JAFFER (Migration)

[2017] AATA 2537

JAFFER (Migration) [2017] AATA 2537 (14 November 2017)

WRITTEN STATEMENT AND DECISION

Division:Migration & Refugee Division

Review Applicant:  Mr Carlos Ali Jaffer

Visa Applicants:  Mrs Tin Moe Nwe
Master Thiha Thiha
Miss Shoon Lei Yati Niang

Case Number:  1608684

DIBP Reference(S):  OSF2013/034438

Member:Nicholas McGowan (Sydney)

CATCHWORDS
Migration – Partner (Provisional) (Class UF) – Subclass 309 visa – Public Interest Criterion – Bogus document – False Death certificate of the applicant’s ex-husband

LEGISLATION
Migration Regulations 1994, Schedule 2, cl 309.225, cl 309.225(a), PIC 4020, PIC 4020(1), PIC 4020(4)

Decision

1. The Tribunal affirms the decision to refuse the applications for Partner (Provisional) (Class UF) Subclass 309 visas.

   Consideration of claims and evidence

2. The first named visa applicant (a Myanmar citizen) applied for the visa on 17 September 2013 on the basis of her relationship with her sponsor, the review applicant, who is an Australian citizen.

3. This delegate of the Minister for Immigration refused to grant the visa on 12 May 2016. The Minister’s delegate was not satisfied that the first named visa applicant met the Public Interest Criteria (PIC) 4020(1) and therefore did not meet the legislative requirements as set out in Schedule 2 of the Migration Regulations 1994 at 309.225(a). In addition, the delegate found there were no grounds to justify the waiver under PIC 4020(4).

4. The review applicant appealed the visa refusal to this Tribunal on 14 June 2016, and a public hearing was held on March 6, 2017.

5. The review applicant was represented in relation to the review by his registered migration agent. His parents were present and gave evidence. The review applicant provided the Tribunal with a copy of the visa refusal decision record as part of his review application.

6. Post-hearing evidence from the review applicant has been taken into consideration in this decision.

7. The Tribunal also received written advice (it sought) from the Department of Immigration post-hearing (folios 57-59). As the information in that advice was a repetition of the Department’s explanation for the visa refusal contained in the decision record, it was not put to the review applicant formally. For that reason, and because the review applicant had already provided the Tribunal with a copy of the refusal decision containing the Department’s findings, the Tribunal placed no adverse weight on the Department’s post-hearing advice.

8. What is clear to the Tribunal from the advice the Department provided (post-hearing), is that it is difficult for the Department to officially determine whether a death certificate issued in Myanmar is genuine or not. This was made plain in the advice which stated the Department “does not currently have any agreement with the Myanmar government…” (to verify death certificates), and their specific confirmation to the Tribunal that no such check (governmental) occurred in this case.

9. Relevantly in this case, the Public Interest Criteria 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: cl.4020(1). The requirements in cl.4020(1) can be waived: cl.4020(4).

10. In support of the parties’ partner application, the applicant provided a death certificate for her ex-husband, who she claimed is deceased. That death certificate was considered ‘non-genuine’ by the Department of Immigration. That matter is relevant to the broader criteria of the partner visa, because consideration of the nature of her relationship with the review applicant must consider the claim she is no longer married (to her ex-husband) because he is deceased (as evidenced by the death certificate).

11. After lengthy consideration, the Tribunal finds the death certificate is a bogus document. It has come to this finding because of one clear concern which has not been adequately explained even after taking all the other evidence into account – that is, the death certificate has been completed in a combination of two languages, the local language, and English. This seems highly unusual in a country where English is not an official language. Some dates, and the claimed cause of death, both appear clearly in the death certificate in written English. It is unclear what purpose using English would serve in the production of any official document in Myanmar, much less locally for the citizens concerned in this case. It occurs to the Tribunal that English may well have been used because the person or persons who requested the document had English readers in mind. However, there is no claim by the review applicant that this is the case. The Tribunal discussed these concerns with the review applicant during the public hearing at length. Further, the Tribunal noted that all the other ‘official’ documents provided by the review applicant to the Tribunal – including the ‘cemetery certificate’ provided post-hearing, all contain a written language other than English, with none using a combination. While one document may be differ from all others, no plausible explanation has been forthcoming for it in this instance, and which ultimately, causes the Tribunal to doubt its authenticity.

12. In the absence of a plausible explanation why an official death certificate is part-written in a language other than the official language of that country, or an unofficial language, but (at least) sometimes used and understood among local communities (in official documents), or any other explanation that might be plausible, the review applicant has not satisfied the Tribunal the death certificate in question is a genuine document. It follows therefore, that the Tribunal has not been satisfied that the document is not a bogus document.

13. In arriving at the above finding, the Tribunal placed no adverse weight on the incorrect translation of the date of the issuance on the death certificate (translated version). The Tribunal can see for itself that that error is clearly one of incorrect translation.

14. The Tribunal has then gone on to consider whether there are compelling circumstances (of the type specified), or compassionate or compelling circumstances (of the type specified) to not apply the Public Interest Criteria.

15. The Tribunal provided the opportunity at the public hearing for the review applicant to outline any such circumstances having explained them at the public hearing. The applicant’s claim in this regard was his relationship with his spouse and their marriage. The applicant outlined that he had been unable to see his wife since they last met in Malaysia in 2014.

16. The review applicant’s parents provided oral evidence that their son (the review applicant) missed his wife that this causes him distress. The review applicant has also provided a doctor’s report dated 27 June 2016 which speaks to the review applicant’s mental health. The Tribunal is sympathetic to these matters. The Tribunal nonetheless must consider them against the requirements of the Act. As a genuine relationship is the basis for the partner visa application, it is not in and of itself a compelling or compassionate circumstances, unless there’s something so forceful about that relationship, for example, in its inception, its maintenance, etc, such that the Tribunal determines the circumstances compassionate or compelling (relevantly). While a level of hardship is to be expected when a couple purse a migration outcome offshore, the Tribunal has no further or recent medical advice which indicates that the level of anticipated, or continued hardship, would be (or is) such that his circumstances are forceful enough to compel the Tribunal (relevantly) to apply the waiver in this case. Further, the review applicant has not satisfied the Tribunal that there is something so forceful about the nature of his relationship with his claimed wife such that the Tribunal should not apply the Public Interest Criteria in this case.

17. Given all the above, the Tribunal has not been satisfied that the applicant meets public interest criteria 4020, subclause 4020(1).

18. As clause 309.225 has not been met by the applicants, the criteria for the grant of the Partner (Provisional) (Class UF) (Subclass 309) visa are not met by the applicants.

    
    Statement made on 14 November 2017 at 1:26pm