Sanaee (Migration)

Sanaee (Migration) [2024] AATA 513 (31 January 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REVIEW APPLICANT:  Miss Mah Gul Sanaee
VISA APPLICANT:  Mr Mohammad Raza
REPRESENTATIVE:  Ms Karyn Anderson
CASE NUMBER:  2215719
HOME AFFAIRS REFERENCE(S):          OSF2013/019725 OSF2016/080159
MEMBER:Rachel Westaway
DATE:31 January 2024
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 31 January 2024 at 3:27pm

CATCHWORDS
MIGRATION –Partner (Provisional) (Class UF) visa - subclass 309 – an absence of reliable evidence to support the applicant’s claimed identity – applicant has provided information that is false or misleading in a material particular’ – failed to meet PIC 4020 – a prolonged separation of a minor Australian child and Australian permanent resident from immediate family member – persecution of Hazaras – compassionate or compelling circumstances that affect the interests of an Australian citizen – requirements of PIC 4020(1) should be waived – decision under review remitted
LEGISLATION
Migration Act 1958, ss 5, 65
Migration Regulations 1994, Schedule 2, cl 309.225, Public Interest Criterion 4020
CASES
Arora v MIBP [2016] FCAFC 35
Batra v MIAC [2013] FCA 274
Trivedi v MIBP [2014] FCAFC 42
Kaur v MIBP [2017] FCAFC 184
Plaintiff M64/2015 v MIBP [2015] HCA 50
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 Immigration and Border Protection on 15 February 2016 to refuse to grant the applicant a Partner (Provisional) (Class UF) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant applied for the visa on 30 January 2013. 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 (Cth) (the Regulations) because the delegate found there was an absence of reliable evidence to support the applicant’s claimed identity and could not be satisfied that public interest criteria 4020(2A) could be met.
The Tribunal, differently constituted (case number 1602436), made a decision to affirm the Department’s decision on 21 May 2018 on the basis that the review applicant’s subclass 155 (Five Year Resident Return) visa had been cancelled by the Department on 19 October 2017, and therefore the review applicant was no longer eligible to sponsor the visa applicant’s subclass 309 visa application.
On 9 August 2019, the Tribunal, again differently constituted, made a decision to set aside the cancellation decision and substituted a decision not to cancel the review applicant’s subclass 155 (Five Year Resident Return) visa. The basis of the original Tribunal’s decision (in case number 1602436) to refuse to grant the visa applicant a subclass 309 Partner visa was therefore rendered null and void.
The review applicant lodged an application with the Federal Circuit and Family Court of Australia on 14 December 2020. The Court found that had the Tribunal determined on any other ground that the visa applicant’s application should have been refused, including PIC 4020(2A) had not been satisfied, there would have been a proper exercise in jurisdiction. However, in the matter of case number 1602436, by failing to delay the hearing until the cancellation matter had been determined, the Court found that the Tribunal deprived itself of the capacity to consider the refusal application fully. The Court stated that the Tribunal’s failure to wait for the determination of the review applicant’s cancellation matter resulted in an unjust outcome in the sense set out in Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11 at [11], and that it was legally unreasonable for the Tribunal not to delay the determination of the refusal decision until such time as the cancellation decision had been determined. The matter was remitted back to the Tribunal for further determination (this review application).
The review applicant was invited to appear before the Tribunal appeared before the Tribunal on 2 May 2023, 19 May 2023, 1 June 2023, 30 June 2023 and 19 July 2023. These hearings were postponed at the request of the applicant and on 14 July 2023 the applicant requested that a decision on the papers be made.
The review applicant was represented in relation to the review.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
Background
The review applicant, Ms Mah Gul Sanaee (‘the sponsor’), is an Australian Permanent Resident who was born in Afghanistan and is 32 years old.
The visa applicant, Mr Mohammad Raza (‘the applicant’), is a citizen of Afghanistan who is 36 years old.
The applicant and sponsor claim to have first met on 13 February 2009 at the applicant’s home in Quetta. The applicant and sponsor claim that they began to plan to be married in 2010. The sponsor was granted her subclass 115 visa on 15 April 2010 and migrated back to Australia on 7 June 2010. The sponsor claims to have travelled back to Pakistan for the wedding in April 2012. The applicant and sponsor claim to have married on 20 May 2012 in Quetta, Pakistan. The marriage documents were registered on 13 June 2012.
The Department application
The applicant applied for a Partner (Provisional) (Class UF) (Subclass 309) and a Partner (Migrant) (Class BC) (Subclass 100) visa on 30 January 2013, on the basis of his marriage to the sponsor.
On 3 November 2014, the applicant attended an interview with Departmental officers at the Australia High Commission in Islamabad. The Departmental officer questioned the applicant regarding his claimed identity and was not satisfied that the applicant’s identity was as claimed, believing the applicant to provide inconsistent and changing answers.
On 15 February 2016, the Department made a decision to refuse to grant the applicant the visas on the basis that there was an absence of reliable evidence to support the applicant’s claimed identity, and the delegate could not be satisfied that public interest criteria 4020(2A) could be met.
Clause 309.225 requires that the applicant satisfy, amongst other things, public interest criteria 4020. Public interest criteria 4020(2A) requires that the applicant satisfies the Minister as to the applicant’s identity. The applicant provided a range of evidence to the Department to support their claimed identity, including an Afghan tazkira and a handwritten passport issued by the Afghan Consulate General in Quetta, Pakistan. The delegate considered the hand written Afghan travel document issued in Pakistan but placed minimal weight on the document due to the concerns held by the Department in relation to the free availability of fraudulent documents in Pakistan and Afghanistan, and that Afghan travel documents were issued based on the information contained in the applicant’s tazkira.
The Department afforded the applicant the opportunity to address the concerns regarding his identity at interview, where the interviewing officer identified numerous inconsistencies with information provided by the applicant in relation to their identity, including in relation to their claimed nationality. The delegate also found that the applicant had provided inconsistent information regarding previously declared family composition to the Department which led the delegate to place limited or no weight to the applicant’s verbal claims at interview.
The delegate noted that while the Department had processes in place to independently verify tazkiras with Afghan authorities, verification only confirms registration of the document, and does not confirm the accuracy of the information contained within. The delegate found that the reliability of the tazkira was hindered due to the lack of centralised offices and registries in Afghanistan, allowing individuals to obtain amended identity documents for a fee without scrutiny.
The delegate was not satisfied that clause 309.225 had been met in the absence of reliable evidence to support the applicant’s claimed identity and was not satisfied that public interest criteria 4020(2A) was met and refused the visas on this basis.
The Tribunal application
As noted above, the applicant initially applied to the Tribunal, differently constituted (case number 1602436) on 26 February 2016. The Tribunal at that instance affirmed the decision of the Department on 21 May 2018. The applicant appealed this decision with the Federal Circuit and Family Court of Australia, which ultimately remitted the application on 22 October 2022 to be reconsidered by the Tribunal, the current application.
Invitation to provide information under s.359(2) of the Act
On 8 May 2023, the Tribunal wrote to the applicant and sponsor’s authorised representative to invite the sponsor to provide information under s.359(2) of the Act. Specifically, the information requested the applicant to provide evidence to support his identity, and the sponsor and applicant to provide further evidence that they are in a spouse or de facto relationship. The letter provided the sponsor and applicant 14 days to provide the requested information or request an extension. It also stated that if the information was not received within the period allowed or as extended, the Tribunal may make a decision on the review without taking further action to obtain the information, and that the sponsor would lose any entitlement they may have as the review applicant to appear before the Tribunal and give evidence.
On 22 May 2023, the Tribunal received an email from the authorised representative requesting an extension of time to respond to the Tribunal’s invitation until 29 May 2023. The Tribunal agreed to the extension as requested.
On 22 May 2023, the Tribunal received a partial response to its invitation, with the applicant’s representative stating that the remaining evidence would be provided by 29 May 2023. The submission included:
·photographs of the applicant and sponsor’s family over a number of years, including photographs of the wedding ceremony
·tickets for flights by the sponsor to Quetta, Pakistan from August 2022 to November 2022.
·marriage certificate issued by the Consulate General of the Islamic Republic of Afghanistan in Quetta, registered on 13 June 2012.
·the applicant’s Afghani passport issued on 5 October 2020, expiring 5 October 2025.
·the applicant’s Afghan Tazkira
·screenshots between the applicant and sponsor on the Viber app from 2021 and 2022
On 10 July 2023 the applicant’s authorised representative responded to the invitation request and submitted two separate emails, these included:
·Statement from Mohammad Raza dated 10 July 2023.
·Statement from Mah Gul Sanaee dated 10 July 2023.
·Statement from Ghulam Sahki dated 19 May 2023.
·Taskera of Ghulam Sahki and NAATI translation.
·Proof of Mah Gul’s miscarriage dated 26 January 2023.
·Witness letter with contact details – multiple people in Pakistan and identification documents signed and undated. Names included:
1.       Asif
2.       Sultan Hussain
3.       Ramzan
4.       Rahima
5.       Ghulam Raza
6.       Amir Mohammad
·Witness letter from Shaiesta Kazimi dated 2 June 2023.
·Witness letter from Sabira Najibi dated 3 June 2023.
·Witness letter from Massuda Wafajo dated 3 June 2023.
·Witness letter from Ali Arsalan dated 9 July 2023.
·Further Viber communications between the applicant and sponsor.
·Photos of the applicant and sponsor together and with family and friends.
·Certificate from Muslim Hands for Mohammad Raza dated 2008.
·Certificate from Excellent English Language Centre for Mohammad Raza dated 28 October 2000.
·Employment reference for Mohammad Raza from Excellent English Language Centre dated 2 April 2013.
·Employment reference for Mohammad Raza from the KB Institute dated 5 July 2023.
·NAATI translation of original Afghan taskera for Mohammad Raza dated 4 October 2020.
·NAATI translation of marriage certificate documents dated 13 June 2012.
On 23 June 2023, the Tribunal received an email from the authorised representative requesting an extension of time to respond to the Tribunal’s invitation until 10 July 2023. The Tribunal agreed to the extension of time request.
Invitation to comment on or respond to information under s.359A of the Act
On 8 May 2023, the Tribunal wrote to the authorised representative to invite the sponsor under s.359A to comment on or respond to invitation received by the Tribunal that may be considered adverse to their application. Specifically, that the Tribunal had access to documents provided by the Department of an investigation relating to members of the sponsor’s family and their immigration history, and that during interview on 19 May 2014 the applicant was alleged to have ‘constantly changed or updated his previous answers’ regarding his identity to satisfy new lines of questioning and provided information which was inconsistent with previously declared family composition.
The letter stated this information was relevant because it raised concerns regarding the applicant’s identity, and that if the Tribunal was to rely on this information in making its decision, the Tribunal may find that the applicant had provided inconsistent and unreliable evidence regarding his identity and this would form the reason or part of the reason for affirming the decision under review because the applicant would not meet the requirements of public interest criteria 4020(2A). The letter provided the sponsor and applicant with 14 days to provide comments or respond to the information or request an extension of time to respond. The letter also stated that if the Tribunal did not receive the comments or response within the period allowed or as extended, the Tribunal may make a decision on the review without taking further action, and that the sponsor would lose any entitlement they might have to appear before the Tribunal and give evidence or present arguments.
On 22 May 2023, the Tribunal received an email from the authorised representative requesting an extension of time to respond to the Tribunal’s invitation until 29 May 2023. The Tribunal agreed to the extension of time request.
On 23 June 2023, the Tribunal received an email from the authorised representative requesting an extension of time to respond to the Tribunal’s invitation until 10 July 2023. The Tribunal agreed to the extension of time request.
On 10 July 2023 the applicant’s authorised representative responded to the s.359A request and submitted two separate emails, these included:
·Statement from Mohammad Raza dated 10 July 2023.
·Statement from Mah Gul Sanaee dated 10 July 2023.
·Statement from Ghulam Sahki dated 19 May 2023.
·Taskera of Ghulam Sahki and NAATI translation.
·Proof of Mah Gul’s miscarriage dated 26 January 2023.
·Witness letter with contact details – multiple people in Pakistan and identification documents signed and undated. Names included:
1.       Asif
2.       Sultan Hussain
3.       Ramzan
4.       Rahima
5.       Ghulam Raza
6.       Amir Mohammad
·Witness letter from Shaiesta Kazimi dated 2 June 2023.
·Witness letter from Sabira Najibi dated 3 June 2023.
·Witness letter from Massuda Wafajo dated 3 June 2023.
·Witness letter from Ali Arsalan dated 9 July 2023.
·Further Viber communications between the applicant and sponsor.
·Photos of the applicant and sponsor together and with family and friends.
·Certificate from Muslim Hands for Mohammad Raza dated 2008.
·Certificate from Excellent English Language Centre for Mohammad Raza dated 28 October 2000.
·Employment reference for Mohammad Raza from Excellent English Language Centre dated 2 April 2013.
·Employment reference for Mohammad Raza from the KB Institute dated 5 July 2023.
·NAATI translation of original Afghan taskera for Mohammad Raza dated 4 October 2020.
·NAATI translation of marriage certificate documents dated 13 June 2012.
On July 14, 2023, the applicant’s authorised representative submitted further submissions via two emails. The representative requested that the Member consider making a decision on the papers given the submissions provided, these included:
·Letter titled Sanaee, Miss Mah Gul (DOB: 18 October 1990) Urgent – Papers Decision Requested dated 14 July 2023.
·Dovecare Medical Centre letter of support for Mah Gul Sanaee dated 6 February 2019.
·Australian citizenship certificate for Hania Sanaee dated 30 May 2016.
·Australian passport for Hania Sanaee issued 1 July 2016.
·Confirmation of enrolment for Hania Sanaee dated 6 February 2019.
·Letter of support from Jindalee Kindergarten undated.
·Sanaee Family Tree undated.
·Letter from Mah Gul’s treating doctor, Dr Fariba Zamani-Fakhar dated 12 July 2023.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this review is whether the visa 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).
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.
The applicant, Mohammad Raza’s parents are Ghulam Sakhi and Fatima, who are alive, and Mohammad Raza has five siblings: Ghulam Raza, Ali Raza, Zainab, Mohammad Hussain and Ghulam Abas. In his application, documents and interview Mohammad Raza stated that his parents were deceased and stated that he had two sisters “Razia” and “Zahra”, which was incorrect.
In Mohammad Raza’s application form, accompanying documents and interview he stated that he and Mah Gul were not related and that he and his wife first met in or around March 2009 and began a relationship three years after they first met. This is incorrect, as Mohammad Raza and Mah Gul have known each other since they were children because they are first cousins. Mohammad Raza’s father, Ghulam Sakhi, is the brother of Mah Gul’s father, Bahram Sanaee.
During Mohammad Raza’s interview, he said that he was looked after by his uncles and aunties in Afghanistan after his parents died and that when he was in Quetta his sisters and their husbands supported him in Quetta after their family fled. This is incorrect, as Mohammad Raza’s parents are alive. Mohammad Raza was raised by his parents in Afghanistan and he was supported by his parents after he fled to Pakistan.
In his submission he states that while in no way making excuses for his behaviour, Mohammad Raza has stated that he provided this incorrect information, in essence, to protect his family and maintain a lie made by Mohammad Raza and Mah Gul’s family members many years prior to Mohammad Raza’s Partner visa application, when Mohammad Raza’s uncle sponsored some of his family for Remaining Relative (subclass 115) visas in 2007. As set out in Mohammad Raza’s enclosed statement he states “The reason why I did not tell the truth, is because many years before I applied, when I was a child, my uncle, Abdullah Sanaee, sponsored some of my family to come to Australia. I do not know the exact details of what happened, but I recall that he said that because he has two brothers (my father Ghulam Sakhi, and Mah Gul’s father Bahram Ali Sanaee), he could only sponsor one. I am told that a decision was made that Abdullah would say that Bahram Ali Sanaee was his only brother, and he did not mention to the Department that he had another brother.
I was young at the time when this decision was made, around 10 or 12 years old. Because of this, I was then told by my uncle and family when I applied to come to Australia to pretend that I was not related to him. I was a young adult at this time, in my early twenties, and I was afraid of what would happen if I told the truth. I was scared that I might be refused my visa and I would not get to see my wife again, or that my family’s visas might be cancelled, and they would be sent back to Afghanistan where they would be harmed or killed as Hazaras. So, I did what my family told me to do and did not tell the Department the truth about my family composition…”
The submission states that “The Tribunal can be satisfied as to Mohammad Raza’s identity under PIC 4020(2A). Mohammad Raza is an Afghan citizen of Hazara ethnicity living illegally as an undocumented refugee in Quetta, Pakistan. Mohammad Raza’s parents are Ghulam Sakhi and Fatima, and he has five siblings: Ghulam Raza, Ali Raza, Zainab, Mohammad Hussain and Ghulam Abas. Mohammad Raza and Mah Gul have an Australian citizen daughter, Hania. Mah Gul gave birth to Hania on 11 February 2013. Mah Gul and Mohammad Raza are willing to undertake DNA testing to confirm that that Mah Gul and Mohammad Raza are biological cousins, that Mohammad Raza is the son of Ghulam Sakhi and that Mah Gul and Mohammad Raza are the parents of their daughter, Hania. Mohammad Raza also consents to providing his original taskera and passport for verification with any relevant authorities, if required (while noting that, as of August 2021, the Afghan government is no longer in place and all governmental authorities are in disarray).
Further, the applicant in his submission stated
“in my application Form 47SP, I provided my mobile number as 03218029583 at Question 28. I have been informed by my lawyers that the Department made a note in their files that this number was “linked” to a Facebook account with the name “Fly Sky”, and that it said I was educated at Musa Khan Government College on the account page. As I said during my interview, it is correct that I used to have a Facebook account with the name “Fly Sky”: this was my personal account at the time, and I just had a made-up name “Fly Sky”. I was not educated at Musa Khan Government College. Whenever you are making a Facebook account, they ask you to fill in a blanks (school name, college name etc), and I just provided a fake college because Facebook required me to fill out that spot. I knew about that college because some Hazara people I worked with at the Excellent English Language Centre in Quetta lived around Musa Khan Government College, so I just put the name down. “Fly Sky” was the name of my personal account, but I would share content about my work at the English Second Language Academy on my page. For example, during admission time we would share pictures of our account and inform the people learning English to not miss an opportunity to enrol.
I have also been informed by my lawyers that the Department made a note in their files that some photographs or comments on the page refer to someone called “Ali Khan”, and that the email address [email protected] is “linked” to another Facebook account, held under the name of “Ali Khan”, and that the account-holder was educated from Musa Khan Government College and Ali Model High School. I have never been referred to by the name “Ali” or “Ali Khan”, I do not know anyone called Ali Khan, and I do not know who this “Ali Khan” is that is referred to by the Department or what the Department means by Ali Khan being “linked” to my account. I can only speculate, because I do not know, but I suspect that Ali Khan was possibly another colleague and friend of mine who worked at the English Language Centre in Quetta. I was interviewed in 2014, and I cannot remember the names of all the people I worked with in my team at the Excellent English Language Centre at that time. I also cannot remember who commented what on my personal account back then.
I have been informed by my lawyers that the Department raised a concern about the Form 888s which were submitted as part of my application, that I did not know “Ali Arsalan” who was one of the people who signed a Form 888 declaring that he knew that Mah Gul and I were a genuine couple. Ali Arsalan lives in Australia. My wife knows Ali Arsalan, and I also met Ali Arsalan in Quetta a very long time ago. I do not remember exactly what I said during my interview with the Department, but it is possible that I could not remember Ali Arsalan clearly because of the long-time which had passed since I had last seen Ali Arsalan in Quetta before he moved to Australia. After my lawyers informed me that the Department raised this concern, and after looking again at Ali Arsalan’s Form 888 and his photograph, I do remember Ali Arsalan. It is correct that he knows my wife, and knows me, and that he knows we are a couple through speaking with my wife”.
It further states that “We note that some of the information above could be considered to only be inadvertently false and, therefore, is not conceded to be false or misleading by the applicant. This applies to:
• the alleged answering of ‘don’t know him’ regarding the witness Ali Arsalan who signed a Form 888. Mohammad Raza has explained that he did not have a clear memory of Ali Arsalan’s name but does in fact remember Ali Arsalan from Quetta after seeing a photograph of him, speaking to his wife and reading the Form 888 again; and
• the provision of incorrect details on Mohammad Raza’s personal Facebook profile – i.e. Mohammad Raza stating on his Facebook profile that he attended Musa Khan Government College. Mohammad Raza provided correct educational details in his application form and during his interview, and, we submit, did not intentionally provide false or misleading information to the Department in relation to the details on his personal Facebook profile which were, in our submission, clearly made up (for example, he had the name ‘Fly Sky’ which in our submission is clearly a made up name, as is common for personal Facebook profiles and cannot be held against Mohammad Raza).
Nevertheless, Mohammad Raza accepts that he provided false and misleading information to the Department in relation to the offshore Partner (subclass 309/100) visa application. relating to his family composition and his relationship to Mah Gul, his cousin. We acknowledge that the extenuating circumstances surrounding the provision of incorrect information or bogus documents is irrelevant to the inquiry under PIC 4020(1), provided that they were given in circumstances implying ‘purposeful falsity.’ We further acknowledge that Mohammad Raza provided incorrect information to the Department in knowledge of its misleading character. Mohammad Raza cannot, therefore, meet the requirements of PIC 4020(1)(a) on its terms.
The Tribunal finds that the applicant has confirmed that he has provided information that is false or misleading in a material particular’ as defined in PIC 4020(5), in relation to the visa application or a visa held in the 12 months before the visa application was made.
Therefore, the applicant does not meet PIC 4020(1).
Should the requirements of PIC 4020(1) or (2) be waived?
The requirements of PIC 4020(1) and (2) may be waived where there are compelling circumstances that affect the interests of Australia, or where there are compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident, or an eligible New Zealand citizen (as defined in reg 1.03), that justify the granting of the visa. The decision-maker must first be satisfied that there are such circumstances, then must consider whether to exercise the discretion to waive the requirements, having regard to those circumstances: Kaur v MIBP [2017] FCAFC 184.
The expressions ‘compelling circumstances’ and ‘compassionate or compelling circumstances’ are not defined for these purposes. To be compelling, the circumstances must force or drive the decision-maker irresistibly to be satisfied: see Plaintiff M64/2015 v MIBP [2015] HCA 50. The ordinary meaning of ‘compassionate’ relates to feelings of sympathy, sorrow, pity or concern for others.
On 30 January 2013, Mohammad Raza applied for Partner (subclasses 309/100) visas, sponsored by Mah Gul (‘the Partner visa application’). On 11 February 2013, Mah Gul gave birth to the couple’s daughter Hania.
The following evidence was provided in support of this relationship which the Tribunal has taken into consideration.
·      Family photographs over the years, including wedding photos
·     Tickets from the family’s visit to Pakistan in 2022
·     Marriage documentation for the couple
·     Passport of Mohammad Raza
·      Non-translated] Afghan taskera for Mohammad Raza
·      Viber – screenshots of calls and messages
·      Dovecare Medical Centre letter of support for Mah Gul Sanaee;
·     Australian citizenship certificate for Hania Sanaee;
·     Australian passport for Hania Sanaee;
·     Confirmation of enrolment for Hania Sanaee;
·     Letter of support from Jindalee Kindergarten.
The Tribunal has considered the submission put forward that the ‘interests of Australia’ are served by complying with its international obligations. The Conference of Plenipotentiaries which adopted the 1951 United Nations Convention relating to the Status of Refugees recognised the significance of this principle for refugees when it approved, in its Final Act, the following recommendation:
The Conference, considering that the unity of the family, the natural and fundamental group unit of society, is an essential right of the refugee, and that such unity is constantly threatened, and noting with satisfaction that, according to the official commentary of the ad hoc Committee on Statelessness and Related Problems (E/1618, p. 40), the rights granted to a refugee are extended to members of his family, recommends Governments to take the necessary measures for the protection of the refugee’s family especially with a view to:
(1) Ensuring that the unity of the refugee’s family is maintained particularly in cases where the head of the family has fulfilled the necessary conditions for admission to a particular country,
(2) The protection of refugees who are minors, in particular unaccompanied children and girls, with special reference to guardianship and adoption
The UNHCR’s Guidelines on the Reunification of Refugee Families further explain the precept of refugee family unity as follows:
The High Commissioner's action in promoting family reunification is supported by the principle, set forth in both the Universal Declaration of Human Rights of 1948 and the United Nations Covenant on Civil and Political Rights of 1966, that "the family is the natural and fundamental group unit of society and is entitled to protection by society and the State."
Further, Article 17 of the International Covenant on Civil and Political rights (“ICCPR”) also states that all people have the right to be free from “arbitrary” interference with their family. Similarly, Article 23(1) states that the family is the natural and fundamental group unit of society and is entitled to protection by society and the state.
The applicant’s daughter Hania is an Australian citizen child who has lived her whole life in Australia aside from two visits to Pakistan to visit her father, Mohammad Raza. Hania is ten years old, and in Grade Four at P-12 College Narre Warren South. In support of this the applicant has provided evidence of Hania’s citizenship, her enrolment at school in Australia, and her anxieties surrounding her separation from her father.
Australia’s commitment to the rights of children was formalised with the ratification of the Convention on the Rights of the Child (‘CROC’) in 1991. Article 3 of the CROC provides that:
In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.
Furthermore, Article 28 of the CROC also mandates that States Parties recognize the right of the child to education. The Tribunal acknowledges that applicants may have a legitimate expectation that the Minister or authority exercising an administrative function will ensure that Australia’s international obligations are taken into account. This very issue of whether there is a legitimate expectation that those exercising administrative decision making powers will take into account, as a primary consideration, the best interests of the child in accordance with the CROC, was considered in Minister for Immigration & Ethnic Affairs v Teoh in which Toohey J held that:
…while Australia's ratification of the Convention does not go so far as to incorporate it into domestic law, it does have consequences for agencies of the executive government of the Commonwealth. It results in an expectation that those making administrative decisions in actions concerning children will take into account as a primary consideration the best interests of the children and that, if they intend not to do so, they will give the persons affected an opportunity to argue against such a course.
The result of the refusal of the applicant’s visa would be to prolong the already incredibly lengthy (over ten year) separation of an Australian citizen minor child and her mother from their father and husband. As neither Hania nor Mah Gul are Pakistani citizens, they do not have any legal right to remain in Pakistan. While Mah Gul and Mohammad Raza are Afghan citizens, the Tribunal accepts that it would be unreasonable for them to return to Afghanistan due to the persecution they fear there. In particular the applicant submits and the Tribunal accepts that the interests of Australia are served by complying with its international obligations and allowing the unification of this family, noting importantly that Mohammad Raza and Mah Gul have a refugee background.
Departmental policy provides the following in relation to factors for considering a waiver of PIC4020(1) include:
·      “a minor child who is an Australian citizen, permanent resident or eligible New Zealand citizen residing in Australia who would be adversely affected by a decision not to waive”;
·      “whether there are any significant health or welfare issues affecting an Australian citizen, Australian permanent resident or eligible New Zealand citizen”; and
·      “if a decision not to waive would result in the continuing separation of immediate family members, because of an inability of the Australian citizen, permanent resident or eligible New Zealand citizen to reside in the applicant’s country of residence or a third country. Factors to consider include: the applicant’s country of residence is a war zone or the sponsor has been found to be a person to whom Australia owes protection obligations.”
The applicant has stated that all of the above considerations are present in his matter. Were the requirements of PIC4020(1) not waived, the family would be faced with a grave choice between the following equally untenable options such as a prolonged separation of a minor Australian child and Australian permanent resident from immediate family member.
If the decision is affirmed by the Tribunal and the refusal of Mohammad Raza’s visa is not overturned, due to the ten-year ban under PIC 4020(2B) the applicant would be prohibited from applying for a further Australian visa for 10 years after his application was refused. This would be at the earliest, 15 February 2026. This would mean a further two years of separation from his daughter Hania and wife Mah Gul, after already over a decade of separation.
The applicant’ has provided evidence to support his argument that a prolonged separation from Mohammad Raza has already taken a proudly harmful toll on the mental health of Hania and Mah Gul, as set out in the enclosed statements of Mohammad Raza and Mah Gul. Supplied to the Tribunal to support this are letters of their witnesses, a letter from Mah Gul’s treating doctor, evidence of her miscarriage due to the immense stress she is under, and a letter from Hania’s school confirming her distress at the separation from her father Mohammad Raza.
The applicant also argues that his family are unable to reside in Pakistan. He states that neither Mah Gul nor Hania are Pakistani citizens nor is the applicant and should they relocate to stay as a family unit they would need to live as illegal refugees with Mohammad Raza. Firstly, Mah Gul and Hania do not have a right to enter and remain in Pakistan, and therefore the threat of deportation to Afghanistan is present. The applicant also argued that as female Hazaras both Hania and Mah Gul would face persecution were they to return to Pakistan to live as illegal refugees with the applicant. The applicant provided significant, relevant country information regarding the persecution of Hazaras.

The Tribunal has considered the country information available, the submissions provided to the Tribunal and the family unit, namely the applicant’s wife and child and accept that are compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen, that justify the granting of the visa.
For the following reasons, the Tribunal is satisfied that the requirements should be waived.
Therefore, the requirements of PIC 4020(1) should be waived.
Has the applicant satisfied the identity requirements?
PIC 4020(2A) requires an applicant satisfy the Tribunal as to his or her identity.
The applicant has been truthful in is statements regarding his family composition and has provided a plausible explanation as to why this false and misleading information was provided.
He has provided the following evidence to support his identity:
Taskera of Mohammad Raza and English translation, clearly showing Ghulam Sakhi to be Mohammad Raza’s father;
Copy of bio-data page of Mohammad Raza’s passport;
Taskera of Ghulam Sakhi and English translation;
Statement of Ghulam Sakhi, confirming the details of Mohammad Raza’s birth, marriage and identity
Evidence of Mohammad Raza’s educational and employment background, corroborating his life story set out in his enclosed statement and including photographs of Mohammad Raza:
a. Certificate from Muslim Hands for Mohammad Raza dated 2008
b. Certificate from Excellent English Language Centre for Mohammad Raza dated 28 October 2000
c. Employment reference for Mohammad Raza from Excellent English Language Centre dated 2 April 2013
d. Employment reference for Mohammad Raza from the KB Institute dated 5 July 2023
Witness letters from the following friends and acquaintances of Mohammad Raza and Mah Gul, providing evidence to the Tribunal as to Mohammad Raza’s identity:
a. Shaiesta Kazimi
b. Sabira
c. Massuda Wafajo
d. Ali Arsalan
Evidence from the following witnesses in Pakistan, providing evidence to the Tribunal confirming that they know Mohammad Raza to be an Afghan citizen of Hazara ethnicity living in Pakistan:
a. Asif
b. Sultan Hussain
c. Ramzan
d. Rahima
e. Ghulam Raza
f. Amir Mohammad
The Tribunal notes that the Department had undertaken biometrics and it has identified that Mohammad Raza and Mah Gul may in fact be cousins based on comparing images of Mohammad Raza with his brothers contained within various applications. As detailed in the applicant’s submissions the fact that Mohammad Raza and Mah Gul are cousins has been confirmed by Mohammad Raza and Mah Gul in their statements. The submission by the applicant argues that Mohammad Raza’s identity is now proven and the applicant stated he would agree to DNA testing pursuant to its powers in section 363 of the Migration Act 1958 (Cth).
The applicant argues that the taskeras and Passport provided by Mohammad Raza are genuinely issued by authorities in Afghanistan and do not contain any false or misleading information.
The false information provided by Mohammad Raza appears to be confined to his family composition, namely whether or not his mother and father were alive, the names of his siblings, and whether he was related to Mah Gul. However, he submits that there is no disputing Mohammad Raza’s nationality, being Afghan and his ethnicity being Hazara.
The applicant has provided a consistent outline of his life which the Tribunal accepts as consistent with Afghan culture, and the history of Hazara people fleeing Afghanistan to seek refuge in Quetta. The applicant accepts that he has provided incorrect information in his application, and that his decision to do so was made in the context of decisions being made extraneous to his and his wife’s own input by their wider family.
He stated in his submission “When I first applied for my Partner (subclasses 100/309) visas, I provided the Department with a copy of my taskera. I am certain that this is a genuine document. This is because I remember when I first obtained my taskera in around 2010 at the registration place in Durani, Baraki Barak, Logar, near Kabul. I went with my father, Ghulam Sakhi, who already had his taskera. In Afghanistan, whenever you are applying for a taskera, they check if your father has a taskera. Then they will issue you the taskera there. Without the father’s taskera in their records, they don’t issue you with your taskera. When I showed my taskera and my father’s taskera, they confirmed that my father’s taskera was already in their system and issued me with mine.
This was my first taskera and it was definitely genuine. However, there was one mistake on it. The office made a clerical mistake when issuing me with my taskera, which sometimes happens, and I didn’t notice that at the time. The mistake was that it was written on my taskera that I was married. The officer had ticked the wrong box – I was not yet married at that time, I was only in discussions to get married with Mah Gul but I was not yet married.
Shortly after I got married, I also applied for a passport in Quetta city. The duration was for around five years. When it was expiring, in around 2020, I went to Afghanistan again to renew my taskera and get my updated passport, which I obtained in Kabul.
I never got a Proof of Registration or POR card in Pakistan, which is an identity document that allows Afghan refugees to legally remain in Pakistan. There are a few reasons why I never obtained this card. Firstly, I did try a few times to obtain a POR card by visiting the registration office several times between approximately 2013 and 2014. But it was very difficult to get one. It was very crowded and we were waiting for a very long time. Also, during that period of time we would regularly hear of Hazara people being killed in targeted attacks. We were living with fear and I was afraid I too might be killed, which was why we felt it was risky and unsafe to go towards the Bazar side of Quetta which was where the POR office was. Secondly, we didn’t require a POR card, because a lot of Afghan refugees like us are able to live and work here in Hazara town in Quetta city, because it is near the Afghan border. So due to the difficulties and because I didn’t really need a POR card, I never obtained one.
Mohammad Raza’s father, Ghulam Sakhi, also confirms the process that occurred in order to obtain Mohammad Raza’s taskera. He has stated “I know that Mohammad Raza’s first taskera was genuine. This is because I was with him when he obtained it at the registration place in Logar in Afghanistan. This was in around 2010. I took Mohammad Raza myself to the Baraki Barak district in Logar province to obtain his taskera and presented my own taskera there”. “The registration office also already had my taskera registered in their office database. “I know that my own taskera was genuine because I got my first one in childhood. I obtained my first taskera with my own father around fifty years ago. I then lost my first taskera that I got in childhood, so I obtained another one in Kabul approximately 20-something years ago. This was about four or five years before I went with Mohammad Raza to obtain his first taskera. I am aware that Mohammad Raza went to Afghanistan in around 2020 and renewed his taskera during this time. He also applied for his passport from Kabul at this time. I was not with him at this time, but Fatima, my wife, was with him when he obtained it. I know that Mohammad Raza’s second and current taskera is genuine because when he went to obtain it, the registration office in Kabul already had registered my taskera and it was in their database”.
The Tribunal accepts that this is consistent with country information as to how taskeras are issued in Afghanistan. For example, the Departments’ ‘Protection Application Guidance Note No. 5’ issued in April 2016 provides the following information: “Taskeras are Afghan national identity cards. They are printed on plain paper and include the bearer’s name, father’s name, grandfather’s name, place of birth, place of residency, occupation, and status of military service. Taskeras sometimes include incomplete information and Taskera record keeping is not centralised or computerised…”
The Tribunal is satisfied based on the information before it of the applicant Mohammad Raza’s identity.
Therefore, the applicant meets PIC 4020(2A).
Has a visa previously been refused on the basis of a failure to satisfy PIC 4020(2A)?
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).
There is no information before the Tribunal to indicate the that the applicant or any member of the family unit (as defined in reg 1.12) have been refused a visa in the relevant period because of a failure to satisfy PIC 4020(2A).
Therefore PIC 4020(2B) is met.
On the basis of the above, the applicant does satisfy PIC 4020 for the purposes of cl 309.225.
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
Rachel Westaway
Senior 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.
…

[2024] AATA 513

31 January 2024

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