1934155 (Migration)

[2021] AATA 3253

1934155 (Migration) [2021] AATA 3253 (1 June 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1934155

HOME AFFAIRS REFERENCE(S):          BCC2018/2102205

MEMBER:Kira Raif

DATE:1 June 2021

PLACE OF DECISION:  Sydney

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the first named applicant’s Subclass 204 (Woman at Risk) visa.

The Tribunal has no jurisdiction with respect to the other applicants.

Statement made on 1 June 2021 at 1:11pm

CATCHWORDS
MIGRATION – cancellation– Subclass 204 (Woman at Risk) visa – Subclass 200 (Refugee) visa –applicant had given incorrect information– applicant’s husband did not pass away – time that has elapsed since the non-compliance – best interests of the children to remain in Australia – family would experience significant hardship if the visas are cancelled – decision under review set aside

LEGISLATION
Migration Act 1958, ss 98, 100, 101, 107, 109,140
Migration Regulations 1994, r 2.41

CASES
MIAC v Khadgi (2010) 190 FCR 248
Wan v MIMA (2001) 107 FCR 133

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 first named applicant’s Subclass 204 (Woman at Risk) visa under s.109(1) of the Migration Act 1958 (the Act).

2. The first named applicant (the applicant) is a national of Afghanistan, born in [year]. She made the application for the Woman at Risk (Subclass 204) visa in March 2013 and was granted that visa on 15 May 2013, together with her six children. The family entered Australia [in] August 2013.

3. On 16 September 2019 the applicant was issued with the Notice of Intention to Consider Cancellation (NOICC) because the delegate formed the view that she did not comply with s. 101 of the Act. The applicant provided her response to the NOICC and her visa was cancelled on 25 November 2019. The applicant seeks review of the delegate’s decision.

4. For the purposes of the Tribunal’s jurisdiction, the only decision that is before the Tribunal is that with respect to the applicant. The other visas were automatically cancelled as a consequence of that cancellation, not by a decision but by force of the operation of s.140(1) of the Act. As no decision was involved in the visa cancellation under s.140(1), the Tribunal has no jurisdiction with respect to the other applicants.

5. The applicants appeared before the Tribunal on 1 June 2021 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s daughter. The applicant had nominated other witnesses to give evidence but the Tribunal determined it was not necessary to hear from these witnesses. The Tribunal hearing was conducted with the assistance of an interpreter in the Dari and English languages. The applicants were represented in relation to the review. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

   Relevant law

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.

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.

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

9. Section 107 is only engaged if the Minister or delegate considers that the visa holder has not complied with one of the provisions mentioned in s.107(1). It is only then that the Minister or delegate is entitled to give notice to the visa holder under s.107. Therefore, if a notice is to be given under s.107, the Minister or delegate must have reached a state of mind where they consider that the visa holder has not complied with one or more of the relevant provisions.

10. The Tribunal has considered the validity of the NOICC. The Tribunal is satisfied that it contains sufficient particulars to enable the applicant to identify and address the issues and also that the delegate had reached the necessary state of mind to engage s.107. The Tribunal is satisfied that the notice issued under s.107 complied with the statutory requirements.

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

11. 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 of the Act.

12. The applicant provided to the Tribunal a copy of the primary decision record. It indicates that  she made the application for the Subclass 204 Woman at Risk visa on 17 March 2013 as the primary applicant. The application included six children, born between [year] and [year]. The applicant completed the application form 842 in which she provided the following information:

    a.At Question 2 the applicant was asked about her relationship status. The applicant stated ‘widowed’. She stated that this happened on [date] September 2009.

    b.At Question 8 the applicant was asked whether she had previously been legally married or in a de facto relationship or a religious / traditional marriage’. The applicant provided details of her previous husband as [name deleted]. She stated that the relationship commenced in January 1989 and ended on [date] September 2009 with the death of her husband.

    c.At Questions  25 and 26 the applicant stated that she feared returning to Afghanistan and that she left that country [in] May 1998.

    d.At Question 28 the applicant stated that she made the application on the basis of the UNHCR referring her to Australia for refugee resettlement and she provided a copy of her UNHCR resettlement registration form which provided an assessment with respect to the category of Women and Girls at risk. In that statement, it was claimed that the applicant’s husband had suffered from [Medical condition 1] and in 2009 was deported to Afghanistan where he died due to [Medical condition 1]. The applicant made a number of claims relating to her status as a single woman.

    e.In response to several questions on the application form requiring the applicant to provide information about her fear of persecution, the applicant referred to the above assessment.

    f.At Question 46 the applicant signed a declaration that the information she supplied on the form was complete, correct and up to date in every detail.

13. The applicant and her children were granted the visas on 15 May 2013 and entered Australia on [date] August 2013.

14. On 29 December 2014 the applicant sponsored Mr [A] for a Prospective Marriage visa. The applicant claimed to have met Mr [A] for the first time in September 1993 in Kabul and it was stated that Mr [A] was never previously married, although Mr [A]’s tazkera showed that he was married. A DNA test was requested and showed that Mr [A] is the biological father of the applicant’s six children. On 9 January 2019 Mr [A]’s application for the Prospective Marriage visa was refused.

15. In her response to the NOICC the applicant states that in 2009 her husband was deported from Iran to Afghanistan and she was later informed by a relative that her husband passed away in Afghanistan from [Medical condition 1]. Shortly after hearing the news, she discovered she was pregnant. She provided her husband’s death certificate to UNHCR in 2009 and she was later invited to apply under a Woman at Risk category. The application was completed by another person due to her lack of English. The applicant states that when she made the application in March 2013, she believed she was a widow as she was informed about her husband’s death in 2009 and did not hear from him again until 2014. She did not knowingly provide incorrect information in her application and she provided evidence of the memorial service. The applicant states that in 2014 she received a call from her husband’s nephew informing her that her husband was alive and residing in Pakistan. She travelled to Pakistan. The husband told her that he was imprisoned in Afghanistan and lost his tazkeras and was incorrectly reported as dead to his relatives. The applicant notes that UNHCR defines women at risk as those who do not have effective male protection and due to her husband’s absence, she would have met that definition and the visa criteria. The applicant states that due to her husband’s absence between 2009 and 2014 their relationship could not be considered as ongoing and would not have met the definition of spouse in s. 5F of the Act.

16. In her written statement to the Tribunal of 26 April 2021 the applicant repeated the same information. The applicant also addressed the discretionary considerations, which are set out below and provided a number of supporting statements.

17. In oral evidence, the applicant explained the circumstances of her husband’s disappearance from Iran. The applicant states that her husband was deported to Afghanistan and while he tried to return to Iran, he was caught up in a fight. Because he lost his tazkera, his nephew told her that her husband was killed. They did not have any other information and did all the ceremonies, assuming her husband had passed away. The applicant states that UNHCR wanted to progress their application and asked for the husband’s death certificate and it took the nephew about six months to obtain the husband’s death certificate in Afghanistan on the basis that someone’s else tazkera was found and that person could not be identified.

18. A significant concern for the Tribunal relates to the claims made in the husband’s application for the Prospective Marriage visa. In that application it was claimed that the applicant’s husband was another person, that he was not previously married and it was not declared that he was the father of the applicant’s six children. The applicant acted as a sponsor in that application. The applicant explained to the Tribunal that she did not know what to do, they were desperate and naive and they acted on the wrong advice. In the Tribunal’s view, that indicates that the applicant and her husband had deliberately sought to mislead the Department about the nature of their relationship and the husband’s identity and that indicates that neither the applicant nor her husband are persons of credibility. The information given in the husband’s Prospective Marriage visa application, where the applicant would have been required to complete the sponsorship form and provide information about the relationship, indicates that both the applicant and her husband are willing to provide untruthful information to the Department in order to obtain a visa.

19. It is also important to note that under s. 100 of the Act, an answer may be incorrect even if the person giving or did not know it was incorrect. Thus, even if the applicant genuinely believed that her husband had passed away at the time her application was made (a claim the Tribunal does not necessary accept), the information was clearly incorrect, as the applicant now concedes that her husband is alive. The applicant claimed that her husband died in 2009 and that she was a widow. That information was incorrect, irrespective of what the applicant had believed. The applicant also claims that due to her lack of English, another person completed her application form. Again, s. 98 of the Act provides that a person is taken to have completed the form even if it was completed on her behalf by another person.

20. The Tribunal finds that the applicant completed her application form in a way that incorrect answers (in relation to her status as a widow and her husband’s death) were given. The Tribunal finds that  the applicant did not comply with s. 101 of the Act. The Tribunal finds there was non-compliance in the way described in the Notice.

    Should the visa be cancelled?

21. 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).

22. In exercising this power, the Tribunal must consider the applicant’s response (if any) to the s.107 notice about the non-compliance, and have regard to any prescribed circumstances: s.109(1)(b) and (c). The prescribed circumstances are set out in r.2.41 of the Regulations. Briefly, they are:

    The correct information

23. The correct information is that the applicant’s husband did not pass away. The applicant claims that their relationship would not have met the definition of ‘spouse’ in the Act anyway but the claim that formed the basis of her visa application was that her husband had passed away, not that she did not have a spouse (within the meaning of the Migration Act) for any other reason.

    The content of the genuine document (if any)

24. This is not relevant in the present 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

25. The applicant claimed to be a widow when making the application and stated that she feared harm due to her status as an unmarried woman. The applicant claims that she would have met the definition of being a woman at risk anyway, because her husband was living in a different country and could not provide for her and that the relationship would not have met the definition of ‘spouse’ in the Migration Act. However, as noted above, these are not the claims that were made by the applicant in her application and not the evidence that was assessed before the visa was granted. The applicant did not claim that she did have a husband who was living away and could not provide for her or support her and that she was without male protection for that reason. The applicant did not claim that she was no longer in a spousal relationship with her former husband. Rather, the applicant stated that her husband was deported from Iran to Afghanistan where he died. She claimed to be a widow. The assessment of the applicant’s claims was made on that basis and because those claims were accepted, the applicant was assessed as being a woman at risk. It is unhelpful, in the Tribunal’s view, to determine what assessment would have been made, or what the outcome could have been, if different claims were put forward. Such claims were not put forward and were not assessed. The claims that were assessed were untrue as the applicant’s husband did not die in 2009.

26. The applicant also told the Tribunal that her family experienced a lot of hardship and discrimination and her children were bullied, so people suggested for her to apply for the Australian visa. The applicant states that the visa was granted because of her child’s disability. The Tribunal finds that this is not the case, as the visa was granted on the basis of the applicant being a woman at risk, as she claimed to be a woman without male protection.

27. The Tribunal finds that the decision to grant the visa was based, in part, on incorrect information.

    The circumstances in which the non-compliance occurred

28. The applicant explains that she was informed by her husband’s nephew that her husband had passed away and she genuinely believed that to be the case. The applicant explains that her husband was caught up in fighting and lost his tazkera and was mistakenly reported as being dead. The applicant provided to the delegate evidence of having arranged a funeral service for her husband and states that she and her eldest children provided financial support for the family in the absence of her husband. The applicant states that she had already made the application for resettlement with UNHCR and the absence of her husband had jeopardised the process. The applicant states that these circumstances are not uncommon in Afghanistan. The applicant reiterated in her oral evidence that she genuinely believed her husband to be dead when she made the application and she would not have made such claims otherwise.

29. As noted above, the Tribunal has formed the view that the applicant and her husband are not persons of credibility. This is primarily because they provided false claims in the husband’s Prospective Marriage application and such claims were central to the issues that arose in that application. The claims related to the nature of their relationship and their previous relationships. Such claims were untrue and that was well known to the applicant and her partner. As the applicant and her partner were willing to falsify claims in order to obtain the visa, the Tribunal has formed the view that both are not credible witnesses and that their evidence is unreliable. The Tribunal places some weight on the fact the applicant did hold the funeral ceremonies for her husband and that she was left alone, with minor children, to provide for the family and faced significant hardship. It is thus possible that the applicant genuinely believed at the time of the application that her husband was not alive but equally possible, in the Tribunal’s view, that having been left without the husband’s support due to his deportation to Afghanistan, the applicant made the decision to claim to be a widow so as to obtain the Australian visa.

    The present circumstances of the visa holder

30. The applicant refers to her settlement in Australia. She provided evidence of her employment, as well as evidence of employment and study of her children. The Tribunal accepts that the applicant and her children have settled in Australia, that the elder children are employed and younger children are engaging in studies.

31. The applicant states that her younger children have spent more time in Australia and speak better English than any other language. The Tribunal accepts that evidence. The applicant refers to the situation in Afghanistan and states that she may be at risk of harm or of being killed and states that it is not safe for the family to return to Afghanistan. The applicant refers to the connections she and her children have made in Australia. The Tribunal accepts that evidence and accepts that considerable hardship would be caused to the applicant and her family if the visa is cancelled.

32. In oral evidence the applicant spoke of her children’s settlement. She told the Tribunal that her eldest son is working and has bought a property and he has a newborn child. Her second son has recently graduated from the university. The daughters are working or completing their education in Australia. The applicant refers to her own part-time employment [and] the payment of taxes. She states that she has not relied on Centrelink. The Tribunal accepts that evidence.

    The subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act

33. There is no evidence that the applicant had informed the Department once she learned that her husband was alive as she may have been required to do under s. 105 of the Act. The applicant explained to the Tribunal that she was too scared and people advised her not to.

    Any other instances of non-compliance by the visa holder known to the Minister

1. The primary decision record indicates that incorrect information was given in the Prospective Marriage application made by the application’s husband. The Tribunal is mindful that under s. 98, such information would have been given by the applicant’s spouse and not the applicant herself. A such, the Tribunal does not consider that such information can be considered as another instance of non-compliance by the visa holder. There are no other known instances of non-compliance.

   The time that has elapsed since the non-compliance

2. The application for the visa was made in March 2013 and more than eight years passed since the non-compliance. The Tribunal acknowledges it is lengthy period.

   Any breaches of the law since the non-compliance and the seriousness of those breaches

3. There are no known breaches of the law.

   Any contribution made by the holder to the community.

4. The applicant refers to her employment in the disability support sector and to her children’s employment and study. The Tribunal acknowledges that the family may have contributed to the community and will continue to do so through employment and other activities.

5. While these factors must be considered, they do not represent an exhaustive statement of the circumstances that might properly be considered to be relevant in any given case: MIAC v Khadgi (2010) 190 FCR 248. The Tribunal may also have regard to lawful government policy. The relevant policy is set out in the Department’s Procedural Advice Manual) PAM3 ‘General visa cancellation powers’, which refers to matters such as the consequences of cancelling the visa, international obligations and any other relevant matters.

   Whether there would be consequential cancellations under s.140.

6. The visas held by the applicant’s six children would be subject to the consequential cancellation.

   If there are children whose interests would be affected by cancellation, or consequential cancellation, decision-makers should consider the best interests of those children as a primary consideration when deciding whether to cancel the visa. (NOTE: It has been said that the question is what decision is in the best interests of the child, not what the children might do if their parent were required to cease living in Australia: Wan v MIMA (2001) 107 FCR 133, at [27]-[28].)

7. The applicant has six children in Australia. Two of the children are minors and four children are over the age of 18. The applicant claims that the younger children had spent the majority of their lives in Australia, speak better English than any other language and would find it difficult to live in any other country.

8. The applicant states that they have no right to go to Iran, as their papers were cancelled with the grant of the Australian visas and the family would have to return to Afghanistan. The applicant spoke about the unsafe situation in Afghanistan and claims that in Australia her children are safe, can attend education and are free from exploitations, killings, kidnappings and other hardships. The applicant states that she does not want her children to live under Taliban. The Tribunal accepts, having regard to the country information cited below, that the situation may be unsafe for the family in Afghanistan and particularly to the applicant’s daughters. The Tribunal accepts that the younger children may not have the same educational, employment and social opportunities in Afghanistan as they do in Australia. In the circumstances, the Tribunal accepts that it is in the best interests of the children to remain in Australia and for the visas not to be cancelled. The Tribunal acknowledges it is a primary consideration.

   Whether the cancellation would lead to the person's removal in breach of Australia's non-refoulement or family unity obligations.

9. The applicant referred to a conflict between family elders and said that they are still after her. The applicant described an incident when her brother was hurt when people were looking for her. The applicant claims that the dispute is ongoing. The applicant states that the situation in Afghanistan is unsafe. The applicant states that her children would be taken away and punished by the Taliban because they lived in a foreign country and girls are particularly vulnerable in Afghanistan. The applicant referred to the poor treatment of women under the Taliban. She states that she cannot protect the children in Afghanistan and it would be too dangerous for them.

10. The most recent DFAT report on Afghanistan, published in June 2019, states the following

    The Taliban imposed an extreme interpretation of Islam in Afghanistan, including severe limitations on the freedoms of women and girls, and committed systematic human rights abuses against civilians…

    Women’s rights have improved significantly since the end of the Taliban regime, which comprehensively and unequivocally excluded women from public life. However, women’s place in society remains deeply contentious. Parliament rejected the first female nominee to the Supreme Court in July 2015 following objections from conservative groups, including female MPs. Societal, cultural and religious barriers continue to limit considerably the extent to which women are able to participate fully in Afghan society, as does socio-economic status and geographic location. Women in conservative rural areas are highly unlikely to be able to access education or employment opportunities. AGEs have also targeted women active in public life and women employed in non-traditional sectors such as policing and security, limiting their ability to participate in these areas for fear of reprisal…

    Violence against women, particularly domestic violence, is endemic in Afghanistan. A 2010 survey by UN Women found that nearly 90 per cent of Afghan women had experienced physical, sexual or psychological violence in their lifetime, with 62 per cent experiencing multiple forms. DFAT assesses that the findings of this report remain valid. Violence may take the form of kicking, slapping, and beating with weapons such as wire, sticks, and gun butts. Acid attacks occur frequently, with many attributed to armed groups opposed to girls’ education and others committed by rejected suitors. Most violent attacks go unreported. Women who seek help to escape sexual or physical violence often face indifference or criminal sanctions for committing ‘moral crimes’ such as adultery or running away from home… Women who walk outside unaccompanied by a man often experience abuse or harassment, including physical groping, and are likely to be blamed for the assault…

    The continuing conflict has a particular impact on women and girls, who are not only killed and injured in high numbers but suffer restricted access to education and healthcare and freedom of movement. Women face additional difficulties when displaced by conflict, or when widowhood makes them the primary breadwinners in their families. In 2018, UNAMA reported that women comprised ten per cent of all conflict-related civilian casualties, with 350 deaths and 802 injuries.

11. The same report refers to the lack of safety and security and the high number of civilian casualties due to the ongoing conflict.

12. Having regard to that information, the Tribunal accepts the applicant’s evidence that return to Afghanistan may be unsafe for the family and will increase the risk of attack and also remove many opportunities from the applicant’s children, particularly her daughters.

    Whether there are mandatory legal consequences, such as whether the person would become unlawful and liable to detention and removal, whether detention is a likely consequence of the cancellation decision and if so, for how long, and whether there are provisions in the Act which prevent the person from making a valid application for any visa without the Minister personally intervening.

13. If the applicant’s visa is cancelled and if she does not hold any other visa, the applicant would become an unlawful non-citizen and be subject to mandatory detention and removal from Australia. The applicant may be eligible to make a valid visa application for certain visas without the Minister’s intervention although she may be subject to an exclusion period in relation to some visas. The cancellation of a permanent visa would result in the applicant losing the benefits that she may have been entitled to as a permanent resident of Australia. If the applicant is no longer a holder of a permanent visa, she may be unable to sponsor her partner.

    Any other relevant matters (including the degree of hardship that may be caused to the visa holder and any family members).

14. The applicant provided to the delegate a number of statements of support and employment references for herself and her children. The Tribunal acknowledges that evidence and accepts that those who provided the statements believe the applicant and the family to be of good character, although it is not apparent from the character references that those who prepared the references are aware of the circumstances in which the ground for cancellation arose.

15. The applicant spoke about the hardship that the family has experienced since the cancellation of the visas, affecting the children’s ability to study and work. The applicant refers to the effect the cancellation has had on their mental states. The Tribunal accepts that evidence.

16. The applicant states that her children were born in Iran and know nothing about Afghanistan and had never lived there. They do not have a place to live in Afghanistan and have nowhere to live. The Tribunal is prepared to accept that  evidence.

17. The applicant referred to lack of safety for the family in Afghanistan and this issue has been addressed above.

18. The Tribunal has considered the totality of the applicant’s circumstances. The Tribunal has found that the applicant completed her application form in a way that incorrect answers were given in breach of s. 101 and that there are grounds for cancelling her visa. The Tribunal places significant weight on the fact that the decision to grant the visa was based on incorrect information, as the applicant claimed to be a widow and a woman without male protection due to the death of her husband. These claims were central to her application. In the Tribunal’s view, that factor weighs very heavily in favour of the cancellation. The applicant claims the breach was non-intentional as she genuinely believed her husband to be dead but as the Tribunal has formed the view that the applicant is not a person of credibility and the Tribunal cannot establish with any degree of certainty that the provision of incorrect answers was not deliberate. These factors also weigh in favour of the cancellation.

19. Nevertheless, the Tribunal has decided to place greater weight on other factors. In particular, the Tribunal has accepted the applicant’s evidence that the family would experience significant hardship if the visas are cancelled. This would include loss of education and employment opportunities for the applicant and her children and a risk to their safety and well-being if the family were to locate to Afghanistan. The Tribunal also accepts the evidence that the family has nowhere to live and that the children had never been to Afghanistan. The Tribunal notes that the visas of the six children would also be cancelled if the applicant’s visa is cancelled. As such, significant hardship would be caused to the entire family if the visas are cancelled and the Tribunal also accepts, having regard to the country information cited above, that the situation for the family may be unsafe if they were to return to Afghanistan. The Tribunal has formed the view that the best interests of the two minor children would be best served by their presence in Australia and if the visas are not cancelled. In the particular circumstances of this case, the Tribunal has determined that these factors should be given greater weight.

20. The Tribunal has decided that there was non-compliance by the applicant in the way described in the notice given under s.107 of the Act. Further, having regard to all the relevant circumstances, as discussed above, the Tribunal concludes that the visa should not be cancelled.

    DECISION

21. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the first named applicant’s Subclass 204 (Woman at Risk) visa.

22. The Tribunal has no jurisdiction with respect to the other applicants.

    Kira Raif
    Senior Member