1802305 (Migration)

1802305 (Migration) [2019] AATA 6072 (23 August 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1802305
MEMBER:Kira Raif
DATE:23 August 2019
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 204 (Woman at Risk) visa.
Statement made on 23 August 2019 at 7:27am

CATCHWORDS
MIGRATION – cancellation – Refugee and Humanitarian (Class XB) visa – Subclass 204 (Woman at Risk) – family circumstances changed due to marriage – applicant married and started family awaiting visa grant – concealed inter-faith marriage – fear of violence response from husband – claimed difficulties contacting the Department – best interests of the applicant’s child – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 101, 104, 107, 109, 111
Migration Regulations 1994, 1.12, 2.41
CASES
MIAC v Khadgi (2010) 190 FCR 248

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF DECISION AND REASONS
Application for review

This is an application for review of a decision made by a delegate of the Minister for Immigration to cancel the applicant’s Subclass 204 (Woman at Risk) visa under s.109(1) of the Migration Act 1958 (the Act).
The applicant is a national of Iraq, born in [year]. She made the application for the Woman at Risk visa, as a member of the family unit of her mother, in December 2014 and was granted that visa [in] October 2016. [In] November 2017 the applicant was issued with the Notice of Intention to Consider Cancellation (NOICC) because the delegate formed the view that the applicant did not comply with s.104 of the Act. The applicant provided her response and the visa was cancelled [in] January 2018. The applicant seeks review of the delegate’s decision.
The applicant appeared before the Tribunal on [a date in] August 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic (Standard) and English languages. The applicant was represented in relation to the review by her registered migration agent. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.
Relevant law
Section 109(1) of the Act allows the Minister to cancel a visa if the visa holder has failed to comply with ss.101, 102, 103, 104, 105 or 107(2) of the Act. Broadly speaking, these sections require non-citizens to provide correct information in their visa applications and passenger cards, not to provide bogus documents and to notify the Department of any incorrect information of which they become aware and of any relevant changes in circumstances.
The exercise of the cancellation power under s.109 of the Act is conditional on the Minister issuing a valid notice to the visa holder under s.107 of the Act, providing particulars of the alleged non-compliance. Where a notice is issued that does not comply with the requirements in s.107, the power to cancel the visa does not arise.
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.
Did the notice comply with the requirements in s.107?
Section 107 is only engaged if the Minister or delegate considers that the visa holder has not complied with one of the provisions mentioned in s.107(1). It is only then that the Minister or delegate is entitled to give notice to the visa holder under s.107. Therefore, if a notice is to be given under s.107, the Minister or delegate must have reached a state of mind where they consider that the visa holder has not complied with one or more of the relevant provisions.
The Tribunal has considered the validity of the NOICC. The Tribunal is satisfied that it contains sufficient particulars to enable the applicant to identify and address the issues and also that the delegate had reached the necessary state of mind to engage s.107. The Tribunal is satisfied that the notice issued under s.107 complied with the statutory requirements.
Was there non-compliance as described in the s.107 notice?
The issue before the Tribunal is whether there was non-compliance in the way described in the s.107 notice, being the manner particularised in the notice, and if so, whether the visa should be cancelled. The non-compliance identified and particularised in the s.107 notice was non-compliance with s.104 of the Act. The applicant provided to the Tribunal a copy of the primary decision record which contains the following information:
a.[In] December 2014 [Ms A] made an application for a Subclass 204 Woman at Risk visa. The applicant was included as a member of her family unit.
b.[Ms A] completed Form 842 and provided information about the applicant, including her name and date of birth, country of birth and citizenship status. With respect to the applicant’s relationship status, it was stated that she was never married nor had been in a de facto relationship.
c.The applicant also completed Form 80 in which she gave her name and date of birth and, with respect to her relationship status, stated that she was never married nor had been in a de facto relationship.
d.During the processing of the application the Department received an undertaking signed by the applicant [in] December 2014. The applicant declared that she was not married, nor engaged to be married and had no intention to marry at the present time. The applicant agreed to inform the Department of any changes in her marital status that may occur prior to her entry to Australia.
e.The applicant was granted the visa and first travelled to Australia [later in] December 2016.
f.[In] April 2017 the Department received an application for a Child visa made by the applicant’s daughter, [named], born in [2016]. The child was sponsored by the applicant. The application included the child’s birth certificate showing the applicant as the mother and [Mr B] as the child’s father. The application also included a marriage certificate issued in Damascus, Syria, showing that the marriage was registered between the applicant and [Mr B] in March 2015 in Syria. The application also included evidence of the applicant’s pregnancy with her second child.
The delegate found that the applicant’s circumstances changed due to her marriage to her partner [in] March 2015 and the birth of the child in [2016], which both occurred prior to the applicant being granted the visa [in] October 2016 and her first entry to Australia [in] December 2016.
In her response to the NOICC the applicant stated that when she made the application in December 2014, she was not married and had no intention to marry. The applicant stated that she met her husband around June 2015 and they married [later in] 2015 but she concealed that information from her family due to the non-acceptance of an inter-faith marriage by the family and the community. Because of that the registration was backdated to [March] 2015 to make it seem that the applicant and her husband had been in a relationship for [several] months before the marriage. Only her immediate family are aware of the marriage but not her extended family and not the community in Australia.
The applicant stated that another person assisted her family in completing the application forms and she did not understand her obligations. The applicant stated that in early 2016 her mother tried to call the embassy several times to notify about the changes in her circumstances but could not get through and her English was not sufficient to notify in writing. The applicant could not recall her mother making contact in 2015 and 2016 to inquire about the progress of the application. The applicant states that the breach was not intentional and if she tried to conceal the information, she would not have sponsored her child for the Child visa.
The Tribunal finds that evidence problematic. The applicant claims that another person helped the family with the forms and she was not aware of the obligation to inform about the changes in circumstances, but she also claims that her mother made attempts to contact the embassy to notify of the changes in 2016, which appears to contradict the applicant’s claimed lack of knowledge. The Tribunal is mindful that the applicant signed the application form and, in the Tribunal’s view, was either aware of her obligations or should have been aware. Importantly, the primary decision record indicates that in December 2014 the applicant signed an undertaking to inform the Department about any changes in her circumstances including to her marital status and the applicant refers to that undertaking in her response to the NOICC. The Tribunal does not accept that the applicant was not aware of her obligation to inform.
Neither does the Tribunal accept the applicant’s claim that she had no capacity to inform the Department. Whether or not the applicant’s mother attempted to make contact by phone and even if she was unable to do so (the primary decision record indicates that the mother spoke to a Departmental officer 17 times between August 2015 and July 2016), the Tribunal does not accept that the applicant was incapable of providing the information in writing (as was her obligation under s.104 of the Act). She could have asked for help from another person – as she claims to have done when the forms needed to be completed – or she could have provided that information in her own language with the possibility that a locally engaged staff member could have read the information. The Tribunal is mindful that the obligation under s.104 is to inform in writing and not by telephone. The Tribunal does not accept that the applicant was incapable of fulfilling her obligations under the Act.
The applicant also claims that the breach was unintentional because otherwise she would not have sponsored her child for the visa. The Tribunal does not accept that argument. The applicant’s decision to sponsor her daughter may be an indication that she is keen to be reunited with her minor child, rather than a reflection on the applicant’s candour.
The Tribunal is also mindful that in accordance with s.111 of the Act, s.109 applies whether the non-compliance was deliberate or inadvertent.
The applicant provided a written submission to the Tribunal [in] August 2019 and her claims made in that submission are somewhat different. The applicant states that there is no evidence in the NOICC to positively establish that the answers were incorrect at the time the application was lodged in December 2014 and she states that neither she nor her mother contacted the Department to ask about the status of the application. The Tribunal is mindful that s.104 is not concerned with the provision of incorrect answers at the time of the application. Rather, this provision is concerned with the failure to inform about changes in circumstances. Whether or not the applicant gave incorrect answers when the application was made does not affect the application of s.104.
In her statement which accompanied the submission of [August] 2019 the applicant states that she fled Iraq with her mother and sister in October 2010. The applicant states that she was not in any relationship when she signed the Department undertaking in December 2014. She did not hide the information and did not try to mislead the Department. She became acquainted with [Mr B] over the internet and was lured into running away with him and falling pregnant twice. She was in love with him but after living together, his treatment changed. She ran away with him in [2015] without telling her mother, to meet [Mr B] and be married. She hid the marriage from her mother until their arrival in Australia as she knew she could not marry a Muslim man. He arranged the marriage registration and all she remembers happening is that her signature was taken in court and she was not asked any information about herself. She later found out that the person who registered the marriage was paid by [Mr B] and he also backdated the relationship to March 2015, which was not true. The applicant states that none of the correct marriage procedures took place in court and everything was planned in advance by [Mr B] while she did not have a say in anything. She ran away with him in the hope of a better future but after marriage, the relationship became violent and aggressive. The applicant states that the marriage and the children are not accepted by anyone and people in the community do not know that the father of her children is a Muslim.
The applicant’s oral evidence to the Tribunal was again different. In oral evidence, the applicant outlined the history of her relationship. She states that they met on the internet and due to their different religion, she was scared to declare the relationship to others because she may have been killed. In [2015] she ran away with him. After she moved in with his family, she realised that his family was very strict or extreme followers of Islam and she had a terrible experience with them. She was treated as a slave and was beaten and deprived of any dignity. She decided to return to her mother, who does not know in detail about the relationship. She spent time between his house and her mother’s house. Her husband threatened to kill her if anyone knew about the marriage or her experience.
The Tribunal has considerable concerns about the truthfulness of these claims.
The Tribunal is mindful that none of these claims were put forward by the applicant in her written response to the NOICC, despite the considerable detail of that response. The applicant told the Tribunal that she had ‘overlooked’ to mention that information and she had no legal support. The Tribunal notes that the applicant was represented by [her agents] when preparing the response to the NOICC so it is not correct to state that the applicant had no legal support. The Tribunal does not accept that the applicant could have ‘overlooked’ the fact that she was involved in a violent marriage and subjected to threats or harm from her husband and his family. The Tribunal notes that once the applicant was issued with the NOICC, there was a possibility of her visa being cancelled. The applicant must have appreciated the significance of that. The Tribunal does not accept that in such circumstances, the applicant would fail to disclose such significant information in response to the NOICC.
The applicant claims her sister was also threatened and the husband threatened to take away and abuse her sister for his younger brother. The applicant claims she was scared for her family and even her mother does not know all the details. However, the Tribunal is mindful that the applicant was providing her statement in response to the NOICC in Australia in a confidential manner, and it is unclear how mentioning her family circumstances in her dealings with the Department would have put her sister – who now lives in Australia – at risk.
The applicant also told the Tribunal that she did not have the opportunity to state what she wanted to state and when she was interviewed by the lawyer as it was a rushed interview. The Tribunal finds it difficult to accept that an experienced legal representative would not have provided the applicant with the opportunity to present her case fully. The written response to the NOICC, as well as the covering letter to the delegate, are quite detailed and lengthy. The fact that the new information was presented for the first time to the Tribunal causes the Tribunal to question the truthfulness of that evidence.
In her submission to the Tribunal [in later] August 2019 the applicant also claims that she felt ashamed and scared of what her husband did to her and did not feel comfortable discussing these matters, and while she told [her agents] of some of the assault and abuse she encountered, she did feel not comfortable disclosing the details, so the statement was brief. The Tribunal does not accept that evidence. As noted above, the Tribunal does not consider that the applicant’s response to the NOICC was brief or lacked detail. The issue is that the details in that response were different to the details the applicant now refers to. Also, as noted above, the applicant would have appreciated the significance of her visa being cancelled and the Tribunal does not accept that she would have failed to disclose what she now considers to be significant and relevant information. In her response to the NOICC the applicant refers to her parents-in-law being unable to support the family financially and to her husband being in hiding from the military. These claims are very different to her evidence to the Tribunal. The issue here is not lack of detail in the applicant’s response to the NOICC but the inconsistency of her claims. The Tribunal does not accept the applicant’s explanation for such inconsistencies and has formed the view that her more recent evidence, as well as her present explanations, have been fabricated.
There are significant other concerns about the applicant’s credibility that are outlined below.
The applicant told the Tribunal that she ran away with her husband [in 2015] and a week later she returned to her mother’s home. She said that her husband forced her to go back to him and she moved between his house and her mother’s house. He forced her by threatening her, her mother and her sister. She was beaten, degraded and abused in terms of her religion. The applicant told the Tribunal that the abuse started from the beginning. She stated that from the start, she could not get used to the culture of his family and she was treated as a slave. The applicant confirmed that they did not live together before registering marriage and as soon as they started living together, from day one, the relationship became bad. She said that from day one she was treated as a sex slave and one week later she ran away to her mother’s house. The Tribunal is mindful that this contradicts the applicant’s written submission to the Tribunal dated [in] August 2019. In that submission, the applicant states that ‘a few weeks after living with [Mr B], our relationship changed dramatically’. The applicant’s written evidence to the Tribunal is that the relationship changed after a few weeks of living with her husband while her oral evidence to the Tribunal is that the relationship was very poor from day one and she returned to her mother’s home after a week.
When questioned about this discrepancy, the applicant explained to the Tribunal that she may have forgotten and she tried not to disclose the information because of the threats. The Tribunal does not accept that explanation because the inconsistent information is contained in the two submissions the applicant made to the Tribunal and not the information the applicant may have provided to her mother or others in the community. The Tribunal does not accept that either [in] August 2019 when the applicant provided a written submission to the Tribunal, or [later in] August 2019 when she presented oral evidence, the applicant felt threatened by her husband. The Tribunal also does not accept that if the applicant’s evidence was truthful, she would ‘forget’ such matters. This discrepancy indicates to the Tribunal that the applicant is not being truthful about the circumstances of her relationship with her husband.
In her post-hearing submission to the Tribunal the applicant states that she lived with her husband for a few weeks and then the abuse began. The applicant states that his attitude changed from the first night as a married couple, he was aggressive to her from the first day and the violence started after a few weeks. The Tribunal is mindful that this appears to be inconsistent with the applicant’s written evidence of [early] August 2019 when she stated the relationship changed after a few weeks, as well as her response to the NOICC which fails to refer to any abuse or violence.

The Tribunal has formed the view that the applicant’s evidence has not been consistent. In her written response to the NOICC the applicant made no mention about the circumstances of her life with her husband, the threats and abuse. In her response to the NOICC the applicant stated that she would experience hardship if returned to Syria because her in-laws are elderly and unwell and cannot support her, and because her husband cannot work. There is no suggestion whatsoever that she would be subjected to harm from her husband or parents-in-law and there is no mention of the harm and abuse to which the applicant now refers. These matters appear to be a recent invention by the applicant.
The Tribunal also notes that in her written submission to the Tribunal, the applicant stated that the relationship changed a few weeks after she lived with her husband. In her oral evidence to the Tribunal the applicant stated that the relationship was bad from the very first day and she returned to her mother’s home after a week. Such inconsistencies also suggest that the applicant has not been truthful in her evidence.
The applicant told the Tribunal that she had not stayed at the husband’s house constantly. She ran away to her mother’s house but he would forcibly bring her back. The applicant states that her mother did not know about the registration of the marriage but had to put up with her living with her husband because of the threat to her sister and also to her mother. The Tribunal asked the applicant how it could have been possible for her husband or his brother to take her sister without her wish or consent. The applicant said that they are Muslims and terrorists and could have done anything they wanted. The Tribunal finds that evidence unpersuasive. The Tribunal does not consider that all the events the applicant suggests could have happened simply because her husband was a Muslim or a terrorist as the applicant suggests. The Tribunal is also mindful that in her own case, her husband has not kidnapped her as she claims he had threatened to do with her sister. The applicant’s evidence is that there was a period of courtship, she was convinced by him and thought she was in love and she made the decision to run away with him. He had also gone to the trouble of arranging the formal marriage. In the Tribunal’s view, that is not consistent with the applicant’s claim that her husband could have done anything he wanted because of his circumstances or connections. The Tribunal finds the applicant’s evidence unpersuasive and is not satisfied the applicant is truthful in her claims.
The Tribunal also notes that the applicant’s claims have escalated with time. She made no mention of the abusive relationship in her written response to the NOICC. She made some reference to it in her written submission to the Tribunal and considerably more information has been provided in her oral evidence to the Tribunal. The Tribunal is of the view that if that evidence was truthful, it would have been mentioned much earlier, while the escalation of the claims, and the fact that many of the claims were raised for the first time by the applicant in her oral evidence to the Tribunal, as well as certain inconsistencies in evidence, suggest to the Tribunal that the applicant has not been truthful in her evidence. The Tribunal has formed the view that the applicant is not a credible person.
The applicant claims that she was traumatised by her experience and her memory is poor. The Tribunal is mindful that this claim was raised for the first time when the Tribunal put its concerns about credibility of the applicant’s evidence to her. It is not supported by probative evidence, such as medical reports. The Tribunal does not accept that the applicant’s memory is poor and that any inconsistencies in her evidence are caused by problems with her memory or any other health issues.
The applicant also confirmed that she included the marriage certificate in her daughter’s visa application, even though she now claims the marriage was invalid. The applicant said that her lawyer told her to obtain that document and she was influenced by her lawyer. The applicant appears to suggest that even though she believed the marriage not to be valid, and the marriage certificate not to be a genuine document, she included that document in her daughter’s visa application in order to bring her daughter to Australia. That supports the Tribunal’s view that the applicant is willing to provide untruthful information to the Department in order to achieve a desired outcome. The Tribunal is unpersuaded by her evidence that the applicant was ‘pushed’ by her legal representative. Ultimately, the content of any application is the matter for the applicant. The applicant states that she would not voluntarily provide bogus documents or mislead but she thought it was the quickest way to get her daughter to Australia and complied with her lawyer’s request. The applicant’s statement suggests that even though she claims she is against the provision of false information or bogus documents, she is willing to do that if it meets her needs.
The applicant told the Tribunal that she had not informed the Department about the changes in the circumstances because she and her family were threatened by her husband and she was fearful of him. She said that her husband threatened her not to tell anyone about the marriage. The applicant could not explain how her husband would find out if she told the Department about the marriage. The applicant suggested that her husband did not want to let her go unless she brought him to Australia as well and threatened to harm her and her family if she disclosed the marriage and the nature of their relationship. The applicant told the Tribunal that the only reason she did not inform the Department about the marriage was because she was threatened by her husband and there were no other reasons. In her written submission of [August] 2019 the applicant also stated that she was afraid to inform the Department about the child as that might put her life and family at risk and she did not consider her relationship with her husband to be one of consent and love. She claims she was afraid of her husband. However, the applicant provided an entirely different explanation in her written response to the NOICC of [December] 2017. In that statement, the applicant said that she did not understand the forms and was not aware of her obligations to inform. When this discrepancy was put to her, the applicant explained to the Tribunal that the lawyer did not give her the opportunity to explain her situation. As noted above, the Tribunal does not accept her evidence. As the applicant provided a detailed written response to the NOICC, the Tribunal does not accept that the applicant was not given the opportunity to express herself. The Tribunal also notes that the applicant did expressly provide an explanation why the information about the changes in circumstances was not given to the Department, stating that she did not understand that she had an obligation to inform. That is, the applicant was asked to provide an explanation by her lawyer and did offer an explanation, so it is not correct to state that she was not given the opportunity to explain. The issue is that the explanation given in response to the NOICC is entirely inconsistent with the explanation the applicant has now given to the Tribunal.
The applicant also suggested to the Tribunal that maybe her lawyer only provided a brief summary of what she told them. Again, the issue here is not with the lack of detail but the fact that two entirely different explanations have been offered. The Tribunal also notes that the statement that constitutes the written response to the NOICC is signed by the applicant and had been translated to her. In the Tribunal’s view, if the applicant believed the statement to be inadequate or to contain incorrect information, she had the opportunity to correct that statement or add more information. The applicant then told the Tribunal that the statement was not read to her. The Tribunal does not accept that evidence as the statement contains the interpreter’s certificate which shows that it was read to the applicant in Arabic before she signed it. The Tribunal has formed the view that the applicant has been untruthful in her evidence to the Tribunal.
The applicant told the Tribunal that her daughter was born in [2016]. The applicant admits that she did not inform the Department about the birth of her daughter. She told the Tribunal that she has not informed the Department about the birth of her daughter before she came to Australia because she was scared for herself and her daughter. The applicant told the Tribunal that she warned her mother not to inform the Department because she was fearful of her husband. That explanation is also entirely inconsistent with the applicant’s evidence in response to the NOICC. In the statement [in] December 2017 the applicant stated that her mother tried to make contact with the Australian embassy many times in early 2016 but could not get through. Either the applicant or her mother attempted to contact the Department to inform about the changes in the applicant’s circumstances, or the applicant told her mother not to make such contact because she was fearful. The applicant then said that her mother made contact more than 15 times to enquire about the progress of their case and not to inform about her circumstances. This also contradicts entirely her evidence in the NOICC when the applicant expressly stated that the mother’s contact was to inform about the changes in her circumstances and that her mother cannot remember making any contact about the processing of the application. Again, the Tribunal finds that the applicant has not been truthful in her evidence and that she is not a person of credibility. The Tribunal has formed the view that the applicant has fabricated her evidence to the Tribunal because she determined it would be more beneficial to her case.
The applicant told the Tribunal that the marriage contract was ‘manufactured’ and that the marriage was not registered. She claims that the marriage certificate contains incorrect information because it states she was pregnant at the time of marriage but that was not true. There is nothing to support the applicant’s evidence that the marriage has not been registered or that it is not valid. There is nothing to support the applicant’s claim that the marriage contract is not legal or that it was done in a corrupt way. There is no evidence that it would not be recognised under the local laws. For example, the applicant had the opportunity to contact the local authorities to establish the validity of the marriage or the existence of its registration and it does not appear that she has done that. The Tribunal also places weight on the fact that in her written statement dated [in] December 2017 in response to the NOICC, the applicant made no claim that the marriage was invalid. She refers to the marriage not being socially acceptable and stated that the marriage occurred in the Islamic Court and that it was registered, albeit that the relationship was backdated. There is no suggestion in that submission that the marriage was invalid.
In her post-hearing written submission to the Tribunal the applicant confirms that the marriage was legally valid and genuine but she considers it ‘a piece of paper’ and did not consider this to be a marriage. For the reasons stated elsewhere, the Tribunal has formed the view that the applicant has been entirely untruthful in her evidence to the Tribunal. However, even if the Tribunal were to accept her claims (which it does not) and even if the applicant did not believe the marriage to be a loving one, that is not an issue for the purpose of s.104. The applicant appears to concede that she was married to another person in a marriage that was legally recognised. That marriage signified a change in circumstances which led to the obligations under s.104.
The Tribunal has formed the view that the applicant is not a credible witness and that she is willing to fabricate evidence to support her case. The Tribunal has formed the view that the applicant’s evidence to the Tribunal was untruthful. The Tribunal does not accept the applicant’s claim that the marriage was not valid or not recognised under the local laws. The Tribunal has formed the view that the applicant has also fabricated this claim, which is not supported by any probative evidence and was not made in response to the NOICC.
The Tribunal has formed the view that the applicant is not a credible witness. The Tribunal does not accept the applicant’s evidence that the marriage was not valid. The Tribunal finds that the marriage certificate represents the applicant’s spousal relationship with the father of her children. The Tribunal finds, having regard to the marriage certificate, that the applicant’s relationship with her husband started no later than [in] 2015 when the marriage was registered. While the applicant appears to suggest that the marriage process did not follow the legal requirements, it is not apparent that the marriage was invalid. The fact that the marriage was not a happy one (and the Tribunal does not necessarily accept the applicant’s evidence in that regard), it does not affect the existence of such marriage.
The Tribunal finds that the applicant entered into a relationship with another person. This happened before the applicant was granted her visa and before she was immigration cleared. The applicant stated on the application forms that she was never married. The Tribunal finds that by [the time of her marriage in] 2015 the applicant’s circumstances changed so that an answer to a question on her application form became incorrect in the new circumstances. The Tribunal has rejected the applicant’s evidence that the marriage was invalid or that the relationship was not that of spouses. The Tribunal has formed the view that the applicant has fabricated such evidence. The Tribunal finds that the applicant failed, as soon as practicable, to inform an officer in writing of the new circumstances and of the correct answer. The Tribunal finds that the applicant did not comply with s.104 of the Act in the way described in the s.107 notice.
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).
Should the visa be cancelled?
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 Migration Regulations 1994 (the Regulations). Briefly, they are:
The correct information
The correct information is that before she was granted the visa and before she was immigration cleared, the applicant formed a relationship with her partner and she married him in [2015]. The couple’s child was born in [2016]. The applicant’s circumstances changed as she was in a married relationship and had a minor child from that relationship.
The content of the genuine document (if any)
This is not relevant in this case.
Whether the decision to grant a visa or immigration clear the visa holder was based, wholly or partly, on incorrect information or a bogus document
The applicant was included in the application made by her mother as a member of the family unit or a member of the immediate family. Regulation 1.12 provides a definition of the term ‘member of the family unit’, while the term ‘member of the immediate family’ is defined at r.1.12AA of the Regulations. Relevantly, both refer to a dependent child. The definition of dependence includes an assessment of financial reliance for shelter, food and clothing.
By the time of decision, the applicant was married to another person and had a child. Although the applicant now claims she was living intermittently with her husband and also with her mother, the Tribunal has formed the view that the applicant has not given a truthful account about the nature of her relationship with her husband to the Tribunal. In any case, if it was known that the applicant was married and was spending at least some time with her husband and at his home, this would have been highly relevant to the assessment of her dependency on her mother.
The applicant submits in her response to the NOICC that she would have been eligible for the visa in her own right and she refers to the persecution she had suffered in Iraq. However, the applicant did not make the application for the visa in her own right. She made the application on the basis of being a member of the family unit of her mother. It is not necessary for this Tribunal to determine whether the applicant would have been granted the visa if she made a different application. The Tribunal’s assessment must be in relation to the application actually made and not something that could have been – but was not – done.
The Tribunal finds that the decision to grant the visa was based, in part, on incorrect information.
The circumstances in which the non-compliance occurred
These are outlined above. Essentially, the applicant claims in her submission to the delegate that she was unaware of her obligations and was in any case, unable to contact the Department. For the reasons set out above, the Tribunal does not accept these claims. The Tribunal has formed the view that by signing the forms, the applicant was informed of the relevant obligations and should have been aware of her obligation to inform about changes in her circumstances. The Tribunal also rejects the applicant’s evidence that she was unable to make contact with the Department, particularly as she was required to do so in writing. The Tribunal does not accept the applicant’s claim that the breach was unintentional.
The Tribunal has also considered the applicant’s evidence to the Tribunal which, as noted above, was substantially different to her evidence to the delegate. In her written submission of [August] 2019 the applicant claims she ran away with her husband on promise of a better life but the relationship soon became abusive and she was subjected to physical, emotional and psychological violence. The applicant states that she tried to inform the Department about the birth of her child but failed to make contact with the Department. She states she did not inform the Department about the marriage because she was seduced by her husband but later realised that he would never offer her protection and safety, and she could not live away from her mother and sister and was afraid of being left behind in Syria. The applicant states that she did not intentionally hide the information but did not consider him to be her partner, husband or boyfriend and stayed with him because he had power and control over her; she did not think this was the relationship the Department had to be informed about. The Tribunal does not accept that argument. The applicant explains that the marriage was registered in court and even though she claims all the formalities had not been adhered to, the applicant has not established that the marriage was not valid. She was living with her husband and his family. Even if the applicant’s claims were accepted (and for the reasons stated elsewhere, the Tribunal has formed the view that the claims to the Tribunal had been fabricated), the Tribunal finds that a marriage that is an unhappy one, or even one which involves violence, does not become an invalid marriage simply because the applicant wished she did not have that relationship or because she was disappointed with it. The nature of the relationship does not affect its validity, nor the applicant’s obligation to inform about the changes in her circumstances. It was not for the applicant to determine what kinds of relationships need to be reported and which could be ignored.

The applicant also states that she could not make contact with the Department. This appears to be contrary to the information in the primary decision record which indicates that the applicant’s family had made inquiries about the progress of the application and the Tribunal has no reason to believe that details of such contact would be inaccurate or incorrect. Having made contact with the Department about the progress of the application, it is unclear why the applicant could not have contacted the Department about the changes in her circumstances. In any case, the Tribunal notes that the obligation under s.104 is to inform the Minister in writing. Even if the applicant could not have made contact with the Department by other means, the Tribunal is not satisfied that she was unable to make contact in writing.
The applicant also told the Tribunal that she did not make contact with the Department because she was fearful and threatened by her husband and his family and that her mother and sister were also threatened. The Tribunal has formed the view that the applicant has been untruthful in that evidence, given that it contradicts the other statements made by the applicant earlier and also the lateness of that submission.
The present circumstances of the visa holder
The applicant’s mother and sister reside in Australia and she has an Australian citizen child. She has sponsored her daughter for a visa and told the Tribunal that she was unaware of the outcome of that application but believed her daughter’s visa was ‘cancelled’.
The applicant provided to the Tribunal a number of medical reports relating to her mother. There is also a report indicating that [Ms A] has been suffering from PTSD with severe depression and anxiety. The Tribunal accepts that evidence.
The applicant told the Tribunal that since her visa has been cancelled, she cannot work and cannot financially support her child and this is affecting her emotionally. The applicant confirmed that she has no medical evidence relating to her herself because she claims she cannot afford to see a doctor. She receives Child Support payments from Centrelink and her family is providing her with accommodation.
The applicant told the Tribunal that she cares about her children and Australia is a better environment for her children. She states that she is anxious and worried because she does not know what is happening with her daughter. She has lost her hope and life and everything.
The subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act
For the reasons stated above, the Tribunal has formed the view that the applicant had provided untruthful information to the Tribunal about the circumstances of her relationship and the reasons she failed to comply with s.104. The Tribunal finds that the applicant gave incorrect answers, contrary to the requirements of s.101 of the Act.
Any other instances of non-compliance by the visa holder known to the Minister
There are no known other instances of non-compliance.
The time that has elapsed since the non-compliance
The applicant was immigration cleared upon entry to Australia in December 2016. The obligation under s.104 continues to exist until immigration clearance. Less than three years passed since the non-compliance. The Tribunal does not consider this to be a significant period.
Any breaches of the law since the non-compliance and the seriousness of those breaches
There are no known breaches of the law.
Any contribution made by the holder to the community
The applicant told the Tribunal that she was willing to study and work and contribute to the community. She referred to her past study of English and past employment. The applicant does not claim she has made any contribution to the community and there is no evidence of any contribution being made.
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 there are mandatory legal consequences
If the applicant’s visa is cancelled and unless she is granted another visa, the applicant will be an unlawful non-citizen and may be detained. There is no suggestion that she will be detained indefinitely. The Tribunal acknowledges that unless the applicant is granted another visa, she may be subject to possible removal from Australia and she may be subject to an exclusion period in relation to some future visa applications. There are no provisions in the Act which prevent the applicant from making a valid visa application without the Minister’s intervention although there are limited types of visas for which the applicant may be able to apply onshore. The applicant may also lose some of the entitlements that she may have acquired as a permanent resident of Australia. If not the holder of a permanent visa, the applicant may be unable to sponsor her daughter for a visa. The Tribunal acknowledges that the mandatory legal consequences may result in some hardship to the applicant.
Whether there would be consequential cancellations under s.140
There are no persons who would be affected by the consequential cancellation. The applicant’s child is an Australian citizen.
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
The applicant told the Tribunal that she would be harmed and tortured or killed by her husband’s family. She said that they are “part of the system” and extremists and can do whatever they want. In her submission to the Tribunal [in] August 2019 the applicant states that she cannot return to Iraq or Syria and this would be the end of her life. She has no family in these countries, she does not know where her father is or if he is still alive, she has no protection or safety or security as a single woman with a child and has not lived in Iraq since she was [age]. She claims she fears for her life from her husband and his family and they could easily find her if she returns.
For the reasons stated above, the Tribunal has formed the view that the applicant has not been truthful about the circumstances of her relationship with her husband. The Tribunal considers her written response to the NOICC to be more truthful when she claimed that the parents-in-law cannot support them for a long period due to being elderly and unwell and that her husband cannot work due to fear of being found by the military. The Tribunal is of the view that the more recent claims of abuse and of her husband being an all-powerful Muslim extremist with links to the authorities to be a recent invention. Having found that the applicant has fabricated her claims concerning abuse from her husband and his family, the Tribunal is not satisfied that the applicant will experience such abuse from her husband or his family.
The applicant refers to the general situation in Iraq and Syria and has outlined the persecution she would suffer in Iraq. She told the Tribunal that although she is the holder of an Iraqi passport, she would return to Syria because she is more familiar with that country. She does not want to expose her children to life in Iraq.
The Tribunal notes that the applicant’s visa was cancelled in January 2018, more than 18 months earlier. In that time, the applicant has not made an application for a protection visa, which was available to her if she was genuinely fearful of any harm in her home country. The applicant claims she was appealing the cancellation of her visa but one process does not preclude the other. In the Tribunal’s view, if the applicant was genuinely fearful of future harm, she could have taken steps to seek protection in Australia, particularly after the cancellation of her permanent visa.
The Tribunal has found the applicant’s claims to be vague and the applicant to be lacking credibility. The claims raised by the applicant are vague and lack detail. The Tribunal is not satisfied on the evidence before it that the applicant would be harmed if she is returned to her country and the Tribunal does not consider that Australia’s protection obligations would be engaged in this case.
With respect to the best interests of the children, the applicant states that she is affected by the separation from her daughter, and she cannot look after the daughter and provide for her financially. However, the Tribunal notes that the daughter has never been granted an Australian visa. While the applicant may no longer act as a sponsor for her daughter if her visa is cancelled, there could have been no guarantee that the daughter would be granted the visa. The applicant states that as her visa has been cancelled, she has been anxious and in fear, and cannot lead a normal life and care for her daughter. However, as the daughter has never been granted a visa and has never travelled to Australia, the Tribunal is not satisfied that these matters are a consequence of the applicant’s visa being cancelled. Nevertheless, the Tribunal accepts that the cancellation of the applicant’s visa would preclude the applicant from acting as a sponsor for her daughter and is likely to result in the daughter not being granted an Australian visa in the future.
The Tribunal accepts that the applicant is the primary carer for her son, who is an Australian citizen. The applicant claims that the cancellation of her visa has affected her, she cannot lead a normal life and that has also affected her interactions with her son. The Tribunal accepts that it is in the best interests of the child to be with his mother and, given that the child was born in Australia and is an Australian citizen, it may be in the child’s best interests to remain in Australia. The Tribunal accepts that it is in the best interests of the applicant’s child that the visa is not cancelled.
Any other relevant matters, including the degree of hardship that may be caused to the visa holder and any family members
In her written evidence to the delegate, the applicant refers to the poor situation in Syria and the disappearance of her father. She claims that the situation in Syria and Iraq is not safe.
The applicant referred to her mother’s medical condition and has provided a number of medical reports. The Tribunal accepts that evidence.
The applicant states that she has nothing to go back to and cannot support herself in her home country. In her response to the NOICC the applicant also indicated that her parents in law cannot support her due to their old age. She states that she cannot protect the children and cannot sponsor her daughter in Australia. The Tribunal accepts that the cancellation of the visa would cause considerable hardship to the applicant, including financial hardship.
As noted above, the applicant claims that she would have been entitled to the visa, even if her marriage was known, because of her vulnerable status and her circumstances. The Tribunal has formed the view that the applicant has not been truthful in her claims concerning her circumstances prior to her arrival in Australia and, having found the applicant not to be a credible witness, the Tribunal does not accept her claims. The Tribunal is not satisfied on the evidence before it that the applicant would have been entitled to the visa, even if the correct information was known. The Tribunal is mindful that the applicant may have an option of seeking other visas in the future where such claims could be assessed. For the purpose of this review, these claims do not persuade the Tribunal that the discretion should be exercised in the favour of the applicant.
The Tribunal has considered the totality of the applicant’s circumstances. The Tribunal has found that the applicant failed to inform the Minister in writing about the changes in her circumstances concerning her marriage and the birth of her daughter and that she failed to comply with s.104 of the Act. The Tribunal has found that there are grounds for cancelling her visa.
The Tribunal has formed the view that considerable hardship may be caused by the cancellation. The applicant has now lived in Australia for close to three years, and had previously been employed and engaged in study. Her mother and sister live in Australia. Her son is an Australian citizen. The applicant has, to a considerable extent, settled in Australia and has strong family connections in Australia. The Tribunal accepts that the applicant’s mother is in poor health. The Tribunal is prepared to accept that the applicant could experience considerable hardship if returned to Iraq or Syria due to the general situation in these countries, limited employment and other opportunities. The Tribunal has formed the view that it would not be in the best interests of the applicant’s child if the visa is cancelled and the Tribunal acknowledges that it is a primary consideration. There are also strong humanitarian reasons why the visa should not be cancelled.
Against these considerations, the Tribunal has formed the view that the breach was significant. If the correct information was known, it was highly relevant to the assessment of the applicant’s eligibility for the visa. The Tribunal has formed the view that the breach was deliberate to enable the applicant to be included in her mother’s application and that the applicant had intentionally misled the Department about her marital status and the birth of her daughter during the processing of the application so as to be granted the visa. The Tribunal also places weight on the subsequent provision of incorrect answers in her evidence to the Tribunal. The applicant’s continuous lack of candour in dealing with the authorities shows her disregard for the law. In the Tribunal’s view, such matters outweigh other considerations.
Conclusion
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
The Tribunal affirms the decision to cancel the applicant’s Subclass 204 (Woman at Risk) visa.
Kira Raif
Senior Member

[2019] AATA 6072

23 August 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice