Suliman and Minister for Immigration, Multicultural and Indigenous Affairs

[2004] AATA 486

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 486

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No V2003/223

GENERAL ADMINISTRATIVE  DIVISION		)
Re		MOKTAR SULIMAN

Applicant

And MINISTER FOR IMMIGRATION, MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal Mr S P Estcourt QC., (Deputy President)

Date14 May 2004

PlaceMelbourne

Decision The decision under review is set aside and the matter remitted to the respondent with a direction that the visa applicant’s visa not be refused on character grounds.

[Sgd S P Estcourt QC]

Deputy President

CATCHWORDS

Catchwords – Immigration – Subclass 309 Spouse Visa – whether visa applicant fails character test – false and misleading information – forged documents – whether knowingly supplied – decision set aside.

Migration Act 1958 – s501

Lachmaiya and Department of Immigration and Ethnic Affairs (1994) 19 AAR 115

REASONS FOR DECISION

14 May 2004 Mr S P Estcourt QC., (Deputy President)           

1.      This is an application for the review of a decision of the respondent dated 16 January 2003 refusing to grant the applicant’s wife, Leila Lalo Usman (“the visa applicant”) a Partner (Provisional) Subclass 309 visa allowing her to join her husband in Australia. 

2. The respondent’s decision to refuse the visa was made on the basis that the visa applicant had not satisfied him that she passed the character test posed by s501 of the Migration Act 1958 (Cth) (“the Act”), and that the case was not one for the exercise of his discretion to nonetheless grant the visa.

3. In her application, the visa applicant listed her two sisters, Ametula Lalo Usman and Temkina Lalo Usman and her brother Faris Lalo Usman as her claimed dependents, and as the respondent refused to grant a visa to the visa applicant under s501 of the Act, it followed that the secondary applicants included in her application were unable to satisfy the primary criteria for the class of visa applied for, as none of them were in a spousal or inter‑dependent relationship with the applicant and thus failed to satisfy the secondary criteria contained in the Migration Regulations.

4.      The visa applicant was born on 3 April 1973 in Addis Ababa, Ethiopia, and is an Ethiopian citizen.  She married the applicant Moktar Suliman, an Australian citizen, in Nairobi, Kenya on 14 December 2000. 

5.      On 15 December 2000, the visa applicant lodged her application at the Australian High Commission in Nairobi and provided in support of that application birth certificates for each of the secondary applicants and death certificates for both her parents.

6.      On 20 November 2001, the visa applicant was interviewed by immigration officials at the Australian High Commission in Nairobi, on which occasion she told officials that she had obtained her siblings birth certificates from the municipality in Addis Ababa and likewise the death certificates for her parents.  When it was pointed out to her that her mother would have been about 55 years of age when her sister Temkina was born, the visa applicant said that the ages of both her parents were simply a guess.  She said nobody knows, she said she just had to say something for the certificates and that she didn’t know anything except the ages of her siblings.

7.      On 4 December 2001, the birth and death certificates were examined by the consular officer at the Ethiopian Embassy in Nairobi, who concluded that the documents were forgeries on the following grounds:

“(a)the Ethiopian text in the markings purporting to be a purple wet seal had been made by hand and had not been made by an official stamp;

(b)the death certificates had a photocopied base and it was not government practice to issue official documents on photocopied paper, and if, on the rare occasion this was done, genuine wet stamps would be evident and not hand produced images as was the case; and

(c)Mr Araya held the birth certificate for Leyla Lalo Usman up to the light and noted the small hole (or puncture) in the centre of the wet seal stamp.  He suggested that this might have occurred by forgers using a compass to draw the circular shapes.”

8.      On 10 December 2001, the birth and death certificates were examined by the principal migration officer at the High Commission in Nairobi, who concluded that the documents were fraudulent on the following grounds:

“(a)the serial numbers in the top right hand corners of the birth certificates appeared to be by hand, in biro pen;

(b)the birth certificates for Ametula Lalo Usman and Faris Lalo Usman were purportedly issued on the same day, however the certificates’ reference numbers of 1960/91 and 1659/91 respectively did not follow in consecutive order;

(c)the zero (0) digit on the birth certificates and death certificates are all in a different font style to the other digits.  Given that there was supposed to be a five year difference in the preparation of the documents, the respondent submits that it may indicate that all the documents were prepared on the same typewriter;

(d)the typewriter printing in the body of the documents does not always sit in a straight line.  When the documents were compared to other genuine birth and death certificates, the typewriter printing is of a different font style;

(e)on the birth certificate for Ametula Lalo Usman, the sex of the child was typed as “Femal”;

(f)on the death certificates, the parents’ nationalities were hand corrected from Ethiopia to Ethiopian;

(g)on the mother’s death certificate, the place of birth for the parents of Bedria Hasen were listed as Butajeta (for the father) and Butajera (for the mother);

(h)the cause of death on the death certificate for the mother was hand corrected;

(i)in the death certificates, there were incorrect conversions from Ethiopian to European calendar dates;

(j)on all the documents, the wet seal stamp has been produced by using a purple felt tip pen;

(k)on the death certificate for the father, there is clear tampering on the notifier’s Ethiopian date of birth, as different digits are faintly visible beneath the digits which are typed;

(l)on the birth certificate for Faris Lalo Usman and Ametula Lalo Usman, the name of the issuing officer has not been spelled correctly – Eanta instead of Fanta; and

(m)on all the documents, the  name of the issuing officer has been handwritten, while on genuine certificates this is done by wet stamp.”

9.      On 17 June 2002 the birth and death certificates were examined by the head of the Social Administration & Information Service at the Addis Ababa City Government, Ethiopia, who concluded that the documents were fraudulent.  This official did not give grounds upon which his conclusion was reached, but simply stamped the documents (with a stamp which to the untrained eye is remarkably similar to that on the impugned documents), and wrote the word “fraudulent” against it and over a stamp of his own name. 

10.     On 2 December 2002, in response to a request from the Australian High Commission for comment and further information on the documents lodged, the visa applicant explained that in her country it was not common for people to record the exact date of birth and that she had estimated the birth date of her mother.  She said that she had applied to the City Council of Addis Ababa for the documents and had paid a required fee of “$100 Birr (Ethiopian money)” and “at the end we are not sure where that documents true or fake” [I should say that I do not take this to be an admission of knowledge of the falsity of the documents, but rather an exclamation of despair].

11.     On 16 September 2002 in response to a further request from the Australian High Commission for further comment, the visa applicant wrote:

“In a letter dated 3 August 2002 I have been asked to provide written comments and information based on the application submitted on 15 December 2000.  Ever since I receive this letter, I have given a serious consideration to provide solid evidence of this unfortunate matters.  And I decide to get another document of birth certificate and dependents and mine and prove of our parent death.  As I mentioned on the previous letter dated 12 February 2002 that none of us has recorded date that showed date of birth.  When birth certificate required we apply base on the household list that kept in local communities.  This time my cousin who act on my behalf follow up all procedure very vigilantly to make sure everything done properly and also once I receive these documents I contact with someone who employed in Ethiopian Embassy in Nairobi and other people who got authentic document to make sure all the documents are genuine.  All this original document I received recently resemble the documents submitted on 15 December 2000.  There is a little different in the date conversion between Ethiopia calendar and European calendar.  Due to all this constrain, I couldn’t say that the previous documents authentic or fraudulent.  But all the documents that list below are legitimate.”

12.     On 16 January 2003 a delegate of the respondent in arriving at the decision to refuse the visa set out the conclusions of the document examiners and stated:

“These matters prove that the documents were not issued by the official issuing authority, as claimed by Ms Usman.  They are completely fraudulent.  It is apparent that she undertook this course of action both intentionally and purposely to provide false and misleading information in respect of her visa application.”

13.     The respondent’s delegate in his decision noted, as do I, that Form 47SP Application for Migration to Australia by a Partner, signed by Ms Usman in this case includes the following declarations:

“I declare that the information I have supplied in this application is complete, correct and up to date in every detail.

I understand that if I give false or misleading information my application may be refused or any visa granted may be cancelled.”

And:

“I have read and understood the information supplied to me in this application.”

14.     The respondent before the Tribunal contends that the enquiries which were conducted by the Australian High Commission demonstrate that the documents were not issued by the Addis Ababa City Government and that the documents are fraudulent “(rather than being fraudulently obtained)”, and that the visa applicant knowingly provided the fraudulent documents in support of her visa application.

15.     In closing submissions, Mr Wood, counsel for the respondent wrote:

“4.       The respondent submits that:

(a)any certificates produced or filed by the applicant since the commencement of these proceedings are irrelevant to the issue before the Tribunal which is whether or not the visa applicant provided the false birth certificates (T43 p107 and T54 pp270-275) and the false death certificates (T42 p106 and T54 pp276-279), to the respondent in support of her visa application;

(b)the applicant’s submission is that, as many other documents in Ethiopia are forged, it is possible that an officer at the City Council fraudulently produced the birth and death certificates without the visa applicant knowing that they were false, is simply not credible.  It is impossible to identify any benefit which would flow to an officer in such a scenario.  Furthermore, the applicant did not call any evidence to support such a claim; and

(c)it does not logically follow that the production of subsequent birth and death certificates by the applicant supports a view that a City Council officer fraudulently produced the birth and death certificates in question and gave them to the visa applicant in circumstances where the visa applicant did not know that they were forged.  Furthermore, the applicant did not call any evidence to support such a claim.

16.     Further, the respondent submits that no weight should be given to the documents produced by the applicant in the course of these proceedings, because their genuineness or otherwise has not been tested.  There is no evidence before the Tribunal as to their origins or authenticity.  In particular, there is no evidence before the Tribunal that the photocopied page bearing a stamp which was produced by the applicant at the hearing is, in fact, the back of the photocopy of the death certificate, nor is there any evidence as to the origin or meaning of the stamp.

17.     In addition to the submissions made in the respondent’s Statement of Facts and Contentions, the respondent submits that the evidence given by the visa applicant at the hearing supports a finding that the visa applicant submitted the birth and death certificates, in the full knowledge that they were forged and that, accordingly, she does not pass the character test.

18. There can be no doubt in this case that if, as suggested by the primary decision-maker and on behalf of the respondent before the Tribunal, the visa applicant provided fraudulent documents “in the full knowledge that they were forged” and “both intentionally and purposely to provide false and misleading information in respect of her visa application” she would fail the character test posed by s501 of the Act. The Tribunal has consistently treated immigration fraud as impacting on the enduring moral qualities of a person demonstrating that their lack of good character is such that it is for public good to refuse entry to Australia. As Deputy President McMahon said in the oft quoted passage from his decision in Lachmaiya and Department of Immigration & Ethnic Affairs (1994) 19 AAR 115:

“The observance of truth in dealing with officials in migration matters (particularly where the truth is known only to the person making the statement) is of fundamental importance to the control mechanism which this country exercises in visa applications when dealing with the many reasons for coming to Australia.  To lie consistently, as Mr Lachmaiya has over a period of years, is to subvert the administration and, in the context of the Act, to demonstrate that Mr Lachmaiya is not a person of good repute or character.  Australia can have no confidence that he would not again transgress in matters where truth and good faith could be deceptively withheld.”

19.     The respondent submits that the visa applicant does not pass the character test on the basis of the following summary of her false and misleading conduct:

“(a)the visa applicant submitted a visa application which was supported by fraudulent documents relating to her claimed siblings and claimed parents;

(b)the visa applicant listed the names of her claimed siblings and claimed parents in the visa application, however, there is no evidence to support her claim that they are her legitimate or legal family members other than the fraudulent documents;

(c)during the interview, the visa applicant conceded that she had supplied false information regarding her claimed family, to the city council at Adis Ababa;

(d)in the interview, the visa applicant maintained that the documentation she submitted was provided by Adis Ababa city council;

(e)the visa applicant has failed to acknowledge that she supplied false documents;

(f)the visa applicant continues to claim that the documents she submitted were obtained from the city council at Adis Ababa, including in her letter.”

20.     Dealing with these submissions, I do not regard anything said by the visa applicant at interview or in her subsequent letters as amounting to a concession that she had “knowingly” or “intentionally” or “purposely” supplied false information in support of her visa application.

21.     The estimation by the visa applicant of her parents ages in the absence of any way of knowing the exact dates is in my view a legitimate exercise. 

22.     Insofar as the respondent’s reliance on the visa applicant’s continued claims that the documents she submitted were obtained from the City Council at Addis Ababa and her failure to acknowledge that she supplied false documents are concerned, these submissions merely beg to question as to whether she knowingly provided fraudulent documentation in the first place.  In my view, she did not.

23.     Firstly and most importantly in arriving at this conclusion, I was impressed by the forthright manner in which the visa applicant gave her evidence to the Tribunal and the fact that her consistent explanation as to the obtaining of the documents from the Addis Ababa Council was not shaken, despite rigorous cross-examination. 

24.     Further, there would not appear to be any motive for the provision of fraudulent documentation.  It has not been suggested that the visa applicant is unable to obtain legitimate documents setting out the same facts as are contained in those which are obviously fraudulent.  Further, and acknowledging the submission made by counsel for the respondent that the second set of documents obtained and provided by the visa applicant have not been tested, it is reasonable to infer that they have been legitimately obtained through official channels.  For it to be otherwise in the visa applicant’s circumstances, given the attitude taken by the Australian High Commission at the interview with the visa applicant and subsequently, would involve  audacity if not stupidity, in the extreme.

25.     Moreover, there is no evidence against the visa applicant of either means or opportunity, the whole suggestion that the visa applicant acted knowingly being dependent on the very fact of the falsity of the documents.

26.     Finally, I am not persuaded that the applicant’s submission that as many documents in Ethiopia are forged, it is possible that an officer at the City Council fraudulently produced the birth and death certificates without knowing, is not credible.  It is possible, and it is equally possible to identify a benefit which could flow to an officer in such a scenario, namely the retention of the legitimate documents which should have been issued for possible use on a black market.

27. As I have said, I accept the visa applicant as a witness of the truth after listening carefully to her evidence in chief, and examining it against her previous consistent explanations, and after hearing her version of events tested under cross-examination. It follows, there being no other character concerns raised against her, that I am satisfied that she passes the character test posed by s501 of the Act.

28.     It follows that the decision of the Tribunal is that the decision under review is set aside and the decision of the Tribunal is that the matter be remitted to the respondent with the direction that the visa application not be refused on character grounds.

I certify that the 28 preceding paragraphs are a true copy of the reasons for the decision herein of Mr S P Estcourt QC., (Deputy President)

Signed:  K L Miller (Administrative Assistant)

Date/s of Hearing  12 December 2003
Date of Decision  14 May 2004
Counsel for the Applicant         Mr Suliman appeared on own behalf
Solicitor for the Applicant           
Counsel for the Respondent     Mr Derek Wood
Solicitor for the Respondent     Blake Dawson Waldron