Tipong (Migration)

[2019] AATA 5652

Tipong (Migration) [2019] AATA 5652 (17 December 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Ebony Adwoa Janelle Tipong

VISA APPLICANT:  Mr Joseph Kwabena Darko Tipong

CASE NUMBER:  1727420

DIBP REFERENCE(S):  BCC2017/1657292

MEMBER:Adrienne Millbank

DATE:17 December 2019

PLACE OF DECISION:  Brisbane

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 (Partner (Provisional)) visa:

·Public Interest Criterion 4020(2A) for the purposes of cl.309.225 of Schedule 2 to the Regulations.

Statement made on 17 December 2019 at 5:23pm

CATCHWORDS
MIGRATION – Partner (Provisional) (Class UF) visa – Subclass 309 (Partner (Provisional)) – identity – previous visitor visa applications using different identity details and documents – previous documents issued with wrong details – original birth certificate authenticated by department’s document examination unit – decision under review remitted

LEGISLATION

Migration Act 1959 (Cth), ss 65, 359A

Migration Regulations 1994 (Cth), Schedule 2, cl 309.225, Schedule 4, criterion 4020(2A)

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 Immigration and Border Protection on 23 October 2017 to refuse to grant the applicant a Partner (Provisional) (Class UF) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant was born in Ghana on 12 June 1990.

3. The applicant applied for the visa on 9 May 2017 on the basis of his relationship with his sponsor, the review applicant. At that time, Class UF contained only one subclass: Subclass 309 (Partner Provisional). The criteria for the grant of this visa are set out in Part 309 of Schedule 2 to the Migration Regulations 1994 (the Regulations). The primary criteria must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria.

4. 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 (the Regulations) because the applicant did not satisfy Public Interest Criterion (PIC) 4020(2A), which requires an applicant satisfy the Minister as to his or her identity.

5. The Delegate was not satisfied as to the applicant’s identity. The Delegate therefore found that the applicant did not satisfy the entirety of PIC 4020 for the purpose of cl.309.225.

6. The applicant had applied twice for a Visitor (Subclass 600) visa, in January 2016 and November 2016, unsuccessfully, using different identity documents.

7. A copy of the decision to refuse this visa application was provided to the Tribunal. The Delegate noted in the decision record that the applicant had, across three applications, provided: three birth certificates with three different birth registry entry numbers; three different registries; two different dates of birth; two different last names for the applicant’s mother; two different places of birth; three different dates of registration; and three different registrars. The Delegate was concerned that the identity documents provided by the applicant had changed after each negative visa application, giving the appearance that the applicant was attempting to manipulate his identity in order to achieve a visa outcome.

8. The Delegate noted that in the applicant’s first interaction with the Australian Government, the lodgement of a Visitor (Subclass 600) visa application on 13 January 2016, he actively chose to present himself, in his application form, with a date of birth of 12 June 1979. The Delegate further noted that to the question ‘Did you receive assistance in completing this form?’ the applicant indicated ‘No’.  Along with that application, the applicant provided a certified copy of an entry in the register of births in Ghana which stated that he was born on 12 June 1979, and that his birth was registered on 9 October 2014.

9. The review applicant (the sponsor) appeared before the Tribunal on 6 September 2019 to give evidence and present arguments. The Tribunal also received oral evidence by phone from the applicant in Ghana.

10. The parties were represented in relation to the review by their registered migration agent, who attended the Tribunal hearing.

11. Further documents were received by the Tribunal after the hearing, on 13 September 2019.

12. On 5 November 2019 the Tribunal wrote to the sponsor pursuant to s.359A of the Act, inviting her comments regarding the applicant’s apparent statement in an interview with the Department on 14 September 2017 that he had graduated from university, which was contrary to information she provided at the hearing. On 18 November 2019 the parties sought and were granted an extension of time until 2 December 2019 to respond to the Tribunal’s letter.

13. Further documents were received by the Tribunal on 2 December 2019. In their response to the s.359A letter, the parties stated that the applicant’s apparent claim to have a university degree was a misunderstanding arising from his lack of fluency in English. The sponsor stated that she knew at the time of application that the applicant had not graduated from university.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

15. The issue in this review is whether the visa applicant meets PIC 4020(2A) as required by cl.309.225 for the grant of the visa. PIC 4020 is extracted in the attachment to this decision. 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).

    Has the applicant satisfied the identity requirements?

16. In a written submission dated 30 August 2019 provided to the Tribunal, the parties’ representative argued that the applicant’s identity is now established with his date of birth of 12 June 1990. Additional documents were provided, including the applicant’s original birth certificate issued in 1990, and a ‘Certificate of Honour’ issued in March 2009 conferred on the applicant as a member of his high school’s handball team. The representative submitted that this evidence, along with other school certificates, showed the applicant was at high school in 2009 and thus could not have been born in 1979.

17. The representative submitted that the applicant has no criminal record, and that his was a simple case where ‘the government of Ghana made a mistake to issue the birth certificate and passport with wrong details [the applicant] was stuck with’. He claimed that the applicant ‘tried his best to correct them with honesty’ and that ‘he is actually a victim of all this’. At hearing the applicant firstly stated that when he applied for the birth certificate for his Visitor visa application it was ‘wrongly printed out’, and ‘came out with the wrong information’, including a birth date of 12 June 1979. He claimed that this ‘happens all the time’ in Ghana.

18. The applicant subsequently acknowledged that he obtained the birth certificate with the ‘wrong information’ through a ‘third party’. He stated that it is quicker and easier to obtain identity documents through ‘third parties’ than through Ghana’s Registry of Births and Deaths. The Tribunal asked the applicant several times who the third party was. The applicant stated and repeated that third parties are people who assist other people to procure identity documents quickly, and thus make the process of getting visas easier.

19. The Tribunal asked the applicant why his mother had different names on the different birth certificates he had provided to the Department, and why there were different dates of registration and different registrars for his different birth certificates. The applicant stated that he didn’t know his mother’s maiden name was supposed to be on his birth certificate, and that each time he applied for a birth certificate it was provided by a different registrar.

20. The Tribunal asked the applicant why he provided information he knew to be false when he applied for a Visitor (Subclass 600) visa in January 2016, and why he provided a document he knew to be bogus, namely a birth certificate procured by a third party which gave his year of birth as 1979. The applicant stated that he believed at the time that this was his true identity. The Tribunal put to the applicant that it was implausible that he believed himself 11 years older than he is. The applicant then stated that while he had realised the information in the birth certificate was wrong, he believed he could never change it and would have to live with it. He said he didn’t try to correct the ‘wrong information’ with government authorities in Ghana for the reason that he feared being arrested for falsifying his identity.

21. The applicant further claimed that he was young and naïve at the time he first applied for a visa to enter Australia, and didn’t know that procuring false documents and providing false information would have such serious repercussions. He stated that he has provided his original and correct birth certificate for this application. The Tribunal notes that the applicant was 26 years old when he applied for his first visa to enter Australia. The Tribunal does not accept that the applicant procured a bogus birth certificate when he first applied to enter Australia because he was young and naïve about such matters as obtaining identity documents and applying for visas. The Tribunal considers that he knowingly tried to obtain a visa ‘easily’ and to enter the country on a false identity.

22. When asked how he obtained the birth certificates provided to the Tribunal, one issued in the year of the applicant’s birth in 1990 and the other in December 2016, the applicant stated that he remembered that his old high school held a copy of his birth certificate. He stated also that he then went to the registry office and clarified that the original birth certificate provided to the Tribunal is his real birth certificate.

23. On 27 September 2019 the Tribunal sent the two above-mentioned birth certificates (containing the same information) provided by the applicant to the Department’s Document Examination Unit to be assessed for authenticity. According to emailed advice from the Department dated 30 October 2019, the Department sent an email request on 4 October 2019 to the International Organisation for Migration (IOM) in Accra, Ghana, seeking their assistance in verifying the birth certificates. On 15 October 2019 a representative of IOM Accra attended the issuing office and confirmed that the birth certificate provided is genuine. Official advice was attached in the form of a letter dated 15 October 2019 signed by the acting Registrar of the Births and Deaths Registry in Accra, advising that the applicant’s birth certificate issued in 1990 had been officially processed and entered into the Register of Births in the applicant’s home region.

24. On 31 October 2019 the Department advised the Tribunal that based on the above information, the applicant’s original birth certificate issued in 1990 provided for this application is verified as ‘GENUINE’.

25. The Tribunal is satisfied, based on the verification of the applicant’s birth certificate provided for this application, as to the applicant’s identity.  

26. Therefore, the applicant meets PIC 4020(2A).

27. Given the findings above, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 309 visa.

    DECISION

28. 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 (Partner (Provisional)) visa:

    ·Public Interest Criterion 4020(2A) for the purposes of cl.309.225 of Schedule 2 to the Regulations.

    Adrienne Millbank
    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.

    …