HOSSAIN (Migration)

[2020] AATA 5387

HOSSAIN (Migration) [2020] AATA 5387 (14 October 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr MD ZAKIR HOSSAIN

VISA APPLICANT:  Ms FATEMA TUZ ZOHORA

CASE NUMBER:  1806983

DIBP REFERENCE(S):  BCC2015/742226

MEMBER:Helena Claringbold

DATE:14 October 2020

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a Partner (Provisional) (Class UF) visa

Statement made on 14 October 2020 at 2:06pm

CATCHWORDS
MIGRATION – Partner (Provisional) (Class UF) visa – Subclass 309 (Spouse (Provisional)) – bogus documents and false or misleading information – age at marriage – identity documents with two dates of birth, one making applicant 18, the other 17 – all documents showing earlier year/older age issued after marriage – contemporaneous school documents show later year/younger age – one school document reissued showing earlier year – documents showing later year not provided with application – department’s document check – credibility – inconsistent evidence – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5(1), 359AA
Migration Regulations 1994 (Cth), Schedule 2, cl 309.225, Schedule 4, criterion 4020(2A), (3), (5)

CASES
Arora v MIBP [2016] FCAFC 35
Batra v MIAC [2013] FCA 274
Trivedi v MIBP [2014] FCAFC 42

statement of decision and reasons

APPLICATION FOR REVIEW

1. On 7 March 2015, Ms Fatema Tuz Zohora, the visa applicant, applied for a Partner (Provisional) (Class UF) visa. The application was based on her spousal relationship with Mr Md. Zakir Hossain, the sponsor and review applicant.

2. On 20 February 2018, a delegate of the Minister for Home Affairs refused to grant the visa. The delegate was not satisfied that the visa applicant met Public Interest Criterion (PIC) 4020 and specifically PIC 4020(2A) of Schedule 4 to the Regulations. Therefore, the visa applicant did not meet cl.309.225 of Schedule 2 to the Migration Regulations 1994 (the Regulations) made under the Migration Act 1958 (the Act). On 15 March 2018, the sponsor provided the Tribunal with a copy of the delegate’s Decision Record. This is a review of the delegate’s decision.

3. The sponsor was invited to attend a Tribunal hearing on 2 March 2020. On 28 February 2020, the Tribunal advised the sponsor that due to circumstances beyond the Tribunal’s the control, the Tribunal hearing set down for 2 March 2020 was postponed.

4. On 19 May 2020, the Tribunal wrote to the sponsor and advised him that there would be a delay in considering his matter.  He was told that after considering the measures contained in the Migration and Refugee Division COVID-19 Special Measures Direction and the circumstances of his case, that an in-person hearing was required to progress his case.  He was also advised that the Tribunal was unable to hold in-person hearings at that time and that he would be advised when these circumstances changed.

5. The sponsor appeared before the Tribunal on 3 August 2020, (the first Tribunal hearing) to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Bangladeshi and English languages. The review applicant was represented in relation to the review by his registered migration agent.

6. At the first Tribunal evidence was taken from the sponsor. The Tribunal then proceeded to take evidence from the visa applicant.  However, the interpreter had difficulty fully understanding what the visa applicant was saying. The sponsor and the migration agent were adamant that the Tribunal continue taking evidence from the visa applicant. After several attempts to take the visa applicant’s evidence and a comment from the interpreter that he was having difficulty understanding all that the visa applicant was saying, the Tribunal adjourned the Tribunal hearing.  

7. On 30 September 2020, the sponsor appeared before the Tribunal (the second Tribunal hearing) to give evidence and present arguments. The Tribunal also took evidence from the visa applicant. The Tribunal hearing was conducted with the assistance of an interpreter in the Bangladeshi and English languages. The Tribunal continually checked with the visa applicant that she understood the interpreter and she stated that she did. The interpreter also confirmed that he could understand what the visa applicant was saying.

8. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The Tribunal has taken into consideration, individually and completely, all the evidence in the Department of Home Affairs’ (the Department’s) case file and the Tribunal’s case file and the evidence at the Tribunal hearing.

   ISSUE

10. The issue in this review is whether the visa applicant meets PIC 4020 and specifically PIC 4020(2A) as required by cl.309.225 for the grant of the visa.

    BACKGROUND ON THE EVIDENCE

11. The visa applicant was born in Noakhali, Bangladesh. Her parents and two siblings live in Bangladesh. The visa applicant did not declare any previous marriages or de facto relationships.

12. The sponsor was born in 1985 in Noakhali, Bangladesh. His parents and two siblings live in Bangladesh. The sponsor entered Australia on 17 April 2007.  He was granted Australian citizenship on 6 September 2016. The sponsor did not declare any previous marriages or de facto relationships.

13. The sponsor and the visa applicant (the parties) were neighbours for some time and lived in the same village in Bangladesh. On 7 November 2014, the parties met at a family gathering at the visa applicant’s parent’s home.  Following this meeting, the parties met several times and communicated with each other on the telephone.

14. On 10 November 2014, the parties became engaged at the visa applicant’s parent’s home. On 14 November 2014, the parties married at the visa applicant’s parent’s home and commenced living together at the sponsor’s parent’s home. Since the sponsor departed Bangladesh on 31 December 2014, the visa applicant has been living with the sponsor’s parents and at times, lives with her parent’s in their home. The parties have two children born in 2016 and 2020, they live with the visa applicant in Bangladesh.

    Consideration of claims and evidence

    Public Interest Criterion 4020

15. PIC 4020 as required by cl.309.225 for the grant of the visa broadly speaking, requires that:

    ·there is no evidence that the applicant has given, or caused to be given, to the Minister, an officer, the Tribunal, a relevant assessing authority, or Medical officer of the Commonwealth, a bogus document or information that is false or misleading in a material particular in relation to the application for the visa or a visa that the applicant held in the 12 months before the application was made: PIC 4020(1); and

    ·the applicant and each member of the family unit has not been refused a visa because of a failure to satisfy PIC 4020(1) during the period starting 3 years before the application was made and ending when the visa is granted or refused, unless the applicant was under 18 at the time the application for the refused visa was made: PIC 4020(2) and (2AA); and

    ·the applicant satisfies the Minister as to his or her identity: PIC 4020(2A); and

    ·neither the applicant nor any family unit member has been refused a visa because of a failure to satisfy PIC 4020(2A) during the period starting 10 years before the application was made and ending when the visa is granted or refused, unless the applicant was under 18 at the time the application for the refused visa was made: PIC 4020(2B) and (2BA).

16. The requirements in PIC 4020(1) and (2) can be waived if there are certain compelling or compassionate reasons justifying the granting of the visa: PIC 4020(4).

17. However, this waiver does not apply to the identity requirements in PIC 4020(2A) and (2B). PIC 4020 is extracted in the attachment to this decision.

    Has the applicant given, or caused to be given a bogus document, or information that is false or misleading in material particular?

18. The term ‘information that is false or misleading in a material particular’ is defined in PIC 4020(5) and the term ‘bogus document’ is defined in s.5(1) of the Act (see the attachment to this decision). In contrast to the definition of ‘information that is false or misleading in a material particular’ in PIC 4020(5), the reference in the definition of bogus document to a document that was obtained because of a ‘false or misleading’ statement has no requirement that it be relevant to a criterion for the grant of the visa: Arora v MIBP [2016] FCAFC 35; Batra v MIAC [2013] FCA 274.

19. The requirement in PIC 4020(1) not to provide a bogus document, or false or misleading information, applies whether or not the Minister became aware of the bogus document or information that is false or misleading in a material particular because of information given by the applicant: PIC 4020(3). It also applies whether or not the document or information was provided by the applicant knowingly or unwittingly.

20. While PIC 4020 refers to information that is false, in the sense of purposely untrue, it is not necessary for the Minister (or the Tribunal on review) to conclude that the applicant was aware the information was purposely untrue in order for PIC 4020 to be engaged. However, an element of fraud or deception by some person is necessary to attract the operation of the provision: Trivedi v MIBP [2014] FCAFC 42.

21. The delegate’s decision record informs the Tribunal of the following:

    Background – Underage marriages in Bangladesh

    ‘The department, in assessing an application for a Partner (Provisional) (Class UF) (Subclass 309) visa and a Partner (Migrant) (Class BC) (Subclass 100) visa, considers, among other things, the validity of the partnership or marriage. The Australian Marriage Act 1961 requires that, in cases where one party to the marriage is domiciled in Australia that both bride and groom are over the age of eighteen. Marriages that are not recognised as lawful pursuant to the Australian Marriage Act that do not meet the requirements of Subclause 309.211 of the Migration Regulations.

    As Bangladesh continues to have one of the highest underage marriage rates worldwide, it is important to determine that the ages of the parties meet the minimum age requirements for Bangladesh. Due to difficulties in obtaining and verifying the authenticity of identity documents in Bangladesh, education records are sourced, as they provide a more reliable record of an applicant’s date of birth, hence age at the time of marriage. School certification such as a Secondary School Certificate (SSC) is considered to be a reliable and verifiable record of an applicant’s date of birth and identity, particularly as it is publically available on the internet and is administered by the respective board of education and the Ministry.

    In this case, it was necessary to determine the applicant’s date of birth, to ensure the validity of the marriage under Bangladeshi law, as well as Australian law (as the sponsor was domiciled in Australia at the time of marriage).

    In support of her visa application the applicant provided a passport and a birth certificate recording the applicant’s date of birth as 12 July 1996. These identity documents were issued after the applicant’s marriage. Therefore, the applicant was requested to provide historical evidence of her identity including identity documents that pre-dated her marriage including her Senior School Certificate (SSC). 

    In response the visa applicant claimed that she only studied up to class seven and did not study up to the SSC level. The applicant provided a copy of her Primary School Certificate for class five completed in 2008 and a testimonial issued by Dheetpur Jonokallan Sarkari Prathomik Biddalay School.

    Departmental Officers attended the Dheetpur Jonokallan Sarkari Prathomik Biddalay School to verify the applicant’s claims and supporting documentation. School officials confirmed that the document submitted was false. The School officials further advised that the applicant’s date of birth was 12 July 1997 and confirmed that, after leaving the school she attended Protapgonj High School.

    Departmental officers then visited Protapgonj High School to make inquiries. School officials confirmed that the applicant had completed her Junior School Certificate (JSC) and her Senior School Certificate at the school and confirmed that her date of birth is recorded as 12 July 1997.’

22. On 23 November 2017, the applicant responded to these matters and stated the following: that her date of birth is 12 July 1996.  She didn’t provide her Senior School Certificate (SSC) because the records are incorrect.  She provided the following:

    ·An age determination certificate dated 4 March 2015, issued by the Department of Radiology, Bedded General Hospital, Noakhali. The report found that the applicant was between 17 to 19 years old.

    ·A vaccination card recording her date of birth as 12 July 1996.

    ·An affidavit from her father stating that the applicant’s year of birth was 1996.

23. On 22 November 2017, the sponsor’s migration agent stated the following. The visa applicant denies that she submitted any false documents or information about her date of birth in her visa application. She confirms that she was born on 12 July 1996. Her birth certificate, marriage certificate and passport provided to the Department are authentic. Information sourced by Departmental officer from the Dheetpur Jonokallan Sarkari Prathomik Biddalay School in relation to the visa applicant’s date of birth being 12 July 1997 was not provided by the visa applicant. The visa applicant was aware of the incorrect data held by the other schools. Therefore, she didn’t submit these documents to the Department because the information about her date of birth in the school records was to her knowledge erroneous.  Her parents applied to the schools to have these records corrected. They provided application forms and receipts for payments for the correction of the applicant’s date of birth, but to date these records have not been corrected.  It is common in certain areas of Bangladesh that dates of birth of children are intentionally marked younger (than they are) when they were enrolled to start school. This is due to overcrowding and other reasons, many children are delayed from graduation from secondary school, whilst (recording) females with a younger age will help them enter the workforce and further studies and parents do this to assist their children with better education and employment prospects. There was never any intention to provide false information in the visa application. The true date of birth 12 July 1996 was always presented to the sponsor during their discussion about marriage and on their marriage certificate. The applicant was married at the legal age of 18 years.

24. On 5 November 2019, the sponsor’s migration agent stated the following: that the sponsor and visa applicant were married (14 November 2014).  On 16 June 2016, the parties had their first son. The visa applicant is currently pregnant with the parties’ second child. The sponsor expressed his frustration about living apart from his family for four years. His three-year-old son has grown very attached to him whenever he visits Bangladesh. The sponsor cannot live in Bangladesh as he is financially supporting his family through his employment and salary in Australia. Various documents were provided in support of the parties’ relationship including travel information for the sponsor; transfer of money from the sponsor to the visa applicant and third-party statements attesting to the parties’ relationship and photographs.  These have been considered as far as they relate to the visa applicant identity.

25. The sponsor told the first Tribunal the following. The visa applicant finished primary school in 2010 and was issued a Primary School Certificate (PSC).  After the Department wrote to the visa applicant (for historical information about her identity) the visa applicant’s father went to the visa applicant’s primary school and the PSC was issued with a date of birth for the applicant of 12 July 1996 and this document was provided to the Department. The principal of the primary school didn’t change the visa applicant’s date of birth on the school records and her date of birth remained as 12 July 1997 on the records and continued to be recorded as 12 July 1997 in junior and senior school. The reason why 12 July 1997 was initially given to the primary school was to provide the visa applicant with a better chance of obtaining a government position. The changing of dates of birth for this purpose is common in Bangladesh. The PSC with the 12 July 1996 date of birth for the visa applicant is a genuine document recording the visa applicant’s correct date of birth.

26. The sponsor continued as follows. The visa applicant finished years 6, 7 and 8 of junior school in 2011 or 2012.  She finished years 9 and 10 of senior school in 2014 before the parties married. Her date of birth for both junior and senior school is recorded as 12 July 1997. In March 2015, the visa applicant applied to change her recorded date of birth from 1997 to 1996, however they were continually told to return and then the parties first child was born and they gave up trying to have her date of birth changed.

27. The first Tribunal asked the sponsor why the certificate issued to the visa applicant in 2010 was not given to the Department.  He responded and stated that he was not sure. The Tribunal told the sponsor that the visa applicant in a letter dated 13 June 2015 stated that the reason she had to stop going to school was because of family problems and she finished (school) in class seven in 2010.  Therefore, she was providing her PSC and a letter from the primary school.  The sponsor responded and stated that because her date of birth was incorrect on her junior and senior school certificates, she became nervous and stated that she only studied to 2010 and only submitted the PSC which recorded her date of birth as 12 July 1996.  

28. The first Tribunal asked the sponsor what evidence was given to have the visa applicant’s date of birth recorded as 12 July 1996, on the parties’ marriage certificate and on the visa applicant’s birth certificate issued on 23 November 2014 and on the visa applicant’s passport issued on the 7 January 2015.

29. The sponsor told the first Tribunal the following: the parties married on 14 November 2014, and their marriage was registered on the same day. The evidence given about the visa applicant’s date of birth was a statement from the visa applicant’s father. The visa applicant’s birth certificate was issued after the parties’ marriage and the evidence given about her date of birth was the vaccination card and a statement from the visa applicant’s father.  The visa applicant’s passport was issued after the parties’ marriage and the evidence given was the visa applicant’s birth certificate.

30. The first Tribunal asked the sponsor about the visa applicant’s vaccination card.  He told the Tribunal the following. An announcement is made on radio or television about vaccinations taking place. The mother takes the child to the centre and the child is vaccinated and a record of vaccination is recorded on the card.  His brother-in-law sent him the vaccination card.

31. At the first Tribunal hearing the sponsor’s migration agent handed documents to the Tribunal.  One of these documents is a copy of the visa applicant’s National Identity Card (NID).  Some of the information on the NID is in English and recorded the visa applicant’s date of birth as 12 July 1996. Other information is in another language and could not be read by the Tribunal.  The interpreter assisted the Tribunal by translating this content, including the information about the visa applicant’s education as 8^th class. The Tribunal stated that this information appeared to be incorrect and the sponsor said this is what happens.

1. The first Tribunal asked the sponsor about the evidence that was given to have the NID issued. The sponsor stated that the NID was issued about two years ago and after the visa applicant’s birth certificate and passport were provided. 

2. The first and second Tribunal told the sponsor that various forms and their translations had been provided to the Department and appeared to be incomplete. The translation for one form which is titled ‘Board of Intermediate and Higher School Secondary Education Comilla’ (‘application for the correction of a date of birth’), shows that the form has not been completed in several areas, including:, (9) Reason for the correction of date of birth (the reason must be mentioned) and (10) Contact address and signature of the applicant. In addition, the translation stated ‘Sd/Illegible Headmaster/Principal Pratapganj High School’. He was told that the translation for another form ‘Board of Intermediate and Higher Secondary Education, Comilla’ shows that the form had not been completed in several areas including: (9) Reason for the correction of date of birth (the reason must be mentioned) and (10) Contact address and signature of the applicant. In addition, the translation stated ‘Sd/Illegible Headmaster/Principal Pratapganj High School’. He was also told that the translations for two other forms titled ‘Board of Intermediate and Higher School Secondary Education Comilla’ show that the forms had not been completed in several areas including ‘Year of Examination’, ‘Roll No’ and ‘Ledger No’ and the Signature of receiver was recorded as ‘Sd/Illegible’.

3. The visa applicant told the second Tribunal the following. There was a problem with the birth certificate not being issued at primary school and the visa applicant had to increase her birth year to 1997. It happened at the primary school and the school changed the date of birth from 1996 to 1997 to help (the visa applicant) get a government job. When they realised this, they tried to have the mistake corrected.  Her father went to the school and they issued the certificate with the correct date of birth (1996). At the time of the parties’ marriage, the visa applicant needed a birth certificate and needed the vaccination card to have the birth certificate issued. When the visa applicant was asked to provide the Australian Embassy (with information) they tried to have the date of birth changed from 1997 to 1996 but it wasn’t possible. She completed junior and senior school and the reason she didn’t give this information to the Department is that they tried to correct the date of birth on the junior and senior school documents but couldn’t do this.

4. At the second Tribunal hearing the Tribunal put information to the applicant under s.359AA of the Act. The relevance and consequence of the information was explained to the sponsor.  He was invited to comment on or respond to the information and was informed that he could seek additional time to do so. The applicant responded at the Tribunal hearing.   

5. The information put to the sponsor is as follows:

   ·The visa applicant told the Tribunal that her father organised her birth certificate and she doesn’t know what he submitted to the issuing authority. When she applied for the NID, she filled out a form and submitted it and provided her name and address.  She then stated that she didn’t submit the form, her father submitted the form on her behalf and she has no idea what he provided to the authority. She obtained the vaccination card from her parents but she didn’t know where the issuing centre/office. 

   ·On 5 August 2020, the Tribunal sought advice from the overseas post about whether the visa applicant’s vaccination card is a genuine document.

   ·The overseas post advised the Tribunal that the document is from Bangladesh and the Bangla speaking referral officer was asked if the document could be verified online or via phone call.

   ·The Bangla referral officer advised that the post is unable to verify the immunisation document as it does not state the issuing office.

   ·The referral officer also advised that the round stamps/seals on the original copy are that of the notary which cannot be verified either. 

6. The sponsor responded at the Tribunal hearing and stated the following. His father-in-law went to the school and they issued the certificate stating that the visa applicant’s date of birth is 1996.  He does not know why they lied to the Department and his father-in-law is now deceased and he can’t ask him. The birth certificate was registered in 2008. They obtained the birth certificate (in November 2014) and then applied for the passport and the NID was issued based on the visa applicant’s birth certificate. The vaccination card is issued from the local health office and they (the health authorities) choose different centres in the village. He is not sure how they keep their records and he can’t understand why it cannot be verified. After the second Tribunal hearing, the sponsor provided the vaccination card again and highlighted the government department under which the vaccination is conducted which stated ‘Director of Health, Extended Program of Immunisation (State Monogram) (E-P-I).  He also provided a copy of a visa grant notice for the visa applicant dated 22 November 2016 advising of the grant of a visitor visa.  The letter recorded the visa applicant’s date of birth as 21 July 1996. The sponsor also provided a letter addressed to the visa applicant advising of her Australian tax file number.

7. The Tribunal considered the evidence that the visa applicant completed the visa application form and declared her date of birth as 12 July 1996. As part of the visa application she provided the following: a copy of a Primary School Certificate (PSC) for 2008, a testimonial dated 1 January 2009 issued by Abul Kashem, Headmaster, Dheetpur Jonokallan Government Primary School, ‘Primary Education Completion Examination 2008 Testimonial’, stating her date of birth is 12 July 1996. A copy of her birth certificate, Reg No 14, dated 5 March 2015, stating that the date of registration was 10 August 2006   and that the date of issue was 12 November 2014, and a copy of a passport issued on 7 January 2015 which recorded her date of birth as 12 July 1996. Initially the visa applicant declared that she studied to class seven and did not study after that.

8. The information the visa applicant provided and the claims she made about her date of birth being 12 July 1996 and not studying after primary school are challenged by the information provided to Departmental officers when they attended Dheetpur Jonokallan Sarkari Prathomik Biddalay School. The school officials advised the Departmental officers, that the applicant’s date of birth is recorded on their school records as 12 July 1997 and confirmed that, after leaving the school she attended Protapgonj High School.

9. Protapgonj High School officials confirmed that the applicant completed her Junior School Certificate and her Senior School Certificate at the school and confirmed that her date of birth is recorded as 12 July 1997.

10. This decision record is a synopsis of the evidence before the Tribunal. The Tribunal has considered the evidence individually and completely. The Tribunal does not find the visa applicant to be credible.  On one hand, she declared on the visa application form that her date of birth is 1996.  When she was asked to provide information about her identity prior to her marriage to the sponsor, she stated that she didn’t study past primary school and she provided a PSC and testimonial letter from the primary school to substantiate those claims and to support her date of birth as 1996.  On the other, when it was brought to the visa applicants attention the information that she had continued to study past primary school and that she completed junior and senior school education and on school records her date of birth is recorded as 1997, the visa applicant declared that she didn’t provide the SSC because her date of birth was recorded incorrectly as 1997 and should have been recorded as 1996. The forms she provided to support that she applied to have her date of birth changed on the school records are incomplete and missing vital details and the visa applicant’s signature. The visa applicant’s birth certificate was issued after her marriage to the sponsor and by her providing a vaccination card and a statement given by her father about her date of birth.  The vaccination card cannot be verified as a genuine document because, on the advice of the overseas post, it does not state the issuing centre. The statement provided by the visa applicant’s father that her date of birth is 1996, is not relied upon because of the lack of reliable independent information to support that claim. The passport was issued after the visa applicant married the sponsor and provided on the evidence of her birth certificate. The NID was issued on the evidence of her birth certificate. The age determination certificate dated March 2015 stating her age to be 17 to 19 years is inconclusive and does not give clarity either to the age of the visa applicant or to her identity. While the Tribunal may accept that the vaccination card has recorded on it ‘Director of Health, Extended Program of Immunisation (State Monogram) (E-P-I)’, it is of the view that this identifies the authority under which the program is run. It does not accept that the Director of Health, State authority is the local centre/office where the vaccinations would have taken place. The referral officer clearly stated that the vaccination card cannot be verified because it does not state the issuing office. The Tribunal is not satisfied that the information provided in the visa applicant’s birth certificate, passport, NID and vaccination card provide probative evidence about the visa applicant’s identity because on the evidence they have all been issued on the strength of her birth certificate, which was issued on the strength of the vaccination card, which cannot be verified because it does not have recorded on it the issuing centre/office.

11. The evidence given by the parties that the visa applicant’s father attended the primary school and the PSC and testimonial letter were issued recording her date of birth as 12 July 1996 is perplexing.  It is bewildering when considered against the fact that the visa applicant’s date of birth is recorded as 12 July 1997 on her primary, junior and high school records and not 12 July 1996 as is claimed by the visa applicant.  The evidence that the primary school changed her date of birth to 1997 to provide her with an advantage to obtain government employment is not substantiated or commented, on either in the testimonial letter or by school officials. The Tribunal has not been provided any evidence that in the visa applicant being granted a visitor visa and issued an Australian tax file number, her identity had been investigated by the issuing authorities.

12. The Tribunal has not been provided with any independent evidence it can rely upon to substantiate the visa applicant’s year of birth as 1996, such as hospital records of her actual birth or the visa applicant’s use of her claimed date of birth being 12 July 1996 and identity using that date of birth in the community prior to her marriage.  As a result, the Tribunal is not satisfied as to the visa applicant’s identity.

13. Therefore, the applicant does not meet PIC 4020(2A). As a result, the visa applicant does not meet cl.309.225 of Schedule 2 to the Regulations.

14. The Tribunal has pondered this decision and deliberated on the consequences of it for the parties and their children; however, ultimately it has been guided by the evidence in this case in coming to its decision.

15. Based on the above, the visa applicant does not satisfy PIC 4020(2A) for the purposes of cl.309.225 of Schedule 2 to the Regulations.

    DECISION

16. The Tribunal affirms the decision not to grant the applicant a Partner (Provisional) (Class UF) visa.

    Helena Claringbold
    Member

    ATTACHMENT

    Migration Regulations 1994

    Schedule 4

    4020(1)         There is no evidence before the Minister that the applicant has given, or caused to be given, to the Minister, an officer, the Tribunal during the review of a Part 5 reviewable decision, a relevant assessing authority or a Medical Officer of the Commonwealth, a bogus document or information that is false or misleading in a material particular in relation to:

    (a)the application for the visa; or

    (b)a visa that the applicant held in the period of 12 months before the application was made.

    (2)The Minister is satisfied that during the period:

    (a)starting 3 years before the application was made; and

    (b)ending when the Minister makes a decision to grant or refuse to grant the visa;

    the applicant and each member of the family unit of the applicant has not been refused a visa because of a failure to satisfy the criteria in subclause (1).

    (2AA)However, subclause (2) does not apply to the applicant if, at the time the application for the refused visa was made, the applicant was under 18.

    (2A)The applicant satisfies the Minister as to the applicant’s identity.

    (2B)The Minister is satisfied that during the period:

    (a)starting 10 years before the application was made; and

    (b)ending when the Minister makes a decision to grant or refuse to grant the visa;

    neither the applicant, nor any member of the family unit of the applicant, has been refused a visa because of a failure to satisfy the criteria in subclause (2A).

    (2BA)However, subclause (2B) does not apply to the applicant if, at the time the application for the refused visa was made, the applicant was under 18.

    (3)To avoid doubt, subclauses (1) and (2) apply whether or not the Minister became aware of the bogus document or information that is false or misleading in a material particular because of information given by the applicant.

    (4)The Minister may waive the requirements of any or all of paragraphs (1)(a) or (b) and subclause (2) if satisfied that:

    (a)compelling circumstances that affect the interests of Australia; or

    (b)compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen;

    justify the granting of the visa.

    (5)In this clause:

    information that is false or misleading in a material particular means information that is:

    (a)false or misleading at the time it is given; and

    (b)relevant to any of the criteria the Minister may consider when making a decision on an application, whether or not the decision is made because of that information.

    …

    Migration Act 1958

    s.5      Interpretation

    (1) In this Act, unless contrary intention appears:

    …

    bogus document, in relation to a person, means a document that the Minister reasonably suspects is a document that:

    (a)purports to have been, but was not, issued in respect of the person; or

    (b)is counterfeit or has been altered by a person who does not have authority to do so; or

    (c)was obtained because of a false or misleading statement, whether or not made knowingly. 

    …