Aryee (Migration)

[2022] AATA 3141

Aryee (Migration) [2022] AATA 3141 (3 August 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Hannah Aryee

REPRESENTATIVE:  Mr Brenton Halligan (MARN: 9906163)

CASE NUMBER:  2206189

HOME AFFAIRS REFERENCE(S):          BCC2021/690800

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 10:10am

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 20 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 have been born in November 2000. 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.

   Primary decision

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 visa on 28 November 2012, as a secondary applicant being 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 Hannah Aryee, her date of birth, place of birth (Accra, Ghana) and stated that she was not known by any other name.

7. The applicant included in the application details of her parents (father Emmanuel Ankrah Aryee and mother Theodora Mensah) and her two siblings Regina and Elizabeth.

8. In support of the application the applicant provided

   a.a copy of her birth certificate, which listed the same parents and which was issued by Korle Bu Hospital in Accra. This was certified as a true copy in September 2012,

   b.birth certificates for Elizabeth and Regina, also listing the same parents, and certified in January 2011,

   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.

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

10. 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.

11. The primary decision record refers to the information available to the Department, indicating that the applicant, under the name of Hannah 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 and the applicant was her step-sister. This appears to contradict the information in the birth certificate submitted by the applicant, which shows Theodora as her biological 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 Hannah 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 using a different date of birth (August 1998 in an earlier application and November 2000 in the Child application). 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 an earlier 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 the applicant’s identity documents are unreliable. The delegate was not satisfied as to the applicant’s identity.

    Does the ground for cancellation exist?

15. In her response to the NOICC the applicant claims, essentially, that she had provided DNA test to confirm that Emmanuel Ankrah is her father and that is proof of her identity. The applicant states that she was unaware of other applications lodged by her mother and as a minor child, cannot be held responsible for the information in these applications. The applicant notes that she was only one year old when her mother made the application in 2001 and she was not aware that her mother may have used a different name.

16. In her submission to the Tribunal dated 20 July 2022 the applicant states that at the time of her visa grant she was 12 years old and her visa application was prepared by her father. She had no knowledge of the information supplied by her mother and a DNA test confirmed her relationship with her father and sponsor. The applicant provided to the Tribunal a statement from Capital Hill International School in Accra, stating that she was enrolled in that school between September 2008 and July 2013 and, according to their records, was born to Mr Emmanuel Aryee and Theodora Mensah.

17. In oral evidence to the Tribunal the applicant stated that she did not know what information her father had submitted or her mother gave in the application as she was underage and too young. When she applied for the citizenship, she had asked her mother if there was anything she needed to know and her mother said there was nothing. She did not know about any of the discrepancies before receiving communication from Immigration. She said her mother gave false information in her own visa application and did not think it would affect the children.

18. The applicant explained that Batsa was her mother’s maiden name and Mensah was the name of her maternal grandmother. The applicant states that as proof of her identity, she had provided her educational documents which she had used throughout her study in Ghana and her identity had not changed. The applicant states that in order to get the passports, she attended the passport office and had to present her birth certificate and take a photograph. She was a minor at the time and did not know what else was required.

19. 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.

20. 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 parents is significant in establishing her identity.

21. 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.

22. It is also significant, in the Tribunal’s view, that there is little to link the applicant with the potentially false information that was submitted in the other applications made by her mother. Given the applicant’s age, it is highly unlikely that she has had any involvement with, or input in her mother’s application made in 2001 or even her own Child visa application made in 2012 and there is nothing to suggest that the applicant was involved in her mother’s Remaining Relative application made in 2020. The applicant was a minor when the mother’s first application and her own Child visa applications were made. In these circumstances it cannot be said that the applicant had intentionally provided false or misleading information and that she is not a person of credibility.

23. 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. With respect to the 2020 application for the Remaining Relative visa, the applicant’s sister (the sponsor in that application) explained to the Tribunal that her birth certificate had her mother’s maiden name and was different to the birth certificates of her two siblings. Her mother had no other documents and so she decided to claim that her sisters were not biological sisters to explain the discrepancy in the birth certificate. The applicant expressed her willingness to undertake a DNA test to confirm her relationship with her sisters. Again, the Tribunal acknowledges the possibility that false information was given in that application.

25. 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.

26. 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.

27. The Tribunal has formed the view that the ground for cancellation in s 116(1)(aa) does not exist. It follows that the power to cancel the applicant’s visa does not arise.

    Consideration of discretion

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

29. 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

30. The applicant states in her evidence to the Tribunal that she travelled to Australia to be reunited with her father and two siblings. The applicant was granted the Child visa because of her relationship with the sponsoring parent. The DNA test (to which the delegate refers) established that relationship with the sponsor in Australia and the applicant is thus fulfilling the purpose of her travel and stay in Australia.

31. The applicant refers to her study in Australia and her settlement in this country. The Tribunal accepts that evidence but is not satisfied these matters constitute a compelling need for the applicant to remain in Australia.

    The extent of compliance with visa conditions

32. There is no evidence to indicate that the applicant has not complied with visa conditions. 

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

33. In her submission to the delegate the applicant refers to the length of her residence in Australia. She states that she had completed her schooling and is studying towards a Bachelor of Nursing at the Western Sydney University and intends to do other study. The applicant told the Tribunal that she took a break from study to work and earn money and that she intends to return to study and complete the course. She would not be able to do so if her visa is cancelled. The Tribunal accepts that evidence.

34. The applicant refers to a long term relationship with her boyfriend and states that they plan to marry once her study is completed. She told the Tribunal that she has been in a relationship for over four years and they intend to settle down and start a family. The Tribunal accepts that evidence.

35. The applicant states that the cancellation of her visa would have negative impact on her finances and mental health.

36. The applicant provided a statement from her sister Regina, who refers to a close and supportive relationship between sisters and who states that they have been supporting each other emotionally and financially for many years, provide financial support to their mother and Regina also refers to the close relationship that her children have formed with the applicant. In her submission to the Tribunal the applicant also refers to a close relationship with her sisters Regina and Elizabeth and she provided to the Tribunal a statement from Regina. The Tribunal accepts that evidence.

37. The applicant told the Tribunal that she has some debts and she also supports her family overseas. The Tribunal accepts that if the visa is cancelled, it may cause financial hardship to the applicant and her family overseas. The applicant also states that if she is required to leave Australia, it may affect her relationship with her partner and the Tribunal is prepared to accept that evidence.

38. The applicant states that Australia is the only country she has known and she has been living here since she was a young child. The Tribunal accepts that evidence.

39. The applicant states that she may have nowhere to live in her home country because her mother is expected to leave the family home which is owned by her father. The Tribunal generally accepts that considerable hardship would be caused to the applicant and her family if the visa is cancelled.

    Circumstances in which ground of cancellation arose

40. The ground for cancellation may arise because concerns have been raised about the applicant’s identity, given the inconsistent information about her identity provided in various visa applications, raising concerns about her identity.  As noted above, the Tribunal has formed the view that the applicant has not had any involvement in the preparation of these applications, nor any say in what information was put in these applications.

    Past and present behaviour of the visa holder towards the department

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

    Whether there would be consequential cancellations under s 140

1. The applicant’s evidence to the Tribunal is that Regina was the primary applicant for the Child visa and the applicant 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

2. 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.

   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

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

4. In her submissions to the Tribunal the applicant refers to a close relationship she has with her sister’s children and states that helps her sister and looks after the children. There is evidence before the Tribunal from Regina confirming that evidence and the Tribunal accepts it. However, the Tribunal is also mindful that the children have the support of their parents and the Tribunal is not satisfied the applicant has any parental responsibilities in relation to the 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 consider 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

5. The applicant states that she was young when she came to Australia and all her friends are in this country. Th applicant refers to her employment and study in Australia and her desire to cocomplete her studies. The Tribunal accepts that the applicant has strong family, social and employment ties in Australia.

   Other matters

6. The applicant states that as a minor, she had no control of what was included in the application and she had no idea of what was in the papers until she heard from Immigration. The applicant’s representative submits that the documents were completed without the applicant’s control or involvement and there was no intention by her 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.

7. The Tribunal has considered the totality of the applicant’s circumstances. As noted above, the Tribunal has formed the view that the ground for cancellation does not arise but even if it did, in the circumstances of this case the Tribunal would place greater weight on the hardship that would be caused to the applicant and her family by the cancellation of the visa and, significantly, the circumstances in which the ground for cancellation arose. In this case, there has been no suggestion that the applicant has provided any false or misleading information or bogus documents, nor was she involved in any wrong-doing or fraud that  resulted in the grant of the Child visa. The applicant was a minor when her Child visa and her mother’s first application were made and there is nothing to suggest she has had any involvement in her mother’s Remaining Relative application. Given the length of the applicant’s stay in Australia and the degree of her settlement here, the hardship that the cancellation would cause and the applicant’s conduct, the Tribunal is of the view that the factors that weigh against the cancellation outweigh those that are in favour of the cancellation. 

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

   decision

9. 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