Sanaee (Migration) - [2024] AATA 513

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Sanaee (Migration)

Details

AGLC: Sanaee (Migration) [2024] AATA 513
Case: [2024] AATA 513
Decision Date: 31 January 2024

CaseChat Overview and Summary

This matter concerned an application for a Partner (Provisional) (Class UF) (Subclass 309) visa by Mr Mohammad Raza, a citizen of Afghanistan, who claimed to be married to Ms Mah Gul Sanaee, an Australian Permanent Resident. The Department had refused to grant the visas on the basis that there was an absence of reliable evidence to support the applicant’s claimed identity, and therefore Public Interest Criterion (PIC) 4020(2A) was not met. The applicant also faced concerns regarding the provision of false or misleading information, potentially failing to meet PIC 4020(1).

The primary legal issue before the Tribunal was whether the applicant met the requirements of PIC 4020, specifically concerning the satisfaction of the Minister as to the applicant's identity (PIC 4020(2A)) and the absence of bogus documents or false or misleading information (PIC 4020(1)). The Tribunal was required to consider whether any waiver provisions under PIC 4020(4) were applicable, noting that the waiver for compelling or compassionate circumstances did not extend to the identity requirements.

The Tribunal reasoned that while the Department had identified inconsistencies in the applicant's claimed identity and had placed limited weight on certain documents due to concerns about fraudulent documents in Pakistan and Afghanistan, the applicant had provided further submissions and evidence. These submissions included evidence relating to the sponsor's Australian citizenship and the existence of an Australian child, as well as a letter from the sponsor's treating doctor. The Tribunal concluded that, on the basis of the material before it, the applicant did satisfy PIC 4020 for the purposes of the visa application.

Consequently, the Tribunal remitted the application for reconsideration with a direction that the applicant meets the requirements of PIC 4020 for the grant of a Subclass 309 visa.

Orders

Orders of the court

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Background

Background to the litigation

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.

Evidence

Evidence Before The Court

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.

Decision

Reasons for decision

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 WestawaySenior MemberATTACHMENTMigration Regulations 1994Schedule 44020(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 1958s 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.…

Ratio Decidendi

Legal Principle Established

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