Zefi (Migration)

[2022] AATA 1412

Zefi (Migration) [2022] AATA 1412 (4 May 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Rrikard Zefi

VISA APPLICANT:  Miss Sidorela Kolendrekaj

REPRESENTATIVE:  Mr Lochlan Reef Mac Nicol (MARN: 2117075)

CASE NUMBER:  2114474

HOME AFFAIRS REFERENCE(S):          BCC2017/4473948

MEMBER:Peter Emmerton

DATE:4 May 2022

PLACE OF DECISION:  Adelaide

DECISION:The Tribunal remits the application for a Prospective Marriage (Temporary) (Class TO) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 300 (Prospective Marriage) visa:

·Public Interest Criterion 4020 for the purposes of cl 300.223 of Schedule 2 to the Regulations

Statement made on 04 May 2022 at 1:22pm

CATCHWORDS

MIGRATION – Prospective Marriage (Temporary) (Class TO) visa – Subclass 300 (Prospective Marriage) – false and misleading information regarding the sponsor’s identity – availability of identity documents in Kosovo – further identity documents provided upon review – minor typographical error – documents created with UNHCR assistance – no element of fraud or deception – decision under review remitted      

LEGISLATION

Migration Act 1958, ss 5(1), 65
Migration Regulations 1994, Schedule 2, cls 300.222, 300.223; Schedule 4, Public Interest Criterion 4020

CASES

Arora v MIBP [2016] FCAFC 35
Batra v MIAC [2013] FCA 274
Trivedi v MIBP [2014] FCAFC 42

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 16 September 2021 to refuse to grant the applicant a Prospective Marriage (Temporary) (Class TO) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 27 November 2017.

3. The delegate refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl 300.223 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) because the delegate believed that the applicant provided false and misleading information regarding the sponsor’s identity.

4. The review applicant appeared before the Tribunal, via video, on 4 May 2022 to give evidence and present arguments. The Tribunal also received oral evidence via telephone from Miss Sidorela Kolendrekaj, the visa applicant and via video, Mr Ndrek Zefi, the sponsor’s father.

5. The review applicant was represented in relation to the review.

6. The applicants were informed that the Tribunal was in possession of a Certificate under s.375. That it was therefore unable to reveal the contents of the document. It also stated that the information contained within the Certificate were not considered relevant to the Tribunal’s decision-making process and it would be disregarded and form no part of the Tribunal’s decision. They were asked if they would like to comment or respond and would they like more time before they commented or responded. It was explained to them that they could ask for more time before replying and/or seek advice from their representative. The Tribunal offered a brief recess for the representative to explain the issue. Upon resumption of the hearing, they declined to seek additional time to consider the s.375 Certificate or comment or respond. 

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in this review is whether the visa applicant meets Public Interest Criterion 4020 (PIC 4020) as required by cl 300.223 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).

9. 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?

10. 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.

11. 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.

12. 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.

13. The Tribunal notes that the delegate in their decision dated 16 September 2021, states the following. ‘In both the application and sponsorship forms it was declared that the sponsor had not been known by any other names.’ The delegate claimed that the sponsor had been known by another identity which was undeclared and not provided in any of the supporting documents. They also stated that the sponsor’s identity and character were relevant in assessing the sponsorship provisions of the visa, including regulation 300.222 of the Migration regulations 1994.

14. On 23 April 2021, an Australian Embassy Belgrade officer sent email requesting a police certificate from any country the sponsor had lived for a total of 12 months or more in the last 10 years and requesting that the name on the police certificate(s) match the name in the sponsor's passport and includes any other names or aliases the sponsor has been known by. The Tribunal notes that he did in fact comply with the request that the name on the police certificate(s) match the name in the sponsor's passport, the only Passport he possessed.

15. On 07 May 2021, the sponsor provided his Australian Federal Police National Police Certificate (AFP NPC) dated 07 April 2021. The Australian Federal Police certificate only showed the name Rrikard ZEFI.

16. On 20 May 2021, an Australian Embassy Belgrade officer sent (via email) the applicant and her agent a written invitation to comment on the possible refusal of the application under PIC 4020 (1). They stated, ‘The Department has received information that your sponsor has been known by another identity which was not declared in any supporting documents or included in his police certificate.’

17. The delegate states the following response from the agent in their decision.

    On 01 June 2021 the authorised agent provided the following:

    ·Agent's submission declaring that the sponsor denied having been known by any other name and that the allegation was not true,

    ·Notification of incorrect answer(s) in which she advised of sponsor's change of residential address,

    ·The sponsor's response to the natural justice explaining that his only identity is Rrikard Zefi and that this has been his only identity since his birth on 06 March 1984. The sponsor further declares that he was born and raised in Prishtina, Kosovo and he is unable to provide the Department with a birth certificate as he does not have one and the archives in Kosovo were burned and destroyed during the war. The sponsor also claims that he is constantly under doctor's supervision and if he leaves Australia it will affect his health.

18. The delegate in relation to this matter which is currently under consideration, was concerned that greater effort was not undertaken to obtain proof of identity as the sponsor claimed he that the archives in Kosovo were burned and destroyed and he was therefore unable to provide relevant documents. The destruction of important records during the war in Kosovo is well documented and accepted by the Tribunal. The delegate stated that people born in Kosovo can apply for civil registration and can apply for official identification documents issued by the Republic of Kosovo. They went on to say that Kosovan civil status documents can be obtained at the Civil Registry offices in Kosovo, or at the Kosovo Consulates. All requests for Kosovan Information civil status documents can be either made in person; or by a family member of the applicant (spouse I child /parent/ sibling); or by an authorised person or guardianship body.

19. The delegate also stated that they placed ….‘adverse weight on the fact that he did not provide any other supporting documents, such as secondary identification or school records for him or his family, that would support his claim of having been born in Pristina in this identity.….’

20. The following 3 documents have subsequently been provided to the Tribunal. They have been provided by the Registrar of the Ministry of Internal affairs of Kosovo and are dated 4 October 2021.

    ·Citizenship Certificate

    ·Birth Certificate

    ·Extract from the Central Register of Civil Status

    The Tribunal accepts these documents as genuine and notes there is no evidence before it to indicate otherwise. It notes that the documents state that the sponsor’s name is Rikard Zefi not Rrikard Zefi, as all the previous identity documents created from the time the sponsor arrived in Australia as a refugee, with the assistance of the UNHCR, at the age of 15 stated. It is also noted that Date of Birth coincides with the information provided by the sponsor as does the identity of his parents and place of birth. The Tribunal accepts that these documents are in the form of the evidence the delegate believed should have been made available at the time of their decision. It also accepts that they relate to the sponsor although there appears to be a minor typographical error as the given names original spelling did not contain ‘Rr’ at the start.

21. The Tribunal questioned the sponsor at the hearing as to how this spelling change had occurred. He explained that at the age of 15 having escaped war-torn Kosovo, fearing for his life, he didn’t pay attention to forms and he isn’t particularly academically focussed. He went on to say that his father had noted this first occurred in the forms created by the UNHCR when they fled the country and came to Australia. His father did not want to potentially delay their escape and question the spelling be corrected. The Tribunal accepts that this correction could reasonably be expected to complicate the issue and delay their departure. It also accepts that this apparent typographical error would not be likely to have been the most important issue the family was focussed upon at a time when history shows many did not escape from Kosovo but perished in the war. The Tribunal observes that this minor change would then have naturally cascaded throughout all the subsequent identification documents, as the UNHCR document would have been considered the reliable source document used to create all the subsequent documents necessary to operate successfully in our society.

22. The Tribunal questioned the witness Mr Ndrek Zefi, (sponsor’s father), as to the circumstances leading up to the name change on his son’s documentation. He was a convincing witness and explained that the spelling mistake was discovered as they were about to board the plane to Australia as refugees. He pointed out the addition of an additional ‘r’ on the paperwork to the UNHCR representative. The UNHCR representative stated it could not be changed as the tickets were issued in that name. To correct the paperwork would have meant denial of passage. This is well known to the Tribunal and has been rigidly enforced globally post the 9/11 attacks in the USA.

23. His responses and demeanour appeared to demonstrate that he was genuinely remorseful and felt substantial guilt that his failure to address this issue originally has caused so much trouble for his son and his son’s partner. The Tribunal accepts the impact of a family seeking refuge in another country, fleeing a civil war and the stresses associated with keeping a family safe would be overwhelming. The family were coming from an unsophisticated country in relation to government processes to a country with sophisticated and rigid processes and therefore the important need to correct the mistake at the earliest opportunity may not have been fully appreciated.  

24. The Tribunal has formed the view that at the time the sponsor’s identity was being questioned, had the investigating officer sought similar names with the same Date of Birth, in the location specified, the error may have reasonably been expected to have been discovered. Such techniques are commonplace in everyday searches on data bases. In fact, the most frequently searched database in the world searches for alternatives and best fits to search criteria automatically.

25. The Tribunal has formed the view that the slightly incorrect spelling of a given name, that could have been easily searchable, does not constitute information that is false or misleading in a material particular as defined in PIC 4020 (1). In addition, it observes that any negative information that could have been and subsequently was identified in relation to the sponsor, was discoverable and supplied to the department under the spelling of his identity from the time of the UNHCR produced documentation. This was the base document used to develop all subsequent identity documents from the age of 15.

26. The Tribunal further observes that the sponsor is not a particularly sophisticated individual and under questioning the sponsor admitted that he had stopped attending school for the last 3 years prior to arriving in Australia. This means that in practical terms he would have had, at best, an education up to approximately year 5 or 6 in Primary School. This suggests a poor level of functional literacy and associated understanding of the world in which the sponsor operates well below that of an average Australian adult.

27. The department has not supplied any verifiable evidence to demonstrate that the sponsor was not born in Kosovo, in the location provided, with the parents claimed, on the date identified. No substantial evidence has been provided that credibly sustains the theory of an alternate identity. 

28. The Tribunal does not believe that an element of fraud or deception by some person which is necessary to attract the operation of the provision: Trivedi v MIBP [2014] FCAFC 42, has been proven. The Tribunal accepts that the spelling mistake and lack of understanding of the need to correct that mistake is more an indication of the lack of sophistication and level of literacy of the sponsor, the visa applicant and the sponsor’s father.

29. Therefore, the applicant meets PIC 4020(1).

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

30. PIC 4020(2) requires the Tribunal to be satisfied that the applicant and each member of the family unit have not been refused a visa because of a failure to satisfy PIC 4020(1) in the period commencing 3 years before the application was made and ending when the visa is granted or refused. This requirement does not apply to a person who was under 18 at the time the application for the refused visa was made: PIC 4020(2AA).

31. There is no evidence before the Tribunal that the applicant has been refused a visa because of a failure to satisfy PIC 4020(1) in the period commencing 3 years before the application was made and ending when the visa is granted or refused.

32. Therefore, PIC 4020(2) is met.

    Has the applicant satisfied the identity requirements?

33. PIC 4020(2A) requires an applicant satisfy the Tribunal as to his or her identity. The Tribunal has been furnished with all of the relevant identifying documentation provided to the department during the original visa application process. It has subsequently been provided with the addition identification documents stated in paragraph 20 of this decision. There is no evidence before it that the identity requirements have not been met.

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

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

35. 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).

36. There is no evidence before the Tribunal that 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.

37. Therefore PIC 4020(2B) is met.

38. On the basis of the above, the applicant does satisfy PIC 4020 for the purposes of cl 300.223.

    DECISION

39. The Tribunal remits the application for a Prospective Marriage (Temporary) (Class TO) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 300 (Prospective Marriage) visa:

    ·Public Interest Criterion 4020 for the purposes of cl 300.223 of Schedule 2 to the Regulations

    Peter Emmerton
    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.

    …