1825299 (Migration)

1825299 (Migration) [2020] AATA 4234 (9 October 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1825299
MEMBER:Kate Millar
DATE:9 October 2020
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 09 October 2020 at 1:51pm

CATCHWORDS
MIGRATION – cancellation – Refugee and Humanitarian (Class XB) visa – Subclass 202 (Global Special Humanitarian) – incorrect information in visa application – member of family unit – dependent child – relationship status – engaged to be married or married – married in a religious ceremony – 4 months’ pregnant – de facto relationship at time of application – ineligible for grant of visa – strong countervailing factors – Australia’s non-refoulement obligations – broader than eligibility for a protection visa – Convention against Torture – risk from Al-Shabaab – best interests of child – decision under review set aside
LEGISLATION
Migration Act 1958 (Cth), ss 5, 35A, 36, 48, 48A, 48B, 101, 107, 109, 197C
Migration Regulations 1994 (Cth), rr 1.12, 2.01, 2.03A, 2.41; Schedule 2, cl 202.311
CASES
Ali v Minister for Home Affairs [2020] FCAFC 109
CFE16 v Minister and CFD16 v Minister [2020] FCCA 1083
DXQ16 v Minister for Immigration [2020] FCA 1184
Hernandez v Minister for Home Affairs [2020] FCA 415
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

[The applicant] came to Australia [in] August 2016 as the holder of a Class XB (Global Special Humanitarian) (Subclass202) visa. This visa was granted on the basis that [the applicant] was a member of the family unit of her mother [Ms A].
One of the requirements to be a member of [Ms A]’s family unit was that [the applicant] was not engaged to be married and did not have a spouse or de facto partner.
After arriving in Australia, [the applicant] advised the Department of Home Affairs that she had provided an incorrect answer in her visa application, and she was in fact married and had a child. She maintains she has not lived with her husband but was living with and financially dependent on her mother before coming to Australia. She states she had hidden her pregnancy and gave birth when she said she was staying with a friend.
A delegate of the Minster for Immigration, Citizenship, and Multicultural Affairs found she had provided an incorrect answer on her visa application and cancelled her visa under s.109(1) of the Migration Act 1958 (the Act).
The issue in the present case is whether a ground for cancellation is made out, and if so, whether [the applicant]’s visa should be cancelled.
[The applicant] appeared before the Tribunal on 11 September 2020 to give evidence and present arguments. The Tribunal also received oral evidence from her brother [Mr B], her mother [Ms A], and her husband [Mr C]. The Tribunal hearing was conducted with the assistance of an interpreter in the Somali and English languages.
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 s.101 of the Act. Section 101 of the Act requires a non-citizen to fill in his or her application form in such a way that all questions are answered, and no incorrect answers are given or provided.
To cancel a visa under s.109 of the Act the Minister must first issue 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.
A decision maker must consider the response to the s.107 notice and decide if there was non-compliance in the way specified in the notice (s.108 of the Act). If there is non-compliance, a decision maker is to consider the response regarding the non-compliance and the prescribed circumstances set out in in r.2.41 of the Migration Regulations 1994 (the Regulations) and after doing so may cancel the person’s visa (s.109 of the Act).
It follows the issues are whether a valid notice under s.107 was issued, whether a ground to cancel [the applicant]’s visa has been established, and whether her visa be cancelled, having regard to factors prescribed in the Migration Regulations 1994 (the Regulations).
Did the notice comply with the requirements in s.107?
In looking at the validity of the notice issued under s.107 of the Act, a delegate of the Minister must first consider that a visa holder had not complied with a provision, and then meet the requirements for issuing a valid notice.
As [the applicant] notified of an incorrect answer in her visa application, the necessary state of mind was reached to issue a notice under s.107 of the Act.
Section 107 of the Act sets out a number of requirements to issue a valid notice.
The first is that the notice gives particulars of the possible non-compliance. In this case, the delegate refers to the application for the visa lodged on 2 November 2015:
·     The box which is ticked under the heading Relationship status as being Never married or been in a de facto relationship;
·     In answer to Question 8 of Part D of Form 842 which asks Have you or any other person included in the visa application previously been legally married, in a de facto relationship or in a customary/traditional/religious marriage that is not legally recognised and the answer given was “No”.
·     The applicants declared that the information supplied is complete, correct and up to date in every detail.
[The applicant] lodged a notification of an incorrect answer dated 13 July 2017 together with a statutory declaration dated 12 September 2017 which stated she had provided an incorrect answer about her marital status with the correct information being:
I am in a defacto relationship with [Mr C] (married in a religious ceremony) since 2014. We have a son [Master D] who was born in [Month, Year].
The s.107 notice refers to the information in [the applicant]’s statutory declaration:
On the application I did not declare that I was married and had a baby son [Master D] who was born on [date].
When our visas were granted, I was feeling very sad as I knew I had to leave my husband and aby behind but at the same time we had no life in [Country 1]. So I said goodbye to my husband and baby and travelled to Australia with my mother and family.
The notice goes on to specify that the delegate considered [the applicant] had provided incorrect answers regarding her relationship status. It states that this was to facilitate the grant of a Global Special Humanitarian (Subclass 202) visa as she did not meet the definition of member of the family unit.
Tribunal is satisfied that the notice set out the particulars of the incorrect information. It also set out how this was relevant to the grant of her visa.
In regard to the remaining requirements for a notice issued under s.107 of the Act, while not specifying with precision the requirements if the visa holder disputes there was non-compliance (s.107(1)(b)(i) or accepts there was non-compliance (s.107(1)(b)(ii)), was adequate on the facts of this particular 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.
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 applicant] advised the Department she had provided incorrect information about her marital status in the visa application, and that she was in a defacto relationship with [Mr C], having been married in a religious ceremony, and having had a son.
For these reasons, the Tribunal finds that there was non-compliance s.101 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 to the s.107 notice 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.
While these factors must be considered, they do not represent an exhaustive statement of the circumstances that are relevant in any given case: MIAC v Khadgi.[1] 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.
[1] (2010) 190 FCR 248

A. Prescribed circumstances

The prescribed circumstances that are to be considered before making a decision are set out in r.2.41 of the Regulations, and the Tribunal addressed each in turn.
The correct information
The correct information in this case is that [the applicant] was in a defacto relationship with [Mr C] and had a religious marriage. They have a child of the relationship who is in the care of [Mr C].
The content of the genuine document (if any)
The content of documents does not apply 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 criteria for the grant of a Subclass 202 visa to a secondary applicant such as [the applicant], are set out in Part 202 of Schedule 2 of the Regulations at the time she applied for this visa. Clause 202.311 requires that she is member of the family unit, and has made a combined application with, a person (in this case [Ms A]) who meets, or has met, the requirements for the grant of the visa.
The term “member of the family unit” is defined in r.1.12 of the Regulations and includes a dependent child of the family head. A dependent child is in turn defined (among other things) as a child of the person other than a child who is engaged to be married or has a spouse or de facto partner who has either not turned 18 or who has turned 18 and is dependent on the person or is incapacitated for work.
[The applicant] acknowledges she had married [Mr C] in a religious ceremony but states she did not live with him and continued to be wholly reliant on her mother financially and psychologically and as such met the criteria for the grant of the visa. This does not take into account that a person is not a dependent child if the person is engaged to be married or married. [The applicant] said that she and [Mr C] decide to get married at the end of 2014. This is, at the least, engaged to be married. They subsequently married in a religious ceremony. This is sufficient to establish that she was not eligible for the grant of the visa. However, to avoid any doubt, the Tribunal also considered whether she was the de facto spouse of [Mr C] at the time of the visa application.
The terms “spouse” and “defacto spouse” have a defined meaning in the Act and the Regulations. Each require that the person has a mutual commitment to a shared life to the exclusion of all others, the relationship is genuine and continuing and that the parties live together, or do not life separately and apart on a permanent basis. For a de facto relationship, the parties must not be related by family.
A person is in a married relationship, and therefore may meet the definition of spouse if the person is married under a marriage that is valid for the purposes of the Act (s.5F(2)(a)). To be a valid marriage, the marriage must be recognised under the laws of the country in which they married. At the time of the religious ceremony in 2014, the parties were in [Country 1]. There is no information before the Tribunal about whether the marriage would be recognised under local law, and the Tribunal considers the relationship would be assessed under the de facto spouse provisions.
[The applicant] submits that she did not live with [Mr C], and therefore would not be regarded as being his de facto spouse. This is not consistent with her notification to the department of an incorrect answer, in which she herself declares she was the de facto spouse of [Mr C].
In considering if a person is the de facto spouse of another person requires a consideration of the factors in r.109A and 2.03A, only one of which is the living arrangements of the person.
Regulation 1.09A looks to the financial aspects of the relationship, the nature of the household, the social aspects of the relationship and the nature of the person’s commitment to each other.
I regard to the financial aspects of the relationship, the parties state [the applicant] was dependent on [Ms A]. There is no suggestion of joint assets or liabilities or owing a legal obligation in respect of the other. However, it is clear from hospital records and the oral evidence of [the applicant] and [Mr C] that [Mr C] obtained the money to pay for [the applicant]’s hospital admission as her child was delivered by caesarean section. In the circumstances at the time, where [Mr C] did not work this was a significant financial commitment. The consistent evidence of the patties was that [Mr C] obtained the money for the hospital admission by telling his uncle he wanted to start a business. As a result, the Tribunal finds they pooled financial resources to some extent.
The nature of the household includes joint responsibility for the care and support of children, the living arrangements of the person and any sharing of housework. While they did not have a child at the time of the visa application, [the applicant] would have been approximately 4 months’ pregnant. They now have a son who is in the care of [Mr C], and the Tribunal finds they are jointly responsible for his care and support. This shows that at the time of the application, the parties had at the least planned for the joint care and support of children.
The evidence of [the applicant], [Mr C], [Ms A] and [Mr B] [The applicant] said after she had the baby her friend vacated the house so that [the applicant] could live there with her husband and the baby. On being asked if there were periods she had lived with her husband, she said yes. On being asked if this was period of months at a time, she said during her school holidays which were between 2 to 3 months. She agreed she was staying with her husband at her friend’s house at this time., but then on again being asked later, said that he wouldn’t sleep there at night, he would return to the house where he lived with another friend. The hospital admission records states [the applicant] and [Mr C] live in [Location 1], and after delivery she will return to [Location 1]. Both [the applicant] and [Mr C] denied they were living in [Location 1], and said [Mr C] lived in [Location 2]. On balance, the Tribunal finds there were periods in which [the applicant] and [Mr C] lived together, and specifically that this occurred after the birth of their child.
The social aspects of the relationship are whether the parties represent themselves to other as in a defacto relationship, the opinion of friends and acquaintances and joint social activities. While the relationship was reported to be unknown to her family, [the applicant]’s friend she stayed with in [Location 2] at last would have recognised the relationship as they were allowed to use her house. In her statutory declaration, [the applicant] says they did not go out as a couple together, and if they went out they went as part of a group. There are some unusual aspects to the lack of knowledge of the relationship from the family. The first is that [the applicant] was married by a mullah without the consent of her family. The second is that she could hide her pregnancy form her mother, while the parties acknowledged they would be in close contact such as hugging. Nevertheless, the oral evidence of all the parties is that [the applicant]’s family was unaware of the relationship, and the Tribunal accepts this was the case. The Tribunal finds there was limited social recognition of the relationship, and any joint social activities occurred in the company of others.
In regard to the nature of the commitment to each other, the relationship commenced in 2014 and the parties have had a religious marriage, and have not lived together often, but appear to have provided each other with companionship and emotional support and clearly see the relationship as long term. The Tribunal finds they have a commitment to each other that is genuine and continuing.
Regulation 2.03A requires both parties to be over 18 years of age and have been in the relationship for at least 12 months before the date of the visa application. These requirements are met in this case.
The Tribunal finds that the parties were in a defacto relationship at the time of the visa application.
A person who is engaged to be married or who is in a defacto relationship does not meet the definition of member of the family unit in r.1.12 and therefore does not meet the requirements to be a member of the family unit in cl.202.311 of Schedule 2 of the Regulations. It follows that at the time of the grant, [the applicant] was not qualified for the grant of the visa. Even if this were not the case, the incorrect answer prevented the Department from assessing at that time if she was eligible for the grant of the visa.
The circumstances in which the non-compliance occurred
At the time of the visa application, [the applicant] was living in [Country 1], having left Somalia. [The applicant] states that during the civil war the family were living in [Location 3]. When the war broke out militias attacked the house and captured the family. As her father was a good [occupation] the militia commander agreed to protect the family on condition that her father worked for him. In 1999 her eldest brother had a disagreement with the son of the commander. The commander shot her father and instructed the militia to rape her sister. They kidnapped her brother and threatened to kill her mother. She says the following night the remaining family members left on foot without their belongings. They fled to [Location 4] in Somaliland and found refuge with a friend of her mother but found the situation in [Location 4] difficult because of their Rahanweyn ethnicity. Her mother’s friend arranged transport to [Country 2]. They found life in [Country 2] difficult as there was no medical help for her mother who suffered post traumatic stress disorder following the murder of her father and rape of her sister. Because of their financial destitution they could not cross the border to [Country 3] to register with UNHCR.
Her brother [Mr B] located them through the friend in [Location 4] and arranged money for them to travel to [Country 1] where they could register as refugees. They arrived in [Location 5] refugee camp in 2012, and [Mr B] sent money to support them. While it is not in the statements, it is evident that the family moved from [Location 5] to [City 1], as [the applicant] said they were living in [Location 1], a suburb of [City 1] before arriving in Australia. Her baby was born at [a] Hospital in [City 1].

[The applicant] attended a private language school in [Country 1]. [The applicant] said the refugee life in [Country 1] was hard. However, they had enough food, it was safe, and she went to school.
[The applicant] said she met [Mr C] in 2013 and they were married at the end of 2014. [Mr C] was receiving money for his support from an uncle and is also a registered refugee in [Country 1]. [The applicant] said she chose to come to Australia so her son could have a better life, as if she remained in [Country 1] there was nothing she could do to help her family. If she came to Australia, her husband and son may be able to join her.
The present circumstances of the visa holder
[The applicant] lives with her mother, [sisters], [brothers] and niece in Adelaide. She has completed year [level] and plans to start year [level] next year. She states she is constantly worried about her husband and son and misses them terribly. She sends them money from her Centrelink payments.
The subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act
Obligations under Subdivision C of Part 3 of the Act include the obligation to provide correct answers in visa applications (s.101), fill in passenger cards correctly (s.102), not to provide bogus documents (s.103), to notify of changes in circumstances (s.104) and to give particulars of incorrect answers (s.105).
There is no information before the Tribunal about any other breaches of these obligations by [the applicant].
Any other instances of non-compliance by the visa holder known to the Minister
There is no other information before the Tribunal to show any other instances of non-compliance known to the Minster.
The time that has elapsed since the non-compliance
The visa application was lodged on 2 November 2015, and it is a little under five years since the non-compliance.
Any breaches of the law since the non-compliance and the seriousness of those breaches
The delegate does not report any other breaches of the law, and there is no other information before the Tribunal to show there are have any beaches of the law since the non-compliance.
Any contribution made by the holder to the community.
[The applicant] states she is working in a [business] doing [task]. She has completed year [level] at school and want to commence year [level] next years. She says she volunteers for the Somali community assisting the women’s group. As a part of her study she volunteered at [a Charity] for two days a week over 5 weeks in 2019. She holds a [qualification] in [subject.]

B. Other circumstances

The Tribunal may have regard to other circumstances, including those set out in departmental policy.
Whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and subject to detention, or whether indefinite detention is a possible consequence of cancellation, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention
If [the applicant]’s visa is cancelled, she will be an unlawful non-citizen and liable for detention under s.189 of the Act and removal under s.198 of the Act. Under s.197C of the Act, for the purposes of removal under s.198 it is irrelevant whether Australia has non-refoulment obligations or whether there has been an assessment of Australia’s non-refoulement obligations.
[The applicant] arrived in Australia as a member of her mother’s family unit and has not had her own claims to be owed protection assessed. If her visa is cancelled, in accordance with s.48 of the Act, she can only apply for visas specified in r.2.12. This includes protection visas. The question is then whether she is barred from making an application for a protection visa.
A bar to a further protection visa application for a person who held a protection visa that has been cancelled may not make a further application for a protection visa (s.48A(1b)) unless the Minister thinks it is in the public interest to do so (s.48B).
The question is then whether a Global Humanitarian (Subclass 202) visa is a protection visa. Protection visas are defined in s.5 and s.35A of the Act as permanent, temporary and safe haven enterprise visas, and any other visas specified in the Regulations or formerly provided for.[2] Regulation 2.01 of the Regulations do not include the Subclass 202 visa as a permanent, temporary or safe haven enterprise visa. It follows this is not a protection visa, and [the applicant] can make an application for a protection visa while she is in Australia.
[2] [The applicant] applied for the visa 2 November 2015, which is after this section commenced, and the previous provision does not apply (Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 commencing 16 December 2014).
If [the applicant] applies for a protection visa in her own right, her bridging visa would continue to be in effect pending the determination of any other visa application.
Whether there would be consequential cancellations under s.140
Under s.140 of the Act, if a person’s visa is cancelled under s.109 of the Act and another person holds a visa only because the person whose visa is cancelled held a visa , the Minister may without notice to the other person cancel the person’s visa.
As [the applicant] holds the visa as a dependent of her mother, there are no consequential cancellations that would occur by operation of s.140 of the Act.
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 facts of this case give rise to Australia’s international obligations regarding non-refoulment and the best interests of the child.
(i)Non refoulment
The Tribunal has found [the applicant] could apply for a protection visa. In some circumstances it would be sufficient to point to her ability to apply for a protection visa as an avenue in which Australia’s international obligations would be assessed, or to show that cancelling the visa would her visa would not itself result in her removal form Australia.
However, recent cases have pointed to the distinction between non-refoulment obligations in international conventions and eligibility for a protection visa, which is assessed in accordance with the provisions in the Act, and have found international obligations regarding non-refoulment to be broader than the eligibility for a protection visa. In addition, considering non-refoulement obligations also involves a consideration of the effect on Australia’s international reputation.
In particular, the internal relocation principle has been noted in cases such as Ali v Minister for Home Affairs[3] (Ali) to be broader in international obligations than in the criteria in s.36(2)(a) of the Act. This is because under the Act a person will not have a well-founded fear of persecution if the person can reasonably relocate to an area where they do not have a well-founded fear of persecution, whereas under the Act, a person who can reasonably relocate will not have a well-founded fear of persecution.[4] This principle also applies to complementary protection in s.36(2B)(a). This is of particular relevance in this case due to differences in the situation in [the applicant]’s home area of [Location 3] compared with the situation in Somaliland. It is also noted in case such as Ali and Hernandez[5] that there is a consideration of the impact on non-fulfillment of the obligations on Australia’s international reputation need to be considered.
[3] [2020] FCAFC109
[4]At [114] – [118]
[5] Hernandez v Minister for Home Affairs [2020] FCA 415
The weight that may be placed on Australia’s international obligations, even if non-refoulement obligations are owed, may be tempered by the prospect that the person can apply for a further protection visa.[6] In this case as [the applicant] arrived in Australia as the holder of a Subclass 202 visa as a secondary visa application, and has not had her claims for protections assessed, she could apply for a protection visa.
[6] XFKR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 167 at [105]).
The delegate states an International Treaties Obligation Assessment (ITOA) will be conducted before [the applicant] is removed from Australia. An ITOA assessment does not prevent her detention or removal or grant her a visa, and if a person is removed from Australia, under s.197C it is irrelevant if Australia owes non-refoulement obligations.
The principle of non-refoulement is contained in Article 33 of the 1951 Convention Relating to the Status of Refugees (Refugee Convention) and provides that no state shall expel or return (refouler) a refugee in any manner to the frontiers of territories where his or her life or freedom would be threatened on account of his or her race, religion, nationality, membership of a particular social group or political opinion.
Non-refoulement also comes into consideration where a person is not a refugee under other treaties entered into by Australia such as the International Covenant on Civil and Political Rights, Second Optional Protocol into Civil and Political Rights Aiming at the Abolition of the Death Penalty, Convention on the Rights of the Child and the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Convention Against Torture).
Article 3 of the Convention Against Torture states no State party shall expel, return (refouler) or extradite a person to another state where there are substantial grounds for believing he would be in danger of being subjected to torture.
Torture is defined in Art 3 as:
… any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to or for sanctions.
[The applicant] said she cannot return to Somalia as she will not be safe, and her son would not be safe. She said Al Shabaab is active in [Location 3], and one of their bases fully controls the area. She said the area is always explosive because of the militias operating there.
The October 2020 monthly forecast for Somalia by the UN Security Council[7] records the committee’s concern about increased deadly attacks by Al-Shabaab as reflected in recent events such as an attack on a beach hotel in Mogadishu and at a military base outside Kismayo. As recently as 8 September 2020, Al-Shabaab attacked the government-controlled city of Bal’ad in Middle Shabelle. The mandate for the UN Mission in Somalia (UNISOM) was renewed on 28 August 2020.[8] Elections in Somalia have been delayed, and there is disagreement about whether to have a one-person-one-vote system or a clan based system.
[7] >
In relation to sexual violence, it is reported by the UN Security Council that on 11 August 2020 the Secretary-General’s Special Representative on Sexual Violence in Conflict released a statement condemning a recent Sexual Intercourse Related Crimes Bill being considered by the Somali Federal Parliament as breaching international and regional standards relating to rape and other forms of sexual violence.[9]
[9] >
The 2017 DFAT Country Information report Somalia records that women throughout Somalia face a high risk of official and societal discrimination and gender-based violence, and that there are few support mechanisms available to women, particularly to women who are internally displaced or do not have clan connections.[10] Violence against women is reported to be widespread throughout Somalia and sexual abuse perpetrated by all actors to the conflict: Somali security forces, Al-Shabaab, AMISOM (African Union Mission in Somalia) troops and within clan militias and community. Al-Shabaab practices hudood which is physical punishment for violation of Sharia law:
Women who do not obey dress codes, work outside their homes, are seen conversing with men outside their family, or any other behaviour deemed inappropriate by al-Shabaab, can face public beatings, whippings or execution.[11]
[10] DFAT, 13 June 2017 Country Information Report Somalia [3.23]
[11] At [3.26]
In the 2019 report Somalia Control Map & Timeline August 2019 by Political Geography Now,[12] which records approximate territorial control across Somalia, [the applicant]’s home village of [Location 3] is recorded as “mixed, lawless or unclear control”. It is surrounded on three sides by areas considered to be in the control of Al-Shabaab. The Tribunal finds that Al-Shabaab are active in [the applicant]’s home area and enforcing laws that result in women who do not comply with expectations being subject to punishments of beating, whipping and execution.
[12] >
[Mr B] said the current circumstances in Somalia are not good as the government is unable to control the country, with the troops unable to keep the peace and militias taking control. [Mr B] said if [the applicant] returns to Somalia the risk to her is that she will be raped or killed.
[The applicant] said she would be at risk from Al-Shabaab as she wears a modern hijab and would need to be outside her home without a male escort to support herself and her son.
Her husband currently lives in [Country 1], [the applicant] said he would be unable to return with her to Somalia and as she does not have a right to live in [Country 1], she would have to return to Somalia by herself, but that she would take her son. [Mr C] said if [the applicant] returns to Somalia it will be difficult as he cannot go back to Somalia due to insecurity but would have no financial support to remain in [Country 1]. He said he does not have family in Somalia.
[Mr C] is from Kismayo, which has been the subject of recent attacks by Al-Shabaab. He states his father was killed at a check point by militias when he went to Mogadishu to buy things for his shop. [Mr C] says he fled Somalia as clans came and tried to make him be a soldier, and his mother arranged for him to go to [Country 1] so he would not be forced to eb a solider, however could not afford for the whole family to travel. He says the remainder of the family are in [Location 6] in [Country 2], although one may be in [Country 4] as a refugee. He said he has no relatives in Somalia. [Mr C] says he is Dir or Bimal and his clan is not powerful.
[The applicant] has a cousin who lives in Somalia but does not know where her cousin lives. She said her cousin is very sick as she had a [body part] removed. [The applicant] said she would not be able to live with her cousin because it is not safe for them and there is not enough money for food.
[The applicant] states, and there is no information to the contrary, that she does not have family in Somalia. It is uncertain whether her husband would also go to Somalia or she would return as a single woman, in which case she would be at risk of action against her by al-Shabaab that DFAT have stated includes public beatings, whipping or execution. These are acts that fall within the definition of torture in the Convention against Torture.
The Tribunal finds returning [the applicant] to Somalia would be in breach of Australia’s non-refoulement obligations under the Convention against Torture.
(ii)Best interests of the Child
Article 3 of the Convention on the Rights of the Child (Convention) requires that in all actions concerning children, the best interests of the child shall be the primary consideration. In this case, if [the applicant]’s visa is cancelled this will have an effect on her son and he nieces and nephews in Australia.
This has been the subject of differing interpretations. Most recently in CFE16 v Minister and CFD16 v Minister,[13] (CFE16 & CFD16) Judge Reithmuller referred to Art. 3 of the Convention and stated:
… it therefore appears that at least a consideration in exercising the general discretion in the context of this case (where it would affect the children of the parties) would require that at least a primary consideration would be the best interests of the child.[14]
[13] [2020] FCCA 1083
[14] At [19]
Judge Reithmuller said the task required of the Tribunal was to identify the child’s best interests and then consider whether other matters were such as to outweigh the child’s bests interests.[15] Judge Reithmuller states that:
… by adopting and ratifying the Convention, Australia has taken a position with respect to the way in which Australia will consider and deal with the interests of children. The position adopted by the Commonwealth in ratifying the Convention is one of principle, to make the primary consideration the best interests of the child “in all actions concerning children”. The Convention does not make the best interests of the child the only primary consideration, but ensures it is promoted to a position of being a primary consideration against which even serious defalcations by parents or other adults must be weighed.[16]
[15] At [24]
[16] At [25]
The issue of how to address the best interests of the child as a primary consideration has been considered again more recently in relation to cancellation under s.109 of the Act in DXQ16 v Minister for Immigration.[17] His Honour Justice Stewart states at [55] that consideration of Art.3 requires the best interests of the child to be given primary consideration. Applying Art. 3 requires that the Tribunal consider whether the force of any other consideration would outweigh the best interests of the children.
[17] [2020] FCA 1184
In this case, there are the competing interests of [the applicant]’s son in [Country 1] and her nieces and nephews in Australia. [The applicant] is a citizen of Somalia and has no right to go to [Country 1]. It is submitted her husband cannot return to Somalia, and this would effectively separate [the applicant] form her child. However, in oral evidence [the applicant] said she would take her son with her to Somalia if she is required to leave Australia. If, however, her visa is not cancelled she can travel to see her son in [Country 1].
The best interests of [the applicant]’s son are to see his mother and to be in a secure place with access to food, shelter and education. It is not in her son’s best interests to go to Somalia. Her ability to see her son is better enabled by her remaining in Australia and travelling to see him rather than by being returned to Somalia. She can provide financial assistance for his support from Australia and would be unable to do so from Somalia.
[The applicant] has a niece who is [age] years old and who came to Australia as a part of the family unit. [The applicant] lives in the same household as her niece.
[The applicant]’s brother has [a number of] children who are between [age] and [age] years old. Her brother works full time and his wife cannot take care of the children and do the household chores. [The applicant] helps her when she needs to attend medical appointments and with caring for the children. [The applicant] provided photographs of her with the children, and letters from [a number] of her brother’s children. The best interests of her nieces and nephews are that she remains in Australia, however this is of lesser weight as her nieces and nephews (including the niece who lives with her) have others in a parental role.
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. The non-compliance in this case is of particular gravity as the Tribunal has found [the applicant] would not have been granted the visa if the correct information had been provided. In these circumstances, only strong countervailing factors would negate the gravity of the non-compliance.
However, in this case the Tribunal considers there are strong countervailing factors. If the visa is cancelled and [the applicant] returned to Somalia this would entail a real and serious risk of significant harm to her and potentially to her son. would be in breach of Australia’s non-refoulment obligations under the Convention Against Torture. It is not in the best interest of [the applicant]’s’ son or other minor children in Australia if her visa is cancelled. She has actively engaged in the education in Australia and has contributed to the community.
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.
Kate Millar
Senior Member

ATTACHMENT – Migration Act 1958 (extracts)
5Interpretation
(1)In this Act, unless the contrary intention appears:
bogus document, in relation to a person, means a document that the Minister reasonably suspects is a document that:
(a)     purports to have been, but was not, issued in respect of the person; or
(b)     is counterfeit or has been altered by a person who does not have authority to do so; or
(c)      was obtained because of a false or misleading statement, whether or not made knowingly.
97Interpretation
In this Subdivision:
application form, in relation to a non‑citizen, means a form on which a non‑citizen applies for a visa, being a form that regulations made for the purposes of section 46 allow to be used for making the application.
passenger card has the meaning given by subsection 506(2) and, for the purposes of section 115, includes any document provided for by regulations under paragraph 504(1)(c).
Note:Bogus document is defined in subsection 5(1).
98Completion of visa application
A non‑citizen who does not fill in his or her application form or passenger card is taken to do so if he or she causes it to be filled in or if it is otherwise filled in on his or her behalf.
99Information is answer
Any information that a non‑citizen gives or provides, causes to be given or provided, or that is given or provided on his or her behalf, to the Minister, an officer, an authorised system, a person or the Tribunal, or the Immigration Assessment authority, reviewing a decision under this Act in relation to the non‑citizen’s application for a visa is taken for the purposes of section 100, paragraphs 101(b) and 102(b) and sections 104 and 105 to be an answer to a question in the non‑citizen’s application form, whether the information is given or provided orally or in writing and whether at an interview or otherwise.
100Incorrect answers
For the purposes of this Subdivision, an answer to a question is incorrect even though the person who gave or provided the answer, or caused the answer to be given or provided, did not know that it was incorrect.
101Visa applications to be correct
A non‑citizen must fill in or complete his or her application form in such a way that:
(a)all questions on it are answered; and
(b)no incorrect answers are given or provided.
107Notice of incorrect applications
(1)If the Minister considers that the holder of a visa who has been immigration cleared (whether or not because of that visa) did not comply with section 101, 102, 103, 104 or 105 or with subsection (2) in a response to a notice under this section, the Minister may give the holder a notice:
(a)     giving particulars of the possible non‑compliance; and
(b)     stating that, within a period stated in the notice as mentioned in subsection (1A), the holder may give the Minister a written response to the notice that:
(i)if the holder disputes that there was non‑compliance:
(A)shows that there was compliance; and
(B)in case the Minister decides under section 108 that, in spite of the statement under sub‑subparagraph (A), there was non‑compliance—shows cause why the visa should not be cancelled; or
(ii)if the holder accepts that there was non‑compliance:
(A)give reasons for the non‑compliance; and
(B)shows cause why the visa should not be cancelled; and
(c)      stating that the Minister will consider cancelling the visa:
(i)if the holder gives the Minister oral or written notice, within the period stated as mentioned in subsection (1A), that he or she will not give a written response—when that notice is given; or
(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.

[2020] AATA 4234

9 October 2020

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Immigration

Administrative Law

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