1732631 (Refugee)

[2019] AATA 5845

1732631 (Refugee) [2019] AATA 5845 (13 May 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1732631

COUNTRY OF REFERENCE:                   Kenya

MEMBER:Antoinette Younes

DATE:13 May 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 866 (Protection) visa.

Statement made on 13 May 2019 at 1:42pm

CATCHWORDS
REFUGEE – cancellation – protection visa – Kenya – provided incorrect answers in visa applications – previously known to the Department under a different identity – facial imaging comparison – unsuccessful protection claim under previous identity – outstanding debts to the Australian government – re-entered Australia and sought to engage Australia’s protection obligations under a new identity – claimed events in protection visa application could not have occurred as applicant resided in Australia during relevant period – consideration of discretion – gravity of non-compliance – bogus documents – Australia’s non-refoulement obligations – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 101, 107, 109
Migration Regulations 1994 (Cth), r 2.41

CASES
Briginshaw v Briginshaw (1938) 60 CLR 336
McDonald v D-G of Social Security (1984) 1 FCR 354
MIAC v Khadgi (2010) 190 FCR 248
MIEA v Wu Shan Liang (1996) 185 CLR 259
Nagalingam v MILGEA (1992) 38 FCR 191
Sullivan v CASA (2014) 226 FCR 555
Swan Television & Radio Broadcasters Ltd v ABT (1985) 8 FCR 291
Zhao v MIMA [2000] FCA 1235

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration to cancel the applicant’s Subclass 866 (Protection) visa under s.109(1) of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa on the basis that the applicant did not comply with s.101 of the Act which requires a non-citizen to fill in his or her application form answering all questions correctly.  The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. This matter was before the Tribunal previously (differently constituted) and on 11 December 2017, it was remitted to the Tribunal by consent.

4. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

5. The applicant appeared before the Tribunal on 10 April 2019 to give evidence and present arguments. The Tribunal also received oral evidence from three witnesses.  The Tribunal hearing was conducted with the assistance of an interpreter in the Swahili and English languages.

6. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.

   Section 438 Certificate

7. Section 438(1)(a) provides that certain information is only disclosable to the Tribunal if the Minister has certified that the disclosure would be contrary to the public interest or for any other reason specified in the certificate. If there is such a certificate, the Tribunal must do all things necessary to ensure that the information and/or documents subject to the certificate are not disclosed to any other person but the Member to whom the matter is constituted for the purpose of conducting the review.

8. In the course of the hearing, the Tribunal discussed with the applicant that [the Departmental files] contain s.438(1)(a) certificates, dated 16 January 2015 and 21 January 2015 in relation to a number of documents, essentially on the grounds that the documents:

   ·contain personal information about third parties and their release would be unreasonable;

   ·relate to Departmental investigative processes and methodologies of identity fraud, including but not limited to facial image comparison, identity of agencies, limitations and profile matching;

   ·could reveal the identity and other details of informants and potentially be a danger to their safety.

9. The Tribunal further advised that [one of the Departmental files] also contains a s.438(1)(b) notification dated 16 January 2015 relating to information received from an informant.

10. The Tribunal indicated to the applicant that the Tribunal considered the certificates and notification to be valid and explained the reasons.  When invited to make submissions, the applicant did not raise any concerns.

11. The Tribunal put the gist of that information in the course of the hearing to the applicant in accordance with procedural fairness requirements.

12. The Departmental files contain information about third parties. The Tribunal considers the information to be indirect and irrelevant to the Tribunal’s assessment of the evidence.  The Tribunal has decided not to use that information in an adverse manner to the applicant.

    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 in the notice, 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 of the Act.

14. Section 101 of the Act provides that a non-citizen must fill in his or her application form in such a way that:

    (a)  all questions on it answered; and

    (b)  no incorrect answers are given.

15. Section 99 of the Act provides that:

    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.

    Section 107 Notice

16. On 2 October 2013, the Department sent to the applicant a s. 107 Notice of Intention to Consider Cancellation (Notice – NOITCC) identifying the following particulars of possible non-compliance:

    ·The applicant, [Alias 1, comprising Firstname1, Surname 1] born on [Date 1] is also known to the Department as [Alias 2, comprising Firstname 2, Surname 1 used as a middle name, Surname 2] born on [Date 2, differing to Date 1 only by one year].

    ·In December 2010, [Alias 1] made an application for a tourist visa at Nairobi, using the approved form 48R Application for general tourists to visit Australia for tourism or other recreational activities. Item 4 of the application form reads “Name (S) shown in your passport” and the answer provided was “[Alias 1]”. The question further asks “Other names you are, or have been, known by (including name and birth, previous married names, aliases)” and the answer was “N/A”. This was incorrect because [Alias 1] was also known to the Department as [Alias 2].

    ·In the tourist visa application, dot .9 of item 30 of the application form asks “Have you, or any other person included in this application, ever:… Had any outstanding debts to the Australian government or any public authority in Australia?”, the response was “No”. This is contrary to information before the Department that since 2005 she had a debt to the Australian government of $5000.

    ·The applicant made an application for a protection visa on 23 March 2011 in Sydney using the approved Form 866: Application for a Protection (Class XA) visa. Form 866 is divided into four parts namely, A, B, C, and D. Part C for each person wishing to submit their own claims for protection.  Item 1 of Part C asks “What is your full name?”, the applicant responded [Alias 1]. Item 4 of the same Form asks “What other names have you been known by? (Such as name before marriage, previous married name, alias)”, the applicant responded “N/A”. This is contrary to information before the Department that the applicant was also known as [Alias 2].

    ·In a statutory declaration dated 10 May 2011 which the applicant provided in support of the application for a protection visa, the applicant declared, amongst other things that:

    1.[In] December 2004, she married [Mr A] in a traditional Mungiki wedding.

    2.On 27 November 2007 they separated and shortly after the separation she and her children ([Child B] date of birth [Date 3] and [Child C] (date of birth [Date 4]) escaped.

    3.In 2008, she joined her mother [Ms D] and her late brother [Mr E] in a [temporary shelter].  She and her daughter were gang raped at the camp.

    4.In February 2009, she contacted [Mr A] and arranged to meet him and in March 2009 he arranged for them to return to [Village 1].  When they moved, he refused to enrol the children at school in fear of the Mungiki.

    5.For nearly 10 months she and her children were confined to the house six days a week, and on 30 November 2010 she escaped with her children and returned to see her mother at camp. 

    ·All the events claimed in the statutory declaration were presented to have occurred in Kenya between [December] 2004 and 30 November 2010. This is contrary to information available to the Department that [Alias 2] was in Australia between [November] 2001 and [August] 2009 and consequently the claimed events could not have occurred. Although it is conceivable that the applicant and [Child B] might have lived with [Mr A] after her return to Kenya in August 2009, the statutory declaration reads that the applicant, [Child B] and [Child C] were confined to the house for six days a week between March 2009 and January 2010. There are doubts whether [Child B] is her own child and if she is not then paragraph 71 of the declaration is incorrect and if [Child B] is her child, then paragraph 71 is also incorrect because [Child B] was attending school at a time in Australia when the applicant declared that she was confined in Kenya.

17. The applicant responded to the Notice and the response is discussed throughout the Decision. The delegate’s decision record sets out in detail the analysis of the evidence and the grounds for the conclusions that the applicant breached section 101 of the Act.

18. The delegate referred to an error in the Notice namely that [Alias 2] and [Alias 1] had declared that they had a son called [Child C] born in [year] which was incorrect as [Alias 2] had never declared having a son called [Child C] at all only [Ms F].  The Tribunal has considered this error, however the Tribunal considers the Notice to be valid setting out the reasons for the potential non-compliance and giving the applicant an opportunity to make submissions. The Tribunal does not consider the error to have been critical and it does not impact on the potential conclusion that [Alias 1] and [Alias 2] are the two names used by the same person, the applicant.

19. 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.

20. In the present matter, 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.

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Was there non-compliance as described in the s.107 Notice?

21. The Delegate’s decision record which the applicant provided to the Tribunal in support of the application for review provides a comprehensive summary and analysis of the relevant information contained in the Departmental files. 

22. The events that led to the visa cancellation are complex with substantial and at times, contradictory material. 

23. A child visa application (subclass 101) was lodged on 27 December 2012 for two Kenyan nationals, [Child B] (date of birth [Date 3]) and her brother [Child C] ([Date 4]). Those applicants were sponsored by their mother, [Alias 1] ([date] of birth [Date 1]) who travelled to Australia as the holder of a tourist [visa] granted in Nairobi on 15 December 2010. The applicants claimed that [Alias 1], the sponsor, is their mother and [Mr A] is the father. A letter of consent was provided by the father in support of the migration to Australia.  The applicants claimed to be residing with their maternal grandmother, [Ms D] in [Village 2], THIKA, a [short] drive from Nairobi city centre in the Central Province of Kenya and that [Ms D] had a postal address of [Postal Address 1].  Immigration checks showed a match against [Child B] with another record that had the same name and date of birth with the exception of the year of birth being [Year 1] and not [Year 2]. This person was linked to [Alias 2] (date of birth [Date 2]).

24. As noted earlier, [Alias 1] had applied for a tourist visa to holiday in Australia. In support of that application, she provided documents to show that she is a successful businesswoman in Kenya. She arrived in Australia [in] January 2011 and lodged an application for a protection visa on 23 March 2011 on the basis of her husband’s claimed involvement with the Mungiki, a gang-type group described as a cult.  [Alias 1] claimed that she worked as a domestic in the house of [Mr A] and his wife.  She claimed that he sexually abused her and she became pregnant on two occasions.  They later married in a traditional ceremony [in] December 2004.  [Mr A] was a member of the Mungiki and he oversaw the collection of money from public transport drivers which he kept after the marriage.  There were rumours that [Alias 1] was working against the Mungiki which ordered their separation.  In February 2008, she lived with her mother and two children in an Internally Displaced Person’s camp in Kenya during which time she and her daughter were both gang-raped.  She had a passport issued in [2010] and with help, she was able to make an application for the tourist visa and she obtained false documents to support her tourist visa. On 20 June 2011, the Department refused the protection visa application but the former Refugee Review Tribunal (RRT) remitted the matter and on 23 January 2012, she was granted a protection visa subclass 866.

25. [Alias 2] ([date] of birth [Date 2]) was granted a visitor [visa] in Dili and she arrived in Australia [in] November 2001. On 12 December 2001, she lodged an application for a protection visa which was refused and on 10 June 2004, the RRT affirmed the decision which was upheld on judicial review on 28 June 2005 with costs to be paid by [Alias 2]. [Alias 2] included offshore members of the family unit as well as [Child B] (date of birth [Date 5]) who was declared as [Alias 2]’s biological daughter.  [Child B] arrived in Australia [in] January 2004 with [Ms F].  On 29 April 2008, [Alias 2] made a request for Ministerial Intervention and on 28 January 2009, she was interviewed by a Departmental officer. On 27 June 2009, the Minister personally decided not to intervene and [Alias 2] left Australia [in] August 2009 with [Child B].  Throughout her dealings with the Department between December 2001 and June 2009, [Alias 2] maintained that her name is [Alias 2], born on [Date 2].Although [Alias 2] declared that she had siblings, she never declared having a twin, or half a sister called [Alias 1]. 

26. There is information that another person, [Ms F] had also claimed that [Child B] is her daughter.  A [birth certificate] provided (folio 270 of [Departmental file]) shows [Ms F] as [Child B]’s mother.  During an interview on 28 January 2009, [Ms F] stated that [Child B] is her biological daughter.  At the same interview, [Alias 2] stated that [Child B] is [Ms F]’s daughter.  In March 2009, [Alias 2] again stated that she acts as a guardian in part due to [Ms F]’s health.  In October 2009, during a telephone conversation, [Alias 2] stated that [Child B] is her niece.  Award certificates from Australia show that [Child B] was known by [Alias 2’s family name, Surname 2] .  Although the delegate could not make a positive finding in relation to [Child B]’s biological mother, on 21 December 2015 and in relation to the review of the child visa refusal application (differently constituted [Matter]), DNA testing revealed that the Relative Chance of Maternity between [Alias 1] and [Child B], is 99.998%.  The delegate did not have that information at the time of the cancellation decision on 7 January 2015.  The decision in [the aforementioned Matter] was made [in] February 2016. The Tribunal gives significant weight to the DNA test findings and on that basis the Tribunal finds that [Child B] is [Alias 1]’s daughter. There remains however to be an issue about the information that [Alias 2] at the relevant times had stated that [Child B] is [Ms F]’s daughter indicating a capacity to mislead.

27. In the course of the hearing, the applicant stated that she had never been known by any other name, or that she was ever known as [Alias 2].

    Incorrect information in the tourist visa application

28. The Tribunal discussed with the applicant the documentation provided in support of the tourist visa application, as well as, the claim that she was a successful businesswoman. The applicant agreed that the claim that she was a successful businesswoman is not correct. She stated that she was not a successful businesswoman and that the claim was made in order to assist her to obtain the tourist visa to Australia. She gave evidence that she was assisted by a person named [Ms G] who had helped others.

29. The Tribunal found the applicant’s evidence in relation to this issue to be evasive and lacking in clear responses which prompted the Tribunal to ask the question on a number of occasions. In essence, the applicant accepted that incorrect information was provided in the tourist visa application but claimed that this was all organised by [Ms G]. She stated that she feared for her life but confirmed that she had signed the relevant form. The Tribunal pointed out to the applicant that the legal obligation is on the visa applicant to ensure the accuracy of all information provided in visa applications.

30. The Tribunal is concerned at the fact that incorrect information was provided in the tourist visa application raising doubts about other information provided by the applicant, as well as her general credibility.

    Facial Image Comparison

31. The Department has an image of [Alias 2] born on [Date 2]. The Tribunal discussed with the applicant the Facial Image Comparison conducted (Report 16/8/13) relating to [Alias 1] and [Alias 2].  The Tribunal referred to the delegate’s decision record, particularly at page 8 where there are two photographs of [Alias 1] and [Alias 2]. The Tribunal indicated that the Facial Image Comparison examination concluded that the two images represented the same person. The Tribunal indicated that although the Tribunal is not personally an expert in the area of facial image comparison, it would appear that the two images are of the same person. The applicant denied that the two photographs are of the same person. In submissions, it was argued that the opinion of the Facial Image Comparison Specialist that the photographs of [Alias 1] and [Alias 2] are images of the same person is offered but there is no explanation as to how the specialist opinion was derived or the scientific foundation for the conclusions. It was contended that there is no empirical evidence (an article relating to identification of evidence was cited and attached) supporting the validity or reliability of this form of evidence.  It was submitted that the reliability of identification evidence is questionable, that if [Alias 1] and [Alias 2] are of Kenyan origin, or of similar age in both photographs, this would not be conclusive evidence that the two women are one and the same and that the two photographs are different including the shape of the women’s faces.

1. The Tribunal has noted those submissions.  The Tribunal refers to the following comments of the delegate:

   …the Facial Identification Scientific Working Group (FISWG) of which the department is a member was formed in late 2009 in part to address concerns like those raised in the article, Law’s Looking Glass[1]. The group’s main role is to develop consensus standards, guidelines, and best practices for practitioners making image-based comparisons of human features, primarily the face, and to also address criticism of the field. Its members are specialists working in the field of facial image comparison and include scientists, practitioners, and managers from federal, state, local, and international agencies with criminal justice, intelligence, or homeland security responsibilities. Representatives from the academic and research communities are also included. The working group’s current chair is the United States Federal Bureau of Investigation.

   The department adopts a forensic approach to its facial image comparison work and documents the procedures and processes used. When comparing facial images the specialist uses a morphological comparison process which is the main method of comparison recommended by the FISWG. This technique follows a physical comparative analysis process similar to that used by other forensic feels including fingerprint and document examination in which the specialist compares both similarities and dissimilarities for a number of characteristics of the facial features. For example, when a comparison of the year is done, the specialist looks at different areas including the helix, anti-helix, tragus, lobe, attachment, angle and alignment. Overall face shape is only one feature examined.

   Published in 2009, Law’s Looking Glass is concerned with image comparison evidence as given in a criminal court; who is an expert, who is qualified to give evidence in a court, the lack of standardised and validated methodology, the lack of the body or formal qualifications for those who conduct these comparisons, image quality, lens distortion, how witnesses to events are presented with identity evidence, the length of time a witness might have observed a person, eyewitness identification in police line ups, a tendency to focus only on similarities between images and not balance them against any differences, how extraneous information might lead to bias, and errors by juries placing too much weight on expert opinion. It did not wholly dismiss the worth of facial image comparison and was particularly concerned with reliance on CCTV images …

   The specialist was not provided with any information other than names. No other similarities or case background were given. I am satisfied that there was no extraneous information given to the specialist that might have conceivably led to bias.

   A majority of the techniques referred to in the article Law’s Looking Glass from 2009 are not those recommended by FISWG nor are they currently used by the Department. [2]

   [1] Referred to in submissions

   [2] Delegate's decision record, pages 24 and 25.

2. The concept of onus and standard of proof are not generally applicable in the context of administrative decision making[3]. The Tribunal refers to judicial guidance in relation to the cancellation of a visa and in particular the state of satisfaction required.  The principles in the decision of Zhao v MIMA[4] are applicable to a cancellation pursuant to s.109. Relevantly, the Court held:

   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.[5]

   [3] MIEA v Wu Shan Liang (1996) 185 CLR 259 at 282-283; Nagalingam v MILGEA (1992) 38 FCR 191 at 200, McDonald v D-G of Social Security (1984) 1 FCR 354 at 357; and Swan Television & Radio Broadcasters Ltd v ABT (1985) 8 FCR 291 at 29.

   [4] [2000] FCA 1235 (French, Hill and Carr JJ, 1 September 2000).

   [5] Ibid, at [25] and [32].

3. The Tribunal considers the cancellation of a protection visa to be serious and significant, requiring a state or level of satisfaction reached subsequent to the proper consideration and critical evaluation of probative material. In Sullivan v CASA[6], the Full Federal Court held that when making findings of fact which have ‘serious’ or ‘grave’ consequences, the Tribunal “would express greater caution in evaluating the factual foundation for the decision to be reached”[7].

   [6] Sullivan v CASA (2014) 226 FCR 555, per Flick and Perry JJ, at [120].

   [7] At [120].

4. In that decision, the Court referred to Briginshaw v Briginshaw[8], where his Honour Dixon held[9] ‘… reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved.  The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters “reasonable satisfaction” should not be produced by inexact proofs, indefinite testimony, or indirect inferences…”

   [8] Briginshaw v Briginshaw (1938) 60 CLR 336, where Dixon J held at 362.

   [9] At [362].

5. The Tribunal recognises the seriousness of the consequences associated with a finding of what essentially amounts to identity fraud. The state of satisfaction required in the jurisdiction is not beyond a reasonable doubt or the balance of probability.  The applicant has consistently denied that [Alias 1] and [Alias 2] is the same person. When the Tribunal showed the two copies of photographs to the applicant in the course of the hearing, the applicant continued to deny that the photographs are of the same person.

6. The Tribunal is of the view that the opinions of the Facial Image Comparison Specialist are probative and preferred over the applicant’s continued contentions that the two photographs are not of the same individual. The Tribunal appreciates that facial identification techniques could have limitations, however on the evidence before it, the Tribunal is satisfied that the conclusions of the Facial Image Comparison Specialist are highly persuasive evidence that the photograph of [Alias 1], born [Date 1] represents the same person as, [Alias 2] born [Date 2]. The Tribunal gives significant weight to the conclusions of the Facial Image Comparison Specialist.  This is supportive evidence that [Alias 1] had assumed a new identity in order to re-enter Australia after being removed in 2009. [Alias 1] and [Alias 2] share the same date of birth except for the year. Movement records indicate that [Alias 1] and [Alias 2] were not in Australia at the same time. When [Alias 2] departed Australia [in] August 2009, [Alias 1] entered 15 months later, [in] January 2011. [Alias 1]’s Kenyan passport was issued by the local authorities [in] 2010, a year after [Alias 2] had been deported from Australia. The birth certificates of [Alias 1]’s children, [Child B] and [Child C] were registered by the Kenyan authorities in 2010 during the time when [Alias 2] and [Alias 1] were in Kenya. The date of the documents shows that [Alias 1] did not register the births of [Child B] and [Child C] with the Kenyan authorities until a few months before she entered Australia on the visitor visa. However the children never applied for the visas or passports during this time, the children did not have passports issued until 2013.  All asylum claims made by [Alias 1] relate to her claimed period of residence in Kenya, however, investigations identified that all claims relate to a period of time in which [Alias 1] was actually in Australia under the identity of [Alias 2]. This raises fundamental concerns about the genuineness of the protection claims made by [Alias 1].

7. The Tribunal considers the conclusions of the Facial Image Comparison Specialist to be sufficient to determine that [Alias 2] is the same person as [Alias 1], the Tribunal will nevertheless consider for the sake of completion other aspects which support those conclusions.

8. There is evidence before the Tribunal and as referred to in the delegate’s decision record[10], that on 12 October 2009 (after she had left Australia), during a telephone call between a Departmental officer and [Alias 2], [Alias 2] advised that she had returned to Kenya with [Child B] in August 2009. [Alias 2] also stated that [Child B] was enrolled in [a named school], confirming that at that time both were in Kenya. This indicates that [Alias 2] had returned to Kenya with [Child B] prior to the telephone call.

   [10] At page 10 of the decision record.

   Passports and shared personal number

9. Page 28 of the delegate’s decision record shows two copies of documents, being [Alias 1]’s passport which was issued [in] 2010 showing the personal number of [Six Digit Number] and [Alias 2]’s passport which was issued [in] 2001 showing a personal number of [eight zeros followed by Six Digit Number]. The delegate noted[11] that a Departmental officer in Nairobi had informed the Department that personal number appearing on a passport is not the same as the person’s national identity card number. The personal number should be the same for members of the same family, and in particular parents and children, however this system is not applied consistently and its use depends on whether reference is made to an existing personal number for the family group at the time of the passport application. The last six digits of both passports are exactly the same suggesting that [Alias 1] and [Alias 2] share the same personal number indicating they are either the same person or are closely related.

   [11] At page 27 of the decision record.

10. The applicant has denied any knowledge of [Alias 2]. In the course of the hearing, the applicant stated when she applied for her passport, she was asked about her mother’s ID card because she herself did not have one. She stated that she paid someone to obtain a Kenyan ID card. She stated she needed a passport and paid money to obtain one suggesting that information in the passport is incorrect. The applicant stated that obtaining a passport involved a long process and as she needed the passport, she paid money. This suggests to the Tribunal that the applicant is capable of obtaining documents in a manner outside the ordinary process.

11. The Tribunal referred to the passports of both [Alias 1] and [Alias 2] recording the height of the holder as being [specified height] tall and the applicant disagreed that that is her height. She stated that she had measured her height and it is not [specified height].

12. Although recording the exact height in two passports is not rare or unusual as there are many people who would be of the same height, having the same height is nevertheless another physical similarity between [Alias 1] and [Alias 2] providing further evidence that they are the same person. The Tribunal is satisfied that the shared personal number as well as other similarities are highly persuasive evidence that the applicant is the same person as [Alias 2].

    [ID card issued by the IDP camp]

13. In her statutory declaration of 5 March 2014, the applicant stated that on legal advice, she contacted her mother in Kenya and asked for documents to support her claim that she was living in Kenya during the relevant period.  She noted that although most of their belongings and records had been lost during their displacement in 2008, her mother was able to find an ID card (Annexure A) showing that in 2008 she was living in an [internal displaced people’s camp].

14. In the statutory declaration, the applicant explained that internally displaced persons (IDP) are people or groups of individuals who have been forced to leave their homes or places to avoid harm. She noted that after the Mungiki ordered her separation from her husband in November 2007, she became an IDP along with her mother and two children. In February 2008, they moved to a [temporary shelter]. This camp was administered by [a named organisation] and [in] 2008, they issued her with the ID card.  The displacement of the [organisation] means that she has no way of contacting anyone in a position of authority to authenticate the ID.

15. The Tribunal discussed the ID card[12] attached to her statutory declaration in the course of the hearing. The applicant gave evidence that she went to the camp twice. The Tribunal observes that her evidence in this regard was unclear. She stated that she went to the camp on the first occasion in 1992/1993 and she became homeless in about 1995 and later returned to the camp. The applicant referred to her husband being a member and leader of the Munjiki gang.

    [12] A copy of the ID card is reproduced in the delegate’s decision record at page 43.

16. The ID card is dated [in] 2008. It is noted in the delegate’s decision record that the applicant had previously told the Department that she moved to the camp with her mother and children in February 2008. The ID card shows [Alias 1]’s marital status as “widowed” when in fact she had claimed that she was married and running away from her husband.  The card shows [Alias 1]’s age to be [age] years when at the time she would have been [one year younger]. The applicant has provided an explanation namely that although she was [age] years old when this card was issued, it was common practice in Kenya to calculate a person’s age by simply subtracting the year of birth from the current year with no reference to the month of birth. Consequently her age is shown as being [age] years which is the result of subtracting [Year 3] from [Year 4].  In oral evidence, the applicant gave another explanation, that information on the card was completed by people with limited education.

17. The Tribunal considers those explanations to be plausible.  However, what this means is that the information on the card is not reliable evidence that the applicant was in the camp as she had claimed and not in Australia at the relevant times.  The Tribunal also gives weight to [Dr H] who provided a report in support of the applicant that the authenticity of the document cannot be verified.  The representative’s submissions that if the applicant had wanted to provide a forged document to support her claims, presumably she would have provided a document containing correct details in order to minimise scrutiny, are not persuasive. 

18. In those circumstances, the Tribunal is not satisfied that the ID card is genuine or that it contains correct information, or that it is supportive evidence of the applicant’s contention that she was in Kenya and not in Australia prior to January 2011 when she arrived on the tourist visa.

    [Medical Clinic] Outpatients Cards

19. The applicant claimed in her statutory declaration that from 2000 to early 2008, she lived with the father of her two children in [Village 1], close to Nairobi. She further claimed that from February 2005 until just before she moved to the IDP camp, she and her children attended [a named] Medical Clinic in Kikuyu on various occasions as outpatients. She noted that it was the practice of the clinic to create a new outpatient card for each patient when they attended the clinic for the first time and that the card was retained by the patient and a new entry was manually recorded each time a visit to the doctor occurred. She indicated that she first attended the clinic [in] February 2005 and made three further visits with the last [in] June 2007. Her daughter [Child B] first attended the clinic [in] March 2005 and attended a further five times with the last attendance [in] September 2007. When she came to Australia in January 2011, she left those cards with her mother (Annexure B). 

20. The applicant noted that on 15 January 2014, she authorised [a law firm] to make contact with the [medical clinic] in order to authenticate the three outpatients’ cards (reproduced at page 50 of the delegate’s decision record). On 21 January 2014, she received copies of two letters that the [law firm] had sent to the [medical clinic]. One was addressed to the post office box shown on the patient cards and the other was sent to the address listed on [a] list of approved medical clinics (Annexures M and N).She stated that no response has been received. She noted that towards the end of January, she spoke to her mother on the phone and asked her to visit the clinic to get a reply to the letters. Her mother was told that the doctor who could assist was not there and that they could not assist. On a second occasion, her mother was made to wait for over three hours and was told to come back but given her age, her mother could not return to the clinic. In submissions, the representative noted that the cards show the applicant’s and her children’s ages, as being [age], [age] and [age] years when they should be [one year younger in each case] at the time the cards were created which meant that if the cards were forged, then presumably the correct age would have been recorded. The Tribunal is not persuaded by those submissions; the Tribunal is of the view that the acknowledgement that the outpatient cards do not accurately record the ages suggests that they are unreliable evidence. The Tribunal has decided to give those cards limited weight in the circumstances.

    Photographs

21. The applicant stated in her statutory declaration that during the period in question, it was not common in Kenya for poorer families to own a digital camera and as a result photographs were taken less frequently using traditional cameras. She noted that although many of the photographs that were taken of her during that period have been lost due to the displacement, her mother managed to find a few that show her and/or her children in Kenya during the period from November 2001 to August 2009 (Annexures C, D, and E).  The applicant claimed that Annexure C is a photograph of her participating in a pro Mungiki march in early 2007, Annexure D is her attending a funeral in 2006 and Annexure E is her photograph with her children [Child B] and [Child C].

22. The Tribunal observes that Annexures C and D are of poor quality and the Tribunal does not accept that they show the applicant; they show persons which cannot be identified as being the applicant.  The applicant has claimed that Annexure E was taken in early 2009. This means that [Child C] was about [age] years old and [Child B] was about [age] years of age. [Child C] has never been to Australia so it is reasonable to conclude that the photograph was not taken in Australia but that does not mean that the photograph was taken in Kenya.  The Tribunal has therefore decided to give the photographs limited weight.

    [Child C with Surname 3] and [Child C with Surname 4]- Facial comparison examination

23. In December 2003, [Ms F] lodged a tourist visa application to visit Australia for a holiday with her claimed daughter, [Child B] (date of birth [Date 5]). [Ms F] declared [Child C with Surname 3] (date of birth [Date 6]) as a child. [Child C]’ birth certificate was provided in support of the application. A copy of this certificate is shown at page 30 of the delegate’s decision record.  The Kenyan Ministry of State for Immigration and Registration Persons provided a letter to the Australian authorities confirming that the birth certificate is not a genuine document.

24. [Alias 1]’s claimed son, [Child C with Surname 4] was issued with a passport that shows his personal number. A copy of that passport is located at page 30 of the delegate’s decision record. Although the document is not entirely clear, it is evident that the personal number on the passport starts with [the first 4 digits of Six Digit Number], providing evidence that the applicant and [Child C] are related.

1. The Department has an image of [Child C with Surname 3] born on [Date 6] which was provided in support of [Ms F]’s tourist visa application.  The Department also has a photo of [Child C with Surname 4] born on [Date 4] which was provided in the application for a child visa in December 2012. The decision record in relation to the child visa application and as referred to in the delegate’s decision record at page 31 reads the following:

   The photograph of [Child C with Surname 3]… was compared to a photographic provided by the applicant for this application. Both photos were examined by a document examiner within the Australian High Commission, Nairobi who is highly qualified in imposter detection and photograph comparison and analysis. The document examiner noted the unusual shape of the top of the head is consistent in each photograph. The integrity officer further noted the set of the eyes in the decision of the eyes in relation to the ears is consistent in each photograph. Moreover, the shape, width, length and nostril size of the nose is the same in each photograph. The document examiner concluded that the two photographs are of the same person.

2. In response to the above information, the applicant referred to identity theft in Kenya and stated that she does not know how this happened and she did not agree that the two look the same. The Tribunal is not an expert in facial imaging but the Tribunal is of the view that even a layperson would be able to recognise that the two photographs are very similar and suggestive of the same person. The Tribunal gives significant weight to the conclusions of the document examiner that the two photographs represent the same person. On the evidence, the Tribunal concludes that [Child C with Surname 3] born on [Date 6] and [Child C with Surname 4] born on [Date 4], is the same person. The Tribunal is of the view that this raises significant doubts about the applicant’s contentions that she does not know [Ms F].  It raises further credibility concerns and doubts about documents provided by the applicant.

   Evidence of applicant’s name recorded as [Alias 3, comprising Firstname 1, Firstname 2 used as a middle name, Surname 1]

3. The Kenyan Ministry of State for Immigration and Registration of Persons provided to the Department a Certificate of Birth for [Child B] as shown on page 32 of the delegate’s decision record.

4. In the course of the hearing the applicant stated that she had never seen that birth certificate and that she was surprised.  This certificate shows that the mother’s name is [Alias 3].

5. [Alias 2] provided a copy of her birth certificate showing her name as [Alias 4, comprising Firstname 2, Surname 1], also shown on page 32 of the delegate’s decision record. Both certificates show “[Firstname 2, Surname 1]” and the only difference in the names is “[Firstname 1]”.

6. In submissions, the representative referred to the applicant’s explanation concerning naming practices of Kenyan parents and the common use of the name [Surname 1]. The representative referred to statistical information about births in Kenya and argued that the fact that babies share names with [Firstname 1] is nothing more than a coincidence and is not a statistically reliable way of establishing a connection between the two women.

7. The Tribunal accepts the plausibility that babies born on the same day could have similar names, however when this similarity is considered with other evidence before the Tribunal, it becomes significant suggesting that the two births certificates refer to the same person, namely [Alias 4] and [Alias 3]. Moreover and as a result of DNA testing, the Tribunal is satisfied that [Child B] is the applicant’s daughter and consequently this provides credible evidence that [Alias 4] and [Alias 3] is the same person. The Tribunal has therefore decided to give significant weight to those two births certificates.

   [Child B]

8. The Tribunal discussed with the applicant the information contained in the delegate’s decision record relating to the [social media] accounts of her daughter [Child B] born in [Year 2] also known as [Alias 2]’s niece born in [Year 1]. The Tribunal observes that on the [Social Media 1] account on [a date in] 2014, [Child B] wrote that her birthday was on the coming Saturday[13] which would have been [date] matching the day and month of the applicant’s daughter [Child B]. The person on [Social Media 1] has another name, [Alias 5] who is also on [Social Media 2]. It is noteworthy that [Alias 5] commented on [Social Media 2] “[Firstname 1] mummy thank u” providing further evidence that [Alias 1] is her mother and not [Alias 2].

   [13] As noted on page 33 of the delegate's decision record.

9. On 14 December 2014, the delegate checked the [Social Media 2] account again and found that the person with the profile name of that [Alias 5] had changed her name to [Child B] and that one of her friends commented that she was “finally not incognito on [Social Media 2]”[14]. This suggests that [Child B] born in [Year 2] the applicant’s daughter is the same person as [Alias 2]’s niece born in [Year 1].

   [14] [Social media accounts] messages as shown in the delegate's decision record at pages 34 and 35.

10. The applicant claimed that she does not know [Ms I].  This is contradicted by evidence that a person named [Alias 6] was on [Social Media 2], accessed by the delegate in November 2014[15]. Images of [Alias 6] from [Social Media 2] and [Ms I] taken from an online news report, as shown on page 36 of the delegate’s decision record show an obvious similarity between the two. [Ms I]’s passport shows her full name as [Ms I with Alias 6's surname included as a  middle name] but there is no record of a person in Australia with the full name of [Ms I]. [Alias 6] and [Alias 5] are [connected] on [Social Media 2], indicating that they know each other and that the applicant knows [Ms I]. The applicant stated that her daughter has a lot of [connections] on [Social Media 2]. 

    [15] As noted on page 35 at the delegate's decision record.

11. [Child B] has provided statements that, amongst other things, she is on [Social Media 2] and she is connected to over 2000 [people] but she does not know three quarters of those [people]. She has not met them in person. It is a teenager’s way of trying to be recognised by other students. She does not know [Mr J] but he is one of [the people] who comments on her posts and photographs. When [Mr J in] December 2014 “[My] daughter finally not incognito on [Social Media 2]…”, she changed her profile. When she searched [Mr J]’s profile, she realised that he is friends with [Alias 6] and [Mr K] which meant that she had accepted some of [Mr J]’s mutual friends. She does not know [Alias 6] in person. The Tribunal is not persuaded or convinced by those explanations.  The Tribunal is satisfied that the applicant knows and knew [Ms I] at the time in question.

12. The applicant’s denial is further contradicted by information from [Travel Company 1] as outlined below.

    [Travel Company 1]

13. The delegate’s decision record refers[16] to information before the Department that [Travel Company 1] conducts [tours] and that in support of the applicant’s application for a tourist visa in 2010, evidence was provided indicating that the organisation had direct contact with the applicant’s email address in relation to her itinerary.

    [16] At page 33.

14. The Department obtained confirmation that [Ms I], the half-sister of [Alias 2] was employed by the [Travel Company 1]. [Ms I] informed the Department that she was in a relationship with a person employed by the company suggesting that the applicant’s holiday activities in Australia were arranged by the same company that employed [Ms I]’s partner. This suggests that the applicant knew [Ms I] contrary to her assertions.

15. The applicant gave evidence that her visit to Australia was arranged by a person by the name of [Ms G] and the applicant did not know what information [Ms G] provided. She stated that she signed the documents but did not know the information provided or the nature of the documents. She reiterated that she does not have such a relationship, referring to [Ms I].  The Tribunal is not persuaded; the Tribunal is satisfied that the applicant knows [Ms I] and her denial raises doubts about her credibility.

    [Postal Address 1]

16. There is evidence that [Alias 2] and the applicant used [the same postal address in] Kenya.  [Child B]’s child visa application also shows that she uses that post box as well.

17. In the course of the hearing, the applicant stated that her mother uses the same post office box as well. She explained to the Tribunal that in most villages in Kenya, a large number of people use the same PO Box.

18. The applicant has denied knowing [Alias 2] and in submissions, it was noted that the same people use the same PO Box. The applicant provided computer screen dumps for [Company 2] and [Company 3] showing that both companies use that post box. As noted in the delegate’s decision record[17], both websites for the two entities are owned by [Mr J] who is also on [Social Media 2] with [Alias 5] ([Child B]), [Child C], and [Ms F], suggesting a connection.

    [17] At page 38.

19. The Tribunal is not persuaded by the applicant’s explanations in submissions. The Tribunal has decided to give weight to the fact that the same PO Box has been used by both [Alias 2] and the applicant, providing further evidence that [Alias 2] and [Alias 1] is the same person.

    Birth certificate of [Child C] born on [Date 4]

20. The Tribunal discussed with the applicant the information contained in the delegate’s decision record[18] in relation to the birth certificate of [Child C] born on [Date 4]. The applicant provided the certificate in her application for tourist visa in 2010 and it was also provided in the child visa application of 2012.

    [18] At page 41.

21. As mentioned in the delegate’s decision record at page 41, the Ministry of State for Immigration and Registration of Persons in Kenya provided the Department with a letter about the certificate stating that according to their records, the registration (entry number) belongs to [a named person] and not [Child C] which means that the document is not genuine given that the entry number refers to another person other than [Child C].

22. The applicant stated that it was odd that the same document had been previously accepted by the Department. In any event, she stated that she was not sure if that document was genuine. In her earlier explanation[19], the applicant stated that she got the certificate in early 2010 when she went to hospital where [Child C] was born. In her statutory declaration of 5 March 2014, the applicant stated that her daughter [Child B] was born on [Date 3] and her son [Child C] was born on [Date 4]. She stated that in early 2010, things were not going well between her and [Mr A] and she realised that she might need to have the birth certificates for the children in case they are needed in the future. In order to apply for the birth certificates, she went to the hospital where they were born and she was referred to the Births and Deaths Registrar in Nairobi. The hospital confirmed the dates of the children’s birth directly with the Registrar and the births certificates were subsequently issued (Annexures J and K).

    [19] At page 42 of the delegate's decision record.

23. [Dr H] confirmed the process and that it was consistent with the applicant’s version. [Child B] provided statements amongst other things, referring to [Child C] as her brother. 

24. There is contradictory information before the Tribunal but on balance, the Tribunal is of the view that although it is plausible that the process of obtaining the certificate might be correct, this does not mean that it was followed, or that the certificate is a genuine document, or that it contains accurate information. The Tribunal asked the applicant if there had been any DNA testing in relation to [Child C]. The applicant stated that at the end of 2014, her former husband left Kenya with [Child C] and she does not know his whereabouts since that time. She stated that he would be about [age] years old. The Tribunal is not persuaded by the applicant’s explanations.

25. On the evidence and given the credibility concerns, the Tribunal does not accept that [Child C] is the applicant’s biological son. The Tribunal can only speculate about his parenthood.

    [Child B]’s personal number

26. [Child B with a middle name] born on [Date 3] and [Child B without middle name] born on [Date 5] share the same personal number, [Six Digit Number].

27. In the delegate’s decision record, there are copies of the relevant passports.[20]  As referred[21] to in the delegate’s decision record, the Kenyan Ministry of State for Immigration and Registration Persons provided a letter dated 11 June 2013 and confirmed the issuing of both passports. The letter shows a reference number [which incorporates Six Digit Number], indicating that as far as the Kenyan Ministry of State for Immigration and Registration Persons is concerned, and notwithstanding the differences in name and year of birth, the two persons relate to the same person or they are closely related.

    [20] At page 29.

    [21] Ibid.

28. The applicant stated that there is widespread corruption and bribery in Kenya which could explain those similarities. She agreed that she did not have all the relevant documents and that she does not know how that reference number was given. In light of DNA evidence that the applicant is the mother of [Child B with a middle name], it is reasonable to suggest that given the similarities in the personal number and the immigration reference number [which incorporates Six Digit Number], that the relevant passports relate to the same person and this is persuasive evidence that [Alias 2] and [Alias 1] is the same person.

    Community allegations

29. In accordance with s424AA, the Tribunal discussed with the applicant information contained in the Departmental file that on 1 December 2010, an allegation was made onshore that [Alias 2] was attempting to enter into a contrived relationship for the purposes of migration with [Mr L] who provided a letter of support. The informant alleged that [Alias 2] had previously resided in Australia and was removed, that she had changed her identity on returning to Kenya in order to avoid immigration checks and that she re-entered Australia under her new identity. In February 2013, a second allegation was received claiming that [Alias 2] was identified by a community member through a sighting at a local shopping centre to have previously resided in Australia but now is here under a different identity. The applicant denied all those allegations. The Tribunal is not convinced. The Tribunal is satisfied that this information provides further evidence that [Alias 2] and [Alias 1] is the same person.

    Kenya Primary School Leaving Certificate – attendance at [School 1] in Thika

30. In the course of the hearing, the Tribunal alerted the applicant to the concerns relating to the authenticity and/or correctness of the information contained in documents she has provided.

31. In her statutory declaration of 5 March 2014, the applicant argued that the Departmental claim that her daughter [Child B with a middle name] was living with her in Australia under the name of [Child B without middle name] from [January] 2004 until [August] 2009 but this is incorrect. She argued that [Child B] attended primary school in Kenya during the [specified period] and she provided a copy of [Child B]’s leaving certificate (Annexure F).

32. As noted in the delegate’s decision record[22], in 2013 during the processing of the child visa application, [Child B] was requested to provide her Kenya Certificate of Primary Education and Kenya Certificate of Secondary Education. The representative replied that [Child B] “did not do the KCPE or the KCSE so she is attending through the private stream” and instead he provided a copy of her “Primary School Leaving Certificate”. The website schoolsnetkenya.net notes that [School 1] in Thika is a public school. The website educatekenya.net indicates that [School 1] is “sponsored by the Local Government Authority [with] a [number of] Teachers”. Through the button “KCPE Results - 2013” the site links to serve Africa.info/kcpe–exam–results–2013 which shows that both public and private schools undertake the KCPE.[23]

    [22] At page 51 of the delegate’s decision record.

    [23] As referred to in the delegate's decision record at pages 51-52.

33. The delegate noted[24] in the decision record that a Departmental officer in Nairobi informed the delegate that the leaving certificate from [School 1] is not consistent with documents usually provided to students at the end of primary school when students are required to undertake the KCPE.

    [24] At page 52.

34. The Tribunal is satisfied that irrespective of whether [School 1] is a public or private school, [Child B] was required to undertake the KCPE and would have done so if indeed she was attending primary school [during specified period] in Kenya, as noted in the Certificate. In those circumstances, it is difficult to accept the reasons for the failure to provide the KCPE document. It is also difficult to accept that [Child B] attended school in the context of the applicant’s claims that they lived in a refugee camp for the first half of 2008 during which [Child B] was raped. The applicant has claimed that [Child B] attended [higher education][25] which confirmed the authenticity of the leaving certificate as part of the enrolment process in 2013.

    [25] Annexure G to a Statutory Declaration.

35. The applicant argued that the authenticity of the leaving certificate was conferred by the administration staff at [Institute 1] where [Child B] was enrolled as [a student] in [specified discipline]. The applicant argued that in order to enrol in the course, [Child B] had to complete a [program] which commenced in May 2013. The applicant noted that a requirement for admission was the provision by [Child B] of the original of her school leaving certificate (attached a copy of the acceptance letter from [Institute 1] – marked as Annexure G).  The applicant noted that on 20 May 2013, [Child B] attended the [campus] of [Institute 1] and she produced her school leaving certificate and that the [administrators] were satisfied that [Child B] had met the entry requirements, including the provision of an original and authentic leaving certificate and she was subsequently enrolled as a full-time student (Annexure H).

36. The applicant noted that on 15 January 2014, she authorised her lawyer to make contact with the [School 1] in order to authenticate the school leaving certificate showing that [Child B] had attended the school [during specified period] (Annexure R). When they did not receive a response, she spoke to [Child B] who was studying at the [Institute 1] and asked if she could talk to the school administrators to confirm her enrolment and academic record. On 4 February 2014, the applicant contacted [Institute 1] on her Australian mobile phone number and spoke to a person by the name of [Ms M] who asked her to send confirmation of [Child B]’s enrolment which the applicant did on 5 February 2014. On 24 February 2014, the applicant sent a follow-up email as she did not receive a response (Annexure S).

37. The Tribunal accepts that the applicant had made contact as claimed but this does not mean that the Certificate is genuine.

38. The applicant has contended that the leaving certificate was genuine because it was signed by the school’s headmaster, [Mr K] who has a [Social Media 2] entry that he is a teacher living in Thika. As noted by the delegate[26], there is more than one [Mr K] on [Social Media 2] and the one identified by the representative does not state on [Social Media 2] that he is a teacher although he graduated from a Teachers College and lives in Thika. The Tribunal further notes that the Certificate is signed by the Headteacher and not a headmaster and that [Mr K] is [associated on Social Media 2] with [Ms I][27]. 

    [26] At page 52.

    [27] As referred to by the delegate at page 52.

1. Although it is plausible that [Child B] had to provide supporting evidence in relation to her previous education in order to be enrolled in [Institute 1], there are many other plausible documents that [Child B] could have provided, including potential evidence of her attendance at school in Australia.

2. In light of those concerns, the Tribunal is not satisfied that the certificate is genuine, or that it contains accurate information, or that it is evidence that [Child B] was at primary school in Kenya at the relevant times. The Tribunal therefore does not give weight to this document.

   Marriage Certificate

3. In her statutory declaration of 5 March 2014, the applicant stated that [in] December 2004, she married [Mr A] in a traditional Mungiki wedding ceremony led by a former Mungiki spokesman who was later shot dead by the police in 2009. The ceremony took place in [Village 1]. She felt she had no choice but to marry [Mr A] because she had already had two children by him and she had no one else to look after her and the children. They had a traditional wedding because they were in the Mungiki gang and he would gain status if they had a traditional wedding. In December 2004 he gave her a certificate to show that a traditional marriage had been blessed [a church] (Annexure I).

4. The applicant noted that the marriage certificate was originally provided to the Department when she first applied for the protection visa. She indicated that in refusing the application, the Department found that she was a successful businesswoman living in Kenya during the period in question and that she was married to [Mr A]. The applicant contended that in reaching that conclusion, the Department must have accepted that the marriage certificate was genuine showing that she was in Kenya in December 2004.  In submissions, the representative argued that that the certificate shows that the applicant was in Kenya [in] December 2004 and that neither the RRT nor the Department questioned its authenticity prior to the visa grant.  The Tribunal finds those submissions to be unconvincing; a number of matters and documents were accepted by both the RRT and the Department based on the material available at the time.  Moreover, accepting a document at an earlier stage does not mean that it cannot be questioned subsequently in light of new information. 

5. As noted by the delegate[28], on 1 May 2013 the representative sent an email in support of [Child B]’s child visa application reading that the applicant “was only ever married to the Applicant’s father traditionally and was not issued with a normal marriage certificate”. The Tribunal agrees with the delegate’s observations that despite this claim, the marriage certificate appears to be official and formal; on the certificate it is noted “REPUBLIC OF KENYA, The African Christian Marriage and Divorce Act (Cap. 151)…”. The Tribunal has serious doubts that the Certificate of Marriage from 2004 is genuine or that it contains accurate information, or that it supports the applicant’s contention that she was in Kenya in 2004. The Tribunal therefore does not give weight to this document.

   [28] At page 46 of the delegate's decision record.

   Land ownership certificate

6. In her statutory declaration of 5 March 2014, the applicant claimed that in September 2004, [Mr A] purchased a plot of land in [Division 1] and in order to hide the existence of the property from the Mungiki, he arranged for the property to be registered in her name. In order for registration to take place, she was required to sign a contract of sale and she attached an ownership certificate (Annexure L).

100.   The Tribunal observes that the document refers to the applicant being the rightful owner of the plot, the document however does not have the applicant’s signature or her address. Moreover assuming the certificate is genuine, it does not mean the applicant was in Kenya at the time – in 2004. The document was allegedly signed on the 3^rd of September 2004 but the Tribunal observes that the year date shows that the numbers 19 had been interposed reading x192004 raising some doubts about the year and whether the document is genuine and/or reflects accurate dates. Moreover at paragraph 41 of her statutory declaration of 5 March 2014, the applicant refers to having to sign a contract of sale from [a named company] but the contract in question was not provided. In light of those concerns, the Tribunal has decided to give the ownership certificate limited weight.

[Bank account]

101.   The applicant has claimed in her statutory declaration of 5 March 2014 that on 15 January 2014, she authorised the [law firm] to make contact with [a bank in] Kenya to confirm that she had operated an account (Annexure O) and no response was received. On 17 January 2014, her lawyers at the [law firm] sent an email to the customer service of the bank seeking a verification of the account and details of the account holder.

102.   The applicant noted that on 21 January 2014, she received a copy of an email sent to her lawyers from the customer service department, stating that no information could be provided to anyone other than the account holder (Annexure P).  She sent two emails to the customer service on 27 January 2014 and 24 February 2014 and she still has not had a response (Annexure Q). In early February she contacted customer service help line of the bank and after 15 minutes of waiting in a queue, she hung up as she was running out of credit.

103.   The Tribunal observes that when the representative wrote to the bank in Kenya, account number [number] was identified as the applicant’s account number. At page 49 of the delegate’s decision record, there is reference to bank statements being provided by the applicant in support of her tourist visa application in 2010 showing the same account number of [number], with the earliest transaction dated 12 October 2010, which would not support the applicant’s contention that she was in Kenya between November 2001 and August 2009.

104.   It is also noteworthy that the applicant’s lawyer’s email which was sent on 17 January 2014 was responded to within three days of receipt, namely on 20 January 2014.  It therefore seems odd that the actual account holder did not receive a response at all.

105.   The Tribunal in those circumstances has serious doubts that the applicant has an account in Kenya with transactions that would support her claim that she was in Kenya at the relevant times.

Documents provided to the Tribunal

106.   In support of the application for review, the applicant provided the following documents:

·Statutory Declaration of [Alias 1], declared on 17 April 2015 confirming her name and that she was born on [Date 1]. She confirmed her instructions and the submissions provided by the representative in her support.

·Statements of [Child B], dated 2 &19 April 2015. [Child B] stated that she is a full-time student and permanently lives at the [a named hostel] (attached certified copy of her University ID and Kenyan passport). She stated that [Alias 1] is her biological mother who does not have any siblings. Her two [uncles] are deceased. She is on [Social Media 2] and she is connected to over 2000 [people] but she does not know three quarters of those [people]. She has not met them in person. It is a teenager’s way of trying to be recognised by other students. She does not know [Mr J] but he is one of [the people] who comments on her posts and photographs. When [Mr J] on 11 December 2014 “[My] daughter finally not incognito on [social media]…”, She changed her profile. When she searched [Mr J]’s profile, she realised that he is friends with [Alias 6] and [Mr K] which meant that she had accepted some of Bob’s mutual friends. She does not know [Alias 6] in person. Her brother [Child C] does not have a [Social Media 2] account. He is her brother by her dad [Mr A]. Her father took her brother in September 2014. [Child C] on [Social Media 2] is a different person whom she does not know. Her mother has no idea of her social media activities.

·Documents from [Institute 2], Nairobi, dated 18 February 2013, relating to [Child B] confirming she is a student at the [Institute 2]. Photographs of [Child B] at the college

·Submissions dated 20 April 2015 summarising the events that led to the cancellation of the visa. The representative identified the principal issue in dispute which is whether [Alias 1] has previously been known to the Department under a different identity. The representative’s submissions focused on the delegate’s reasoning and findings.

107.   Character references for [Alias 1] from [Ms N], [Ms O], [Mr P], [Mr Q], [Mr R], [Mr S], [Mr T], [Ms U], [Mr L] (he’s been in a relationship with [Alias 1] for 2 ½ years) [Father V], [a named association], [Pastor W], [Mr X], [Ms Y], [Ms Z], [Ms AA], [Mr AB], [Ms AC], and [Ms AD]. Witnesses also gave evidence in the course of the hearing and they spoke highly of the applicant’s character, including being reliable, truthful, genuine, having a flawless character, and helpful.

108.   The Tribunal has carefully considered the material provided in support and the Tribunal was impressed with the witnesses who gave evidence in the course of the hearing. The Tribunal does not doubt the authenticity of the views about the applicant whom they want to assist. The character references provided and other material do not overcome the Tribunal’s concerns about the applicant’s credibility. The Tribunal is satisfied there is highly reliable and persuasive evidence that the applicant has been known previously as [Alias 2].

Conclusions

109.   The Tribunal is satisfied that the evidence as outlined above demonstrates that [Alias 1] and [Alias 2] is the same person.  On the evidence, the Tribunal is satisfied that the applicant has previously resided in Australia under a different identity and that she has re-entered Australia and sought to engage Australia’s protection obligations under a different identity. The Tribunal does not accept the submissions that the Department’s case against the applicant is circumstantial and relies upon a number of separate pieces of evidence to support its claim that she has been in Australia previously under a different identity. The Tribunal accepts that some of the evidentiary material discussed above if considered individually, may not lead to a conclusion that [Alias 1] is the same person as [Alias 2]. However, considered cumulatively, the Tribunal is satisfied that the applicant has previously been in Australia under a different identity. The Tribunal has given significant weight to the facial imaging comparison findings but the Tribunal has also given weight to other evidentiary material as outlined above.

110.   In essence, the Tribunal is satisfied that the applicant had previously given false and misleading information to the Department in her [visitor] visa and that she failed to disclose that she was in Australia from 2001 to 2009 under the name of [Alias 2]. Further, the Tribunal is satisfied that although the RRT found the applicant to be generally credible and consistent in her claims, the RRT also found that the applicant had embellished her association with the Mungiki and her overall situation in Kenya in pursuit of a permanent stay in Australia.

111.   On the evidence, the Tribunal finds that the applicant has breached s.101 of the Act by giving incorrect answers on the application form as identified in the Notice.

112.   Specifically, the Tribunal finds that the non-compliance related to:

·The applicant [Alias 1] born on [Date 1] is also known as [Alias 2] born on [Date 2].

·On 9 December 2010, [Alias 1], made an application for a tourist visa at Nairobi, using the approved form 48R Application for general tourists to visit Australia for tourism or other recreational activities. Item 4 of the application form reads “Name (S) shown in your passport” and the answer provided was “[Alias 1]”. The question further asks “Other names you are, or have been, known by (including name and birth, previous married names, aliases)” and the answer was “N/A”. This was incorrect because [Alias 1] was also known to the Department as [Alias 2].

·In the tourist visa application, dot .9 of item 30 of the application form asks “Have you, or any other person included in this application, ever:… Had any outstanding debts to the Australian government or any public authority in Australia?”, the response was “No”. This is contrary to information before the Department that since 2005 she had a debt to the Australian government.

·The applicant made an application for a protection visa on 23 March 2011 using the approved Form 866: Application for a Protection (Class XA) visa.  Item 1 of Part C asks “What is your full name?”, the applicant responded [Alias 1]. Item 4 of the same Form asks “What other names have you been known by? (Such as name before marriage, previous married name, alias)”, the applicant responded “N/A”. This is contrary to information that the applicant was also known as [Alias 2].

·In a statutory declaration dated 10 May 2011 which the applicant provided in support of the application for a protection visa, the applicant claimed events that were presented to have occurred in Kenya between [December] 2004 and 30 November 2010. This is contrary to the evidence that [Alias 2] was in Australia between [November] 2001 and [August] 2009 and consequently the claimed events could not have occurred.

113. For these reasons, the Tribunal finds that there was non-compliance with s.109(1) by the applicant in the way described in the s.107 notice.

Should the visa be cancelled?

114. 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).

115. 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). The prescribed circumstances are set out in r.2.41 of the Regulations. Briefly, they are:

·     The correct information

116.   The applicant has contended that she is not, nor is she aware of a person by the name of [Alias 2]. She confirmed that all the information she had provided in her application is correct. She confirmed that she is [Alias 1] and that she has never been to Australia previously and that she does not owe any debt to the Commonwealth. She made protection claims on the basis of a period in Kenya and provided material in support of her claims. She continues to claim that she fears harm if returned to Kenya.

117.   For the stated reasons, the Tribunal has concluded that the applicant has been known by another name, namely, [Alias 2] and that her claims for protection relate to a period of time when she was actually in Australia and not in Kenya. The correct information contradicts her claims as made in her statutory declaration of 10 May 2011 and in her responses to the relevant questions identified in the NOITCC.

118.   The Tribunal considers the provision of incorrect information in a visa application to be serious. The Australian authorities have legitimate expectations that correct information is provided. These expectations are not arbitrary. They are founded at law in s.101 of the Act which provides that a noncitizen must fill in his or her application form in such a way that:

(c)   all questions on it answered; and

(d)  no incorrect answers are given.

119.   The use of the term “must” imposes an obligation on the non-citizen and that obligation stands even if the non-citizen did not provide that information personally; s.99 of the Act provides that:

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.

120.   Those provisions reflect the seriousness and the significance of the provision of correct information in visa application. 

121.   The Tribunal did not find the applicant to be a credible witness. Her continued contention that she has provided correct information was not impressive. This is particularly problematic in light of evidence which the Tribunal considered to be highly probative – such as the facial imaging comparison.

122.   The Tribunal gives significant weight to this consideration in deciding that the visa should be cancelled.

·     The content of the genuine document (if any)

123.   The Tribunal observes that the NOITCC did not specify non-compliance in relation to the content of a genuine document.

124.   The Tribunal gives this consideration neutral weight.

·     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

125.   Although the Tribunal is not reviewing the decision to grant the applicant the tourist visa, it is nevertheless relevant under this consideration.

126.   The applicant applied for a tourist visa which was granted on 15 December 2010. The decision maker was satisfied that she met all the criteria for the grant of the visa. Those criteria include Public Interest Criterion (PIC) 4004 namely that the applicant does not have “outstanding debts to the Commonwealth unless the Minister is satisfied that appropriate arrangements have been made for payment”. The applicant did have a debt to the Commonwealth as a result of having previously applied for a protection visa on 12 December 2001 under the name of [Alias 2]. The debt was incurred because [Alias 2] was refused the protection visa which was affirmed by the RRT on review.

127.   As the RRT decided that she was not entitled to the protection visa, a post decision fee of the thousand dollars was payable and when she applied for judicial review, the matter was upheld by the Court [in] June 2005 and the applicant was therefore required to pay the relevant costs.

128.   As referred to in the delegate’s decision record[29], the Department is responsible for the recovery of debts that arise as a result of the Department’s obligations in the Administration of RRT post fees and litigation costs. The Department’s Debt Management Unit had informed the Delegate[30] that the applicant owed $5000 in total as a debt to the Commonwealth since 2005.

[29] At page 10 of the decision.

[30] As referred to at page 10 of the decision.

129.   The applicant applied for a protection visa on 23 March 2011 which was granted on 23 January 2012. The application was initially refused by the Department because the decision-maker was not satisfied that she had met all the relevant criteria. However, the RRT remitted the matter to the Tribunal for reconsideration.

130.   The applicant’s claims centred on events that she had been sexually assaulted by a man who later married her. She claimed that the man was a member of the Mungiki and that they later separated subsequent to which she lived as an IDP in a camp in Kenya. She claimed that she lived with her husband again in Kenya in March 2009 and that she and her two children [Child B] and [Child C] were confined to the house for 10 months. The RRT accepted that the applicant’s claims give rise to protection by the Australian authorities.  Her claimed experiences in Kenya formed the basis of her protection claims.

131.   For the stated reasons, the Tribunal has found that, the claimed events of harm occurred at a time that the applicant was essentially in Australia and consequently, the claimed events could not have occurred because they allegedly occurred in Kenya. The Tribunal has concluded that the applicant was known by another name and that she has used a different identity to enter and live in Australia. The Tribunal is satisfied that the applicant was living in Australia between November 2001 and August 2009 which means that the claims on which the applicant relied on in her statutory declaration provided in support of the application for a protection visa, and the events she described as having occurred in Kenya during that period, did not occur.

132.   On the evidence, the Tribunal is satisfied that the decision to grant the applicant the protection visa was wholly or partly based on the incorrect information.

133.   The Tribunal gives this consideration significant weight in deciding that the visa should be cancelled.

·The circumstances in which the non-compliance occurred

134.   The non-compliance occurred when the applicant provided incorrect information in her applications for tourist and protection visas which include the statutory declaration dated 10 May 2011 which was provided in support of the application for a protection visa.

135.   The applicant first arrived in Australia in 2001 and was unsuccessful in her application to remain in Australia under the name of [Alias 2]. She sought review of the Departmental decision to refuse to grant the protection visa and applied for judicial review which was not in her favour. She also sought Ministerial Intervention[31] and left Australia after almost 8 years of trying to remain in Australia. Approximately 15 months later, she applied for a tourist visa under a different name and date of birth. The identity fraud was not picked up by the Australian authorities until later, subsequent to the grant of the protection visa under a different identity.

[31] As referred to in the delegate's decision record at page 64

136.   The Tribunal is of the view that the applicant has demonstrated disrespect and disregard to the laws of Australia. The applicant continued assertions and contentions that she does not know and she is not a person who had previously been known as [Alias 2] add to the gravity of the disregard.

137.   The Tribunal gives significant weight to this consideration in deciding that the visa should cancelled.

·     The present circumstances of the visa holder

138.   The applicant gave evidence that she has had difficulties in Australia which include homelessness. She gave evidence she has had mental health issues and she provided a report from [a mental health service] dated 18 February 2019. The author of the report is a clinical psychotherapist and the Tribunal accepts that the author is qualified to provide the opinions provided in the report. The Tribunal accepts that the applicant has had mental health issues which include Post-Traumatic Stress Disorder (PTSD) and symptoms of anxiety. The Tribunal however observes that the author of the report expressed an opinion that some of those mental health issues relate to “past traumatic experiences”. The Tribunal is of the view that it is not the usual role of the therapist to critically evaluate information provided by a patient such as the applicant and as the author of the report noted “I have been providing psychological treatment to [Alias 1]…”. It is also not the role of a therapist to make findings of fact relating to an application such as the one under review. This is the role of the Tribunal.

139.   The Tribunal accepts that the applicant has psychological difficulties and the Tribunal has given this aspect weight in her favour. The Tribunal also accepts that the applicant has had difficulties in Australia which include being homeless. The Tribunal acknowledges and expresses empathy towards the applicant in those circumstances.

140.   The applicant gave evidence that she does not have any family in Australia. She gave evidence that she does not know the whereabouts of [Child C]. The applicant’s family is essentially in Kenya. The Tribunal has accepted that DNA evidence is conclusive that [Child B] is the applicant’s daughter but on the evidence before it, the Tribunal has not accepted that [Child C] is the applicant’s biological son.

141.   The applicant has been in Australia since the grant of the visitor visa but she has been in Australia previously for many years. The applicant has therefore been in Australia for a substantial period of time. She has provided extensive character references and witnesses gave evidence in her support. The applicant has worked in Australia for different organisations and she claims that she has integrated into the Australian community. The Tribunal acknowledges that this demonstrates that despite difficulties, she has settled in the community. The Tribunal gives those aspects weight in the applicant’s favour.

142.   The applicant had previously informed the Tribunal that her daughter was studying and doing well because of the opportunities that the applicant had given her. She noted that her daughter has been active and supports the community and she provided evidence of her daughter’s study and community involvement. The applicant noted that if she were not in Australia, her daughter would not have had those opportunities. The Tribunal acknowledges those matters.

143.   The Tribunal has decided to give this consideration weight in the applicant’s favour.

·     The subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act

144.   The Tribunal and for the stated reasons has found that the applicant provided incorrect information in the application for a protection visa and that she had previously provided incorrect information in the visitor visa application. The applicant has denied that she had provided any incorrect information.

145.   The Tribunal gives this aspect weight in deciding that the visa should be cancelled.

·     Any other instances of non-compliance by the visa holder known to the Minister

146.   The applicant suggested to the former Tribunal[32] that she had previously admitted in her immigration interview that she had provided a false marriage certificate (Annexure I to Statutory Declaration) of 5 March 2014. The Tribunal informed the applicant at the time that her evidence could suggest that she had not complied with s.103 of the Act. As noted by the Tribunal in that decision, the applicant recanted her evidence and stated that the marriage certificate was not a bogus document.

[32] As noted on page 9 of the decision record of RRT matter number [number]

147.   For the stated reasons, the Tribunal has serious doubts that the Certificate of Marriage from 2004 is genuine or that it contains accurate information. When considered cumulatively including the credibility concerns, the Tribunal is satisfied that the certificate is a bogus document as defined in s.97 of the Act.

148.   Moreover and for the stated reasons, the Tribunal is not satisfied of the authenticity or accuracy of information contained in the ID card [issued by IDP camp] (Annexure A to Statutory Declaration of 5 March 2014), [Medical Clinic] records (Annexure B to Statutory Declaration of 5 March 2014) two photographs (Annexures C and D to Statutory Declaration of 5 March 2014), Birth Certificate of [Child C] (Annexure K to Statutory Declaration of 5 March 2014), Kenya Primary School Certificate (Annexure F to Statutory Declaration of 5 March 2014), and Land Ownership Certificate (Annexure L to Statutory Declaration of 5 March 2014).  The Tribunal is satisfied that those documents are bogus documents as defined in s.97 of the Act.

149.   The Tribunal is also satisfied that at least one of the passports provided by the applicant contains incorrect information relating to her true identity.  The Tribunal appreciates that the applicant might have changed her name lawfully but she has not declared that.

150.   The applicant has maintained a version of events that the Tribunal has found to be untruthful.  Relevant documents she provided are bogus documents.

151.   The Tribunal gives this aspect significant weight in deciding that the visa should be cancelled.

·     The time that has elapsed since the non-compliance

152.   The applicant arrived in Australia as [Alias 1] in January 2011, over 8 years ago.  Although a reasonably lengthy period of time, the Tribunal gives this aspect limited weight in the applicant’s favour.

·     Any breaches of the law since the non-compliance and the seriousness of those breaches

153.   There is no evidence before the Tribunal of any breach of the law since the non-compliance.

154.   The Tribunal gives this aspect neutral weight.

·     Any contribution made by the holder to the community

155.   The Tribunal gives weight to the fact that the applicant has worked in Australia and contributed to the economy in that sense.  She does volunteer work and the Tribunal gives this weight in her favour.

156.   While these factors 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: MIAC 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 Advice Manual) PAM3 ‘General visa cancellation powers’, which refers to matters such as the consequences of cancelling the visa, international obligations and any other relevant matters.

·Whether any international obligations would be breached as a result of the cancellation, such as non-refoulement obligations, family unity principles or the obligation to consider the best interests of the child.   

International Treaties Obligations Assessment (ITOA)

157.   The applicant has claimed in the Statutory Declaration of 5 March 2014 that she continues to fear [Mr A] who sent her a number of threatening emails most of which she had deleted and is unable to retrieve because they were too upsetting. However she has managed to retrieve the last one he sent her in October 2013. In that email he told her he had taken her son from the applicant’s mother and had him circumcised. He also threatened her that he would kill her (Annexure T). She claimed that if returned to Kenya, she fears that he would carry out his threats.  In light of the Tribunal’s earlier findings about the applicant’s claims and the applicant’s propensity to provide false documents, the Tribunal does not give weight to Annexure T.

158.   On 5 June 2014, the Department commenced an ITOA assessment which was finalised on 29 October 2014, the same day the applicant was notified of the essential finding that non-refoulment obligations were not engaged in her case.  The assessment did not accept that the applicant had any adverse profile in Kenya as a member, or a supporter, or an associate of the Mungiki, or that she was the target of a leafleting campaign by the group, or that she was the subject of any rumours spread within the group that she had not been circumcised.  The findings of the assessment essentially concluded that [Alias 1] and [Alias 2] are the same person.

159.   As raised in the course of the hearing, the Tribunal gives significant weight to the ITOA findings. 

160.   In any event, the claimed events of harm occurred at a time that the applicant was essentially in Australia and consequently, the claimed events could not have occurred because they allegedly occurred in Kenya. The Tribunal has concluded that the applicant was known by another name and that she has used a different identity to enter and live in Australia. The Tribunal is satisfied that the applicant was living in Australia between November 2001 and August 2009 which means that the claims on which the applicant relied in her statutory declaration provided in support of the application for a protection visa, and the events she described as having occurred in Kenya during that period, did not occur. 

161.   In consideration of the evidence as a whole, the Tribunal is satisfied that cancelling the visa would not result in a breach of Australia’s non-refoulement obligations.

162.   The Tribunal gives this aspect neutral weight.

Best interest of children

163.   As a signatory to the Convention on the Rights of the Child (CROC), Australia has obligations towards children under 18 years of age.  By being a signatory, Australia has agreed to act in a manner consistent with the Convention, recognising the best interest of the chid.

164.   The CROC sets out the rights of children in 54 Articles and two Optional Protocols. It spells out the basic human rights that children everywhere have: the right to survival, to develop to the fullest, to protection from harmful influences, protection against abuse and exploitation, to participate fully in family, cultural and social life.

165.   The four core principles of the Convention are non-discrimination, devotion to the best interests of the child, the right to life, survival and development, and respect for the views of the child. The CROC sets out standards in relation to health care, education, legal and civil rights.

166.   Article 3 of the CROC states:

In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.

States Parties undertake to ensure the child such protection and care as is necessary for his or her well-being, taking into account the rights and duties of his or her parents, legal guardians, or other individuals legally responsible for him or her, and, to this end, shall take all appropriate legislative and administrative measures.

States Parties shall ensure that the institutions, services and facilities responsible for the care or protection of children shall conform with the standards established by competent authorities, particularly in the areas of safety, health, in the number and suitability of their staff, as well as competent supervision.

167.   The Tribunal has accepted that [Child B] is the applicant’s child but she is over 18 so the CROC does not apply.  The Tribunal has not accepted that [Child C] is the applicant’s son but in any event, he is not in Australia and there is no evidence that the applicant has parental responsibilities to [Child C].  The Tribunal is not satisfied that cancelling the applicant’s visa and her potential subsequent departure from Australia would be against the best interests of the child.

168.   The Tribunal gives this aspect neutral weight.

·Whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and subject to detention, or whether indefinite detention is a possible consequence of cancellation, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention

169.   There are a number of mandatory consequences as a result of the cancellation of the applicant’s visa, including not being permitted (with exceptions) to make an onshore visa application as a result of the cancellation. If the applicant chooses to remain in Australia unlawfully, she could be liable for removal and detention.  The applicant could also be precluded from making any further visa applications for a period of three years as a result of Public Interest Criterion 4013.

170.   The Tribunal is satisfied that those consequences are intended lawful consequences of the legislation and in the applicant’s circumstances as outlined in the Decision, do not mean that the visa should not be cancelled.

171.   Those consequences are not intended to punish.   The cancellation scheme is not intended to be punitive but has a significant role in maintaining the integrity of the migration programme.  Cancelling a visa in those circumstances is not designed to punish the applicant but is about maintaining integrity.

172.   The scheme is also designed to have regard to the individual circumstances of the applicant to ensure a fair and reasonable decision, as demonstrated by the fact that if the ground for cancellation in this instance exists, that ground does not require mandatory cancellation.  The Tribunal has to consider whether the visa should be cancelled, giving regard to the circumstances of the case, matters raised by the applicant, and matters in the PAM3. 

173.   The Tribunal gives neutral weight to this consideration.

·Whether there would be consequential cancellations under s.140

174.   There is no evidence of any consequential cancellation in this case.

175.   The Tribunal gives this aspect neutral weight.

·if it’s a permanent visa, whether the former visa holder has strong family, business or other ties in Australia

176.   The applicant has provided a number of references from individuals attesting to her good character.  Witnesses also gave evidence speaking highly of the applicant.  The Tribunal is satisfied that she has community ties in Australia.

177.   The protection visa is a permanent visa and although the applicant has community ties in Australia, they do not outweigh the reasons to cancel.

178.   The applicant’s family is essentially in Kenya and the Tribunal gives this aspect neutral weight.

·any other relevant matters

179.   The Tribunal has accepted that the applicant suffers from mental health issues and that she has had difficult times in Australia including homelessness. The Tribunal gives those aspects weight in her favour.

180.   There are no other matters relevant for consideration.

181.   The Tribunal has carefully considered the applicant’s circumstances individually and cumulatively. There are factors in favour of cancellation and there are those against cancellation. On balance, the Tribunal is satisfied that the applicant’s conduct is serious weighing heavily in favour of cancellation. 

182.   Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.

183.   The Tribunal has decided that there was non-compliance by the applicant in the way described in the notice given under s.107 of the Act. Further, having regard to all the relevant circumstances, as discussed above, the Tribunal concludes that the visa should be cancelled.

DECISION

184.   The Tribunal affirms the decision to cancel the applicant’s Subclass 866 (Protection) visa.

Antoinette Younes
Senior 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