Ali (Migration)

[2021] AATA 3337

Ali (Migration) [2021] AATA 3337 (10 May 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Shazia Ali

CASE NUMBER:  2018222

HOME AFFAIRS REFERENCE(S):          BCC2020/567557

MEMBER:Kira Raif

DATE:10 May 2021

PLACE OF DECISION:  Sydney

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

Statement made on 10 May 2021 at 1:43pm

CATCHWORDS
MIGRATION – cancellation – Return (Residence) (Class BB) visa – Subclass 155 (Five Year Resident Return) – ground for cancellation – incorrect information in previous visa application – form 40CH – applicant’s mother not deceased – previously refused a visa – consideration of discretion – visa grant based on incorrect information – minor when the application was made – degree of hardship – best interest of the children – three Australian citizen children – length of time spent in Australia – strong family ties in Australia – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 101, 105, 107, 109

Migration Regulations 1994 (Cth), rr 1.17, 2.41

CASES
MIAC v Khadgi (2010) 190 FCR 248

STATEMENT OF DECISION AND REASONS

Application for review

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass (155) (Five Year Resident Return) visa under s.109(1) of the Migration Act 1958 (the Act).

2. The applicant is a national of Afghanistan, born in 1995. She was granted the Orphan Relative visa in August 2011 and a Resident Return visa (RRV) in  March 2019. In May 2020 the applicant was issued with the Notice of Intention to Consider Cancellation (NOICC) of her visa as the delegate formed the view that  she may not have complied with s. 101 of the Act. The applicant provided her response to the NOICC and her visa was cancelled in December 2020. The applicant seeks review of the delegate’s decision.

3. The applicant appeared before the Tribunal on 10 May 2021 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s sister. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

   Relevant law

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

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

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

6. Section 107 is only engaged if the Minister or delegate considers that the visa holder has not complied with one of the provisions mentioned in s.107(1). It is only then that the Minister or delegate is entitled to give notice to the visa holder under s.107. Therefore, if a notice is to be given under s.107, the Minister or delegate must have reached a state of mind where they consider that the visa holder has not complied with one or more of the relevant provisions.

7. The Tribunal has considered the validity of the NOICC. The Tribunal is satisfied that it contains sufficient particulars to enable the applicant to identify and address the issues and also that the delegate had reached the necessary state of mind to engage s.107. The Tribunal is satisfied that the notice issued under s.107 complied with the statutory requirements.

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

8. The issue before the Tribunal is whether there was non-compliance in the way described in the s.107 notice, being the manner particularised in the notice, and if so, whether the visa should be cancelled. The non-compliance identified and particularised in the s.107 notice was non-compliance with s. 101 of the Act.

9. The applicant provided to the Tribunal a copy of the primary decision record. It indicates that on 25 June 2010 the applicant made an application for an Orphan Relative Subclass 117 visa, sponsored by her sister. The applicant stated that she and her two siblings were cared for by their older sister and that her parents Rajab Ali and Habiba were deceased. The applicant completed the application form 40CH in which she provided the following information

   a.At Question 12 the applicant stated ‘yes’ in response to a question that both her parents were dead, of unknown whereabouts or permanently incapacitated.

   b.The applicant gave her personal details and personal details of her family members, stating that her mother Habiba was deceased

   c.In response to Question 31 the applicant stated ‘no’ in response to a question whether she or any other person included in the application had ever bene refused a visa for Australia.

10. The applicant was granted the Orphan Relative visa on 28 August 2011 and she arrived in Australia in 21 October 2011.

11. The primary decision record indicates that in June 2014 the applicant sponsored her husband for a Partner visa in Subclass 309. In April 2015 the applicant attended her sister’s wedding. The Department received information that the applicant’s mother also attended the wedding. In November 2019 the applicant’s mother and brother made statements confirming that  the applicant’s mother Habiba was not deceased.

12. It is also noted that according to Departmental records, the applicant had previously made an application for an Offshore Refugee and Humanitarian visa in Subclass 202 in December 2009 which was refused in May 2010.

13. In October 2016 the applicant made the application for the Australian citizenship and in the application form she stated that her mother was deceased.

14. In her response to the NOICC the applicant states that she was 14 years old when her sister sponsored her mother and siblings for the Offshore Refugee and Humanitarian visa and she does not remember much about the application other than her sister told her it was not successful. The applicant states that she was 16 years old when her sister Hanifa sponsored her and her siblings for the Orphan Relative visa and she had no English and does not recall being involved in completing or signing the forms. The applicant describes the family’s situation in Pakistan, stating that they were illegal refugee children without male protection and could not leave the house for fear of being deported to Afghanistan. The applicant states that the family wanted to have a better future in Australia and she knew that the application was being made that both her parents were deceased and that is the information she was told to state in her interview. She did as she was told because otherwise she would have been disrespectful to the family and it would have crushed her mother’s  attempts to bring them to Australia. The applicant states she was dependent on her family and not able to live independently. The applicant also concedes she gave an incorrect answer in her citizenship application as she claims she did not want to draw attention to the matter and cause consequences for her family.

15. In oral evidence, the applicant also stated that she was very young when the application for the Orphan Relative visa was made and she had no English, so it was her sister who completed the application. The applicant refers to the difficult circumstances her family was in and states that they had no choice but to move to a different country. The applicant states that she did not inform the Department of the incorrect answer after coming to Australia because it would impact on her family and jeopardise her family’s circumstances.

16. Having regard to the applicant’s own evidence, as well as the information contained in the primary decision record, the Tribunal finds the applicant’s mother was alive when the applicant made the application for the Orphan Relative visa. The Tribunal finds that the applicant gave incorrect answers in her application form 40CH when she claimed her mother was deceased and also when the applicant stated she had not been refused a visa previously. The Tribunal finds that the applicant completed her application form in a way that incorrect answers were given. The Tribunal finds there was non-compliance in a way described in the Notice.

17. For these reasons, the Tribunal finds that there was non-compliance with s. 101 by the applicant in the way described in the s.107 notice.

    Should the visa be cancelled?

18. As the Tribunal has decided that there was non-compliance in the way described in the notice given to the applicant under s.107 of the Act, it is necessary to consider whether the visa should be cancelled pursuant to s.109(1). Cancellation in this context is discretionary, as there are no mandatory cancellation circumstances prescribed under s.109(2).

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

    The correct information

20. The correct information is that the applicant’s mother was not deceased when her application was made and when she was granted the visa. The correct information also is that the applicant had previously applied for, and had been refused a visa. The applicant told the Tribunal that she had no recollection about the humanitarian visa, given her age and lack of English.

    The content of the genuine document (if any)

21. This is not relevant in the present case.

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

22. The definition of orphan relative in r. 1.17 required the applicant to satisfy the decision-maker that her parents were deceased, permanently incapacitated or of unknown whereabouts. The applicant claimed that her mother was deceased. The applicant had not claimed that her mother was of unknown whereabouts or incapacitated and such claims were not assessed. The applicant claimed that her mother was deceased and on that basis she was assessed as meeting the definition in r. 1.17. If the true information about the mother was known, and in the absence of any claims about her incapacity, the applicant would not have met the requisite definition. The Tribunal considers it significant that the applicant is unlikely to have been granted the visa if the correct information was known. The Tribunal finds that the decision to grant the visa was based, in part, on incorrect information.

    The circumstances in which the non-compliance occurred

23. The applicant claims, essentially, that when she applied for the visa, she was young and relied on other family members to make decisions for her. The applicant states that due to the poor living conditions, her family sought migration to Australia and she did not want to jeopardise their chances and therefore presented incorrect information at the interview.

24. In oral evidence the applicant states that it was very difficult for her mother to bring up the children as a single parent, there was no government support and very little work opportunities and her mother could not leave the house and had to do jobs at home. They were considered orphans after the death of their father and they wanted to have a safer life. The applicant refers to a bomb blast in which her brother was injured and states that at that time her mother decided she would do anything to bring her children to a safer place. The applicant’s mother provided a declaration to the Tribunal in which she repeated the same information.

25. The Tribunal is prepared to accept that as a minor, the applicant may have had little influence over what information was being provided in the application forms, although the Tribunal is of the view that each applicant must bear responsibility for the content of their application. In this case, however, the Tribunal is also mindful that on her own evidence, the applicant attended an interview in which she also claimed that  her mother was deceased. The giving of that information was within the applicant’s control and intentional. The applicant claims she did not want to jeopardise her family’s chances of migration and it is for that reason that she gave incorrect information.

26. The Tribunal is also mindful that there is no evidence that the applicant had ever informed the Department of the incorrect answers once she became an adult or capable of making her own decisions. The applicant told the Tribunal that she was scared that it would affect her visa and her family’s visas as well and she did not want her family’s visas to be affected. She also concedes to providing incorrect information in her citizenship application which was made by the applicant herself, without being dependent on any family members. The provision of incorrect information there was also deliberate and intentional.

    The present circumstances of the visa holder

27. The applicant has completed her schooling in Australia. She is married to an Australian permanent resident and has three young children who are Australian citizens aged 4 and 2. Her husband is a permanent resident of Australia. The applicant told the Tribunal that she wanted to complete her studies but had no opportunity to study with the births of her children and also once her visa was cancelled.  

    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. There is no evidence that the applicant had informed the Department about the incorrect answers, as required by s. 105. Otherwise, nothing adverse is known about the applicant’s behaviour concerning her obligations under the Act.

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

29. the delegate refers to the provision of incorrect information in the applicant’s application for the Australian citizenship but that would not be non-compliance under s. 101 of the Act.

    The time that has elapsed since the non-compliance

30. The application for the Orphan Relative visa was made in June 2010 and more than ten and a half years passed since the non-compliance. The Tribunal acknowledges that this is a lengthy period and in her oral evidence the applicant spoke about her settlement in Australia and her desire to study.

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

31. There are no known breaches of the law.

    Any contribution made by the holder to the community.

32. The applicant told the Tribunal that she always wanted to contribute to the community but had limited opportunity due to the birth of her children. The applicant states that she is raising her children in a way that they will be contributing members of the community.

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

    Whether there would be consequential cancellations under s.140.

34. There are no persons who would be affected by the consequential cancellation.

    If there are children whose interests would be affected by cancellation, or consequential cancellation, decision-makers should consider the best interests of those children as a primary consideration when deciding whether to cancel the visa.

35. The applicant has three Australian citizen children aged between 2 and 4. The Tribunal accepts that it is in the best interests of these children to be in the care of their mother and retain the care of both parents who are presently in Australia. The Tribunal is mindful that the applicant is eligible to make an application for a Partner visa onshore and if she does, the applicant would be able to remain in Australia with her children. However, there is no certainty that the applicant will be able to make such an application. This is because her husband may be subject to a five year sponsorship limitation and also because of the high cost of the application, as the applicant told the Tribunal she has no savings. In the particular circumstances of this case, the Tribunal cannot make a positive finding that the applicant will be able to make an application for a Partner visa onshore, or that  she would be granted such a visa. As such, there is a possibility, even if an insignificant one, that the applicant would be required to leave Australia. The Tribunal is of the view that the applicant’s departure from Australia would not be in the best interests of her children and this is a primary consideration.

36. The applicant also told the Tribunal that if her visa is cancelled, her mental state would be affected while she is making the application for another visa and that would also affect the children. in the absence of medical evidence, the Tribunal does not accept that the applicant’s mental state, or the health of her children, would be affected by the cancellation of her visa.

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

37. The applicant states that the society in Pakistan is not supportive of women and she would face discrimination and hardship if she were to live in Pakistan. The Tribunal notes, however, that if the applicant cannot seek another visa in Australia and if she is to depart Australia, before such departure, an assessment of Australia’s International Treaties Obligations would be undertaken. Should it be determined that the applicant is owed protection, the applicant may be eligible to seek a visa in Australia and she would not be removed from Australia in breach of Australia’s non-refoulement obligations.

    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.

38. If the applicant’s visa is cancelled and if she does not hold any other visa, the applicant would become an unlawful non-citizen and be subject to mandatory detention and removal from Australia. The applicant may be eligible to make a valid visa application for certain visas without the Minister’s intervention although there are limited types of visas that she can apply for onshore. An offshore application for a visa may be subject to an exclusion period. The cancellation of a permanent visa would result in the applicant losing some benefits that she may have been acquired under that.

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

39. The applicant states that she had been living in Pakistan as a refugee and has nothing to go back to. The applicant states that she would have no means of earning a living. The applicant refers to the difficult situation for women in Pakistan. The Tribunal accepts that  the applicant has been living in Australia for about ten years and is settled here. Her immediate family are in Australia. The applicant told the Tribunal that  if her visa is cancelled, she would have to leave the country with her children as she could not live without her children. The applicant states that her husband would not be able to support them.  The applicant’s sister spoke about the close family ties and the close relationship her children have with the applicant and her own children. The Tribunal accepts that considerable hardship  would be caused to the applicant if her visa is cancelled.

1. The Tribunal has considered the applicant’s circumstances. The Tribunal has found that the applicant completed the application form in relation to the Orphan Relative visa in a way that incorrect answers were given, in breach of s. 101, and that there are grounds for cancelling her visa under s. 109 of the Act.

2. The Tribunal has considered the circumstances in which the ground for cancellation arose and acknowledges the applicant’s evidence that the family were unsafe and her mother wanted what was best for the children, which was to enable them to migrate to Australia. While the Tribunal is prepared to accept that evidence, the Tribunal does not consider that the desire to migrate to Australia, whatever the family’s circumstances were at the time, justifies the provision of incorrect answers. This is particularly problematic in this case because the incorrect information was central to the applicant’s eligibility for the visa. If it was known that  the applicant’s mother was alive, her whereabouts were known and there was no evidence of incapacity, the applicant would not have met the definition of ‘orphan relative’ and would not been granted the visa. In most circumstances, this would be determinative in the Tribunal’s deliberations to cancel a visa. However, in this case, the Tribunal places considerable weight on the fact that the applicant was a minor when the application was made and her responsibly for the provision of incorrect answers was therefore diminished. The Tribunal has formed the view that  significant hardship would be caused to the applicant if her visa is cancelled, given the length of time she has spent in Australia, the presence of her family in this country and lack of any support in her home country. While such hardship may be minimised if the applicant were to make an application for a Partner visa onshore, the Tribunal acknowledges the applicant’s evidence that she has no funds to make the application and is also mindful that her husband may be subject to a sponsorship limitations if he were to sponsor the applicant for the visa. That is, there can be no certainty that the visa will be granted.

3. The Tribunal has formed the view that it is in the best interests of the three Australian citizen children to remain with their mother and the Tribunal accepts the applicant’s evidence that if her visa is cancelled and if she has to leave Australia, her children would come with her and they have no means of supporting themselves overseas. The Tribunal accepts that it would cause significant hardship to the family if the applicant was required to leave Australia and if the family was to relocate to Pakistan or Afghanistan.

4. Overall, the Tribunal has found that there are strong reasons why the visa should be cancelled. In particular, the fact that the applicant had wilfully engaged in the provision of incorrect information in her visa application and the subsequent citizenship application and that the incorrect information was central to the decision to grant her the visa. However, the Tribunal has decided to place greater weight on the significant hardship that would be caused to the applicant if the visa is cancelled, the best interests of her three minor children, the length of time the applicant has spent in Australia and strong family ties she has in this country.

5. 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

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

   Kira Raif
   Senior Member