False Information Irrelevant for the Purpose of Determining Whether a Protection Visa Should be Refused Under S91WA of the Act

BMK18 v Minister for Home Affairs & Anor[1] involves an appeal of a decision of the Federal Circuit Court of Australia (FCC) wherein the applicant’s protection visa application was refused by the AAT.

 

Issue

1.     Whether the primary judge incorrectly applied s 91 WA of the Migration Act 1958.

 

Applicable Legislation

 

Section 91 WA  Providing bogus documents or destroying identity documents

(1)  The Minister must refuse to grant a protection visa to an applicant for a protection visa if:

a)     the applicant provides a bogus document as evidence of the applicant’s identity, nationality or citizenship; or;

………………

(3)  For the purposes of this section, a person provides a document if the person provides, gives or presents the document or causes the document to be provided, given or presented.


Little Background facts

 

·       The applicant indicated in his protection visa application that his date of birth was 10 June 1990.  That was in contrast to his passport which stated that his date of birth was 1 January 1977.

 

·       He provided a copy of his passport with the application …. In his written application form he … answered “Yes” to the question of whether he had a different date of birth to the one previously provided, however, he did not provide any explanation for the discrepancy.

 

·       The Tribunal found that the date of birth in the passport of the appellant of 1 January 1977 was false. It found that the passport was a “bogus document” within the meaning of s 5(1) of the Act because it was either counterfeit or obtained by a false or misleading statement…

 

·       The appellant’s argument on the construction of s 91WA(1)(a) of the Act is that subs (1)(a) was not engaged because BMK18 did not provide the passport “as evidence” of his identity, nationality or citizenship…

 

·       The appellant did not dispute the finding that the appellant’s passport was a “bogus document”. It was also not in contest that the appellant provided a copy of that passport to the Department…

 

 Federal Circuit Court’s findings

 

·       The difficulty for the appellant here is that the words of s 91WA are concerned with and expressly apply to the provision of a document which is bogus. They are not expressed to be concerned with the provision of false information and nor are they limited to that. That is emphasized by sub-section (3).

 

·       Moreover, the definition of “bogus document” shows that it includes a document which has been altered so the section could apply to a legitimate document which has been altered in some relatively minor way. The obvious concern of the section is the propounding of bogus documents and not necessarily the amount of false information contained in them.

 

Decision

 

·       The substance of the argument advanced by BMK18 is that s 91WA(1)(a) should be read as only applying where some falsity in the bogus document is propounded in relation to a claimed identity, nationality or citizenship. It was submitted that BMK18 did not propound any falsity contained in the bogus document in relation to those matters. It was argued that, on the visa application form he gave his date of birth as being 10 June 1990 which, effectively, disavowed the date identified in the passport…

 

·       The section and its obvious intent is promoted by giving the words used by the Parliament their ordinary and natural meaning. If bogus documents are provided as evidence of the applicant’s identity, nationality or citizenship, subject to sub-section (2), the Minister is obliged to refuse the protection visa. This gives effect to the “disincentive” to use bogus documents which is referred to by Mortimer and Wigney JJ.

 

·       The FCCA found that appellant used the documents for the purposes of establishing his identity, nationality and citizenship, and he did so for the purposes of his application for a protection visa.

 

·       Consequently, the appeal was dismissed.

 

Getting Assistance

 

If you are affected by s 91WA or PIC 4020, please contact us without delay to ensure that we can apply the correct law and case laws to assist you in your current application.

 

At Agape Henry Crux, our lawyers are well trained to handle highly complex matters so book one of our lawyers to seek professional advice now by calling 02-27007200 or email us to book in a time at info@ahclawyers.com.  We speak fluent English, Mandarin, Cantonese, Indonesian and Malay. If these aren’t your language, we can also help you arrange an interpreter.

 


Reference:

[1] [2018] FCCA 2092

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