (Provisional). The criteria for the grant of this visa are set out in Part 309 of Schedule 2 to the Migration Regulations 1994 (the Regulations). The primary criteria must be satisfied by at least one applicant. The second and third named applicants need satisfy only the secondary criteria.

3. The visas were refused on the basis that the visa applicant did not satisfy cl.309.225 because the delegate found the visa applicant did not meet public interest criterion (PIC) 4020.

4. The review applicant appeared before the Tribunal on 9 December 2019 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant by telephone from Ethiopia and from Mr Asregedewaya Lew, Mr Ayele Tefera, Ms Aklil Kelifa and Mr Mulugeta Gebremariam. The Tribunal was assisted by an interpreter in the Amharic and English languages.

5. The review applicant was represented in relation to the review by her registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

   The law

7. The issue in this review is whether the applicant meets 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).

8. 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. 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.

9. Subsection 5(1) of the Act provides that a 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.

10. Subsection 5(1) does not require the requisite suspicion to be formed on the basis of information of any particular quality (Sandhu v MIMAC [2013] FCCA 491 (Judge Driver, 26 July 2013) at [43]).[1] There need only be a ‘reasonable suspicion’ of a document being bogus and it does not require the evidence to be such that the reasonable suspicion is of facts established on the balance of probabilities. Rather, all that is required is that it the evidence before the decision maker be sufficient to induce a suspicion of the kind a reasonable person may apprehend (Rani v MIBP [2015] FCCA 445 (Judge Driver, 2 March 2015) at [18]).

    [1] Undisturbed on appeal: Sandhu v MIMAC [2013] FCA 842 (Cowdroy J, 20 August 2013).

11. 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.

12. 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.

    The delegate’s decision

13. In support of his claim that the second and third named applicants met the definition of ‘member of a family unit’ as required by r.1.12, the visa applicant provided their school records with the visa application.

14. The Department attended the school in Ethiopia and conducted checks to verify the second and third named applicants’ school records and during the course of these checks the Department found information that indicated the school records were non-genuine. Specifically, on 5 June 2017 an officer of the Department noted the following information;

    ·    The signatory appearing on the school records provided is not known to the school.

    ·    There is no record of either secondary applicant being a student at the school.

    ·    The documents (the school records) did not originate from the school.

15. The delegate refused the visas on the basis that the school records of the second and third named applicants which purported to be records issued by Qiqi Primary School were bogus documents.  In the absence of any information for application of the waiver provision the delegate found the visa applicant failed to satisfy PIC 4020.

    Information provided prior to hearing

16. Prior to making the decision to refuse the visa the Department afforded the visa applicant an opportunity to comment on the adverse information in regard to the suspected bogus documents and to provide information as to whether there are any compelling circumstances to justify waiver and granting of the visas.

17. In response the visa applicant claimed the adverse report from the school was based on the applicants' ethnic affiliation which is an Amhara/Oromo background.

18. The following information was provided in a written submission dated 21 August 2018 from the applicants’ representative:

    ·The visa applicant is a victim of ethnic discrimination by the previous principal/senior staff of Kike Primary School.  Due to differences in ethnic background the previous principal/senior staff was not supportive when the Department visited the school.

    ·On 29 January 2018 the visa applicant contacted the District Office of the Hawassa City Administration Education Department with a complaint that the Kike Primary School staff was not providing proper records of the secondary applicants’ history of attendance at the school.

    ·On 9 March 2018 Mr Zerihun Kefyalewu from the Hawassa City Administration Education Department wrote to the Kike Primary School instructing them to provide the necessary secondary applicants’ history of attendance to the visa applicant.  

    ·On 9 March 2018 Mr Rahel Batiso Barassa (the new principal at the Kike Primary School) provided the necessary secondary applicants’ history of attendance:

    oThat Abayneh Kasu Tesfaye attended the school in year 3 in 2015 and year 4 in 2016

    oThat Habte Kasu Tesfaye attended the pre-primary school in year in 2016

    oThat they were given accompanying letter and left the school in 2017.

    ·On 12 June 2018 Mr Belachew Yohanes (teacher at Kike Primary School) provided a letter that says he is the current teacher at Kike Primary School in Hawassa city and that he was Abayneh Kasu Tesfaye’s teacher in the years 2015-2016 (grade 3 and 4). He also confirmed that Abayneh had a sister Habte also studying at the same school (but he did not teach Habte).

    ·On 15 June 2018 Abayneh Kasu Tesfaye provided a letter stating that he was a student at the Kiki Primary School during the years 2015-2016 and that he studied 3rd and 4th grade at the school. He explained the topography of the school – that it is fenced with tin sheets and is painted yellow and green, that when entering the gate on the left side there is a two-storey building of classrooms, that at the front is the offices and the library, that next to the library there are other classrooms and the kindergarten area, that between the gate and the two storey building there are flag posts that carry the Ethiopian and Southern Region flags, that behind the library and office are the playgrounds and toilets.

    Evidence at hearing

    Review applicant’s evidence

19. As discussed with the review applicant at the hearing, the focus of the original decision maker was whether the visa applicant met PIC 4020 and no formal assessment was undertaken to determine whether the visa applicant and the review applicant were in a spousal relationship at the time of application. Accordingly, the Tribunal has also refrained from formally considering this issue.

20. The review applicant told the Tribunal that the previous female Director of Qiqi Primary School hid the real evidence from the Department. She said the female Director was no longer at the school. In response to the Tribunal asking how she knew evidence had been hidden she said she had been told by the visa applicant.

21. The review applicant said the reason the real evidence was hidden was because of ethnic issues, in particular because the visa applicant is Amhara. When asked to provide other examples of any discrimination towards the visa applicant or the second and third named applicants by the school she repeated that the hiding of the real evidence demonstrated discrimination.

22. The Tribunal noted that the letters from Principal Mr Barassa and the teacher Mr Yohanes were not on official school letterhead. When asked to comment on this the review applicant said sometimes letters are provided on letterhead and sometimes they are not.

23. The Tribunal referred the review applicant to Mr Barassa’s letter in which he said that the second and third named applicants were given ‘accompanying letter and left the school in 2017’. The Tribunal asked her about the nature of the accompanying letter. She said her representative had this letter. At hearing the representative undertook to provide the letter however following the hearing he did not provide the ‘accompanying letter’ but again provided documents which were purported to be the school reports of the second and third named applicant. These school reports contained identical information with respect to the marks attained for subjects however in contrast to the earlier school reports these reports were not handwritten, did not include a School Remarks from the Home- Room Teacher and they affixed photos of the second and third named applicants.

24. The review applicant told the Tribunal that the second and third named applicants are now at a new school, Adari School. She said they left Qiqi Primary School because of the hatred towards them. She was unable to provide an example of hatred by the school towards the visa applicant or the second and third named applicants other than the contention that incorrect information had been provided to the Department.

25. Noting that the information provided by the visa applicant included that the second and third named applicants had been at Qiqi Primary School for at least two years (2015 and 2016) the Tribunal asked the review applicant the reason they remained at the school for an extended period in an environment of hatred. She said they had not taken things seriously until they worsened. When asked how they had worsened she repeated they had hidden the real evidence.

    Visa applicant’s evidence

26. The visa applicant told the Tribunal that the previous female Director of Qiqi Primary School provided incorrect information to the Department when she said the second and third named applicants had not attended the school and that the school records did not originate from the school. He said her motivation for providing incorrect information was because of ethnic issues. He said he complained about her to the Department of Education and as a result she was removed from the school. He said he made the complaint in writing and he received a written response from the Department of Education. He undertook to provide a copy of the response following the hearing. The response was not provided and following the hearing the representative advised that:

    This “response” refers to the letter written by the Education Dept to the new Kiki School Principal ordering that the “previous administrative gap be corrected” and school reports be confirmed, dated 09-03-2018.

27. On 23 December 2019 the applicant’s representative provided a letter from the Hawassa City Administration Education Department dated 20 December 2019 which advised that the visa applicant had submitted a complaint regarding denial of provision of verification and that after considering the complaint the directorate had written a directive on 9 March 2018 to Qiqi Primary School to supply the children’s educational record to the visa applicant. The letter stated the visa applicant had requested a copy of the letter dated 9 March 2018 which indicates the “resulting administrative problems in the letter”. The letter advised that it was not possible to divulge institutions’ shortcomings or individuals’ information to the public.

28. The visa applicant’s oral evidence to the Tribunal was that he had received a written response with respect to the complaint he made about the previous female Director of Qiqi Primary School. Despite undertaking to provide a copy of the response he did not do so. The representative advised that the response was in fact a letter from the Education Department to the school and the letter dated 20 December 2019 says the visa applicant made a complaint about the school. The letter does not verify that Qiqi Primary School failed to provide correct information with respect to the second and third named applicants.

29. Following the hearing a copy of a letter dated 9 March 2018 from Hawassa City Administration Education Department to Qiqi Primary School was provided. The letter referred to the request for verification of the second and third named visa applicant’s attendance at the school in 2015 and 2016 and requested “the previous administrative gap be corrected and verification be given”. The letter does not verify that Qiqi Primary School failed to provide correct information with respect to the second and third named applicants. The letter is based on information provided by the visa applicant.

30. When asked to provide examples of the previous female Director or the school discriminating against him or the second and third named applicants the visa applicant repeated that incorrect information had been provided to the Department and was unable to give any other example.

31. In relation to the letters from Principal Mr Barassa and the teacher Mr Yohanes which were not on official school letterhead, the visa applicant made no comment when asked about this by the Tribunal.

32. The Tribunal referred the visa applicant to Mr Barassa’s letter in which he said that the second and third named applicants were given ‘accompanying letter and left the school in 2017’. The Tribunal asked him about the nature of the accompanying letter. He said the letter had been provided to the representative. As noted above, no accompanying letter was provided following the hearing and instead school reports containing some of the information contained in the reports lodged with the application were again provided.

33. The visa applicant told the Tribunal that the second and third named applicants now attend Adari school. He said reason they left Qiqi Primary School was because of the distance he had to travel from his home to the school. The Tribunal noted that the review applicant’s evidence was that the reason they left to the school was because of the hatred towards them.

    Other witnesses

34. The Tribunal discussed the issue before it with each of the witnesses and explained that it was not making a decision about the genuineness of the parties’ relationship.

35. Mr Asregedewaya Lew told the Tribunal that he had no personal information about the whether the school records provided by the visa applicant were genuine or bogus documents. He said there are ethnic problems in Ethiopia and people want to be bribed. He said the review applicant is depressed and wants the visa applicant to come to Australia.

36. Mr Ayele Tefera told the Tribunal that he had no personal information about the whether the school records provided by the visa applicant were genuine or bogus documents. He said he was aware that in Ethiopia a person is expected to speak in a certain language when dealing with certain other people or organisations.

37. Ms Aklil Kelifa and Mr Mulugeta Gebremariam both told the Tribunal that they had no personal information about the whether the school records provided by the visa applicant were genuine or bogus documents.

    Representative’s submissions

38. The representative submitted, as did the review applicant and the visa applicant, that an example of the ethnic hatred by the school towards the visa applicant was the refusal to acknowledge the school records of the second and third named applicants originated from the school.

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

1. The school records in the present case purported to be the school records of the second named applicant for 2016 and of the third named applicant for 2015 and 2016 issued by Qiqi Primary School.

2. PAM3 gives examples of bogus documents and says:

   Documents that are counterfeit

   These are documents that have been manufactured to resemble genuine documents.

   For example:

   • passport, birth certificate, marriage certificate, educational certificate, adoption order, work reference or financial document, or any document intended to support their purposed identity
   • documents regarding custody or dependency claims relating to a minor
   • work experience documentation relating to skilled work undertaken in their nominated occupation (either in Australia or outside Australia, or both), prior to the application being made
   • digitally altered photos to support claims of relationship or identity.

3. In this case the outcome of the Departmental inquiries revealed that the school records given to it by the visa applicant were not genuine school records because the school advised that the second and third named applicants had never attended the school and that the school reports were not issued by the school.

4. Against this the review applicant and the visa applicant gave evidence that the school provided incorrect information to the Department with respect to the second and third named applicant’s enrolment. They said the reason for this was due to ethnic issues however they were unable to provide any other examples of the school demonstrating any ethnic bias against any of the applicants.

5. The documents provided following the hearing were of limited assistance to the Tribunal. An exception to this however was a letter dated 11 December 2019 from  the current  Principal of Qiqi Primary School, Moges Molla Hirbora which advised the following:

   To Whom It May Concern

   Re: Provision of document

   As indicated above on the title, Mr Tibebu Tesfaye has been provided the same document according to his application dated 13/03/2018, Ref No K/11/16. We have supplied him with the same document again according to his application dated 11/12/2019.

   1. Student Abayneh Kasu Tesfay was a student at Kike Primary School, year 3 in 2015 and year 4 in 2016. 2. Student Habte Kasu Tesfay was a Pre-primary student in 2016. They both were given letters indicating they have left the school in 2017. We advise that we have given them the transcript of their results when they left the school.

6. The letter from Moges Molla Hirbora was written on school letterhead and the official seal of the school was affixed. The Tribunal placed significant weight on this letter.

7. The Tribunal also placed some weight on the consistency of the visa applicant’s oral evidence and the letter from the Hawassa City Administration Education Department dated 20 December 2019. The Tribunal accepts that the visa applicant made a complaint with respect to the school’s failure to verify the enrolment of the second and third named applicant. The Tribunal considers this suggests that the visa applicant had a legitimate basis for the complaint and for the request for assistance from the Hawassa City Administration Education Department.

8. The Tribunal also has concerns about the information provided to the Department when it made enquiries to verify the second and third named applicants’ previous enrolment. Although the questionnaires bear the school’s seal they do not identify the person who provided the information by name or by the office held by the person. 

9. After considering the written and oral evidence, the Tribunal is not satisfied that the evidence is sufficiently reliable or persuasive to raise a suspicion that the school records provided with the application are bogus documents. The Tribunal is satisfied that there is no element of fraud or deception.

10. Therefore, the Tribunal finds there is no evidence before the Tribunal that the visa applicant has given, or caused to be given, to the Minister, an officer, the Migration Review Tribunal, 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. Therefore, the Tribunal finds the visa applicant meets cl.4020(1).

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

11. 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) and therefore does not apply to the second and third named applicants in the present case.

12. There is no evidence before the Tribunal that the visa applicant or any member of the family unit have been refused a visa in the relevant period because of a failure to satisfy cl.4020(1).

13. Therefore, the visa applicant meets the requirements of cl.4020(2).

    Has the applicant satisfied the identity requirements?

14. Clause 4020(2A) requires an applicant satisfy the Tribunal as to his or her identity. A Medical Referral letter refers to the visa applicant presenting his passport at the time of review. The passports and birth certificates of the second and third named applicants were provided. The Tribunal is satisfied that the visa applicants satisfy the identity requirements. Therefore, the visa applicant and the second and third named applicants meet cl.4020(2A).

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

15. PIC 4020(2B) requires that neither the visa 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 application 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(2BA) and therefore does not apply to the second and third named applicants in the present case.

16. There is no information before the Tribunal to suggest that the visa applicant or any family unit member has 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 application is granted or refused. Therefore the Tribunal finds that the visa applicant meets the requirements of cl.4020(2B).

17. For the above reasons, the Tribunal finds the visa applicant meets the requirements of PIC 4020 for the purposes of cl.309.225 and the second and third named applicants meet the requirements of PIC 4020 for the purposes of cl.309.323.

18. Given the findings above, the appropriate course is to remit the applications for the visas to the Minister to consider the remaining criteria for a Subclass 309 visa.

    DECISION

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

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

    the second and third named applicants meet the following criteria:

    ·Public Interest Criterion 4020 for the purposes of cl.309.323 of Schedule 2 to the Regulations.

    Christine Kannis
    Member