Danesh (Migration)

Danesh (Migration) [2019] AATA 1761 (25 June 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
REVIEW APPLICANT:  Mr Hamid Danesh
VISA APPLICANTS:  Mr Mohammad Reza Danesh
Miss Zahra Danesh
CASE NUMBER:  1603897
DIBP REFERENCES:  2013/096399-400-401 and OSF2013/096399
MEMBERS:Deputy President Jan Redfern (Presiding)
Senior Member Denis Dragovic

DATE:25 June 2019
PLACE OF DECISION: Sydney
DECISION:The Tribunal remits the applications for Child (Migrant) (Class AH) visas for reconsideration, with the direction that the visa applicants meet the following criteria for Subclass 101 (Child) visas:
·cl.101.21 of Schedule 2 to the Regulations;
·public interest criterion 4020 for the purposes of cl.101.223 of Schedule 2 to the Regulations.

Statement made on 25 June 2019 at 9:43 am

CATCHWORDS
MIGRATION – Child (Migrant) (Class AH) (Subclass 101) visa – refusal of visa application on basis that the visa applicants did not meet the criteria in cl 101.21 – visa applicants were under 18 years at the time of application – financial and emotional support provided by review applicant for a substantial period – DNA test confirms biological children of review applicant – Tribunal satisfied visa applicants are the dependent children of the review applicant who is a permanent resident of Australia – whether applicants satisfy PIC 4020(2A) – review applicants’ evidence regarding marriage, children and surrounding events was compelling – identify documents are genuine and corroborate evidence – Tribunal satisfied of identity of the review applicant and visa applicants – remitted for reconsideration with direction

LEGISLATION
Migration Act 1958 (Cth), ss 5(1), 29, 30, 31, 65
Migration Regulations 1994 (Cth), rr 1.03, 1.03(a), 1.05A, Schedule 2, cls 101.21, 101.211(1)(a), 101.213, 101.223, 101.226, 101.3, Schedule 4, cls 4017, 4018, 4020, 4020(1), 4020(4), 4020(2A)

CASES
Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577
Shi v Migration Agents Registration Authority [2008] HCA 31
Singh v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCCA 1435
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)
Human Rights Watch, ‘Unwelcome Guests: Iran’s Violation of Afghan Refugee and Migrant Rights’ (20 November 2013)
STATEMENT OF DECISION AND REASONS
BACKGROUND

This is an application for review of decisions made by a delegate of the Minister for Immigration on 29 February 2016 to refuse to grant the applicants Child (Migrant) (Class AH) visas under s.65 of the Migration Act 1958 (the Act). The visa applicants applied for the visas 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 visa. The visa applicants, Mohammad Reza Danesh and Zahra Danesh, are said to be the children of the review applicant from his first marriage in Afghanistan. Mr Hamid Danesh sponsored their application. At the time of the application the visa applicants were 17 and 8 years old respectively. The review applicant also lodged an application for a visa for Wahida Danesh, who is said to be the review applicant’s eldest daughter and the sibling of Mohammad and Zahra Danesh.
On 29 February 2016 a delegate of the Minister refused these applications on the basis that the visa applicants did not meet certain requirements of the 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 was invited to attend a hearing on 15 May 2018 and appeared before the Tribunal on 15 May 2018 to give evidence and present arguments. The Tribunal also received oral evidence from Mansorreh Rezai, his second wife and step-mother of the visa applicants. The Tribunal hearing was 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.
On 16 May 2018 the Tribunal requested, and the review applicant agreed to provide, DNA evidence of his claimed biological relationship with the visa applicants. The results of this testing was provided to the Tribunal on 23 October 2018. The test results support findings that the review applicant is the father of each of the visa applicants with a level of accuracy of at least 99.999994%. This is a critical matter in the determination of this review.
At the time of the application for the Class AH visa 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 this hearing, the applicant’s migration representative requested further time to make submissions on whether Wahida Danesh met the relevant criteria for the visa and until this information is provided, we cannot complete the review of the refusal of Wahida Danesh’s visa application. As such, these reasons are confined to the review of the delegate’s decision to refuse the visa applications of Mohammad and Zahra Danesh.
In essence, we are satisfied that the visa applicants, Mohammad and Zahra Danesh, meet the time of decision criteria for the visa, relevantly, that they are the dependent children of the review applicant. We are also satisfied about their identity and we are satisfied there is no evidence, apart from unsubstantiated speculation, that the identity documents provided are false or misleading. We have not assessed the other requirements for the visa as these matters were not considered by the delegate.
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). There are prescribed classes of visas as set out in the Migration Regulations 1994 (the Regulations) (s 31). 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 the Regulations. Part 101 is extracted in 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 clause 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 has not turned 25;
(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.
The definition for a ‘dependent child’ is set out in r 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 clause 101.223, which includes public interest criterion (PIC) 4020.
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.
14.     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.
The definition of ‘bogus document’ in subsection 5(1) requires that there be a reasonable suspicion the document is bogus, based on objective circumstances, not merely speculation or conjecture (refer Singh v MIMAC [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 (refer Sun v MIBP [2016] FCAFC 52 per Flick and Rangiah JJ at [86]).
DECISIONS UNDER REVIEW
The delegate made separate decisions for each applicant but the grounds for refusal were in similar terms. Because there are common factual and legal issues in respect of each application, we have recorded our reasons in one decision for visa applicants, Mohammad and Zahra Danesh. As already noted, we have not concluded the review for the refusal of the visa of Wahida Danesh.
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] AAT, Conducting Migration and Refugee Reviews, paragraph 8.2 dated 1 August 2018:
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’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 sub-clause 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 proceeds to engage with the review applicant’s claims and counter evidence regarding his employment background, residency in Afghanistan and Iran, marriage and children. Under the heading ‘Assessment’ the decision references PIC 4020(1) which relates to circumstances in which bogus documents are submitted to the Department. The delegate found that the visa applicants submitted false documents, namely their 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 the visa applicants. 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 applicants and their status of residing in Iran. The delegate was not satisfied about the applicants’ identities and therefore was not satisfied the applicants 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.
The delegate also noted that the applicants requested the delegate consider a waiver for compelling and compassionate circumstances. The delegate refused this request for the reason that he remained unconvinced of the applicants’ identities and the option to consider a waiver under PIC 4020(4) does not extend to circumstances covered under PIC 4020(2A).
The decision record concluded under the heading ‘Decision’ as follows:
Based upon information provided in the visa application and the assessments above, I am not satisfied that the applicant [name] meets the following requirements: Child (Child Migrant) (Class AH) Subclass 101), clause 101.226, and 101.3
Clause 101.226, which is a time of decision criteria, provides:
If the applicant has not turned 18, public interest criteria 4017 and 4018 are satisfied in relation to the applicant.
Public interest criteria 4017 and 4018 provide:
4017 The Minister is satisfied of 1 of the following:
(a) the law of the applicant’s home country permits the removal of the applicant;
(b) each person who can lawfully determine where the applicant is to live consents to the grant of the visa;
(c) the grant of the visa would be consistent with any Australian child order in force in relation to the applicant.
4018 The Minister is satisfied that there is no compelling reason to believe that the grant of the visa would not be in the best interests of the applicant.
It is unclear how these criteria were relevant to the applications. First, these criteria could not have been relevant to either Mohammad or Wahida Danesh because both were over 18 at the time of the delegate’s decision. They may have been relevant to Zahra, who is under 18 years old, but it was not apparent from the delegate’s decision how these criteria were not satisfied.
Clause 101.3 is a secondary criteria for applicants who are members of the family unit of a person who satisfies the primary criteria. It is unclear how this criterion would apply as all applications were made as primary applicants.
In summary, the delegate has referenced four different clauses (101.21, 101.223, 101.226, 101.3) as reasons for not granting the visa. However, the decision engages primarily with issues related to PIC 4020, which arises through clause 101.223.
While it is not entirely clear, on a fair reading of the decision the basis for the refusal to grant a visa to each of the visa applicants appears to be because the delegate was not satisfied about the identity of the applicants. The delegate was not satisfied about their identity because he was not satisfied about the identity of the review applicant, who is their sponsor. This appears to be the basis on which the delegate found the applicants did not meet the criteria in clause 101.21.
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 to be restricted to those criteria or issues on which the delegate made an adverse decision.
In this case the issues raised are whether the applicants meet the criteria in clauses 101.21 and 101.223. A finding in respect of clause 101.21 will inform findings in respect of clause 101.223. The delegate found that the applicants did not satisfy PIC 4020(2A). The delegate also found that the Tazkiras provided by the applicants were false and misleading. We take this to mean that the Tazkiras were found to be bogus for the purposes of PIC 4020(1).
CONSIDERATION OF CLAIMS AND EVIDENCE
Outline of the evidence and claims
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 to Iran in 1978. Mr Danesh’s biological family also subsequently fled from Afghanistan to Iran in 1979. In 1991 Mr Danesh married Ms Fatemeh Mohammadi, with whom he had his first child, Wahida, in 1993. A second child, Mohammad, followed in 1996. The relationship between Mr Danesh and his wife became difficult and while they did not formally separate, Mr Danesh started a relationship with Mansoorreh Rezai in 2002. They later married but Mr Danesh and Fatemeh Mohammadi had a third child in 2005, being Zahra Danesh, and this caused problems between Mr Danesh and Mansorreh Rezai. By August 2005 Mr Danesh was divorced from both but he reconciled with Mansorreh Rezai and they had a child together in March 2006. They remarried in 2009 and in 2010 had their second child.
Mr Danesh came to Australia in 2011 as the partner of Mansorreh Rezai, who had been previously granted a special humanitarian visa.
According to 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 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 Afghani 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 Zahra 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 hearing.

In support of Mr Danesh’s overall narrative he provided the following documents prior to the hearing:
(1)An Afghan identity card which lists him as the father of the three children. These were confirmed to be genuine through checks made by the Department;
(2)Statement from Mansorreh Rezai that he is the father of the three children through his first marriage;
(3)Afghan passports for the children that identify the visa applicants 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 and his first wife with the name of Hamid Danesh;
(7)Marriage document between Mr Danesh and Mansorreh Rezai with 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 Ramazan Danesh, not 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 earlier 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 Fatemeh Mohammadi and his 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.
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 period 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 applicants. 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, for the registration of two of the 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 his oldest daughter, Wahida, began school in 2000 as such they 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, 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 applicants, 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 these were done returned to Tehran to process the paperwork again in person. This process took six months.
[6] At OSF2013/096399.
Overall, Mr Danesh’s evidence during the hearing was compelling and plausible. Relevantly, the Department has accepted the validity of the Tazkiras submitted by the applicants and we give the Tazkiras substantial weight in support of Mr Danesh’s claims that they present the true nature of his relationship to the applicants.
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. 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 applicants 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 hearing the Tribunal invited Mr Danesh to provide DNA evidence in support of his claims to be the father of the visa applicants, a question that goes to each of the applicant’s identities. 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 Zahra 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 Zahra Danesh.
Hamid DANESH is 17,873,959 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 99.999994%.
The DNA report provided for Mohammad was in similar terms but the degree of accuracy in respect of Mohammad was 99.999999%.
Do the applicants meet clause 101.21?
The critical requirements of clause 101.21 are that each of the applicants must be the dependent child of their sponsor who is an Australian citizen, the holder of a permanent visa or an eligible New Zealand citizen.
Mr Danesh provided evidence at the Tribunal hearing that he had rented a house for his children to live in and continues to provide financial support to them. Furthermore, there is no dispute that Mohammad and Zahra were under 18 years of age at the time the application was made. As such, we are satisfied they are ‘dependent’ children within the meaning of clause 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 each applicant and the review applicant prior to testing. The reports are authoritative and carry significant weight. Moreover, Mr Danesh’s evidence provided a satisfactory explanation to the otherwise seemingly extraordinary situation. We therefore find that each of the visa applicants is the child of the review applicant.
For these reasons we are satisfied that the requirements of clause 101.211 are met in respect of Mohammad and Zahra Danesh.
There is no dispute that Mr Hamid Danesh is a permanent resident of Australia. As such clause 101.212 is met.
Mohammad and Zahra Danesh were under 18 years old at the time the application was made. As such clause 101.213 is met.
Accordingly, we find that Mohammad and Zahra Danesh meet the requirements in clause 101.21.
Do the applicants satisfy PIC 4020(2A)?
PIC 4020(2A) requires an applicant to satisfy the Tribunal as to his or her identity. The applicants have provided Tazkiras to provide 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 of the visa applicants 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 Tazkiras and Tazkiras of Mohammad and Zahra 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 Tazkiras of Mohammad and Zahra 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 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’ 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 the visa applicants. 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 applicants to be convincing. The 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 Mr Danesh 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 applicants could continue to have their registration cards renewed after the death of Ramazan. The 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 Mohammad and Zahra Danesh and Mr Danesh. We are therefore 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(2A)?
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 Mr Danesh nor the visa applicants 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, the applicants satisfy PIC 4020 for the purposes of clause 101.223.
DECISION
The Tribunal remits the applications for Child (Migrant) (Class AH) visas for reconsideration, with the direction that the visa applicants meet the following criteria for Subclass 101 (Child) visas:
·cl.101.21 of Schedule 2 to the Regulations;
·Public Interest Criterion 4020 for the purposes of cl.101.223 of Schedule 2 to the Regulations.
Jan Redfern
Deputy President
Denis Dragovic
Senior Member
ATTACHMENT
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.
101.22 Criteria to be satisfied at time of decision
101.221
(1) In the case of an applicant who had not turned 18 at the time of application, the applicant:
(a) continues to satisfy the criterion in clause 101.211; or
(b) does not continue to satisfy that criterion only because the applicant has turned 18.
(2) In the case of an applicant who had turned 18 at the time of application:
(a) the applicant:
(i) continues to satisfy the criterion in clause 101.211; or
(ii) does not continue to satisfy that criterion only because the applicant has turned 25; and
(b) the applicant continues to satisfy the criterion in clause 101.213.
…
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.
…
101.226
If the applicant has not turned 18, public interest criteria 4017 and 4018 are satisfied in relation to the applicant.
…
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.
…
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.
…
s.65 Decision to grant or refuse to grant visa
(1) Subject to sections 84 and 86, after considering a valid application for a visa, the Minister:
(a) if satisfied that:
(i) the health criteria for it (if any) have been satisfied; and
(ii) the other criteria for it prescribed by this Act or the regulations have been satisfied; and
(iii) the grant of the visa is not prevented by section 40 (circumstances when granted), 91W (evidence of identity and bogus documents), 91WA (bogus documents and destroying identity documents), 91WB (applications for protection visas by members of same family unit), 500A (refusal or cancellation of temporary safe haven visas), 501 (special power to refuse or cancel) or any other provision of this Act or of any other law of the Commonwealth; and
(iv) any amount of visa application charge payable in relation to the application has been paid;
is to grant the visa; or
(b) if not so satisfied, is to refuse to grant the visa.
….
s.29 Visas
(1) Subject to this Act, the Minister may grant a non-citizen permission, to be known as a visa, to do either or both of the following:
(a) travel to and enter Australia;
(b) remain in Australia.
…
s.30 Kinds of visas
(1) A visa to remain in Australia (whether also a visa to travel to and enter Australia) may be a visa, to be known as a permanent visa, to remain indefinitely.
(2) A visa to remain in Australia (whether also a visa to travel to and enter Australia) may be a visa, to be known as a temporary visa, to remain:
(a) during a specified period; or
(b) until a specified event happens; or
(c) while the holder has a specified status.
…
s.31 Classes of visas
(1) There are to be prescribed classes of visas.
Note: See also subsection 35A(4), which allows additional classes of permanent and temporary visas to be prescribed as protection visas by regulations made for the purposes of this subsection.
…

[2019] AATA 1761

25 June 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Statutory Construction

Natural Justice

Appeal