Di Paulo (Migration)

[2020] AATA 2535

Di Paulo (Migration) [2020] AATA 2535 (25 May 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Antonio Di Paulo

CASE NUMBER:  1919696

HOME AFFAIRS REFERENCE(S):          BCC2019/674927

MEMBER:Stavros Georgiadis

DATE:25 May 2020

PLACE OF DECISION:  Adelaide

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 417 (Working Holiday) visa.

Statement made on 25 May 2020 at 1:07am

CATCHWORDS
MIGRATION – cancellation – Subclass 417 (Working Holiday) visa – incorrect information – cancellation of previous subclass 601 visa under different name – legal change of name for personal reasons – not deliberate attempt to deceive immigration – decision under review set aside

LEGISLATION

Migration Act 1958, s 116
Migration Regulations 1994, r 2.43

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 17 July 2019 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 417 (Working Holiday) visa under s.116 of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa under s.116(1)(g) on the basis that the Minister reasonably suspects that the visa has been obtained as a result of the fraudulent conduct of any person: r.2.43(1)(o): per the grounds set out in the Notice of Intention to Consider Cancellation (NOICC) Form 1099 of 17 July 2019. Prescribed grounds for cancellation are set out in r.2.43 of the Migration Regulations 1994 (the Regulations). The issue in the present case is whether the ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. The applicant appeared before the Tribunal on 19 February 2020 to give evidence and present arguments. The Tribunal also received oral evidence from his de facto partner, Ms Anisa Lekaj. The Tribunal hearing was conducted with the assistance of an interpreter in the Italian and English languages.

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

5. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. Under s.116 of the Act, the Minister may cancel a visa if he or she is satisfied that certain grounds specified in that provision are made out. Relevantly, to this case, these include the ground set out in s.116(1)(g) being that the Minister reasonably suspects that the visa has been obtained as a result of the fraudulent conduct of any person: r.2.43(1)(o). If satisfied that the ground for cancellation is made out, the decision maker must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances, which may include matters of government policy.

   Does the ground for cancellation exist?

   s.116(1)(g) - prescribed ground

7. A visa may be cancelled under s.116(1)(g) if the Minister is satisfied a prescribed ground for cancelling the visa applies to the applicant. As aforementioned, the prescribed grounds for cancellation are set out in r.2.43 of Regulations. In the present case, the ground for the cancellation is r.2.43(1)(o): that the Minister reasonably suspects that the visa has been obtained as a result of the fraudulent conduct of any person.

8. On 17 July 2019, the Department of Home Affairs issued a Notice of Intention to Consider Cancellation (NOICC) Form 1099, setting out the grounds upon which the Department believed that the applicant had engaged in fraudulent conduct - by knowingly providing false information in his application to enter Australia by declaring ‘NO’ to the following questions on his Working Holiday (Subclass 417) visa application:

   ·Are you known by any other names?

   ·Do you hold any other citizenship than shown as your passport country above?

   ·Has the applicant ever been removed, deported or excluded from any country (including Australia)?

   ·Has the applicant ever been associated with a person, group or organisation that has been or is involved in criminal conduct?

9. The background of this matter in brief, is as follows:

   ·The delegate determined the applicant had in fact previously travelled to Australia (under a different identity) as the holder of a Subclass 601 visa. That Subclass 601 visa was cancelled on 6 July 2013 at Melbourne Airport under s.116(1)(g) (r.2.43(1)((ea)) before the applicant was immigration cleared.

   ·The applicant’s Subclass 417 visa was cancelled under s.116(1)(g), after the delegate determined the ground in r.2.43(1)(o) existed - i.e. that the Minister reasonably suspects that the visa has been obtained as a result of the fraudulent conduct of any person.

10. The applicant submits that he had no intention of misleading the Department and did not deliberately or knowingly engage in any fraudulent conduct to obtain his Working Holiday visa. The applicant seeks that the Tribunal set aside the decision under review on the basis of oral evidence provided and written submissions dated 12 February 2020 and further written submissions dated 27 February 2020.

11. Mr Di Paulo was born as "Elton GJONEJ" in Rush Shkoder (Albania) on 6 April 1988. He migrated to Italy with his family around the age ten years and subsequently became a naturalised Italian citizen. He submits that growing up, he was teased and ridiculed by classmates because of his name which was closely associated to that of entertainer, Elton John. He submits they would call him by homosexual slurs. The applicant submits that as a working adult, the ridicule and mockery did not stop. He still faced constant homosexual remarks from his colleagues and was embarrassed to introduce himself to strangers.

12. The applicant’s submission is that after 25 years of enduring such torment, he (as Elton Gjonej) applied for a legal change of name in 2013 because of the psychological impact that he had suffered due to his name. At the hearing the applicant explained that he could not undertake the name change in Italy until he was accepted as a citizen of that country which occurred in about 2011 or 2012. The name change took effect from 29 January 2015 once Elton Gjonej's application was approved by the local government (Prefecture of Padua Territorial Government Office, Italy). The applicant submits that henceforth, he regained control of his life and stopped the bullying he suffered by embracing his new legal name of Antonio DI PAULO. He submits that this change in name also allowed him to better assimilate into Italian culture as it eliminated racial prejudice based on his surname.

13. On 27 February 2016, the applicant received his new passport under his new legal name Antonio Di Paulo. On 18 March 2018, he was granted his first Working Holiday (Class TZ Subclass 417) visa valid until 27 February 2019. He arrived in Australia on 3 April 2018 on that first Working Holiday Subclass 417 visa.  On 27 Feb 2019, the applicant was granted a second Working Holiday Subclass 417 visa approved until 3 April 2020, before it was cancelled.  The Department’s Movement Details record that he had first arrived in Australia on 1 December 2012 on a (Class UD) Subclass 976 visa.

14. The applicant explains in his translated statement that he had made his first application for the Subclass 417 Working Holiday visa online by himself with his de facto partner Miss Anisa Lekaj. He explains that as they both were not fluent in English, they relied on Google Translate to complete the entire application. The submission is that therefore, he answered as truthfully as he could, based on his comprehension of the questions at the time.

15. As for the applicant’s second Working Holiday visa application, the applicant explains in his statement that he engaged a migration agent based in Western Australia to assist him stating: "The application was compiled over the phone and I was answering the questions I was asked in the same way as the previous application, to answer I read the original application, but even in this case I did not realise the error." The applicant emphasises that he ‘answered these questions in good faith and did not wish to deceive anyone or blame his previous Migration Agent.’

16. The applicant submits that this information is volunteered to explain why his declarations on his second Working Holiday visa is unchanged despite the engagement of a Migration Agent. The applicant asserts he acted in good faith believing that his declarations were correct and that the Department of Home Affairs had all the necessary information about him in their database and were satisfied with the declarations that he had made in his first Working Holiday visa application.

17. The reasons and explanations for the applicant’s response to each question are set out in detail in the written submissions of 12 February 2020 as follows: submitting these demonstrate his ‘continued genuine conduct’ in dealing with the Department of Home Affairs.  In support of the application, the applicant also provided the following supporting documents (1 to 6):

    1.Mr Di Paulo's Passport

    2.Statutory Declaration of Mr Di Paulo dated 12 February 2020

    3.Statement of Name Change + Translation

    4.Mr Klement Gjonej's Certificate of Record

    5.Dr Leslie Stephan's Report re Medical History of Ervis Gjonej

    6.Employer's Letter Confirming Mr Di Paulo's Full-Time Employment in 2010 (in Italy)

    ... “1 Are you known by any other names?

    As mentioned above, Mr Di Paulo legally applied to change his first and last name in 2013 and his application was approved by the local Authorities office. On 29 January 2015, Mr Di Paulo declared before the Administrative Assistant, Mrs Teresa Callea, that the reasons for his name change were that:

    "... every time I introduce myself to someone I am immediately associated with Elton John and I am subjected to comments and double meaning on homosexuality, this has become unbearable and I need to change both surname and name.

    Furthermore, being a foreign surname, it is difficult for me to explain its spelling as I am asked to spell it to avoid mistakes that inevitably happen anyway creating between my documents. Therefore, since I attained my Italian citizenship, I decided that it is important to have an Italian surname and name ... for a better integration ... I have decided to call myself "Antonio" in honour of St Anthony of Padua and "Di Paulo" as son of Paulo who was my father, who died and was very important in my life."

    These reasons were recorded in January 2015, 3 years before Mr Di Paulo applied for his first Working Holiday Visa. Additionally, Mr Di Paulo's reasons stemmed from a long life of being mistreated and judged not by his character but by his ill-fated name. He associated his past name with decades of bullying and mistreatment as a foreigner.

    In 2013, Mr Di Paulo decided that he would regain control of his life and embrace his Italian citizenship by putting his past mistreatment behind him. He chose to do this by rebranding himself and taking the opportunity to pay tribute to the country that he loved (Italy) and honouring his beloved father who had passed away. Mr Di Paulo decided that it was necessary to change his surname as well because of the stigma associated with an Albanian surname and he did not want his children to suffer the same mistreatment that he received growing up in Italy. Therefore, he chose the surname of "Di Paulo" to reflect that he was of Paulo, an Italian spelling of his father's name.

    In both Working Holiday Visa applications, the Question was phrased as:
    "Are you known by any other names? (This includes names before marriage.)"

    When put into Google Translate, it is translated as "Sei conosciuto con altri nomi?" To a native Italian speaker, this can be easily misinterpreted to mean: "Are you known by any other names in your community?"  As the question did not ask if Mr Di Paulo was previously known by any other names, Mr Di Paulo misinterpreted the question to mean if he is [present tense] known by any other names at the time of application.

    Mr Di Paulo was confident that he had completely disassociated himself with his 'cancelled name - Elton Gjonej'. This is why Mr Di Paulo declared that he is not known by any other names because he believed that he is not known by any other known names since he had legally changed his name from "Elton Gjonej" to "Antonio Di Paulo". He believed that he answered the question correctly because the legal change of name application would have a retrospective effect and completely erased any other names associated to him.

    Furthermore, the additional information advising to include names before marriage did not further enlighten Mr Di Paulo because his change of name was not a result of marriage. Additionally, in Mr Di Paulo's statement, he "believed that declaring another cancelled name... would only create confusion." This belief is based on his interpretation of the question based on Google Translate. Therefore, ‘it is clear that Mr Di Paulo made a genuine mistake based on his understanding of the question and never intended to purposely misinform the Department when completing his visa application.’

    2 Do you hold any other citizenship than shown as your passport country above?

    Mr Di Paulo admits that he had misinterpreted the question when filling in his first Working Holiday Visa application without the help of a Migration Agent. He had not renewed his Albanian passport since he received his Italian passport. Mr Di Paulo did not renew his Albanian passport because he felt that he belonged more to the Italian culture after living in Italy for 20 years.

    When filling out his online application with his partner, he had initially declared his Albanian citizenship as well but was asked to subsequently provide passport information for the Albanian citizenship. As he no longer had a valid Albanian passport and could not provide such information, he interpreted the question to only require him to declare other citizenships if he had a valid passport for the second citizenship. Given that his Albanian passport has expired, Mr Di Paulo went back and removed his declaration of his Albanian citizenship because he believed that it was not the information requested in the online visa application.

    Mr Di Paulo now understands that he had misinterpreted the question and should have declared his Albanian citizenship despite the expiry of his Albanian passport. He confirms that he is a dual citizen of Italy and Albania.

    3 Has the applicant ever been removed, deported or excluded from any country (including Australia)?

    Mr Di Paulo admits that he also misinterpreted this question. He believed that he did not need to disclose his refused entry in July 2013 because he had complied with the 3-year travel ban. Mr Di Paulo did not re-enter Australia until 5 years later on 18 March 2018. He believed that he had complied with the travel ban and no longer needed to declare his refused entry because the Department of Home Affairs already has this information.

    Mr Di Paulo's ‘refused entry’ in July 2013 was due to suspicion that he had previously entered Australia under a false passport in 2010. Mr Di Paulo maintains that he has no idea about this allegation and maintains that his first entry to Australia was in December 2012 to visit his brother who was sick at the time. He has attached a letter from his employer confirming that he was employed as a bartender in Italy on a permanent basis for the entire year of 2010.

    4 Has the applicant ever been associated with a person, group or organisation that has been or is involved in criminal conduct?

    Mr Di Paulo emphasises that he answered this question truthfully. He has never been associated with a person, group or organisation that has been or is involved in criminal conduct. In relation to his brothers, Klement Gjonej and Ervis Gjonej. To the best of his knowledge, he believes that they have never been and are not involved in criminal conduct. Mr Di Paulo described their upbringing in his statement as full of healthy values because of his mother's love and devotion of her life to raise them. Mr Di Paulo expresses that all three brothers are grateful to their mother and repay her by living their lives by the healthy principles that she taught them including respecting the law, all others and God.

    In relation to Klement Gjonej, a copy of Klement Gjonej's Certificate of Record which was submitted with Mr Di Paulo's Bridging Visa E application was enclosed. The Certificate of Record attests that Mr Klement Gjonej has been acquitted of all criminal charges.

    As for Mr Ervis Gjonej, Mr Di Paulo is unable to request a copy of the Certificate of Record on behalf of Ervis. Ervis is unable to present himself or request a copy personally because Ervis is currently in Italy and has had health problems. Ervis was also diagnosed with Schizophrenia in Adelaide. Mr Di Paulo has obtained a copy of Mr Evis Gjonej's medical report which was enclosed. Ervis was previously hospitalised in a psychiatric ward during a particular serious episode. Ervis continues to deflect reality and at times believes that he is working for the government or the opposition. Mr Di Paulo states that:

    "In the last few years it has been difficult to have a sensible conversation with him [Ervis], although he is cared for by medical staff and is treated with psychotherapeutic drugs."

    Mr Di Paulo maintains that he has nothing to do with anyone involved in organised crime and tries his best to choose people whom he spends time with wisely. He maintains that he does not have a close relationship with his brothers, especially Klement Gjonej. It is not uncommon for family members to become estranged and not be involved in one another's lives post-childhood.

    Conclusion

    [The applicant’s submission is that] considered as a whole, Mr Di Paulo never intended to deceive the Department of Home Affairs. The applicant submits that he has not knowingly or intentionally engaged in fraudulent conduct to obtain his Working Holiday visas. Mr Di Paulo had completed his Working Holiday visa applications in good faith based on his understanding of the questions. Additionally, he has addressed the reason for his visa cancellation to the best of his knowledge and ability. He genuinely believed that all missing information is and was readily available to the Department of Home Affairs via information sharing between the governments. Furthermore, Mr Di Paulo did not change his name to mislead the Australian government. It was for personal reasons that stemmed from relentless bullying which continued to adulthood because of his name "Elton Gjonej". This reason was accepted by the Italian Government who approved his change of name on 29 January 2015.

    We respectfully request that the Tribunal remit Mr Di Paulo's Visa Cancellation on the grounds that he truthfully completed[ly] his Working Holiday visa applications to the best of his understanding of the English language and the Australian Immigration laws and regulations. It was never his intention to engage in fraudulent conduct and Mr Di Paulo only wishes to clear his name and clarify any misunderstandings with the Department of Home Affairs.” …

18. At the hearing the applicant responded, when asked about prior visa applications, that he had not been cleared by Immigration for entry into Australia in July 2013 when he had applied for a Visitor (Subclass 601) visa on that occasion having travelled to Australia from Italy.  When asked to elaborate, the applicant explained that on 6 July 2013 he was refused entry by Australian Immigration officials on the purported basis of presenting a bogus document and was on that same day required to depart Australia, which he did - returning to Italy. He subsequently added that he made a similar application for a Visitor visa from Berlin Germany later that same year, but that this too was refused.

1. The Tribunal carefully went through the answers to each of the four material questions answered by the applicant in the negative on his application for the Subclass 417 visa and considered the applicant’s reasons and explanations at the hearing which were consistent generally with the above submissions discussed.

2. Having had the benefit of hearing directly from the applicant and observing the manner in which he presented his oral evidence and the submissions and oral evidence discussed, the Tribunal accepts the applicant’s reasoning for his responses provided at questions 1, 2 and 4.  The Tribunal accepts as plausible that:

   ·The applicant misinterpreted question 1 to mean if he is [present tense] known by any other name when answering that question at the time of his application, and accepts his evidence that he was not at that time known by any other name;

   ·The applicant interpreted question 2 to only require him to declare other citizenships if he had a valid passport for his [second] citizenship and that, in circumstances where his Albanian passport had expired, he believed that it was not the information requested in the online visa application;

   ·The applicant does not have a close relationship with his brothers, especially Klement Gjonej, and accepts that he has not been associated with any person, group or organisation that was or is involved in criminal conduct.

3. However, the Tribunal observed to the applicant at the hearing that in the circumstances where he was denied entry in July 2013, being turned away from Melbourne airport the same day without being Immigration cleared, it had particular concerns with his response of ‘No’ to question 3 ‘Has the applicant ever been removed, deported or excluded from any country (including Australia)?’  The Tribunal considered whether an ordinary person faced with that question in the circumstances that the applicant had experienced on 6 July 2013 would have not answered in the negative.  The applicant was invited to comment on this issue and was granted additional time following the hearing to make further written submissions.

4. In response, the applicant submits as relevant to question 3 that he seeks the Tribunal firstly, to recognise that the Italian interpreter allocated to his matter at the hearing was ‘not effective in translating the specific vocabulary of the review applicant.’ He submits that in attendance at the hearing were four people who had knowledge of the Italian language including the review applicant, his partner, an observer and the representative all of whom raise concerns with the fluency of the interpreter.  The submission is that prior to and post hearing, discussions were held with the interpreter who introduced herself as an Italian interpreter with predominant experience in medical translations. The applicant’s submission is that whilst the interpreter did state that she would ‘try her best’, she did acknowledge a lack of experience in translating legal matters and within the Tribunal environment. The applicant’s submission is that this became evident in a number of her translations, particularly relating to the question of concern (question 3). The applicant’s submission is that the interpreter was translating into English using a variety of words and descriptions which were not consistent throughout the hearing.

5. The Tribunal has considered this and the applicant’s response to whether he had been ‘excluded’ from any country (including Australia). The applicant’s submission is that the term ‘escluso’ was generally used by the interpreter as the Italian translation for the word ‘excluded’ yet when the review applicant was explaining his misinterpretation of the word ‘excluded’, the interpreter translated this to mean ‘expelled’ which the applicant claims was never used by him in his oral evidence. The submission is that the incorrect translation of the word has caused greater concern as to the applicant’s credibility. The applicant submits that he never used the term ‘expelled’ in its English or Italian origin.

6. The applicant submits that he was born in Albania and raised in Italy. His main language is Italian, and he also speaks Albanian however, to a lesser extent given he relocated to Italy at a young age. The applicant submits that he used Google Translator to assist in completing some of the questions within the visa application. He submits that by using this program, the translation of the term ‘excluded’ also brings up the definition of the verb: exclude, rule out, bar, disqualify, leave out, debar; none of which were used to describe his situation.  The applicant submits that he was of the understanding that the terms ‘removed’, ‘deported’, or ‘excluded’ did not apply to him as he was simply told by Immigration officials, he had been refused entry. He submits that if the question had asked whether he had been refused or cancelled a visa or entry to Australia or any other country, his response to the question would have been very different.

7. Despite the claimed deficiencies in the interpreting, the applicant asserts that he did not believe he was ever excluded from Australia and the Tribunal places weight on his evidence regarding this accepting that in July 2013, he was simply told he had been refused entry. The applicant acknowledged at the hearing that given he was previously refused entry to Australia, he believed he had a three-year travel ban which he complied with. He explained that at the time of this occurrence in Melbourne airport, he had been given the option to return to his country of residence or he would be detained but maintains the term ‘excluded’ was never used at the time.  The Tribunal notes that in this regard, the applicant did not re-enter Australia until five years later, on 18 March 2018. The Tribunal places weight on the applicant’s evidence and submissions that he believed that he had complied with the travel ban and no longer needed to declare refused entry because the Department of Home Affairs already had this information.

8. The Tribunal accepts overall that the applicant was aware that he had been subject to a refusal of entry but that he did not take this to mean he had been “excluded” for the purpose of providing his answer to question 3 (negative) at the time of visa application.

9. The Tribunal further considered whether it can be said the applicant has, in the legal sense, been “excluded” from Australia in circumstances where he was not Immigration cleared for entry in 2013.  This issue has not been judicially considered. “Excluded” is not defined in the Act or Regulations, although the Minister can declare, in the national interest, someone to be an “excluded person” under s.502 (which operates to prevent merits review), and a person who is removed from Australia after certain events such as a cancellation on character grounds is excluded from being granted another visa to re-enter Australia under s.503 (“Exclusion of certain persons from Australia”). It is unclear if “exclusion” is limited to the latter, but the Tribunal has considered whether it could potentially extend more broadly. 

10. Having regard to the ordinary meaning of the word “exclude”, it means to deny someone access to a place [to prevent someone or something from entering a place or taking part in an activity.]¹ [ On this interpretation, it’s arguable that cancelling the applicant’s Subclass 601 visa at Melbourne airport before he was Immigration cleared, thereby denying him access to Australia, was to exclude him from Australia.  Although not entirely clear, by inference, this appears to have been the interpretation adopted by the delegate.

11. An alternative interpretation is that the word “excluded” in this context refers to the exclusion periods in PIC 4013 or 4014 OR SRC 5001, 5002 or 5010. This interpretation begs the question whether an applicant has been “excluded” if they would be caught by these provisions if they applied for a visa during the exclusion period, or alternatively, whether an applicant will have been “excluded” only if they applied for a visa for which Schedule 2 prescribes any one or more of PIC 4013 or 4014 OR SRC 5001, 5002 or 5010 and they did not satisfy any one or more of those criteria. Whilst the question of whether a person had ever been ‘removed, deported or excluded’ in the application form may not be using technical terms of art, in the Tribunal’s view, interpreting the word “excluded” in this context as referring to exclusion periods in PIC 4013/4014 and SRC 5001/5002/5010, arguably more likely requires that all the conditions for exclusion need to be made out before a person is excluded, particularly given that deportation[1] or removal[2] are technical terms with a specific meaning in the legislation for Immigration matters.

    [1] ss.200-206

    [2] s.198

12. Having considered all the available evidence before it discussed together with the applicant’s submissions, the Tribunal considers the applicant did not by knowingly providing false information in his application to enter Australia and therefore, does not reasonably suspect that the visa has been obtained as a result of the fraudulent conduct of any person [r.2.43(1)(o)].

13. For these reasons, the Tribunal is not satisfied that the ground for cancellation in s.116(1)(g) exists. It follows that the power to cancel the applicant’s visa does not arise. Accordingly, it is not necessary to consider the discretion whether to cancel the visa or not. The Tribunal notes the applicant’s second Working Holiday visa ceased on 3 April 2020.

    DECISION

14. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 417 (Working Holiday) visa.

    Stavros Georgiadis
    Member