Chea (Migration)

[2021] AATA 2824

Chea (Migration) [2021] AATA 2824 (28 June 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Nguon Chea

VISA APPLICANT:  Ms Kimheang Kuoch

CASE NUMBER:  1803796

HOME AFFAIRS REFERENCE(S):          BCC2016/4039422

MEMBER:Rachel Westaway

DATE:28 June 2021

PLACE OF DECISION:  Melbourne

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 28 June 2021 at 4:19pm

CATCHWORDS
MIGRATION – Partner (Provisional) (Class UF) visa – Subclass 309 – applicant meets PIC 4020(2A) – identity documents and evidence provided – Tribunal is satisfied as to visa applicant’s identity – decision under review remitted

LEGISLATION
Migration Act 1958, ss 65, 359
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 February 2018 to refuse to grant the applicant a Partner (Provisional) (Class UF) (subclass 309) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 30 November 2016. 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 she did not provide adequate evidence to support her identity in accordance with Public Interest Criteria (PIC) 4020(2A).

3. On 24 May 2021, the Tribunal invited the applicant under s.359(2) of the Act to provide written information addressing the PIC 4020 requirements. A response was received within the prescribed timeframe.

4. The applicant provided the Tribunal with a copy of the delegate’s decision dated 5 February 2018.

5. On 7 June 2021, the Tribunal postponed the hearing that had been scheduled on 8 June 2021 using the Microsoft Teams (MS Teams) application, due the COVID-10 lockdown restrictions in Melbourne at the time which prevented the applicant from attending at the location of their registered migration agent.

6. The review applicant appeared before the Tribunal on 28 June 2021 by video conference using the MS Teams application to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant.
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7. Due to the COVID-19 pandemic, the Tribunal exercised its discretion to hold an MS Teams video hearing, determining it was reasonable to do so by having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to its objective of providing a mechanism of review that is fair, just, economical and quick. Accordingly, the Tribunal is satisfied the applicant was given a fair opportunity to give evidence and present arguments in support of his review application.

8. The Tribunal hearing was conducted with the assistance of an interpreter in the Khmer and English languages.

9. The review applicant was represented in relation to the review by his registered migration agent.
   
   

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. The issue in this review is whether the visa 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: 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).

12. 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.

    Background

13. The applicant (Mr Nguon Chea) is a 54-year-old male citizen of Cambodia, residing in Australia on a Five Year Resident Return visa (Class BB) (subclass 155) granted on 8 March 2018. The applicant lodged the 309 visa application on 30 November 2016. At the time of visa application, the visa applicant was 49 years old and at time of writing this decision she is 53 years old.

14. The following material was provided to the Department in support of the visa application:

    Cambodian documents

    ·copy of visa applicant’s Cambodian passport listing birth date as 5 September 1967, valid until 22 July 2025

    ·copy of visa applicant’s Cambodian Khmer Identity Card (with copy of English translation) listing birth date as 5 September 1967, valid until 12 Jun 2026

    ·copy of visa applicant’s Cambodian birth certificate (with English translation) listing birth date as 5 September 1967

    ·copy of visa applicant’s Cambodian Residence Record (with English translation) dated 10 November 2012, including List of Residents citing visa applicant as sole resident

    ·copy of visa applicant’s Cambodian Certificate of Celibacy (with English translation) dated 16 June 2016, certifying that the visa applicant ‘is truly single and has never been married to any man’

    ·copy of visa applicant’s Character Reference issued by Police Comissariat of Prey Veng Province (with English translation) dated 7 July 2016

    ·certified copy of applicant’s Cambodian passport listing birth date as 1 February 1967, valid until 10 October 2008, including a copy of passport title page and copies of six stamped pages showing visa grant and arrival and departure from Australia

    ·copy of applicant and visa applicant’s Cambodian Marriage Certificate (with English translation) dated 4 July 2016, certifying the date of marriage registration to be 16 June 2016

    ·copy of Cambodian Certification issued by the Chief of Lovea Commune (with English translation) dated 30 November 2017, certifying that the visa applicant lost her old ID card and applied for and was issued a new ID card

    ·certified copy of Cambodian Bulletin of Criminal Record issued by the Ministry of Justice (with English translation) dated 28 November 2017, certifying that the visa applicant does not have a registered ‘imprisonment record’

    ·uncertified copy of Cambodian Declaration issued by the visa applicant dated 27 November 2017, declaring that she lost her ID card

    ·certified copy of Seavkeang Loem’s Cambodian Khmer Identity Card (with English translation) stating birth date as 5 May 1969, valid until 19 March 2025

    ·certified copy of Phav Chea’s Cambodian Khmer Identity Card (with English translation) stating birth date as 7 April 1967, valid until 19 March 2025

    Australian identity documents

    ·copy of ‘No Record’ Result from the Registry of Births, Deaths and Marriages Victoria Australia dated 17 March 2016, certifying no record of marriage can be found between the applicant and Sieng Chea and Ngour Ouch between the dates 4 February 2007 and 10 March 2016

    ·certified copy of Cheang Kimcheng’s Victorian Driver Licence valid until 20 October 2018, stating birth date as 22 August 1981

    ·certified copy of Thuon Phalnika’s Victorian Driver Licence valid until 28 February 2017, stating birth date as 14 December 1993

    ·certified copy of Thuon Phalnika’s Australian passport listing birth date as 14 December 1993, valid until 7 November 2016

    ·certified copy of Savy Hem’s Victorian Driver Licence valid until 2 November 2021, stating birth date as 8 September 1969

    ·certified copy of Savy Hem’s Australian passport listing birth date as 8 September 1969, valid until 22 August 2024

    ·certified copy of Chea Sokhunthea’s Victorian Driver Licence valid until 9 March 2026, stating birth date as 5 May 1974

    ·certified copy of Chea Sokhun Thea’s Australian passport listing birth date as 5 May 1974, valid until 29 July 2025

    Applicant statements

    ·copy of a Statutory Declaration made by applicant dated 24 October 2016 detailing his relationship with the visa applicant from their meeting in Cambodia in April 2015 to the date of declaration, and noting the date of their wedding ceremony to be 22 May 2016

    ·copy of Cambodian-issued Statement made by visa applicant dated 19 December 2017, stating she lost her old ID card and requested a new one in 2016, and her other identity documents were damaged by flooding in 2012

    Statutory declarations

    ·copy of a Statutory Declaration made by applicant’s friend Cheang Kimcheng dated 25 October 2016 declaring his support of the applicant’s marriage to the visa applicant, and noting the date of their wedding ceremony to be 22 May 2016

    ·copy of a Statutory Declaration made by applicant’s niece Thuon Phalnika dated 27 October 2016 declaring her support of the applicant’s marriage to the visa applicant

    ·copy of a Statutory Declaration made by applicant’s friend Savy Dem dated 29 September 2016 declaring his support of the applicant’s marriage to the visa applicant

    ·copy of a Statutory Declaration made by applicant’s sister Chea Sokhunthea dated 27 October 2016 declaring her support of the applicant’s marriage to the visa applicant

    Support statements

    ·copy of Cambodian-issued Statement of Support made by visa applicant’s neighbour Seavkeang Loem dated 20 December 2017, detailing a flooding in visa applicant’s house resulting in damage to visa applicant’s identity documents

    ·copy of Cambodian-issued Statement of Support made by visa applicant’s neighbour and business partner Phav Chea dated 20 December 2017, detailing a flooding in visa applicant’s house resulting in damage to visa applicant’s identity documents NOTE: This statement has almost identical text to statement of Seavkeang Loem

    Other

    ·copy of six family photographs without dates or names of subjects

    ·copy of receipt for a funds transfer from applicant to visa applicant dated 28 December 2016

    ·copy of instant messages and calls between visa applicant and applicant on an unnamed account of visa applicant’s, dated between 1 November 2016 and 6 March 2017

    ·copies of applicant’s monthly mobile phone bills, including list of calls, for the periods dated between 8 November 2016 and 12 February 2017

    ·copies of visa applicant’s call logs, including list of international calls, for the period dated between 1 November 2016 and 19 March 2017

    ·copy of letter from ANZ Royal Bank (Cambodia) dated 16 March 2017, confirming the applicant and visa applicant maintain a joint account

15. On 15 November 2017, the Department sent a letter to the visa applicant requesting her to provide evidence of original registration with the Sangkat (Commune office) within 28 days, as the Department was not satisfied as to the visa applicant’s identity. 

16. On 13 December 2017, an officer of the Embassy in Cambodia called the applicant to reiterate the requested identity documents be provided to the Department within 14 days. On 29 December 2017, the visa applicant provided a written statement to the Department explaining that she lost her old ID card and that other identity documents were damaged in heavy rainfall in 2012. The visa applicant advised that she obtained a new birth certificate in 2015 when the Cambodian authorities were requiring citizens to do so; supporting statements were also submitted by the visa applicant.

17. After considering all the circumstances including the visa applicant’s response, the delegate refused the subclass 309 visa application on 5 February 2018, as they were not satisfied that the applicant met PIC 4020(2A).

18. On 13 February 2018, the applicant lodged a merits review application resulting in this Tribunal case number 1803796.

19. The following material was provided to the Tribunal in support of the applicant’s review:

    Other

    ·copy of the Department’s notification letter and decision record dated 5 February 2018.

    ·copies of applicant’s monthly mobile phone bills, including list of calls, for the periods dated between 8 May 2019 and 7 July 2019, and between 8 August 2020 and 7 October 2020

    ·copies of receipts for a funds transfers from applicant to visa applicant dated 30 May 2019 and 27 July 2020

    ·copies of instant messages and calls between visa applicant and applicant on an unnamed account of visa applicant’s, dated between 26 May 2019 and 23 July 2019, and between 29 July 2020 and 1 November 2020

    ·A certification letter translated and dated 27 March 2018 from Police, Inspectorate of Preah Sdach District Bal-Lvea Police station confirming the applicant’s date of birth as 5 September 1967 and her registered address since 8 January 1999. It confirmed and clarified her resident book which was originally supplied but not dated. It stated this book was issued without a date recorded and the police inspectorate confirmed that the applicant was registered since 8 January 1999.

    ·Evidence of Facebook communication and Vodafone mobile invoices was also supplied

    ·A letter from Sunrise japan Hospital dated 24 May 2021 with the applicant’s date of birth and name stating she was an outpatient and dementia was suspected. It confirmed her confusion and memory issues have occurred for three years and explained that she can state her name and age but not her address. Her memory test MMSE scored 4/30 which was stated as low and her Head CT indicated moderate brain atrophy.

20. The hearing commenced and it was apparent to the Tribunal that the visa applicant was significantly impaired and was not able to provide oral evidence. She was unable to recall the date or her birthdate. She could confirm her address. She stated the suburb in which she lived but not the street address. After some time she was able to confirm her husband’s name. she explained she lives with her first cousin who is a female. The Tribunal expressed concerns to the review applicant and to the representative stating the applicant did not appear to have sufficient capacity to provide oral evidence. The representative agreed that she should not provide oral evidence.

21. The sponsor confirmed how the relationship with his wife developed and stated that he had noticed her decline over the last three years. He explained that although they communicate regularly, it is limited, and she forgets most things.

22. He explained that he struggles to sleep as he worries about her. He explained she also suffers from depression.

23. He has known her since April 2015 where they met at Building H at a wedding. He explained he was in Cambodia from 21 March 2015 until June and he contacted her on his return. He would contact her regularly and at that point, she had no memory issues. He said they were married in 2016 with approximately 150 guests. He has flown to Cambodia to meet his wife four times since the wedding. He said he would often stay for 3 months and he lived with her. He said the last time was in 2019 when he saw her and he went with his youngest sister. He stated that she also came to visit him in Australia on 12 Oct 2017 and she returned 10 November 2017. She stayed with the sponsor in his house.

24. He confirmed it was his wife on the phone when the Tribunal first spoke with her. He confirmed when asked that she has never had a visa refused based on PIC4020 and his representatives stated that in order for her to come to Australia and visit him, her submitted biometrics for her 2017 visa application must have been sufficient for the Department to grant the visa.

    Has the applicant satisfied the identity requirements?

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

26. The applicant has provided a significant amount of identity document to the Department as listed above. The Tribunal has reviewed the Department file and viewed the visa applicant’s passport with original sighted, A translated copy of her birth certificate and a translated copy of her residence record. Further information given to the Tribunal to confirm this document’s authenticity was a certification letter translated and dated 27 March 2018 from Police, Inspectorate of Preah Sdach District Bal-Lvea Police station confirming the applicant’s date of birth as 5 September 1967 and her registered address since 8 January 1999. It confirmed and clarified her resident book which was originally supplied but not dated. It stated this book was issued without a date recorded and the police inspectorate confirmed that the applicant was registered since 8 January 1999.

27. Given the presence of these documents and the oral evidence of the sponsor regarding the visa applicant’s identity, the Tribunal is satisfied as to Mrs Kimheang Kuoch’s identity.

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

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

29. 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).

30. No submissions were made in relation to PIC 4020(2B) as the visa application was refused on the basis of PIC 4020(2A) not being satisfied. However, the Tribunal asked the sponsor at hearing if the visa applicant or any member of her family unit had previously had a visa refused due to PIC 4020(2A). He stated that they had not as far as he was aware. The review applicant’s migration agent stated that the visa applicant had passed the biometrics and was granted a visa to visit her husband in Australia before and that this should address such concerns.

31. However, as the Tribunal is reviewing the criteria which was not met, it has contained its findings to PIC 4020 (2A).  

32. Therefore PIC 4020(2B) does not apply to this review.

    Concluding paragraphs

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

    DECISION

34. 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

    Rachel Westaway
    Senior 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.

    …