Angelina (Migration)

[2021] AATA 3048

Angelina (Migration) [2021] AATA 3048 (2 August 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Angelina

CASE NUMBER:  2106800

HOME AFFAIRS REFERENCE(S):          BCC2018/1554752

MEMBER:Kira Raif

DATE:2 August 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 2 August 2021 at 11:38am

CATCHWORDS

MIGRATION – cancellation – Return (Residence) (Class BB) visa – Subclass (155) (Five Year Resident Return) – incorrect answers in the visa application – unregistered birth certificate – applicant’s former husband changed her name – sole caregiver to Australian citizen children – best interests of the children – difficulties obtaining Indonesian citizenship – bogus document did not undermine visa grant – decision under review set aside         

LEGISLATION

Migration Act 1958, ss 5(1), 97-105, 107-109, 116, 140
Migration Regulations 1994, r 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 Indonesia, born in March 1988. She was granted the Partner visa in January 2012 and a Resident Return visa (RRV) in February 2017. In February 2021 the applicant was issued with the Notice of Intention to Consider Cancellation (NOICC) because the delegate formed the view that she did not comply with s. 103 of the Act. It appears that the applicant did not respond to the NOICC and her visa was cancelled in May 2021. The applicant seeks review of the delegate’s decision.

3. The applicant appeared before the Tribunal on 2 August 2021 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Indonesian and English languages. 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 103 of the Act.

10. The applicant provided to the Tribunal a copy of the primary decision record which contains the following information. The applicant made an application for a Partner visa in Subclasses 820/801 in November 2009. As part of that application, the applicant completed Form 47SP in which she stated that her name was Angelina (dob 31/3/88) and she did not answer the question whether she had been known by another name. In support of the application the applicant provided her birth certificate, issued on 1 February 2001 by Civil Records, in the name of Angelina, born on 31 March 1988 in Jakarta. It identified the applicant’s parents as Sutoyo and Tuti Ratnasari. The applicant was granted the Provisional Partner visa on 18 January 2010 and the Partner (Resident) visa on 19 January 2012. In February 2017 the applicant was granted the Resident Return visa (RRV).

11. The primary decision record indicates that in March 2017 the applicant submitted a change of address / passport form to the Department, providing her new passport details. It is stated that the Department conducted integrity checks of the applicant’s birth certificate and her passport. The primary decision record indicates that on 2 December 2020 the Civil Registry Office in Jakarta confirmed that the birth certificate which was submitted in support of the Partner visa application was not registered in their database and the delegate concluded it was a bogus document. The Immigration Office in Jakarta also confirmed that the applicant’s new passport was issued on the basis of the above birth certificate.

12. In oral evidence, the applicant stated that before coming to Australia she had no English and no understanding and her ex-husband wanted her to come to Australia and arranged all the documents. Her husband wanted to change her name and she did whatever he wanted. The applicant confirmed that she was given a different name at the time of her birth but her husband arranged another document, stating her name to be Angelina. She gave the original birth certificate to her husband and had photographs taken but did not sign any application and her then husband told her that her name was changed and the old certificate was no longer valid.

13. Having regard to the information set out in the primary decision record, being the result of the verification of the applicant’s birth certificate, the Tribunal finds that the birth certificate was not registered with the relevant authority tasked with issuing such documents and was therefore not issued by that authority. The Tribunal reasonably suspects that the birth certificate submitted with the Partner visa application is a bogus document because it is counterfeit or has been altered by a person who does not have authority to do so. The Tribunal finds that the applicant gave, or caused to be given, to an officer or the Minister, a bogus document. The Tribunal finds that the applicant did not comply with s. 103 of the Act in relation to her Partner visa application. The Tribunal finds that there was non-compliance with 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 r.2.41 of the Regulations. They are:

    The correct information

16. This is not relevant in the present case.

    The content of the genuine document (if any)

17. A genuine birth certificate would show a different name for the applicant but the applicant claims her date of birth was correct.

    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

18. A person’s identity is highly significant to any assessment of a person’s eligibility for visa grant. As proof of her identity, the applicant provided her birth certificate and it was found to be a bogus document. The Tribunal finds that the decision to grant the visa was based, in part, on a bogus document.

    The circumstances in which the non-compliance occurred

19. The applicant told the Tribunal that the paperwork was arranged by her ex-husband and she followed whatever he wanted to do. The applicant states that her husband wanted her to marry in Australia in the name of Angelina and arranged the birth certificate and had discarded the original birth certificate. The applicant states that she fully trusted her husband who wanted to bring her to Australia for a better life. The applicant claims that she believed the birth certificate to be a genuine document because she did not know how to get a birth certificate and she used it to get her passport.

20. While the Tribunal considers it plausible that the paperwork was arranged by the applicant’s former spouse, the Tribunal is of the view that the applicant has the responsibility for her own visa application and it is not enough to state that another person did it on her behalf. The Tribunal is of the view that to arrange a change of name, there would need to be some involvement from the applicant, at least by signing the forms, and if the applicant was not involved in the process, as she claims, it should have been reasonably clear to the applicant that the birth certificate was not a genuine document. The Tribunal is also mindful that the applicant failed to disclose her genuine name on the application form as another name she had been known by. In the Tribunal’s view, the applicant did not undertake sufficient action to ensure the birth certificate was a genuine document or was wilfully indifferent about the issue.

    The present circumstances of the visa holder

21. The applicant provided to the Tribunal a copy of her divorce order indicating that she had divorced in 2018. She told the Tribunal she has three minor children, aged 12, 9 and 1 and is a single mother. She is not presently in a relationship and the children have no contact with their fathers.

22. The applicant told the Tribunal that she worked in Aged Care but has not been able to work since her visa was cancelled. The children attend school or day care.

23. The applicant provided to the Tribunal a Family Violence Intervention Order and evidence of a child support arrangement with her former partner. She told the Tribunal her ex-husband has not paid child support. The applicant also presented her children’s school records.

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

24. 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

25. There are no other known instances of non-compliance.

    The time that has elapsed since the non-compliance

26. The application for the Partner via was made in November 2009. Close to 12 years passed since the non-compliance and the Tribunal acknowledges it is a lengthy period.

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

27. There are no known breaches of the law and the applicant told the Tribunal she has been law-abiding.

    Any contribution made by the holder to the community.

28. The applicant told the Tribunal that she paid taxes when she worked. She referred to having formed community links. The Tribunal accepts that evidence.

29. 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.

30. There are no persons who 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.

31. The applicant has three minor children, born in 2009, 2012 and 2020 respectively. All the children are Australian citizens.

32. The applicant’s evidence is that she is the sole caregiver to the children who have no contact with their fathers. The applicant presented to the Tribunal a copy of a Family Violence order and the Tribunal accepts, for the purpose of this review, that family violence occurred. The applicant told the Tribunal that if the elder children wish to establish contact with their father, she would not object to that.

33. The Tribunal would normally form the view that it is in the best interests of the children to have access to both parents but in this case, the Tribunal acknowledges that this may not necessarily be the case, given the family violence that has occurred in this relationship. The applicant told the Tribunal that the father of the elder children has no parental responsibility and does not care about the children. He has never paid child support and owes more than $50,000 in child support. The applicant told the Tribunal that the father of her youngest child is a drug user and she prefers for there to be no contact between him and the youngest child unless he has rehabilitated.

34. The Tribunal is of the view that in the circumstances, it is in the best interests of the children to remain in the care of their mother.

35. The Tribunal notes that in this particular case, the children would not be able to obtain the Indonesian citizenship while maintaining their Australian citizenship, as Indonesia does not recognise dual citizenship and the Tribunal does not consider it reasonable to expect the children to give up their Australian citizenship. The Tribunal accepts that the children’s status as non-citizens in Indonesia may limit their rights and opportunities. The Tribunal also acknowledges the applicant’s evidence that the children were born in Australia and have always lived in Australia and have their friends here. The Tribunal accepts that the children are used to life in Australia.

36. Overall, the Tribunal is satisfied that in the circumstances of this case, it is in the best interests of the three Australian citizen children to remain in Australia with their mother and that the cancellation of the visa would therefore not be in the best interests of the children.

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

37. The applicant told the Tribunal that she is afraid that her ex-husband would take the children away from her in order to hurt her. It is not necessary for the Tribunal to determine whether Australia’s non-refoulement obligations arise in this case because, for the reasons set out below, the Tribunal has determined that it is able to make a favourable decision irrespective of this consideration.

    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 would be limited types of visas she can apply for onshore. The applicant may be subject to an exclusion period in relation to some visas. The cancellation of a permanent visa would result in the applicant losing some benefits that she may have been entitled to 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).

39. The applicant told the Tribunal that if her visa is cancelled, she cannot work and would have to rely on her friends which she cannot do forever. The applicant states that she wants to remain in Australia to support her young children. The applicant spoke about her fear of returning to Indonesia because of her former spouse. The applicant spoke about the effect of  the visa cancellation on her own mental health and the effect on the children. The Tribunal accepts the applicant’s evidence and accepts that considerable hardship would be caused to the applicant and her children if the visa is cancelled.

40. The Tribunal has considered the totality of the applicant’s circumstances. The Tribunal has found that the applicant did not comply with s. 103 of the Act and that  there are grounds for cancelling her visa.

41. The Tribunal has formed the view that the cancellation of the visa would cause significant hardship to the applicant and her children because she is the primary caregiver to her three minor children, who are Australian citizens and had been living in Australia their entire lives. In the circumstances of this case, the Tribunal has also formed the view that it is in the best interests of these children to remain in Australia. This is because Indonesia does not recognise dual citizenships, so unless the children rescind their Australian citizenship, they may have limited rights, opportunities and access to services in Indonesia. The Tribunal has also formed the view that it is in the best interests of the children to remain with their mother, who has been their primary caregiver (with little or no parental involvement from their fathers). The Tribunal acknowledges that the best interests of the children is a primary consideration.

42. The Tribunal also places significant weight on the fact that the primary basis of the visa grant – the applicant’s relationship with the sponsoring partner – had not been questioned. There is no suggestion that the applicant was not the spouse of the sponsor and that the bogus document undermined her claims in that regard. The nature of that relationship does not appear to be in question. Neither is the applicant’s identity. The primary decision record does not indicate that the applicant’s identity is at issue (and if that  was the case, the delegate may proceed to cancel the visa under s. 116 of the Act.) That is, there is a real possibility that the applicant would have been granted the visa if she did mention her other name and provided her genuine birth certificate with the application.

43. The Tribunal places weight on the fact that the applicant has been residing in Australia for a lengthy period of time and appears to have been settled in this country. She has formed social and employment ties and the Tribunal acknowledges that her departure from Australia would result in considerable hardship.

1. The Tribunal finds that these circumstances outweigh other considerations that may be in favour of the cancellation.

2. 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

3. 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