Aryee (Migration)

[2022] AATA 3144

Aryee (Migration) [2022] AATA 3144 (3 August 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Elizabeth Aryee

REPRESENTATIVE:  Mr Brenton Halligan (MARN: 9906163)

CASE NUMBER:  2206191

HOME AFFAIRS REFERENCE(S):          BCC2021/699966

MEMBER:Kira Raif

DATE:3 August 2022

PLACE OF DECISION:  Sydney

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 03 August 2022 at 9:31am

CATCHWORDS

MIGRATION – cancellation – Child (Migrant) (Class AH) visa – Subclass 101 (Child) – satisfied as to the applicant’s identity – incorrect answers in the visa application – differing dates of birth for the applicant’s parents – family names changed – DNA test confirming family relationships – applicant was a minor for the previous application – studies in Australia – power to cancel the visa does not arise – decision under review set aside        

LEGISLATION

Migration Act 1958, ss 48, 101, 116, 140
Migration Regulations 1994

STATEMENT OF DECISION AND REASONS

Application for review

1. This is an application for review of a decision dated 22 April 2022 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 101 (Child) visa under s 116 of the Migration Act 1958 (Cth) (the Act).

2. The applicant is a national of Ghana and claims to be born in August 1996. She was granted a Child visa in June 2013. In March 2022 the applicant was issued with the Notice of Intention to Consider Cancellation (NOICC) because the delegate was not satisfied as to the applicant’s identity. The applicant provided her response to the NOICC and her visa was cancelled. The applicant seeks review of the delegate’s decision.

3. The applicant appeared before the Tribunal on 2 August 2022 to give evidence and present arguments. The applicant was represented in relation to the review. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

   Relevant law

4. Under s 116 of the Act, the Minister may cancel a visa if he or she is satisfied that certain grounds specified in that provision are made out. Relevantly, to this case, these include the ground set out in s 116(1AA). If satisfied that the ground for cancellation is made out, the decision maker must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances, which may include matters of government policy.

5. A visa may be cancelled under s 116(1AA) if the Minister is not satisfied as to the visa holder’s identity.

   Does the ground for cancellation exist?

6. The applicant provided to the Tribunal a copy of the primary decision record. It indicates that the applicant made the application for a Child vias on 28 November 2012, as a secondary applicant included in the application made by her sister Regina. The applicants were sponsored by their father Emmanuel Ankrah Aryee. On the application form the applicant gave her name as Elizabeth Aryee, gave her date of birth, place of birth (Accra, Ghana) and stated that she was not known by any other name. The applicant included in the application details of her parents (father Emmanuel Ankrah Aryee and mother Theodora Mensah) and her two siblings Regina and Hannah.

7. In support of the application the applicant provided

   a.a copy of her birth certificate, which listed the same parents and was issued by Korle Bu Hospital in Accra. This was certified as a true copy in January 2011,

   b.birth certificates for Hannah and Regina, also listing the same parents, and certified in September 2012 and January 2011 respectively,

   c.a Health insurance scheme card for Theodora Mensah,

   d.a statutory declaration by Ms Theodora Mensah who confirmed that she was the biological mother of Elizabeth, Hannah and Regina,

   e.a copy of her Ghanaian passport issued in November 2012.

8. The applicant was granted the Child visa in June 2013 and arrived in Australia in September 2013.

9. In August 2019 the applicant made an application for the Australian citizenship and provided the same name, date and place of birth as were given in her Child visa application. The applicant referred to her mother as Theodora Mensah and her father as Emmanuel Aryee and stated that they had not been known by any other names. The dates of birth for the applicant’s parents, given in the citizenship application, were different to their dates of birth given in the Child visa application.

10. The delegate states that in September 2020 Theodora Mensah made an application for a Subclass 115 Remaining Relative visa, sponsored by the applicant. On the sponsorship form the applicant stated that Theodora Mensah was her step-mother and Hannah and Regina are her step-sisters. This contradicts the information in the applicant’s birth certificate, and her sisters’ birth records, which refer to Theodora Mensah’s children being biological children.

11. The primary decision record refers to the information available to the Department, indicating that the applicant, under the name of Elizabeth Obeng,  was previously declared as a dependent child of Theodora Batsa in an application made onshore in 2001. A forensic facial image examiner completed a facial image comparison and concluded that the photograph of Theodora Batsa provided in November 2001 for an onshore visa application depicted the same person as the photograph provided by Theodora Mensah for a Remaining Relative visa application made in 2020.

12. The primary decision record notes that Theodora Mensah / Batsa had previously made an application for a visa in Australia in November 2001, which was refused and affirmed by the Tribunal, and she departed Australia in August 2003. In September 2020 Theodora Mensah applied for a Remaining Relative visa, sponsored by Elizabeth, who claimed that Theodora was her step-mother. The delegate formed the view that this raised concerns about the authenticity of the applicants’ identity documents.

13. The primary decision record also indicates that financial transaction records available to the Department showed that Theodora Batsa and Theodora Mensah resided at the same address in Ghana, which was also the residential address and the delegate concluded that Theodora Batsa and Theodora Mensah are the same person. The delegate found that the applicant was previously known as Elizabeth Obeng and had not declared that identity in her Child visa application. 

14. The delegate found that the applicant was previously declared as a dependent child using a different name and a different date of birth (August 1995). The applicant stated in the Child visa application that she had not been known by any other name. The applicant also claimed in the Child visa application that her two sisters were biological sisters while it was claimed in the mother’s Remaining Relative application that there was a step-sibling relationship. The applicant also failed to declare that her mother was previously known by a different name. The delegate referred to country information which refers to widespread availability of fraudulent documents and concluded that there is doubt about the applicant’s true identity.

15. In her response to the NOICC the applicant states that at the time she applied for the Child visa, she was 16 years of age and the application was prepared by her father. She had no knowledge of the applications made by her mother and had not made any statements about her mother’s identity. She states that she cannot be held responsible for the information supplied by her mother. The applicant notes that the DNA test confirmed her relationship with her father.

16. In her written evidence to the Tribunal the applicant also states that she was sponsored for the visa by her father and was 16 years of age at the time of visa grant. The applicant states that her visa application was prepared by her father and she had no knowledge of the application made by her mother. The applicant notes that the DNA test proved her relationship with her father.

17. In her submission to the Tribunal the applicant provided a copy of her birth certificate and evidence of her enrolment at St Mary’s Senior High School at Accra between 2010 and 2013.

18. In oral evidence, the applicant told the Tribunal that she did not know what information her father had submitted as she was underage. She also did not know what information her mother gave in her application as she was too young at the time. The applicant explained that Batsa is her mother’s maiden name and Mensah is the name of her maternal grandmother.

19. The applicant stated, in relation to her mother’s Remaining Relative application, that there is a discrepancy in her birth record as it had her mother’s maiden name (Batsa) while her sisters’ birth records had their mother’s grandmother’s name (Mensah). Because they could not change it and there were no documents of name change, she decided to declare her mother and sisters as not her biological relatives. The applicant concedes that she provided false information in that sponsorship and expressed her regret for doing so. The applicant also states that consistent information was given when her father sponsored her for the Child visa and in her citizenship application.

20. It is clear that the applicant’s Child visa application contained incorrect answers. In particular, the applicant gave incorrect answers when stating that she was not known by any other name and that her mother was not known by any other name. These answers may indicate non-compliance with s. 101 of the Act (whether or not the applicant knew that they were incorrect). However, that is not an issue here. In this case, the visa was not cancelled because the applicant completed the application form in a way that incorrect answers were given or provided. The applicant’s visa was cancelled because the delegate was not satisfied as to the applicant’s identity. It is open to the delegate to consider the cancellation of the applicant’s visa on a different ground but that is not a matter for the present Tribunal.

21. The issue here is the applicant’s identity. The Tribunal accepts that the applicant provided with her Child application the DNA test confirming her relationship with her father. The applicant’s paternity is thus not in dispute and goes some way to confirm her identity as claimed. The applicant had consistently claimed, and this claim is supported by documentary evidence, that her mother’s name is Theodora and her surname is either Batsa or Mensah. The applicant explained that discrepancy by stating that one name is her mother’s name at birth and the other is her grandmother’s name. The information in the primary decision indicates that these are the same persons. Thus, it appears that  the identity of the applicant’s mother is also not in dispute, even if different names were provided in different applications. The Tribunal is of the view that  information about the applicant’s birth parents is significant in establishing her identity.

22. The applicant presented several identity documents, including her passport, birth certificate and contemporaneous schooling records. These also confirm the applicant’s identity, as claimed in her Child visa application. The delegate refers to document fraud in Ghana but there is nothing before the present Tribunal to indicate that the applicant’s own identity documents had been determined to be bogus documents. In the absence of that assessment, there is little basis for a positive finding that the applicant’s identity documents are bogus or to be given little or no weight as evidence of the applicant’s identity.

23. The applicant claims that she is unaware why her mother gave different information in the 2001 application and she was too young at the time. The Tribunal considers it possible that it was her mother who provided incorrect information in her 2001 application. The applicant notes that at the time, her mother did not submit any documents in relation to children (so there is no documentary evidence to contradict the applicant’s own claims as to her identity and no evidence to confirm that the information provided by her mother was correct). In these circumstances, the information submitted in the 2001 application does not, in the Tribunal’s view, form a reasonable basis to overcome the probative value of the various identity documents submitted with the Child visa application and subsequently and to raise concerns about the applicant’s identity.

24. Overall, the Tribunal has formed the view that the discrepancies in evidence regarding the applicant’s identity can be reasonably explained and there is insufficient evidence to raise concerns about the applicant’s identity. Her identity is established through documents such as the birth certificate, passport and contemporaneous educational documents, none of which had been found to be bogus. Her claimed identity is supported by the DNA test confirming her relationship with her father and sisters. While the Tribunal acknowledges the discrepancies with the information given in the other applications (which may suggest non-compliance with s. 101 of the Act), there is no reason in the Tribunal’s view to give greater weight to the information in those applications (which does not appear to have been supported by any documentary evidence and may simply have been untruthful) rather than the information supplied by the applicant in her own application and her subsequent dealings with the Department.

25. For these reasons, the Tribunal has formed the view that the applicant’s claimed identity has not been undermined by the different information provided in other visa applications. The Tribunal has formed the view that her identity is adequately established through the identity documents and DNA test that was submitted with her Child visa application. On the basis of these records, the Tribunal is satisfied as to the applicant’s identity.

26. The Tribunal is not satisfied that the ground for cancellation in s 116(1)(aa) exists. It follows that the power to cancel the applicant’s visa does not arise.

    Consideration of discretion

27. Even if the Tribunal was wrong in its finding set out above and if there were grounds for cancelling the applicant’s visa, for the reasons that follow, the Tribunal would exercise the discretion not to cancel the visa.

28. There are no matters specified in the Act or Regulations that must be considered in the exercise of this discretion. The Tribunal has had regard to the circumstances of this case, including matters raised by the applicant, and matters in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’.

    The purpose of the visa holder’s travel and stay in Australia, whether the visa holder has a compelling need to travel to or remain in Australia

29. The applicant states in her response to the NOICC and in her submission to the Tribunal that  the purpose of her travel to Australia was to be united with her father and her two siblings. The Tribunal acknowledges that this purpose can be fulfilled irrespective of the applicant’s identity since the applicant’s biological relationship with her father is not in dispute.

30. The applicant refers to her settlement in Australia. She told the Tribunal that she was undertaking a course, which she suspended due to work, and she is presently working. Her two sisters are in Australia and they have a close relationship and she supports her sisters.

31. The applicant refers to her marriage to her partner and the fact that she has sponsored him for a visa, which would not be granted if her visa is cancelled. The Tribunal accepts that the presence of the applicant’s partner in Australia may constitute a compelling need for the applicant to remain in Australia.

    The extent of compliance with visa conditions

32. There is no evidence of any non-compliance with visa conditions.

    Degree of hardship that may be caused (financial, psychological, emotional or other hardship)

33. The applicant refers in her submission to the delegate to her marriage to Mr Fei in August 2017 and states that she resides with her husband in a genuine marriage. She has sponsored her husband for a Partner visa and they hope to have children. In her submission the applicant states that she had suffered a miscarriage in October 2020.

34. The applicant provided to the Tribunal evidence of her enrolment at Western Sydney University and the Tribunal accepts that if the cancellation of the applicant’s visa results in her departure from Australia, she may be unable to complete the course.

35. The applicant also refers to a close relationship with her siblings and she provided to the Tribunal a statement from Regina Aryee outlining her close relationship with the applicant. The Tribunal accepts that evidence and accepts that hardship may be caused to the applicant’s siblings, as well as to the applicant if her visa is cancelled. The applicant also provided a character reference from Rev Kobrossi and the Tribunal accepts the information in that statement.

36. The applicant states that due to the visa issues, she and her husband have a debt and they have borrowed from friends. She states that her husband is a sole provider and helps her pay the school fees and she also support financially her mother and sister overseas. The applicant states that if her visa is cancelled, her husband’s visa would also be affected and they have no savings, so it would affect them. The Tribunal accepts that financial hardship would be caused by the cancellation.

37. The applicant states that her parents are in the process of divorce and their mother lives in a home that is owned by their father but he wants their mother to leave the home so they will have nowhere to live if they have to return to Ghana. The Tribunal is prepared to accept that evidence and that the applicant may have to find a place to live, if she was to leave Australia. Generally, the Tribunal accepts that considerable hardship would be caused to the applicant and her family if her visa is cancelled.

    Circumstances in which ground of cancellation arose

38. The ground for cancellation may arise because inconsistent information has been provided in various applications about the applicant’s name, date of birth and parentage, raising concerns about her identity. The applicant states in her response to NOICC and in her evidence to the Tribunal that she applied for citizenship in August 2019 and supplied information which she believed to be true and correct.

39. In her oral evidence, the applicant stated that when sponsoring her mother, she did provide her genuine birth certificate but for some reason, that certificate showed her mother’s maiden name while her sisters’ birth records show another name for her mother. The applicant concedes that she gave false information when sponsoring her mother for the Remaining Relative visa because they had no records to prove change of name.

40. The Tribunal accepts that the applicant was a minor when her Child visa application was made and that she is unlikely to have had any involvement in the preparation of that  application, nor in the preparation of the application made by her mother in 2001.

    Past and present behaviour of the visa holder towards the department

41. Nothing adverse is known about the applicant’s past and present behaviour towards the Department.

    Whether there would be consequential cancellations under s 140

42. The applicant’s evidence to the Tribunal is that Regina was the primary applicant for the Child visa and she was a secondary applicant. Regina’s visa has not been cancelled and there were no other persons dependent on the applicant’s visa. The Tribunal finds that there are no persons whose visa would be cancelled as a result of the applicant’s visa being cancelled.

    Whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and liable to detention and removal, or whether detention is a possible consequence of cancellation and if so, for how long, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention

1. If the applicant’s visa is cancelled, and unless she is granted another visa, the applicant would become an unlawful non-citizen and may be detained and removed from Australia. There is nothing to suggest the applicant would be detained indefinitely. The applicant will face restrictions on onshore visa application, due to operation of s. 48, and may be subject to an exclusion period in relation to some future visa applications. The cancellation of the visa would result in the applicant losing some of the entitlements she may have acquired as a permanent resident of Australia and the applicant would also lose her eligibility to seek Australian citizenship if she is not a holder of a permanent visa. The applicant would be unable to sponsor her partner if she is not the holder of a visa.

   Whether any international obligations, including non-refoulement, family unity and best interests of the children as a primary consideration, would be breached as a result of the cancellation

2. There is no evidence, and the applicant does not claim, that Australia’s non-refoulement obligations arise in this case.

3. The applicant claims that she provides care and support to their sister’s two children, aged 5 and 1. The Tribunal accepts that the applicant may have a close relationship with the children but the Tribunal is also mindful that the children are under full care of their parents and there is no evidence that the applicant has accepted parental responsibility towards these children. In the Tribunal’s view, the applicant’s relationship with the children can continue even if the applicant does not live in Australia, even if that relationship is not of the same nature or quality. The Tribunal does not accept on the evidence before it that the best interests of those children would be adversely affected by the cancellation of the applicant’s visa.

   If it’s a permanent visa, whether the former visa holder has strong family, business or other ties in Australia

4. The applicant states that she has been living in Australia since the age of 17 and considers it her home. Her sisters and partner and her friends all live in this country. They also support their sister and if she was to leave, their sister would have no support. The Tribunal accepts that the applicant has strong family, employment and social ties in Australia.

   Other matters

5. The applicant states that as minors, they had no control of what was included in the application and they had no idea of what was in the papers until they heard from Immigration. The representative submits that the documents were completed without the applicant’s control or involvement and there was no intention by the applicant to mislead the Department. Apart from the 2020 sponsorship of the mother, there was never any intention to mislead the Department. The representative submits that the applicant is a hard-working citizen with close family ties and a contributing member of the community and these factors should outweigh the grounds for cancellation.

6. The Tribunal has formed the view that the ground for cancellation does not arise. However, if it was established, the Tribunal would exercise the discretion not to cancel the visa. This is because of the significant hardship that would be caused to the applicant by the cancellation of the visa, given the length of her residence in Australia and the extent of her family, social and employment ties here, as well as the financial hardship that would be caused by the cancellation. The Tribunal would also place weight on the fact that there was no fraud or misconduct on the part of the applicant that contributed to the grant of the Child visa. In the Tribunal’s view, the factors that weigh against the cancellation outweigh others.

7. Considering the circumstances as a whole, the Tribunal concludes that the visa should not be cancelled

   decision

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

   Kira Raif

   Senior Member