Mohamed (Migration)

[2023] AATA 3621

Mohamed (Migration) [2023] AATA 3621 (2 October 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Hamid Mohamed

VISA APPLICANT:  Ms Eiman Agib Elsheikh Mustafa

CASE NUMBER:  2306452

HOME AFFAIRS REFERENCE(S):          BCC2019/3493692

MEMBER:Christine Kannis

DATE:2 October 2023

PLACE OF DECISION:  Perth

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 02 October 2023 at 2:03pm

CATCHWORDS

MIGRATION – Partner (Provisional) (Class UF) visa – Subclass 309 (Partner (Provisional)) – satisfied as to the identity – identity details – passports and identity documents – variations of names – impact of civil war in Sudan – age assessment in recording dates of birth – decision under review remitted      

LEGISLATION

Migration Act 1958, ss 5, 65, 359
Migration Regulations 1994, Schedule 2, cl 309.225; Schedule 4, Public interest Criterion 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.

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 Home Affairs on 20 April 2023 to refuse to grant the visa applicant a Partner (Provisional) (Class UF) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The visa applicant applied for the visa on 12 July 2019. The delegate refused to grant the visa on the basis that the visa applicant did not satisfy the requirements of cl 309.225 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the delegate found she did not meet public interest criterion (PIC) 4020.

3. A copy of the Decision Record was submitted to the Tribunal by the review applicant for the purposes of the review

4. The review applicant appeared before the Tribunal on  26 September 2023 to give evidence and present arguments. The Tribunal also received oral evidence from the review applicant’s daughter, Ms Rana Mohamed, and from the visa applicant by telephone. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic (Sudanese) and English languages.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

   The law

6. The issue in this review is whether the visa applicant meets 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: cl.4020(1); and

   ·the applicant and each member of the family unit has not been refused a visa because of a failure to satisfy cl.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: cl.4020(2) and (2AA); and

   ·the applicant satisfies the Minister as to his or her identity: cl.4020(2A); and

   ·neither the applicant nor any family unit member has been refused a visa because of a failure to satisfy cl.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: cl.4020(2B) and (2BA).

7. 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.

8. The issue in this review is whether the visa applicant satisfies the identity requirements in PIC 4020(2A). 

   The delegate’s decision

9. The delegate assessed the visa applicant under cl 4020(2A) and the Tribunal has reviewed this requirement of PIC 4020. The delegate was not satisfied of the visa applicant’s identity due to inconsistent information regarding her name and date of birth provided to the Department. The delegate’s decision was based on the following:

   ·On 12 July 2019, the visa applicant provided the following:

   oSudan Passport [Number 1] (expiry [in] 2020) stating her name as Eiman Agib Elsheikh Mustafa born on 01 February 1957;

   oBlurred copy of untranslated document called identity card which was unreadable except for stating  “01/02/1957”;

   oUntranslated page of another national ID card (unable to establish if it belongs to the applicant); and

   oCopy of a page of a passport (not bio data page) used for entering Australian in 2009 stating her date of birth as 03 June 1959.

   ·Prior to a decision being made, the visa applicant was requested on several occasions to provide additional information including but not limited to:

   oClear, readable, colour copy of the biodata page of her current passport (Sudan Passport [Number 1] issued [in] 2015 and expiry [in] 2020) and all previous Sudanese passports.  She was advised that the Department were aware of her holding Sudan Passport [Number 1] and Sudan Passport [Number 2].

   oCopy of her Birth Certificate endorsed by the Sudanese Ministry of Foreign Affairs and its English translation. She was advised that the Birth Certificate must list the names of both her parents (where applicable) and that if her country of birth does not issue birth certificates, she was to provide written notification stating this, and a copy of her country's equivalent documentation.

   oCopy of her original Marriage Certificate endorsed by the Sudanese Ministry of Foreign Affairs. She was advised that only the English translation had been provided.

   oClear, readable, copy of her national identity card(s) to include both sides of the card(s) and a translated version (if applicable).

   ·In response, the following relevant documents were provided to the Department:

   oForm 80 Personal particulars for Character assessment listing the applicant’s  name and date of birth as Eiman Elsheikh dob 1 February 1957 and other name spelling as Iman Al-Sheikh. Her passport number [Number 1] in the name of Eiman Agib Mustafa Elsheikh and her previous expired Sudan Passport [Number 2] issued in the Sudan [in] 1976 were declared. Her Sudan ID Card [Number 3] was also declared.

   oEnglish translation of a Marriage Certificate between Hamid Al-Basheer and Iman Al-Sheikh (dates of birth not stated).

   ·On 9 March 2023, a Natural Justice letter was sent to the authorised contact (Ms Rana Mohamed) inviting the visa applicant to comment on the evidence and/or information considered to be inconsistent/ inadequate in relation to her claimed identity. The letter advised that requests to provide additional information and evidence of the visa applicant’s identity were requested on 5 November 2021, 13 December 2021, 5 April 2022, 17 August 2022, 5 December 2022 and 2 February 2023 and that following the requests, no further information had been received by the Department.

   ·No further information was provided to the Department in response to the Natural Justice letter.

   Evidence provided prior to the hearing

10. The following additional documents were provided to the Tribunal prior to the hearing:

    ·A UNHCR Asylum Seeker Registration Card (translated and certified)  issued on 15 June 2023 in the name Eiman Agib Elsheikh Mustafa, indicating her date of birth to be 01 February 1957, her passport number to be [Number 1] and her date of arrival in Egypt as 29 April 2023;

    ·Passport [Number 1] issued by the Republic of the Sudan in the name Eiman Agib Elsheikh Mustafa indicating her date of birth to be 01 February 1957;

    ·A photograph of a woman which appeared to be a photograph of the person in Sudan Passport [Number 1];

    ·Translated and certified Sudan exit stamp of a passport stating the exit was dated 23 April 2023; and

    ·Two photographs of the review applicant showing him holding a sign (not translated) dated 12 March 2023 and several photos described as showing “our home in Sudan after we moved to another place”.

    Evidence provided during the hearing

    The issue of the visa applicant’s name

11. The review applicant and Ms Mohamed both gave evidence that in the Sudan a person does not really have a surname. The review applicant told the Tribunal that there is no such thing as a surname and often a person chooses to include their father’s or their grandfather’s name. Ms Mohamed said that the visa applicant’s name is Eiman Agib and Elsheikh is her grandfather’s name.

12. The Tribunal notes that the names provided to the Department and in the documents provided all include the name Eiman and all or some of the names Agib, Elsheikh and Mustafa.

13. Notwithstanding that the visa applicant has previously used variations of her name including in Australian visa applications, the Tribunal accepts that the visa applicant’s name is Eiman and the other names used by her are family names. Accordingly, the visa applicant’s name is not an issues for the purposes of this review and her identity.

    The issue of the visa applicant’s date of birth

14. In response to the Tribunal asking  the reason a copy of the visa applicant’s Birth Certificate has not been provided, the review applicant initially said he had not received correspondence from the Department requesting the Birth Certificate. The Tribunal confirmed that the Department’s requests for information and the delegate’s decision were sent to his daughter, Ms Mohamed, and therefore he should have been aware of the requests.

15. The review applicant told the Tribunal that a delegate of the Department in the Sudan told him that all the required documentation had been sent to Australia. However, he then went on to say that he was about to travel to the Sudan to obtain the requested documents but war broke out and it was chaos in the Sudan.  The review applicant explained that due to the daily demonstrations and general chaos, there are no government departments with whom he could discuss the obtaining of documents such as a Birth Certificate. He confirmed that he travelled to the Sudan in November 2022 and returned to Australia in May 2023. He said the COVID-19 pandemic precluded travel prior to November 2022.

16. The Tribunal obtained documentation submitted to the Department in relation to the visa applicant’s Application to visit Australia as a sponsored family visitor in 2009 and Application for [permanent visa] in 2013. The Tribunal put information provided in the documentation to the review applicant utilising the s 359AA procedure of the Act.

17. The Tribunal put to the review applicant that the visa applicant’s application for a Visitor visa in 2009 stated her date of birth to be 03 June 1959 and a page in the passport used for entering Australia indicated a date of birth of 03 June 1959.

18. The Tribunal put to the review applicant that in relation to the [permanent] visa in 2013, the visa applicant’s date of birth is indicated to be 03 June 1959.

19. The Tribunal put to the review applicant that the in the visa applicant’s current Partner visa application and in her Sudan Passport [Number 1], her date of birth is indicated to be 01 February 1957.

20. In response to the Tribunal asking the review applicant about the inconsistent dates of birth, he said he wasn’t involved in the earlier visa applications and it was his daughter who completed the documents. The Tribunal asked Ms Mohamed the reason the visa applicant’s date of birth was indicated to be 03 June 1959 in the earlier visa applications. She said she could not provide a reason and would have relied on information provided by visa applicant.

21. The Tribunal asked the visa applicant to explain the reason she provided different dates of birth in her visa applications and passports. In response, she said her Birth Certificate records her year of birth as 1959. She said this information was obtained from medical records and a visual assessment of her age by government officials and she used this information previously in her visa applications. The visa applicant told the Tribunal that she knows she was born in 1957 and is currently 66 years old. She said all her personal details including her date of birth are now stored in government records and that information was used to issue her National ID Card and her Sudan Passport [Number 1]. She said when she applied for that passport she was not required to provide any additional documents because her National ID Card information was used.

22. The visa applicant referred to the unreliable basis of the information in her Birth Certificate and said the information stored for the National ID card purposes is correct.  She could not provide the basis for the date of birth of 01 February 1957 other than to say she knows when she was born.

23. The Tribunal notes that a document described as a National ID Card was provided however it was unreadable and untranslated except for stating  “01/02/1957”.

24. Despite the limited evidence and the different dates of birth provided to the Department, the Tribunal accepts the visa applicant’s evidence at the hearing, which was given in a forthright and spontaneous manner, that she was born in 1957. The review applicant and the visa applicant both described the situation in the Sudan as chaotic and the difficulties obtaining documents from government departments. Th visa applicant told the Tribunal that the year stated in her Birth Certificate was made partly on the basis of a visual assessment. The DFAT Country Information Report for the Sudan says that long term instability in the Sudan has had a detrimental impact on reliable identification documentation. In relation to Birth Certificates the Report says ongoing instability means that some individuals do not have Birth Certificates and individuals can obtain an age assessment (at a hospital where an assessment is made based on an individual’s teeth) which acts as a Birth Certificate.

25. Following the hearing the review applicant provided a copy of document with the heading Embassy of the Republic of the Sudan which stated “This passport is renewed [in] 2023 and is valid till [2024]”. The review applicant told the Tribunal that the visa applicant’s passport had been extended however the documentation provided does not indicate the details of the passport, including the name of the holder,  which was renewed. Accordingly, the Tribunal places no weight on this evidence.

    Has the applicant satisfied the identity requirements?

26. PIC 4020(2A) requires an applicant satisfy the Tribunal as to his or her identity.  The Tribunal has considered that the visa applicant provided different names and different dates of birth in visa applications and in supporting documentation. The Sudan Passports  [Number 1] and [Number 2] and the UNHCR Registration Card contain photo identification and all appear to show the same female person.

27. The visa applicant’s name and date of birth are central parts of her identity. The Tribunal accepts the explanations provided by the review applicant and Ms Mohamed regarding the reasons the visa applicant has used different names. The Tribunal places weight on the evidence regarding the recording of an individual’s date of birth including that this may be by an age assessment and the consistent photo identification. In the Tribunal’s view, the visa applicant’s explanations for the different dates of birth provided to the Department are entirely possible explanations. 

28. The Tribunal is satisfied based on the oral evidence and breadth of documents before it as to the identity of the visa applicant. The Tribunal is satisfied that the visa applicant’s identity is as is recorded in her Sudan Passport [Number 1] and other documents as Eiman Agib Elsheikh Mustafa, born 01 February 1957.  Therefore, the visa applicant meets PIC 4020(2A).

    Has a visa previously been refused on the basis of a failure to satisfy PIC 4020(1)?

29. PIC 4020(2) requires the Tribunal to be satisfied that the applicant and each member of the family unit have not been refused a visa because of a failure to satisfy PIC 4020(1) in the period commencing 3 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(2AA).

30. There is nothing before the Tribunal to indicate that the visa applicant or any family member  has been refused a visa because of a failure to satisfy PIC 4020(1). Therefore PIC 4020(2) is met.

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

31. 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 10 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).

32. There is nothing before the Tribunal to indicate that the visa applicant or any family member  has been refused a visa because of a failure to satisfy the identity requirements. Therefore PIC 4020(2B) is met.

33. On the basis of the above, the applicant does satisfy PIC 4020 for the purposes of cl 309.225.

    DECISION

34. 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

    Christine Kannis
    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.

    …