1702089 (Migration) - [2018] AATA 3618

1702089 (Migration) [2018] AATA 3618 (31 July 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1702089
MEMBER:Christopher Smolicz
DATE:31 July 2018
PLACE OF DECISION: Adelaide
DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 202 (Global Special Humanitarian) visa.
Statement made on 31 July 2018 at 8:55am

CATCHWORDS
Migration – Refugee Humanitarian (Class XB) visa – Subclass 202 (Global Special Humanitarian) – Incorrect answers – Error in Department’s letter – Notification by Department not occurred – Applicant’s mother not deceased – Applicant’s status as orphan relative – Awareness of incorrect information – Minor at time of application – Application completed by others – Victim of civil war – No family and friend support – Young children – Decision under review set aside
LEGISLATION
Migration Act 1958 (Cth), ss 101, 107, 109
Migration Regulations 1994 (Cth), r 2.41
CASES
Dranichnikov v MIMA [2000] FCA 63
Wang v MIMA (1997) 71 FCR 386
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
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration to cancel the applicant’s Subclass 202 (Global Special Humanitarian) visa under s.109(1) of the Migration Act 1958 (the Act).
The delegate found the applicant did not comply with s.101(b) of the Act and cancelled the visa on the basis that she had provided incorrect answers in her Offshore Humanitarian visa application lodged on 16 May 2008.
The applicant was advised of the decision to cancel her visa by correspondence dated 9 January 2017.
On 7 February 2017 applied to the Tribunal to review the delegate’s decision.
Jurisdiction
For the following reasons, the Tribunal has found that it has jurisdiction to review the decision.
Section 347(1)(b) requires an application for review to be given to the Tribunal within the prescribed period. The relevant periods are prescribed in r.4.10 of the Migration Regulations 1994 (the Regulations) and differ depending on the type of Part 5-reviewable decision and whether or not the person is in immigration detention.
The Tribunal finds that s.338(3) of the Act defines Part-5-reviewable decisions as decisions to cancel a visa held by a non-citizen who is in the migration zone at the time of cancellation, provided that paragraphs (a), (b), (c) and (d) do not apply.
The Tribunal finds that the time limit applicable to the current decision is seven working days after the day on which notification of the primary decision is given.[1] Thus, notification of the decision provides the reference point for the commencement of the prescribed period. There is no provision for an extension of time. Therefore the prescribed period within which the review application could be made ended on 18 January 2017.
[1] Regulation 4.10(1)(b).
Regulation 2.42 sets out the notification requirements imposed on the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2018] AATA 3618
Decision Date: 31 July 2018

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered a decision to cancel the Subclass 202 (Global Special Humanitarian) visa granted to the applicant. The applicant, who was a minor at the time of her original visa application, had arrived in Australia in 2009. The dispute arose when the Department of Immigration issued a notice of intention to cancel her visa, alleging that the initial application contained incorrect information regarding her mother's status and her own status as an orphan.

The Tribunal was required to determine whether the applicant's Subclass 202 visa was granted based on incorrect information or a bogus document, and if so, whether the visa should be cancelled. Specifically, the Tribunal had to assess the accuracy of the declarations made in the 2008 visa application concerning the applicant's deceased parents and her status as an adopted orphan, in light of information provided in a subsequent visa application lodged by her mother in 2012.

The Tribunal found that the applicant's mother was not deceased at the time the visa was granted. It accepted that the applicant was separated from her parents during the Somalian civil war at a young age and had no knowledge of their whereabouts, leading her to believe they were deceased. The Tribunal also accepted that the applicant was culturally adopted by Ms A, who was her aunt. Crucially, the Tribunal found that Ms A, who could not read or write, relied on a third party to complete the visa application form and that this individual misinterpreted Ms A's statement that the applicant's parents were missing as meaning they were deceased. Given the applicant's age and lack of involvement in the application process, the Tribunal concluded that there were strong grounds not to cancel the visa.

Consequently, the Tribunal set aside the decision under review and substituted a decision not to cancel the applicant's Subclass 202 visa.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside. CONSIDERATION OF CLAIMS AND EVIDENCEBackground The applicant was born in Somalia in [year]. She comes from the Bantu ethnic group. [In] May 2008 [Ms A] lodged an application for a Subclass 202 (Global Special Humanitarian) visa (Form 842).[3] [3] The Subclass 202 visa is applicable to offshore applicants. An applicant must lodge an Application for Offshore Humanitarian Visa (Form 842) and be included (proposed) in a Refugee and Special Humanitarian Proposal (Form 681) which must to be lodged by an Australian citizen or permanent resident. [Ms A] declared that the applicant was her adopted daughter and that the applicant’s parents were deceased. She declared that they were living in [a] Refugee Camp, [Town 1], [Country 1] since [August] 2007. Prior to this date she was living in [Town 1], Somalia. [Ms A] was sponsored (proposed) for the visa by her [mother]. [Ms A’s mother] is an Australian citizen who arrived in Australia as a refugee in 1998 from Somalia. On 3 August 2009 the Subclass 202 visas were granted. [In] September 2009 [Ms A] arrived in Australia with her husband, the applicant and [several] children of her own. On 6 December 2012 the applicant lodged a Form 681 Subclass 202 (Global Special Humanitarian) visa application sponsoring her mother [Ms B] to Australia. In support of the application the applicant provided a statutory declaration dated 7 May 2015. The applicant declared that she was separated from her mother [Ms B] when she was [age] years old. She has been unaware of her mother’s whereabouts for many years and was forced to live as an orphan from an early age, deprived of any immediate family members. At the end of the 2010 she heard from a friend that her mother might be alive and living in a camp in [Town 1]. She went to [a charity] to trace her mother. After six months she was told by the [charity] that they had found her mother in [Town 1] Refugee Camp. On 17 November 2016 the Department of Immigration issued the applicant with a Notice of Intention to Consider Cancellation (the notice) of her Refugee and Humanitarian (Class XB) Global Special Humanitarian (Subclass 202) visa. The notice stated that the Subclass 202 visa application (Form 842) lodged on 16 May 2008 contained incorrect answers regarding the applicant’s mother and the applicant’s status as an adopted orphan relative in light of the information provided in the subclass 202 visa application lodged by the applicant’s mother on 6 December 2012. On 7 December 2016 the applicant responded to the notice and provided submissions and evidence as to why the visa should not be cancelled. The Department had regard to the applicant’s submission and made a decision to cancel her Subclass 202 visa. Issue The issue in the present case is whether the ground for cancellation is made out, and if so, whether the visa should be cancelled.The law

Decision

Reasons for decision

In conclusion, having regard to all the relevant circumstances, as discussed above, the Tribunal concludes that there are strong grounds not to cancel the applicant’s visa. DECISION The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 202 (Global Special Humanitarian) visa.Christopher SmoliczMemberATTACHMENT – 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.97InterpretationIn 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 applicationA 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 answerAny 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 answersFor 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 correctA 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‑complianceThe 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.

Ratio Decidendi

Legal Principle Established

Not relevant.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 Tribunal finds that the applicant’s mother was not deceased at the time the visa was granted. The Tribunal finds that the applicant would not have been granted the visa if she was not an adopted orphan child. As stated above the Tribunal does, however, accept the applicant’s parents were missing and she was the adopted child of [Ms A] at this time. The circumstances in which the non-compliance occurred The Tribunal finds that the applicant was separated from her parents in the early 1990’s during the Somalian civil war. She was [age] about years old at the time. The applicant said that she has no memories of when she last saw her mother and father. After her parents went missing she lived with [Ms A] in a village near [Town 1] in Somalia. She did not know if her parents were dead or alive. She assumed they were killed like many other Bantu families in Somalia during the civil conflict. [Ms A] culturally adopted the applicant (her aunt’s daughter) at the time. In about August 2007 [Ms A] and the applicant relocated to the [Refugee] Camp in [Country 1]. [Ms A] was subsequently connected to her family in Australia through the [charity] Service. In 2008 [Name] ([Ms A] mother) proposed to sponsor [Ms A] to Australia and the applicant was included in the Subclass 202 application. [Ms A] and the applicant were living at the [Refugee] Camp at the time. [Ms A] cannot read or write and used her fingerprint in lieu of a signature on the form. She relied on the assistance of Somali man ([Mr C]) who spoke English in the refugee camp to complete the form. [Ms A] advised [Mr C] that the applicant’s parents were missing and she did not know where they were. [Mr C] unfortunately interpreted this information as meaning they were deceased as noted at question 10 of the Form 842. Having considered the applicant’s evidence, the Tribunal finds the applicant had no personal involvement in applying for the Subclass 202 visa in May 2008. She was [age] years old at the time. In support of this evidence, the Tribunal has had regard to the transcript of an interview with [Ms A] and the applicant conducted at the Australian High Commission in [Country 1] [in] October 2008.[4] The interview was conducted with the assistance of a Somali interpreter. [Ms A] explained to the interviewing officer that she received assistance from a person called [Mr A] when completing the visa application form. The Tribunal specifically notes that the interviewing officer referred [Ms A] to the application form and noted that the applicant was born in [year] and asked the following questions:[The applicant] do you know how old you are? NoHow old was she when she was given to you? She was small Like a baby or walking? WalkingWhat are the names of her mother and father? [Ms B] mother and [Father’s name]When was the last time she saw them? Civil warAre they alive? Don’t know[4] A typed copy of the interview is located at folios 51 to 55 of file [number removed].Are you related to either her mother or father? Yes mother is my aunt