Gashi (Migration)

[2022] AATA 2014

Gashi (Migration) [2022] AATA 2014 (12 May 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Arben Gashi
Mrs Krishna Gashi
Mr Kelvin Gashi

REPRESENTATIVE:  Mrs Aishwarya Somal

CASE NUMBER:  2119890

HOME AFFAIRS REFERENCE(S):          BCC2020/801884

MEMBER:Wan Shum

DATE:12 May 2022

PLACE OF DECISION:  Sydney

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the first named applicant’s Subclass 186 - Employer Nomination Scheme visa.

The Tribunal has no jurisdiction with respect to the other applicants.

Statement made on 12 May 2022 at 9:54am

CATCHWORDS
MIGRATION – cancellation – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – ground for cancellation – incorrect information in visa application – place of birth – Kosovo – civil registration – citizenship – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 101, 107, 109, 140

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs to cancel the first named applicant’s Subclass 186 - Employer Nomination Scheme visa under s 109(1) of the Migration Act 1958 (Cth) (the Act).

2. The delegate cancelled the visa on the basis that the applicant had breached s 101(b) by providing an incorrect answer which was said to be in relation to his place of birth. 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 decision to cancel the visa was made on 20 December 2021 and the applicants have sought review of that decision with the Tribunal. The applicants are represented in relation to the review by a lawyer.

4. For the purposes of the Tribunal’s jurisdiction, the only decision that is before the Tribunal is that with respect to the first named applicant (the applicant). The other visas were automatically cancelled as a consequence of that cancellation, not by a decision but by force of the operation of s 140(1) of the Act. As no decision was involved in the visa cancellation under s 140(1), the Tribunal has no jurisdiction with respect to the other applicants.

5. The applicants appeared before the Tribunal on 28 April 2022 by videoconference using the Microsoft Teams platform to give evidence and present arguments. The applicants’ representative was present from a different location.

6. 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

7. Section 109(1) of the Act allows the Minister to cancel a visa if the visa holder has failed to comply with ss 101, 102, 103, 104, 105 or 107(2) of the Act. Broadly speaking, these sections require non-citizens to provide correct information in their visa applications and passenger cards, not to provide bogus documents and to notify the Department of any incorrect information of which they become aware and of any relevant changes in circumstances.

8. The exercise of the cancellation power under s 109 of the Act is conditional on the Minister issuing a valid notice to the visa holder under s 107 of the Act, providing particulars of the alleged non-compliance. Where a notice is issued that does not comply with the requirements in s 107, the power to cancel the visa does not arise. Extracts of the Act relevant to this case are attached to this decision.

9. In the present matter, the Tribunal is satisfied that the delegate had reached the necessary state of mind to engage s 107 and that the notice issued under s 107 complied with the statutory requirements.

   Was there non-compliance as described in the s 107 notice?

10. The issue before the Tribunal is whether there was non-compliance in the way described in the s 107 notice, being the manner particularised in the notice, and if so, whether the visa should be cancelled. The non-compliance identified and particularised in the s 107 notice was non-compliance with s 101(b) of the Act in his application for an ENS visa lodged 23 May 2019. The delegate considered the applicant had provided incorrect information claiming that he was born in Kosovo. The delegate referred to an official verification conducted with the Kosovar authorities on 14 February 2020 and states that those checks indicated there was no record of civil registration for the applicant in Kosovo. The delegate further considered that the Ministry of Internal Affairs confirmed that the applicant was not born in Kosovo and have never been registered as a citizen of Yugoslavia or the Republic of Kosovo.

11. The delegate concluded that based on this information it appeared that the applicant had provided incorrect information regarding his place of birth and original citizenship.

12. The delegate expressed the view that the applicant appeared to have provided incorrect answers to the following questions on the online application for an ENS visa lodged 23 May 2019:

    Place of birth

    Town / City: Kosovo

    State / Province: Kosovo

    Country of birth: KOSOVO

13. The delegate went on to identify that the responses to the following were also incorrect answers: on page 3 of the record of responses, under the heading ‘Critical data confirmation’, the applicant responded to the question ‘Is the above information correct?’ by replying ‘Yes’; and on page 18 of the record of responses the applicants response to the question ‘Have provided complete and correct information in every detail on this form, and on any attachments to it’ was ‘Yes’.

14. The Department has provided to the Tribunal a redacted copy of an email sent from Senior Integrity Officer, Department of Home Affairs, Australian Embassy Belgrade on 18 February 2020 to an area of the Department. In this email, it relevantly states that the Kosovar authorities have confirmed that the applicant was not born in Kosovo and has not been registered as a citizen of Kosovo and attached a copy of the official response from the Kosovar authorities.

15. The copy of the official response is an email sent between DFAT and the Kosovan authorities which sets out the name of the applicant and his date of birth, and states that he is “note [sic] recorded in our Civil registration” and is not a citizen of the Republic of Kosovo. The email responds to the question from DFAT which was framed as: “Can you please confirm if there is any record of civil registration”.

16. The applicant referred to the redacted emails between DFAT and the Ministry of Internal Affairs, Department of Citizenship, Asylum and Migration in Kosovo, and drew attention to the Kosovan authorities stating that he is not a citizen of Kosovo, to which he agrees. He points out that he never claimed to be a citizen of Kosovo, nor of any other country other than the UK.

17. To this point, the applicant referred the Tribunal to page 2 of the printed version of the online application form, and the responses he gave to questions which appear in bold below:

    Place of birth

    Town / City:      Kosovo

    State / Province:     Kosovo

    Country of birth:     KOSOVO

    Other names / spellings      

    Is this applicant currently, or have they ever been known by any other names?

    No

    Citizenship

    Is this applicant a citizen of the selected country of passport (UNITED KINGDOM -BRITISH CITIZEN)?

    Yes

    Is this applicant a citizen of any other country?

    No

    Other passports           

    Does this applicant have other current passports?

    No

    Other identity documents        

    Does this applicant have other identity documents?

    No

18. The Tribunal has considered the wording used in the email from the Kosovan authorities which states that the applicant is not recorded in the civil registration and is not a citizen of Kosovo. The Tribunal accepts that the email from the Kosovan authorities does not in fact comment on whether the applicant was born in Kosovo. It does not appear that the Kosovan authorities were asked that question. It seems to the Tribunal that the statement contained in the email from DFAT of 18 February 2020 referring the matter to the General Cancellations Network that “[o]fficial verification conducted with the Kosovar authorities have confirmed that GASHI, Arben (01/04/1981,M) was not born in Kosovo and has not been registered as a citizen of Kosovo” was only partially correct in respect of the applicant not being registered as a citizen. There is no record of any other official verification with the Kosovar authorities before the Tribunal.

19. In respect of the issue as to where he was born, the applicant claims that on 6 January 2022, he contacted the embassy of Kosovo in Australia detailing his circumstances and requesting information on how he may obtain a birth certificate from Kosovo. He claims that he then made an appointment for 19 January 2022 to speak with the Head of Mission, Ms Zane Mehmetaj and that during the meeting, she confirmed that considering the Ministry of Internal Affairs has confirmed with the Department that the applicant is not in the civil records, there is no reason for him to make another request and his only option now is to enter the birth re-registration process (Reconstructed Citizenship – Stateless Process). The applicant claims that Ms Mehmetaj advised that the birth re-registration process takes time and that he would need to be in Kosovo to enter the re-registration process with the local authorities there.

20. While the applicant has not provided a birth certificate stating that he was born in Kosovo as claimed, the alleged outcome of verifications in respect of the applicant’s place of birth are not substantiated on the evidence before the Tribunal. The outcome of the verification based on the only email from the Kosovan authorities to DFAT that is before the Tribunal is consistent with the applicant’s responses to the questions on the online form in respect of citizenship where he claims that he is a citizen of the UK and responded no to the question “Is this applicant a citizen of any other country?”. The Tribunal considers that a person’s birth place is a separate concept to whether the person is a citizen of that place, such that a response that the person is not a citizen of Kosovo does not equate to a statement that the applicant was not born there. Conversely, a statement that a person was born in a place is not sufficient by itself evidence that he or she is a citizen of that place.

21. While there is no record of the discussions, the Tribunal is prepared to accept that the applicant was informed over the phone when he contacted the Kosovan Embassy in Australia himself to ascertain the process of obtaining records of birth, that it would require returning to Kosovo and being physically present. The Tribunal understands that the applicant would not be pursuing this avenue.

22. In respect of the 2007 article on the Departmental file regarding “Crackdown on Albanians who lied about fleeing Kosovo war” which refers to the UK Government Home Office targeting Albanians who claimed to be victims of the war in Kosovo and that hundreds of successful asylum seekers could have their British citizenship revoked after investigators uncovered a massive immigration fraud, there does not appear to be any evidence that the applicant was one of the asylum seekers whose citizenship had been revoked. The applicant obtained a copy of his records from UK Visas & Immigration by requesting Specific Disclosure from Home Office records under the Data Protection Act 2018 which were released to him on 31 January 2022. It does not appear to the Tribunal based on the copy of the records provided to it that any investigation or action has been taken in respect of him by the UK authorities since 2004, when he became a UK citizen. There is no evidence before the Tribunal that the applicant’s UK citizenship has been revoked in relation to the UK Home Office’s “crackdown”.

23. Furthermore, it would appear to the Tribunal, having regard to the country information on records and recordkeeping in Kosovo, that it would be unlikely that the Kosovan authorities would be able to categorically state whether or not a person had been born there prior to 1999, given the need to reconstruct and restore civil registers across the different municipalities due to the destruction or dislocation of the vast majority of civil status registries following the 1999 Kosovo conflict.[1]  This has, according to UNICEF, caused problems in the process of validation of identity of Kosovo inhabitants.

    [1] Refer to page 18 of the 2009 publication of UNICEF ‘Every child Counts: birth registration in Kosovo”. The problems with birth registration in Kosovo are addressed in this publication. 

24. The email of 14 February 2020 from the Kosovan authorities states that the applicant is not a citizen of Kosovo. The Tribunal finds that the answers on his visa application form in relation to his citizenship are therefore consistent with the outcome of the verification check. There is no probative evidence before the Tribunal that the applicant was not born in Kosovo as claimed, and it does not consider that it could be said that the applicant gave responses to questions about his place of birth (and citizenship) that were incorrect. Given this, the Tribunal finds that there was no non-compliance by the applicant in the way described in the s 107 notice. 

25. As the Tribunal is not satisfied that there was non-compliance by the applicant in the way described in the notice given under s 107 of the Act, it follows that the discretionary power to cancel the applicant’s visa does not arise.

    DECISION

26. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the first named applicant’s Subclass 186 - Employer Nomination Scheme visa.

27. The Tribunal has no jurisdiction with respect to the other applicants.

    Wan Shum
    Member

    
    
    

    ATTACHMENT – Migration Act 1958 (extracts)

    5Interpretation

    (1)In this Act, unless the 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.

    97Interpretation

    In this Subdivision:

    application form, in relation to a non‑citizen, means a form on which a non‑citizen applies for a visa, being a form that regulations made for the purposes of section 46 allow to be used for making the application.

    passenger card has the meaning given by subsection 506(2) and, for the purposes of section 115, includes any document provided for by regulations under paragraph 504(1)(c).

    Note:Bogus document is defined in subsection 5(1).

    98Completion of visa application

    A non‑citizen who does not fill in his or her application form or passenger card is taken to do so if he or she causes it to be filled in or if it is otherwise filled in on his or her behalf.

    99Information is answer

    Any information that a non‑citizen gives or provides, causes to be given or provided, or that is given or provided on his or her behalf, to the Minister, an officer, an authorised system, a person or the Tribunal, or the Immigration Assessment authority, reviewing a decision under this Act in relation to the non‑citizen’s application for a visa is taken for the purposes of section 100, paragraphs 101(b) and 102(b) and sections 104 and 105 to be an answer to a question in the non‑citizen’s application form, whether the information is given or provided orally or in writing and whether at an interview or otherwise.

    100Incorrect answers

    For the purposes of this Subdivision, an answer to a question is incorrect even though the person who gave or provided the answer, or caused the answer to be given or provided, did not know that it was incorrect.

    101Visa applications to be correct

    A non‑citizen must fill in or complete his or her application form in such a way that:

    (a)all questions on it are answered; and

    (b)no incorrect answers are given or provided.

    107Notice of incorrect applications

    (1)If the Minister considers that the holder of a visa who has been immigration cleared (whether or not because of that visa) did not comply with section 101, 102, 103, 104 or 105 or with subsection (2) in a response to a notice under this section, the Minister may give the holder a notice:

    (a)     giving particulars of the possible non‑compliance; and

    (b)     stating that, within a period stated in the notice as mentioned in subsection (1A), the holder may give the Minister a written response to the notice that:

    (i)if the holder disputes that there was non‑compliance:

    (A)shows that there was compliance; and

    (B)in case the Minister decides under section 108 that, in spite of the statement under sub‑subparagraph (A), there was non‑compliance—shows cause why the visa should not be cancelled; or

    (ii)if the holder accepts that there was non‑compliance:

    (A)give reasons for the non‑compliance; and

    (B)shows cause why the visa should not be cancelled; and

    (c)      stating that the Minister will consider cancelling the visa:

    (i)if the holder gives the Minister oral or written notice, within the period stated as mentioned in subsection (1A), that he or she will not give a written response—when that notice is given; or

    (ii)if the holder gives the Minister a written response within that period—when the response is given; or

    (iii)otherwise—at the end of that period; and

    (d)     setting out the effect of sections 108, 109, 111 and 112; and

    (e)      informing the holder that the holder’s obligations under section 104 or 105 are not affected by the notice under this section; and

    (f)      requiring the holder:

    (i)to tell the Minister the address at which the holder is living; and

    (ii)if the holder changes that address before the Minister notifies the holder of the Minister’s decision on whether there was non‑compliance by the holder—to tell the Minister the changed address.

    (1A)The period to be stated in the notice under subsection (1) must be:

    (a)     in respect of the holder of a temporary visa—the period prescribed by the regulations or, if no period is prescribed, a reasonable period; or

    (b)     otherwise—14 days.

    (1B)Regulations prescribing a period for the purposes of paragraph (1A)(a) may prescribe different periods and state when a particular period is to apply, which, without limiting the generality of the power, may be to:

    (a)     visas of a stated class; or

    (b)     visa holders in stated circumstances; or

    (c)      visa holders in a stated class of people (who may be visa holders in a particular place); or

    (d)     visa holders in a stated class of people (who may be visa holders in a particular place) in stated circumstances.

    (2)If the visa holder responds to the notice, he or she must do so without making any incorrect statement.

    108Decision about non‑compliance

    The Minister is to:

    (a)consider any response given by a visa holder in the way required by paragraph 107(1)(b); and

    (b)decide whether there was non‑compliance by the visa holder in the way described in the notice.

    109Cancellation of visa if information incorrect

    (1)The Minister, after:

    (a)     deciding under section 108 that there was non‑compliance by the holder of a visa; and

    (b)     considering any response to the notice about the non‑compliance given in a way required by paragraph 107(1)(b); and

    (c)      having regard to any prescribed circumstances;

    may cancel the visa.

    (2)If the Minister may cancel a visa under subsection (1), the Minister must do so if there exist circumstances declared by the regulations to be circumstances in which a visa must be cancelled.