2008031 (Refugee)

2008031 (Refugee) [2020] AATA 5376 (11 November 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  2008031
COUNTRY OF REFERENCE:                   China
MEMBER:Antoinette Younes
DATE:11 November 2020
PLACE OF DECISION:  Sydney
DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 866 (Protection) visa.
Statement made on 11 November 2020 at 12:00pm

CATCHWORDS
REFUGEE – cancellation – protection visa – China – incorrect information in application – identity of applicant’s father – denied knowledge of identity and whereabouts – effect of father’s identity on protection claims – one-child policy – second child born out of wedlock – role of applicant’s former migration agent – applicant is a minor – best interests of the child – decision under review set aside
LEGISLATION
Births, Deaths and Marriages Registration Act 1995 (NSW), s 57
Migration Act 1958 (Cth), ss 48, 98, 99, 101, 107, 109, 438
Migration Regulations 1994 (Cth), r 2.41
CASES
DXQ16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1184
MIAC v Khadgi (2010) 190 FCR 248
Minister of State for Immigration and Ethnic Affairs v Ah Hin Teoh (1995) 183 C.L.R. 273
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration to cancel the applicant’s Subclass 866 (Protection) visa under s.109(1) of the Migration Act 1958 (the Act).
The delegate cancelled the visa on the basis that the applicant (a minor) had breached s.101 of the Act. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
Although in the hearing response form, the representative advised that the applicant would appear before the Tribunal, the applicant’s mother, [Mrs A], appeared before the Tribunal on 4 November 2020 to give evidence and present arguments, on the applicant’s behalf. Given admissions made in the course of the hearing, the fact that the applicant is a minor, as well as the fact that all claims were made by the mother, the Tribunal accepted the mother’s appearance on behalf of the applicant.
The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
The applicant was represented in relation to the review by her registered migration agent.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.
SECTION 438(1)(b) CERTIFICATE
The Departmental file contains a s.438(1)(b) Certificate relating to documents on file on the basis that the disclosure of the information subject to the Certificate might result in ascertaining the existence or source of the confidential information. As advised in the course of the hearing, the Tribunal considers the Certificate to be valid. Given admissions made in the course of hearing, the Tribunal did not consider necessary or relevant to refer to the information subject to the Certificate.
CONSIDERATION OF CLAIMS AND EVIDENCE
Section 109(1) of the Act allows the Minister to cancel a visa if the visa holder has failed to comply with ss.101, 102, 103, 104, 105 or 107(2) of the Act. Broadly speaking, these sections require non-citizens to provide correct information in their visa applications and passenger cards, not to provide bogus documents and to notify the Department of any incorrect information of which they become aware and of any relevant changes in circumstances.
The exercise of the cancellation power under s.109 of the Act is conditional on the Minister issuing a valid notice to the visa holder under s.107 of the Act, providing particulars of the alleged non-compliance. Where a notice is issued that does not comply with the requirements in s.107, the power to cancel the visa does not arise. Extracts of the Act relevant to this case are attached to this decision.
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?
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.
Section 101 provides that:
Visa 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.
In support of the application for review, the applicant provided to the Tribunal a copy of the delegate’s decision record which indicates that.
·The applicant was born in Australia on [date]. Her NSW Birth Certificate refers to [Mrs A] as her mother. No father is named. On her behalf on 10 October 2012, an application for a Protection (subclass 866) visa was lodged. As part of the application, a Form 866B - Application for a Protection (Class XA) visa and a Form 866C – Application for an applicant who wishes to submit their own claims to be refugee were provided.
·In response to question 12 of Form 866B which asks “Do any of the persons included in this application at Question 1 have close relatives who are IN AUSTRALIA at the time of application?”, details of the applicant’s mother [Mrs A], date of birth [date] and the applicant’s brother [Mr B] born on [date], were provided. At Question 42 of Form 866C asking “I am seeking protection in Australia so I do not have to go back to (Give name of country of countries)” “China” was the answer. At Question 43 of Form 866C asking “Why did you leave that country?”, reference was made to a “…personal statement”. At Question 45 of Form 866C asking “What do you fear may happen to you if you go back to that country?”, reference was made to an attached “…personal statement”. At Question 46 of Form 866C asking “Who do you think may harm/mistreat you if you go back?”, reference was made to an attached “…personal statement”. At Question 47 of Form 866C asking “Why do you think this will happen if you go back?”, reference was made to an attached “…personal statement”.
In the relevant personal statement dated 8 October 2012 and signed by the applicant’s mother, the following claims were made:
In Australia, mum met a guy and fell in love with him. Unfortunately the guy dumped her when mum was two month pregnant with me. Although I am growing up in a single parent family, I am a happy girl.
While mum was hiding from the persecution from the Chinese Government in Australia, she met a guy who was very nice to her. So she fell in love with him and moved in with him soon. The guy was very good to her at first. He cared about her and supported her financially. But soon mum found he was a gambler. And his love to mum did not last long. When mum was two months pregnant with me, that guy dumped her without any notification on [date]. Mum tried every means to find him because she did not want me to lead a life without a father. But she failed. That guy disappeared completely.
I carry my mum's surname because I don't know who my father is and I never meet him.
Mum had a failed marriage while she was in China. And she gave birth to my elder brother on [date] in China. I'm her second child. Mum had been separated from my brother for some years because her ex-husband would not allow her to take my brother out here.
At the same time, mum could not take me back to China because of the one child policy, which had been carried out for about thirty years. The kids, like me, whose parents are living overseas and who is the second child in the family and doesn't have a birth permit, would not be granted as a registered resident. That is to say it would be illegal for me to live in China. My mum would have to pay for the heavy penalty for having me and would have to pay the full amount for my education, including my primary education, my junior high education and my senior high education. As you know that each year's primary and high school full expense in China would be equal to the full year income of a wage earner. This is far beyond my mum's financial capability. That is to say if I go to China, I would have no chance to receive any education there. Besides, the child without a birth permit would be greatly looked down upon and discriminated by other students. Nobody would like to make friend with him/her. No student would like to do the team work with him/her. How miserable that is (sic).
The applicant claimed that she fears returning to China and referred to China’s ill-treatment.
On 19 November 2012, the Department refused the application for a Protection visa and an application for review was lodged with the then Refugee Review Tribunal (RRT). The claims for protection were essentially the same as the claims made in the visa application, focussing on potential harm based on China’s one-child policy. The RRT set aside the refusal decision on 9 December 2013 and found that the applicant was owed Australia’s protection. On 11 February 2014 the applicant was granted a Protection visa.
Departmental records show that the applicant’s mother had declared to both the Department and the RRT that she married in 2005 in China and has a son, [Mr B], born on [date]. In the mother’s application for a [visa] lodged offshore in February 2010, she stated that she was leaving behind her husband and son. This is different to the responses in the mother’s own application for a Protection visa lodged in July 2011 where she claimed that she had separated from her husband when her son was one year old. Furthermore, the mother claimed to the RRT that her former husband was [Mr C], born [date].
Departmental records show that the husband, [Mr C], born [date] first arrived in Australia as the holder of a [visa] granted on 4 September 2009. He remained unlawful in the community for four years before lodging an application for a Protection visa on 1 October 2013. At Question 36 of Form 866C, he listed all of his residential addresses in Australia. He indicated that he had resided at [Address 1] from October 2010 until September 2011. The applicant was born on [date] and her mother’s address showing on her birth certificate issued on [date], was the same. This is also the same address the applicant’s mother [Mrs A] listed on her application for a Protection visa lodged on 18 July 2011, with her answering that she had resided at this address from January 2011. Both [Mr C] and [Mrs A] indicated in their respective application for Protection visas lodged on 1 October 2013 and 18 July 2011 that they also resided at [Address 2]. The applicant’s mother indicated that she had been living at that address since [date], the month of the applicant’s birth. For the period September 2011 to November 2012, [Mr C] answered that he lived at a neighbouring property at [Address 3].
The information indicates that all three persons have some overlap in their declared addresses around the period of the applicant’s birth. The addresses of [Address 2] and [Address 1] have been resided at by both [Mrs A] and [Mr C] at the same time for significant periods. Information indicates that in their application for Protection visas, [Mr C] and [Mrs A] claimed they have been doing volunteer work for [Church 1] and have received help from the church as neither were employed. [Mr C] was baptised in December 2009 at the Church. A letter of support by Reverend [D] of [Church 1] dated 8 February 2017 notes that the applicant was baptised at the church [in] September 2011 and the applicant and her mother are regular Church attendees who are involved in the Church community.
Notice of Intention to Consider Cancellation (NOITCC)
On 24 June 2016 the Department sent to the applicant a NOITCC indicating that there is of incorrect information provided in her application for a Protection visa. On 19 January 2017, the Department sent a second NOITCC. On 4 July 2016, 18 July 2016 and 10 February 2017, the applicant provided responses essentially denying non-compliance. The applicant indicated that her father left her mother when she was pregnant. She has no idea who or where he is. As claimed, she is her mother’s second child. Her mother was separated from her former husband and the marriage is “dead”. In relation to [Mr C], “…I did know this man, I have no memory about him, I stick to what I have stated, and I believe I did not give any incorrect answer.”
International Treaties Obligations Assessment (ITOA)
On 24 October 2017, the Department finalised an ITOA, finding that non-refoulement obligations were not engaged.
On 15 February 2018, although a delegate found that there was non-compliance with s.109, the delegate decided not to cancel the visa on discretionary grounds.
Subsequent events
On 15 February 2017 the Department received additional information which raised further concerns, including:
·The applicant’s father, [Mr C] and mother and mother, [Mrs A] provided evidence to the Department in support of their respective submissions for Ministerial Intervention under section 417 of the Act.
·In a statutory declaration signed and dated by [Mrs A] on 23 March 2018, she stated the following in part:
“…Spouse: name: [Mr C] DOB: [date] in Australia
…I am still in the marriage relationship…”
·On 29 March 2018 [Mr C] provided submissions by his stating that he, and [Mrs A] are married and have resided in Australia for a lengthy period of time.
·On 4 May 2018 [Mr C] provided further information, including his addresses since the applicant’s birth, and the applicant’s and her mother’s addresses since her birth, as follows:
A.September 2009 to November 2013 – [Address 4]
B.November 2013 to January 2018 – [Address 5]
C.January 2018 to March 2018 – [Address 2]
D.March 2018 to present – [Address 6]
·The applicant’s and her mother’s addresses since her birth:
(1)September 2011 to January 2012 – [Address 1]
(2)January 2012 to March 2018 – [Address 2]
(3)March 2018 to present - [Address 6]
·On 11 May 2018 [Mr C] provided further submissions by his representative noting that in September 2014, “he came to know” that the applicant was his daughter.
·On 16 May 2018 [Mr C] provided DNA test results confirming there is a 99.99993% chance he is the applicant’s biological father. In his application for a Protection visa lodged on 1 October 2013, he claimed to be living at [Address 2], which is the same address that the applicant and her mother lived at the relevant time. The information above suggests that the applicant provided incorrect information in the Protection visa application, the response to the NOITCC of 9 January 2017 and to the RRT by claiming that she was conceived as a result of a de facto relationship which ended before she was born, that her father abandoned her mother, that his whereabouts were unknown.
·The correct information is that [Mr C] is the applicant’s biological father, that [Mrs A] and [Mr C] were not separated, that [Mr C] whereabout are known.
Notice of Intention to Consider Cancellation
On 12 November 2019, the Department sent to the applicant another NOITCC to which she responded on 14 January 2020. The delegate concluded that there has been non-compliance and the applicant’s visa was cancelled.
Material provided to the Tribunal and hearing
The applicant provided submissions and supporting documents essentially relating to her schooling.
In the course of the hearing, the Tribunal discussed with [Mrs A] all relevant information contained in the delegate’s decision record and indicated that the totality of the evidence and particularly the DNA test results confirming there is a 99.99993% chance [Mr C] is the applicant’s biological father, indicate that incorrect information has been provided in the applicant’s application for a Protection visa.
[Mrs A] admitted that incorrect information had been provided. She stated that the former migration agent who has been deregistered had advised on the application, including the nature of the claims. She stated that she just signed the forms.
The Tribunal expressed concerns that although it is possible that such an agent had assisted, there is the issue that over the years and indeed up until the Tribunal’s hearing, incorrect information had been provided to multiple Australian authorities suggesting an informed decision by [Mrs A] to continue to provide incorrect information, even to the RRT. She stated that the former agent told her he could assist her. She said that she no longer wants to “lie…cheat”. She said that she recognises she had a made a mistake but explained that she did not understand English.
The Tribunal appreciates that the applicant who is a minor (she is now [age] years old) and that she did not complete the form or provide any information subject to the NOITCC. The Tribunal is satisfied that [Mrs A] provided all the relevant information on the applicant’s behalf. In this case, ss.98 and 99 are relevant.
Section 98 provides:
Completion 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.
Section 99 provides:
Information 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.
Consequently, for the purpose of s.101(b) and pursuant to ss.98 and 99, the applicant is taken to have provided the incorrect information. On the evidence, the Tribunal finds that there is non-compliance with s.101(b) as described in NOITCC. The Tribunal finds that the applicant provided incorrect information when she claimed that her father was her mother’s former partner who left her mother, that her mother’s marriage was “dead”, that she did not know the details of her father, or his whereabouts. Central to the applicant’s protection claims are the contentions that she would face harm by the Chinese authorities based on having an adverse profile for being a second-born child who was born out of wedlock.
In essence and for those reasons, the Tribunal finds that there was non-compliance with s.101(b) by the applicant in the way described in the s.107 notice.
Should the visa be cancelled?
As the Tribunal has decided that there was non-compliance in the way described in the notice given to the applicant under s.107 of the Act, it is necessary to consider whether the visa should be cancelled pursuant to s.109(1). Cancellation in this context is discretionary, as there are no mandatory cancellation circumstances prescribed under s.109(2).
In exercising this power, the Tribunal must consider the applicant’s response (if any) to the s.107 notice about the non-compliance and have regard to any prescribed circumstances: s.109(1)(b) and (c). The prescribed circumstances are set out in r.2.41 of the Regulations. Briefly, they are:
· the correct information

The correct information is that the applicant’s father is [Mr C], her father is not her mother’s former partner who left her mother, that her mother’s marriage was not “dead”, that she did know the details of her father’s whereabouts, that she has no protection claims based on being a second-born child who was born out of wedlock.
The incorrect information has been provided on multiple occasions. The Tribunal acknowledges [Mrs A]’s explanation about the former agent. The representative made submissions confirming that the former agent was deregistered. Subsequent to the hearing, the Tribunal obtained further information about the former agent. A record of the cancellation of the agent’s registration as a migration agent was found. The record shows that [in] 2017, the OMARA (Authority) decided to cancel the agent’s registration on the basis that:
[In] 2017 the Authority made a decision to cancel the registration of [name]. The Authority investigated two complaints made against the Agent and was satisfied that the Agent had breached the following clauses of the Code of Conduct for registered migration agents: Clauses 1.12, 2.1, 2.4, 2.6, 2.9, 2.9A, 2.23, 3.2A, 8.1, 8.2 and 8.3. In summary, the Authority was satisfied that the Agent: - Misled the Authority by failing to declare that she was related by employment to a person who was not of integrity; - Entered into a business arrangement with a person who had already been found by the Authority to not be a person of integrity and provided a vehicle to this person and her staff to provide immigration assistance whilst unregistered; - Failed to exercise effective control over her migration practice through this business; and - Lodged multiple Protection visa applications to the Department of Immigration and Border Protection which contained false and plagiarised claims. Accordingly, the Authority decided that the Agent was not a person of integrity, nor a fit and proper person to provide immigration assistance[1].
[1] [Source deleted] – accessed 5 November 2020
The Tribunal accepts the version that the registration of the agent who assisted in the Protection visa application was cancelled on the basis, amongst other things, of lodging Protection visa applications containing false information, as is the case in this matter. However, the fact that [Mrs A] continued to provide the incorrect information for many years and to multiple organisations, including the RRT, means that the Tribunal gives her explanations little weight in her favour.
The incorrect information was even provided to the NSW Registry of Births Deaths & Marriages – as evidenced by the applicant’s birth certificate which does not provide any details about the father. The Tribunal observes that the provision of incorrect information to the NSW Registry of Births Deaths & Marriages is an offence that could carry a term of imprisonment; Section 57 of the Births, Deaths and Marriages Registration Act 1995 (NSW) provides:
False representation

A person who makes a representation in an application, notice or document under this Act or in response to a notice under section 44 of this Act (Registrar’s powers of inquiry), knowing the representation to be false or misleading in a material particular, is guilty of an offence.
Maximum penalty—100 penalty units or 2 years imprisonment, or both.
As explained in the course of the hearing, [Mrs A]’s conduct in providing incorrect information could amount to the commission of an offence, which the Tribunal considers to be serious. However, this is not the conduct of the applicant who is a minor and had nothing to do with the registration of her birth. The Tribunal is referring to this issue in order to consider [Mrs A]’s explanations that the provision of the incorrect information was the former agent’s fault.
The provision of information in the application for the Protection visa and supporting documents is serious and the Tribunal gives this consideration significant weight in favour of cancellation.
· the content of the genuine document (if any)
There is no issue concerning a genuine document.
The Tribunal gives this aspect neutral weight.
· 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 applicant was granted a Protection visa following findings by the RRT that the applicant was owed Australia’s protection based on claims made in the application for a Protection visa. In essence, the totality of the claims made by [Mrs A] are that:
·The applicant does not know her father’s details or whereabouts.
·The applicant was baptised as a Christian in Australia and is from a Christian family facing persecution in China.
·The applicant would be an unregistered black child in China because she was born as the second child in breach of the Chinese authorities’ family planning policies.
·[Mrs A]’s son was born in China from her first marriage and has a hukou. She is a single mother no longer in contact with her husband or son who lives with his paternal grandparents. She has no proprietary rights to her marital home in China. She is unable to pay the social compensation penalty to register the applicant as she is now a single mother with no income and would be required to care for her elderly parents upon return to China. As a consequence of not being able to pay the fine to obtain ‘hukou’ registration in China, the applicant would be denied access to education and medical facilities.
·The applicant is deaf in one ear and as an unregistered child she would face discrimination, denied access to medical treatment and suffer psychological harm.
·[Mrs A]’s extended family in China are unable to financially support her to pay the social compensation fine for her daughter to obtain a Hukou. [Mrs A]’s partner at the time (the applicant’s claimed father) had abandoned them before the applicant’s birth and despite having left a sum of money to them she does not know where he resides. [Mrs A] is separated from her former husband because he was an alcoholic and abusive towards her.
·The RRT accepted that the applicant was born in breach of the family planning regulations in China and that [Mrs A] was a single mother who was unable to pay the social compensation fee. The RRT was satisfied that the [Mrs A] would not be able to prevent these penalties from being imposed against the client and that there was a real chance that the applicant would be subjected to treatment that would amount to persecution by the authorities in China, for reasons of her membership of a particular social group, namely black or unregistered children in China.
The Tribunal is satisfied that the decision to grant the Protection visa to the applicant is wholly or partly based on the incorrect information.
The Tribunal gives this aspect weight in favour of cancellation.
· the circumstances in which the non-compliance occurred
The circumstances occurred when [Mrs A] provided the incorrect information. Pursuant to ss.98 and 99, the applicant is considered to have provided the incorrect information.
The Tribunal however is satisfied that the applicant who is a minor had nothing to do with the provision of the incorrect information and that it was beyond her control. The applicant was about one year’s of age when the application for a Protection visa was lodged. She is now [age] years old and there is no evidence before the Tribunal to suggest that the applicant has been involved in the provision of the incorrect information or that she could be accountable in any way for a conduct which has been orchestrated by [Mrs A], the applicant’s mother.
The Tribunal is satisfied that it would harsh and unjust not to give those matters proper consideration.
The Tribunal gives this consideration significant weight against cancellation.
· the present circumstances of the visa holder
The representative provided submissions and supporting documents relating to the applicant’s current circumstances.
The applicant is [age] years of age and she was born in Australia. She speaks English and Mandarin but can only read and write in English. Her brother is in China. She resides with her parents who are holders of [visas] granted on the basis of their requests for Ministerial Intervention (which contain incorrect information). She currently attends school and she is in Year [level]. In the Semester 2020 school report, it was noted that she is performing at the level expected of her age. She is observed to be friendly, respectful, patient and cooperative. The report refers to many of her strengths.
[Mrs A] gave evidence that the applicant does not know about the details of the cancellation and that she has always known that [Mr C] is her father.
The Tribunal is satisfied that the cancellation of the visa would cause the applicant significant instability in terms of her education, personal and emotional developments. Those potential consequences are particularly significant when considered in light of the fact that the events that led to the cancellation of her visa were beyond her control.
The responsible adult for provision of incorrect information is [Mrs A] and most likely [Mr C].
The Tribunal gives this aspect significant weight in the applicant’s favour.
· the subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act
Up until the hearing on 4 November 2020, [Mrs A] continued to provide incorrect information. Her concession in the course of the hearing that she made a ‘mistake’ suggests to the Tribunal that [Mrs A] is not demonstrating genuine contrition or acknowledgment of responsibility. Her provision of incorrect information is serious and widespread, raising concerns for the Tribunal.
The Tribunal gives this aspect weight in favour of cancellation but this needs to be balanced in the context that this is not the applicant’s conduct.
· any other instances of non-compliance by the visa holder known to the Minister
There is no issue concerning other instances of non-compliance.
The Tribunal gives this aspect neutral weight.
· the time that has elapsed since the non-compliance
The non-compliance occurred on 12 October 2012 when the applicant lodged an application for a Protection visa.
The Tribunal is satisfied that given that the applicant is a minor who was born in Australia about [age] years ago, 8 years is a significant period of time. She has spent most of her childhood in Australia. It is fair to suggest that she has developed friendships and connections which are important for a child.
The Tribunal gives this aspect significant weight in the applicant’s favour.
· any breaches of the law since the non-compliance and the seriousness of those breaches
As mentioned earlier, there is evidence of potential breach of s.57 of the Births, Deaths and Marriages Registration Act 1995 (NSW) which provides:
False representation

A person who makes a representation in an application, notice or document under this Act or in response to a notice under section 44 of this Act (Registrar’s powers of inquiry), knowing the representation to be false or misleading in a material particular, is guilty of an offence.
However, this is not the applicant’s conduct who had nothing to do with the registration of her birth and she cannot in any way be held responsible for [Mrs A]’s and/or [Mr C]’s conduct in this regard.
The Tribunal gives this aspect neutral weight.
· any contribution made by the holder to the community.
The applicant is a minor and in the Tribunal’s view, she has made contribution in her school community. The Tribunal acknowledges and gives favourable weight to that contribution.
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 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
The cancellation of the applicant’s visa could result in the applicant’s detention and potential removal from Australia. The applicant would also be impacted by s.48 of the Act which means that she may face difficulties in applying for any further visas in Australia and in being granted an Australian visa.
Although, the Tribunal considers potential detention and removal from Australia as well as the s.48 bar to be intended legislative consequences, in the applicant’s case and as a minor, those consequences are significant.
The Tribunal gives this aspect weight in the applicant’s favour.
·whether there would be consequential cancellations under s.140
There is no evidence that the cancellation of the applicant’s visa would result in the cancellation of the visa of another person, pursuant to s.140.
The Tribunal gives this aspect neutral weight.
·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.
Australia is a signatory to a number of international instruments. By being a signatory, Australia has a commitment.
The 1951 United Nations Refugee Convention (Refugee Convention) and its 1967 Protocol as well as the of the United Nations Convention on the Rights of the Child done at New York on 20 November 1989 (CROC) are relevant.
The central protection claims made by the applicant relate to being a child born out of wedlock as well as Christian-related claims. For the stated reasons above, the Tribunal has found that the claim based on being born out of wedlock is based on incorrect information. Therefore, the Tribunal finds that there is not real chance or risk of the applicant facing serious or significant harm on this basis. In relation to fear of harm based on Christianity, given the extent of the provision of incorrect information and for reasons of credibility, the Tribunal is not satisfied that there is a real chance or risk of the applicant facing serious or significant harm on this basis. The Tribunal therefore finds that the applicant is not a refugee as defined and consequently, there are no non-refoulement obligations owed on this basis.
In regards to the CROC, the Tribunal observes that Art. 3(1) provides:
In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.
The applicant is a minor and her interests must be considered in the context of the CROC. There is substantial judicial guidance on this issue and recently in DXQ16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1184, the Court reaffirmed the proposition that the best interest of the child must be given primary consideration. In Minister of State for Immigration and Ethnic Affairs v Ah Hin Teoh (1995) 183 C.L.R. 273, although the Court noted that the CROC does not have the force of law for Australian domestic purposes, by being a signatory to the CROC, there is an expectation that a decision maker would act in accordance with the provisions of the CROC. That is, in any action concerning children, primary consideration of their interests must be given.
The representative submitted that it is in the best interest of the applicant to remain in Australia. The Tribunal is satisfied that the cancellation of the applicant’s permanent visa, albeit granted on the basis of the incorrect information provided by her mother on her behalf, would not be in her best interest. She was born in Australia and has only known Australia to be her home. Although she can speak Mandarin, she is fluent, reads and writes English only. She is doing well at school and she is actively involved in her in sports and other activities. It is reasonable to suggest that she has developed connections and relationships within her school. The Tribunal is satisfied that it is in her best interest for the visa not to be cancelled.
The Tribunal gives primary consideration to the applicant’s best interest.
·any other relevant matters, including the degree of hardship that may be caused to the visa holder and any family members.
The Tribunal is satisfied that the visa cancellation would result in emotional, psychological, educational and developmental hardship. The Tribunal gives those matters significant weight in the applicant’s favour.
There are no other matters requiring consideration.
Concluding remarks
The Tribunal has carefully considered the material before it individually and cumulatively.
There are limited aspects in favour of cancellation. On balance, the Tribunal is satisfied that her best interests as a child, the fact that the provision of the incorrect information was beyond her control, and the hardship that she could face weigh heavily in her favour.
The Tribunal takes the opportunity to express its concerns about the conduct of [Mrs A] who orchestrated false claims for migration purposes. She has not succeeded in being granted an Australian permanent visa and up until the hearing, she continued to mislead the Australian authorities as well as the Minister when requesting Ministerial Intervention. Although the cancellation scheme is not intended to be punitive or rewarding, the Tribunal’s decision is not a ‘reward’ for [Mrs A] but it is in the best interest of the applicant who is a minor and had no control over any of the provision of the incorrect information.
The Tribunal has decided that there was non-compliance by the applicant in the way described in the NOITCC. Further, having regard to all the relevant circumstances, as discussed above, the Tribunal concludes that the visa should not be cancelled.
DECISION
The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 866 (Protection) visa.
Antoinette Younes
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 5376

11 November 2020

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