Lluca (Migration) - [2022] AATA 4538

Lluca (Migration) [2022] AATA 4538 (6 December 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Marin Lluca
REPRESENTATIVE:  Mr Mahalingam Sutharshan (MARN: 0961664)
CASE NUMBER:  1935980
HOME AFFAIRS REFERENCE(S):          BCC2019/3628882
MEMBER:Terrence Baxter
DATE:6 December 2022
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal remits the application for an Employer Nomination (Permanent) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 186 - Employer Nomination Scheme visa:
·Public Interest Criterion 4020(1) for the purposes of cl 186.213(1) of Schedule 2 to the Regulations; and
·Public Interest Criterion 4020(2A) for the purposes of cl 186.213(1) of Schedule 2 to the Regulations.

Statement made on 06 December 2022 at 8:51am
CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – false or misleading information given in relation to application – satisfaction as to identity – birth certificate – documents left behind when family fled home country, confiscated at border or destroyed by authorities since – no registration found in home country – spelling of surname – reasonable attempts to obtain certificate – requirement to travel to region of birth – country information and DFAT travel advice – high degree of caution and reconsideration of need to travel – COVID-related travel restrictions – asylum in third country with strict procedures and passport issued – documentation not required for minister to be satisfied of identity – reliable evidence from mother – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 65, 375A
Migration Regulations 1994 (Cth), Schedule 2, cl 186.213(1), Schedule 4, criterion 4020(1), (2A), (5)
CASES
Arora v MIBP [2016] FCAFC 35
Batra v MIAC [2013] FCA 274
Confidential and MIAC [2013] AATA 144
Dhayakpa and MIBP [2015] AATA 310
Gashi (Migration) [2022] AATA 2014
QSNT and Minister for Home Affairs (Citizenship) [2019] AATA 248
Trivedi v MIBP [2014] FCAFC 42
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.
statement of decision and reasons
application for review

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 29 November 2019 to refuse to grant the applicant an Employer Nomination (Permanent) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant applied for the visa on 22 July 2019. The delegate refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl 186.213(1) of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) because:
a.the delegate found that the Public Interest Criterion 4020(1) (PIC 4020(1)) had not been met and that the applicant had not demonstrated that the requirements of that criterion should be waived under PIC 4020(4). The delegate found that the applicant had given, or caused to be given, to the Minister information that was false or misleading in a material particular in relation to the application for the visa; and
b.the delegate found that PIC 4020(2A) had not been met. The delegate found that they were not satisfied as to the applicant’s identity.
The applicant lodged an application for review of the delegate’s decision with the Tribunal on 20 December 2019.
The applicant appeared before the Tribunal by video conference on 20 September 2022 to give evidence and present arguments.
The Tribunal exercised its discretion to hold the hearing by video conference. The Tribunal determined it was reasonable to hold a hearing by video conference, having regard to the nature of this matter and the individual circumstances of the applicants. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by video conference.
The applicant was represented in relation to the review. The representative attended the Tribunal hearing.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
consideration of claims and evidence
The issue in this review is whether the visa applicant meets PIC 4020 as required by cl 186.213(1) 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).
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.
Has the applicant given, or caused to be given a bogus document, or information that is false or misleading in material particular?
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.
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.
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.
Evidence presented prior to the hearing
The applicant produced to the Department of Home Affairs (the Department) the following documents relevant to this requirement:
a.The visa application.
b.An academic transcript issued by The Manchester Metropolitan University, United Kingdom in respect of the applicant’s Engineering course between September 2006 and June 2010.
c.A National Police Certificate issued by the Australian Federal Police in respect of the applicant dated 9 April 2019.
d.The applicant’s New South Wales Driver Licence with expiry date 27 July 2019.
e.The applicant’s UK passport issued 21 October 2015.
f.A UK Police National Computer Nominal Report in respect of the applicant.
g.A Police Certificate (UK) in respect of the applicant dated 5 April 2019.
h.A statutory declaration of the applicant made on 9 September 2019.
i.A submission by Howe and Co., Solicitors, London to the Immigration and Nationality Directorate, Liverpool, United Kingdom dated 15 June 2004 regarding the grant of asylum to the applicant, his mother Bukurie Lluca and his sister Erisa Lluca on 15 November 2000.
j.The UK passports of the applicant’s father, Kujtim Lluca, and mother issued on 27 February 2017 and 26 October 2015 respectively.
k.A Form 80 Personal particulars for assessment including character assessment dated 19 September 2019.
l.News articles regarding destruction of personal documents in Kosovo before, during and after the conflict in 1998 and 1999 between forces of Kosovo and the Federal Republic of Yugoslavia (the Kosovo war).
m.A Country Report on Citizenship Law: Kosovo issued by the European Union Democracy Observatory (EUDO) dated January 2015.
n.Submissions from the applicant’s former migration agent dated 21 October 2019 and 24 January 2020.
o.The applicant’s UK driving licence issued on 12 June 2013.
p.A statement of the applicant’s academic results issued in June 2003.
q.An exchange of emails between the applicant and the Embassy of the Republic of Kosovo in Australia between 28 October 2019 and 22 November 2019.
r.A screenshot of the State Portal of the Republic of Kosovo regarding birth registrations.
s.A Department of Foreign Affairs and Trade (DFAT) Travel Advice current as at 18 October 2019.
t.An undated statement of the applicant’s mother.
The applicant produced to the Tribunal the following documents relevant to this requirement:
a.A copy of the delegate’s decision.
b.Copies of various documents provided to the Department.
c.A decision of the Tribunal (otherwise constituted) in the matter of QSNT and Minister for Home Affairs (Citizenship) [2019] AATA 248.
d.A letter issued by the Department to the applicant on 14 October 2019 (the procedural fairness letter).
e.A statement of the applicant’s academic results issued in June 2004.
f.A submission from the representative dated 2 November 2020.
g.A statement made by the applicant’s mother in support of her claim for asylum in the United Kingdom.
h.A report issued by the United Nations Commission on Human Rights dated 14 September 2020 regarding human rights in Kosovo.
i.A report issued by the Internal Displacement Monitoring Centre regarding the status of Kosovo dated 10 December 2007.
j.A report issued by the US Department of State dated May 1999 titled Erasing History: Ethnic Cleansing in Kosovo.
k.A report by The Independent International Commission on Kosovo published in 2000.
l.A United Kingdom Country Report on Serbia and Montenegro (including Kosovo) dated April 2005.
m.A report titled Under Orders: War Crimes in Kosovo issued by Human Rights Watch in October 2001.
n.A statement by the applicant dated 14 September 2022.
o.Employment references provided by a former employer and current employer of the applicant.
Analysis of the evidence available at the hearing
The visa application was made on 22 July 2019. In the application, the applicant stated that he had been born in Mitrovica, Kosovo on [Date]. In the Form 80 provided to the Department, the applicant made the same claim.
In response to a request from the Department that the applicant provide a copy of his birth certificate, the applicant provided a statutory declaration, made on 19 September 2019, in which he declared:
a.That he was the son of Kujtjim Lluca and Bukurie Lluca and was born in Mitrovica, Kosovo on [Date].
b.That when his family fled Kosovo for the United Kingdom in 2000, they left many identification documents such as birth certificates behind them, along with all of their property and belongings.
c.That the UK Home Office was satisfied as to the identity of the applicant and his family, that they were granted indefinite leave to remain in the UK and were later granted British citizenship.
The Department conducted enquiries regarding the applicant’s claims as to the date and place of his birth. The Form 80 and the applicant’s statutory declaration were referred to the Australian Embassy in Belgrade, Serbia for verification and its office in Belgrade contacted authorities in Kosovo. According to the procedural fairness letter, the Department had found that the applicant was not born in Kosovo and had not been registered as a citizen of Kosovo. On 14 October 2019, the delegate issued the natural justice letter inviting the applicant to provide comment on the information that was suspected to be false or misleading.
In response to the natural justice letter, the applicant’s former representative provided a comprehensive submission and material regarding the Kosovo war, confiscation of personal documents of Kosovar Albanians and the requirements to obtain a birth certificate in Kosovo, including the requirement to travel personally to the region to obtain a certificate.
The applicant also provided an unsigned statement by his mother stating that the applicant was born on [Date] in Mitrovica, Kosovo. Mrs Lluca stated that in 1998, during the Kosovo war, she fled Kosovo with the applicant and his sister and travelled to the United Kingdom where they were granted political asylum and later British citizenship.
The applicant has provided to the Department and the Tribunal the following documents which refer to either the date or the date and place of his birth:
a.The academic transcript issued by The Manchester Metropolitan University.
b.The Australian Federal Police certificate dated 9 April 2019.
c.The applicant’s New South Wales Driver Licence.
d.The applicant’s UK passport.
e.The UK Police National Computer Nominal Report.
f.The UK Police Certificate dated 5 April 2019.
g.The statements of academic results.
In each document, the applicant’s date of birth is stated to be [Date] and, where particulars of the place of birth are included, that place is stated to be Mitrovica, Kosovo.
In her statement in support of her claim for asylum in the United Kingdom, the applicant’s mother stated that:
a.Her family were supporters of the Democratic League of Kosovo, which was regarded by the authorities as illegal.
b.In March 1998, fighting broke out between the Kosovan Liberation Army and the Serbian Army (as described by Mrs Lluca).
c.Violence towards ethnic Albanians increased and the situation in Mitrovica became very dangerous, with Serbian civilians being armed by the police and raiding the homes of ethnic Albanians.
d.In September 1998, Serbian police raided the family home. Her husband was arrested and taken away and she had not seen him from that time until the making of her statement.
e.Following the commencement of a NATO bombing campaign against the Serbian regime in March 1999, conditions deteriorated further in Mitrovica, and she left her home with her two children and fled to Macedonia by foot.
f.At the border, the passports of the family and all other personal documentation were confiscated by Serbian paramilitaries and soldiers.
The applicant provided comprehensive documentation and commentary to the Department regarding the Kosovo war. That evidence included the following:
a.Newspaper articles regarding missing records in Kosovo. One article, dealing with claims to ownership of land, reports that cadastral documents relating to the period from 1983 to 1999 were removed by Serbian authorities, along with many other official documents. A second article, published in June 1999, reports that a member of the United Nations mission in Kosovo observed workers shredding documents in the Pristina administration building and that the UN had not secured buildings in Pristina housing birth, death and marriage certificates.
b.The EUDO country report. The report states that by the end of the Kosovo war, more than 850,000 Kosovar Albanian refugees escaped or were deported into neighbouring countries and that destruction of identity and property ownership documents became widespread. The report claims that the confiscation of personal documents was a deliberate attempt by the Serbian state to deprive Kosovar Albanians of key citizenship rights.
c.The International Criminal Tribunal for the Former Yugoslavia prosecution report. Witnesses testified that Serb and Yugoslav forces shelled their villages and harassed, assaulted and robbed them as they forced them to leave, and seized and destroyed their personal documents. The report states that there was evidence of a plan to permanently drive Albanians out of Kosovo and that Serbian forces systematically confiscated and destroyed Albanians’ identity documents. Witnesses claimed that police forces seized and destroyed identity documents and that police were under orders to seize documents from Albanians at the border, with the confiscated documents burned on the spot.
d.The US State Department report on ethnic cleansing in Kosovo. The report finds that there was a campaign of forced migration from Kosovo leading up to and during the Kosovo war. The report cites claims by refugees that Serbian authorities confiscated passports and other identity papers and systematically destroyed aspects of Kosovo’s civil registry, and that reports of identity cleansing were prevalent in refugee camps in Macedonia and Albania.
The exchange of emails between the applicant and the Kosovan Embassy in Australia reveals that:
a.The applicant enquired on 28 October 2019 regarding the procedure for a person born in Kosovo to apply for a birth certificate from Australia.
b.The Embassy advised the applicant to provide a copy of his Kosovo ID or passport.
c.The applicant advised the Embassy that he did not possess any documents from Kosovo. He enquired whether his parents would need to be present in a registry office in Kosovo or Serbia to process the issue of a birth certificate.
d.The Embassy asked the applicant whether he could produce hospital release records.
e.The applicant advised the Embassy that hospital records were not in his possession as the family left Kosovo in 1998 without any documents at all. He provided a copy of his UK passport.
f.The Embassy advised the applicant that he or a family member must make a request in his birth municipality.
g.The applicant enquired whether this request could be made from Australia.
h.The Embassy advised the applicant on 22 November 2019 that the request must be made by him or a member of his family in his birth municipality.
The screenshot of the State Portal of the Republic of Kosovo reveals that registration of the birth of a child is carried out within the municipal office of the civil status office in the territory in which the child was born. If the parents are married, both parents should be present at the registry.
The DFAT Travel Advice for Kosovo dated 18 October 2019 states that the official advice is “High degree of caution” because of the risk of terrorism. The DFAT Travel Advice further states that for the municipality of North Mitrovica (among others), intended visitors should reconsider their need to travel due to the high threat of violence.

In his submission dated 21 October 2019, the former representative:
a.Relied on the documents and commentary referred to in paragraph 23 of these Reasons.
b.Referred to the DFAT Travel Advice.
c.Submitted that the family did not wish to travel to Kosovo and risk everything they had worked for (referring to the claims for asylum and British citizenship) for the sake of getting a birth certificate for the applicant.
In his submission to the Department dated 24 January 2020 (after the date of the delegate’s decision), the former representative:
a.Confirmed that he had obtained access to the advice referred to in the procedural fairness letter that the Department’s office in Belgrade had contacted authorities in Kosovo and had found that the applicant was not born in Kosovo and had not been registered as a citizen of Kosovo.
b.Noted that the advice from the Department of Citizenship, Asylum and Migration in Pristina dated 3 October 2019 (the Pristina advice) stated that the person with the name Marin Luca born on [Date] was not recorded in Mitrovica or in their database.
c.Confirmed that the correct spelling of the applicant’s name was Marin Lluca (highlighting the double L in the applicant’s surname) and submitted that the informant to the Department was “looking for the wrong person by the name of Marin Luca”.
d.Requested that a search be undertaken for the applicant in his correct name.
The Department advised the former representative that the application was currently with the Tribunal and that all queries should be directed to the Tribunal.
In his submission of 2 November 2020, the current representative:
a.Made a comprehensive submission regarding the history of the Kosovo war, the destruction of identification documents of ethnically Albanian Kosovars and the incorrect identification of the applicant in the Pristina advice.
b.Submitted that, in those circumstances, the applicant should not be found to have given false or misleading information to the Department and should be found to have satisfactorily established his identity.
In his statement of 14 September 2022, the applicant stated that, in order for him and his family to be granted asylum in the United Kingdom, they were required to establish their identities to the Home Office and that this process involved strict procedures with a high level of scrutiny. The applicant also referred to a decision of the Tribunal (otherwise constituted) in the matter of Gashi (Migration) [2022] AATA 2014.
The evidence at the hearing
Mr Lluca agreed that he had made several statements regarding the date and place of his birth. He conceded that he could have no personal knowledge of those facts and that, in making the statements in various documents, he had relied on information provided to him by his parents.
Mr Lluca gave evidence of the circumstances surrounding the departure of his family from Kosovo. He said that he had a limited recollection of those circumstances as he had only recently turned 12 at the time. He could remember crossing the border into Macedonia in early 1999 where there were queues of people leaving Kosovo. He recalled his mother being required to hand over documents to security guards and he believed that they were not returned.
Mr Lluca also gave evidence regarding the application for asylum in the United Kingdom. He said that his mother was primarily involved in that process but that he could remember visiting various offices and attending hearings.
Mr Lluca was asked what attempts he had made to obtain a birth certificate from Kosovo. He said that he contacted the Kosovo Embassy both personally and by email. He said that he was originally advised that it would be necessary for his parents and himself to travel to Kosovo to make that application. He acknowledged that the email advice from the Embassy of 22 November 2019 stated that the personal attendance of him or a member of his family was required.
Mr Lluca was asked whether he had considered returning to Kosovo to apply for a birth certificate. He said that he had considered returning when he was still resident in the UK. He said that after the family had been granted asylum and later British citizenship (during which process the family had been required to establish their identity), he thought that the issue was a closed case. He had been informed by other Kosovars that documents issued in Kosovo proved to be false and he decided that it was not worth the risk to try to obtain documents which may be worthless.
Mr Lluca further stated that he had again considered returning to Kosovo after receipt of the delegate’s decision. He reached out to the Kosovo Embassy to enquire whether he could apply for a birth certificate from Australia but received confirmation that it would be necessary for him to return to Kosovo for that purpose. He was aware of the DFAT Travel Advice which was current at the time of the decision which recommended against travel to Mitrovica due to the high threat of violence. He was advised by members of the Kosovar community that even his British passport would not act as a safety net. He said that he thought that it would be detrimental to return to Mitrovica in those circumstances. He also said that, soon after receipt of the decision in late 2019, the border closures associated with the COVID-19 pandemic made it impossible for him to travel to Kosovo.
Mr Lluca stated that he held a Subclass 457 visa from 2016 and that the visa had expired in June or July 2020. He agreed that he held the Subclass 457 visa at the time of his Subclass 186 visa application on 22 July 2019. He stated that all information provided to the Department in relation to both visa applications was accurate.
Mr Lluca gave evidence of his professional qualifications and his current position as a Mechanical Engineer, which he described as a highly skilled occupation. He gave evidence in support of his claim that there were compelling circumstances affecting the interests of Australia and compassionate or compelling circumstances that affected the interests of an Australian permanent resident, such that the requirements of PIC 4020(1) should be waived.
The representative relied on his written submissions and further submitted that there were compelling circumstances affecting the interests of Australia for the requirements of PIC 4020(1) to be waived.
The evidence and submissions after the hearing
After the hearing, the applicant provided to the Tribunal several documents to support the applicant’s claim regarding compelling circumstances affecting the interests of Australia and compassionate or compelling circumstances affecting the interests of an Australian permanent resident.
The applicant also provided a statutory declaration of his mother made on 30 September 2022 confirming the statements contained in her undated statement which had been provided to the Department and the statement in support of her claim for asylum in the United Kingdom.
Departmental certificate
During the course of the review, the Department issued a certificate under s 375A of the Act with respect to the Pristina advice. The certificate was not signed, and the Department has acknowledged that the certificate was invalid. As the Pristina advice had been provided to the applicant prior to the date of the submission from the former representative on 24 January 2020, the Department advised that the certificate would not be re-issued.
At the hearing, the Tribunal notified the applicant of the issue of the s 375A certificate, of the acknowledgement by the Department that the certificate was not valid and that the certificate was not to be re-issued as the advice had already been disclosed to the applicant.
Consideration of the evidence and submissions
Upon consideration of the Pristina advice, the delegate formed the view that false or misleading information had been provided to the Department and issued the natural justice letter. After receipt of submissions and documents provided by the applicant in response to that letter, the delegate found that the applicant had given or caused to be given information that was false or misleading in a material particular. The applicant’s claim to have been born in Mitrovica was found to be information which was false or misleading in relation to his identity.
As the information which has been found by the delegate to be false or misleading relates to the applicant’s identity, it is appropriate to firstly consider whether the applicant has satisfied the requirement of PIC 4020(2A) that he has satisfied the Minister as to his identity.
Has the applicant satisfied the identity requirements?
PIC 4020(2A) requires an applicant to satisfy the Tribunal as to his or her identity.
The applicant concedes that he has been unable to provide to the Department or the Tribunal a copy of his birth certificate. This requirement has been considered by the Tribunal in a number of matters. In Confidential and Minister for Immigration and Citizenship [2013] AATA 144 (Confidential), the Tribunal found that an applicant had been invited on a number of occasions to provide documentation to establish his identity and that the applicant had not exhausted “all avenues of enquiry to find identification documentation”.
In Dhayakpa and Minister for Immigration and Border Protection [2015] AATA 310, the Tribunal found as follows at [117]:
Neither the Act nor the common law requires that identity can only be established by the production of documents appropriate to an established or undisturbed society. The decision in Confidential is not an authority that documentation is a requisite for the Minister to be satisfied as to identity. I accept the submission for the applicant that the case merely stands for the proposition that where an applicant has failed to avail himself of opportunities to secure evidence of identity which might reasonably be expected to exist and which he has been advised to secure, the application ought to be rejected. The question here is whether the identity can be established to the satisfaction of the Tribunal.
The Pristina advice regarding the applicant’s identity, which was relied on by the delegate, is problematic. It refers to a person described as Marin Luca, rather than to the applicant Marin Lluca. As this advice refers to a person other than the applicant, the Tribunal does not accept this document as establishing that there are no records in Mitrovica recording the birth of the applicant Marin Lluca.
The applicant conceded at the hearing that he had no personal knowledge of the place of his birth and that, in claiming to have been born in Mitrovica, he relied on information provided to him by his parents.
The Tribunal has carefully considered the evidence of the applicant’s mother regarding the circumstances of her fleeing Kosovo with her two young children after her husband had been removed from the family home approximately six months previously. Mrs Lluca has stated that their passports and identity documents were confiscated at the border with Macedonia.
Mrs Lluca’s evidence is supported by multiple documents provided by the applicant including newspaper articles, the EUDO country report, the International Criminal Tribunal report and the US State Department report.
The Tribunal was concerned at the hearing that Mrs Lluca’s evidence was in the form of one signed but undated statement and an unsigned and undated statement. The applicant has subsequently provided a statutory declaration from Mrs Lluca as to the circumstances which she has described. The Tribunal notes that there is a slight discrepancy between Mrs Lluca’s signed and undated statement which was provided to the Department and the unsigned statement produced in the United Kingdom in support of her asylum claim. In the first of those two documents, Mrs Lluca refers to fleeing Kosovo in 1998, whereas in the second document, she refers to leaving in May 1999. Having regard to the circumstances existing at the time when the family fled Mitrovica, the Tribunal does not attach any particular significance to this discrepancy. The Tribunal accepts that Mrs Lluca is an honest and reliable witness. She has declared as to the date and place of the applicant’s birth. The Tribunal considers that the evidence of the applicant’s mother in relation to these matters is the most persuasive evidence that could be provided, other than a formal birth certificate and accepts that evidence. The Tribunal also accepts her evidence as to the destruction of the family’s personal documents.
The Tribunal has also considered whether the applicant has taken reasonable steps to attempt to obtain a birth certificate. The applicant was questioned closely regarding these attempts at the hearing. The Tribunal accepts that, based on the enquiries made by the applicant, personal attendance in Mitrovica is required to obtain a birth certificate. The Tribunal also accepts that the DFAT Travel Advice, which was current at the time of the delegate’s decision, recommended a high degree of caution for travel to Kosovo generally and recommended against travel to Mitrovica and other northern municipalities. The Tribunal also accepts the applicant’s evidence regarding closure of the borders during the COVID-19 pandemic and the problems that this closure would have presented for personal travel to Kosovo. The Tribunal finds that the applicant has made reasonable enquiries to obtain a birth certificate.
The Tribunal also notes that the applicant was issued with a United Kingdom passport on 21 October 2015 which identifies his date and place of birth as [Date] at Mitrovica. The Tribunal is unaware of the exact nature of documents that were produced to the relevant British authorities to enable this passport to be issued but expects that reasonably rigorous requirements had to be met for the issue of the passport.
The Tribunal finds that the applicant has satisfied it as to his identity.
Therefore, the applicant meets PIC 4020(2A).
Going back then to the requirement under PIC 4020(1), having regard to the Tribunal’s finding that the applicant has satisfactorily established his identity, the Tribunal concludes that there is no evidence before it that the applicant has given, or caused to be given, a bogus document or information that is false or misleading in a material particular in relation to his Subclass 457 visa application or this application.
Therefore, the applicant meets PIC 4020(1).
On the basis of the above, the applicant does satisfy PIC 4020(1) and PIC 4020(2A) for the purposes of cl 186.213(1).
Given these findings, the appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa.
decision
The Tribunal remits the application for an Employer Nomination (Permanent) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 186 - Employer Nomination Scheme visa:
·Public Interest Criterion 4020(1) for the purposes of cl 186.213(1) of Schedule 2 to the Regulations; and
·Public Interest Criterion 4020(2A) for the purposes of cl 186.213(1) of Schedule 2 to the Regulations.
Terrence Baxter
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.
…