Kaur (Migration)

[2021] AATA 1078

Kaur (Migration) [2021] AATA 1078 (26 February 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Harmanjeet Kaur
Mr Manjit Singh
Mr Gurkirat Singh Bharaj
Mr Ekveer Singh Bharaj

CASE NUMBER:  1914639

DIBP REFERENCE(S):  BCC2017/4200936

MEMBER:Tim Connellan

DATE AND TIME OF

ORAL DECISION AND REASONS:         26 February 2021 at 4:55 pm (VIC time)

DATE OF WRITTEN RECORD:                4 March 2021

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decisions under review.

Statement made on 04 March 2021 at 2:21pm

CATCHWORDS
MIGRATION – Skilled Regional Sponsored (Provisional) visa – Subclass 489 (Skilled – Regional (Provisional)) – identity of secondary applicant husband – known by any other name – passport in new name contained different date of birth – inconsistent evidence about  timing of and reason for change – astrological significance or concern for safety – birth certificate with alternative spelling of one name – members of family unit – one child an Australian citizen – decision under review affirmed

LEGISLATION
Migration Regulations 1994 (Cth), Schedule 4, cls 489.211, 489.311; Schedule 4, PIC 4020

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

APPLICATION FOR REVIEW

1. This is an application for review of decisions made by a delegate of the Minister for Immigration on 23 May 2019 to refuse to grant the visa applicants Skilled Regional Sponsored (Provisional) Subclass 489 visas under the Migration Act 1958 (the Act).

2. At the hearing on 26 February 2021 the Tribunal made an oral decision and gave an oral statement of decision and reasons. The following is the written record of those reasons.

   STATEMENT OF DECISION AND REASONS

3. Mrs Kaur, you applied for a subclass 489 Skilled Regional Sponsored Provisional visa back on 10 November 2017 and that application listed you, Ms Kaur, as the primary applicant, your husband Mr Manjit Singh, as the secondary applicant and your two children Ekveer Bharaj and as Gurkirat Bharaj as secondary applicants.

4. The Tribunal has recently received evidence that Gurkirat Bharaj having lived in Australia for over 10 years has been granted Australian citizenship and therefore you advise is no longer a party to these proceedings.

5. Your application was refused by a delegate on 23 May 2019.  The delegate was not satisfied that you met the requirements for the grant of a 489 visa.  You appealed that decision to be reviewed by this Tribunal and with your application you included a copy of the primary decision.  And when I read from that decision, which I did to you today, it explains that the reason for the decision is that the delegate was not satisfied as to the identity of your husband Mr Manjit Singh and therefore found that he did not satisfy PIC 4020(2)(a).

6. Because of that finding he found that that you, Ms Kaur, did not satisfy cl. 489.211(3) as a member of the family unit of someone who satisfies PIC 4020 and the children did not satisfy cl. 489.311 because they were not members of the family of a person (the primary applicant) who holds a 489 visa.  And so the application was refused

7. And as I say, he or she was not satisfied as to the identity of Mr Manjit Singh. And reading from the decision the reason for those were that in your visa application your husband had listed his name as Manjit Singh with his date of birth as [Date 1]. He listed a passport number of [Number], a passport of India that he been issued in Melbourne in [2009].

8. In the application in the section dealing with your husband, it asked whether you had ever been known by any other name and the answer provided was “No”.  The Tribunal received a form 80 that you had signed on 19 January Mr Singh answering “No” to the question:

   Have you been known by any other names?

9. On 22 June 2018 the Department requested, amongst other items, evidence of Manjit Singh’s birth certificate and any evidence of any change of name.  On 20 August the Department received a statement dated 6 August from Manjit Singh.  The following claims were made in this statement:

   I admit that I have concealed the following information from the department:

   A. Previous name Amarjeet Singh.

   B. Original date of birth [Date 2].

   C. My previous illegal trips to [Country] 1995 and 2002.

   That the applicant Manjit Singh with date of birth [Date 2] was previously known as Amarjeet Singh.  The applicant Manjit Singh travelled to [Country] in 1995 illegally after contacting a number of agents and paying them to assist him to enter [Country] illegally.  That the applicant Manjit Singh applied for [a visa] in [Country] but was deported back to India. 

   That the applicant Manjit Singh enlisted the help of a local agent who obtained a new identity for him by way of a new passport with a new name and a new date of birth.

   That the applicant Manjit Singh travelled to [Country] in 2002 entering illegally again with this new identity.

   In seeking to be satisfied as to Manjit’s Singh’s identity the following information was relevant to my assessment.  His claim to be Manjit Singh as stated on the visa application form, form 80, signed on 19 January in which the applicant has claimed to have never been known by any other name and supporting documents issued in this name including police clearances from the relevant police authorities in Australia, [Country] and India, birth certificates as the father of the children, Gurkirat Singh Baraj and Ekvia Singh Baraj, and a copy of the passport with the number [Number].

   Regarding his claim to be Amarjeet Singh the statement dated 6 August 2018 provided by Manjit Singh in which he admits to concealing information regarding his identity, previous illegal travel to [Country] from the Department.  He states that his original identity was Amarjeet Singh with a date of birth [Date 2].  He admits to obtaining a new identity, namely Manjit Singh.

   With regards to the identity of Amarjit Singh a birth certificate in the name of Amarjit Singh with a date of birth [Date 2] was provided on 20 September 2018.

10. So, the delegate found there were three possible claimed identities. 

    1.    Amarjeet Singh with a date of [Date 2],

    2.    Amarjit Singh with a date of birth [Date 2] or

    3.    Manjit Singh with a date of birth [Date 1].

    The delegate went on:

    I have taken into consideration all the evidence provided in support of the applicant’s identity claims.  I believe the primary identity document, namely the passport [Number], which had been used to enter Australia is a bogus document and was obtained because of a false or misleading statement whether or not made knowingly.  I believe the applicant provided false information about their identity in obtaining the passport with number [Number].  I am not satisfied the applicant meets the identity requirements for this visa application.  Therefore, I am not satisfied the applicant is Manjit Singh.

    I have then considered if there is sufficient evidence for me to be satisfied as to Manjit’s Singh’s actual identity.  Manjit Singh has provided a statement that he is, in fact, Amarjeet Singh.  After consideration I give this document little weight as no supporting evidence was provided to support this identity.  Therefore, I am not satisfied that the applicant is Amarjeet Singh.

    Manjit Singh also provided a birth certificate in the name of Amarjit Singh.  Given the conflicting information received regarding Mr Manjit Singh’s claims I give this document little weight as there is no other evidence which was provided regarding his identity, therefore I am not satisfied the applicant is Amarjit Singh.

    I am satisfied that the applicant is not Manjit Singh as claimed in his application.  I am not satisfied he has provided sufficient evidence to establish his identity for the purposes of satisfying the identity requirements.  Based on the evidence before me I am not satisfied as to the identity of the applicant, therefore I am not satisfied the applicant meets PIC 4020(2)(a).  I therefore find that PIC 4020 is not met.

11. So that was the decision of the delegate.  We have today gone through a range of issues, your history, and a range of questions about your various statements and statements made on your behalf by agents.

12. When I asked you about what happened at the start you said that initially your parents sent you out from the Punjab.  You did not complete your final year of a Bachelor of Arts. You said they sent both you and your brother out of India.  Your brother went to the Ukraine and you went to Warsaw in Poland.  From Warsaw in Poland you say you went by car to [details deleted]. You were then taken by vehicle to [City] and after a few days you say you lodged [a visa] application.  After two years your [application] was refused and you were deported back to India.  You say that when you got back to India you worked for three years in a business that built the body of busses, the body coachwork of busses.

13. You have given oral evidence today to the Tribunal and you have made written statements in which you say your parents consulted an astrologer; in a Statutory Declaration made two days ago.  You said:

    My parents have firm belief in astrology and horoscopes, and they were advised that I should change my name to avoid future misfortunes.

14. So, you say it was because of this astrology reason that you changed your name.  You made this Statutory Declaration very recently and you told the Tribunal today your parents discussed the matter with an agent and asked him for legal formalities to change your name.  You say:

    I provided all my documents to the agent, which are required for changing the name, and he also drafted some legal documents like he made the affidavit for me to sign.  Therefore, in November 2000 I changed my name from Amarjeet Singh to Manjit Singh and made the affidavit of it.  I duly handed over my academic documents, a copy of my national card along with the affidavit of name change to the agent and I got my passport named Manjit Singh in 2001.

15. Your migration agent has made a submission that says in:

    In early 2001 the applicant received his new passport but realised the date of birth on it was incorrect.

16. You say in your Statutory Declaration:

    To my surprise I noticed the date of birth on the new passport was changed as well.  At that time, I had no idea if it was his intention or a mistake as the new passport had my date of birth as [date].

    Whereas you claim your actual date of birth to be [Date 2], you go on to say:

    From hindsight now I understand it may have been a bogus document and the agent may have forged this passport.

17. When I questioned you a number of times about that, you did not provide any satisfactory answers as to how an agent would profit or why an agent would create a forged passport and you say, “Well, I don’t know whether he did or he did not”.  You realised that the date of birth was wrong, but you say in your statutory declaration:

    I did not rectify this because I had to leave India with the passport urgently due to the safety concerns in Punjab.

18. So, there is no question these safety concerns were utmost in your mind, and you mention those in your very recent statutory declaration.  And what your agent says that:

    In September 2002 the first applicant moved to [Country] again under the name of Manjit Singh.

19. Well, if your new passport was provided to you in early 2001 and you did not leave until September 2007 I find it unacceptable that you say “I did not rectify it because I had to leave India with the passport urgently”.  You had a period of well over a year and a half where you had this passport that you realised had an incorrect date of birth on it.

20. In a statement that you made on 6 August 2018 you talk about the fact that you left India in 1995 because you were scared due to terrorism in the Punjab.  You said:

    After finishing my studies, I was doing farming in the Punjab.

21. Today you said you did not finish your studies, however:

    Terrorists were after us, therefore the only escape was to get out of India.  I contacted a number of agents and after paying them a hefty amount they made me enter [Country] illegally.

22. And that is the story that I told about you going to Warsaw and then overland to [Country]:

    I stayed in [Country] for two years.  I applied for [a visa]; however, it was rejected, and I was deported back to India.

23. What you said in this statement of 2018 is:

    When I came back to India due to safety I have to change my village and identity.  I took the help of a local agent and he got me a new passport with a new name and a new date of birth.

24. That statement indicates that because of safety reasons you went and sought to get a new identity, which you did, with a new name and a new date of birth.  And I believe that is a very different story to the story that you tell where you say “No, I changed my name because my parents had consulted an astrologer.

25. Your agent has put to us today that those two stories are not necessarily inconsistent.  I believe that they are inconsistent.  Your agent says that they are irrelevant to the issues at hand.  I believe they are critical to the issues at hand because they go to the fact that you changed your identity completely.

26. However, you say that you returned to India, and worked there for three years, then then in 2005 you again decided that to go to [Country].  You had a new passport, with a new identity, including a new name and a new date of birth but once again you did not apply for a visa to go to [Country], for some reason that I do not understand, you engage an agent and you go via Moscow and Poland and you go through the same process of being smuggled into [Country] in the back of a vehicle.  I cannot understand why someone travelling on a new passport with a new identity would make such arrangements.

27. When I asked why you chose to travel to [Country] that way, you say, “Because if I had been pulled up and they fingerprinted me they would recognise that there was an inconsistency and I would have been sent back”.  I do not believe that that is a reasonable fear because I do not believe people travelling on normal passports with visas are fingerprinted when they travel in and out of countries.  And if what you have got is a new passport with a new identity I am not sure why you would smuggle yourself illegally into another country.  When I ask why you did not apply for a visa to go to [Country] your response was “That was a mistake that I made”.

28. Your agent says he does not believe there are inconsistencies with the evidence that you have provided today with your most recent Statutory Declaration and with the submissions from the agent that I have read that came in both yesterday and today.  And he says he believes the written statement that was lodged back in August 2018 is a statement that was composed or written by a previous agent and he says he is instructed that you did not read or understand it.  However, what is unquestioned is that you signed it.  And your agent says, “But he’s a very simple man that does not understand and he cannot be held responsible for signing documents that were prepared for him by someone that he trusted as his agent”.

29. Well, Mr Singh, the situation is that these things have all come about as a result of the fact that you are applying for a visa and you have a history of travelling illegally as you call it.  And having been deported from a country after applying for [a visa], so I think it is reasonable to assume that you have some understanding of the requirements and what is expected and what it means to sign a document.

30. The fact that your statement says you changed your name and identity and got a new date of birth because you were concerned for your safety, as I said, is a very different story to the one that’s now being told, that you changed your name because your parents believe in astrology and changed your name to avoid future misfortunes.

31. You signed an application for this visa and in that application when asked whether you had ever had a different date of birth you said “No” and it asked whether you had ever had a different name and you said “No”.  Both of those answers were incorrect.  When I asked you about those answers today you say “Yes, well, I changed my name 20 years ago and I've been living with that name for 20 years and so I thought, well, that is what my name is these days”.  I don’t believe that is a satisfactory answer to what someone must realise is an important document.  And the question:

    Have you ever gone by a different name?

32. Is a very simple question and I don’t believe can be easily misunderstood or not understood.

33. You made this statement back in August 2018 and it is referred to in the decision record.  The decision was made in May 2019.  You say, “I did not go back and change my name on my passport because it just got out of hand and then it became more and more difficult to do so and I am sorry about that”.  And yet here we have a situation where a decision is made that says:

    I am not satisfied that you are Amarjeet Singh as said in a statement that you made.

34. Now, that is a decision of the Department, as I say, that was made back in May 2019 over a year and a half ago.  At no stage have you come back and said, “Hang on, that statement was wrong or whatever”.  The only thing we have heard is from a submission that was made by your agent yesterday that says, “You know, he did not understand what that statement was, and it was composed by a previous agent”.  Well, you have been aware that that was the Department’s view for well over a year and a half and you have made no effort to change that and bring it back.

35. I accept that we have a birth certificate that lists your name as Amarjeet Singh. 

36. You talk about going to [Country] illegally on two occasions.  I am unsure why you would have made illegal trips to [Country] when you had a valid passport, particularly the second time when you have got a passport that has a different name and a different date of birth to the one of the person that they had previously refused.

37. So, the role of the Tribunal here today is to consider whether or not you satisfy the requirements for the grant of a 489 visa.  The delegate was not satisfied there was sufficient evidence that you were either Amarjeet Singh or Amarjit Singh although she conceded that she did not believe that you were Manjit Singh, which was the name on which you had come to this country and that was the name on the documents that you had used to come into this country.

38. And that, of course, raises questions about PIC 4020(1), however the Tribunal is not going to consider those things because the difficulty I have here, Mr Singh, quite frankly is that there are a number of inconsistencies and discrepancies about the information that you have provided both orally here today and in your previous statements about who you are, about when documents became available and were available.  You say you changed your name in November 2002, but you have provided an Election ID card [Number] showing your name as Amarjeet Singh and that document is dated 7 January 2002.

39. You say that “Yes, the reason for that is that they collect electoral data for some months and, you know, do not put it out until months later and I did not change my name” or whatever.  But the questions around why you changed your name for safety reasons, astrology reasons, why you travelled to [Country] the second time being smuggled rather than travelling on a passport that you had every reason to believe would have enabled you to get through, there are, as I say, a large number of inconsistencies and discrepancies in the story that I do not accept and do not believe.

40. I therefore equally am not satisfied as to your identity and therefore I find that you do not satisfy PIC 4020(2)(a) and that is regarding your situation.  I therefore find that you are not eligible for a 489 visa.

41. Your wife is required to satisfy a range of requirements.  One of those is 489.211(3) and that requires that each member of her family unit satisfies Pubic Interest Criteria 4020.  As I have found that you do not satisfy PIC 4020 your wife does not satisfy 489.211(3).  And your children or in this case child do not satisfy 489.311, which requires him to be a member of the family unit of a primary applicant who holds a 489 visa. Your wife is the primary applicant, she does not hold a visa because she does not satisfy 489.211(3) and therefore, the children or your child does not satisfy 489.311.

1. Therefore, I find that you are not eligible for the grant of a 489 visa, that your wife is not eligible nor are your children.  And having made finding it is therefore the decision of this Tribunal to affirm the decision under review.

   DECISION

2. The Tribunal affirms the decisions under review.

   Tim Connellan
   Member