1701593 (Migration)

1701593 (Migration) [2019] AATA 816 (12 April 2019)
Corrigendum
DIVISION:Migration & Refugee Division
CASE NUMBER:  1701593
MEMBERS:Deputy President Jan Redfern (Presiding)

Dr Colin Huntly, Member
DATE OF DECISION:  12 April 2019
DATE CORRIGENDUM
SIGNED:6 May 2019
PLACE OF DECISION:  Sydney
AMENDMENT:  The following corrections have been made to the decision record:
1.The number “19.” in paragraph “22” has been removed;
2.Repeated paragraph number “21” at the top of page 6 has been renumbered to “23”;
3.Paragraphs “23” to “27” have been renumbered in the correct order;
4.The number “23.” in paragraph “28” has been removed;
5.Paragraph “28” has been renumbered to “29”; and
6.Paragraphs “29” to “81” have been renumbered in the correct order.

………………………………
Jan Redfern
Deputy President

DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1701593
MEMBERS:  Deputy President Jan Redfern (Presiding)

Dr Colin Huntly, Member
DATE:  12 April 2019
PLACE OF DECISION:  Sydney
DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Refugee and Humanitarian (Refugee) (Class XB) (Subclass 200) visa.

Statement made on 12 April 2019 at 2:15pm
CATCHWORDS:
MIGRATION – Refugee and Humanitarian (Refugee) (Class XB) (Subclass 200) visa – cancellation of visa under s 109 of the Migration Act 1958 – whether incorrect information provided in visa application – information related to the applicant’s marital and relationship status – non-compliance not established – decision set aside and substituted
LEGISLATION:
Freedom of Information Act 1982 (Cth)

Migration Act 1958 (Cth), ss 48, 101, 102, 103, 104, 105, 107, 99, 108, 109 & 119
Migration Regulations 1994, rr 1.03, 1.05A, 1.12, 2.41 & 200.228(a)
CASES:
Minister for Immigration and Citizenship v Khadgi[2010] FCAFC 145; (2010) 190 FCR 248
Sullivan v Civil Aviation Safety Authority [2014] FCAFC 93
Zhao v Minister for Immigration & Multicultural Affairs [2000] FCA 1235
1703474 (Refugee) [2017] AATA 2985
SECONDARY MATERIALS:
Procedural Instruction – ‘General visa cancellation powers s109, s116, s128, s134B and s140’
statement of decision and reasons
Introduction

The applicant arrived in Australia [in] June 2010 as a holder of a Refugee and Humanitarian (Refugee) (Class XB) (Subclass 200) visa. As part of the application for that visa, the applicant provided information regarding her living arrangements and marital status.
On 23 January 2017, a delegate of the Minister for Immigration and Border Protection (the Department) cancelled the applicant’s visa on the basis that information provided by the applicant regarding her marital status was incorrect. The delegate cancelled the visa of the applicant’s infant daughter on the same basis.
The applicant and her infant daughter lodged an application for review of the cancellation decision on 2 February 2017. The reviews were heard together because they involve similar factual and legal issues but both applications for review have been determined separately.
The issue in the present case is whether that ground for cancellation is made out, and if so, whether the applicant’s visa should be cancelled under s.109(1) of the Migration Act 1958 (the Act).
decision under review
The applicant is a citizen of Ethiopia who had been living for many years in [Country 1] prior to her migration to Australia. She was granted a Refugee and Humanitarian Subclass 200 visa on 2 May 2010 as a dependant member of a family unit. The application for that visa was lodged by the applicant’s father.
As part of the application process, the applicant provided information to the effect that she had separated from her husband, Mr [A], and was therefore dependant on her father.
Following the grant of the visa and her arrival in Australia, the applicant sought to amend her personal Departmental records under the Freedom of Information Act 1982 (the FOI Act). In particular, the applicant sought to amend her relationship status from ‘single’ to ‘married’.
The applicant also acted as the sponsor for Mr [A]’s application for a partner visa. This application was lodged on 29 June 2014. In support of the Partner application, the applicant provided a statutory declaration to the effect that she had agreed to dissolve the marriage in order to be included as a dependant on the Subclass 200 visa application lodged by her father; she did not consider the dissolution of her marriage and separation as an end of the relationship with her ‘former’ husband and she wanted to remarry her ‘former’ husband as soon as possible.
A delegate wrote to the applicant [in] August 2016 with a ‘Notification of Intention to Consider Cancellation’ (NOICC) on the grounds that the applicant had provided incorrect information concerning her relationship status. The delegate stated that the information provided in the applicant’s statutory declaration in support of her former husband’s application indicated she was in an ‘ongoing relationship’ at the time of the application and grant of the Subclass 200 visa.
The applicant’s migration agent provided a response to the notification on 12 January 2017. The response stated that:
(1)The information provided by the applicant as part of the Subclass 200 visa application was true and correct.
(2)The Department should have been aware that the applicant’s travel document was incorrect in so far as it indicated that the applicant had ‘never married’ because the applicant had disclosed during the visa application process that she was divorced. This error is insufficient to justify the cancellation of her visa.
(3)The applicant was coerced into marrying as a minor by a family member.
(4)While the applicant acknowledged the information in the statutory declaration was false, she says it was given on advice from a friend in the community.
(5)If the applicant’s visa is cancelled, the applicant would be forced to return to Ethiopia as she has no citizenship or right to permanently reside in any other country apart from Ethiopia.
(6)The applicant would suffer hardship if her visa was cancelled as she has no knowledge or recollection of Ethiopia and no social connections or family in Ethiopia apart from the relative who arranged her marriage.
The delegate found that the applicant did not comply with s.101 of the Act on the basis she had provided incorrect information regarding her marital and relationship status in her visa application. The delegate stated that the applicant’s conduct was inconsistent with the behaviour of a person coerced into marriage and indicated that the ‘applicant has been and was in an ongoing relationship’ at the time of the application and when the visa was granted. The delegate found that the ground for cancellation had been established.
After taking into consideration the above submissions as to why the visa should not be cancelled, the delegate decided to cancel the applicant’s visa.
In reaching that decision, the delegate considered the prescribed circumstances set out in r.2.41 of the Migration Regulations 1994 (the Regulations). Notably, the delegate considered that the following factors weighed in the applicant’s favour:
·the applicant’s present circumstances indicate that she would suffer some hardship if her visa was cancelled as she has established social ties to the Australian community, has family members in Australia and is accustomed to the Australian way of life;
·considerable time has elapsed since the non-compliance;
·the applicant has not breached the law since the non-compliance;
·there are no other instances of non-compliance;
·the applicant voluntarily provided ‘correct information’ confirming her relationship with her former husband at the time of the visa application and grant; and
·the best interest of the applicant’s daughter who resides in Australia.
These factors were given ‘some’ or ‘minimal’ weight against cancellation.
The delegate noted that if the applicant’s visa was cancelled she would be prevented from lodging an onshore visa application pursuant to s.48 of the Act. This also weighed against cancellation.
However, the delegate noted that the applicant had provided incorrect information about her relationship status and this would have impacted on the decision to grant her visa. This did not weigh in the applicant’s favour.
In assessing these factors, the delegate concluded that the applicant’s visa should be cancelled.
Legal FRAMEWORK AND issues FOR DETERMINATION
This is an application for review of a decision to cancel the applicant’s Subclass 200 visa. The applicant’s visa was granted on the basis that she was a member of the family unit in her father’s application
The requirements for a refugee and humanitarian Subclass 200 visa are set out in Part 200 of Schedule 2 of the Regulations. Relevantly, the criteria to qualify require that an ‘additional applicant’ be a ‘member of the family unit’: r .200.228(a) of the Regulations. The term ‘member of a family unit’ is defined in r.1.12(b)(i) of the Regulations as ‘a dependent child of the family head or of a spouse or de facto partner of the family head; or… [a person] who does not have a spouse or de facto partner.’ Regulation 1.03 provides that ‘dependent child’ means a child (other than a child who is engaged to be married or has a spouse or de facto partner) who has not turned 18 years or who has turned 18 years but is dependent. Under r.1.03 of the Regulations ‘dependent’ has the meaning given by r.1.05A of the Regulations, which provides, amongst other things, that a person is a dependent of another if they are reliant on the other for financial support to meet their basic needs.
As such, the issue of whether the applicant was married or in a de facto relationship at the time of the application and the grant of the visa was material to the question of whether the applicant and her daughter would meet the criteria to be part of a family unit.
Subsection 109(1) of the Act allows the Minister to cancel a visa if the visa holder has failed to comply with ss.101, 102, 103, 104, 105 or 107(2) of the Act. Broadly speaking, these sections require non-citizens to provide correct information in their visa applications and passenger cards, not to provide bogus documents and to notify the Department of any incorrect information of which they become aware and of any relevant changes in circumstances. In this case, the alleged non-compliance is with s 101(b) of the Act which provides that a non-citizen must fill in or complete his or her application form in such a way that no incorrect answers are given or provided. Section 99 of the Act provides that any information that is given or provided on behalf of the visa holder in relation to their visa is taken to be an answer for the purposes of s 101(b).
The exercise of the cancellation power under s.109 of the Act is conditional on the Minister issuing a valid notice to the visa holder under s.107 of the Act providing particulars of the alleged non-compliance. Where a notice is issued that does not comply with the requirements in s.107 of the Act, the power to cancel the visa does not arise. Extracts of the Act relevant to this case are attached to this decision
Subsection 107(1) of the Act provides that the Minister must give particulars of the possible non-compliance. The particulars in the NOICC were to the effect that the applicant had provided information in support of the visa to the effect that she was forced to marry Mr [A], he was planning to leave [Country 1], she did not want to accompany him and she divorced Mr [A] and returned to[City 1] to live with her father. This information was said to be incorrect because in February 2011 the applicant had requested that her marital status for the purpose of Departmental information be changed from single to married and in June 2014 the applicant provided information in support of a partner visa that she and Mr [A] had agreed to the dissolution of their marriage so she could be included in her father’s application for a refugee and humanitarian visa. The applicant did not consider the dissolution and separation to be an end of the relationship. According to the NOICC, these matters indicated that the applicant and Mr [A] were in an ongoing relationship and were in such a relationship at the time of the application for the refugee and humanitarian visa. This was inconsistent with the information provided in support of the refugee and humanitarian visa and therefore in non-compliance with s.101(b) of the Act
In the present matter, the Tribunal is satisfied that the delegate had reached the necessary state of mind to engage s.107 of the Act and that the notice issued under s.107 complied with the statutory requirements.Relevantly, the NOICC provided particulars of the possible non-compliance and those particulars were sufficiently detailed for the applicant to understand how it was alleged there was non-compliance with s.101(b) of the Act[1]. Furthermore, the NOICC set out the effect of various provisions of the Act and otherwise complied with the provisions of s.107(1) of the Act.
[1] Refer 1703474 (Refugee) [2017] AATA 2985.
Before the power under s.109 of the Act can be exercised, the Minister (or delegated decision-maker, and the Tribunal standing in the shoes of the decision-maker) must first consider any response to the notice and decide whether there has been non-compliance by the visa holder in the way described in the notice: s.108 of the Act. However, giving a visa holder the opportunity to respond does not change the nature of the decision-making process. The obligation is on the decision-maker to be satisfied that there has been non-compliance, not on the former visa holder to establish that the facts or grounds do not exist. The authority for this proposition is Zhao v Minister for Immigration & Multicultural Affairs [2000] FCA 1235, where the Federal Court opined as follows:
The decision-maker, acting under s 116, must be satisfied of one or other of the matters set out in that section before the visa can be cancelled. That state of satisfaction is a real state of satisfaction which must be reached on a consideration of the available material. A visa cannot be cancelled simply because the visa holder has failed to show cause why it should not. … A visa cannot be cancelled because the decision-maker has identified a possible ground of cancellation which the visa holder has not been able to rebut.[2]
[2] Zhao v Minister for Immigration & Multicultural Affairs [2000] FCA 1235 (French, Hill and Carr JJ, 1 September 2000) at [25] and [32].
While Zhao was concerned with cancellation under s.119 of the Act, these comments are equally applicable to s.109 of the Act. As such, in cases where the existence of certain facts form the basis of the exercise of a statutory power, those facts must be established on the material available before the power can be exercised. In other words, the decision-maker must be satisfied about the existence of those facts before exercising the power.
In deciding whether the ground for cancellation is made out and whether those facts exist it is appropriate for the Tribunal to have regard to the nature of the allegations and the gravity of the consequences: Sullivan v Civil Aviation Safety Authority [2014] FCAFC 93 (Flick and Perry JJ) at [120]. Relevant to the facts of this case, the cancellation of a permanent visa where the visa holder has resided in Australia for over seven years has significant consequences. As such, we have formed the view that we must be comfortably satisfied that the grounds for cancellation exist.
If it is decided there has been non-compliance in the way described, the decision-maker must then have regard to any prescribed circumstances to decide whether the visa should be cancelled: refer s.109(1) of the Act. In other words, there is a two stage decision-making process that must be undertaken in respect of the exercise of the cancellation power under s.109 of the Act. It is also relevant to note that cancellation is not mandatory but discretionary.
In exercising this power, the Tribunal must consider the applicant’s response (if any) to the s.107 notice about the non-compliance, and have regard to any prescribed circumstances: s.109(1)(b) and (c) of the Act. The prescribed circumstances are set out in r.2.41 of the Regulations. Briefly, they are:
·         the correct information;
·         the content of the genuine document (if any);
·         whether the decision to grant a visa or immigration clear the visa holder was based, wholly or partly, on incorrect information or a bogus document;
·         the circumstances in which the non-compliance occurred;
·         the present circumstances of the visa holder;
·         the subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act;
·         any other instances of non-compliance by the visa holder known to the Minister;
·         the time that has elapsed since the non-compliance;
·         any breaches of the law since the non-compliance and the seriousness of those breaches; and
·         any contribution made by the holder to the community
.While the prescribed circumstances must be considered, they do not represent an exhaustive statement of the circumstances that might properly be considered to be relevant in any given case: Minister for Immigration and Citizenship v Khadgi (2010) 190 FCR 248.
The Tribunal may also have regard to lawful government policy. The relevant policy is set out in the Department’s Procedural Instruction ‘General visa cancellation powers (s109, s116, s128, s134B and s140)’, which refers to matters such as the consequences of cancelling the visa, international obligations and any other relevant matters. International obligations include non-refoulement obligations and obligations relating to the interests of the child.
The issues before the Tribunal are whether there was non-compliance as particularised in the s.107 notice, and if so, whether the applicant’s visa should be cancelled.
INFORMATION PROVIDED TO THE TRIBUNAL
The applicant appeared before the Tribunal on 22 November 2017 to give evidence and present arguments. The applicant was represented by her registered migration agent, who provided written submissions and documents in support of the application prior to and following the hearing.
The Tribunal was provided with the Department’s file in respect of the cancellation decision which included a copy of a transcript of an interview with the applicant’s father conducted [in] March 2010 as part of the visa application process.
In addition, and at its request, the Tribunal was provided with copies of the following documents which were referred to in the NOICC and the reasons for the decision to cancel the applicant’s refugee and humanitarian visa:
·two requests lodged by the Applicant under the FOI Act to amend personal details, dated [in] February 2011 and [in] April 2011;
·Mr [A]’s application for a UF Partner (Provisional) and BC Partner (Migrant) Visa (Form 47A) dated [in] June 2014;
·a statutory declaration in support of Mr [A]’s visa application; and
·the reasons for decision refusing the partner visa application dated 5 May 2015.
Further submissions and evidence were requested by the Tribunal after the hearing and on 21 February 2019 the Tribunal was provided with updated information about the applicant’s current status and circumstances. According to the submissions received, the applicant is not in any current relationship and she and her daughter were granted a Subclass 866 protection visa on 19 February 2019. This evidence about the grant of the protection visa was verified by the Tribunal by reference to records of the Department.
was there non-compliance by the applicant in the way described in the s.107 notice?
Claims and evidence

According to the NOICC, the applicant provided incorrect information in the application for the refugee and humanitarian visa because at the time of the application she was in fact in an ongoing relationship with Mr [A]. She was not separated or divorced.
The applicant’s father, Mr [B], was the primary applicant for the refugee and humanitarian visa. The application was lodged on 10 December 2009. [Mr B’s] wife, [children] and the applicant were included in the application as dependents. The applicant’s daughter, [Ms C], was born in [date] and she was later included in the visa application.
The applicant’s father and his wife were interviewed in March 2010 by officials. The recorded notes included the following:
Does your daughter have any relationship that you know of? She was married but her [relative] made her marry but she was underage and so I brought her from [City 2] saying that my daughter is included in the file and I’m going to take her. Her husband volunteered and gave me her to take. Is she divorced? Yes they divorced but she has a child. But he didn’t want her to lose the opportunity so he allowed her.
In the decision record for the cancellation of the applicant’s visa it is noted that the applicant provided information to officials to the effect that she was forced to marry Mr [A], she was underage at the time of the marriage, Mr [A] was planning to leave [Country 1], she did not want to accompany him, she and Mr [A] were divorced and she had returned to live with her father in [City 1].
The applicant says she was interviewed by officials, although there is no record of the interview notes in the files provided by the Department. During the hearing the applicant agreed she provided the information referred to above to officials. As such, this is not in dispute.
While the Tribunal notes that the applicant had just turned 18 at the time she was married and therefore was not underage, nothing turns on this. This was not the basis for the grant of the refugee and humanitarian visa to the applicant. It is apparent from the evidence in the UNHCR assessment that it was accepted by UNHCR assessors the applicant was vulnerable and was dependent on her father at the time of the assessment. It was accepted the applicant was a dependent because she was living with her father and assessors were satisfied she was no longer in an ongoing marital relationship with Mr [A]. This was based on interviews of the applicant, her father and her step-mother at the time of the assessment.
On 3 May 2010 the applicant and her daughter were granted a refugee and humanitarian visa as dependents of the applicant’s father. Her father was found to have a well-founded fear of persecution based on his political opinion. It was claimed, and accepted, that he become a target in Ethiopia and had fled to the [Country 1] as a result of this persecution. The applicant’s father was found to be credible. It was also noted in the assessment undertaken by UNHCR officials that the applicant was interviewed and found to be credible.
The UNHCR assessment record included an assessment of the applicant’s circumstances, which is generally consistent with the applicant’s current claims and evidence at the hearing.
The applicant arrived in [City 3] with her daughter [in] June 2010. She said that soon after arriving in Australia, her father and stepmother moved to [City 4] to live to be near her father’s church group. He told the applicant to stay in [City 3], which she did. She did not know many people in [City 3] and initially found it difficult. She had contact with Mr [A] by telephone soon after she arrived in Australia. After about four months in Australia the applicant said that she started to think about the idea of whether Mr [A] could join her in Australia to live with her and her daughter. She spoke to Mr [A] about this and he agreed. No doubt encouraged by this, the applicant then set about taking a series of steps to sponsor Mr [A] to come to Australia as her partner.
[In] February 2011, the applicant lodged a request to amend her personal records under the FOI Act to change her status from single to married. One of the applicant’s travel documents recorded her marital status as ‘never married’. The applicant provided a copy of a marriage certificate dated [in] May 2009 which referred to a marriage between the applicant and Mr [A] in [Country 1] in a church in [City 1]. In response to the question ‘[w]hat do you claim is the correct information?’, it is noted ‘I am married legally’.
A further application was made [in] April 2011. The application was dated [in] April 2011 and was apparently signed by the applicant. It noted that the applicant’s marital status should be changed from ‘never married’ to married because an officer in [Country 1] had filled out the application incorrectly.
The applicant said that she made these applications because she wanted to bring Mr [A] to Australia and she thought this would assist in any partner application.
[In] December 2011, the applicant travelled overseas to [City 1] and, according to the records provided by the applicant in a later application to sponsor Mr [A] for a partner visa, they remarried [in] January 2012.
On 29 June 2014 the applicant lodged a sponsorship application to support Mr [A]’s application for a partner visa. As part of the application the applicant provided a statutory declaration which stated, amongst other things, that she and Mr [A] had only dissolved their marriage so she could be included in her father’s application for a refugee and humanitarian visa. It was also stated that the separation was not the end of their relationship and that Mr [A] and the applicant wanted to be together and married again as soon as they were able to do so. Not only is this statement inconsistent with the statement made by the applicant and her father in support of the refugee and humanitarian visa but it is inconsistent with the fact that by the time this statement was made the applicant had already returned to [City 1] to re-marry Mr [A].
The application for a partner visa was refused on the basis that the delegate was not satisfied the applicant and Mr [A] were in a genuine relationship. The applicant sought a review of this decision to the Tribunal but the review was subsequently withdrawn by her.
On the face of it, the information provided to the UNHCR in support of the refugee and humanitarian visa and the information provided in support the partner visa are directly in conflict. These inconsistencies formed the basis for the finding by the delegate that incorrect information had been provided in support of the refugee and humanitarian visa.
In submissions provided to the Tribunal prior to the hearing, the applicant’s representative, who was not instructed at the time of the previous applications, submitted that the application to amend the applicant’s personal particulars and the information included in the partner visa to the effect she and Mr [A] had never separated was ‘false’. These steps were taken and information provided in an effort to reunite her and her daughter with Mr [A]: refer at [3.3.6].
In further submissions made by the applicant’s representative after the hearing, it was asserted that the marriage ceremony between the applicant and Mr [A] was a traditional marriage and was not recognised by Australian law. The applicant’s representative further submitted that the statutory declaration provided by the applicant in support of the partner visa contained a number of averments which were factually incorrect the most important of which was that the applicant’s ‘marriage’ still subsisted whereas in fact the marriage was not recognised in Australian law and is, therefore, a nullity’: refer to Further Submissions at [3.2] of the.
In our view the question of whether the wedding in 2009 was legal or not is not determinative of the critical issues that require consideration and resolution in this case.
The issue is whether there was non-compliance in the way described in the NOICC, namely, whether the applicant, or someone on her behalf, provided incorrect information in the refugee and humanitarian visa as particularised in the NOICC. Those particulars were that the applicant provided information that she was separated and divorced from Mr [A] when in fact she was in an ongoing relationship with him. Whether the applicant was legally married or not was not necessarily the critical issue for those assessing the applicant’s status for the purpose of the refugee and humanitarian visa. It was whether the applicant was married or in a de facto relationship. If she was married, was she divorced or separated? If she was in a de facto relationship was she separated? The UNHCR assessors were apprised of the claim that the applicant’s marriage was not legal but traditional. The material issue for the UNHCR was whether the assessors were satisfied the relationship between the applicant and Mr [A] had ended. In other words, was it accepted that the applicant and Mr [A] had ‘divorced’; or separated for the purposes of assessing whether the applicant was dependent and therefore a member of the family unit? It is apparent from the UNHCR assessment report and the subsequent grant of the visa to the applicant and her daughter that this was accepted.
The contention by the representative that non-compliance with s.101(b) of the Act is not established because at the time of the refugee and humanitarian visa the applicant was not in a marriage recognised by Australian law (at [5.1.2]) does not advance the applicant’s case. In our view, this is a technical distinction and the characterisation of the statutory declaration as being factually incorrect because of the applicant’s marriage to Mr [A] was a ‘nullity’ is not persuasive. Notably, the applicant gave evidence that her marriage was a traditional one where no legal certificate was issued. The evidence about the legal status of the applicant’s marriage and any divorce is imprecise and confusing. This is because there are limited records available about this matter. On balance, it appears the applicant and Mr [A] were not legally ‘married’ at the time of the refugee and humanitarian visa. Ultimately this was not determinative because the question was whether they were in a de facto or marriage like relationship at the time of the assessment of the application.
While the incorrect information identified by the delegate in the NOICC was that the applicant was separated and divorced, the essence of the information said to be incorrect is the representation the applicant was no longer in a relationship with Mr [A] at the time of the application. This matter was critical to the question of whether the applicant was a dependant of her father for the purposes of the refugee and humanitarian visa.
The delegate who cancelled the applicant’s visa found that evidence of her efforts to reunite with Mr [A] through her applications to correct information about her marital status and the statement made by her in support of the partner visa indicated the applicant was in an ongoing relationship with Mr [A] at the time of the refugee and humanitarian visa. There can be no serious dispute that the information contained in the statutory declaration about the applicant’s relationship with Mr [A] is in direct conflict with the information provided in support of the refugee and humanitarian visa. The applicant’s representative concedes this but submits it is the information in the statutory declaration that is incorrect, not the information provided in support of the refugee and humanitarian visa.
As such, to determine the critical question of whether there was non-compliance in the way described in the NOICC, it is necessary to resolve the question of whether the information provided in support of the refugee and humanitarian visa is incorrect or whether the information provided in the statutory declaration is incorrect.
To assess this issue it is necessary to consider the evidence given and submissions made on the applicant’s behalf about this conflicting evidence. We are not bound by the findings of the delegate and must review this matter independently. However, it is relevant to note that we have had the advantage of hearing sworn evidence from the applicant and in testing her evidence about the circumstances leading to her separation in 2009, her reasons for her wanting to reunite with Mr [A] in 2011 and the circumstances that led to her providing certain information to the Department in support of a partner visa in 2014.
According to the applicant, her [relative] put pressure on her to marry Mr [A]. Her [relative] did not consult with her father about the marriage and the applicant did not tell her father. Both were concerned that the applicant’s father would stop the applicant from marrying. The applicant and Mr [A] married at a small traditional ceremony attended by [friends and family]. Her father did not attend the ceremony. After the marriage, the applicant returned to her husband’s house in [City 2], where they lived for about two months. After this they returned to [City 1] where Mr [A] tried to obtain work. The applicant moved back in with her father but by this stage she was already in the early stages of her pregnancy. Mr [A] stayed with his relatives in [City 1] and continued to attempt to find work. The applicant told her father about the marriage on the second day of her return and he was very angry. It was not until after about four months that Mr [A] first met her father.
The applicant told the Tribunal that Mr [A] could not find a job in [City 1] and he said to her that he would need to travel to [Country 2] to find work. He suggested to her that it would be best for her if she remained living with her father in [City 1].
Mr [A] continued to have difficulty finding work and he told her that he ‘could not take responsibility for her’ and he was planning to go to [Country 2]. He said that life was too hard for them in the circumstances and that she should stay with her father. When she asked Mr [A] whether this meant that they were going to be separated it is claimed by the applicant Mr [A] said ‘yes’. She took this to mean they would be separated. The applicant said that after this conversation she only saw her husband occasionally.
In December 2009, the applicant’s father told her he was proposing to include her in the application for a refugee and humanitarian visa. She agreed with this. She gave birth to her daughter in [date]. Mr [A] did not attend the birth, although he visited their daughter on about the first or second day. He also attended the christening but only saw the baby about four times.
The applicant said that she attended an interview with UN officials and told them that Mr [A] was going to leave her and that they were divorced. She said there was no formal divorce process but Mr [A] had told her on a number of occasions that he was not going to take responsibility. She took this to mean they were effectively divorced or separated.
When notification came that her father’s claim for a refugee and humanitarian visa would be accepted, Mr [A] agreed she would be allowed to leave with their daughter.
When the applicant and her daughter arrived in [City 3] with her father, step mother, [and siblings], her father and stepmother left [City 3] after about a month and travelled to [City 4] to live. The applicant remained living in [City 3] with her daughter but she began to feel isolated and after about four months, decided she would like Mr [A] to come to Australia to be reunited with her and her daughter. She discussed this with her husband over the telephone and he agreed that this would be ‘a good idea’. After this the applicant embarked on the process of trying to bring Mr [A] to Australia, which initially involved making the applications to have her personal records amended. In December 2011, she travelled back to [City 1] and decided to re-marry Mr [A]. The applicant agreed that she had been trying to bring her husband to Australia since 2011.
The applicant was questioned about the statutory declaration that was lodged in support of her husband’s application for a partner visa. She said the document was prepared for her by her lawyer but she did not read it and the information had been included on the advice of members of her community.
The applicant was questioned about whether she had provided incorrect information in the application for a refugee and humanitarian visa about her relationship with Mr [A] to ensure she would be successful in her application to be included as a dependent. The applicant denied this. When asked whether she knew that she could not be included in her father’s application for a refugee and humanitarian visa unless she was a dependent, the applicant said she did not know this. She further said that she did not understand the system. The applicant told the Tribunal that she did not think about bringing Mr [A] to Australia until after she had been living in Australia for a couple of months. When asked about whether she would return to Mr [A] if her visa remained cancelled and she needed to leave, the applicant said he was in another relationship and had another child so this would not happen.
Consideration and findings
Having assessed the available evidence, including the documentary evidence related to the refugee and humanitarian visa, the previous application for a partner visa and the claim for amendment to the Department records, we have concerns about the applicant’s evidence but we cannot be satisfied on the available material that there was non-compliance in the way described in the NOICC. Relevantly, we are not satisfied that the statement made by the applicant to the effect that she was not in an ongoing relationship and was separated or divorced was incorrect either at the time it was made or up until the time the applicant’s visa was processed. Our reasons follow.
The applicant’s evidence at the hearing was consistent with her submissions and was credible. She explained in some detail about the circumstances of her relationship with Mr [A] and how they came to separate. Her explanation was plausible. She also explained about her change in feelings towards Mr [A] and the relationship once she came to Australia. This was also plausible. The applicant said that she found living in Australia with a child without the support of her family, who moved to [City 4], to be difficult. She was lonely and hoped she could reconcile with Mr [A]. One of the original problems for them was Mr [A]’s inability to find work to support them. The applicant’s evidence was to the effect that Mr [A] was the one who left her because of these difficulties. According to the applicant, she believed this would be less of an issue in Australia. She therefore embarked on a plan to bring Mr [A] to Australia from at least 2011. In submissions to the delegate in response to the NOICC, the applicant’s migration agent described this as a ‘desperate’ and ‘ill-advised’ plan based on advice from a family friend who was not a migration agent.
The fact the applicant attempted to bring Mr [A] to Australia through a partner visa after she arrived in Australia and returned to [Country 1] to marry him in January 2012 does not of itself compel the conclusion that she provided incorrect information in the application for the refugee and humanitarian visa about their original separation. Circumstances may change and it is entirely possible that the applicant changed her mind about the relationship after she arrived in Australia.
However, the most significant difficulty with the applicant’s evidence is that it is in direct conflict with the statutory declaration provided by her in support of the partner visa.
The applicant’s evidence about this is unsatisfactory in a number of respects. She says she cannot read English and did not read the statutory declaration, yet she signed it. She also gave evidence that she was advised to lodge the application in these terms to bring Mr [A] to Australia. Given the criteria for a partner visa requires evidence of an ongoing genuine relationship for a particular period, this was likely to be the motive for the contents of the statutory declaration. However, this evidence does not reflect well on the applicant or those who advised her at the time. The applicant’s current migration agent was not involved in the previous applications and could not provide any evidence to corroborate the applicant’s current claims. His submissions were based on instructions and were therefore of limited value. The former applicant’s migration was not available to give evidence about the matter and, given the length of time that has elapsed, it is unlikely the Tribunal would be assisted by seeking to pursue this line of inquiry at this stage. Relevantly, the applicant’s evidence was to the effect that a friend had advised her about these matters. The submission made by her current representative was that the incorrect information provided in the support of the partner application was ‘a very ill-advised course of action and one which would not have been followed had [the applicant] received proper professional advice’. This is undoubtedly true. Providing incorrect information to the Department or to this Tribunal in respect of a visa application may warrant the refusal of an otherwise meritorious visa or a subsequent application for a visa under Public Interest Criteria 4020: refer Schedule 4 of the Regulations.

In this case, the delegate of the Minister did not accept the applicant’s claim for the spouse visa and was not satisfied that the applicant and Mr [A] were in a genuine relationship. The applicant originally sought a review of this decision but subsequently withdrew her application. Her evidence is that she and Mr [A] are not in a relationship. He is in another relationship and has another child.
We must be comfortably satisfied there has been non-compliance in the way described in the NOICC but conflict in the evidence raises difficulties for the Tribunal.
On the one hand, the applicant has provided evidence to the effect she and Mr [A] separated at the time of her father’s application for a refugee and humanitarian visa yet on the other she has signed a statutory declaration in direct conflict with this assertion. The applicant’s explanation about the change in circumstances is plausible and was consistent when tested at the hearing. On the other hand, her explanation for the statutory declaration does not reflect well on her character and cannot itself be independently verified. The applicant seeks to minimise her role in this by stating she cannot read English, did not read the statutory declaration and was unfamiliar with the law. However, the apparently undisputed claim in these proceedings is that the applicant provided incorrect information, or at least embellished her claims, in support of the partner visa to facilitate the grant of the visa.
The Tribunal is left with the applicant’s evidence at the hearing which, on balance, was unrehearsed, consistent and plausible, although at times confusing, principally because of language difficulties despite the use of an interpreter. It is notable that the delegate in the previous spouse application who reviewed all of the material did not accept there was a genuine ongoing relationship between the applicant and Mr [A] at the time of that application. The applicant did not pursue a review of this refusal and gave evidence that Mr [A] has moved onto another relationship. While there is no evidence to support this, nor is there evidence to the contrary. These matters are consistent with the applicant’s evidence and submissions before this Tribunal that she embarked on a plan to reunite with Mr [A] from 2011 but that circumstances have changed since the partner visa refusal.
We must be comfortably persuaded the applicant provided incorrect information in respect of the original application for a refugee and humanitarian visa. Given the paucity of corroborating evidence either way, we cannot reject the applicant’s evidence in these proceedings, which was generally credible. We are therefore not so satisfied. Accordingly, we are not satisfied there has been non-compliance in the way described in the NOICC and as such we are not satisfied the ground for cancellation is established.
This means that we do not need to consider the discretionary considerations, although we note the applicant has since been granted a protection visa and would be entitled to remain in Australia with her daughter regardless of the outcome of this review.
decision
The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Refugee and Humanitarian (Refugee) (Class XB) (Subclass 200) visa.
Jan Redfern
Deputy President
Dr Colin Huntly
Member

ATTACHMENT – Migration Act 1958 (extracts)
5Interpretation
(1)In this Act, unless the 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.
97Interpretation
In this Subdivision:
application form, in relation to a non‑citizen, means a form on which a non‑citizen applies for a visa, being a form that regulations made for the purposes of section 46 allow to be used for making the application.
passenger card has the meaning given by subsection 506(2) and, for the purposes of section 115, includes any document provided for by regulations under paragraph 504(1)(c).
Note:Bogus document is defined in subsection 5(1).
98Completion of visa application
A non‑citizen who does not fill in his or her application form or passenger card is taken to do so if he or she causes it to be filled in or if it is otherwise filled in on his or her behalf.
99Information is answer
Any information that a non‑citizen gives or provides, causes to be given or provided, or that is given or provided on his or her behalf, to the Minister, an officer, an authorised system, a person or the Tribunal, or the Immigration Assessment authority, reviewing a decision under this Act in relation to the non‑citizen’s application for a visa is taken for the purposes of section 100, paragraphs 101(b) and 102(b) and sections 104 and 105 to be an answer to a question in the non‑citizen’s application form, whether the information is given or provided orally or in writing and whether at an interview or otherwise.
100Incorrect answers
For the purposes of this Subdivision, an answer to a question is incorrect even though the person who gave or provided the answer, or caused the answer to be given or provided, did not know that it was incorrect.
107Notice of incorrect applications
(1)If the Minister considers that the holder of a visa who has been immigration cleared (whether or not because of that visa) did not comply with section 101, 102, 103, 104 or 105 or with subsection (2) in a response to a notice under this section, the Minister may give the holder a notice:
(a)     giving particulars of the possible non‑compliance; and
(b)     stating that, within a period stated in the notice as mentioned in subsection (1A), the holder may give the Minister a written response to the notice that:
(i)if the holder disputes that there was non‑compliance:
(A)shows that there was compliance; and
(B)in case the Minister decides under section 108 that, in spite of the statement under sub‑subparagraph (A), there was non‑compliance—shows cause why the visa should not be cancelled; or
(ii)if the holder accepts that there was non‑compliance:
(A)give reasons for the non‑compliance; and
(B)shows cause why the visa should not be cancelled; and
(c)      stating that the Minister will consider cancelling the visa:
(i)if the holder gives the Minister oral or written notice, within the period stated as mentioned in subsection (1A), that he or she will not give a written response—when that notice is given; or
(ii)if the holder gives the Minister a written response within that period—when the response is given; or
(iii)otherwise—at the end of that period; and
(d) setting out the effect of sections 108, 109, 111 and 112; and
(e) informing the holder that the holder’s obligations under section 104 or 105 are not affected by the notice under this section; and
(f)      requiring the holder:
(i)to tell the Minister the address at which the holder is living; and
(ii)if the holder changes that address before the Minister notifies the holder of the Minister’s decision on whether there was non‑compliance by the holder—to tell the Minister the changed address.
(1A)The period to be stated in the notice under subsection (1) must be:
(a)     in respect of the holder of a temporary visa—the period prescribed by the regulations or, if no period is prescribed, a reasonable period; or
(b)     otherwise—14 days.
(1B)Regulations prescribing a period for the purposes of paragraph (1A)(a) may prescribe different periods and state when a particular period is to apply, which, without limiting the generality of the power, may be to:
(a)     visas of a stated class; or
(b)     visa holders in stated circumstances; or
(c)      visa holders in a stated class of people (who may be visa holders in a particular place); or
(d)     visa holders in a stated class of people (who may be visa holders in a particular place) in stated circumstances.
(2)If the visa holder responds to the notice, he or she must do so without making any incorrect statement.
108Decision about non‑compliance
The Minister is to:
(a)consider any response given by a visa holder in the way required by paragraph 107(1)(b); and
(b)decide whether there was non‑compliance by the visa holder in the way described in the notice.
109Cancellation of visa if information incorrect
(1)The Minister, after:
(a) deciding under section 108 that there was non‑compliance by the holder of a visa; and
(b)     considering any response to the notice about the non‑compliance given in a way required by paragraph 107(1)(b); and
(c)      having regard to any prescribed circumstances;
may cancel the visa.
(2)If the Minister may cancel a visa under subsection (1), the Minister must do so if there exist circumstances declared by the regulations to be circumstances in which a visa must be cancelled.

[2019] AATA 816

12 April 2019

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