2201451 (Migration)

[2023] AATA 3377

2201451 (Migration) [2023] AATA 3377 (7 September 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mr Galen Jaffurs

CASE NUMBER:  2201451

MEMBER:Alison Murphy

DATE:7 September 2023

PLACE OF DECISION:  Melbourne

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

Statement made on 07 September 2023 at 9:39am

CATCHWORDS
MIGRATION – cancellation – Refugee and Humanitarian (Class XB) visa – Subclass 204 (Woman at Risk) – incorrect information given in visa application – name, date of birth and only child of deceased parents – information received of correct name and date, and living parents and siblings – discretion to cancel visa – ground for cancellation conceded – no contact with parents or siblings at the time, and fear of harm to them – unaccompanied young divorced woman at risk of gender-based harm – ethnic minority – sexual abuse by military member – length of residence, education, church and community activities – Australian citizen husband and children – health and financial difficulty – political opinion, activities and financial support – mandatory legal consequences and non-refoulement – country information – military coup and political and security situation – best interests of children – decision made without hearing necessary – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 101(b), 107, 109(1)
Migration Regulations 1994 (Cth), Schedule 2, cl 204.222

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 204 (Woman at Risk) visa under s 109(1) of the Migration Act 1958 (Cth) (the Act).

2. The delegate cancelled the visa on the basis that it was considered the applicant had given incorrect information in her visa application. 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 was invited to appear before the Tribunal on 6 September 2023 to give evidence and present arguments. On 4 September 2023 the applicant’s representative provided further documents and submissions. Having considered the material submitted by the applicant by way of pre-hearing submissions, including the applicant’s concession that the ground for cancellation is met as well as information about the changed political and security situation in Myanmar since the delegate’s decision was made, the Tribunal considered it should make a favourable decision to the applicant on the materials available to it without the need for a hearing.

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

   BACKGROUND

5. In October 2011, the applicant applied for an XB-204 (Woman At Risk) visa while resident in [Country]. In that visa application she identified herself as [Alias] born [Alias date] in Myanmar. She said she was divorced; that her parents were deceased; and that she left Myanmar in September 2006.

6. As part of her visa application, she submitted a UNHCR Refugee Resettlement Form which set out her claims for refugee resettlement. Relevantly that form identified her as [Alias] and included information indicating that her parents, [Father alias] and [Mother alias], were deceased; that she had left Myanmar in 2006 after experiencing harassment from a member of Myanmar’s military and that she was an unaccompanied woman living alone in [Country], with no familial or social support who was at increased risk of persecution because she had no male protector.

7. The delegate’s decision records that the applicant participated in an interview with a departmental officer in respect of the Woman at Risk visa application. In that interview she confirmed her identity was [Alias] (DOB: [Alias date]), that she had never been known by any other names, her parents were deceased and she was an only child.

8. Based on her answers in the visa application and at interview, the applicant was found to be an unaccompanied single female from Myanmar without a male protector and granted the Woman at Risk visa on 22 November 2011.

9. According to the delegate’s decision, the Department subsequently received information indicating that the applicant’s real name was [the applicant]; that her parents were not deceased but are alive and living in Australia and that she had four [siblings]. In summary, that information included:

   • A request by the applicant in January 2013 that her name be amended from [Alias] to [the applicant]. In that request she stated that [the applicant] had been her name since birth and she had changed it when she registered with the UNHCR. In February 2013, the applicant made a further request to add the [clan name] as her family name. On 22 February 2013 a delegate refused that request, not being satisfied that the Department’s records were incorrect, out of date, misleading or incomplete;
   • An application for Australian Citizenship by Conferral made by the applicant on 31 July 2017. In that application, the applicant declared her identity as [the applicant] (DOB: [Alias date]) and declared that her parents, [Father alias] and [Mother alias], had never been known by any other names and were deceased;
   • An application for a Remaining Relative (Subclass 835) visa lodged by [Brother 1] ([DOB]) in March 2018. This application listed [Father] as the sponsor and father of [Brother 1] and the visa application fee was paid by the applicant;
   • Australian identity documents subsequently provided to the Department by [Brother 1] for [Father] ([DOB]) and [Mother] ([DOB]) along with details of their family composition, which included [the applicant] ([DOB]) who was identified as the daughter of [Father] and [Mother] and sibling to [Sibling 2] ([DOB]); [Sibling 3] ([DOB]); [Brother 1] ([DOB]) and [Brother 4] ([DOB]). [Brother 1] also identified himself as the biological brother of [the applicant] and the persons identified as her siblings;
   • [Brother 1] subsequently declared to the Department that:

   …[his] family left [their] home country due to religious persecution and fled to [Country] to avoid the torture of Burmese military junta since 2009. When they reached to [Country] and applied for refugee status at UNHCR office, they didn’t dare to reveal their real names, real date-of-birth and real place-of-birth in UNHCR registration because they felt full of fearing to Burmese Military Intelligence Agency.

   … Because of such dreadful circumstance, my father, my mother, my eldest [sibling] and my sister [the applicant] didn’t provide their real names in UNHCR. On the other hand, they made new names on UNHCR registration for life safety in [Country]. Moreover, they didn’t dare to provide their real date of birth and place of birth in UNHCR registration because the Burmese military intelligence agency used to investigate [Ethnic group] people in [Country] by name, date of birth, place of birth and parents name. For security reason my sister [the applicant] had made a new name and also provide different parent names and different place of birth as well. For that reason, my parents didn’t declare her because she already registered at UNHCR office. Because of her different family status application on UNHCR registration, she reached to Australia earlier than my parents and [siblings]. She reached to Australia [in February], 2012 and my parents and [siblings] arrived in Australia [in June], 2013.

10. [Brother 1] provided change of name certificates for his parents [Father] and [Mother] and his siblings [Sibling 2] and [the applicant], as well as family photographs and an untranslated Family Members List. That Family Members List was subjected to integrity checks from the Immigration and National Registration Department in [Township] in Myanmar, who confirmed the authenticity of the document.

11. Based on this information, the Department formed the view that the applicant’s real name is [the applicant] and not [Alias]; that she had a number of siblings and that her parents were alive and living in Australia.

12. On 5 November 2021, a delegate of the Minister issued the applicant with a notice of intention to consider cancellation (the NOICC) of the Woman At Risk (Subclass 204) visa under s 109 of the Act. The NOICC advised the applicant that the Department was considering cancelling her visa because it considered she gave incorrect information in the visa application in the following instances:

    ·at question 2 of the Form 842 (when she stated that her name was [Alias] born [Alias date] and she had never been known by another name). The notice alleges that this information was incorrect because her real name is [the applicant] born [Date];

    ·at question 2 of the Form 842 (when she stated that her father’s name was [Father alias] and her mother’s name was [Mother alias] and that they were both deceased). The notice alleges that this information was incorrect because her parents are [Father] and [Mother] and they are both alive and living in Victoria, Australia;

    ·at question 15 of the Form 842 (when she stated that she had never applied for an Australian visa before). The notice alleges that this information was incorrect because she applied for a Global Humanitarian (Subclass 202) visa on 7 April 2010, which was refused on 8 September 2011;

    ·at question 29 of the Form 842 (when she stated that she was a single, unaccompanied woman with deceased parents and no other family support and was at risk of persecution as she had no male household support). The notice alleges that this information was incorrect because her brother [Brother 1] had provided a Family Members List, verified by the relevant authority as a genuine document. In [Brother 1]’s Remaining Relative visa application, he stated that the family travelled together from Myanmar to [Country] and therefore the applicant was not an unaccompanied woman, without a male protector;

    ·at question 30 of the Form 842 (when she stated that she would be exposed to various forms of psychological, financial, social and gender-based abuse, because she was an unaccompanied woman, without a male protector, and without familial or social support). The notice alleges that this information was incorrect because she travelled to [Country] with her [siblings] and parents and was not without familial support;

    ·that the applicant provided the same incorrect information about her name, date of birth and family composition on her Form 80 – Personal Particulars for Character Assessment and at her interview with the Department in relation to the Woman At Risk visa application. It was considered that she intentionally recorded incorrect information in the Form 80 to support the claims she provided in her Woman at Risk visa application.

13. The NOICC advised the applicant that based on the above information, her Woman at Risk visa was liable for cancellation under s 101(b) of the Act and invited the applicant to comment on the possible non-compliance set out in the notice and whether her visa should be cancelled.

    The applicant’s response to the s 107 notice

14. On 14 November 2021 the applicant responded to the NOICC, advising that she was [Number] weeks into a high risk pregnancy with high blood pressure and gestational diabetes for which she had spent time in hospital. She stated that the doctor was considering inducing her because of her high blood pressure and their concern about pre-eclampsia and she sought further time to recover from her pregnancy, respond to the notice and explain everything carefully. She also noted that she had [other children] aged [Ages] and was very depressed. She said that the situation in Myanmar was getting worse and worse; that the military in that country killed family members if they could not find the person they were looking for and so she did not provide her real status for her family’s safety.

15. On 10 January 2022 the applicant provided further information in response to the NOICC:

    ·That she did not provide any misleading information in her visa application except for her date of birth, as she stayed with her husband when her family lived in [Village] after her father was appointed [an Occupation 1] for [a church]. Due to poor communication avenues, it was impossible to keep in contact with her family in [Village];

    ·After she divorced, she was forced to marry a military junta officer who confiscated her identity documents and warned her that he would shoot her if she left the house. She decided to flee to [Country] to avoid the Burmese army official’s oppression and reached [Country] illegally;

    ·Many Myanmar refugees did not reveal their true names and identifying details for fear of the Myanmar Military Intelligence Agency who were relentlessly hunting down those seeking asylum in [Country]. Myanmar Military Intelligence officers paid bribes to some interpreters and UNHCR office staff to collect names of registered refugees in [Country] and then interrogate and torture those persons to stop them applying for asylum status at the UNHCR because they didn’t want news of their inhuman oppression of Myanmar’s minorities to become known;

    ·She said she was an only child without familial support because she had no contact with her family members and didn’t want to record their real names because of her fear for their lives in Myanmar. She didn’t know where her family members were at the time she made the visa application and she did not travel with them to [Country]; rather she met them in [Country] a month prior to flying to Australia;

    ·Since arriving in Australia she has completed a [Qualification] from [Institution] and has married an Australian citizen and had [children]. Her father is currently suffering from mental illness and memory impairment and is being medically investigated for cognitive deficiency and dementia.

    The cancellation decision

16. On 24 January 2022, a delegate decided to cancel the applicant’s visa on the basis that she had provided incorrect information in the manner set out in the s 107 notice. In doing so the delegate considered the discretionary factors contained in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’ but concluded the visa should be cancelled. In considering Australia’s international obligations, the delegate considered that a decision to cancel the applicant’s visa was separate from any decision regarding her detention or removal from Australia and that she would not necessarily be returned to her country of origin in breach of non‑refoulement obligations because there would be a future assessment undertaken as to whether the applicant would be at risk of harm in Myanmar. For this reason, the delegate did not make their own assessment of Australia’s international obligations.

17. The applicant sought a review of the decision to cancel the visa from this Tribunal. 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

18. 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.

19. 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.

20. 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?

21. 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(a) in the manner particularised in the s 107 notice.

22. In submissions provided to the Tribunal prior to the scheduled hearing, the applicant acknowledges that the ground for cancellation exists under s 109(1)(a) of the Act because the applicant failed to comply with s 101(b) of the Act by providing incorrect information in support of her application for the Woman at Risk visa.

23. Specifically it is conceded that the applicant gave incorrect information about her personal identity (including name, date of birth and place of birth) and her family composition (including the names of family members, information as to siblings and information as to whether family members were deceased). In contrast, it is not conceded that the applicant provided incorrect information about the timing or reasons for her departure from Myanmar or her residence in [Country] as an unaccompanied divorced woman at risk of gender-based harm.

    Findings as to incorrect information

24. The notice alleges the applicant gave incorrect information at question 2 of the Form 842 because her real name is [the applicant] born [Date] and not [Alias] born [Alias date]. In a statutory declaration made 31 August 2023 the applicant acknowledges that that is true (save that her correct name now includes her husband’s [surname]) and that [Alias] is a name she assumed while living in [Country], taking her [surname] from [an Ethnic group] ancestor. For these reasons the Tribunal is satisfied the applicant gave incorrect information at question 2 of the Form 842 when she stated that her name was [Alias] born [Alias date] and she had never been known by another name.

25. The notice alleges the applicant gave incorrect information at question 13 of the Form 842 when she stated that her father’s name was [Father alias] and her mother’s name was [Mother alias] and that they were both deceased, because her parents are [Father] and [Mother] and they are both alive and living in Victoria, Australia. In a statutory declaration made 31 August 2023 the applicant acknowledges that her parents are [Father] and [Mother] and that they are alive and living in Victoria, Australia. She states she believes her parents were known as [Father alias 2] and [Mother alias 2] in [Country] and that [Father alias] and [Mother alias] are the deceased parents of her first husband. For these reasons the Tribunal is satisfied the applicant gave incorrect information at question 13 of the Form 842 as to the names of her parents and her statement that they were deceased.

26. The notice alleges the applicant gave incorrect information at question 15 of the Form 842 when she stated that she had never applied for an Australian visa before, because she applied for a Global Humanitarian (Subclass 202) visa on 7 April 2010. The Tribunal notes that there is no reference to a Subclass 202 visa application in the ‘Evidence of non-compliance’ sections of the notice and the cancellation decision. Nor is the Tribunal able to locate any material relating to a Subclass 202 visa application on the departmental file or in the department’s digital records. For these reasons it is not clear to the Tribunal that the applicant did in fact apply for a Global Humanitarian (Subclass 202) visa as alleged in the notice. Therefore the Tribunal is not satisfied she gave incorrect information at question 15 of the Form 842 when she stated that she had never applied for an Australian visa before.

1. The notice alleges the applicant gave incorrect information at questions 29 and 30 of the Form 842 when she stated that she was a single, unaccompanied woman whose parents were deceased and that she was without a male protector or familial or social support and was therefore at risk of persecution and various forms of psychological, financial, social and gender-based abuse. The notice alleges that this information was incorrect because her parents were alive and her brother [Brother 1] had provided a Family Members List, verified by the relevant authority as a genuine document, stating that the family travelled together from Myanmar to [Country] in 2009 and therefore the applicant was not an unaccompanied woman, without a male protector.

2. In a statutory declaration made 31 August 2023 the applicant acknowledges that her parents and siblings were alive and living in [Country] at the time she completed the Form 842, but asserts that she arrived in [Country] several years earlier and separately from her family members; that she was an adult woman who had been married and divorced and lived in conditions of hardship outside her family unit for some years and that her father and [siblings] were not in a position to provide her with support or protection.

3. The Tribunal finds that the applicant gave incorrect information at questions 29 and 30 of the Form 842 in so far as she stated that her parents were deceased and she was without any familial or social support. However, the fact that her parents and siblings were alive and living in [Country] for part of the period in which the applicant was there does not on its own indicate that the applicant was not at risk of persecution and various forms of psychological, financial, social and gender-based abuse. Rather the applicant was a divorced adult woman who had lived separately from her family since her marriage in 2004. Her UNHCR registration card confirms her arrival in [Country] in October 2006, three years prior to her other family members who arrived in 2009. Her personal history as set out in the UNHCR Resettlement Registration Form states that she experienced gender-based harm from her former husband during her marriage and from the Myanmar junta while living as a divorced woman in [Town]. In these circumstances the Tribunal is not satisfied the applicant gave incorrect information when she stated that she was an unaccompanied woman, without a male protector, who was at risk of persecution and various forms of psychological, financial, social and gender-based abuse.

4. The applicant acknowledges that she provided the same incorrect information about her name, date of birth and family composition on her Form 80 – Personal Particulars for Character Assessment and at her interview with the Department in relation to the Woman At Risk visa application.

5. For these reasons, the Tribunal finds that there was non-compliance with s 101 by the applicant at questions 2, 13, 15, 29 and 30 of the visa application and in the Form 80 in the way described in the s 107 notice.

   Should the visa be cancelled?

   The correct information

6. For the reasons set out above, I have found that the applicant’s real name is [the applicant] and that she was born on [Date]. I have found that her parents are [Father] and [Mother] and they are not deceased; rather they are alive and living in Victoria, Australia. I have found that at the time the applicant applied for the Woman at Risk visa, her parents and [siblings] were alive and residing in [Country]. I have found that [Alias] is a name the applicant assumed while living in [Country] and that the persons named as her deceased parents in the visa application, [Father alias] and [Mother alias], are the deceased parents of the applicant’s former husband.

7. It is a serious matter to misrepresent or provide selective information about a person’s identity in a visa application and I weigh this factor in favour of the cancellation of the visa.

   The content of the genuine document (if any)

8. This prescribed circumstance is not relevant in the present case because the s 107 notice relied solely on s 101, not on s 103 of the Act (relating to bogus documents).

   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

9. The Tribunal has not been provided with a copy of a delegate’s decision setting out the reasons the applicant was granted the Woman at Risk visa on 22 November 2011, although the Tribunal is aware that this may be because a formal Decision Record is not always produced where the Department grants the visa at first instance. The delegate records in the cancellation decision that the applicant was granted the visa partly on the basis of the incorrect information regarding the applicant’s true identity, deceased parents and family composition.

10. The delegate considered that had the correct information been known, the applicant may have failed to satisfy the requirements in cl 204.222 of the Regulations, which require the Minister to be satisfied that the applicant does not have the protection of a male relative and is in danger of victimisation, harassment or serious abuse because of her sex. The delegate formed this view because the applicant’s father was not in fact deceased as claimed, but rather was [an Occupation 1] at [Employer] in [Village] in Myanmar at the time the applicant lodged her Woman At Risk visa application.

11. The applicant argues that she arrived in [Country] in 2006, having last seen her parents prior to her marriage to her first husband in 2004. She had no contact with her parents during her marriage and to the best of her knowledge they were still in [Village] village, about one day and one night’s walk from where the applicant lived in [Town] with no road transport. While resident in [Town], she was subjected to sexual abuse from a military sergeant which was the catalyst for her fleeing Myanmar for [Country], where she registered with the UNHCR and spent six years prior to being resettled in Australia.

12. It is clear that the applicant was granted the Woman At Risk visa on the basis of the UNHCR’s assessment that she was a person in need of international protection on 20 June 2011. The UNHCR’s refugee assessment in respect of the applicant as set out in the Resettlement Registration Form, states as follows:

    Need for international protection for refugees from Myanmar

    Based on the review of refugee claims presented by individuals from Myanmar during UNHCR [Country]’s individualised refugee status determination procedures and assessments, the Office has detected prevailing patterns of persecution among this refugee group. Persecution, in particular towards those belonging to ethnic minorities, generally includes forced labour/ portering/ sexual and gender-based violence and torture. . . Prevalence of such human rights violations in Myanmar is supported by reliable and prominent country information sources. Furthermore, the Myanmar authorities do not tolerate those who have claimed asylum outside the country. It is reasonably likely that persons who have experienced such persecution or who fears persecution in the future will be arrested, detained and subjected to persecution if returned to Myanmar. It is therefore the UN’s view that these individuals are eligible for refugee status and are in need of international protection.

    . . .

    6. Special Needs Assessment

    The PA is an unaccompanied woman living alone in the country of asylum, ie [Country], where she lacks all familial and social support. The absence of legal rights in [Country] impedes the ability of refugee women to attain full economic self-support. In particular, without a male protector, the PA is likely to be exposed to various forms of psychological, financial, social and gender-based abuses while trying to earn a living. This faces the PA at greater risk and may lead her to be forced by economic reasons into an exploitative situation.

13. It is apparent that the UNHCR’s assessment of the applicant’s need for international protection relates to those factors set out in the former section (Need for international protection for refugees from Myanmar), namely her Myanmar nationality; the prevalence of human rights violations in that country including sexual and gender-based violence and the intolerance by the Myanmar authorities of those who have claimed asylum outside the country.

14. The latter section (Special Needs Assessment) makes specific reference to those matters which increased the applicant’s risk of harm as an asylum seeker in [Country]. It includes the lack of familial and social support in the country of asylum ([Country]); the absence of legal rights for refugee women in [Country] and the lack of a male protector, exposing her to various forms of psychological, financial, social and gender-based abuses. The presence of male relatives in Myanmar would have had no bearing on the Special Needs Assessment.

15. The Woman At Risk visa granted to the applicant on 22 November 2011 required that the applicant be a female person subject to persecution or registered as being of concern to the UNHCR who was living outside of her home country. It also required the Minister to be satisfied that the applicant did not have the protection of a male relative and is in danger of victimisation, harassment or serious abuse because of her sex.

16. It is difficult to assess retrospectively whether the Minister would have been so satisfied, had the correct information been known. On the one hand, the fact that the applicant’s parents were alive and living with several of her siblings in another town in Myanmar (and later [Country]) may have caused further questions to be asked as to whether the applicant did in fact have the protection of male relatives. On the other hand, the applicant was an adult woman, who had been married and divorced and lived outside her parents’ family unit and in a different location for some years, and who had by her own account experienced gender-based victimisation, harassment and abuse notwithstanding the existence of living male relatives who resided elsewhere.

17. As noted above, it is a serious matter to misrepresent or provide selective information about a person’s identity in a visa application. However, I consider that had the correct information been known, the applicant may still have been granted the visa on the basis that she was a divorced woman living alone in [Country] without a male protector and that she was in danger of victimisation, harassment or serious abuse because of her sex. In these circumstances, the Tribunal is not satisfied that the decision to grant the applicant the Woman At Risk visa was based on the incorrect information in the visa application.

18. I weigh this factor against the cancellation of the visa.

    The circumstances in which the non-compliance occurred

19. The applicant claims to have fled Myanmar for [Country] after suffering gender-based violence from her former husband and later a member of the Myanmar military. She provided the false information because her life as a refugee in [Country] was difficult and unsafe, including being subject to exploitation by the police who threatened to arrest Burmese people if they did not pay bribes. The Tribunal notes the applicant’s explanation is consistent with the UNHCR’s Special Needs Assessment, which confirms the difficulties faced by refugee women in [Country].

20. I weigh this factor against the cancellation of the visa.

    The present circumstances of the visa holder and her contribution to the community

21. The applicant has now been in Australia for more than 12 years. Since her arrival she has married an Australian citizen, who also originates from Myanmar and who arrived in Australia in [Year] as the holder of a [specified] visa. They have [Australian citizen children], currently aged between [Ages]. 

22. The applicant did not speak English when she arrived in Australia, but has since learned English and completed a [Qualification]. She is [an official position] of [a Church] in [Suburb], [detail redacted]. She is also the church [roles].

23. Before the birth of her [youngest]child, the applicant worked part time as [an Occupation 2]. She received parenting payments following her youngest child’s birth, but those payments stopped when her visa was cancelled in January 2022. She cannot return to work unless and until her visa is reinstated.

24. The applicant’s elderly parents are experiencing significant health issues, as are the applicant and the applicant’s husband. To protect their privacy I do not recount the details here other than to record that the applicant and her husband require ongoing treatment and medication. The family rely on her husband’s income as [an Occupation 3] and things are financially difficult. The applicant’s husband is currently without a driver’s licence following a major car accident in 2019 and has a number of court appearances coming up in 2024. At present the applicant drives her husband to work and collects him each day.

25. There is evidence that the applicant plays a significant role in the Australian community, representing and advocating for Myanmar refugee families in a variety of contexts. She and her husband speak regularly to people in Myanmar who are opposed to the military coup and the junta and send money back to opposition groups when they can. The applicant has provided letters of support from the President of [Organisation 1] and the Conference Secretary of the [Church]. Each of those letters speaks highly of the applicant and her commitment to and assistance for those organisations and their constituents.

26. As well the applicant has provided a letter of support from [a] Representative of [Organisation 2], a political organisation founded in [2021] as a response to the military junta’s seizure of power in Myanmar. The applicant and her husband are described as dedicated members of that organisation, providing both financial support and time to the organisation’s goals and visions.

27. I have had regard to the applicant’s long residence in Australia, her close relationship with her elderly parents and siblings, her educational and professional achievements since her arrival in Australia and her contribution to the Australian community, and I weigh this factor significantly against the cancellation of the visa.

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

28. The delegate’s decision records that while the applicant sought to change her name in 2013 through an FOI request, she did not provide sufficient evidence to demonstrate her identity and she again provided her parents’ incorrect names in her citizenship application in July 2017.

29. I give some weight to this factor in favour of the cancellation of the visa.

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

30. The delegate’s decision records that there are no other instances of non-compliance known to the Department.

31. I weigh this factor as neutral to my assessment as to whether the visa should be cancelled.

    The time that has elapsed since the non-compliance

32. The non-compliance took place in the Woman At Risk visa application and approximately 12.5 years have elapsed since then. Given the applicant’s long period of residence in Australia, I weigh this factor against the cancellation of the visa.

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

33. The delegate’s decision records that there are no known breaches of the law by the applicant since the non-compliance. I weigh this factor against the cancellation of the visa.

    Other factors to be considered

34. While the above 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 PAM3, ‘General visa cancellation powers’, which refers to matters such as the consequences of cancelling the visa, international obligations and any other relevant matters.

    Consequential cancellations

35. In this case, there are no consequential cancellations that will result from the cancellation of the applicant’s visa.

36. I weigh this factor as neutral to my assessment as to whether the visa should be cancelled.

    Mandatory legal consequences of the cancellation

37. In considering the mandatory legal consequences to the cancellation decision, the applicant will have very limited options to make any other visa applications onshore.

38. The delegate’s decision records that if the applicant’s visa is cancelled, she will be subject to s 48 of the Act, which means that she will have very limited options to make any other visa applications onshore except for a select few prescribed visas including partner, protection and medical treatment visas.

39. In the absence of the grant of another visa, the applicant will be an unlawful non-citizen and will be liable to be detained under s 189 of the Act. While a detainee may apply for a visa after being detained under s 195 of the Act and the Minister may grant a visa under s 195A if he or she thinks it is in the public interest to do so, such a decision is not reviewable or compellable. Therefore I accept that the potential impact of cancellation is that the applicant may be liable to prolonged detention unless she decides to return to Myanmar voluntarily.

40. The prospects of any voluntary return by the applicant appear remote given the current political and security situation discussed below. I consider the prospect of the applicant facing a prolonged period in Immigration detention weighs significantly against the cancellation of the visa.

    Whether the cancellation would lead to the person’s removal in breach of Australia’s non-refoulement obligations under relevant international agreements

41. The Department’s Policy Guidelines set out that Australia is a party to four international treaties that generate explicit or implicit non-refoulement obligations, being: the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention); the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment and Punishment (CAT); the International Covenant on Civil and Political Rights (ICCPR); and the Convention on the Rights of the Child (CROC). The Policy Guidelines set out that cancellation in such circumstances must be consistent with Australia’s obligations under these treaties.

    The Refugees Convention, CAT and ICCPR

42. It is submitted that if the applicant’s Woman At Risk visa remains cancelled, the applicant will lodge an application for a protection visa which will likely take between one and three years to be processed, with the result that the applicant will remain on a bridging visa with limited access to social security payments and other services that would benefit her family. It is submitted that it is almost certain that the applicant will be granted the protection visa, given the political and security situation in Myanmar. For the following reasons the Tribunal concurs with that assessment.

43. It is apparent from the applicant’s movement records that she has been resident in Australia since her arrival in February 2012. The Department’s file indicates that she travelled to Australia on a temporary travel document issued to her by the Australian government and she will need to be issued another Australian travel document if returned involuntarily. In these circumstances the Tribunal accepts her status as a failed asylum seeker who has been resident in Australia for some years will become known to the Myanmar military authorities. The Tribunal accepts she is opposed to the military regime and is active in the Australian chapter of the Zomi Federal Union, communicating with and making financial donations to opponents of the junta within Myanmar.

1. In its most recent Country Information Report in relation to Myanmar, DFAT provided a grim assessment of the prevailing conditions in the country. Regarding political opinion, DFAT stated:

   Opponents of the military regime ranging from senior political leaders to casual participants in street protests have been subject to abuses including arbitrary detention, torture, sexual violence and enforced disappearance. People of all ages, including doctors, nurses and teachers, who have participated in antiregime protests or the Civil Disobedience Movement have been arrested or killed. Anyone accused of sympathy with the political opposition is at risk of detention by the authorities, including for having pictures of Aung San Suu Kyi in their homes or on their mobile phones, using ‘foreign’ apps such as Facebook, possessing a Virtual Private Network (VPN), or owning dinted pots and pans (banging pots and pans together is a common form of anti-coup protest)… Multiple sources told DFAT the threshold for falling under official suspicion was extremely low, and authorities made little distinction between those actively opposing the military regime and those merely expressing dissatisfaction with the regime or support for the opposition.[1]

   [1] DFAT, DFAT Country Information Report – Myanmar, November 2022 (version 2) [3.47]

2. DFAT assessed:

   …anyone opposing, or perceived as opposing, the military regime is at high risk of official discrimination and violence, including arbitrary detention, illegal property seizures, enforced disappearance, torture, beatings and extrajudicial killings or application of the death penalty. Family members are also at high risk of official discrimination and violence, including very young children and elderly parents, who may be kidnapped and held as hostages to coerce relatives into giving themselves up to authorities.[2]

   [2] Ibid [3.51]

3. In relation to women, DFAT reports:

   3.73 The experience of women in Myanmar varies with factors such as ethnicity, religion, socioeconomic status, and whether they live in an area affected by long-term conflict. Nevertheless, women across the spectrum of Myanmar society are affected by issues such as high rates of domestic and gender-based violence, low rates of economic participation, exclusion from decision-making and lack of state protection. All these issues have been exacerbated by the impacts of the coup.

   . . .

   3.83 DFAT assesses that women in Myanmar are at moderate risk of societal discrimination and moderate risk of official discrimination in the form of inadequate state protection from gender-based violence. Female political prisoners are at high risk of sexual harassment and moderate risk of sexual violence and rape. Rohingya women in Rakhine State face high levels of official and societal discrimination on the basis of their gender. Women throughout Myanmar face a moderate risk of GBV, particularly domestic violence.

4. In relation to failed asylum seekers, DFAT reports that:

   given the high level of scrutiny of people arriving and departing the country, and the severe consequences for anyone suspected of opposing or criticising the regime or having links to Western countries…, a failed asylum seeker returning from Australia would be at high risk of official harassment, arbitrary detention and violence, regardless of why they originally left Myanmar.[3]

   [3] DFAT, DFAT Country Information Report – Myanmar, November 2022 (version 2) [5.25]

5. Representatives of the military junta stated publicly in September 2022 that showing moral support for the democracy movement was an act of terrorism, threatening jail terms of up to 10 years just for sharing pro-democracy content on social media, and even longer for those who provided even small amounts of money.[4]

   [4] Martin Petty and Ed Davies, ‘Myanmar Military Threatens Jail for Online ‘Likes’ for Opponents’, Reuters (online) 20 September 2022 Myanmar military threatens jail for online 'likes' for opponents | Reuters

6. In light of the country information cited above, the Tribunal accepts that anyone suspected of opposing or criticising the military regime in Myanmar, even on the most casual basis, is at high risk of official discrimination and violence including detention, disappearance, torture and extra-judicial killings. As well, the high level of scrutiny of people arriving and departing the country mean that a failed asylum seeker returning from Australia would be considered to have links to Western countries and imputed with an anti-military regime political opinion with a consequent high risk of official harassment, detention and violence, regardless of why that person originally left Myanmar.

7. The Tribunal accepts that the applicant’s long residence and activities in Australia are sufficient to create a real chance she would face serious harm (and concomitant real risk of significant harm) if returned to Myanmar on the basis of her actual and imputed political opinion as a person who is opposed to the military regime in Myanmar and has sought protection in a western country. This would occur regardless of the events that are said to have occurred before the applicant departed Myanmar in 2006. Accordingly, the Tribunal accepts that the applicant would have a strong prima facie basis for the grant of a protection visa if her Woman At Risk visa remains cancelled.

8. The Tribunal notes in this regard that eight months prior to the cancellation of the applicant’s visa, the Australian government announced special visa arrangements to support Myanmar nationals to remain lawfully in Australia until it was safe for them to return home.[5] In November 2022 the Australian government announced ​​​that in recognition of the grave humanitarian and security situation in Myanmar, the government had designated Myanmar nationals in Australia as a priority caseload in our onshore humanitarian visa program.[6]

   [5] Visa arrangements to support Myanmar Nationals in Australia (homeaffairs.gov.au)

   [6] Humanitarian visas for Myanmar nationals prioritised (homeaffairs.gov.au)

9. In that sense the cancellation of the Woman At Risk visa is unlikely to lead to the return of the applicant to Myanmar in breach of Australia’s non-refoulement obligations. However, no visa application process can be free from doubt and the applicant’s representative submits the usual processing times for protection visas are currently between two to three years with the possibility of much longer wait times, even after the prioritisation of that caseload.

   Convention on the Rights of the Child (CROC)

10. Other international obligations arise under the CROC. As recorded in the delegate’s decision, the Department’s Policy Guidelines provide that a decision maker is obliged to consider the best interests of children under the age of 18 within Australia’s territory or jurisdiction.

11. As noted above, the applicant and her husband have [Australian citizen children]. The delegate acknowledges that their best interests may be affected by the cancellation of the applicant’s visa, but records ‘that a decision as to where the family members reside, including the possibility of relocation, is a separate matter for family members to consider if required’ and that ‘a decision to cancel the visa is separate to a decision to detain or remove the visa holder from Australia’.

12. I consider it is indisputably in the children’s best interests that their mother’s visa not be cancelled, with the attendant financial and emotional stress that would entail for the whole family. This is particularly the case where there is no realistic prospect of the applicant being returned to Myanmar, given the gravity of the political and security situation in that country, which also renders fanciful any prospect that the family might voluntarily relocate there to avoid separation.

13. I treat the children’s best interests as a primary consideration and give this factor very significant weight against cancellation of the visa.

    EXERCISE OF DISCRETION

14. I have considered the factors which weigh in favour of cancelling the visa, most notably that the applicant provided incorrect information about her personal and family details in the Woman At Risk visa application. However, in balancing all of the relevant factors, the Tribunal considers that the matters to which it is required to have regard weigh strongly against cancelling the applicant’s visa. In particular, the Tribunal gives weight to the following matters:

    ·The applicant has lived in Australia for more than 12 years. She is married to an Australian citizen and is the primary carer for their [children], also Australian citizens. She has a close relationship to her elderly parents and siblings, also resident in Australia, and provides important care for her elderly parents who are experiencing significant health issues;

    ·Since the applicant’s arrival in Australia she has learned English, completed a [degree] and been employed. She cannot return to work unless and until her visa is reinstated and the family are struggling financially;

    ·The Tribunal is required to consider the best interests of the applicant’s [children] as a primary consideration. The Tribunal considers it indisputable that their best interests require that their mother’s visa not be cancelled. Rather the children’s best interests are served if the applicant is allowed to remain in Australia to continue to care for them and to lawfully return to work to help support the family;

    ·The applicant has made a significant contribution to the Australian community, being the [Official position] of the [Church] in [Suburb], as well as that church’s [roles]. She provides representation and advocacy for Myanmar refugee families in the Australian community through her involvement in a number of community based organisations;

    ·It is merely speculative to conclude that the applicant would not have been granted the visa but for the incorrect information. The Tribunal considers that had the correct information been known, the applicant may still have been granted the visa on the basis that she had no male protector in her household in [Country] and that she was in danger of victimisation, harassment or serious abuse because of her sex;

    ·The current political and security situation in Myanmar is such that the applicant’s long residence and activities in Australia create a strong prima facie basis for the grant of a protection visa if her Woman At Risk visa remains cancelled. Cancelling the applicant’s visa only to subject her to another visa application process which may take several years but will almost certainly be successful creates unnecessary stress for the applicant and her family;

    ·If the applicant’s visa remains cancelled and she is not granted the protection visa, she will be an unlawful non-citizen and will be liable to be detained under s 189 of the Act. Given the prevailing situation in Myanmar, that detention will potentially be prolonged and indefinite.

15. For these reasons, I consider it appropriate to exercise my discretion not to cancel the applicant’s visa.

    DECISION

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

    Alison Murphy
    Member

    
    

    ATTACHMENT – Migration Act 1958 (extracts)

    5Interpretation

    (1)In this Act, unless the contrary intention appears:

    bogus document, in relation to a person, means a document that the Minister reasonably suspects is a document that:

    (a)     purports to have been, but was not, issued in respect of the person; or

    (b)     is counterfeit or has been altered by a person who does not have authority to do so; or

    (c)      was obtained because of a false or misleading statement, whether or not made knowingly.

    97Interpretation

    In this Subdivision:

    application form, in relation to a non‑citizen, means a form on which a non‑citizen applies for a visa, being a form that regulations made for the purposes of section 46 allow to be used for making the application.

    passenger card has the meaning given by subsection 506(2) and, for the purposes of section 115, includes any document provided for by regulations under paragraph 504(1)(c).

    Note:Bogus document is defined in subsection 5(1).

    98Completion of visa application

    A non‑citizen who does not fill in his or her application form or passenger card is taken to do so if he or she causes it to be filled in or if it is otherwise filled in on his or her behalf.

    99Information is answer

    Any information that a non‑citizen gives or provides, causes to be given or provided, or that is given or provided on his or her behalf, to the Minister, an officer, an authorised system, a person or the Tribunal, or the Immigration Assessment authority, reviewing a decision under this Act in relation to the non‑citizen’s application for a visa is taken for the purposes of section 100, paragraphs 101(b) and 102(b) and sections 104 and 105 to be an answer to a question in the non‑citizen’s application form, whether the information is given or provided orally or in writing and whether at an interview or otherwise.

    100Incorrect answers

    For the purposes of this Subdivision, an answer to a question is incorrect even though the person who gave or provided the answer, or caused the answer to be given or provided, did not know that it was incorrect.

    101Visa applications to be correct

    A non‑citizen must fill in or complete his or her application form in such a way that:

    (a)all questions on it are answered; and

    (b)no incorrect answers are given or provided.

    107Notice of incorrect applications

    (1)If the Minister considers that the holder of a visa who has been immigration cleared (whether or not because of that visa) did not comply with section 101, 102, 103, 104 or 105 or with subsection (2) in a response to a notice under this section, the Minister may give the holder a notice:

    (a)     giving particulars of the possible non‑compliance; and

    (b)     stating that, within a period stated in the notice as mentioned in subsection (1A), the holder may give the Minister a written response to the notice that:

    (i)if the holder disputes that there was non‑compliance:

    (A)shows that there was compliance; and

    (B)in case the Minister decides under section 108 that, in spite of the statement under sub‑subparagraph (A), there was non‑compliance—shows cause why the visa should not be cancelled; or

    (ii)if the holder accepts that there was non‑compliance:

    (A)give reasons for the non‑compliance; and

    (B)shows cause why the visa should not be cancelled; and

    (c)      stating that the Minister will consider cancelling the visa:

    (i)if the holder gives the Minister oral or written notice, within the period stated as mentioned in subsection (1A), that he or she will not give a written response—when that notice is given; or

    (ii)if the holder gives the Minister a written response within that period—when the response is given; or

    (iii)otherwise—at the end of that period; and

    (d)     setting out the effect of sections 108, 109, 111 and 112; and

    (e)      informing the holder that the holder’s obligations under section 104 or 105 are not affected by the notice under this section; and

    (f)      requiring the holder:

    (i)to tell the Minister the address at which the holder is living; and

    (ii)if the holder changes that address before the Minister notifies the holder of the Minister’s decision on whether there was non‑compliance by the holder—to tell the Minister the changed address.

    (1A)The period to be stated in the notice under subsection (1) must be:

    (a)     in respect of the holder of a temporary visa—the period prescribed by the regulations or, if no period is prescribed, a reasonable period; or

    (b)     otherwise—14 days.

    (1B)Regulations prescribing a period for the purposes of paragraph (1A)(a) may prescribe different periods and state when a particular period is to apply, which, without limiting the generality of the power, may be to:

    (a)     visas of a stated class; or

    (b)     visa holders in stated circumstances; or

    (c)      visa holders in a stated class of people (who may be visa holders in a particular place); or

    (d)     visa holders in a stated class of people (who may be visa holders in a particular place) in stated circumstances.

    (2)If the visa holder responds to the notice, he or she must do so without making any incorrect statement.

    108Decision about non‑compliance

    The Minister is to:

    (a)consider any response given by a visa holder in the way required by paragraph 107(1)(b); and

    (b)decide whether there was non‑compliance by the visa holder in the way described in the notice.

    109Cancellation of visa if information incorrect

    (1)The Minister, after:

    (a)     deciding under section 108 that there was non‑compliance by the holder of a visa; and

    (b)     considering any response to the notice about the non‑compliance given in a way required by paragraph 107(1)(b); and

    (c)      having regard to any prescribed circumstances;

    may cancel the visa.

    (2)If the Minister may cancel a visa under subsection (1), the Minister must do so if there exist circumstances declared by the regulations to be circumstances in which a visa must be cancelled.