Huang (Migration)

[2018] AATA 3711

Huang (Migration) [2018] AATA 3711 (6 August 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Xianjin Huang

VISA APPLICANT:  Ms Yanli Gui

CASE NUMBER:  1702600

DIBP REFERENCE(S):  OSF2015/068882

MEMBER:Linda Holub

DATE:6 August 2018

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for a Partner (Provisional) (Class UF) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 309 visa:

·Regulation 2.03AA(2)

Statement made on 06 August 2018 at 4:32pm

CATCHWORDS
MIGRATION – Partner (Provisional) (Class UF) visa – Subclass 309 (Spouse (Provisional)) – evidence of criminal history –convicted for use of false identity – immigration fraud –evidence of court conviction – attempts to obtain police certificate – openly advised Department of previous deportation – openness of relationship – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 2.03AA, Schedule 2 cl 309.225, Schedule 4 PIC 4001

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 Immigration to refuse to grant the applicant a Partner (Provisional) (Class UF) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 8 June 2015. The criteria for a Partner (Provisional) (Class UF) visa are set out in Schedule 2 to the Migration Regulations 1994 (the Regulations). Additional criteria are prescribed in Division 2.1 of Part 2 of the Regulations.

3. Regulation 2.03AA of the Regulations applies where a person is required to satisfy Public Interest Criterion (PIC) 4001 or 4002: r.2.03AA(1). In this case, clause 309.225 of Schedule 2 of the Regulations, one of the mandatory requirements for the grant of the visa, requires the applicant to meet PIC 4001. The applicant is therefore required to satisfy the criterion in r.2.03AA(2).

4. Regulation 2.03AA(2)(a) requires that, if requested, the applicant has provided a statement from a relevant authority in a country where the person resides or has resided that provides evidence about whether or not the person has a criminal history. Regulation 2.03AA(2)(b) requires that, if requested, the applicant has provided a completed approved Form 80. The Tribunal may waive the requirement in r.2.03AA(2)(a) if it is not reasonable for the applicant to provide the statement: r.2.03AA(3). The Tribunal cannot waive the requirement for the applicant to provide a completed Form 80.

5. The delegate refused to grant the visa on 19 January 2017 on the basis that the applicant did not meet r.2.03AA because the applicant failed to provide a Singaporean police clearance certificate to cover her time in Singapore under the name of GUI Yanhong and he request to waive the penal checking requirement is not granted. As a consequence, she failed to satisfy PIC 4001.

6. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

CONSIDERATION OF CLAIMS AND EVIDENCE

1. The issue in this case is whether the applicant has provided a statement by an appropriate authority that provides evidence about whether or not the person has a criminal history.

Has the applicant provided a statement from an appropriate authority?

1. The delegate’s decision provided to the Tribunal by the applicant, it indicates that in her visa application the applicant informed the Department that in the past 10 years she was imprisoned in Singapore.  During her stay in Singapore she entered Singapore using two different names and dates of birth and provided finger prints to the Singaporean authorities under each of these identities.  In 2006 she was convicted and sentenced to eight months imprisonment for using someone else’s passport to enter Singapore.  After she served that sentence in Singapore she was deported to China.

2. The Department requested the applicant provide police clearance certificates for all the names she has been known in Singapore so that it could determine whether or not the applicant satisfies PIC 4001.  The Department also requested the applicant provide documents regarding her 2006 conviction.

10) The applicant was first requested to provide the required documentation on 28 October 2015 and was granted a 28 day extension on 6 November 2015.  On 7 November 2015, the applicant provided the Department a Singaporean National Police Certificate issued in the name of GUI, Yanli.  On 8 September 2016 the Department gave the applicant 28 days to provide police clearance certificates in all the names she has been known by in Singapore and official documentation in relation to her conviction.  A 28 day extension was granted on 10 October 2016.  On 7 November 2016, a further 28 day extension was granted.  On 2 December 2016, the Department requested that further evidence and information be provided by the applicant within 14 days.

11) On 12 December 2016, the applicant advised the Department by telephone that she used her sister’s passport, in the name of GUI Yanhong, to enter Singapore in October 2003, but that she could not provide that passport or official documents regarding her conviction.  On the same date, in addition to providing various documents in the name of GUI Yanli, she also provided the Department with evidence of her application to the Singaporean Police to obtain a copy of the police clearance.

12) The delegate wrote in her decision that:

“However, the evidence provided is not sufficient to prove that the applicant made a valid application to the Singapore Police and the application is being processed.  Given that the applicant has previously provided the Department a Singaporean National Police Clearance Certificate issued in the name of GUI, Yanli, I am not satisfied that it is unreasonable for the applicant to provide a Singaporean police clearance certificate under the name of GUI Yanhong (the name the applicant previously used to enter Singapore”[1].

[1] AAT file, folio 8.

13) In respect of evidence provided to the Tribunal, the applicant provided:

a.A statement dated 3 July 2018 stating that in October 2003 she entered Singapore using the name GUI Yanhong (suggested by the travel agent).  She was subsequently detained for working illegally as she had breached her visa conditions. She was deported from Singapore.

In January 2004 she married a Singaporean citizen and went to Singapore in March 2004.  In April 2006 she submitted a spouse visa application.  The Singaporean Department of Immigration found (through her fingerprints) that she used the name of GUI Yanhong to enter in Singapore in 2003.  As she had breached the Singapore immigration law she was sentenced and imprisoned for 8 months.  After serving the sentence she was deported to China on 17 December 2006 and has not returned since then.

The statement states that she went to the Consulate-General of the Republic of Singapore in Guangzhou and the officer told her they were not able to provide her any other certificates as the Certificate of Clearance was issued already.

b.A copy of a statement provided to the Department dated 29 November 2016.  In it she refers to her requests to the Singapore Police Department.  It also states that the situation occurred about 10 years ago when she was very young.

c.Copies of receipts and of the application form and subsequent emails to the Singaporean Police seeking the certificate.

d.A submission from the applicant’s migration representative outlining the background, a timeline and summarises the attempts made to obtain the documentation required by the Department. 

14) The applicant has not provided a statement from an appropriate authority and therefore does not meet r.2.03AA(2)(a). The Tribunal has therefore considered whether it would not be reasonable for the applicant to provide the statement, and whether the requirement to provide it should be waived.

15) At hearing, the Tribunal asked the review applicant when he found out about his wife had been imprisoned in Singapore.  He stated that because her older sister is married to a friend of his in the same area in China, he has known about her situation for a long time.  When asked whose identity the visa applicant’s wife used to enter Singapore, he stated that it was her female cousin.  When asked why the visa applicant used her cousin’s identity, he stated that he doesn’t know and he didn’t ask.  He stated that he is aware that she used an agent to help her gain entry into Singapore.

16) The Tribunal asked the review applicant whether any further attempts had been made since February 2017 (the last date referred in written submission to the Tribunal regarding endeavours to obtain the Police Certificate), to obtain the documents required from Singapore.  The review applicant stated that their migration agent has been working with his wife trying to get the documents and has made phone calls to relevant authorities.  He stated that he has not been directly involved in all the steps although he has a general picture.

17) In relation to the visa applicant’s court conviction, the Tribunal asked the review applicant why the visa applicant did not have a copy of her conviction. He stated that it occurred over 10 years ago and when she got off the plane having been deported from Singapore, she threw it away.

18) The visa applicant was asked why she did not keep a copy of her conviction.  She responded that initially she did have a copy of the court conviction but because it was a long time ago and she moved a few times it got lost.  She couldn’t keep it safe.

19) The Tribunal put to the review applicant adverse information resulting from the inconsistent evidence regarding the visa applicant’s court conviction as required under s.359AA.  He stated that because each time when he was with the visa applicant it was only a short time he had not actually asked her about the conviction.  The Tribunal clarified whether he was saying that he had made up an answer.  He responded that he just thought she might have tossed it away.

20) At hearing, the visa applicant stated that she had travelled to Singapore in October 2003 using her own name and decided to return not long after.  Because it was less than three months since her previous trip the travel agent suggested that she use her cousin’s identity.  The applicant stated that her cousin worked for the travel agency.  The Tribunal put it to her that her explanation did not explain why she falsely used someone’s identity to gain entry to Singapore.  She stated that she did not have legal knowledge.  The Tribunal put it to her that a person does not need to have legal knowledge to know they should not be using someone else’s identity.  She stated that she had not known what the consequences would be.  She claimed she had made arrangements through the agent to obtain work in Singapore, but that got when she got to Singapore there was no company to hire her and she did not have money.  The Tribunal asked the visa applicant to confirm the Tribunal’s understanding of her evidence that her cousin worked for an agency, provided her with her own identity documents and claimed to arrange travel and work for her in Singapore but that when she got that there was no work.  She confirmed this was the case.  The Tribunal put it to her that she had used her cousin’s identity to deliberately bypass Singapore’s immigration laws.  She responded in the affirmative.

21) The Tribunal discussed with the visa applicant what further attempts had been made since those outlined in the written submission, indicating that the visa applicant went to the Consulate General of the Republic of Singapore on 16 February 2017.  She stated that the Consulate-General gave her the phone number of the Supreme or High Court in Singapore in relation to obtaining a copy of the court conviction but she had trouble obtaining information because she does not speak English. 

22) The applicant’s migration representative explained the further attempts that had been made by her on the visa applicant’s behalf to obtain both the Police Certificate and a copy of the court conviction.  She explained that when the Departmental case officer sent the second request the visa applicant had to lodge the request for the Police Certificate.  She said that as a non-citizen, the visa applicant needed a foreign ID number and this could not be done online.  She therefore sent an email.  The police website refers to the option of going to the Singapore Consulate-General, to obtain the Statutory Declaration, but when she went there she was told that pathway is only available for Singaporean nationals.  Or a formal letter from Immigration. 

23) The Tribunal asked the migration agent if she wishes to make any further oral submissions in respect of any further attempts to obtain the required police certificate. She stated that the only additional action, to that which is documented in the 13 July 2018 written submission, is that she attempted to use the ‘Live Chat’ option on the Singapore police website.  However, she stated unlike other ‘Live Chat’ facilities which connect you to an actual person, she stated that it was an automated response.  She explained that she asked about obtaining a certificate in the particular circumstances of the visa applicant, and kept receiving a generic response about obtaining police certificates, that did not address the questions and issues she was raising in the chat discussion.  The Tribunal asked her whether she had attempted to call the Singapore Police and explain the issues and the request.  She stated that she had done so at around the time of the review application was lodged in February 2017 and the call was either not answered or she had an automatic answer that did not able her to speak with someone directly.  In relation to the court conviction, the she tried once in 2017 but she did not record the details of her attempt.

24) The review applicant was asked why he believes the requirement for the visa applicant to provide the necessary Police certificate should be waived.  He stated that they have tried everything they can.  He stated that when she applied, he told her to write down everything truthfully.  The Tribunal put it to the review applicant that it has concerns that she has shown by her previous behaviour that she is prepared to flout immigration laws.  He responded that he knows.  He stated that the visa applicant used an agent in China to help her apply.  That’s why, this time he asked her to provide everything in true.  If not, she might lose her opportunity.

25) The visa applicant stated that despite her various attempts to obtain the documents she has been unable to do so.  She has not been in Singapore since 2006.  The Tribunal put to the visa applicant its concerns that she has demonstrated that she has been prepared to flout another country’s immigration laws.  She stated that she swears on her life she has tried everything.  She stated that because she and her husband are getting old and because she does not have children, she wants to be with him.  She stated that she is lonely. She asked that her request be considered.

Findings

26) The Tribunal has considered the written and oral evidence before it.  The Tribunal has put positive weight on the fact that the visa applicant self-declared in her application that she was imprisoned for immigration fraud in Singapore.  The Tribunal notes that this occurred in 2003 and that the visa applicant was in her thirties at that time.

27) The Tribunal accepts the written evidence before it that the visa applicant has endeavoured to obtain the statement from the Singapore Police in respect of the false identity she used to enter Singapore.  The Tribunal is prepared to accept the oral evidence and submissions that further attempts have been made by phone and using “live chat” to obtain the statement.  The Tribunal has had regard to the complexity of obtaining a document in a foreign country in the name of a different person.

28) The Tribunal has given consideration to the seriousness of immigration fraud and the extent to which this undermines her credibility.  In this regard, the Tribunal has considered the fact that she openly advised the Department of her previous deportation and immigration fraud.  This suggests that she now seeks to regularise her situation and be open about the past.

29) In respect of the inconsistent evidence put by the parties in relation to what happened to the visa applicant’s court conviction as required under s.359AA, the Tribunal has taken the view that while it raises concerns regarding the openness of their relationship the inconsistency does not materially affect the visa applicant’s ability to obtain the statement from the Singaporean authorities  The Tribunal has given weight to the other evidence provided that the review applicant encouraged the visa applicant to be open and truthful about her history and she has been.

30) In view of the evidence regarding the attempts that have been made to obtain the requested statement from the Singapore Police, the Tribunal is satisfied that it is not reasonable for the applicant to provide the requested statement from an approved authority, and that it is appropriate to waive that requirement under r.2.03AA(3). The applicant therefore is not required to provide the statement under r.2.03AA(2)(a).

Conclusion

31) On the basis of the above findings, the applicant meets r.2.03AA(2).

DECISION

32) The Tribunal remits the application for a Partner (Provisional) (Class UF) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 309 visa:

·Regulation 2.03AA(2).

Linda Holub
Member