Ali (Migration)

[2021] AATA 2705

Ali (Migration) [2021] AATA 2705 (10 May 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Aliya Ali

CASE NUMBER:  2018086

HOME AFFAIRS REFERENCE(S):          BCC2018/2347150

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 10:52am

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 – consistently dishonest in her dealings with Immigration – minor when the application was made – time elapsed since the non-compliance – well settled in the community – degree of hardship – unsafe situation in Afghanistan – absence of any support home country – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 101, 105, 107, 107A, 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 1993. She was granted the Orphan Relative visa in August 2011 and the Resident Return visa in May 2018. On 25 May 2020 the applicant was issued with the Notice of Intention to Consider Cancellation (NOICC) because the delegate formed the view that the applicant did not comply with s. 101 of the Act. The applicant provided her response to the NOICC and her visa was cancelled on 17 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 mother and sister. The applicant was represented in relation to the review by her registered migration agent. 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.

6. Section 107A of the Act specifies non-compliance in relation to an application for a previously held visa, can constitute grounds for cancellation of the currently held visa.

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

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

8. The Tribunal has considered the validity of the NOICC. The 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?

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

10. 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 cared for her three younger siblings and that their 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 whether 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 been refused a visa for Australia.

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

12. The primary decision record indicates that in June 2015 the applicant sponsored her husband Mr Hassan for a Partner visa in Subclass 309. (The applicant provided to the Tribunal a copy of the divorce certificate, stating that the relationship had been affected by the visa issues and the delay in visa processing.) As part of that application the Department conducted checks to verify the information supplied by the applicant, including an interview with the applicant’s husband and guests who were present at their wedding. It was noted that the applicant’s mother attended the wedding on 12 April 2015 and this information was corroborated by the applicant’s brother and mother in their statements made in November 2019. 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 August 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 15 or 16 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 on the basis 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 that 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. In her oral evidence to the Tribunal the applicant also admits that she gave an incorrect answer in her Orphan Relative application. The applicant states that the situation was not safe for her family in Pakistan and they wanted to escape that situation. The applicant states that even though they did provide incorrect information to the Department, they thought it was safe in their circumstances. The applicant’s mother also gave oral evidence to the Tribunal confirming that she wanted to do what was best for her children who were living in an unsafe situation.

15. Having regard to the applicant’s 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 stating that 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.

16. 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?

17. 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).

18. 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

19. 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 an Australian visa.

    The content of the genuine document (if any)

20. 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

21. 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 the mother’s incapacity, the applicant would not have met the requisite definition of ‘orphan relative’. 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

22. 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.

23. The applicant provided to the Tribunal declarations from her family members which outline the family background and the circumstances in which incorrect information was submitted with the visa application. The applicant’s mother refers to the discrimination and hardship the family experienced and states that they proceeded with the Orphan relative visas, which involved deceit, out of desperation for the safety of the children. The same evidence was given to the Tribunal by the applicant’s mother and also her sister. The Tribunal acknowledges that evidence but is mindful that the basis for the cancellation is not the information provided by the applicant’s mother, nor her immigration history, but the incorrect answers provided by the applicant in her own visa application.

24. In her own declaration to the Tribunal the applicant repeats the claims made in response to the NOICC. The applicant states that she was about 16 when the application was made, had little or no English and had not been involved in the completion of the forms. The applicant confirms that she was aware that the application was lodged on the basis that her parents were deceased and states that she knew she was supposed to repeat that information in her interview. The applicant concedes that she did not tell the truth about her mother during the interview but claims she believed she was doing her best for her family. The applicant’s sister (the sponsor) gave oral evidence to the Tribunal in which she stated that it was not an easy decision to deceive but she did it out of concern for her family.

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 applicant’s mother told the Tribunal that they relied on the advice of a migration agent in providing incorrect information but the Tribunal does not accept that claim. It is possible that the family would rely on the advice of an agent to understand the legal principles or the requirements of the Migration Act but in this case, everyone involved would have known that the information about the mother’s death was false and they would not have needed a migration agent’s advice to appreciate that.

27. 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 (as required by s. 105 of the Act). 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

28. The applicant provided to the delegate evidence of her Australian study and she states that she has been living in Australia for many years and is settled in the society. The applicant’s mother and siblings reside in Australia. The applicant told the Tribunal that two of her siblings are Australian citizens and her sister’s and brother’s visas were cancelled. The applicant told the Tribunal that she has distant family in Afghanistan but she does not have much contact with them. The Tribunal accepts that the applicant has strong family ties in Australia and little family support in Afghanistan.

29. The applicant told the Tribunal that her relationship with her husband ended because he was too controlling and they have formally divorced. She has no plans to sponsor him for a visa in the future.

30. In her evidence to the Tribunal the applicant refers to the study she has undertaken in Australia, noting that she has completed schooling, commenced a nursing course and is has recently completed a Bachelor of Policing. The applicant told the Tribunal she completed the degree in March 2021 and will graduate in September 2021 when she can apply to become a police officer.

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

31. As noted elsewhere, there is no evidence to show that the applicant had contacted the Department to correct the information, as she was required to do under s. 105 of the Act. 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

32. 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 the Migration Act.

    The time that has elapsed since the non-compliance

33. The application for the Orphan Relative visa was made in June 2010 and close to eleven years passed since the non-compliance. The Tribunal acknowledges that this is a lengthy period.

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

34. There are no known breaches of the law.

    Any contribution made by the holder to the community.

35. The applicant provided to the delegate and the Tribunal evidence of her studies to become a police officer. The applicant told the Tribunal that she wants to serve the community by being a police officer and will apply to become one after graduation in September 2021. The Tribunal accepts that if the applicant is engaged in policing, she would be making a significant contribution to the community.

36. The applicant told the Tribunal that she helped a friend in a gift shop but has not been able to work since the cancellation of her visa.

37. 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.

38. There are no persons whose visas would be subject to consequential cancellation.

    
    

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

    Best interests of the children

39. The applicant has no children but she refers to having a close relationship with her nieces and nephews and states that they would be affected by the cancellation of the visa. The applicant states that the children ask her for help and advice. The applicant states that the cancellation of her visa would affect her physically and mentally and that would also affect the children mentally or psychologically. The Tribunal is prepared to accept that  the applicant has a close relationship with these children but the Tribunal is mindful that these children are being cared for by their parents and such care would continue irrespective of the applicant’s visa status or her place of residence. In the Tribunal’s view, the best interests of the children are to be with the parents and these would be unaffected by the cancellation of the visa. In particular, there is no probative evidence that the children’s mental state or physical well-being would be affected as a result of the applicant’s visa being cancelled. The Tribunal does not accept that  would be the case.

1. The Tribunal has formed the view that the best interests of the children would not be adversely affected by the cancellation of the applicant’s visa.

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

2. The applicant states that prior to her entry to Australia, she and her family were Afghani refugees living in Pakistan where the living conditions and the environment were not good and where they faced the possibility of being deported to Afghanistan. The applicant states that she cannot return to Afghanistan or Pakistan as the situation is unsafe for single women. The Tribunal is mindful, however, that the applicant is eligible to seek a Protection visa in Australia and that an assessment of Australia’s protection obligations would be undertaken before the applicant is removed from Australia. The Tribunal does not consider that Australia’s non-refoulement obligations would be breached as a result of the cancellation.

3. The applicant’s immediate family is in Australia but the Tribunal is mindful of the applicant’s evidence that two of her siblings had their visas cancelled and her mother had also provided incorrect answers in her own application and her visa may thus be subject to cancellation in the future. The Tribunal does not consider that family unity obligations require the applicant’s presence in Australia.

   Whether there are mandatory legal consequences, such as whether the person would become unlawful and liable to detention and removal, whether detention is a likely consequence of the cancellation decision and if so, for how long, and whether there are provisions in the Act which prevent the person from making a valid application for any visa without the Minister personally intervening.

4. 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 the benefits that she may have acquired as a permanent resident of Australia.

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

5. The applicant has been living in Australia for over ten years, has undertaken tertiary studies here and is well settled in the Australian community. The applicant presented a character reference from her lecturer, although it is not apparent from that reference that the person providing the reference is aware of the circumstances that led to the cancellation of her visa. The applicant provided to the Tribunal evidence of her study and the Tribunal acknowledges that the applicant has completed her course and is awaiting graduation. The applicant’s mother and siblings reside in Australia (although the Tribunal is mindful of the applicant’s evidence that the visas held by two of her siblings have also been cancelled so it cannot be assumed that  they will continue to reside in Australia). The applicant’s spouse was resident in Pakistan but the applicant provided to the Tribunal evidence of the relationship breakdown. The Tribunal accepts that the applicant has strong links to Australia and that departure from this country may cause her considerable hardship.

6. The primary decision record indicates that the applicant provided incorrect information in her Citizenship application and in her declaration to the Tribunal the applicant confirmed that she was not honest in that application about her mother being alive and living in Australia as she did not want to draw attention to this matter and cause consequences for the family and she apologised for her conduct. The Tribunal acknowledges that the provision of incorrect information is not a breach under the Migration Act but is likely to be a breach under the Citizenship Act. The Tribunal finds that conduct highly problematic because it can no longer be said that the applicant was a minor and acting on advice of her elders or a migration agent. The applicant was a responsible adult. She has indicated her intention to become a police officer, a profession that requires a high level of integrity. Yet the applicant chose to provide incorrect answers in relation to her citizenship application because she determined that it would better suit her circumstances. In the Tribunal’s view, the applicant’s persistent dishonesty when dealing with Immigration is a strong reason why the visa should be cancelled.

7. The applicant told the Tribunal that she and family are now telling the truth and she is apologetic about her past behaviour. The Tribunal does not accept the applicant is genuinely remorseful for her past conduct because the applicant had not taken any steps to rectify the situation in the past ten years, including the time after the applicant came to Australia and was safe in this country. The applicant continued to provide incorrect answers in her citizenship application and it was not until she was issued with the NOICC that the applicant expressed remorse and told the truth. The Tribunal does not accept the applicant is genuinely remorseful for her past actions but finds her claims opportunistic.

8. The Tribunal has considered the totality of the applicant’s circumstances. The Tribunal has found that the applicant completed her application form in a way that incorrect answers were given and that there are grounds for cancelling her visa.

9. The Tribunal finds that there are very strong grounds why the visa should be cancelled. As noted above, the applicant had been consistently dishonest in her dealings with Immigration, both at the time when she made the visa application, when she was a minor and claims she was following directions of her elders, and also in relation to her citizenship application when these justifications were no longer applicable. The Tribunal finds that the applicant deliberately chose to be dishonest in order to achieve a favourable outcome and that is a strong reason, in the Tribunal’s view, why her visa should be cancelled. It is also highly significant, in the Tribunal’s view, that the decision to grant the visa was based on incorrect information. In fact, the falsehood concerning her mother’s death was central to the applicant’s ability to meet the definition of ‘orphan relative’ and was central to the decision to grant her the visa. That is also a very strong reason why the visa should be cancelled and, in many circumstances, would outweigh other considerations.

10. However, in this case, the Tribunal has decided to place greater weight on other considerations. The Tribunal places weight on the fact that the applicant was a minor when the application was made and would have had little influence on how the application was prepared. While the Tribunal is of the view that it was open to the applicant to disclose genuine information in her interview, the Tribunal acknowledges the applicant’s evidence that she believed she was required to follow the advice of others, particularly given the family’s circumstances. Also significant in this case, and in the Tribunal’s view, determinative, is the degree of hardship that would be caused to the applicant if her visa is cancelled. The Tribunal acknowledges that the applicant has been living in Australia for approximately ten years, which is a lengthy period, and is well settled in Australia, having completed her secondary schooling and tertiary study. She is well settled in the community. Importantly, the applicant’s immediate family reside in Australia and the Tribunal accepts her evidence that she has nothing to return to. The Tribunal is mindful of the applicant’s claim that her relationship with her husband in Pakistan has ended (the Tribunal notes that if it is determined in the future that this information is incorrect, that may also have adverse consequences to her partner’s future visa application and to the applicant’s own future citizenship application). The applicant has little or no support overseas. The Tribunal has formed the view that considerable hardship would be caused to the applicant if her visa is cancelled.

11. Overall, the Tribunal places greater weight on the significant hardship that would be caused to the applicant and her family if her visa is cancelled, arising from the length of her residence in Australia and settlement in this country, the unsafe situation in Afghanistan if the applicant was required to leave the country, the presence of her immediate family in Australia and the absence of any support in her home country. The Tribunal also places weight on the fact that the was a minor when the application was made. The Tribunal has formed the view that these factors outweigh other considerations which are in favour of the cancellation.

12. 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

13. 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