2204768 (Migration)

[2022] AATA 2010

2204768 (Migration) [2022] AATA 2010 (24 May 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2204768

MEMBER:Margie Bourke

DATE:24 May 2022

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 101 (Child) visa.

Statement made on 24 May 2022 at 2:36pm

CATCHWORDS
MIGRATION – cancellation – Child (Migrant) (Class AH) visa – Subclass 101 (Child) – incorrect information and bogus document provided in visa application – name, date of birth, citizenship and identity document – discretion to cancel visa – circumstances of departure and application at young age – visa granted largely on information provided, particularly age – applicant notified correct information to department – long residence, work and family and community ties – best interests of Australian-born children – mental health – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 101(b), 103, 107, 109
Migration Regulations 1994 (Cth), r 2.41

CASE
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 101 (Child) 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 had provided incorrect information and a bogus document, and therefore had not complied with s.101(b) and s.103 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 Tribunal had regard to the circumstances of the applicant and the nature of the review. The Tribunal had regard to its objectives to provide a mechanism for review that is fair, just, economical, informal and quick. The Tribunal was of the view that the conduct of the hearing by video would allow the applicant the opportunity to give evidence and present arguments, and would allow the Tribunal to conduct a fair and effective hearing, and to properly assess the evidence before it. The hearing did not involve an extensive amount of paperwork to be put to the applicant during the course of the hearing. The availability of in-person hearings was restricted due to the ongoing pandemic. The Tribunal decided that any unnecessary delay should be avoided. For all the above reasons the Tribunal determined that this review was an appropriate matter in which the hearing could be conducted by way of video.

4. The applicant appeared before the Tribunal on 24 May 2022 by video to give evidence and present arguments. The applicant’s wife also attended with the applicant by video, and gave evidence in the hearing. The Tribunal hearing was conducted with the assistance of an interpreter in the Persian and English languages.

5. The applicant was represented in relation to the review. The applicant’s representative attended the hearing by video.

6. 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

7. 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.

8. 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.

9. 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?

10. 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(b) and s.103 of the Act in the following respects: the applicant recorded in his application for the Dependent Child Subclass 101 visa made on 26 April 2012 that his name is [Alias], his date of birth is [Date], and he is not a citizen of any country but is stateless. The applicant provided a Foreign Nationals Identity card issued in his name in 2012 and a Foreign Nationals Identity card issued to his father, in support of his identity details that he had provided in the application for the visa.

11. The applicant made an application for Australian citizenship dated 14 August 2017, in which he repeated the information about his identity, and provided the Foreign Nationals Identity card issued in 2012. On 31 March 2020 the applicant made a request to the Department to amend his identity details. The applicant advised his name is [the applicant], his date of birth is [another date] and he is a citizen of Iran. The applicant provided a copy of his Iranian birth certificate with an English translation. The applicant has made a second application for Australian citizenship with his correct and current identity.

12. Based on the written and oral evidence before the Tribunal, I am satisfied that the applicant provided incorrect information in the application for the visa made on 26 April 2012, in relation to his name, date of birth and whether he had a country of citizenship. Further I am satisfied that the applicant provided a bogus document in relation to his identity, including his name, date of birth and country of citizenship. For these reasons I am satisfied that the applicant did not comply with s.101(b) and s.103 of the Act in relation to the application for the Dependent Child Subclass 101 visa.

13. For these reasons, the Tribunal finds that there was non-compliance with s.101(b) and s.103 by the applicant in the way described in the s.107 notice.

    Should the visa be cancelled?

14. 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).

15. In exercising this power, the Tribunal must consider the applicant’s response (if any) to the s.107 notice about the non-compliance, and have regard to any prescribed circumstances: s.109(1)(b) and (c). The prescribed circumstances are set out in reg 2.41 of the Regulations. Briefly, they are:

    ·     the correct information

    ·     the content of the genuine document (if any)

    ·     whether the decision to grant a visa or immigration clear the visa holder was based, wholly or partly, on incorrect information or a bogus document

    ·     the circumstances in which the non-compliance occurred

    ·     the present circumstances of the visa holder

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

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

    ·     the time that has elapsed since the non-compliance

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

    ·     any contribution made by the holder to the community.

16. While these factors must be considered, they do not represent an exhaustive statement of the circumstances that might properly be considered to be relevant in any given case: MIAC v Khadgi (2010) 190 FCR 248. The Tribunal may also have regard to lawful government policy. The relevant policy is set out in the Department’s Procedural Advice Manual) PAM3 ‘General visa cancellation powers’, which refers to matters such as the consequences of cancelling the visa, international obligations and any other relevant matters.

17. The correct information: – the correct information is that the applicant’s name at the time of application was [the applicant], his date of birth was [the second date] and he was a citizen of Iran. I give this weight in favour of cancellation of the visa.

18. The content of the genuine document: – the Foreign National Identity Card issued in 2012 in the name of [Alias], identified the applicant with the incorrect name, incorrect date of birth and recorded that person was stateless. The genuine document would have recorded the applicant’s correct name, date of birth and that he was an Iranian national. I give this weight in favour of cancellation of the visa.

19. Whether the decision to grant the visa was based wholly or partly on the incorrect information or bogus document: – the Tribunal is satisfied that the grant of the visa to the applicant was based wholly or partly on the information provided, particularly that he was under 18 years at the time of application. The Tribunal is not satisfied that the applicant would meet the requirements for a dependent child over the age of 18 (as required by cl.101.213) at the time of application based on the information available to it. I give this weight in favour of cancellation of the visa.

20. The circumstances in which the non-compliance occurred: – I am satisfied that the applicant was aged [Age] at the time of non-compliance, and had remained behind in Iran when his parents left the country with his two half sisters in an attempt to migrate to Australia by boat. I am satisfied that the applicant was very close to his mother, and had a turbulent relationship with his father. I am satisfied that the applicant’s father also took two children with him from another relationship. I accept the evidence of the applicant that as his father had committed adultery, the family of the second partner were very concerned about that partner and the two children from that relationship. I am satisfied that in the absence of his father, the applicant was subject to abuse, threats and harassment from the family of his father’s second partner. I accept that the applicant became frightened, and his mental health declined to the point that he made an attempt on his life. I accept the applicant left Iran and went to [Country] where he lived in a refugee camp. I accept the applicant followed the directions provided by his parents from Australia. I accept the applicant’s identity card was destroyed, and the Foreign National Identity Card with the incorrect identity details on it was provided to him by his father. I am satisfied that in the circumstances where the applicant was very young, alone and fearful, that he followed the directions in relation to the application for the visa that were provided by his parents. I accept it would be very difficult to have expected the applicant to do anything else in the circumstances. I give this consideration weight in favour against cancellation of the visa.

21. The present circumstances of the applicant: – I am satisfied that the applicant married with two young children both aged under [Age]. I am satisfied based on the evidence of the applicant’s wife that she and the two children are emotionally dependent upon the applicant. I am satisfied that the applicant is currently employed full-time as [an Occupation], and is the main provider for his family. I satisfied that the applicant and his wife have a mortgage for a house that is being built, into which they plan to move in the near future. I am satisfied that the applicant’s wife and children depend on him to provide for the family, and further the applicant’s wife could not maintain the mortgage repayments without the financial assistance of the applicant. I am satisfied that the applicant is supportive of his mother who also resides in Melbourne, and his half sister who has a psychiatric and physical disability and resides in residential care. I am satisfied based on written letters in support that the applicant is respected as a family man and contributing member of the community. I am satisfied based on a psychological report dated 16 May 2022, that the applicant is currently receiving treatment from a clinical psychologist and is in a fragile mental state which is directly connected to his concerns in relation to the status of his visa. I give the present circumstances of the applicant weight in favour against cancellation of the visa.

22. Subsequent behaviour of the applicant: –I am satisfied that the applicant followed the directions provided by his father in relation to when he could notify the Department of the correct information about his identity. The Tribunal notes that the applicant provided the correct information to the Department in relation to his identity in 2020. I give this weight in favour against cancellation of the visa.

23. Any other instances of non-compliance by the applicant: – there is no evidence that there has been any other instance of non-compliance by the applicant. I give this weight in favour against cancellation of the visa.

24. The time that has elapsed since the non-compliance: – the non-compliance occurred with the application for the visa on 26 April 2012, over 10 years ago. I give this weight in favour against cancellation of the visa.

25. Any breaches of the law: – there is no evidence before the Tribunal that the applicant has committed any breaches of the law. I give this weight in favour against cancellation of the visa.

26. Contribution to the community by the applicant: – I am satisfied that the applicant completed two years of study and has been employed since 2015. I am satisfied that the applicant and his wife have volunteered and participated in community services for the homeless. I give this weight in favour against cancellation of the visa.

27. Consequential cancellations under s.140: – there is no evidence before the Tribunal that any other persons’ visas would be consequentially cancelled if the applicant’s visa is cancelled. I give this no weight either in favour for or against cancellation of the visa.

28. Whether Australia’s international treaty obligations may be breached or impacted: – the Tribunal is satisfied that the applicant is married with two Australian-born children. The applicant’s wife is not a citizen of Iran, and the applicant’s wife and children are likely to be separated from the applicant if the applicant’s visa is cancelled and he is required to depart Australia. The Tribunal considers that the cancellation of the applicant’s visa would lead to the breakup of the family unit of the applicant and his wife and two children, and this would not be in the best interests of the two children. The Tribunal gives priority to the interests of the two Australian-born children, and gives consideration to Australia’s commitment as a signatory to the Convention on the Rights of the Child (CROC). Further the Tribunal acknowledges that as the applicant has lived in a western society for 10 years, and as his father committed adultery prior to departing Iran, there would be some risk of persecution of the applicant by either the state or specific persons if the applicant returned to Iran. The Tribunal is satisfied that cancelling the visa of the applicant may engage Australia’s commitment as a signatory to the International Covenant on Civil and Political Rights (ICCPR). I give these considerations weight in favour against cancellation of the visa.

29. Mandatory legal consequences: – the Tribunal accepts that if the applicant’s visa is cancelled he could become subject to detention or deportation, and the limitations in relation to applications for other visas pursuant to the requirements of PIC 4013 and S.48 of the Act would apply. I give this weight in favour against cancellation of the visa.

30. Other relevant matters: – the Tribunal is satisfied that if the applicant’s visa is cancelled, members of the applicant’s family, including his wife and two children, and to a lesser extent his mother and his half sister [Ms A], would experience psychological and emotional hardship. The Tribunal is satisfied that if the applicant’s visa is cancelled, his wife and two children would experience financial hardship. I give this weight in favour against cancellation of the visa.

31. I have considered all the matters as set out above. I give more weight to the circumstances in which the non-compliance arose, namely that the applicant was young and alone and followed the directions of his parents in providing the incorrect information and bogus documents which led to the grounds for the cancellation of the visa existing. Further I give significant weight to the applicant’s current circumstances, including the fact that he is married with two young children, and his wife and two children are financially and emotionally dependent upon him. I also give significant weight to the fact that the applicant’s wife and children would suffer hardship if the applicant’s visa was cancelled and he was required to leave Australia, and that this would not be in the best interests of the two children, and would therefore breach Australia’s international obligations as a signatory of CROC.

32. For all the above reasons the Tribunal has concluded that after an assessment of the prescribed circumstances and all other relevant circumstances of the applicant, his visa should not be cancelled.

33. The Tribunal has decided that there was non-compliance by the applicant in the way described in the notice given under s.107 of the Act. Further, having regard to all the relevant circumstances, as discussed above, the Tribunal concludes that the visa should not be cancelled.

    DECISION

34. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 101 (Child) visa.

    Margie Bourke
    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.

    103Bogus documents not to be given etc.

    A non‑citizen must not give, present, [produce]* or provide to an officer, an authorised system, the Minister, the Immigration Assessment Authority, or the Tribunal performing a function or purpose under this Act, a bogus document or cause such a document to be so given, presented, [produced]* or provided.

    * This wording applies to documents given, presented, produced or provided on or after 4 November 2014: Schedule 7 to Counter Terrorism Legislation Amendment (Foreign Fighters) Act 2014 (No.116, 2014).

    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.