1909435 (Migration)

[2021] AATA 2169

1909435 (Migration) [2021] AATA 2169 (30 April 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1909435

MEMBER:Justin Meyer

DATE:30 April 2021

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 117 (Orphan Relative) visa.

Statement made on 30 April 2021 at 3:11pm

CATCHWORDS
MIGRATION – cancellation – Child (Migrant) (Class AH) visa – Subclass 117 (Orphan relative) – incorrect information in visa application – whether the applicant’s father was alive – dob-in style allegation – money transfer transaction history – similarities in names – vengeful former in-laws – concocted allegations – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 101, 107, 109, 359A

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 Home Affairs to cancel the applicant’s Subclass 117 (Orphan Relative) visa under s.109(1) of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa on the basis that the visa was granted because it was considered that the applicant’s parents were deceased, but information had come to light that the applicant’s father was alive and living in South Sudan. 

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 appeared before the Tribunal on 18 March 2021 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Dinka and English languages.

5. The applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing.

6. 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

7. 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.

8. 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.

9. 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.

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

10. 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.

11. 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.

    Did the notice comply with the requirements in s.107? 

12. 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?

13. The issue before the Tribunal is whether there was non-compliance in the way described in the s.107 notice, being the manner particularised in the notice, and if so, whether the visa should be cancelled. The non-compliance identified and particularised in the s.107 notice was non-compliance with s.101(b) in the following respects: it was a requirement that no incorrect answers are given or provided, but the applicant had answered on question 28 of his application form that both of his parents were deceased.

14. His sponsor had similarly written on her form that the parents were deceased.

15. The department noted that it had subsequent 2016 information the suggested that the applicant’s father was alive.

16. The applicant for this reason was deemed not have complied with s.101(b) of the Act

    Was there non-compliance?

17. The applicant is a [age] year-old male citizen of Sudan. He claimed that:

    ·In around 2007 or 2008, his mother went to South Sudan, the country of her birth. His mother wanted to visit because the peace agreement between Sudan and South Sudan in 2005 improved the prospect of travel between the two areas. His mother learnt that her aunts were still living in South Sudan. She travelled to Abyei with others who were also from around the area who wanted to visit family. While she was in this region there was a conflict and she was killed. The applicant does not know the exact circumstances of how she was killed, but several days after it occurred people told his father that she had died during this fighting and that some people had seen her dead. The family still hoped that she may be alive, but never heard from her again so they had to assume she was dead.

    ·He continued living with his father. On a weekend in 2009 he had been out in another part of Khartoum. Upon returning to his father’s house, family members had gathered. They told the applicant that his father had a heart attack at work. The family had been told by one of their in-laws who had been with him (his father worked as a type of labourer). He had had been taken to hospital and died. The applicant went to his father’s funeral, but not the burial as he was quite young and young people do not attend a burial. As a result, he never saw his father’s body.

    ·At this time he was still at school and was living at his father’s house with [Brother A] his brother and his sister [Sister B]. They were supported by family and friends. Soon after his father’s death, [Ms C], his sister, started to make arrangements for him, [Sister B] and [Brother A] to move to Australia so that they could live with her and her husband and be cared for. In 2012 the visas were approved and they made arrangements to travel to Australia.

    ·Following the independence declaration of South Sudan, South Sudanese people living in Sudan were required by the Sudanese government to move back to South Sudan. As a result, his whole family was forced to move back to South Sudan in 2012. By this time his visa to live in Australia had been approved, but the family had to move to South Sudan first. It was a dangerous journey, but at one point near the border with South Sudan he and all other young men had to get out of the buses they were travelling in and walk for a day by foot on a separate route so that a South Sudanese militia would not capture them and recruit them as solders. They arrived in [Town 1], a border town from where people wait for a boat to take them to Juba. They waited there for a boat for two months, living in a camp. It was unsafe there. On one occasion they went to wash their clothes in the river and play with friends, and were met with sudden gunfire from across the river; the militia were attacking them and they all had to run and hide.

    ·It can take years for people to get a boat from [Town 1] to Juba, and the applicant and his siblings wanted to get to Australia as soon as possible. They took a bus to Malakal and then from there took a plane to Juba. They then flew to Australia, via [Country 1] and arrived in Australia [in] July 2012.

18. In the hearing the applicant by and large gave oral evidence which was consistent with his written account. He also relied on the evidence and submissions of his brother [Brother A].

19. The applicant’s sister [Ms C] gave oral evidence in [Brother A]’s hearing which was corroborative of the applicant’s claims. The applicant’s brother, [Brother A]’s evidence in his separate hearing was also supportive of these claims. The Tribunal discerned little if any inconsistency in their accounts.

20. The claim said to be adverse to the applicant and the basis for cancellation by the department was that the applicant’s father was still alive and that money was being transferred to his parents.

21. This was prefaced on a dob-in style allegation which is protected by a non-disclosure certificate.

22. The applicant’s brother, [Brother A], also has an application before the Tribunal appealing the cancellation of his Subclass 117 (Orphan Relative) visa. His circumstances are very similar to the applicant’s and the reasoning for cancellation was the same or similar as the reasoning in this case. The Tribunal conducted the hearings in these two matters consecutively on the same day for ease of reference.

23. The particulars of the dob-in style information (as put in a s.359A letter to the applicant) are detailed below along with the applicant’s response:

    • The Department of Immigration received information in 2015 from a person who alleged that  the applicant’s parents were alive and that his sponsor, [Ms C], participated in obtaining and providing to the Department false information and bogus documents claiming that his parents were deceased.
    • The Department has in its possession money transfer transaction history documents. They show that in 2014 the sponsor transferred money to persons including the following: [Mr D] and [Ms E]. They further show that in 2015 the sponsor’s husband transferred money to persons including [Mr D variant]. [Mr D] and [Mr D variant] are, or approximate, names that the Department has been given as the name of the applicant’s father. The Department has been given the applicant’s mother’s first name as [Ms E variant 1] or [Ms E variant 2]. Further to that, the Department received information in 2015 alleging that the applicant had been sending money to his mother and father in South Sudan.

    Response:

    [Mr D] is their father’s half-brother, their uncle;

    [Ms E] is the mother of [Ms C]’s ex-husband, [Mr F];

    They have both transferred money to [Mr D] and [Ms E] over the years, including for the purpose of this money being passed on to other family members who live in the same area.

    • Notwithstanding that there is information held by the Department that indicates that a death certificate for the applicant’s father was found to be genuine, on 4 November 2011 the Department received email ostensibly from the sponsor stating that the applicant’s father was not dead but was alive and was living in South Sudan at [City 1].

    Response:

    This information is false and was written by the former brother in-law of the applicant. He had access to the email of his ex-wife (the sponsor). He was violent and controlling towards her, and drank to excess.

    The sponsor did not send an email to the Department in 2011 saying that her father is alive in [City 1] and knows nothing about of such an email. She suspects it would have been sent by her ex-husband pretending to be her. Even though he used to threaten to destroy her family, the sponsor did not think that he would go to the Department and say false things to destroy their lives. She thinks he was threatened by the prospect of his siblings coming to Australia, because he knew they would back her and protect her.

    Intervention orders dated [in] September 2011 [and] October 2011 were submitted. They state that the protected person (the sponsor) was physically and verbally attacked by the respondent ([Mr F]), and refers to [Mr F]’s repeated drinking and escalated violence. This provides clear and consistent evidence in support of [Ms C]’s statements regarding [Mr F]’s behaviour to her at this time. In our submission, this evidence strong supports [Ms C]’s contention that she did not send the purported 2011 email, and that any such email would have been sent by [Mr F]

    • There is a record held by the Department that indicates, without including details, that a medical certificate for the applicant’s mother was found not to be genuine.

    The applicant was not in a position to respond due to documents not being released.

    • On 22 November 2016 an officer of the Department telephoned a person in Sudan or South Sudan on the phone number that appears in the money transfer transaction history document that records the transfer of funds by the sponsor to that person. The person confirmed that the applicant’s father was living in [City 1], South Sudan.

    The Applicant is not aware of any person receiving such a phone call or making such a statement. [Ms C] made a declaration that she has spoken [Mr D] who has said he does not remember speaking to anyone from the Department and stating their father was alive.

24. It is noted that in a statutory declaration the applicant claimed that in around 2016, his uncle [Mr D], who lived in [Town 2], was kidnapped by people from the Nuer tribe, and they attacked the village and stole cows and kidnapped others. His sister [Ms C] had to send money to this group to have him released. Apparently he was badly beaten. This uncle, who the Department apparently believes is his father, died last year as a result of illness. [Mr D]’s son called one of the applicant’s family members in Australia and told them about his death, so he found out about it through his family in Australia.

25. The parties gave broadly corroborative evidence to support their written responses to the department’s concerns and adverse information. The adverse information was put in writing under s.359A of the Act before the hearing, and responded to in writing before the hearing. I give the adverse information negligible weight for reasons detailed below.

26. The hypothesis from the department that fraud has occurred regarding the parents’ death seems to the Tribunal to be undetailed, or not complete. Similarities in names such as [Mr D] (the applicant father’s half-brother, ie uncle) and the [applicant’s father], could well explain the situation.

27. Vengeful former in-laws possibly such as [Mr F], have been known to concoct allegations. It is plausible that with a proven history of violence, alcoholism and abuse, he may have made such a claim using his former wife’s identity online. Society is littered with examples of people taking advantage of poor internet or device security for their own ends. I am prepared to accept this to be the case here.

28. The applicant led a considerable amount of character evidence about his own positive and extensive involvement in the community, law-abiding qualities and reliability in responsible long-term employment. He has a partner, a young child and holds down a [specified] position.

29. By way of further example, [Ms G] from [Organisation 1] (an organization which provides development services to young people experiencing or at risk of Homelessness) wrote to the Tribunal stating that she worked with the applicant  through previous roles at [a specified initiative], the community arm of [Organisation 2] and with [Organisation 1]. The applicant participated in their programs from 2012 – 2018 and, ‘has been so impressive as a role model and mentor to other African youth that he undertook a range of work experience, and coaching opportunities’.

30. [Ms G] refers to the applicants many sporting and educational achievements and states ‘I have always found [the applicant] to be an honest, reliable and hardworking young man and role model to many young people of his cultural background’.

31. I have no reason to believe that he or his blood relatives in Australia have any history of non-compliance with the law. He is, as far as the Tribunal can ascertain, a responsible and diligent person.

32. Thus there is negligible information other than the material raised by the delegate that supports a proposition that the applicant has set out to mislead the department in relation to this application. Possible issues about genuineness of death certificates need to be viewed within the prism of the paucity of formal record keeping in countries such as Sudan and South Sudan, which discounts this as a factor. The delegate also noted that ‘No determination has been made as to the genuineness of any documents in this decision’. I have not given any consideration to this matter as it is not relevant to this case Weighing all of the evidence, I am not satisfied that the delegate’s view or implication that the applicant’s parent is (or parents are) in fact alive is correct.

33. For these reasons, the Tribunal finds that there was no non-compliance by the applicant in the way described in the s.107 notice. It follows that the discretionary power to cancel the applicant’s visa does not arise. 

34. As the Tribunal is not satisfied that there was non-compliance by the applicant in the way described in the notice given under s.107 of the Act, it follows that the discretionary power to cancel the applicant’s visa does not arise.

    DECISION

35. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 117 (Orphan Relative) visa.

    Justin Meyer
    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.