1701829 (Migration)

[2019] AATA 857

1701829 (Migration) [2019] AATA 857 (12 April 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1701829

MEMBERS:Deputy President Jan Redfern (Presiding)

Dr Colin Huntly

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’

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

STATEMENT OF DECISION AND REASONS

INTRODUCTION

1. This is an application for review of a decision made by a delegate of the Minister for Immigration to cancel the applicant’s Refugee and Humanitarian (Refugee) (Class XB) (Subclass 200) visa under s.109(1) of the Migration Act 1958 (the Act).

2. On 23 January 2017, a delegate of the Minister for Immigration and Border Protection, as it was then known (the Department) cancelled the applicant’s visa on the basis that information provided by the applicant’s mother regarding her marital status was incorrect. The applicant and her mother 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 have been determined separately.

3. 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 Act.

   DECISION UNDER REVIEW

4. The applicant’s mother is a citizen of Ethiopia who had been living for many years in Sudan prior to her migration to Australia. She was granted a refugee and humanitarian visa on 2 May 2010 as a dependant member of a family unit. The application for that visa was lodged by the applicant’s grandfather. The applicant was born on [date]. She was included in the application after her birth and was also granted a refugee and humanitarian visa on 2 May 2010 as a dependant member of a family unit.

5. As part of the application process for the refugee and humanitarian visa, the applicant’s mother provided information to the effect that she had separated from the applicant’s father, Mr [A], and was therefore dependant on the applicant’s grandfather. 

6. Following the grant of the visa and her arrival in Australia, the applicant’s mother sought to amend her personal Departmental records under the Freedom of Information Act 1982 (the FOI Act). In particular, the applicant’s mother sought to amend her relationship status from ‘single’ to ‘married’.

7. The applicant’s mother 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 application, the applicant’s mother 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 visa application lodged by her father; she did not consider the dissolution of her marriage and separation as an end of the relationship with the applicant’s father and she wanted to remarry him as soon as possible.

8. A delegate wrote to the applicant and her mother on 10 August 2016 with a ‘Notification of Intention to Consider Cancellation’ (NOICC) on the grounds that the applicant’s mother had provided incorrect information concerning her relationship status. The delegate stated that the information provided by the applicant’s mother in her statutory declaration in support of the application of the applicant’s father’s indicated the applicant’s mother was in an ‘ongoing relationship’ at the time of the application and grant of the refugee and humanitarian visa.

9. The migration agent acting for the applicant and her mother provided a response to the notification on 12 January 2017. In summary, the response submitted that the information provided by the applicant’s mother as part of the refugee and humanitarian visa application was true and correct and the information in the statutory declaration was false, having been given on ‘ill advised’ advice from a friend in the community. It was also submitted that if the applicant’s visa was cancelled she and her mother would be forced to return to Ethiopia as she has no citizenship or right to permanently reside in any other country apart from Ethiopia. The applicant would suffer hardship if her visa was cancelled as she has no knowledge or recollection of Ethiopia and no social connections there. She had lived and spent all her formative years in Australia.

10. The delegate found that the applicant did not comply with s.101 of the Act on the basis that her mother had provided incorrect information regarding her marital status in both their visa applications. The delegate found that the ground for cancellation had therefore been established.

11. 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.

12. In reaching that decision, the delegate referred to the prescribed circumstances set out in r.2.41 of the Migration Regulations 1994 (the Regulations). Relevantly, the delegate noted that considerable time had elapsed since the non-compliance and the applicant would suffer hardship if her visa was cancelled. She had established social ties to the Australian community, has family members in Australia and is accustomed to the Australian way of life. However, the delegate also noted that the applicant’s mother had provided incorrect information about her relationship status and this would have impacted on the decision to grant her and the applicant the refugee and humanitarian visa.

13. In assessing these factors, the delegate concluded that the applicant’s visa should be cancelled.

    LEGAL FRAMEWORK AND ISSUES FOR DETERMINATION

14. The requirements for a refugee and humanitarian Subclass 200 visa are set out in Part 200 of Schedule 2 of the Regulations.

15. 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.

16. As such, the issue of whether the applicant’s mother 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 mother would meet the criteria to be part of a family unit for the purposes of the refugee and humanitarian visa.

17. 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) of the Act.

18. 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.

1.  21.     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’s mother had provided information in support of the visa that she was forced to marry the applicant’s father, he was planning to leave Sudan, she did not want to accompany him and she divorced the applicant’s father and returned to Khartoum to live with her the applicant’s grandfather. This information was said to be incorrect because in February 2011 the applicant’s mother had requested that her marital status be changed from single to married and in June 2014 she provided information in support of a partner visa that she and the applicant’s father had agreed to the dissolution of their marriage so she could be included in the applicant’s grandfather’s application for a refugee and humanitarian visa. According to the NOICC, these matters indicated that the applicant’s mother and father 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.

1. 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.

2. 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].

3. 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.

4. 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.

5. 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.

6. 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.

7. 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.

8. 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

9. The applicant’s mother appeared before the Tribunal on 22 November 2017 to give evidence and present arguments. The applicant and her mother were represented by a registered migration agent, who provided written submissions and documents in support of the application prior to and following the hearing.

10. 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 grandfather conducted on 9 March 2010 as part of the visa application process.

11. In addition, and at its request, the Tribunal was provided with copies of the documents which were referred to in the NOICC and the reasons for the decision to cancel the applicant’s refugee and humanitarian visa, which included the statutory declaration provided by the applicant’s mother in support of the application for a partner visa made by the applicant’s father in 2014.

12. 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 was 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 AS DESCRIBED IN THE S.107 NOTICE?

13. The issue before the Tribunal is whether there was non-compliance in the way described in the s.107 notice, being the manner particularised, and if so, whether the visa should be cancelled. The non-compliance identified and particularised in the s.107 notice was non-compliance with s.101(b) of the Act on the basis she had provided incorrect information regarding her marital and relationship status in her visa application.  

14. The Tribunal has considered this matter in the related review of the applicant’s mother in matter no. 1701593.

15. As noted in that case, to be satisfied that the ground for cancellation exists, we must be comfortably persuaded the applicant’s mother provided incorrect information in respect of the original application for a refugee and humanitarian visa. In the review of the application to cancel the applicant’s mother’s visa, we found that we were not so satisfied and, as such, we were not satisfied there had been non-compliance in the way described in the NOICC. In this case, we are also not comfortably satisfied that the ground for cancellation is established. Our reasoning is the same as that set out in matter no. 1701593.

16. In essence, on balance we accept the evidence of the applicant’s mother that she was in a relationship with the applicant’s father in Sudan, this relationship broke down, she went to live with her father in Khartoum and took the applicant with her, the applicant’s father consented to the applicant to leaving Sudan to immigrate to Australia with the family as part of the refugee and humanitarian visa, after arriving in Australia the applicant’s mother became lonely and decided she would like to reconcile with the applicant’s father and she provided a false declaration about the status of her relationship with the applicant’s father, which she resiled from in submissions to the delegate and during her evidence in the hearing. We also accept the evidence and submissions of the applicant’s mother that the information in the partner visa was provided on the advice of a friend in the community and that after the refusal the applicant’s father moved onto another relationship and has another child.

17. Given we are not satisfied the ground for cancellation exists on the evidence before us, we do not need to consider the discretionary considerations. However, we note the applicant has since been granted a protection visa and would be entitled to remain in Australia with her mother regardless of the outcome of this review.

    DECISION

1. 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.

   101Visa applications to be correct

   A non‑citizen must fill in or complete his or her application form in such a way that:

   (a)all questions on it are answered; and

   (b)no incorrect answers are given or provided.

   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.