1802560 (Migration)
[2018] AATA 3694
•2 August 2018
1802560 (Migration) [2018] AATA 3694 (2 August 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1802560
MEMBER:Christopher Smolicz
DATE:2 August 2018
PLACE OF DECISION: Adelaide
DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 202 (Global Special Humanitarian) visa.
Statement made on 02 August 2018 at 4:33pm
CATCHWORDS
Migration – Cancellation – Refugee and Humanitarian (Class XB) visa – Subclass 202 (Global Special Humanitarian) – Incorrect information – Relationship status – Other names – Place of birth and nationality – Claimed never to be married – Arrangement for cultural reasons – Misplaced divorce certificate – Abusive relationship – Best interests of child and mother – Lack of family support – Decision under review set asideLEGISLATION
Migration Act 1958 (Cth), ss 101, 107, 109
Migration Regulations 1994 (Cth), r 2.41CASES
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 202 (Global Special Humanitarian) visa under s.109(1) of the Migration Act 1958 (the Act).
The delegate found the applicant did not comply with s.101(b) of the Act and cancelled the visa on the basis that she had provided incorrect answers when applying for her Offshore Humanitarian Subclass 202 visa.
The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
The applicant appeared before the Tribunal on 25 July 2018 to give evidence and present arguments.
The applicant was represented in relation to the review by her registered migration agent.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.
CONSIDERATION OF CLAIMS AND EVIDENCE
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 Immigration of any incorrect information of which they become aware and of any relevant changes in circumstances.
The exercise of the cancellation power under s.109 of the Act is conditional on the Minister issuing a valid notice to the visa holder under s.107 of the Act, providing particulars of the alleged non-compliance. Where a notice is issued that does not comply with the requirements in s.107, the power to cancel the visa does not arise. Extracts of the Act relevant to this case are attached to this decision.
Background
On 1 July 2010 the applicant’s father ([Mr A]) lodged an application for a Subclass 202 Offshore Humanitarian visa (Form 842).[1] [Mr A] was sponsored (proposed) for the visa by [his] son, an Australian citizen.
[1] The Subclass 202 visa is applicable to offshore applicants. An applicant must lodge an Application for Offshore Humanitarian Visa (Form 842) and be included (proposed) in a Refugee and Special Humanitarian Proposal (Form 681) which must to be lodged by an Australian citizen or permanent resident.
The applicant was included in the application as a dependant family member of [Mr A]. The applicant claims to be born [in] Jaghori, Afghanistan. She claimed that she was never to be married or in a de facto relationship.
The Subclass 202 visa was granted on 22 February 2014 and the applicant arrived in Australia on 18 April 2014.
On 13 June 2017 the Department issued the applicant with a Notice of Intention to Consider Cancellation (the notice) of her Refugee and Humanitarian (Class XB) Global Special Humanitarian (subclass 202) visa.
Did the notice comply with the requirements in s.107?
In the present case, there is a question as to whether the notice issued by the Minister’s delegate complied with s.107. The Tribunal is satisfied that the delegate had reached the necessary state of mind to engage s.107 and that the notice issued under s.107 complied with the statutory requirements.
Was there non-compliance as described in the s.107 notice?
The issue before the Tribunal is whether there was non-compliance in the way described in the s.107 notice, being the manner particularised in the notice, and if so, whether the visa should be cancelled. The notice alleged the applicant did not comply with s.101(b) of the Act and because she provided incorrect information about her relationship status, her nationality and her name when she applied for the Subclass 202 visa. Specifically the notice alleges the following three instances of non-compliance:
·That the applicant had incorrectly stated that she had never been married or been in a de facto relationship (Form 842 Q3 and Form 80 Q2))
·That the applicant incorrectly stated that her name was [Applicant’s name] and that she had not been known by any other names (From 842 Q3 and Form 80 Q8)
·That the applicant incorrectly stated that her place of birth was Jaghori, Afghanistan and that she was an Afghan citizen (Form 842 Q3)
The applicant also completed a statutory declaration dated 14 February 2013 in which she incorrectly declared:
I am single
I am not married or in a de facto relationship
I have not been in a marital relationship or in a de facto relationship before.On 14 February 2013 the applicant was interviewed in Islamabad by an officer from [an] office. During the interview the applicant incorrectly stated that she had never been married or engaged.
The notice claims that according to the subsequent information received by the Department, the answers provided by the applicant on her Refugee and Humanitarian visa application were incorrect.
In particular the notice states that on 15 April 2016 the applicant returned to Australia after three months overseas. On arrival she was interviewed by a Departmental officer at [the] Airport. During the interview she stated:
·She had got married in Pakistan to [Mr B]
·It was her first marriage
·She was born in Afghanistan.
The officer asked the applicant if she has ever been known by any other names and she replied yes ‘[Name 1] it means [deleted]’.
The officer asked the applicant if the name ‘[Mr C]’ meant anything to her and initially the applicant said nothing but then changed her answer to ‘he was engaged to me. We did not marry. It did not work. There was no understanding. No love. Happened six to seven years ago’. She stated that it happened prior to applying for the Australian visa.
The notice states that ‘the Department received information’ indicating that the applicant’s correct name is [variation of Name 1] and that she is a Pakistani national. [2] The Department has observed the following documents:
· Pakistani Identity Card issued to [variation of Name 1] whose father is recorded as [variation of Mr A].
· Pakistani Passport issued to [Name 1] whose father is recorded as [variation of Mr A].
[2] The Department placed a s.375A certificate over the information on the grounds that it would be contrary to public interest to release the information which was provided in confidence. The Tribunal provided the applicant with a copy of the certificate and discussed the validity of certificate with the applicant at the hearing. The Tribunal notes that relevant documents which are subject to the certificate are referred to in the delegates’ decision and are therefore known to the applicant.
The notice claims that the above documents have photographs which appear to match the photographs of the applicant in her possession when she returned to Australia on 15 April 2016.
The notice states that the information it has received indicates that she married [Mr C] (also spelt [as variation]) and she divorced him [in] August 2014.
The Department has evidence of a Pakistani Marriage document (Nikah Nama) which records [variation of Name 1], daughter of [Mr A], having married [Mr C] [in] April 2010.
The Department has evidence of a Pakistan divorce document which records that [in] August 2014 a religious divorce was performed between [Name 1] and [Mr C].
The notice claims that based on the above evidence the applicant’s responses in Forms 842 and 80 are incorrect because information provided to the Department indicates:
· The applicant is [Name 1], born in Quetta, Pakistan, and the daughter of [Mr A].
· [In] April 2010 she married [Mr C] (also known as [variation of Mr C]).
· On 1 July 2010 she lodged an application for a Refugee and Humanitarian visa in which she claimed she was never married.
· On 25 February 2014 she was granted a Refugee and Humanitarian visa.
· On 24 August 2014 she divorced [Mr C].
· The applicant was therefore married at the time she lodged the application for a Refugee and Humanitarian visa and was still married at the time she was granted the visa.
The applicant provided a statutory declaration dated 22 June 2017 in which she denied that she provided incorrect information as detailed in the notice. The applicant’s claims can be summarised as follows.
The applicant claims she is a Shia, Hazara Muslim. She was born in Jaghori Afghanistan. She left Afghanistan with her family in 2003 and they moved to Pakistan. She has never applied for or been granted any status in Pakistan. She was residing in Pakistan unlawfully. She lived as a single woman in her father’s household in a very traditional society where women did not have any control over their future or their lives.
In 2010 a man called [Mr C] proposed to her. The proposal was arranged through a friend of her father’s. [Mr C] was not known to her family. He had come to Pakistan from [Country 1] to find a wife. Her parents put pressure on her and urged her to accept the proposal so that she could have a better life.
She did not want to marry [Mr C]. She continued to face pressure from her parents and they suggested that she enter into a temporary arrangement ‘Nikkah’ with him in order to get to know him better. Her parents promised not to tell anyone about the arrangement. She agreed to the arrangement in front of an imam. No certificate was issued. She did not view this arrangement as a marriage or an engagement. She views a marriage as having taken place when a person leaves their parent’s home and starts living with the husband.
She spent some time getting to know [Mr C] and he gave her the nickname ‘[variation of Name 1]’ and occasionally called her ‘[variation of Name 1] which means [deleted]. They did not live together or consummate the relationship.
She declared that [Mr C] lodged an application for visa for her to migrate to [Country 1]. He did this without her knowledge or consent using her true Afghan nationality. The application was not granted and he lodged a second application in a false name [Name 1] claiming she was Pakistani. The application was not successful. [Mr C] paid money to an agent and obtained a false passport and national identity card for her. She also understands that he obtained a false divorce certificate in Pakistan.
After a few months she decided not to proceed any further with the relationship. She told her parents and they got angry. She told [Mr C] and he was angry. The applicant claims this occurred before she lodged the visa application in July 2010.
The applicant claims that when she lodged the application she was truthful by saying that she had never been married or in a de facto relationship. She claims that she only entered into the arrangement for cultural reasons because it would not have been acceptable in their society for her to have spent time alone.
The applicant claims that she had nothing to do with [Mr C] until 2014 when he travelled to Australia and started to threaten and blackmail her.
The applicant claims that [Mr C] told her that he had Nikkah Nama with her and that she could not marry another person unless he agreed to divorce her. He would only agree to the divorce if she paid him $50,000.
She could not afford to pay all the money but agreed to pay some money and enter into the divorce in the hope that he would leave her alone. She gave him about $4,600, jewellery and a laptop and took part in a religious divorce in Australia. She obtained a divorce certificate but claims to have misplaced it.
Tribunal hearing
The Tribunal questioned the applicant about her relationship with [Mr C] at the hearing. The Tribunal finds the applicant was not forthcoming about her relationship with [Mr C]. The Tribunal found that aspects of her evidence were lacking in credibility. The Tribunal’s concerns are discussed below.
The applicant said she knew little about [Mr C] and could not provide any personal information. The applicant claims that she only saw him in Australia on one occasion in August 2014 when they divorced. She does not know where he stayed. She had never met his family. She claims he may have come to Australia before she arrived to try and persuade her brother that she should marry him ([Mr C]). The Tribunal found the applicant’s evidence vague and her answers evasive. The Tribunal told the applicant that the Department’s records confirm that [Mr C] had travelled to Australia on four occasions.
The Tribunal does not find it credible that the applicant would take part in a divorce in Australia when she claims that she was never married [Mr C]. The Tribunal does not find it credible that she would misplace the divorce certificate when it was a document which she claims freed her from [Mr C].
When questioned at the hearing she claimed she knew nothing about the Pakistani passport or the Pakistani ID card in the name of [Name 1]. The Tribunal finds the applicant’s answers inconsistent with her statutory declaration. The Tribunal notes that the applicant conceded in her declaration that [Mr C] would refer to her as ‘[variation of Name 1]’. The Tribunal told the applicant that it found it difficult to accept that [Mr C] could arrange to obtain a false Pakistani passport and ID card without her knowledge. The Tribunal noted that false documents are costly and require planning and preparation. For example, the false passport and ID card contained the applicant’s photograph and according to the applicant’s declaration, were obtained specifically to facilitate her travel to [Country 1] with [Mr C]. The Tribunal notes that [Mr C’s] movement details confirm that he was born in Afghanistan and is [a Country 1] citizen.
The Tribunal has had regard to country information which confirms that document fraud is endemic in Pakistan and that the director of the National Database and Registration Authority (NDRA) of Pakistan indicated that foreigners use forged document such as birth certificates or educational certificates to obtain Computerised National Identity Cards (CNIC).[3] Country information referred to by the delegate confirms that in order to obtain a Pakistani passport a CNIC is required. In order to obtain a CNIC, applicants are required to attend a NDRA registration centre in their place of origin and have their photograph taken and provide their signature and an impression of their thumb print.
[3] CX744258517212: "PAK103606dotFE Pakistan Fraudulent documents 2008 to 2010", Immigration and Refugee Board of Canada, 24 November 2016, See also DFAT Country Information Report – Pakistan 1 September 2017 [5.43]-[5.45]
The Tribunal also notes that the Pakistani passport was issued in [2009] and the marriage certificate confirms they married in April 2010. The Tribunal finds that the purpose of obtaining the false Pakistani passport was to facilitate the applicants travel to [Country 1] with [Mr C] as his wife. The Tribunal finds that the applicant knew that [Mr C] obtained false Pakistani travel and identification documents to facilitate her travel to [Country 1] as his wife. Information on the Department’s file confirms that the [Country 1] Consulate refused the visa applicant for [Name 1].
The Tribunal finds that the applicant provided incorrect information in Forms 842 and 80 when she declared that she had never been married. The Tribunal finds that the applicant married [Mr C] in April 2010 using the false name of [Name 1]. The Tribunal also finds that the applicant provided false information when she declared in From 80 that she had not been known by any other name.
Tribunal finds, however, that the applicant did not provide incorrect information when she declared in Forms 842 and 80 that her name was [Applicant’s name] and that she was born in Jaghori, Afghanistan. The Tribunal makes this finding having regard to the following evidence.
The Tribunal questioned the applicant at the hearing about her place of birth and nationality. The applicant said that she was born in Afghanistan and was of Hazara ethnicity and a Shia Muslim.
Country information confirms that the Hazara are an ethnic group which are believed to have originally settled in Afghanistan’s central highlands after Mongol invasions in the 13th century. They are a mixture of eastern and western Eurasian peoples, which makes them visibly distinct from many other ethnic groups in Afghanistan and Pakistan. Hazaras are overwhelmingly Shia Muslims.[4]
[4] DFAT Thematic Report – Hazaras in Afghanistan and Pakistan 26 March 2014 p.3
The Tribunal notes that the hearing was conducted with the assistance of a Hazaragi interpreter. The Tribunal notes that the applicant’s facial features are consistent with those of the Hazara race.
The Tribunal finds that when the applicant arrived in Australia on 15 April 2016, officers at the airport took copies of the applicant’s current Afghanistan passport issued [in] 2015 and an expired Afghani passport both in the name of [Applicant’s name] containing the applicant’s photograph. The Tribunal also notes that the applicant travelled to Pakistan on a visa for the Republic of Pakistan in the name of [Applicant’s name] containing the applicant’s photograph. The officers also took copies of the applicant’s mother’s Afghanistan passport which states that she was born in Ghazni Province, Afghanistan.
The applicant’s father provided evidence in support of the Subclass 202 visa application claiming that he was a Hazara Shia Muslim born in Afghanistan. The Tribunal was also provided with two statutory declarations from members of the Hazara community in Australia confirming that they know the applicant’s family and come from the same village as the applicant in Afghanistan.
Country information confirms that there are estimated to be between 600,000 and 900,000 Hazaras living in Pakistan—less than 1 per cent of the population. Most live in and around the city of Quetta in Balochistan Province. Hazaras have been subject to frequent sectarian attacks in Quetta, generally by anti-Shia militant groups. Country information also confirms that Hazara arrivals from Afghanistan, are not be able to legally acquire Pakistani National Identity Cards (NICs), because they are citizens of Afghanistan and not Pakistan.[5]
[5] Ibid p.4-7
The Tribunal finds that the applicant’s Afghan passport reflects her true identity and nationality and that the applicant is an Afghan national and her name is [Applicant’s name].
For these reasons, the Tribunal finds that there was non-compliance with s.101(b) by the applicant in the way described in the s.107 notice.
Should the visa be cancelled?
As the Tribunal has decided that there was non-compliance in the way described in the notice given to the applicant under s.107 of the Act, it is necessary to consider whether the visa should be cancelled pursuant to s.109(1). Cancellation in this context is discretionary, as there are no mandatory cancellation circumstances prescribed under s.109(2).
In exercising this power, the Tribunal 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
· the content of the genuine document (if any)
· whether the decision to grant a visa or immigration clear the visa holder was based, wholly or partly, on incorrect information or a bogus document
· the circumstances in which the non-compliance occurred
· the present circumstances of the visa holder
· the subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act
· any other instances of non-compliance by the visa holder known to the Minister
· the time that has elapsed since the non-compliance
· any breaches of the law since the non-compliance and the seriousness of those breaches
· any contribution made by the holder to the community.
Whilst 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 Procedures Advice Manual (PAM3) ‘General visa cancellation powers’. This policy requires delegates to also have regard to matters such as whether the visa would have been granted if the correct information had been given, whether there are persons in Australia whose visa would, or may, be automatically cancelled under s.140 of the Act, and whether the visa cancellation may result in Australia breaching its international obligations.
The correct information in this case was that the applicant was in a relationship at the time she applied for the visa. The applicant was obliged to declare the relationship to the Department in her application.
The Tribunal finds that the decision to grant the visa was based partly on the incorrect information provided in the visa application. Had the applicant been forthcoming about her relationship with [Mr C], it may have been concluded that she did not meet the criteria for the grant of the visa. The Tribunal gives this weight in its consideration of whether to affirm or set aside the visa cancellation.
However, in relation to the circumstances in which the non-compliance occurred, the Tribunal also gives some weight to the precariousness of the applicant and her family’s situation at the time of the visa application.
Firstly, the Tribunal finds that the applicant’s conduct in providing incorrect information needs to be viewed in the context of the Afghan culture where deep-rooted discrimination against women remains endemic,[6] where forced marriages are pervasive[7] and where there it is virtually impossible for women to live alone. [8]
[6] US Department of State, 2015 Country Reports on Human Rights Practices - Afghanistan, 13 April 2016, UN General Assembly, The situation in Afghanistan: Resolution Adopted by the General[7] UN High Commissioner for Refugees (UNHCR), UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Afghanistan, 19 April 2016, HCR/EG/AFG/16/02, available at: p.60
[8] UK Border Agency 2011, Afghanistan: Country of Information Report, 11 October 2011, Pp. 153 -
Secondly, the Tribunal also finds that the applicant’s decision to provide incorrect information needs to be seen against the precarious nature of the applicant’s existence as an Afghan refugee in Pakistan where she had no ongoing right to reside.
The Tribunal accepts that the applicant lived as a single woman in her father’s household in a very traditional society where women do not have any control over their future or their lives. The Tribunal finds that the applicant was forced into an arranged marriage by her parents. The Tribunal finds that [Mr C] was considered a particularly suitable partner because he had [Country 1] citizenship which led the parents to believe that it would be in the applicant’s best interest to marry him.
The Tribunal accepts that the applicant disliked [Mr C] and wanted nothing to do with him but did not have a choice in the matter. Country information confirms that Afghan women who flee their homes due to abuse or threats of forced marriage are often themselves accused of vaguely defined or even undefined ‘moral crimes’.[9]
[9] UN High Commissioner for Refugees (UNHCR), UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Afghanistan, 19 April 2016, HCR/EG/AFG/16/02, available at: p.59 -61
The Tribunal finds that the applicant only entered into the relationship because it provided her with an opportunity to escape from Pakistan where she was living with no legal status as an Afghan refugee. DFAT has reported that unregistered Afghans may be arrested and deported at any time and that Pakistani officials regularly blame Afghan refugees for terrorist attacks.[10]
[10] CX246370: Conditions for asylum caseloads: Afghan refugees, Australia: Department of Foreign Affairs and Trade, 19 July 2010.
The Tribunal accepts the applicant’s evidence that [Mr C] tormented her and was a controlling individual who has subsequently tried to blackmail her when she travelled to Australia and ended the relationship.
The Tribunal finds that when the applicant’s Subclass 202 visa was approved the applicant was able to escape from Pakistan without [Mr C]’s assistance. The Tribunal finds that once the applicant was in Australia she obtained her independence and was in a position to end the relationship with [Mr C]. The Tribunal accepts that if the applicant had declared she was married she would not have been able to escape from her abusive relationship with [Mr C].
The present circumstances of the applicant are that she has now been resident in Australia for more than four years. Her mother, father and brothers are all in Australia. The applicant provides essential care to her parents, who speak little English. She married a Pakistan citizen ([Mr B]) in February 2016 and is seeking to sponsor him to Australia. The applicant and [Mr B] have had a child who is almost [age] years old. The child is an Australian citizen.
The Tribunal has been provided with a psychological report dated [in] July 2018. The report states that the applicant has undergone a clinical assessment which indicates she has suffered a significant depressive condition and high levels of stress and anxiety. She requires ongoing counselling and psychological intervention, and her mental health status needs to be assessed every six months. Country information referred to by the psychologist confirms that Afghanistan faces a high burden of mental health problems and present stressors and limited mental health services (Sayed D, 2011). The Tribunal accepts that the applicant would not have access to mental health services in Afghanistan. The Tribunal accepts that the prospect of visa cancellation has caused significant distress to the applicant.
In relation to the applicant’s subsequent behaviour concerning her obligations under Subdivision C of Division 3 of Part 2 of the Act, nothing adverse is known about the applicant's behavior concerning her obligations under the provisions.
There is no evidence before the Tribunal that the applicant has anything but a satisfactory record of compliance with the immigration laws of Australia. There is no evidence before the Tribunal of any other breaches of the law since the non-compliance.
It has been submitted that the applicant’s contributions to her family unit should be considered as contributions to the Australian community, as without her assistance, her parents would require additional assistance from the community and health series. The applicant is also the primary carer for her Australian citizen son. The applicant has undertaken study and successful completed a [course]. A variety of certificates associated with her studies have also been provided in her support.
The Tribunal has also considered other discretionary matters raised in PAM 3. The Tribunal notes the applicant is a citizen of Afghanistan, and should this visa be cancelled she may be returned there. The Tribunal has had regard to the DFAT Country Information Report – Afghanistan which advises:
DFAT assesses that women in Afghanistan face a moderate level of official discrimination, which is often exacerbated by very high levels of societal discrimination and a high risk of violence.[11]
[11] At [3.43], 18 September 2015
The report also expresses the view that unaccompanied women and children have difficulty resettling.[12] The Tribunal further notes the applicant’s ethnicity, Hazara, which the Tribunal accepts increases her risk of suffering discrimination and violence as a female Hazara without male support in Afghanistan.
[12] Ibid [5.20]
The Tribunal has taken into account the best interests of the applicant’s child, who is an Australian citizen. The Tribunal notes the delegate concluded the best interests of the child may be served if he could live in a family unit with his father and mother in Pakistan. The Tribunal agrees there is merit in that. However, for this family, the cancellation of the visa may not result in family reunification. The applicant is an Afghan citizen. Her husband is living in Pakistan. Were the applicant to be returned to Afghanistan, it would be to a country where she has no close relatives or support, and as noted above, may be unsafe for her. The Tribunal accepts travel to Pakistan could be unsafe for a woman and child on their own. Exacerbating the usual difficulties for a woman alone in Afghanistan, the Tribunal accepts this applicant is suffering significant mental health issues. The child is now nearly age [and] has spent his whole life in Australia, living with his mother and extended family here. The Tribunal finds that for the child, for reasons of safety, security and stability, his best interests will be served by him being able to continue to reside in Australia with his mother and extended family.
Conclusion
The Tribunal has weighed up the seriousness of the incorrect information provided by the applicant in relation to her Subclass 202 visa application. However, the Tribunal gives considerable weight to the present circumstances of the applicant, as a person suffering mental health issues and with an Australian citizen child, who has no close family to return to in her home country of Afghanistan. The Tribunal also gives considerable weight to the best interests of the child in this case, which the Tribunal concludes are to remain in Australia. The Tribunal does not condone the applicant's non-compliance, but it considers her health, lack of security in Afghanistan, and the best interests of her Australian citizen child, compel the Tribunal to a conclusion that the visa should not be cancelled.
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 not be cancelled.
DECISION
The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 202 (Global Special Humanitarian) visa.
Christopher Smolicz
MemberATTACHMENT – Migration Act 1958 (extracts)
5Interpretation
(1)In this Act, unless the contrary intention appears:
bogus document, in relation to a person, means a document that the Minister reasonably suspects is a document that:
(a) purports to have been, but was not, issued in respect of the person; or
(b) is counterfeit or has been altered by a person who does not have authority to do so; or
(c) was obtained because of a false or misleading statement, whether or not made knowingly.
97Interpretation
In this Subdivision:
application form, in relation to a non‑citizen, means a form on which a non‑citizen applies for a visa, being a form that regulations made for the purposes of section 46 allow to be used for making the application.
passenger card has the meaning given by subsection 506(2) and, for the purposes of section 115, includes any document provided for by regulations under paragraph 504(1)(c).
Note:Bogus document is defined in subsection 5(1).
98Completion of visa application
A non‑citizen who does not fill in his or her application form or passenger card is taken to do so if he or she causes it to be filled in or if it is otherwise filled in on his or her behalf.
99Information is answer
Any information that a non‑citizen gives or provides, causes to be given or provided, or that is given or provided on his or her behalf, to the Minister, an officer, an authorised system, a person or the Tribunal, or the Immigration Assessment authority, reviewing a decision under this Act in relation to the non‑citizen’s application for a visa is taken for the purposes of section 100, paragraphs 101(b) and 102(b) and sections 104 and 105 to be an answer to a question in the non‑citizen’s application form, whether the information is given or provided orally or in writing and whether at an interview or otherwise.
100Incorrect answers
For the purposes of this Subdivision, an answer to a question is incorrect even though the person who gave or provided the answer, or caused the answer to be given or provided, did not know that it was incorrect.
101Visa applications to be correct
A non‑citizen must fill in or complete his or her application form in such a way that:
(a)all questions on it are answered; and
(b)no incorrect answers are given or provided.
107Notice of incorrect applications
(1)If the Minister considers that the holder of a visa who has been immigration cleared (whether or not because of that visa) did not comply with section 101, 102, 103, 104 or 105 or with subsection (2) in a response to a notice under this section, the Minister may give the holder a notice:
(a) giving particulars of the possible non‑compliance; and
(b) stating that, within a period stated in the notice as mentioned in subsection (1A), the holder may give the Minister a written response to the notice that:
(i)if the holder disputes that there was non‑compliance:
(A)shows that there was compliance; and
(B)in case the Minister decides under section 108 that, in spite of the statement under sub‑subparagraph (A), there was non‑compliance—shows cause why the visa should not be cancelled; or
(ii)if the holder accepts that there was non‑compliance:
(A)give reasons for the non‑compliance; and
(B)shows cause why the visa should not be cancelled; and
(c) stating that the Minister will consider cancelling the visa:
(i)if the holder gives the Minister oral or written notice, within the period stated as mentioned in subsection (1A), that he or she will not give a written response—when that notice is given; or
(ii)if the holder gives the Minister a written response within that period—when the response is given; or
(iii)otherwise—at the end of that period; and
(d) setting out the effect of sections 108, 109, 111 and 112; and
(e) informing the holder that the holder’s obligations under section 104 or 105 are not affected by the notice under this section; and
(f) requiring the holder:
(i)to tell the Minister the address at which the holder is living; and
(ii)if the holder changes that address before the Minister notifies the holder of the Minister’s decision on whether there was non‑compliance by the holder—to tell the Minister the changed address.
(1A)The period to be stated in the notice under subsection (1) must be:
(a) in respect of the holder of a temporary visa—the period prescribed by the regulations or, if no period is prescribed, a reasonable period; or
(b) otherwise—14 days.
(1B)Regulations prescribing a period for the purposes of paragraph (1A)(a) may prescribe different periods and state when a particular period is to apply, which, without limiting the generality of the power, may be to:
(a) visas of a stated class; or
(b) visa holders in stated circumstances; or
(c) visa holders in a stated class of people (who may be visa holders in a particular place); or
(d) visa holders in a stated class of people (who may be visa holders in a particular place) in stated circumstances.
(2)If the visa holder responds to the notice, he or she must do so without making any incorrect statement.
108Decision about non‑compliance
The Minister is to:
(a)consider any response given by a visa holder in the way required by paragraph 107(1)(b); and
(b)decide whether there was non‑compliance by the visa holder in the way described in the notice.
109Cancellation of visa if information incorrect
(1)The Minister, after:
(a) deciding under section 108 that there was non‑compliance by the holder of a visa; and
(b) considering any response to the notice about the non‑compliance given in a way required by paragraph 107(1)(b); and
(c) having regard to any prescribed circumstances;
may cancel the visa.
(2)If the Minister may cancel a visa under subsection (1), the Minister must do so if there exist circumstances declared by the regulations to be circumstances in which a visa must be cancelled.
Assembly, 23 December 2014, A/RES/69/18, para. 45; US Department of Defense, Report on Progress Towards Security and Stability in Afghanistan, October 2014, p. 91; UN Human Rights Council, Report of the United Nations High Commissioner for Human Rights on the Situation of Human Rights in Afghanistan and on the Achievements of Technical Assistance in the Field of human rights in 2013, 10 January 2014, A/HRC/25/41, p.2 (Summary) and para. 3. Policewomen serving in the ANP are reported to be at risk of murder; sexual harassment and abuse at the hands of their colleagues, including rape; and general discrimination. New York Times, Afghan Policewomen Struggle Against Culture, 1 March 2015, New York Times, Afghan Policewomen Say Sexual Harassment Is Rife, 16 September 2013,
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