2119150 (Migration)

[2022] AATA 4850

2119150 (Migration) [2022] AATA 4850 (19 December 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:Mr Kris Ahn

CASE NUMBER:  2119150

DEPUTY PRESIDENT:  Antoinette Younes

PLACE OF DECISION:  Sydney

DATE OF DECISION:  19 December 2022

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 202 (Global Special Humanitarian) visa.

Statement made on 19 December 2022 at 10:25am

CATCHWORDS

MIGRATION – cancellation – Refugee and Humanitarian (Class XB) visas – Subclass 202 (Global Special Humanitarian) – incorrect answers in the visa application – previous visa application – identity details – Eritrean citizenship – conscientious objector – bogus documents – impact on applicant’s business – best interests of the child – non-refoulment obligations – relationship with an Australian citizen – decision under review set aside         

LEGISLATION

Migration Amendment (Clarifying International Obligations for Removal) Act 2021
Migration Act 1958, ss 5(1), 36, 48, 97-105, 107-109, 140, 197, 198, 359
Migration Regulations 1994, Schedule 2 cl 417.211; Schedule 2, cl 461.212; Schedule 4, Public Interest Criterion 4013; r 2.41

CASES

COT15 v MIBP (No 1) (2015) 236 FCR 148
Ibrahim v MHA [2019] FCAFC 89
MIAC v Khadgi (2010) 190 FCR 248
Wan v MIMA (2001) 107 FCR 133    

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

statement of decision and reasons

application for review

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 202 (Global Special Humanitarian) visa under s 109(1) of the Migration Act 1958 (Cth) (the Act).

2. The delegate cancelled the visa on the basis that the applicant did not comply with 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.

3. The applicant appeared before the Tribunal on 2 November 2022 to give evidence and present arguments.  The applicant provided post-hearing submissions and documents on 13 December 2022.

4. The applicant was represented in relation to the review.

5. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. Section 109(1) of the Act allows the Minister to cancel a visa if the visa holder has failed to comply with ss 101, 102, 103, 104, 105 or 107(2) of the Act. Broadly speaking, these sections require non-citizens to provide correct information in their visa applications and passenger cards, not to provide bogus documents and to notify the Department of any incorrect information of which they become aware and of any relevant changes in circumstances.

7. The exercise of the cancellation power under s 109 of the Act is conditional on the Minister issuing a valid notice to the visa holder under s 107 of the Act, providing particulars of the alleged non-compliance. Where a notice is issued that does not comply with the requirements in s 107, the power to cancel the visa does not arise. Extracts of the Act relevant to this case are attached to this decision.

8. In the present matter, the Tribunal is satisfied that the delegate had reached the necessary state of mind to engage s 107 and that the notice issued under s 107 complied with the statutory requirements.

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

9. 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.

10. The non-compliance identified and particularised in the s 107 notice was non-compliance with s 101 of the Act.

11. In this matter, ss 98 to 100 are also relevant.

12. 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.

13. 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.

14. Section 100 provides:

    Incorrect 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.

15. Section 101 provides:

    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

    Section 375A Certificate

16. In the hearing, the Tribunal advised the applicant that the Departmental file contains a s 375A Certificate dated 20 December 2021, specifying that the disclosure of certain documents is contrary to public interest because “it may disclose lawful methods for preventing, detecting and investigating breaches or evasions of the law and for managing sensitive cases, which would or be likely to prejudice the effectiveness of those methods.”

17. The Tribunal advised the applicant that it considered the Certificate to be valid for the stated reasons.  The Tribunal invited the applicant to make submissions and he stated that he did wish to make any.  The Tribunal explained to the applicant its procedural fairness obligations in the context of the Certificate.

    The visa application

18. In support of the application for review, the applicant provided to the Tribunal a copy of the delegate’s decision record.  During the hearing the Tribunal discussed with the applicant relevant matters as outlined below.

19. By way of background, on 5 May 2016, the applicant lodged an application for a Global Special Humanitarian (GSH) (Subclass 202) visa as a dependent on his spouse, [Wife A] (date of birth [deleted]), who was the primary visa applicant. Their daughter, [Daughter A] (date of birth [date]), was also included in the application.  All three applicants were granted the visas on 3 January 2018 and travelled to Australia [in] March 2018. 

20. For most visa subclasses, including the Subclass 202, applications may be combined if two or more applicants claim to be members of the same family and it is irrelevant that, in a combined application, only one application form has been completed and lodged. Each person who combines their application with another person is an applicant in their own right, has made their own application and must be considered against primary criteria and secondary criteria.

21. The application Form 842 for the Subclass 202 visa included a declaration confirming the completeness and correctness of the answers provided in it, which was signed by both the applicant and his spouse.  

22. In response to question 3 of the Form 842, asking for the details of all other people included in the application, the answer was:

    ·Family name: [name]

    ·Given name: [names variant]

    ·Date of birth: [DOB 1]

    ·Location: Addis Ababa, Ethiopia

    ·Citizenship: Eritrea.

23. In response to question 4 of the Form 842 asking if any person included in the application has ‘been mandated as a refugee or registered with the United Nations High Commission for Refugees (UNHCR)’, the response was in the affirmative.  The following details were provided:

    ·Name: [the applicant’s name variant]

    ·Refugee Mandate number: [number]

    ·Country of mandate: Ethiopia.

24. In response to question 14 of the Form 842 asking for details of all relatives of the main applicant’s partner, the response was as follows:

    ·Biological father: [Father A], born Eritrea, deceased

    ·Biological mother: [Mother A], born Eritrea, deceased

    ·Mother’s maiden name: [name].

25. In response to question 15 of the Form 842 asking if any person included in the application has ever applied for an Australian visa, the answer was ‘No’. In response to question 21 of the Form 842 asking for details of any travel or identity document held by all applicants included in the application, the answer was ‘[Daughter A], type of document CI’, and country of issue, Ethiopia, date of issue, [date], issuing authority, ‘ADMINISTRATION FOR REFUGEE AND RETURNEE AFFAIRS BIRTH CERTIFICATE’.

26. In support of the application, the applicant provided a Form 80 Personal particulars for assessment including character assessment.  In the Form 80, the applicant provided the following responses.

    ·At Question 1, the applicant indicated that he is [the applicant’s name variant], born on [DOB 1] in Addis Ababa, in the State/Province/Region of Showa, Ethiopia.

    ·At Question 4 asking ‘Have you been known by any other name(s)’, the applicant responded in the negative.

    ·At Question 5 asking ‘Have you ever had a different date of birth to the one shown at Question 1?’, he replied ‘No’.

    ·At Question 6 asking ‘Do you currently have citizenship from any country’, the applicant replied ‘Yes, Eritrea’.  In relation to the ‘Date the visa holder gained this citizenship’, the applicant answered, ‘[in] 1991’.

    ·At Question 17 asking for address history for the last 10 years, the applicant answered:

    July 1998 – October 2014: [named location], Eritrea

    October 2014 - March 2016:  Khartoum Refugee Camp, Sudan

    March 2016 – current [named] Refugee Camp, Tigray, Ethiopia.

    ·At Questions 19 and 20, the applicant declared that he had never been employed or had any tertiary education and/or qualifications.

    ·At Question 39 asking ‘Have you ever been refused a visa to any country?’ the applicant answered ‘No’.

    ·At Question 45 asking ‘Do you have siblings? Siblings include full, half and adopted brothers and sisters’, the answer was ‘No’.

27. In the visa application, the applicant’s spouse advised that she has two brothers living in Australia, namely [Brother A], born on [date] in Addis Ababa and [Brother B], born on [date] in Addis Ababa.  [Brother A] was the Proposer of the visa application. Both [Brother A] and [Brother B] advised that they would provide settlement support and assistance to their sister, and her daughter, when they arrived in Australia. The visa application was part of a [Community Proposal].

28. When the visa application was lodged, the applicant advised that he did not have his identity card issued by the refugee camp, but he could acquire it if/when he was requested to attend an interview. He provided a UNHCR Food Ration Card ([number]) and his daughter’s birth certificate, issued by the Administration for Refugee and Returnee Affairs, listing him as her father and his spouse as her mother.

29. The delegate’s decision record indicates that [in] October 2017, the applicant and his spouse were interviewed at the IOM Transit Centre, Addis Ababa, Ethiopia, by a Senior Migration Officer of the Australian High Commission, Nairobi and that during the interview, the applicant advised that they were all born in Addis Ababa but did not have birth certificates. He provided his UNHCR identification ([number]). It is not known what documents he provided to UNHCR to register with them to get this identification. The delegate noted that it was ‘unlikely he submitted birth certificates, as in his interview with the Department he advised he did not have a birth certificate’.

30. The visas were granted based on the above information.   

    Subsequent events

31. The Tribunal discussed with the applicant information contained in the delegate’s decision record that:

    a)There is evidence of another identity. The applicant’s fingerprints were matched with another person, [Alias A], date of birth [DOB 2].  On 22 March 2012 [Alias A] was included as a dependent in a New Zealand (NZ) Citizen (Family Relationship) (Subclass 461) visa application. The main applicant was his claimed sister, [Sister A], date of birth [date]. Both applicants declared that they were born in Ethiopia and were Ethiopian citizens. [Sister A] was married to a New Zealand citizen, [Brother B], date of birth [date], and he was the Proposer of the application.  When the visa application was lodged, [Alias A] was claimed to be [age] years old. On 7 March 2012, his claimed sister signed the declaration and consent at Part O of Form 147 Application for a temporary residence visa (non-business).  [Alias A] also signed the form as a secondary person, thereby indicating that although he was under 18, he was aware of the application.

    b)On 11 June 2012, [Sister A] was interviewed by the Department and indicated that she had two married sisters living in Eritrea, that she had two brothers who were in the military service, that her brother, [Alias A], used to live with his father at the Eritrea/Ethiopia border until his father’s death approximately one year ago, when he then went to live with her in Addis Ababa, and that he does not live with his other siblings as he cannot go back to Eritrea.

32. In support of that application, the following documents were provided:

    ·Ethiopian passport for [Alias A], born in [Town 1] on [DOB 2], [number], valid from [2012] to [2017].

    ·Birth Certificate for [Alias A], born in Tigray, [Town 1] on [date] (Ethiopian calendar), [DOB 2] (Gregorian calendar), issued by the [Town 1] Justice Office [in] 2004. This listed the applicant’s parents as:

    oFather: [Father Alias A], born [on date] (Ethiopian calendar), [on date] (Gregorian calendar);

    oMother: [Mother A variant], born [on date] (Ethiopian calendar), [on date] (Gregorian calendar).

    ·Decision by [Court 1] dated [in] March 2012, declaring [Sister A] as the guardian and tutor of her brother, as his father had died [in] 2011, his mother’s whereabouts was unknown, and his elder brother was working and unable to take care of him.

    ·Marriage certificate, issued by the City Government of Addis Abba, between [Brother B] (mother’s name:[deleted], born [on date]) and [Sister A] (mother’s name; [Mother A variant]). The marriage took place [in] July 2010 and was registered [in] February 2012.

    ·Certification by the National Intelligence and Security Service, Administration for Refugee Returnee Affairs, dated [in] November 2011, certifying that [Sister A] and her daughter, [named], were Eritrean refugees registered in [a named] refugee camp with ration card [number].

    ·On 11 September 2012 [Sister A] was granted a New Zealand Citizen (Family Relationship) (Subclass 461) visa. On the same day, [Alias A’s] visa application was refused as the delegate determined he did not meet cl 461.212(1), as he had not demonstrated he was a member of the family unit of a New Zealand citizen; the delegate was not satisfied he was usually resident with his sister and dependent on her.

    NOTICE OF INTENTION TO CONSIDER CANCELLATION (NOICC) and RESPONSE

33. On 12 November 2021, the Department sent to the applicant a NOICC, which the applicant responded to on 7 December 2021.  The NOICC referred to the information provided in both the Subclass 202 and the Subclass 461 visa applications and advised that the contradictory information suggests that the applicant had breached s 101 in providing incorrect information in the Subclass 202 visa application.

34. In a statement dated 7 December 2021, the applicant confirmed his name as [the applicant’s name], born on [DOB 1] in Addis Ababa, Ethiopia.  He stated that:

    ·He is ashamed and remorseful about the misunderstandings.  He explained that in 2012, he bought bogus documents through a broker in order to assume an Ethiopian identity for the purpose of acquiring a Subclass 461 visa as a dependent. He was refused the visa on the basis that documents were produced within two days of the application and living arrangements that were made for him in order to legitimise the application.

    ·He is sorry for being misleading in his GSH visa application. He did not disclose the previous application to Australia out of fear, anxiety and the ‘high pressure’ of the interview. He should not have provided the incorrect information. Australia has become his heaven on earth, a country that has saved him. Australia has given him a home, dreams, love and a future for himself and his young family. He is ready to die for Australia.

    ·He is contributing to the Australian community as an essential worker and a small business owner. He also believes that everyone deserves a second chance in life.

35. In the submissions dated 7 December 2021, the representative indicated that:

    I.The applicant is a male born in the city of Addis Ababa, Ethiopia on [DOB 1]. To the best of the applicant’s knowledge, the applicant’s biological parents are [Mother A variant], born on [date range] in Eritrea, and she is deceased. His father is [Father A variant], but the father’s date and place of birth are unknown. The applicant was raised by his mother. He does not have any siblings.

    II.[In] February 2010, the applicant married [Wife A] in a customary ceremony in Eritrea. A marriage certificate was obtained but it was post-dated by the Tigray registry in Ethiopia.

    III.The applicant is a conscientious objector and he has refused to serve in the Eritrean military conscription. To avoid persecution, early in 2012, he sought refuge at the refugee camp at [Town 2], Ethiopia. This was the first time the applicant had sought protection. During the process of seeking refuge, the applicant discovered that there would be an opportunity for him to move to Australia through his wife [Wife A’s] brother [Brother B], a New Zealand citizen who lives in Australia.

    IV.In March 2012, the applicant paid a broker to create a new identity and corresponding documents for the identity of [Alias A variant], born on [DOB 2] in [Town 1] Ethiopia, a passport issued with that name [in] 2012 valid until [2017] ([number]), and a certificate issued [in] 2004.  On 22 March 2012, he was included in the Subclass 461 visa as a secondary applicant, in that name, but the visa was refused. On receiving the refusal decision, the applicant immediately disposed of the created documents and continued to live his life using his real identity.

    V.In early 2014, the applicant discovered that there might be an opportunity and a pathway to [Country 1] and Sudan. He therefore moved to the Khartoum refugee camp in Sudan.  He fathered a daughter [Daughter A]. In early 2016, the applicant and his family moved to [a named] Refugee Camp, Tigray, Ethiopia, as their attempts to travel to [Country 1] did not work out.

    VI.On 6 May 2016, the applicant lodged an application for the Subclass 202 visa as a secondary applicant to his wife [Wife A]. Their daughter was included in this application. The application was proposed by [Brother A] in Australia. [In] October 2017, the applicant was interviewed in person by an officer from the Australian High Commission for this application. The officer confirmed the applicant’s identification during the interview and that he is [the applicant], born on [DOB 1]. The visa was granted and the family arrived in Sydney and later moved to Queensland.  In order to find work, the applicant moved to Sydney whilst his wife and daughter remained in Queensland. The applicant and his wife separated around mid-2020 and [in] October 2021, a divorce order was made.

    VII.The applicant admits and confirms that he was included in the 2012 application for the Subclass 461 visa as a secondary applicant under an alias of [Alias A variant]. The applicant confesses that the identity used for the Subclass 461 visa had been fabricated and arranged for the purpose of that visa. The applicant regrets that he knowingly and incorrectly declared no in answer to the question of whether he had previously applied for a visa and also whether a visa had been refused. The incorrect information was solely for the purpose of the 2012 application for the Subclass 461 visa application and not for the GSH visa he currently holds. The only incorrect information provided in the GSH visa relates to his previous visa application and refusal of the Subclass 461 visa. At that time, the applicant was a refugee seeking refuge in a refugee camp run by the UNHCR.

    VIII.The applicant’s visa was not subject to public interest criteria and the applicant would still have been granted the visa even if the Department had identified that the applicant had provided incorrect answers in his GSH visa application “as there was no legal jurisdiction for the decisionmaker to refuse the application”.

    IX.The applicant feels shame about what happened but this was out of desperation to escape the ongoing repression of his human rights during that time. The desperation he felt should be taken into account.

    X.The applicant has established his own business and he works as a sole trader, trading as [Business 1]. The applicant has business ties; in November 2021, he secured a service contract with [Business 2] and he is responsible for [services] to regional areas in New South Wales, and sometimes interstate. The cancellation of his visa means an immediate loss in his right to work, which would cause significant logistical complications to this business.

    XI.The applicant has also purchased a [vehicle 1] using a commercial loan through the [Bank 1], which was established [in] November 2021 for 48 months, ending in November 2025. In the case of cancellation, the applicant would not be able to honour his contractual obligations.

    XII.The applicant has employment ties; he has been working as [an occupation 1], assisting [members] of the community. The applicant has an Australian qualification certificate in [this field] and he is therefore a qualified [occupation 2].

    XIII.It is in the best interests of the applicant’s child that the visa is not cancelled. The applicant remains committed to supporting his daughter by sending to his former wife ‘sufficient ongoing child support’. The applicant communicates with his daughter by telephone and video calls. The applicant has started a new relationship, which is genuine. The applicant’s partner knows his circumstances and about the potential cancellation of his visa.

    XIV.[In] October 2021, the applicant was charged with a traffic offence by turning right when there was no right turn sign. There was no damage to any private or public property. The applicant has not committed any other offence and the traffic offence should not be considered to be serious.

1. Documents provided in support include:

   A.Australian Business Register (ABN) [number] for [the applicant’s name], Individual/Sole Trader, registered [in] July 2021, trading as [Business 1].

   B.Australian Securities & Investments Commission (ASIC), Record of Registration for Business Name for [Business 1], dated [in] July 2021.

   C.Three pages of an 11-page Service Agreement between [Business 2] and [Business 1], dated 27 November 2021.

   D.[Bank 1] -– vehicle loan for a [vehicle 1] for [Business 1] dated 15 November 2021.

   E.Tax invoice from [a named dealer] for the purchase of a [vehicle 1], dated 27 October 2021.

   F.Letter from [name], General Affairs Manager, [Business 2], attesting to the applicant’s employment and character, dated 3 December 2021.

   G.Court Attendance Notice for the applicant to attend court [in] December 2021 for the offence of ‘Disobey no right turn sign-motor vehicle’.

   H.Australian Criminal Intelligence Commission (ACIC) police check dated [in] April 2021 recording no convictions.

   I.[Occupational qualification, specifying modules].

   J.[Employer 1] Individual Flexibility Agreement, signed by the applicant on 24 May 2021, and an [employer ID] card with the name, number and photograph of the applicant.

   K.NSW Driver Licence for the applicant, Class C, expiry [in] January 2024.

   L.Certificate of Identity for the applicant.

   M.Divorce Order between the applicant and his wife, [Wife A], dated [in] October 2021.

   N.Services Australia child support overpayment account for March 2021 to [Wife A].

   O.Letter from [name], the applicant’s current partner, attesting to their relationship and the impact the visa cancellation would have on her, and a copy of her NSW Provisional Driver Licence.

   P.Letters titled ‘To whom it may concern, National Intelligence and Security Service, Administration for Refugee – Returnee Affairs’, relating to the applicant, his former spouse and daughter.

   Material provided to the Tribunal

2. The applicant provided the following material:

   ·Australian Certificate of Identity for [Daughter A] with an expiry date [in] 2020.

   ·List of money transfers to [Wife A]; the most recent occurred on 11 August 2022 for the amount of $8,500.

   ·Photographs of the applicant with his daughter.

   ·Telephone call history.

   ·Boarding pass for the applicant for travels from Sydney to Brisbane on [a day in] October 2022, and for the return flight to Sydney [later in] October 2022.

   ·Independent country information relating to matters such as Eritrea’s mobilisation of military reservists to bolster the army.

   ·Federal Circuit and Family Court of Australia consent orders dated [in] September 2022 relating to parental responsibilities, which are noted to be equally shared between the applicant and his spouse.

3. During the hearing, the Tribunal discussed with the applicant the provision of the incorrect information in the Subclass 202 visa, as conceded by the applicant.  The applicant reiterated that the incorrect information related to the lack of disclosure of matters relating to the Subclass 461 visa, specifically that he had applied for that visa.  The applicant reiterated that the name provided in that visa application, namely [Alias A], date of birth [DOB 2], is a false name.  He said the identity documents provided were not genuine documents but were obtained for the purpose of proving that false identity. 

4. The applicant stated that his name is [the applicant’s name], date of birth [DOB 1].  The Tribunal asked the applicant about identity documents that he used for the purpose of obtaining registration with the UNHCR.  The applicant stated that when he went to Ethiopia, he was a refugee and he did not have any identity documents for the UNHCR registration.  The Tribunal referred to the UNHCR identification ([number]) and asked him how he had obtained the document without any form of ID.  He said that was the process for many refugees seeking registration with the UNHCR.  The Tribunal indicated that this would suggest that the UNHCR had relied on his verbal advice; he agreed with this.  The Tribunal indicated that this would raise doubts about the UNHCR identification ([number]) being a reliable document corroborating his claimed identity.  The applicant maintained that [applicant name] is his real name and that he does not have other corroborative evidence to support this identity. 

5. The Tribunal indicated to the applicant that given his admission that he provided false information and documents previously, it is difficult to accept his current contentions.  The applicant reiterated that he is telling the truth.

6. Given the age differences in the claimed identities in the two visa applications, the Tribunal asked if the applicant has considered any DNA testing that could be available.  The representative advised that they have investigated the issue.  The Tribunal gave the applicant further time to look into this issue.  The applicant said if there is such a test, he is willing and keen to take any such test in order to support his claimed identity. 

7. Subsequent to the hearing, on 13 December 2022, the Tribunal received DNA sibling test results dated [earlier in] December 2022 for the applicant and [Sister A], conducted by [a named agency].  The report outlined how samples were collected and provided an explanation concerning the results.  In essence, the results demonstrate that it is unlikely that [Sister A] and the applicant are full or half siblings. 

8. In submissions to the Tribunal, the representative noted that the:

   DNA testing result from the [agency], dated [in] December 2022, confirms that the review applicant - [the applicant] and [Sister A] are unlikely related either as full or half siblings.  This DNA testing results independently support the review applicant’s unwavering claims that he is NOT [Alias A], born [DOB 2] – a younger brother of [Sister A]; but he truly is [the applicant’s name], born [DOB 1] – the person whom he declared he was on the Global Special Humanitarian (GSH) (Subclass 202) visa application made on 6 May 2016 and granted on 3 Jan 2018.

9. There is contradictory information before the Tribunal relating to the applicant’s identity. There are documents provided in support of the Subclass 461 visa application in the name of [Alias A variant], date of birth [DOB 2].  In contrast, there are documents in support of the claimed identity including, APRA/UNHCR Proof of Registration, UNHCR Refugee Identity Card, National Intelligence and Security Service documents, Administration for Refugee-Returnee Affairs documents, and a Marriage Certificate, showing the applicant as [the applicant’s name], date of birth [DOB 1].  The applicant’s visa was not cancelled on the basis of lack of satisfaction of identity but rather under s 101 of the Act.  While the DNA test results do not prove the applicant’s identity, they are highly persuasive evidence that it is unlikely that he and [Sister A] are full or half siblings, supporting the applicant’s contentions that he is not a younger brother of [Sister A] and as such he is not [Alias A variant].  The Tribunal appreciates that this does not unequivocally prove that the applicant is [name] but it does support aspects of the applicant’s contentions about his identity.

10. On the evidence and given the DNA test results, the Tribunal has decided to assess the applicant’s case on the basis that he is [the applicant’s name].  The applicant’s visa was not cancelled on the basis of identity but under s 101 of the Act.  The applicant has conceded that he did provide incorrect information relating to the previous visa application.  The Tribunal finds that the applicant has breached s 101 of the Act in relation to his answers to questions 15 of the Form 842, and questions 4, 5, 39 of the Form 80.  Although the NOICC referred to other aspects of non-compliance, the Tribunal’s findings do not undermine the validity of the Notice.  For those reasons, the Tribunal finds that there was non-compliance with s 101.   

    Should the visa be cancelled?

11. 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).

12. 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: ss 109(1)(b) and (c). The prescribed circumstances are set out in reg 2.41 of the Migration Regulations 1994 (Cth) (the Regulations). Briefly, they are:

    ·     The correct information

13. The correct information is that the applicant has previously applied for an Australian visa, that he is known by another name, that he has had a different date of birth, and that he has been refused a visa.  The correct information is not what the applicant answered in responses to questions 15 of the Form 842, and questions 4, 5 and 39 of the Form 80.

14. This consideration weighs in favour of cancellation.

    ·     The content of the genuine document (if any)

15. The cancellation was not based on the provision of a bogus document.

16. The Tribunal gives this consideration 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

17. The applicant contends that he is a genuine refugee and despite the incorrect information, he would still be granted the Subclass 202 visa.

18. The Tribunal is of the view that had the delegate known that the applicant had provided incorrect information, the visa application would have been subjected to closer scrutiny leading to a refusal.

19. The Tribunal is satisfied that the grant of the Subclass 202 visa was based wholly or partly on the incorrect information.

20. The Tribunal gives this consideration weight in favour of cancellation.

    ·     The circumstances in which the non-compliance occurred

21. The non-compliance occurred when the applicant provided incorrect responses to question 15 of the Form 842, and questions 4, 5 and 39 of the Form 80.

22. The Tribunal gives this consideration weight in favour of cancellation.

    ·     The present circumstances of the visa holder

23. The applicant has been in Australia for over 6 years.  He has been in an “on-and-off” relationship with an Australian citizen who was overseas at the time of the hearing.  He is now divorced.  He has been working and he runs his own business. 

24. In case of cancellation, he will not be able to work as [an occupation 1].  He will not be able to honour his [contract] with [Business 2]. He will not be able to meet his obligations in relation to the commercial vehicle loan with [Bank 1]. He will not be able to continue supporting his minor daughter financially. As a result, he will suffer emotionally, psychologically, financially, and legally.

25. The Tribunal gives this consideration weight against cancellation.

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

26. In response to the NOICC, the applicant conceded that he provided incorrect information in relation to the previous visa application.

27. The Tribunal gives this consideration some weight against cancellation.

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

28. There is no evidence of any other instances of non-compliance.

29. The Tribunal gives this consideration some weight against cancellation.

    ·     The time that has elapsed since the non-compliance

30. The non-compliance occurred when the applicant lodged the Subclass 202 visa application on 6 May 2016.  He arrived in Australia [in] March 2018.  The evidence before the Tribunal indicates that the applicant has settled into the Australian community.  He is meaningfully employed and runs his own business. 

31. The Tribunal gives this consideration weight against cancellation.

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

32. The applicant has been charged with a traffic offence (turning right when not permitted) since his non-compliance.

33. The Tribunal considers compliance with road rules to be important as, among other things, they relate to the safety of road users.  The Tribunal discussed this issue with the applicant and the Tribunal is satisfied that the applicant appreciates the importance of respecting road rules.

34. The Tribunal has decided to give this aspect some weight in favour of cancellation.

    ·     Any contribution made by the holder to the community

35. The applicant has business ties and he has established his own business as a sole trader, trading as an [Business 1].  He has a service contract with [Business 2] and he is responsible for [services] interstate and to regional areas in New South Wales.  The applicant has employment ties.  He has been working as [an occupation 1], assisting [members] of the community.

36. The Tribunal considers those contributions to be valuable and gives this consideration weight against cancellation.

    Other factors

37. While those 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 Procedures 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

38. There is no evidence of consequential cancellation in this case.

39. The Tribunal gives this consideration neutral weight.

    ·     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

40. The applicant has a child living in Australia; [Daughter A], date of birth [date], is the applicant’s daughter.  Her mother is [Wife A] who was the primary visa applicant.  The applicant is now divorced from [Wife A].

41. As a signatory to the Convention on the Rights of the Child (CROC), Australia has an obligation concerning children in Australia. The CROC applies to children under 18 years of age. By being a signatory, Australia has agreed to act in a manner consistent with the CROC, recognising the best interests of the chid.

42. The CROC sets out the rights of children in 54 Articles and two Optional Protocols. It spells out the basic human rights that children everywhere have: the right to survival, to develop to the fullest, to protection from harmful influences, to protection against abuse and exploitation, and to participate fully in family, cultural and social life. The four core principles of the CROC are non-discrimination, devotion to the best interests of the child, the right to life, survival and development, and respect for the views of the child. The CROC sets out standards in relation to health care, education, legal and civil rights.

43. Article 3 of the CROC states:

    1.     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.

    2.     States Parties undertake to ensure the child such protection and care as is necessary for his or her well-being, taking into account the rights and duties of his or her parents, legal guardians, or other individuals legally responsible for him or her, and, to this end, shall take all appropriate legislative and administrative measures.

    3.     States Parties shall ensure that the institutions, services and facilities responsible for the care or protection of children shall conform with the standards established by competent authorities, particularly in the areas of safety, health, in the number and suitability of their staff, as well as competent supervision. The applicant has one child, Sebastian Chou. In submissions and supporting documents, it was argued that that Australia would be in breach of its international obligations relating to Sebastian whose interest is a primary consideration. The question for the Tribunal is what decision is in the best interest of the child, not what the child might do if the parents were required to cease living in Australia.[1]

    [1] Wan v MIMA (2001) 107 FCR 133, at [27]–[28].

44. Although the applicant is now divorced and no longer lives with his former wife, he has provided evidence of having a good relationship with [Daughter A].  He has also provided a copy of the orders made by the Federal Circuit and Family Court, [in] September 2022, setting out, among other things, that the ‘Parties have equal parental responsibility for the child [Daughter A] born on [date] (“the child”) and are to consult with each other about long-term decisions to be made in exercise of their shared parental responsibility and shall make genuine effort to come to joint decisions…’, including but not limited to schooling, medical and other treatment, sports, cultural activities and living arrangements.

45. The Tribunal is satisfied that the cancellation of the applicant’s visa and potential removal as a consequence means that there would be a considerable degree of hardship to the applicant and to [Daughter A] particularly; it would be difficult for the applicant to honour the Court’s orders set out above.  There would also be a significant degree of psychological and emotional distress to both the applicant and [Daughter A], who would be adversely impacted if she would not be able to see her father as regularly.

46. On the evidence, the Tribunal is satisfied that Australia would be in breach of its international obligations under the CROC in the case of cancellation.

47. The Tribunal gives this aspect significant weight in favour of the applicant.

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

48. Non-refoulement obligations are obligations not to forcibly return, deport or expel a person to a place where there will be a risk of harm. Australia is a signatory to several international instruments which give rise to non-refoulement obligations. Australia is a signatory to the 1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol (together called the Refugees Convention), the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, and the International Covenant on Civil and Political Rights and its Second Optional Protocol. ‘Non-refoulement obligations’ is not confined to the protection obligations to which s 36(2) of the Act refers: see Ibrahim v MHA [2019] FCAFC 89 at [103]. It is defined in the Act to include non‑refoulement obligations that may arise because Australia is a party to one of the instruments mentioned above, or any obligations accorded by customary international law that are of a similar kind.

49. Article 33 of the Refugees Convention is relevant in this instance. Refoulement is prohibited under Article 33 of the Refugees Convention unless:

    ·there are reasonable grounds for regarding the refugee as a danger to the security of the country in which they are in; or

    ·the refugee has been, by a final judgment, convicted of a particularly serious crime and constitutes a danger to the community.

50. The Tribunal has considered whether the applicant’s circumstances may engage ‘non‑refoulement obligations’, which are broader than the term ‘protection obligations’ contained in s 36 of the Act.

1. The applicant has contended that he is a conscientious objector and he has refused to serve in the Eritrean military conscription. He claimed that to avoid persecution, early in 2012, he sought refuge at the refugee camp at [Town 2], Ethiopia.  Those claims have not been tested as the Tribunal observes that the cancellation of a visa is legally distinct from removal.[2]  Section 198 is now subject to the provisions of the new ss 197C(3) and 197D of the Act.  The Migration Amendment (Clarifying International Obligations for Removal) Act 2021 (Cth) (Amending Act) amends the Act, and is designed to ensure, through ss 197C and 198, that a non-citizen will not be removed from Australia if found to engage protection obligations.

   [2] COT15 v MIBP (No 1) (2015) 236 FCR 148, at [32].

2. The Tribunal is satisfied that Australia would not be in breach of its non-refoulement obligations in the case of the cancellation.

3. The Tribunal gives this aspect neutral weight.

   ·     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

4. 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 he could face difficulties in applying for certain visas in Australia. He will also be subject to Public Interest Criterion (PIC) 4013 under Schedule 4 to the Regulations.

5. The Tribunal considers the potential detention, removal from Australia, the impacts of s 48 and the PIC 4013 bar to be intended legislative consequences.  However, in the applicant’s case, and particularly because of his minor child, the Tribunal considers removal to result in significant hardship to both the applicant and his daughter.

6. The Tribunal gives this consideration weight against cancellation.

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

7. The Tribunal has dealt with the issue of hardship.

8. The Tribunal has carefully considered the applicant’s circumstances and the breach of s 101 of the Act. The Tribunal considers the applicant’s conduct to be serious, however, the cancellation scheme is not intended to be punitive, and the Tribunal is required to weigh up all the relevant considerations. The applicant’s minor child would suffer significant hardship if the applicant were forced to depart Australia due to the cancellation. The Tribunal is of the view that it would be unreasonable to suggest that the applicant could continue to have a relationship with his daughter from overseas.  Further, if the applicant were to leave Australia, his former spouse would suffer financial hardship as well.

9. The Tribunal has considered the material before it individually and cumulatively. There are limited aspects in favour of cancellation, essentially relating to the breach. On balance, the Tribunal is satisfied that the evidence weighs heavily in favour of the applicant.   On balance, the Tribunal considers that the matters in favour of the applicant outweigh the aspects in favour of cancellation.

10. The Tribunal has decided that the ground for cancellation exists and, having regard to all the relevant circumstances, as discussed above, the Tribunal concludes that the visa should not be cancelled.

    decision

11. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 202 (Global Special Humanitarian) visa.

    Antoinette Younes

    
    Deputy President
    

    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.