Danesh (Migration)

Danesh (Migration) [2019] AATA 3869 (19 August 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
REVIEW APPLICANT:  Mr Hamid Danesh
VISA APPLICANT:  Ms Wahida Danesh
CASE NUMBER:  1603897
DIBP REFERENCES:  2013/096399-400-401 and OSF2013/096399
MEMBERS:Deputy President Jan Redfern (Presiding)
Senior Member Denis Dragovic

DATE:19 August 2019
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decisions not to grant the visa applicant a Child (Migrant) (Class AH) visa.

Statement made on 19 August 2019 at 3.26 pm.

CATCHWORDS:
MIGRATION – Child (Migrant) (Class AH) (Subclass 101) visa – refusal of visa on grounds that applicant does not satisfy the criteria in cl 101.21 of the Migration Regulations 1994 – whether visa applicant is the ‘dependent children’ of the review applicant – Tribunal satisfied visa applicant is the biological child of the review applicant and ‘dependent’ within the meaning of cl 101.211(1)(a) of the Migration Act 1958 and r 1.03(a) of the Migration Regulations 1994 – visa applicant over 18 years old at the time of application – whether visa applicant was ‘undertaking a full-time course of study at an education institution leading to the award of a professional, trade or vocational qualification’ – consideration of the meaning of the words ‘leading to’ in cl 101.213(1)(c) of the Migration Regulations 1994 – no direct causal connection established between study and the award or qualification – recommendation for Ministerial intervention – decision affirmed
LEGISLATION:
Migration Act 1958 (Cth), ss.5(1), 29, 30, 31, 65, 351
Migration Regulations 1994(Cth), rr.1.03, 1.03(a), 1.03(b)(ii), 1.05A; sch 2- Part 101; cll.101.21, 101.211, 101.211(1)(a), 101.212, 101.213, 101.213(1)(c), 101.213(2), 101.223
Schedule 4 - PIC 4020, 4020(1), 4020(2), 4020(2A), 4020(2B)
CASES:
Danesh (Migration) [2019] AATA 1761
Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577
Rao v Minister for Immigration and Multicultural Affairs [1998] FCA 193
Shi v Migration Agents Registration Authority [2008] HCA 31
Singh v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCCA 1435
Sok v MIMIA (2005) FMCA 190
Sun v Minister for Immigration and Border Protection [2016] FCAFC 52
SECONDARY MATERIALS:
Administrative Appeals Tribunal, President’s Direction ‘Conducting Migration and Refugee Reviews’ (1 August 2018)
Procedural Advice Manual 3 (PAM3) ‘Act – Ministerial powers – Minister’s guidelines on Ministerial powers (s 345, s 351, s 417, s 454 and s 501J)’
STATEMENT OF DECISION AND REASONS
BACKGROUND

This is an application for review of a decision made by a delegate of the Minister for Immigration on 29 February 2016 to refuse to grant the applicant a Child (Migrant) (Class AH) (Subclass 101) visa under s.65 of the Migration Act 1958 (the ‘Act’). The visa applicant applied for the visa on 30 June 2013 under Subclass 101, which provides for dependants of certain Australian residents to be granted a permanent visa.
The review applicant, Mr Hamid Danesh, is a permanent resident of Australia who arrived in Australia from Afghanistan in September 2011 on a Partner (Class UF) (Subclass 309) visa. The visa applicant, Ms Wahida Danesh, is said to be the child of the review applicant from his first marriage in Afghanistan. Mr Hamid Danesh sponsored her application. At the time of the application the visa applicant was 20 years old. The review applicant also lodged applications for visas for Ms Zahra Danesh and Mr Mohammad Danesh, who are said to be the review applicant’s children and the sibling of Ms Wahida Danesh, the visa applicant.
On 29 February 2016, a delegate of the Minister refused these applications on the basis that Ms Wahida Danesh, Ms Zahra Danesh and Mr Mohammad Danesh did not meet certain requirements of the Child (Migrant) (Class AH) (Subclass 101) visa. While there is some ambiguity in the reasons for the decision of the delegate, it is apparent the refusal was based on the delegate not being satisfied about the identity of the visa and review applicants. The delegate was also concerned that the information contained in the identity documents provided was false or misleading.
The review applicant lodged an application for review of the refusal of these applications. He attended a hearing on 15 May 2018 and a resumed hearing, after the results of DNA had been provided, on the 20 June 2019. The review applicant gave evidence and presented arguments at both hearings. The Tribunal also received oral evidence from Ms Mansorreh Rezai, the review applicant’s second wife and step-mother of the visa applicant. The Tribunal hearings were conducted with the assistance of an interpreter in the Persian and English languages.
The review applicant was represented in relation to the review by his registered migration agent. All applications for review were heard together with evidence in one case being evidence in the other.
At the time of the application for the Child Migrant (Class AH) (Subclass 101) visa, Ms Wahida Danesh was 20 years old. There are different considerations for visa applicants who are over 18 years old at the time of such visa applications. The Tribunal requested further information in relation to these matters, which was provided, and conducted a further hearing in relation to these matters on 20 June 2019. As a result of the issues raised at the resumed hearing, the applicant’s migration representative requested further time to make submissions on whether Ms Wahida Danesh met the relevant criteria, a request which was granted. These submissions were confined to the review of the delegate’s decision to refuse the visa application of Ms Wahida Danesh.
The Tribunal was satisfied that Mr Mohammad Danesh and Ms Zahra Danesh met the relevant criteria and their applications were remitted. Our reasons on these reviews have been published: Danesh (Migration) [2019] AATA 1761 (25 June 2019), which we will refer to as Danesh (No. 1).
In this case, we have come to a different decision. We are satisfied about the visa applicant’s identity and we are satisfied there is no evidence, apart from unsubstantiated speculation, that the identity documents provided are false or misleading. Our reasons for this are identical to the reasons we set out in Danesh (No. 1), which are repeated in this decision. However, we are not satisfied that Ms Wahida Danesh met the time of application criteria for the visa, relevantly, that she was a dependent child within the meaning of the relevant legislative provisions. There is also doubt about whether she would be able to meet this criterion at the time of the decision, although this is not the subject of our review. As the applicant turned 18 at the time of the application for the visa, this review ultimately turned on the question of whether, since turning 18 and up until the application for the visa, the visa applicant had been undertaking a full-time course of study at an education institution leading to the award of a professional, trade or vocational qualification as required by cl.101.213(1)(c) of Schedule 2 to the Migration Regulations 1994 (the ‘Regulations’). We are not satisfied the visa applicant met this criterion. Our reasons follow.
RELEVANT LAW
Section 29 of the Act provides that the Minister may grant a visa to a non-citizen to travel to, enter and remain in Australia. The visa may be permanent or temporary: s.30 of the Act. There are prescribed classes of visas as set out in the Regulations: s.31 of the Act. Schedule 2 to the Regulations provides for permanent visas for dependent children of an Australian citizen, the holder of a permanent visa or an eligible New Zealand citizen under Part 101 of Schedule 2 to the Regulations. The relevant extracts of the Act and the Regulations is an attachment to this decision.
Part 101 comprises primary and secondary criteria that apply at the time of the application and at the time of the decision. At least one person included in the application must meet the primary criteria. The primary criteria to be satisfied at the time of application are set out in cl.101.21 and, relevant to this case, comprise the following:
(1)the applicant must be a dependent child of an Australian citizen, the holder of a permanent visa, or an eligible New Zealand citizen and not have turned 25: cl.101.211 of Schedule 2 to the Regulations;
(2)the applicant must be sponsored by a person who has turned 18 and is an Australian citizen, holder of a permanent visa or an eligible New Zealand citizen: cl.101.212 of Schedule 2 to the Regulations; and
(3)if the applicant has turned 18, the applicant is not engaged to be married, does not have and has never had a spouse or de facto partner, is not engaged in full-time work and, since turning 18, or within six months or a reasonable time after completing the equivalent of year 12 in the Australian school system, has been undertaking a full-time course of study at an educational institution leading to the award of a professional, trade or vocational qualification: cl.101.213 of Schedule 2 to the Regulations.
The definition for a ‘dependent child’ is set out in rr.1.03 and 1.05A of the Regulations and is extracted in an attachment to this decision.
The primary criteria to be satisfied at time of decision include the requirement that the applicants satisfy the public interest criteria set out in cl.101.223, which includes Public Interest Criterion (‘PIC’) 4020 of Schedule 4 to the Regulations.
PIC 4020 relevantly provides:
(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.
…
(2A) The applicant satisfies the Minister as to the applicant’s identity.
…
(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.
Note: For the definition of bogus document, see subsection 5(1) of the Act.
[Emphasis in original]
Subsection 5(1) of the Act provides:
(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.
[Emphasis in original]
The definition of ‘bogus document’ in s.5(1) of the Act requires that there be a reasonable suspicion the document is bogus, based on objective circumstances, not merely speculation or conjecture: Singh v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCCA 1435. Whether a document is bogus is a matter of fact. To determine this, the Tribunal requires objective circumstances on which a reasonable suspicion could be founded: Sun v Minister for Immigration and Border Protection [2016] FCAFC 52 per Flick and Rangiah JJ at [86].
DECISION UNDER REVIEW
While the role of the Tribunal on review is to consider the matter afresh based on the material before it, it is useful in explaining the Tribunal’s decision and the issues that require determination to outline the delegate’s findings and reasons.[1] It is also relevant to note that under the President’s Direction, Conducting Migration and Refugee Reviews, reviews of migration cases are generally to be restricted to those criteria or issues on which the delegate made an adverse decision.[2]
[1] Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577, also referred to in Shi v Migration Agents Registration Authority [2008] HCA 31 at [98] per Hayne and Heydon JJ.
[2] Administrative Appeals Tribunal, President’s Direction ‘Conducting Migration and Refugee Reviews’ (1 August 2018) at [8.2].
The delegate’s decision is not clear on the criteria or issues which formed the basis of the decision to refuse the visas. On the first page of the Department of Immigration’s decision record under ‘Reasons for decision’ it states:
Under migration law, a visa cannot be granted unless the applicant meets the legal requirements that are specified in the Act and the Regulations. You do not meet the legal requirement in clause 101.21 in Schedule 2 of the Regulations on the date I made my decision.
There is no further detail in the decision record as to which subclause has not been met. Clause 101.21 outlines the requirements at time of application and sets out the required criteria for an eligible applicant and sponsor.
The decision record then proceeded to engage with the review applicant’s claims and evidence regarding his employment background, residency in Afghanistan and Iran, marriage and children. Under the heading ‘Assessment’ the decision references PIC 4020(1) which, as previously stated, relates to circumstances in which bogus documents are submitted to the Department. The delegate found that the visa applicant submitted false documents, namely the Afghan identity cards known as a ‘Tazkira’ or ‘Taskera’. Despite the Department checking the validity of the Tazkiras with the Afghan Ministry of Interior and being informed that the Tazkiras were genuine, the delegate determined that he was not satisfied about the identity of Ms Wahida Danesh, Ms Zahra Danesh and Mr Mohammad Danesh. This was based on doubts the delegate had regarding the true name and identity of the review applicant and ‘conflicting information’ around the name of the review applicant as well as his status of residing in Iran. As a consequence the delegate was not satisfied that any of the visa applicants, including Wahida Danesh, met PIC 4020(2A).
The delegate noted that the review applicant was invited to comment on the ‘false and misleading’ information in the application and that he provided information as to how he was able to obtain the submitted Tazkiras. Because the review applicant did not specifically address the inconsistencies referred to in the letter, the delegate drew an adverse inference about this and noted that the absence of response raised ‘concerns’ about the identity of the visa applicants.
As noted in Danesh (No. 1), while it is not entirely clear, on a fair reading of the decisions the basis for the refusal to grant a visa to Ms Wahida Danesh, Ms Zahra Danesh and Mr Mohammad Danesh appears to be because the delegate was not satisfied about their respective identities. This appears to be the basis on which the delegate found the visa applicants did not meet the criteria in cl.101.21 of Schedule 2 to the Regulations. It is also relevant to note that the delegate’s decision engages primarily with issues related to PIC 4020, which arises through cl.101.223 of Schedule 2 to the Regulations.
ISSUES FOR CONSIDERATION
The Tribunal must review all of the material before us. We are not bound by the findings of the delegate but, as already noted, our review should generally be restricted to those criteria or issues on which the delegate made an adverse decision.
In this case the issues raised are whether Ms Wahida Danesh meets the criteria in cl.101.21. We also note that the delegate found that the applicant did not satisfy PIC 4020(2A) and that the Tazkiras provided were false and misleading. We take this to mean that the Tazkiras were found to be bogus for the purposes of PIC 4020(1). As such the further issue for determination is whether Ms Wahida Danesh meets PIC 4020(2A) and PIC 4020(1) which are time of decision criteria set out in cl.101.223.
CONSIDERATION OF CLAIMS AND EVIDENCE
Outline of the evidence and claims
As already noted, the evidence considered in this review is substantially the same as the evidence considered in Danesh (No. 1) with further evidence provided and considered that were particular to Wahida Danesh’s claims. An outline of this evidence is set out below.
Mr Danesh provided the following evidence about the circumstances surrounding his identity and relationship to his children.
Mr Danesh was born in Afghanistan. He was a twin and shortly after his birth he was adopted by his uncle. His twin brother remained with Mr Danesh’s biological parents. Mr Danesh’s uncle and adopted father moved with the family from Afghanistan to Iran in 1978. Mr Danesh’s biological family subsequently fled from Afghanistan to Iran in 1979. In 1991, Mr Danesh married Ms Fatemeh Mohammadi, with whom he had his first child, Ms Wahida Danesh, the visa applicant, in 1993. A second child, Mr Mohammad Danesh, followed in 1996. The relationship between Mr Danesh and his wife became difficult and while they did not formally separate, Mr Danesh started a new relationship with Ms Mansoorreh Rezai in 2002. They later married but Mr Danesh and Ms Fatemeh Mohammadi had a third child in 2005, being Ms Zahra Danesh, and this caused problems between Mr Danesh and Ms Mansorreh Rezai. By August 2005, Mr Danesh was divorced from both but he reconciled with Ms Mansorreh Rezai and they had a child together in March 2006. They remarried in 2009 and had a second child in 2010.
Mr Danesh came to Australia in 2011 as the partner of Ms Mansorreh Rezai, who had been previously granted a special humanitarian visa.
According to Ms Wahida, after Mr Danesh came to Australia his first wife left the children and they lived with Mr Danesh’s parents for about two years. After this, they lived in a house rented by Mr Danesh for them and Ms Wahida looked after her younger siblings. The children have been supported by Mr Danesh for the past five years. They do not have the appropriate documentation and therefore have limited rights while living in Iran as Afghan refugees even though all children were born in Iran.
The above evidence was provided by Mr Hamid Danesh and Ms Wahida Danesh. There is no evidence to corroborate much of this narrative but nor is there evidence to counter their claims. However, there is country information that is consistent with this account.[3]
[3] Refer to the Department of Foreign Affairs and Trade in relation to Iran and Afghanistan dated 7 June 2018 and 18 September 2017 respectively.
Mr Danesh claims that he travelled and worked in Afghanistan frequently and when the Iranian government was transitioning its refugee identity cards he was in Afghanistan. He asked his twin brother, Ramazan, to assist and he registered as the children’s father to ensure they could remain in Iran legally. In 2003, Ramazan died in an accident and Mr Danesh adopted his twin brother’s identity when renewals were required for the household registration. This continued through to 2012, by which time Ms Zahra Danesh had been born and Mr Danesh had left the country to live with his second wife in Australia. As implausible as this may seem, Mr Danesh did not seek to regularise the previous records, which ultimately left his family in a difficult position in relation to their status in Iran. Mr Danesh gave more detailed evidence about these matters at the hearings before the Tribunal.
In support of this narrative, Mr Danesh provided the following documents prior to the hearing:
(1)An Afghan identity card which lists him as the father of the visa applicant, Mr Mohammad Danesh and Ms Zahra Danesh. The identity card was confirmed to be genuine through checks made by the Department;
(2)A written statement from Ms Mansorreh Rezai that the review applicant is the father of visa applicant, Mr Mohammad Danesh and Ms Zahra Danesh through his first marriage;
(3)Afghan passports for the children that identify the visa applicant, Ms Zahra Danesh and Mr Mohammad Danesh as children of Mr Danesh;
(4)Two Afghan passports for Mr Danesh under the name of ‘Hamid Danesh’ and passports of the children with references as ‘son of’ or ‘daughter of’ Hamid Danesh;
(5)Afghan driver’s licence, passport and bank statements with the name Hamid Danesh;
(6)Divorce document between the review applicant under the name of Hamid Danesh and his first wife; and
(7)Marriage document between Ms Mansorreh Rezai and Mr Danesh under the name of Hamid Danesh.

The Tribunal was also provided with a ‘dob-in letter’ to the effect that Mr Danesh’s true identity is Mr Ramazan Danesh, not Mr Hamid Danesh. This letter was not revealed to Mr Danesh by the Department and for reasons later outlined we give this letter no weight.
Mr Danesh did not have his other identity documents, including his business passport which allowed him to travel between Iran and Afghanistan or any registration documents with the Iranian government. He said that he disposed of them because he thought that he would not need them after they expired. This is plausible.
In finding against Mr Danesh’s claimed identity the delegate raised concerns about how Ms Fatemeh Mohammadi and the three children were able to renew the Amayesh cards (Iranian identity cards) from 2003 until 2012, particularly after the death of Mr Danesh’s brother Ramazan. This was said to cast doubt on Mr Danesh’s claim to have a brother called Ramazan.
At the hearing Mr Danesh gave a detailed account of how he came to be adopted, the relationship between his biological and adopted families, his employment and travel between Iran and Afghanistan along with the reasons for the different names.
In summary, Mr Danesh said that his twin brother was originally born ‘Hamed’ but due to a severe illness and subsequent rapid recovery during the holy month of Ramadan, the family changed his brother’s name to Ramazan. The review applicant and Ramazan grew up in different households and were not particularly close but from time to time the families had dealings with each other.
Due to Mr Danesh’s business commitments he regularly travelled to Afghanistan from Iran. During one such trip in 2000 the Iranian government was transitioning its migrant residency cards to a new format and it was agreed that in his absence his twin brother, Ramazan, would register as the head of his household on what became known as the Amayesh card. This led to the creation of the Iranian residency documents that had Ramazan as the head of household and ‘father’ to the visa applicant and other children. When it came to subsequent engagement with the Iranian government until his death Ramazan was required to continue to play the role including, for example, in the registration of two of the review applicant’s children in school.
Mr Danesh told the Tribunal that his children were registered in their schools using the identity cards of his brother and their mother. This was done because at that time the registration documents they had were already in Ramazan’s name. He recalls that the visa applicant began school in 2000 and therefore would have already had the registration cards at that stage. He referred to the process as being ‘the Amayesh registration’. Country information indicates that the registration for the Amayesh cards was in 2001.[4] At a later stage of the hearing, the review applicant said that the registration process which he missed occurred before he had his second child, Mohammad Danesh, who was born in 1996. He said that at the registration stage he only had one child.
[4] ‘Unwelcome Guests: Iran’s Violation of Afghan Refugee and Migrant Rights’, Human Rights Watch (United States), 20 November 2013, pp. 33–34 < accessed 18 February 2019.
In his evidence to the Tribunal and in the information provided to the Department, Mr Danesh repeatedly stated that he was never registered in Iran and did not have any Iranian documentation. His stay in Iran was through tourist or business visas.
There is some inconsistency between Mr Danesh’s account and country information about the timing of the Amayesh registration but it is possible Mr Danesh is confusing the Amayesh registration process with the earlier ‘BAFIA’ registration.[5] While his narrative on the face of it seems improbable, broadly speaking we accept the reasons given by Mr Danesh for having his children’s registration in his brother’s name. Relevantly, the living circumstances of the family were difficult at that time and, on Mr Danesh’s account, there was conflict between him and Fatemeh Mohammadi. This may explain why Mr Danesh did not seek to regularise the documentation and arguably this may not have been possible in any event because it would mean admitting lodging improper documents.
[5] Ibid.
While the Iranian documentation recorded Ramazan as the head of the household and father of the three children, the Afghan Tazkira document records Mr Danesh as their father. Mr Danesh explained in a detailed submission how he travelled to Afghanistan in 2015 to obtain the Tazkiras for his children.[6] In summary, Mr Danesh stated that he travelled to the Population Registry in Herat, Afghanistan, where he was told that he would need permission from the Afghan Consulate General in Tehran to proceed with applications for the children. He then took these documents to Kabul but was told that his Tazkira needed to be updated before processing his children’s applications as his did not have a photograph. He did this and using his new Tazkira, started the process again. He arranged for his children to re-lodge the documents in Tehran. Once this was done, he returned to Tehran to process the paperwork again in person. In total, this process took six months.
[6] At OSF2013/096399.
Ms Mansorreh Rezai provided evidence. She said that she never met Mr Danesh’s brother but she had heard of him through Mr Danesh’s parents. Ms Mansorreh Rezai was offered the opportunity to present any other comments about the case. She said that she had nothing further to add. She was asked whether she knew that there was an assertion made by the Department that it was possible that the visa applicant, Ms Zahra Danesh and Mr Mohammad Danesh are not his children. She responded that she believed they are Mr Danesh’s children because he, his mother and father, had spoken of them as his children.
After the first hearing the Tribunal invited Mr Danesh to provide DNA evidence in support of his claims to be the father of the visa applicant, a question that goes to the applicant’s identity. Guidance was provided on how the DNA testing should be undertaken including that it must be through a DNA testing laboratory accredited by the National Association of Testing Authorities (‘NATA’), Australia for family law testing. The applicant used DNA Solutions. DNA Solutions is registered with NATA.
The DNA report submitted by DNA Solutions for Ms Wahida Danesh explained the following:
Every person receives half of their DNA from their biological mother and half from their biological father. In cases where the mother of the child is not tested, one cannot determine the obligate maternal genetic contribution to the child. For these “motherless” cases, as can be seen in the results table on page 4, the portion of the child’s profile that matches with that of the alleged father’s is termed Possible Paternal genetic contribution (POSS.P).
The conclusion stated in the report is that the test results support Hamid DANESH being the biological father of Wahida Danesh.
Hamid DANESH is 39,564,620 times more likely to produce a child with the required alleles than a man drawn randomly from the Caucasian population. This equates to a Relative Chance of Paternity of 99.999997%.
Following a review of this material, the Tribunal formed a view that there was uncertainty about whether Ms Wahida Danesh met the criterion in cl.101.213(1)(c). The Tribunal wrote to the applicants’ representative raising this issue and was provided with correspondence addressing this issue. Following review of this correspondence, the Tribunal was not satisfied Ms Wahid Danesh met cl.101.213(1)(c) and a further hearing was arranged.
At the resumed hearing, the visa applicant gave evidence that she began her studies in 2000 within an Iranian school and continued through to the final year in the Iranian educational system by completing Year 11 in 1388 of the Persian calendar (i.e. 2010 on the Gregorian calendar). At high school, she chose to study the humanities stream. After completing her high school she was undertaking preparatory studies for university when she withdrew, dissatisfied with the course she was scheduled to begin as she wanted to study medicine. Her focus on the humanities did not meet entry requirements for her to study medicine. At some point shortly after the visa applicant withdrew from the course she was unable to renew her Amayesh card which gave her temporary residency and the chance to study at university. Unable to study at university or another Iranian institution the visa applicant registered at an Afghan school in Iran catering to Afghan refugees. Entering the Zaman Educational Institute in 2012-2014 (1391-1393 in the Persian calendar), the visa applicant studied science for two years hoping that her father would be able to re-register her and then she would be able to take the university entrance exam.
This did not eventuate. After she graduated from Zaman Educational Institute, the visa applicant did not do under take any further study as she did not have any identity documentation. The visa applicant explained that instead, she looked after her younger siblings. She has not worked since this time. She does not have work rights in Iran.
In a post hearing submission, the review applicant submitted a statutory declaration in which he stated that the visa applicant has received an apprenticeship in hairdressing, make up and nail art at a female only beauty centre without being given any wages and had to pay to receive this training after finishing. A letter from the training centre was provided in support of this claim. The letter states that the visa applicant completed various hairdressing courses between November 2014 and August 2016. For the reasons outlined later, we note that this evidence is not relevant to the issue before us on review.
The visa applicant has stated that she was never married nor been in a relationship in the past or at the time of the hearing. The visa applicant said that she did have a marriage proposal some years ago but declined the offer because she felt obliged to stay at home to look after her younger siblings.
Overall, both the review and visa applicant’s evidence during the hearings were compelling and plausible. Relevantly, the Department has accepted the validity of the Tazkiras submitted. We give the Tazkiras substantial weight in support of Mr Danesh’s claims that they present the true nature of his relationship to the visa applicant. We accept the evidence provided regarding the visa applicant’s relationship, study and work history.
Does the applicant satisfy PIC 4020(2A) and PIC 4020(1)?
PIC 4020(2A) requires an applicant to satisfy the Tribunal as to his or her identity. The review applicant and visa applicant have provided Tazkiras as evidence of their identities. The issue of whether there is a reasonable suspicion that the applicants’ Tazkiras are bogus will determine whether they satisfy PIC 4020(1) and (2A).
As already noted, the delegate found the Tazkiras to be bogus despite the Afghan Ministry of Interior confirming their validity. The reason the delegate concluded they were bogus was not based upon a finding of irregularities in the Tazkiras themselves but rather in the identity of Mr Danesh and as such indirectly his Tazkira and the Tazkira of Ms Wahida Danesh.
When considering the evidentiary value of identity documents it is possible they will have little evidentiary value because they are fake or legitimate but obtained on false premises. This being the case, there are two questions to be answered. Are we satisfied that the Tazkira of Ms Wahida Danesh and Mr Danesh genuine? Secondly, are we satisfied as to whether they were obtained legitimately, in other words, is Mr Danesh the same Hamid Danesh who was married to Ms Fatemeh Mohammadi and fathered three children as detailed in the Afghan documents?
We are satisfied that the Tazkiras are genuine and this is based on the evidence provided by the Department and Mr Danesh’s account of how he obtained the documents. Moreover, we are not satisfied there is cogent evidence before us that the information on which they are based is false or misleading. Nor are we satisfied that there is a reasonable suspicion they are false or misleading. We have formed this view for the following reasons.
First, the DNA results provide compelling evidence that Mr Danesh is the father of Ms Wahida Danesh, Ms Zahra Danesh and Mr Mohammad Danesh. This supports Mr Danesh’s narrative of events and the evidence he has consistently given to the delegate and the Tribunal.
Secondly, on balance we found Mr Danesh’s evidence about his youth, education and early life living in Iran and Afghanistan convincing, taking into account that the events being discussed were up to thirty years earlier and in countries that did not have at that stage well documented records of identity. We also found Mr Danesh’s evidence of his first marriage to the woman who is the mother of the visa applicant to be convincing. The review applicant provided detailed and spontaneous responses to questions about the children.
Thirdly, there was documentary evidence to corroborate the review applicant’s evidence. The documentary evidence, including passports, driver’s licence and Afghan identity cards, the last of which was verified by the Department, is consistent with the evidence from the review applicant that he is Hamid Danesh.
Fourthly, the Afghan Ministry of Interior has confirmed that the Tazkiras are genuine documents and the review applicant provided detailed evidence at the hearing describing how he was able to register his children with the Afghan authorities. His evidence was credible and plausible.
The only documentary evidence provided which may have been counter to the review applicant’s claims was a ‘dob-in letter’. The letter was provided in confidence to the Department in August 2014. The Department did not place a non-disclosure certificate on it, although it is evident from the letter that it was submitted under the presumption that it would be kept confidential. The letter was not put to the review applicant as the claims that were made were able to be tested through the hearing without recourse to the letter. We have given the letter no weight.
The matters relied on by the delegate, which are said to give rise to the reasonable suspicion, are matters that were explained by the applicant at the hearing and accepted by us. The delegate drew negative inferences from the conflicting documentation with the name ‘Ramazan’ being on the Iranian papers while ‘Hamid’ was on the Afghan papers. The explanation the review applicant provided was convincing. The delegate also gave weight to the absence of an explanation about how the visa applicant and her siblings could continue to have their registration cards renewed after the death of Ramazan. The review applicant said that he had returned to Iran and adopted Ramazan’s identity to ensure the continued registration. Movement records from the Department record his regular return. The delegate questioned the genuineness of bank statements provided by Mr Danesh because it was noted there appeared to be different pens and handwriting on both statements. We give this little weight because this assessment has not been undertaken by an expert but rather the delegate from lay observations. The delegate further noted that for the bank account to be opened the applicant must have been registered with the Iranian government. Mr Danesh gave evidence that he was able to open the account because he had a business visa.
Having had regard to all of this evidence we are satisfied about the identity of Ms Wahida Danesh and Mr Danesh. We are therefore satisfied PIC 4020(2A) has been met. Furthermore, we are not satisfied that there is evidence the Tazkiras are bogus or that they contain false and misleading information. As such, we are satisfied PIC 4020(1) has also been met.
Has a visa previously been refused on the basis of a failure to satisfy PIC 4020?
PIC 4020(2) and (2B) require that neither the applicant nor any family unit member have been refused a visa because of the provision of a bogus document and respectively a failure to satisfy the identity requirements. This requirement does not apply to a person who was under 18 at the time the application for the refused visa was made.
Neither the review applicant nor the visa applicant have been refused a visa previously because of a failure to satisfy these identity requirements.
Therefore PIC 4020(2) and (2B) are met.
On the basis of the above, we are satisfied the visa applicant satisfies PIC 4020 for the purposes of cl.101.223.
Does the visa applicant meet cl.101.21?
The critical requirements of cl.101.21 are that the visa applicant must be the dependent child of her sponsor who is an Australian citizen, the holder of a permanent visa or an eligible New Zealand citizen.
In the case of a dependent child over the age of 18, r.1.03 defines being dependent as being a person who:
(i)has been for a substantial period immediately before that time, wholly or substantially reliant on the other person for financial support to meet the first person’s basic needs for food, clothing and shelter; and
(ii)the first person’s reliance on the other person is greater than any reliance by the first person on any other person, or source of support, for financial support to meet the first person’s basic needs for food, clothing and shelter.
The review applicant provided evidence at the Tribunal hearing that he had rented a house for his children, including the applicant, for over five years to live in. The visa applicant confirmed this explaining that she lived for two years with her paternal grandparents and then five on their own. He provided documentary evidence of money transfers in 2014 and 2017 and stated that he has been sending money on a monthly basis since he became the children’s guardian. The reason records are available during those years arises from the timing of the review process. The review applicant’s biological brother, who resides in Iran, wrote in a written statement that the rented houses are in his name as the law does not allow houses to be rented to ‘girls’. The review applicant explained that the visa applicant does not have work rights and has not worked while in Iran. This was confirmed by the visa applicant. We accept this as fact.
As such, we are satisfied the visa applicant is ‘dependent’ within the meaning of cl.101.211(1)(a) as informed by the definition in r.1.03(a).
The DNA Solutions testing was prepared in accordance with the relevant guidelines. DNA Solutions verified the identity of the applicant and the review applicant prior to testing. The reports are authoritative and carry significant weight. Moreover, the review applicant’s evidence provided a satisfactory explanation to the otherwise seemingly extraordinary situation. We therefore find that the visa applicant is the child of the review applicant.
For these reasons we are satisfied that the requirements of cl.101.211 are met in respect of visa applicant.
There is no dispute that the review applicant is a permanent resident of Australia. As such cl.101.212 is met.
Clause 101.213 sets out the criteria that apply when an applicant has turned 18 and it is apparent that the criteria is essentially directed to the question of whether an applicant for a Child visa is dependent on the sponsor and does not (or should not) have an independent means of support.
Clause 101.213 provides:
(1) If the applicant has turned 18:
(a) the applicant:
(i) is not engaged to be married; and
(ii) does not have a spouse or de facto partner; and
(iii) has never had a spouse or de facto partner; and
(b) the applicant is not engaged in full-time work; and
(c) subject to subclause (2), the applicant has, since turning 18, or within 6 months or a reasonable time after completing the equivalent of year 12 in the Australian school system, been undertaking a full-time course of study at an educational institution leading to the award of a professional, trade or vocational qualification.
(2) Paragraph (1)(c) does not apply to an applicant who, at the time of making the application, is a dependent child within the meaning of subparagraph (b)(ii) of the definition of dependent child.

We are satisfied that the visa applicant is not, and was not at the time of the application, engaged, married or in a de facto relationship or in such a relationship in the past. We are also satisfied that at the time of the application the visa applicant had not engaged in full time work. She has given evidence, which we accept, that she has never engaged in full time work in Iran because she does not have the work rights to do so.
There is no dispute that the visa applicant does not fall within the exemption in cl.101.213(2). She was not, at the time of the application, a dependent child within the meaning of the definition for dependent child in r.1.03(b)(ii). Relevantly, she was not ‘incapacitated for work due to the total or partial loss of the child's or step-child's bodily or mental functions’. As such, for the visa applicant to satisfy the criteria in cl.101.213 we must be satisfied that she meets the criterion in paragraph (1)(c).
There are a number of aspects to cl.101.213(1)(c). First, the applicant must be engaged in full time study within six months or within a reasonable time after completing the equivalent of Year 12. Secondly, the applicant must be studying at an educational institution. Thirdly, the full time study must be ‘leading to’ an award or qualification and, fourthly, that award or qualification must be of a professional, trade or vocational nature.
The critical question in this case is what is meant by ‘undertaking a full-time course of study at an educational institution leading to the award of a professional, trade or vocational qualification’.
There is nothing in the Regulations which provides any further definition or guidance on the interpretation of this provision. These words therefore should be given their ordinary English meaning.
In Sok v MIMIA (2005) FMCA 190 Reithmuller FM, as he then was, considered the question of whether the course of study undertaken by the applicant in that case fell within the meaning of the cl.101.213(1)(c) and whether it was undertaken within a reasonable period of time after the applicant completed his schooling. His Honour found (at [15] and [16]) as follows:
15.Regulation 101.213(1)(c) appears to contemplate a single full time course of study at a specific educational institution leading to an award of a qualification. To read this clause, all of the parts of which are in the singular, as including multiple courses of study appears to me to be beyond the clear terms of the regulation.
16. The regulation looks to a particular course of study at an educational institution, such as a degree or technical college qualification (for example a qualification as a draftsman). The clause may well extend to cover a qualification that is obtained from an institution or accreditation body upon satisfaction of a variety of criteria, some of which may be fulfilled by undertaking courses at alternative institutions (in much the same way as one can obtain credits for some subjects towards a university degree by undertaking subjects at alternative institutions). The facts in this case do not reach this point. In the circumstances I find no error of law in the way in which the MRT has interpreted this clause.
It is clear that his Honour has taken the ordinary meaning of the words ‘an award of a professional, trade or vocational qualification’ to mean a qualification beyond a high school certificate, being some type of a tertiary qualification.
It is also critical that the full time study must be ‘leading to’ the relevant qualification or award. The words ‘leading to’ suggest there must be a direct causal connection between the study and the qualification. As noted by Reithmuller FM, a qualification may be obtained by undertaking a number of courses at alternative institutions but the inference is that each of those courses would be building blocks towards the ultimate qualification.
This phrase was considered by Davies J in Rao v Minister for Immigration and Multicultural Affairs [1998] FCA 193 in respect of a Class 816 (special permanent) entry permit, which provided that an applicant would meet the requirements of the visa if, amongst other things, the applicant ‘had been enrolled during the 1993 academic year in an accredited course leading to a trade certificate advanced certificate, associate diploma, diploma, degree or higher degree’ under paragraph 816. 721(2)(c) of the Migration Regulations 1958. His Honour observed:
The meaning of an ordinary English word used in its ordinary sense is a question of fact and so is the question whether a particular set of facts comes within that description.
………………………………………………….
I would accept that the words "leading to" import some flexibility into the regulation. The words "leading to" are not technical words. Nevertheless, the course in which the student is enrolled must lead to one of the nominated certificates. The evidence from the Bankstown TAFE was to the contrary.
The regulation requires that one can postulate of the course in which the student is enrolled that it leads to one of the specified certificates. It is not sufficient that the student is studying with the ultimate aim of achieving such a certificate. The regulation specifies not the intent of the student but a characteristic of the course in which the student is enrolled…
Accordingly, in our view, to satisfy cl.101.213(1)(c) an applicant would need to be engaged in full time study of a course or courses that would result in a tertiary qualification or award in the nature of a professional, trade or vocational qualification.
At the time of the application, 30 June 2013, the visa applicant was studying at Zaman Educational Institute at the equivalent level of Year 10 or Year 11 (due to the final year in an Iranian high school being Year 11 the applicant’s studies in Year 10 could be equated to the equivalent of the second final year of an Australian high school, which would be Year 11). The applicant’s full time course of study was leading to a high school certificate qualification, rather than a professional, trade or vocational qualification. It was contended that the applicant had studied this course in the hope that she could qualify for further study and admission to a tertiary educational institution.
However, in our view, this is not what is contemplated by cl.101.213(1)(c) which expressly provides that the full-time study in an educational institution must lead to the further qualification or award. Full time study which may lead to further tertiary education which may then lead to a professional, trade or vocational award or qualification is beyond what we consider to be the direct relationship intended between the study and the award or qualification. This much is clear from the decisions in Sok and Rao.
The applicant submitted that she began in November 2014 an apprenticeship in hairdressing, make up and nail art at a female only beauty centre. We have not examined or considered this evidence, which was provided after the hearing, because it is not relevant to cl.101.213(1)(c) which is concerned with the circumstances of the applicant at the time of application rather than at the time of decision.
Accordingly, we find that cl.101.213(1)(c) is not met.
Ministerial Intervention
Under s.351 of the Act, the Minister may substitute for a decision of the Tribunal under s.349 of the Act another more favourable decision if he thinks that it is in the public interest to do so. The guidelines relating to the Minister’s discretionary power under s.351 are set out in the Department’s Procedural Advice Manual 3 (PAM3) ‘Act – Ministerial powers – Minister’s guidelines on Ministerial powers (s 345, s 351, s 417, s 454 and s 501J)’. The guidelines indicate that cases should be referred to the Minister where:
§circumstances not anticipated by relevant legislation; or clearly unintended consequences of legislation; or the application of relevant legislation leads to unfair or unreasonable results in a particular case
§there are strong compassionate circumstances that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship to an Australian citizen or an Australian family unit, where at least one member of the family is an Australian citizen or Australian permanent resident
We recommend that if visas are granted for Wahida Danesh’s siblings the matter be referred to the Minister for consideration on the following grounds.
First, the policy behind this provision is to ensure that visa applicants sponsored by Australian citizens or residents are genuine dependents and that their full-time study is meaningful and not simply a strategy to ensure that children who have turned 18 and could be independent remain within the status of dependency for the purposes of the criterion. In this case, we accept that at the time of the application Ms Wahida Danesh, although over 18 years old, was dependent on her father. She had been studying, although because of no fault of her own, she could not undertake full time study leading to a professional, trade or vocational award or qualification, could not work, because she did not have work rights, and felt restrained from marrying or entering into a relationship because of her obligations to her younger siblings. The regulation, as it is currently written, did not anticipate the circumstances faced by refugees temporarily residing in third countries who have limited access to educational services. In the circumstances, this seems like an unfair result.
Secondly, the visa applicant’s two siblings, with whom she has lived for over the past six years in a carer role have had their Child (Class AH) (Subclass 101) visas reviewed by the Tribunal and remitted for reconsideration by the Department. Pending the Department’s review it is possible that the brother and sister will be granted visas and travel to Australia. The applicant’s mother has not been a part of her life for seven years since guardianship was vested by Iranian law to the father. The visa applicant’s father lives in Australia and is a permanent resident. The father’s biological brother is not in a position to provide support for the visa applicant as his family is taking care of their elderly parents and the review applicant has stated that it would be unwelcomed by his brother to take on the additional responsibility. This seems to be unduly harsh, would split the family and would impose continuing hardship on Mr Danesh, who is an Australian permanent resident.
Having regard to the applicant’s circumstances, and having considered the ministerial guidelines relating to the Minister’s discretionary power under s.351, the Tribunal recommends this case should be referred to the Department to be brought to the Minister’s attention.
DECISION
The Tribunal affirms the decisions not to grant the visa applicant a Child (Migrant) (Class AH) visa.
Jan Redfern
Deputy President
Denis Dragovic
Senior Member
ATTACHMENT
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.
Migration Regulations 1994
1.03 Definitions
dependent child, of a person, means the child or step-child of the person (other than a child who is engaged to be married or has a spouse or de facto partner), being a child who:
(a)has not turned 18; or
(b)has turned 18 and:
(i)is dependent on that person; or
(ii)is incapacitated for work due to the total or partial loss of the child’s bodily or mental functions.
1.05A Dependent
(1)      Subject to subregulation (2), a person (the first person) is dependent on another person if:
(a)at the time when it is necessary to establish whether the first person is dependent on the other person:
(i)the first person is, and has been for a substantial period immediately before that time, wholly or substantially reliant on the other person for financial support to meet the first person’s basic needs for food, clothing and shelter; and
(ii)the first person’s reliance on the other person is greater than any reliance by the first person on any other person, or source of support, for financial support to meet the first person’s basic needs for food, clothing and shelter; or
(b)the first person is wholly or substantially reliant on the other person for financial support because the first person is incapacitated for work due to the total or partial loss of the first person’s bodily or mental functions.
…
Schedule 2
101.21 Criteria to be satisfied at time of application
101.211
(1) The applicant:
(a) is a dependent child of:
(i) an Australian citizen; or
(ii) the holder of a permanent visa; or
(iii) an eligible New Zealand citizen; and
(b) subject to subclause (2), has not turned 25; and
(c) either:
(i) is:
(A) the child (other than an adopted child);
(B) the step-child within the meaning of paragraph (b) of the definition of step-child;
of the Australian citizen, holder of a permanent visa or eligible New Zealand citizen mentioned in paragraph (a); or
(ii) was adopted overseas by a person who, at the time of adoption, was not an Australian citizen, a holder of a permanent visa or an eligible New Zealand citizen, but later became an Australian citizen, a holder of a permanent visa or an eligible New Zealand citizen.
(2) Paragraph (1)(b) does not apply to an applicant who, at the time of making the application, was a dependent child within the meaning of subparagraph (b)(ii) of the definition of dependent child.
101.212
The applicant is sponsored by a person who:
(a) has turned 18; and
(b) is an Australian citizen, a holder of a permanent visa or an eligible New Zealand citizen; and
(c) is:
(i) the Australian citizen, holder of a permanent visa or eligible New Zealand citizen mentioned in subclause 101.211(1); or
(ii) the cohabiting spouse or de facto partner of the Australian citizen, holder of a permanent visa or eligible New Zealand citizen mentioned in subclause 101.211(1).
101.213
(1) If the applicant has turned 18:
(a) the applicant:
(i) is not engaged to be married; and
(ii) does not have a spouse or de facto partner; and
(iii) has never had a spouse or de facto partner; and
(b) the applicant is not engaged in full-time work; and
(c) subject to subclause (2), the applicant has, since turning 18, or within 6 months or a reasonable time after completing the equivalent of year 12 in the Australian school system, been undertaking a full-time course of study at an educational institution leading to the award of a professional, trade or vocational qualification.
(1)Paragraph (1)(c) does not apply to an applicant who, at the time of making the application, is a dependent child within the meaning of subparagraph (b)(ii) of the definition of dependent child.
……………………..
101.223
The applicant:
(a) satisfies public interest criteria 4001, 4002, 4003, 4004, 4007, 4009, 4020 and 4021; and
(b) if the applicant had turned 18 at the time of application—satisfies public interest criterion 4019.
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).
…
(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).
…
(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.
…

[2019] AATA 3869

19 August 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Natural Justice

Statutory Construction

Appeal