2112710 (Migration)

[2022] AATA 689

2112710 (Migration) [2022] AATA 689 (8 March 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2112710

MEMBER:Kira Raif

DATE:8 March 2022

PLACE OF DECISION:  Sydney

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 801 (Spouse) visa.

Statement made on 08 March 2022 at 12:01pm

CATCHWORDS
MIGRATION – cancellation – Partner (Residence) (Class BS) – Subclass 801 (Spouse) – incomplete or incorrect answers in visa application – previous visa under different name and date of birth, overstay and departure on bridging visa not declared – facial image comparison – non-compliance on most grounds conceded – discretion to cancel visa – application completed by then partner with applicant’s knowledge – unable to obtain genuine birth certificate and passport for first visit – family violence and relationship ceased – Australian citizen child – safety and support – Family Court parenting order may prevent child from leaving Australia – best interests of child – applicant’s previous sexual abuse and physical and mental health – long residence and limited or no links to home country – no consideration of possibility of serious harm in home country – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 101(a), (b), 107, 109(1)
Migration Regulations 1994 (Cth), r 2.41

CASES
Parata v MHA [2020] FCCA 1582
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 801 (Spouse) visa under s 109(1) of the Migration Act 1958 (Cth) (the Act).

2. The applicant claims to be a national of Zimbabwe, born in [Year]. She was granted the Partner (Migrant) visa in June 2012. In January 2018 the applicant was issued with a Notice of Intention to Consider Cancellation (NOICC) because the delegate formed the view she did not comply with s. 101 of the Act. It appears the applicant did not respond to the NOICC and her visa was cancelled in February 2018.

3. The application for review was made in September 2021. Despite the lateness of the application, the Tribunal has formed the view that the notification of the primary decision contained an error of the nature described in Parata v MHA [2020] FCCA 1582. As such, the Tribunal has formed the view that the primary notification was invalid and therefore, the time for review did not commence. The Tribunal has considered the applicant’s submission concerning the validity of the application dated 2 March 2022.

4. The applicant appeared before the Tribunal on 8 March 2022 to give evidence and present arguments. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

   Relevant law

5. 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.

6. 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?

7. 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.

8. The Tribunal has considered the validity of the NOICC. The applicant claims in her submission of 2 March 2022 that the NOICC did not give her sufficient information about how or when to provide a response. The Tribunal does not accept that argument as the NOICC clearly refers to the 14 day period for response and explains when the letter is taken to be received. In the Tribunal’s view, that was sufficient to comply with the statutory requirement.

9. The Tribunal has formed the view that the NOICC contained sufficient particulars to enable the applicant to identify and address the issues. 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. The Tribunal is satisfied that the delegate made a valid decision and there is a valid application for review before this Tribunal.

10. The applicant also argues that the primary decision was affected by a jurisdictional error (containing an error as a jurisdictional fact) and is therefore a nullity and should be set aside on that basis. Whether or not that is the case, the Tribunal conducts a review de novo and is able to consider the merits of the case whether or not the primary decision is affected by jurisdictional error. It is not necessary for the Tribunal to make that assessment. The applicant has made a valid application for review and the Tribunal is thus able to conduct the review of the delegate’s decision.

    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 the applicant made an application for a Partner visa on 18 September 2009 and completed the application form. In that form the applicant gave the following answers

    a.in response to Question 7 whether she held a Bridging E visa (BVE), the applicant stated ‘no’

    b.in responses to Questions 10 and 13, the applicant gave her name and did not answer the question whether she had been known by any other name,

    c.in response to Question 80 whether the applicant left any country to avoid being removed or deported, the applicant stated ‘no’.

    d.the applicant completed a declaration at Question 96 confirming that the information she provided in her application was complete, correct and up to date in every detail.

13. The applicant was granted the temporary Partner visa on 16 March 2011 and the permanent visa on 4 June 2012. The primary decision record indicates that following the visa grant, the Department received information that the applicant had previously entered Australia under a different identity of [Alias], with a different date of birth. It is stated that under that identity, the applicant first arrived in Australia in December 2008 and did not depart before the expiry of her visa on 30 March 2009. She was granted a Bridging E visa on departure ground and departed Australia on 2 April 2009 holding the BVE.

14. The primary decision record indicates that in October 2017 a facial recognition assessment was undertaken of the image from the applicant’s passport photograph submitted in relation to her Partner application in the identity of [the applicant – maiden name] and the passport photograph submitted by [Alias] in her travel document in support of the BVE application. It was determined by a facial image comparison specialist that the two facial images represented the same person.

15. In her written submission to the Tribunal the applicant denies that she departed Australia to avoid being removed but she claims she left because she wanted to return home. The applicant states that this answer on the form was not incorrect. The applicant agrees, however, that there was non-compliance with respect to the other information she gave on the form, as set out in the NOICC.

16. In oral evidence, the applicant stated that her husband filled in the application form as she is illiterate. The applicant stated that she told her husband that she used the fake passport previously and he was present when she acquired the new passport in Zimbabwe. The applicant stated that her husband told her that if the information was disclosed, it would be harder for her to get the Australian visa.

17. Having regard to the information in the primary decision record and the applicant’s own evidence, the Tribunal finds that the applicant was previously known as [Alias], with a different date of birth. The Tribunal thus finds that the applicant gave incorrect answers in response to a question on the application form whether she had previously held a Bridging E visa. She also completed the application form in a way that not all questions were answered (in response to a question whether she had been known by any other name). The Tribunal finds that the applicant did not comply with ss. 101(a) and (b) of the Act in the way described in the s 107 notice.

    Should the visa be cancelled?

18. 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).

19. 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 reg 2.41 of the Regulations. They are:

    The correct information

20. The correct information is that the applicant was known by another name and had previously held a Bridging E visa. The applicant states in her evidence to the Tribunal that her correct name is [the applicant] (maiden name [Surname]) and her correct name and date of birth are recorded on her Zimbabwean passport and national ID card. The applicant explained the reasons she could not obtain a birth certificate and passport initially and why she was able to do that before her second visit to Australia. The applicant states that she re-entered Australia in July 2009 using the correct name and had only used the correct name and date of birth since that time.

    The content of the genuine document (if any)

21. 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

22. In her submission to the Tribunal the applicant argues that the decision to grant the visa was based on her relationship with the sponsor and was not based on incorrect information. The applicant submits that the provision of the different name is unlikely to have resulted in a different outcome to her visa application. The applicant also submits that any outcome of security checks would not have been adverse to her.

23. The Tribunal considers these submissions misguided because the issue here is not whether the outcome of the application would have been different if the correct information was known but, rather, whether the decision to grant the visa was based on incorrect information. The Tribunal is of the view that  the applicant’s immigration history, including her previous grant and departure on BVE would have been relevant in assessing whether the applicant would have been subject to any exclusion period. It may also have been relevant to the general assessment of the applicant’s character under s. 501 of the Act. The Tribunal also considers that the applicant’s use of a different identity was relevant to the assessment of her character. The applicant submits that there is no basis to the allegations that the police was investigating her under a different identity and the Tribunal places no weight on these allegations because in the Tribunal’s view, there are irrelevant to the present review. It is not necessary for this Tribunal to determine whether the applicant would have passed the character test if she had disclosed her other identity.

24. It may be that if the delegate was aware of this information, the applicant would have still been granted the Partner visa because she was assessed as being in a genuine relationship with the sponsor and met other visa requirements. However, the delegate was denied the opportunity to consider some of the relevant visa criteria (such as character) because of the incorrect answers given by the applicant.

25. Whether or not the incorrect information would have affected the outcome of the visa application, 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

26. The applicant states that the application was completed by her then partner, who was aware that she had sued a passport and held a bridging visa under a different name and she did not check the application form as she is unable to read or write English. In oral evidence, the applicant explained why she was unable to obtain the genuine birth certificate and a genuine passport and how she obtained the false passport for the first visit and a genuine passport for the second visit to Australia. The applicant confirmed that her husband who was completing the forms was aware of the use of a different passport and he suggested that this information should not be included because it would be hard for her to get the visa. The applicant agrees that she was aware that incorrect information was being provided in her application. The applicant’s evidence suggests that she was well aware of the fraud and complicit in it.

27. The applicant expressed in her evidence to the Tribunal her remorse for providing the incorrect information and claims she was not the sole party involved in the provision of incorrect information but was assisted by her then partner who was controlling. However, in oral evidence the applicant suggested that she agreed to the provision of incorrect information on the form because she thought it would give her better chances of obtaining the Australian visa.

    The present circumstances of the visa holder

28. The applicant outlined her present circumstances in her written submission to the Tribunal, as well as oral evidence.

29. The applicant states that she is a single mother and her child is an Australian citizen. It is stated that the child has not seen her father since November 2021 due to concerns over her safety and the child is receiving appropriate support. (The representative submits that some of the allegations have been investigated but found to be unfounded.) in the absence of probative evidence that the abuse had taken place, the Tribunal places no weight on the allegations of abuse. However, the Tribunal acknowledges evidence that the child is seeing a psychologist and has expressed suicidal ideations.

30. The applicant states that there is a Parenting order in place giving the applicant and her former spouse shared parenting responsibilities, which precludes the child from leaving Australia without the father’s consent, should the applicant be required to leave Australia. The applicant states that the father has put in place a ‘block’ against the child’s departure from Australia. If true, that evidence indicates that if the applicant was required to leave Australia as a result of her visa being cancelled, there is a real possibility of her being separated from her daughter. The applicant refers to a close relationship she has with her daughter and states that her separation with the child would have significant impact on both her and the child. There is a psychological report before the Tribunal concerning the child. The Tribunal accepts that separation of the applicant and her child would cause significant hardship to both, particularly in the circumstances of this case, given the nature of the applicant’s  relationship with her former spouse and the child’s circumstances. The applicant told the Tribunal that she takes anti-depressants because of her concern for her daughter.

31. The applicant refers to the family violence she experienced during and after her relationship with her former spouse, noting that an AVO was issued in April 2012. The applicant states that she and her daughter had suffered significant harm as a result of the domestic violence and she should continue to receive support in Australia. The Tribunal accepts that evidence.

32. The applicant describes the hardship she had experienced following the cancellation of her visa, including loss of income (Centrelink payments) and housing. She states that she has now been able to obtain accommodation and her daughter is settling at a new school and she has been able to find employment to support herself.

33. The applicant refers to the sexual abuse she has previously experienced and the effect it has had on her well-being.

34. The applicant told the Tribunal that she presently works in [Work sector] and had completed formal study. She wants to be able to support her daughter’s education and upbringing in Australia.

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

35. 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

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

    The time that has elapsed since the non-compliance

37. the application was made in September 2009. Approximately twelve and a half years passed since the non-compliance.

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

38. There are no known breaches of the law.

    Any contribution made by the holder to the community.

39. The applicant refers to her employment in [Work sector] and the support she provides to her daughter, stating that she is a positive example to others in the community.

40. 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.

41. There are no persons whose visas 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.

42. The applicant states that if her visa is cancelled, it may lead to an indefinite separation from her child which would not be in the child’s best interests. The Tribunal does not accept there would be indefinite separation, since the applicant is eligible to seek other Australian visas in the future (such as, for example, a parent visa) but the Tribunal acknowledges that if the applicant was required to leave Australia as a result of her visa being cancelled, and if the child is to remain in Australia, this may lead to long term separation of the applicant and her daughter. Evidence before the Tribunal is that the applicant is a primary carer for her daughter as the applicant refers to the safety concerns for the child. The Tribunal accepts that the applicant is a primary carer for the minor child and that there is a close relationship between them. The Tribunal accepts that the present Family Court orders may prevent the child from leaving Australia. The Tribunal thus accepts that if the cancellation of the visa has a potential of separating the applicant from her child, such a cancellation is contrary to the best interests of the child.

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

1. The applicant submits that the cancellation of her visa would lead to the breach of Australia’s non-refoulment obligations. The applicant notes that she is HIV positive and has mental health problems and there is a real chance she could experience deterioration in her physical and mental health in Zimbabwe that amounts to serious harm or inhuman, cruel or degrading treatment or punishment. The applicant stats that she would be unable to access HIV treatment in Zimbabwe as she would be perceived as a sex worker.

2. The applicant states that if she is removed from Australia, she would be separated from her child, which would result in the deterioration of her mental state and that she would be unable to access or afford mental health treatment in Zimbabwe. The applicant refers to lack of adequate health care in Zimbabwe. She states that she had experienced harm in Zimbabwe in the past.

3. The Tribunal is mindful that the cancellation of the applicant’s visa need not equate with her departure from Australia. Importantly, the applicant is eligible to seek a protection visa where such claims would be assessed. The Tribunal has also formed the view, for the reasons set out below, that the discretion should be exercised in favour of the applicant. As such, the Tribunal does not make a determination with respect to the above claims and Australia’s non-refoulement obligations.

4. The applicant refers to Australia’s DFAT report  and states that may have lost the right to return to Zimbabwe because she took up residence in Australia. The Tribunal does not accept that  evidence as there is nothing before the Tribunal to indicate that the applicant has lost her Zimbabwean nationality, which would enable her to return to Zimbabwe.

5. As noted above, the applicant’s child is an Australian citizen and may be unable to leave Australia. The Tribunal considers that the cancellation of the visa, if it was to lead to the applicant’s  departure from Australia, would lead to the breach of the principles of family unity.

   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.

6. If the applicant’s visa is cancelled, and unless she is granted another visa, the applicant will become an unlawful non-citizen and may be subject to detention and removal from Australia. there is nothing to suggest she may be subject to indefinite detention. The applicant will have limited options of applying for other visas onshore without the Ministerial intervention due to the operation o s. 48. She may apply for other visas offshore but would be subject to an exclusion period in relation to some visa categories. If the visa is cancelled, the applicant may lose the entitlements she may have acquired 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).

7. The applicant refers to the length of her residence in Australia, stating that she has formed close supportive friendships with others, has found employment and has been able to support her child. The Tribunal accepts that evidence and generally accepts that the applicant has formed strong links in Australia and that she has limited or no links in her home country.

8. The applicant refers to her and her daughter’s past experiences, stating that they are receiving professional help and should be allowed to continue to receive such help. As noted above, the Tribunal accepts that if the cancellation of the applicant’s visa is to result in the applicant having to depart Australia, this would cause significant hardship to the applicant and her child.

9. The applicant told the Tribunal that she has nobody in Zimbabwe and nowhere to go. She is able to support her child in Australia and provide for the child financially. She wants her daughter to have a better future. Again, the Tribunal accepts that considerable hardship would be caused to the applicant and her daughter if the visa is cancelled.

10. The Tribunal has considered the totality of the applicant’s circumstances. The Tribunal found that there was non-compliance with s. 101 of the Act because the applicant gave incorrect answers on the application form concerning the use of a different identity in the past. Even if the application form was completed by her then husband, the Tribunal is of the view that the applicant had the responsibility for the content of her visa application. The Tribunal has found that there are grounds for the visa to be cancelled.

11. The Tribunal places significant weight on the fact that the applicant was aware of the incorrect answers being provided in the application and gave her consent to it. Even if the application was completed by the applicant’s spouse, and even if the Tribunal were to accept the applicant’s evidence that her husband was controlling, her evidence is that she was aware what information was provided on the application form and agreed to the provision of incorrect answers because she thought it would give her a better chance of obtaining the visa. The deliberate nature of the fraud weighs very strongly in favour of the cancellation.

12. However, the Tribunal has decided that there are strong reasons why the visa should not be cancelled. Most significantly, the Tribunal is of the view that the cancellation of the visa would not be in the best interests of the applicant’s daughter, who is an Australian citizen, and, importantly in the circumstances of this case, the cancellation of the visa may result in the separation of the applicant and her daughter. The applicant’s evidence is that the daughter cannot leave Australia due to the shared parenting orders that are presently in place and if that is the case and if the applicant is required to leave Australia, she may not be able to travel with her daughter. The Tribunal acknowledges that the applicant is the primary caregiver for the child. The Tribunal also acknowledges the applicant’s allegations concerning the child but it cannot make a positive determination whether the alleged conduct has taken place. Nevertheless, the Tribunal accepts there is a close relationship between the applicant and her daughter and that it would cause significant hardship to both if they are to be separated. This is not in the best interests of the child (which is a primary consideration for the Tribunal).

13. The Tribunal also places weight on the fact that significant hardship would be caused to the applicant by the cancellation not only because of her relationship with her daughter, but because of her overall other circumstances. The applicant has been living in Australia for over ten years, she is settled here and has gainful employment. She has formed social and other ties in this country. The Tribunal is not prepared to accept the applicant’s claim that she has lost the right to live in Zimbabwe as it is not supported by any probative evidence (and it would appear that the applicant continues to be a national of that country) but the Tribunal accepts that the applicant’s lengthy absence from that country is likely to cause significant hardship if the applicant was required to return to her home country where she has no links.

14. Overall, the Tribunal has formed the view that the applicant’s present circumstances, the significant hardship that would be caused by the cancellation, the possibility of separation of the applicant with her Australia n citizen child and the best interests of the child outweigh other considerations.

15. 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

16. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 801 (Spouse) visa.

    Kira Raif
    Senior Member