2104126 (Migration)

[2021] AATA 4145

2104126 (Migration) [2021] AATA 4145 (30 September 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2104126

MEMBER:Kira Raif

DATE:30 September 2021

PLACE OF DECISION:  Sydney

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass (155) (Five Year Resident Return) visa.

Statement made on 30 September 2021 at 12:45pm

CATCHWORDS

MIGRATION – cancellation – Return (Residence) (Class BB) visa – Subclass (155) (Five Year Resident Return) – incorrect answers in the visa application – Pakistan citizenship – fraudulent identity documents – race – Hazara – applicant’s mother was proposed for visa by her spouse – best interests of the children – decision under review set aside        

LEGISLATION

Migration Act 1958, ss 101-105, 107, 109, 140
Migration Regulations 1994, r 2.41

CASES

MIAC v Khadgi (2010) 190 FCR 248

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

STATEMENT OF DECISION AND REASONS

Application for review

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 (155) (Five Year Resident Return) visa under s.109(1) of the Migration Act 1958 (the Act).

2. The visa applicant claims to be a national of Afghanistan, born in [year]. The applicant was granted the Resident Return visa (RRV) in July 2017. In May 2020 the applicant was issued with the Notice of Intention to Consider Cancellation (NOICC) as the delegate formed the view that she did not comply with ss. 101 and 103 of the Act. The applicant provided her response to the NOICC and her visa was cancelled in March 2021. The applicant seeks review of the delegate’s decision.

3. No hearing was held in this case as the Tribunal was able to make a favourable  decision on the material before it. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

   Relevant law

4. 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.

5. 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.

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

6. 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.

7. 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?

8. 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 and s. 103 of the Act.

   Primary decision

9. The applicant provided to the Tribunal a copy of the primary decision record. It indicates that the applicant made an application for the Global Special Humanitarian (GSH) visa in Subclass 202 in November 2009 as a dependent of her mother [named]. The applicant was proposed in that application by her father [named].

10. As part of that application the applicant completed form 842 in which she gave her name and date of birth and stated that she was born in Quetta, Pakistan and was a citizen of Afghanistan. The applicant was granted the GSH visa on 21 July 2011.

11. The primary decision record indicates that in October 2015 the applicant’s mother made an application for the Australian citizenship. In March 2018 [the applicant’s mother] attended an identity interview, with other family members. During that interview it is stated that [the applicant’s mother] had admitted to being a citizen of Pakistan, stating that her father and grandfather were Pakistani citizens and that she held the passport and a national ID card of Pakistan. [She] also stated that she has a cousin in Australia and Departmental records show him to be a citizen of Pakistan with Pakistani identity documents. The delegate notes that under the Pakistani Citizenship Act, the applicant would have acquired the Pakistani citizenship at birth if her mother was a Pakistani citizen.

12. The delegate concluded that the applicant did not comply with s. 101 because she was a citizen of Pakistan and not a citizen of Afghanistan as claimed in the application form.

13. The primary decision record also indicates that in the GSH application the visa applicant included a tazkera for herself, her mother, sister and other family members. These tazkeras had the sequential numbers, despite being issued in different years, and were referred for verification. In Mach 2018 a forensic document examiner concluded the tazkeras were bogus documents as they were legitimately manufactured but fraudulently altered.

14. In her response to the NOICC the applicant stated that her mother was stressed and confused when questioned about her nationality during the interview and that her mother’s father and grandfather were born in Jaghori. The applicant claims that her mother is not a Pakistan national but states she is an Afghan national and her father and grandfather were Afghan nationals. The applicant claims that her family had been living in Pakistan and her grandfather bribed officials to obtain fraudulent Pakistani identity documents, as thousands of Afghan refugees had done. The applicant state that people born to Afghan parents in Pakistan are not eligible for the Pakistani citizenship. The applicant also provided comments in relation to the tazkeras issued to her mother and sister and the reasons for the discrepancies on these documents, as well as the authenticity of her parents’ marriage certificate.

15. The applicant included a number of documents in support of her Afghan nationality, including the afghan tazkeras for herself and other family members, her parents’ marriage certificate, country information concerning the availability of document fraud in Pakistan (the applicant presented copies of these documents to the Tribunal) and other materials.

16. The delegate has rejected the applicant’s claims. The delegate noted that the applicant’s grandfather would have been over the age of 40 if the family migrated to Pakistan in the 1990’s as the applicant claims, and it would have been unlikely for him to appear as a minor to be included in the identity documents prepared for her great-grandfather, particularly as he would need to attend in person to have a photograph taken. The delegate also noted that the cousin of the applicant’s mother, [named] had provided Pakistani identity documents which identify his great-grandfather as [Grandfather A] while the applicant’s mother also claims that her father paid a bribe to be included in the family composition of a Pakistani national by the name of [Grandfather A]. The delegate considered it implausible that  both the applicant’s grandfather and his brother paid a bribe to be included in the identity documents of the same person or a person by the same name. This is particularly so as the applicant claims the two families migrated to Pakistan some years apart. The delegate considered it more likely that [Grandfather A] is the biological great-grandfather of the applicant and that her mother and other relatives are Pakistani nationals. The delegate reached this conclusion despite the provision of a tazkera by the applicant’s mother, noting in particular that the earlier tazkera provided by the applicant’s mother in her visa application was found to be a bogus document

    Consideration of evidence

17. The applicant’s mother provided several submissions and documents to the Tribunal that address the circumstances leading to the cancellation of her visa. She also gave oral evidence to the Tribunal. The circumstances that resulted in the cancellation of the mother’s visa are the same as those that resulted in the cancellation of the applicant’s visa. The Tribunal’s assessment of the evidence and findings made in relation to these circumstances are set out in some detail in a separate decision made in relation to the applicant’s mother (case number 2104050). As these cases involve substantially the same grounds and the explanations offered by the applicant’s mother apply equally to the applicant’s case, the Tribunal relies on the findings made in the mother’s case, which need not be repeated here. Essentially, the Tribunal had formed the view that the applicant’s mother is a national of Pakistan, rather than Afghanistan, and that she did provide incorrect answers in the application in relation to her country of nationality. The Tribunal found there was non-compliance with ss. 101 and 103 of the Act.

18. For the reasons set out in the mother’s decision, and given the commonality of claims and evidence, the Tribunal makes the same findings in relation to the present applicant. That is, the Tribunal finds that the applicant is a national of Pakistan and not a national of Afghanistan. The Tribunal finds that the applicant gave an incorrect answer on the application form when claiming to be a national of Afghanistan. The Tribunal finds that the applicant did not comply with s. 101 of the Act. The Tribunal further finds, for the reasons set out in the mother’s decision, that the applicant’s tazkera was a bogus document. The Tribunal finds that the applicant gave a bogus document with her application and did not comply with s. 103 of the Act.

19. The Tribunal finds there was non-compliance in the way described in the s.107 notice.

    Should the visa be cancelled?

20. 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).

21. 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

22. The correct information is that the applicant is a national of Pakistan and not a national of Afghanistan.

    The content of the genuine document (if any)

23. The Tribunal has found that the applicant’s tazkera was a bogus document because it was found to have been manufactured. 

    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

24. The decision to grant the GSH visa was based on the applicant being a member of the family unit of the primary visa applicant. The applicant was a minor child at the time the application was made and was therefore a member of the family unit of her mother. It does not appear that the decision to grant the visa would have been dependent on the applicant’s nationality or the number of her tazkera once it was established that the applicant was a dependent child of her mother.

    The circumstances in which the non-compliance occurred

25. As noted above, the applicant was a very young child when the application for the GSH visa was made. The Tribunal does not consider that the applicant had any involvement in the preparation of documents or the making of the application, nor that she had any knowledge of understanding of the matters involved in the application process. The Tribunal has formed the view that the applicant would have had no involvement in the non-compliance and no opportunity to influence the provision of incorrect answers and a bogus document.

    The present circumstances of the visa holder

26. The applicant provided to the Tribunal her school reports and a letter of support from her school. The Tribunal accepts that the applicant attends school and is well settled in the school community. She is well regarded by her teachers.

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

27. Nothing adverse is known about the applicant’s behaviour concerning her obligations under the Act.

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

28. There are no other known instances of non-compliance. 

    The time that has elapsed since the non-compliance

29. The application for the GSH visa was made in November 2009 and close to 12 years passed since the non-compliance. The Tribunal acknowledges it is a lengthy period.

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

30. There are no known breaches of the law

    Any contribution made by the holder to the community.

31. There is no evidence before the Tribunal concerning the applicant’s contribution to the community.

32. 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.

33. There are no persons who would be subject to 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.

34. The applicant is a minor child and her interest would be directly affected by the cancellation of the visa.

35. The Tribunal has formed the view that it is in the best interests of the applicant to remain in Australia. Importantly, the Tribunal decided to set aside the cancellations of her parents’ visas and that means that both of the applicant’s parents are Australian permanent residents, as are two of her siblings. Given the applicant’s age, it is clearly in her best interests to remain with her parents and within the family unit as the applicant is unable to live independently. It is thus in the applicant’s best interests to remain in Australia and that her visa not be cancelled to enable her to do so. The Tribunal also accepts that the applicant, who came to Australia at a very young age, is well settled in this country and has formed close ties to Australia, which may be severed if she was required to leave Australia. Considering the applicant’s circumstances, the Tribunal has formed the view that it is in the best interests of the applicant to remain in Australia with her parents and siblings. It is therefore in the best interests of the applicant that her visa should not be cancelled. 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.

36. The applicant claims to be a Hazara and the Tribunal has formed the view that she is a citizen of Pakistan, rather than Afghanistan. The discrimination faced by Hazaras in Pakistan is well documented. However, the Tribunal is mindful that the applicant is eligible to seek another visa in Australia and if it is determined that the applicant would experience harm or persecution in her home country, she would not be removed from Australia. The Tribunal has formed the view that Australia’s non-refoulement obligations would not be breached as a result of the cancellation.

    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.

37. 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 there are limited types of visas she can apply for onshore. The applicant may be subject to an exclusion period in relation to some visa application made offshore. The cancellation of a permanent visa would result in the applicant losing some benefits that she may have been entitled to as a permanent resident of Australia.

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

38. The applicant’s immediate family are in Australia, including her parents and siblings. Two of her siblings are Australian citizens while her parents and sister are holders of permanent visas (with the cancellation of their visas being set aside by the Tribunal). If the cancellation of the applicant’s visa results in her having to leave Australia, the Tribunal finds that this would cause immense hardship to the applicant.

39. The Tribunal has considered the totality of the applicant’s circumstances. The Tribunal has formed the view, for the reasons set out in the decision record relating to the applicant’s mother, that there was non-compliance with s. 101 and s. 103 of the Act and that there are grounds for cancelling the visa. However, the Tribunal places weight on the fact that the applicant was a small child when the application was made and would not have been involved in the provision of incorrect answers and bogus documents and would not have had any influence in that matter. The Tribunal places weight on the fact that the applicant is a minor who needs to remain with her parents and family, all of whom have Australian permanent visas or Australian citizenship. She cannot live independently and away from her parents. It is in the applicant’s best interests that her visa should not be cancelled. Having regard to all the relevant circumstances, as discussed above, the Tribunal concludes that the visa should not be cancelled.

    DECISION

40. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass (155) (Five Year Resident Return) visa.

    Kira Raif
    Senior Member