Khin (Migration)

[2020] AATA 6093

Khin (Migration) [2020] AATA 6093 (15 December 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Sokonthea Khin

VISA APPLICANT:  Mr Bon Ly

CASE NUMBER:  1813994

DIBP REFERENCE(S): BCC2015/042405 BCC2015/1723224

MEMBER:Stephen Conwell

DATE:15 December 2020

PLACE OF DECISION:  Melbourne

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

·Public Interest Criterion 4020 for the purposes of cl.309.225 of Schedule 2 to the Regulations.

Statement made on 15 December 2020 at 2:07pm

CATCHWORDS
MIGRATION –Partner (Provisional) (Class UF) visa – subclass 309 – failed to meet PIC 4020(2A) – the Tribunal is satisfied as to the applicant’s identity – evidence provided –decision under review remitted

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl 309.225, Schedule 4

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 on 2 May 2018 to refuse to grant the visa applicant (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 29 May 2015. The delegate refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl.309.225 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because on the evidence submitted the delegate was not satisfied as to the applicant’s identity. The delegate concluded that the applicant did not meet Public Interest Criterion (PIC) 4020(2A).

3. The review applicant (sponsor) was represented in relation to the review by her registered migration agent.

4. On 14 May 2018, the sponsor applied to the Tribunal for review of the primary decision. The sponsor was represented in relation to the review by her registered migration agent.

5. On 25 August 2020, the sponsor applied to the Tribunal for priority processing of the application for review. On 3 September 2020, the Tribunal wrote to the sponsor refusing the request for priority processing of the application. On 7 September 2020, the Tribunal again wrote to the sponsor informing her that after reconsideration of the request, the Tribunal had decided to give priority to the application.

6. Pursuant to s.360(2)(a) of the Act, the Tribunal determined that it should decide the review in the applicant’s favour on the basis of the material before it. The sponsor was informed that the Tribunal considered that a hearing was no longer required.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in this review is whether the applicant meets Public Interest Criterion 4020 (PIC 4020) as required by cl.309.225 for the grant of the visa. Broadly speaking, this 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).

9. 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). 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.

   Background

10. The parties’ application for a Prospective Marriage (Class TO) (subclass 300) visa was refused by the delegate on 28 January 2016. the decision was appealed by the sponsor on 9 February 2016. The applicant and sponsor provided evidence to the Tribunal (differently constituted) that they were married in Cambodia on 6 August 2016 and registered the marriage on 9 August 2016. The matter was remitted for reconsideration with the direction that the application be taken to be an application for a Partner Provisional (Temporary) (Class UF) (subclass 309) and Partner (Residence) (Class BC) (subclass 100) visa.

11. The applicant had submitted the following identity documents to the Department for consideration:

    ·      Birth Certificate showing civil status registration 25 October 2013;

    ·      National identity card issued 27 May 2014;

    ·      Passport issued 12 November 2013;

    ·      Residence book issued 27 August 1999 showing civil status registration on 6 April 2015.

12. As the submitted documents were recently issued, on 31 January 2018 the Department requested the applicant to provide evidence of original registration with the Sangkat (Commune office) within 28 days. The applicant was also advised that if he could not provide the requested evidence, the decision-maker may not be satisfied as to the applicant’s identity and the application may be refused.

13. On 7 March 2018 the Department received a ‘letter of guarantee’ from the applicant stating that the applicant’s identity documents had been stolen in a house robbery on 5 February 2013 and consequently he had applied for new documentation from the authorities. No other identity documents were provided to the Department. The applicant has also not indicated any attempt to obtain copies of the initial civil status registration with the Cambodian authorities.

14. From Country Information and other information regarding identity documents the Department concluded that identity documents in Cambodia cannot be considered reliable, particularly if issued in recent years. In the absence of older supporting documentation in relation to the applicant’s identity, the Department was not satisfied as to the applicant’s identity and found therefore that the applicant did not meet PIC 4020 (2A).

15. The delegate’s decision was based solely upon the applicant’s failure to meet PIC 4020(2A), which requires that the applicant satisfies the Minister as to the applicant’s identity. The other elements in PIC 4020 are not in issue in this case and will not be considered further by the Tribunal.

    Has the applicant satisfied the identity requirements?

16. PIC 4020(2A) requires an applicant satisfy the Tribunal as to his or her identity. The Explanatory Statement to the Regulation that introduced this requirement suggests that in considering this criterion, decision-makers may have regard to a range of identity documents, including a person’s passport, but will need to consider the applicant’s individual circumstances, including whether they have access to identity documents, when determining if the identity requirements are satisfied.[1]

    [1] Explanatory Statement to SLI 2014, No.32, at 3.

17. On 29 October 2020 the Tribunal wrote to the sponsor via her representative requesting documentary evidence in support of her case, to be submitted by 12 November 2020. On 4 November 2020 the Tribunal received a travel itinerary via an online submission indicating that the sponsor was scheduled to depart Australia on 15 November 2020 to spend several months in Vietnam. In response the Tribunal on 9 November 2020 wrote again to the sponsor’s representative enquiring whether the sponsor intended to provide the documentary evidence requested by the Tribunal.

18. On 10 November 2020 the Tribunal received a request from the sponsor for an extension of time in which to provide further documentary evidence. The Tribunal responded the next day granting an extension of time to 9 December 2020.

19. On 9 December 2020 the Tribunal received an original copy of the applicant’s family register, along with a certified translation of the same in English. The Tribunal has considered the identity documentation submitted by the applicant.  Based on this document, the Tribunal is satisfied as to the applicant’s identity.

20. Therefore, the applicant meets PIC 4020(2A).

    Has a visa previously been refused on the basis of a failure to satisfy PIC 4020(2A)?

21. PIC 4020(2B) requires that neither the applicant nor any family unit member have been refused a visa because of a failure to satisfy the identity requirements in PIC 4020(2A) during the period starting ten years before the application was made and ending when the visa is granted or refused. This requirement does not apply to a person who was under 18 at the time the application for the refused visa was made: PIC 4020(2BA).

22. There is no evidence before the Tribunal that the applicant or any member of the family unit had been refused a visa in the ten years prior to the date of application for the Partner visa because of a failure to satisfy cl.4020(2A). Therefore cl.4020(2B) is met.

23. On the basis of the above, the applicant satisfies PIC 4020 for the purposes of cl.309.225.

    DECISION

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

    ·Public Interest Criterion 4020 for the purposes of cl.309.225 of Schedule 2 to the Regulations.

    Stephen Conwell
    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. 

    …