1836632 (Migration)

[2020] AATA 2103

1836632 (Migration) [2020] AATA 2103 (6 May 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1836632

MEMBER:Rosa Gagliardi

DATE:6 May 2020

PLACE OF DECISION:  Australian Capital Territory

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the first named applicant’s Subclass 101 (Child) visa.

Statement made on 06 May 2020 at 2:21pm

CATCHWORDS
MIGRATION – cancellation – Child (Migrant) (Class AH) visa – Subclass 101 (Child) – visa cancelled after father’s spouse visa cancelled – applicant and sister not declared on father’s visa applications – citizenship of applicant and family members – mother living in European country, applying for citizenship there – cancelling visa would result in splitting family unit – socio-economic conditions – applicant’s mental health – father’s credibility – relationship with children with another partner – family law proceedings – decision under review set aside

LEGISLATION

Migration Act 1958 (Cth), ss 107, 109, 140

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

1. This is an application for review of a decision made by a delegate of the Minister for Immigration to cancel the first named applicant’s Subclass 101 (Child) visa under s.109(1) of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa on the basis that the visa holder’s father, [Mr A], had his subclass 801 visa cancelled. 

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

4. The applicant’s father, [Mr A], appeared before the Tribunal on the visa holder’s behalf and was represented in relation to the review by their registered migration agent.

5. 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

6. 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.

7. 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.

8. 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.

9. If a person’s visa is cancelled under ss109 which is the case in respect of the visa holder’s father, [Mr A], and another person (being the visa holder) holds a visa only because the person whose visa is cancelled held a visa, the Minister may cancel the other person’s visa under s.140(2).

10. Subsection 140(2) of the Act provides that the Minister may, without notice, cancel a visa where:

    ·another person’s visa is cancelled under ss.109 (incorrect information), 116, 128, 133A, 133C or 137J (student visas); and

    ·the visa holder, to whom s.140(1) does not apply, holds a visa only because the person whose visa is cancelled held a visa.

11. This decision should be read in conjunction with the visa holder’s father’s decision made by the Tribunal on 5 May 2020, for [Mr A] (Decision no: 1836216).  In essence, [Mr A] was granted a Prospective Marriage (subclass 300) visa on 14 May 2013 on the basis that he genuinely intended to marry [Ms B] and genuinely intended to live with her as his spouse in Australia.  [Mr A] had two children with [Ms B], [Child 1], born on [Date 1] and [Child 2], born on [Date 2]. 

12. In filling in his application form for his subclass 300 visa, [Mr A] did not reveal, that he had had a child with [Ms C] in [Year 3] ([the applicant]).  He was then granted a subclass 801 visa on the basis that he had responsibilities to his two children with [Ms B], even though [Ms B] no longer wished to sponsor [Mr A] and the relationship had ended. 

13. In being granted a subclass 801 (permanent) visa [Mr A] did not declare to the Department that he had also had another child with [Ms C], [Child 3] (subject of a separate decision), who was born on [Date 3].

14. In this way, [Mr A] had breached s.101 which requires that in respect of previous visa applications (a) all questions on it are answered; and (b) no incorrect answers are given or provided. 

15. [Mr A] has argued that [Ms B] was aware of his two children with [Ms C] but until the relationship broke down irretrievably, [Ms B] wanted to continue the relationship with him.

16. [Mr A] then decided to sponsor the two children with [Ms C], ([the applicant] and [Child 3]) to Australia on Child (subclass 101) visas in October 2015, as they were living in [Country 1] with their mother and that country was undergoing an economic crisis. During the course of lodging these applications, [Mr A] divulged to the Department that in fact he had neglected to disclose his two children [the applicant] and [Child 3] in previous applications and that he was sorry for having misled the Department in this way. 

17. The Department at that stage considered cancelling [Mr A]’s subclass 801 visa for the breach under s.101 but decided that there was no evidence to warrant such action and [the applicant] and [Child 3] were granted Child subclass 101 visas on 12 April 2017.

18. It was only when [Mr A] decided to sponsor the children’s mother, [Ms C], to Australia in 2017 and lodged a Prospective Marriage visa (subclass 300) for her to come to Australia and marry [Mr A], did the Department come to have concerns that [Mr A] may have strategized to marry [Ms B] in the first instance, to enable him to sponsor his second family with [Ms C].  [Mr A]’s visa was subsequently cancelled on 5 December 2018.

19. This meant that the visa holder’s ([the applicant]’s) visa was consequentially cancelled as was that of her sister, [Child 3].

    Should the visa be cancelled?

20. As the Tribunal has decided that s.140(2) of the Act applies to the applicant, it is necessary to consider whether the visa should be cancelled. There are no matters specified in the Act or Regulations that must be considered in the exercise of this discretion. The Tribunal has had regard to the circumstances of this case, including matters raised by the applicant, and matters in the Department’s Procedural Instruction: (‘General visa cancellation powers’).

    The purpose of the visa holder’s travel to and stay in Australia

21. The visa holder came to Australia as a [Age] year-old minor who had no control or competency to lodge a Child visa in 2017.  The visa holder came to Australia at the behest of her father who wanted her and her sister to have a better life than they had in [Country 1]. 

22. The visa holder was therefore not involved in [Mr A]’s breach of s.101.  She is now studying in Australia and living with her father but is experiencing psychological difficulties as a result of the situation she finds herself because her visa could be cancelled.

    The degree of hardship that may be caused to the visa holder and any family members

23. From the information it appears that [the applicant] is a national of [Country 2] and [Child 3], the second child, is [a Country 3] national, although their mother, [Ms C], is in the process of obtaining [Country 1] citizenship.  Were the cancellation to be effected it would mean that as things stand, [the applicant] would return to [Country 2] with her father, and [Child 3] to [Country 3] and their mother, [Ms C] would remain in [Country 1].  This would involve splitting the family unit and the children having uncertain futures in countries where access to education and health services would be diminished. 

24. In terms of the possible status of [Mr A] and his children in [Country 1], the Tribunal’s research shows that if a person has had refugee status and a residence permit for the past 3 years, then he/she is eligible to apply for [Country 1] citizenship.[1]  This does not appear to be the circumstances of the visa holder’s father as he has submitted evidence of a residency permit for [Country 1] valid until only 2014.  Given he has been living in Australia for a significant period it is unlikely that he would have been granted any further residency permits in [Country 1].

    [1] [Reference deleted]

25. If a person is married to a [Country 1] national he/she may apply for [Country 1] citizenship after 3 years of legally living in [Country 1].[2]  In the long-term it appears that the visa holder’s father, [Mr A], could potentially become a [Country 1] citizen and have the right to live in other EU countries, thereby keeping the family unit intact. 

    [2] Ibid.

26. In terms of children born in [Country 1] this does not automatically give them the right to [Country 1] citizenship if they are born to foreign parents.  Children born in [Country 1] can, however, apply for citizenship after they complete the first grade of primary school, and if both their parents have lived legally and continuously in [Country 1] for at least 5 years before the child’s birth.[3]

    [3] Ibid.

27. The Tribunal has taken into account that potentially, were [Mr A] and his two children with [Ms C] to return to [Country 1], they could continue to live in that country, accepting that there would be economic and social hardships to be experienced by the children who have benefitted from the Australian way of life.  A recent article by Amnesty International on the circumstances in [Country 1] as regards healthcare states:

    Austerity measures adopted over the past decade continued to severely impact access to health care.  Amnesty International’s research noted that the austerity measures have continued to impact the accessibility and affordability of health care in [Country 1] a decade after the crisis began and austerity measures were introduced.  People interviewed spoke about the multiple barriers they faced accessing health care, including lengthy waiting times and the high costs of care.  The economic crisis severely affected people in [Country 1], with huge increases in unemployment and poverty.  Even though [Country 1] exited from the bail-out agreements in 2018, the impacts of the crisis have been on-going.  As per available date even today, many of these levels remain worse than before the crisis began.[4]

    [4] Amnesty International, [Country 1] 2019 Annual Report, [Reference deleted]. 

28. Nonetheless, it could be argued that, all things being equal, it would be in the best interests of the children to be reunited with their mother in [Country 1], together with their father, where they would ultimately have access to other EU countries. 

29. In terms of the effects of a cancellation on these two non-citizen children, the Tribunal has taken into account medical expert advice.  The visa holder has submitted detailed psychological reports for [the applicant] and [Child 3] by [Dr D]. 

30. In his report dated [March] 2020, Dr Davidson states that [Mr A] had concerns that both [the applicant] and [Child 3] were displaying symptoms of stress and anxiety.  They both also experienced low mood and cried on their own.  In respect of [the applicant], [Dr A] wrote, “…[the applicant] has lived in Australia for two years, she has settled in life in this country, participating in the community through school and sport”. [Dr D] applied the Pediatric Symptom Checklist (PSC) to [the applicant] to identify certain psychological characteristics.  The measure is a psychosocial screen designed to facilitate the recognition of cognitive, emotional, and behavioural problems so that appropriate interventions can be initiated.  He wrote in his report that [the applicant]’s score on the PSC of 28, indicated levels at the cut-off point indicating “psychological impairment”.  Other measures were applied in relation to depression and anxiety which were not just a response to uncertainty about her future and that of her father, but also separation from her mother. 

31. In relation to [Child 3], [Mr A] discussed with [Dr D] that since telling her about the appeal process regarding the cancellation of her visa, he has noticed a deterioration in her mental health.  [Dr D] accordingly applied further tests which yielded high scores for depression, anxiety and panic.

32. The Tribunal places significant weight in the visa holder’s favour in terms of the difficulties the children are having, through no fault of their own, and has turned its mind to whether another shift in their circumstances to another country would cause a further deterioration in their condition and finds that returning to [Country 2], [Country 3] or [Country 1] would represent significant challenges to them.

33. The Tribunal has also had, in the context of the children’s mental health, regard to the letter of support from the Principal at [a] Primary School, dated [October] 2019, which states that the children are excellent students and are well regarded by their peers and teachers alike.  Several awards granted to the visa holder’s children, [the applicant] and [Child 3], have also been submitted, including a Certificate of Achievement for [the applicant] for having met the 2019 Victorian Premiers’ Reading Challenge.

34. The Tribunal accepts that considerable disruption and hardship would be caused to [the applicant] and [Child 3] were their father’s visa to be cancelled and their visas cancelled consequentially.

35. The migration agents argued strongly that the Tribunal is required to also place significant weight on the fact that [Mr A] has two Australian citizen children with [Ms B] in Australia, and while [Ms B] has impeded his access to these children, he is attempting to gain access through the Family Court.  To support his case that [Mr A] is attempting to gain access to his two other [children], he has submitted a Certificate by a family dispute resolution practitioner dated [February] 2019, certifying that the family dispute resolution process was not a suitable avenue for resolution and a letter from Family Relationships Centre, enclosing a s.601(8) Family Law Certificate to commence proceedings at the Federal Family Law Court, dated [March] 2019.

36. [Mr A] argues that if he is not in Australia he cannot have meaningful contact with his two [children] with [Ms B], and conversely, his [children] could not build a meaningful relationship with him.  The Tribunal has evidence before it that the visa holder is paying some Child Support to [Ms B] for his [children’s] welfare. 

37. Despite the Tribunal’s concerns with [Mr A]’s credibility, the Tribunal does accept that he has a genuine desire for his four [children] to know one another and to be able to have a familial relationship when he is able to gain some access to his [children] with [Ms B].  The cancellation of the visa would mean that his children with [Ms A] who are Australian citizens, would be deprived of a sibling relationship with their two half-sisters. 

38. The Tribunal considers that neither the Australian citizen children, nor those [Mr A] has had with [Ms C] are in the circumstances in which they find themselves through any actions of their own.  Significant and overriding weight should be placed in favour of not cancelling the visa in the circumstances.

    The circumstances in which the ground for cancellation arose

39. The Tribunal is not satisfied that there were any extenuating or compassionate circumstances in terms of the circumstances in which the visa holder’s father’s visa cancellation arose.  [Mr A] withheld critical information from the Department, that is that he had a child with [Ms C] and that he then had a second child with her.  [Mr A] has argued that he was coerced by [Ms B] to provide incorrect answers on his application form.  The Tribunal finds there are no compelling reasons why [Mr A] could not defy [Ms B] even if it meant his own visa was in jeopardy.

    The visa holder’s past and present behaviour towards the Department

40. The visa holder herself has not undertaken any past or present adverse behaviour towards the Department.

    Links that the person may have made to the community

41. The Tribunal has discussed above the visa holder’s strong connection to her school community.  She has excelled and to return her to [Country 2] or [Country 1] at this stage would mean she would be seriously disadvantaged, not just academically but in terms of her ability to access healthcare and other services which would not be of the standard available in Australia.  Given the psychological issues confronting the visa holder significant disruption to her life at this stage would mean significant hardship to her development and progress.

    Australia’s obligations under relevant international agreements

42. The Tribunal has turned its mind to Australia’s obligations under the Convention on the Rights of the Child (CROC) as well as the International Covenant on Civil and Political Rights (ICCPR) to place primary consideration on the best interests of the children and the protection of family units.

43. The Tribunal concurs with the migration agents’ submissions that the two Australian citizen children born to [Ms B] ([Child 1] and [Child 2]) would be deprived of having the capacity in the future to build a relationship with their father, particularly if he is subject to a re-entry bar.  The children would be deprived of knowing their father and having the benefit of forming a relationship with him.  Currently, it is claimed that [Ms B] is not permitting [Mr A] to see his children, nonetheless, there is potential for this situation to change if [Mr A] is granted access by the Australian courts.

44. The two Australian citizen children would also be deprived of having contact with their half-siblings who [Mr A], their father, wants to ensure have a familial relationship.

45. The Tribunal has decided that there was non-compliance by the visa holder’s father, 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

46. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 101 (Child) visa.

    Rosa Gagliardi
    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.