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 Minister in relation to decisions to cancel a visa under s.109 of the Act. It requires the notice to be in writing and specifies the content of that notice.
The Tribunal finds, however, that the Department’s notification letter incorrectly stated that the applicant had 28 calendar days to apply for merits review with the Tribunal. In the circumstances, the Tribunal finds that notification has not occurred because the function of notification for the purpose of s.347 has been substantially frustrated or negated, and as a consequence the Tribunal finds it has jurisdiction to hear the review application.[2]
[2] See Wang v MIMA (1997) 71 FCR 386 at [393]-[396], applied in Dranichnikov v MIMA [2000] FCA 63 (Kiefel J, 7 February 2000) at [29].
Tribunal hearing
The applicant appeared before the Tribunal on 18 July 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Somali and English languages. The applicant was represented in relation to the review by her registered migration agent.
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 EVIDENCE
Background
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
Section 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.
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, the power to cancel the visa does not arise. Extracts of the Act relevant to this case are attached to this decision.
Did the notice comply with the requirements in s.107?
The Tribunal is satisfied that the delegate had reached the necessary state of mind to engage s.107 and that the notice issued under s.107 complied with the statutory requirements.
Was there non-compliance as described in the s.107 notice?
The issue before the Tribunal is whether there was non-compliance in the way described in the s.107 notice, being the manner particularised in the notice, and if so, whether the visa should be cancelled. The relevant non-compliance identified and particularised in the s.107 notice was non-compliance with s.101(b) in the following respect:
The applicant was granted a Class XB Global Special Humanitarian Subclass 202 dependant visa on the basis that she was an adopted orphan relative of the main applicant [Ms A] (her cousin).
On 16 May 2008 [Ms A] lodged a From 842. In response to question 3 ‘Give details of all other people included in this application’ the applicant was included as:
Surname: [Applicant’s surname]
Given Name: [Applicant’s first name]
Sex: F
DOB: [date]
Place of Birth: [Town 1], Somalia
Citizenship: Somalia
Relationship: Adopted daughter
Marital Status: N
In response to question 10 ‘Are any of the children include in this application not the biological children of either the main applicant or spouse’ they ticked ‘Yes’ and provided the following details:
Given Name: [Applicant’s first name]
DOB: [date]
Relationship to main applicant: Niece
Whereabouts of biological parents (if deceased or unknown, please state): Both deceased.
Has the child been adopted (formally or by custom) by the applicant and/or spouse? [They ticked ‘No’].
In response to question 22 ‘For ALL the people included in this application list all the addresses where they have lived during the past 10 years’ – they indicated [the] Refugee Camp from [date] August 2007 and [City 1], Somalia from birth to [date in] August 2007.
On 16 August 2008 [Ms A] lodged Form 681. In response to question 11 ‘Details of dependent family members who would accompany the person you wish to propose’ the applicant was included as:
Family Name: [Surname]
Given name: [Applicant’s first name]
Sex: F
DOB: 1 Jan 1995
Place of birth town/city: [City 1]
Country: Somalia
Relationship to the applicant: daughter
The notice referred to the Form 842 lodged by [Ms B] on 6 December 2012, where in response to question 2 ‘Give details of the main applicant’ the applicant’s mother indicated
Current country of residence: [Refugee] Camp
Date you arrived in this country: [Jan] 2010
In relation to Form 842, question 23 ‘For each person included in this application list every address where they have lived during the last 10 years’ it was stated ‘[a] Refugee Camp from [Jan] 2010 and [Town 1], Somalia from [Jan] 2002 to [Jan] 2010’.
The notice stated that based on the information provided in Form 842 it was ‘evident’ that the applicant’s carer ([Ms A]) and her biological mother ([Ms B]) were both living in [Town 1], Somalia until [August] 2007. It was claimed that this demonstrates that at the time of the applicant’s application (16 May 2008) the applicant and [Ms A] were in contact with [Ms B] and therefore the applicant was not an orphan as claimed. The notice stated ‘it appears’ that at the time of the application the applicant’s mother was alive and the applicant knew about it and the applicant’s claims of being an orphan relative of [Ms A] are contrived.
The Tribunal has had regard to the notice and finds the application for the Subclass 202 (Global Special Humanitarian) visa (Form 842) was lodged on 16 May 2008. The form was lodged by [Ms A] and the applicant was listed as a dependant, secondary applicant. The Tribunal finds that the answer provided at question 10, namely that both the applicant’s parents are deceased, is incorrect. The Tribunal finds that the applicant biological mother was alive when the application was lodged.
For these reasons, the Tribunal finds that there was non-compliance with s.101(b) by the applicant in the way described in the s.107 notice.
Should the visa be cancelled?
As the Tribunal has decided that there was non-compliance in the way described in the notice given to the applicant under s.107 of the Act, it is necessary to consider whether the visa should be cancelled pursuant to s.109(1). Cancellation in this context is discretionary, as there are no mandatory cancellation circumstances prescribed under s.109(2).
In exercising this power, the Tribunal has had regard to the applicant’s evidence at the hearing, her response to the s.107 notice about the non-compliance, and the prescribed circumstances set out in r.2.41 of the Regulations detailed below. The Tribunal found the applicant to be a credible witness and has wholly accepted the following evidence about the circumstances in which the non-compliance occurred.
The correct information
As stated above the Tribunal finds that the answer provided in Form 842 at question 10, namely that both the applicant’s parents are deceased, is incorrect. The Tribunal finds that the applicant’s biological mother was alive when the application was lodged on 16 May 2008. As discussed with the applicant at the hearing, the Tribunal accepts that applicant did not know the information was incorrect at the time. The Tribunal also notes that the applicant was a minor who did not complete the form.
The content of the genuine document (if any)
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? No
How old was she when she was given to you? She was small
Like a baby or walking? Walking
What are the names of her mother and father? [Ms B] mother and [Father’s name]
When was the last time she saw them? Civil war
Are 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
The Tribunal finds it concerning that the s.107 notice does not detail the part of the interview where [Ms A] confirms that the applicant does not know if her parents are alive. This answer is clearly relevant and supports the applicant’s evidence that there was no intention by her or [Ms A] to provide incorrect information.
The Tribunal also questioned the applicant about how she was able to locate her mother after she arrived in Australia. The applicant said that after she arrived in Australia she maintained contact with people she met at the [Refugee] camp. The applicant heard that people at the camp had heard her mother was alive. To confirm this information the applicant approached the [charity] Service in about June 2012. She provided the [the charity] with a message and her photograph. In support of this evidence the applicant provided correspondence from the [charity organisation].
The applicant said that she was able to contact her mother through friends at the refugee camp before the [charity] was able to formally locate her and hand over her message. The correspondence from the [charity] confirms that the applicant approached the [Service] [in] June 2012 and the applicant advised the [charity] that she had re-established telephone contact with her mother and the case was closed in April 2014.
The notice also refers to the Form 842 lodged by the applicant’s mother ([Ms B]). [Ms B] declared at question 23 that she was residing in [Town 1], Somalia from [January] 2002 to [January] 2010. The notice states that the applicant has provided incorrect information because the applicant and her mother were living in [Town 1] until [August] 2007 and therefore they must have been in communication with one another. The applicant confirmed at the hearing that she had not seen her mother since she was [age] years old. Her mother has since told her that she was residing in villages in [District 1].
The applicant’s agent has provided information confirming that the population of [District 1] is more than [amount] people and the population of [the] town is [amount of] people. The Tribunal was also referred to country information which confirms that Somalia is identified as having the seventh largest internally displaced (IDP) population in the world which is estimated to be 1.1 million with a significant number of IDP settlements located in [District 1]. Country information confirms that [District 1] has been torn by civil war and tribal conflict since 1991 which has led to severe persecution of the Bantu community and Bantu women in particular. The Tribunal finds that the above factors amount to genuine obstacles which would have prevented the applicant, as a young Bantu girl, from being reunited with her mother.
To be clear, the Tribunal finds that there was no deliberate non-compliance by the applicant and the applicant did not intentionally provide incorrect information to facilitate the grant of the visa. The Tribunal finds that the applicant was a victim of the civil war in Somalia and was separated from her parents when she was [age] years old.
The present circumstances of the visa holder
The applicant has spent approximately nine years in Australia where she has established a new life. She is now in a relationship with an Australian citizen with whom she has [several] children, aged [different ages]. The applicant’s partner attended the hearing in support of her application. The applicant is the primary carer of the children as her partner is working full-time. The youngest child requires substantial extra care due to a medical condition. The Tribunal was provided with a medical report in support of this evidence.

If the applicant’s visa is cancelled then the consequence of the cancellation is a three year ban which would restrict the applicant’s ability to apply for other visas.
If the applicant’s visa is cancelled she would be deported to Somalia. The applicant has no remaining relatives in Somalia and left the country when she was about [age] years old.
She left Somalia as a young girl with no family or friends to support her. The Tribunal finds that if the visa is cancelled the applicant would be returning to Somalia as a vulnerable single woman of Bantu ethnicity and would face a real risk of persecution because of her ethnicity and gender.
The applicant’s children only have Australian citizenship and will not be able to travel and live with the applicant in Somalia. A DFAT country report[5] states that recent amendments to Somalia’s citizenship law to allow mothers to confer citizenship to their children (currently only fathers can do so) have been proposed but not yet approved. The Tribunal accepts that separation from her children would be inevitable if the applicant was deported to Somalia. The Tribunal finds that the prospect of being separated from her three children has placed immense emotional pressure on the applicant.
The subsequent behaviour of the visa holder concerning her obligations under Subdivision C of Division 3 of Part 2 of the Act
[5] DFAT Country Information Report – Somalia, 13 June 2017, para 3.21.
Nothing adverse is known about the applicant's subsequent behavior concerning her obligations under the above provisions.
Any other instances of non-compliance by the visa holder known to the Minister
There is no evidence before the Tribunal that the applicant has anything but a satisfactory record of compliance with the immigration laws of Australia. There is no evidence before the Tribunal of any other breaches of the law since the non-compliance.
The time that has elapsed since the non-compliance
As stated above, the Tribunal finds it significant that almost nine years have passed since the grant of the visa.
Any contribution made by the holder to the community
The Tribunal has been provided with evidence highlighting the contributions the applicant has made to the Australian community. In particular the Tribunal has regard to a reference letter from [a] [witness] at [a high school], regarding the applicant’s contribution to the ‘[Project]’ and how this was viewed as a powerful learning experience for [others].
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 Smolicz
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.