Ater (Migration)

[2019] AATA 6770

Ater (Migration) [2019] AATA 6770 (4 October 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Yom Mading Ater

CASE NUMBER:  1800331

DIBP REFERENCE(S):  BCC2017/915747 OSF2006/087168

MEMBER:Kira Raif

DATE:4 October 2019

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 04 October 2019 at 7:32am

CATCHWORDS
MIGRATION – cancellation – Return (Residence) (Class BB) visa – Subclass 155 (Five Year Resident Return) – ground for cancellation – incorrect information in previous visa application – applicant’s identity – other names known by – relationship history – family composition – dates of birth – consideration of discretion – relevance of the information – responsibility of applicant when completing paperwork – degree of hardship – extensive family links to Australia – best interests of children – non-refoulement obligations – circumstances in South Sudan – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 100, 101, 107A, 109
Migration Regulations 1994 (Cth), 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 Immigration 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 South Sudan born in January 1972. She was granted the Class XB Global Special Humanitarian visa made in April 2009. In October 2017 the applicant was issued with the Notice of Intention to Consider Cancellation (NOICC) as the delegate formed the view that the applicant did not comply with s.101 of the Act. The applicant provided her response on 24 November 2017 and her visa was cancelled on 28 December 2017. The applicant seeks review of the delegate’s decision.

   Relevant law

3. 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.

4. 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.

5. Section 107A provides that possible non-compliance in connection with a previous visa may be grounds for cancellation of the current visa.

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

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

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

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

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

9. The applicant provided to the Tribunal a copy of the primary decision record which contains the following information:

   a.On 6 December 2006 the applicant made the application for the visa and gave her name, date of birth and other personal details. The application included the applicant’s spouse, three children, Kolo Daniel Dent Nyata (DOB 20/8/97), Nyanagar Daniel Deng Nyata (DOB 1/10/99) and Monydit Daniel Deng Nyata (20/11/04) and two of the applicant’s brothers.

   b.Question 8 asked whether any person included in the application was previously married or in a de facto / common law / customary marriage. The applicant stated ‘no’.

   c.Question 10 asked whether any of the children included in the application were not the biological children of the main applicant or spouse. The answer provided was ‘no’.

   d.On 11 September 2008 the applicant was interviewed by UNHCR and confirmed that the information in the application was correct. The applicant also advised there was another child, Patrick Daniel Deng Nyata, born on 16 September 2007, who was added as a secondary applicant in the application.

   e.In response to Question 13 of the form, the applicant provided details of her parents (deceased) and five siblings, stating one was in Australia, the whereabouts of two were unknown and two were included in the application. The applicant did not provide details of any non-dependent child but drew a line through the answer section.

   f.The applicant provided a statement outlining the reasons she left the country of origin.

   g.The applicant completed Form 80. In that form,

   i.The applicant provided her personal details but left the answer blank in response to Question 2, whether she had been known by any other name.

   ii.In response to Question 16, the applicant stated that her mother Nyarath Kanuach was deceased.

   h.The applicant and members of her family unit were granted visas on 8 April 2009.

   i.On 22 January 2010 the applicant submitted to the Department a request to change the dates of birth of the three children included in her application. She provided different dates of birth for Kolo Daniel, Nyanagar Daniel and Monydit Daniel. She provided a declaration stating that the children’s dates of birth were recorded incorrectly in the refugee camp.

   j.On 14 June 2011 Ms Emelia Timotia Ataya lodged an application for an Offshore Humanitarian visa. The applicant stated that Ms Ataya was her natural parent (mother) and provided a copy of the change of name certificate issued in November 2010 confirming her legal change of name from Yom Mading Ater to Lona Seluwa Morris Tombek. Ms Ataya stated in the application that she had a daughter Mary Tiya Morris, born in January 1964.

   k.On 2 July 2012 the three children applied for the Class AH Child visas, sponsored by the applicant as their biological mother. They gave their names as Peter Taban Morris, Steven Lado Morris and Viola Kiden Morris. In these applications, they identified Kolo Daniel Dent Nyata as their cousin.

   l.The applicant provided a statement in support of the Child visa application in which she stated that her parents had five daughters and the whereabouts of three of them were unknown and one had passed away. She stated her father was Morris Tombek who passed away before the war. She stated that her mother Emelia Timotia Ataya was alive and separated from her father in 1988. The applicant stated that she had seven children, with the three eldest in the care of her mother and the four youngest living with her in Australia. Her first husband was involved in the war. She met her second husband in the refugee camp and they had three children together and they also considered her sister’s daughter as their own. The applicant states that the application was completed by her husband and the person who helped with the application did not tell her husband that he needed to include all children. Around the time she left the camp for Australia in September 2009, she found out that her mother and children were in the refugee camp. The applicant included the DNA test results confirming her relationship with the three children.

   m.The children entered Australia in September 2014 and did not declare ‘Morris’ as their surname but stated their surname as Jarden. Their Sudanese passports also showed the surnames Jarden.

   n.In November 2014 the applicant lodged another request to amend personal records, requesting that the names and dates of birth of two of the children included in her own visa application be changed, stating these were incorrectly recorded on their travel documents. She requested that the name of Nyanagar Daniel Deng Nyata be changed to Hellen Nyanagar Daniel Nyata (DOB 12/5/01) and the name of Monydit Daniel Deng Nyata be changed to John Sulieman Daniel Nyata (DOB 21/9/03). The applicant provided the children’s birth certificates issued in Sudan in July 2014 showing the children’s dates of birth and stating that their mother was Lona Salawa Tombe Jada.

10. The delegate found that the applicant did not comply with s.101(b) of the Act when making the application for the Global Special Humanitarian visa in the following ways:

    a.In response to Question 2 of the application form for the Subclass 202 visa, the applicant stated her name as Yom Mading Ater. The delegate found that this answer was incorrect as there was no evidence to support that this was her name, she gave a different name for her father in the 2012 application made by the children, after arriving in Australia, the applicant legally changed her name to Lona Seluwa Morris Tombek and in November 2014 changed her children’s birth records and provided their birth certificates which show the mother’s name as Lona Salawa Tombe Jada. The children specified their surnames as Jada when entering Australia.

    b.In response to Question 2 of the application form for the Subclass 202 visa, the applicant stated that she married in Juba, Sudan in 1999. However, in her statement provided in support of the Child visa application, she claimed to have fled Sudan in 1997 and to have lived in Uganda where she met her second husband.

    c.In response to Question 3 of the application form for the Subclass 202 visa, the applicant stated she had three children, Kolo, Nyanagar and Monydit. In the Child visa application it was claimed that Kolo was the children’s cousin and not a sibling, so he is not a biological child of the applicant. In the statement provided for the Child visa application, the applicant claimed she had three children and listed her sister’s child as her own. That would indicate that Nyanagar is the niece and not the child of the applicant and no evidence of adoption has been provided.

    d.After providing incorrect dates of birth for her children, Kolo, Nyanagar and Monydit. the applicant subsequently submitted birth certificates for these children issued in July 2013 indicating different dates of birth than those recorded on the application form.

    e.After providing incorrect names for her children in the application form, the applicant subsequently requested the Department to change the names of Nyanagar and Monydit and there is no evidence that these children’s names had ever been those recorded on the application form.

    f.In response to Question 8 the applicant stated that she was never previously married or in a de facto / common law or customary marriage. In her written statement provided in support of the Child visa application, the applicant stated that she was previously married to Santo Okong and met her second husband in a refugee camp.

    g.In response to Question 10 of the application form the applicant stated ‘no’ in response to the question about whether any of the children were not her biological children. The applicant specified she had four children. However, in the statement provided with the Child visa application in 2012, the applicant stated that she and her husband had three children and one of the children was her sister’s daughter. The children identified Kolo as being their cousin in their own applications.

    h.In response to Question 13 of the application form the applicant stated her mother’s name as Nyarath Kanach and stated her mother was deceased. In June 2011 Ms Emelia Timotia Ataya made an application for a visa proposed by the applicant and stated she was the applicant’s biological mother. The applicant also provided a statement with the Child visa application in which she claimed that around September 2009 when she left the camp for Australia, she found out that her mother and other children were alive. The answer was incorrect as the applicant gave a different name for her mother and claimed that her mother was deceased.

    i.In response to Question 13 of the application form the applicant stated in her application that her father’s name was Mading Ater. In the statement provided in support of the Child visa application, the applicant claimed her father was Morris Tombek and that would indicate that his name was not Mading Ater.

    j.In response to Question 13 of the application form the applicant stated that she had five brothers and no sisters. In the application made by the applicant’s mother in June 2011, it was stated that there was another daughter, Mary Tiya Morris born in January 1964. Further, in the statement made in support of the Child visa application made in July 2012, the applicant stated her parents had five daughters, claiming one had passed away and the whereabouts of the other three was unknown.

    k.In response to Question 26 of the application form the applicant provided details as to why she left her country. She claimed to have fled Sudan in 2005 following racial, religious and political persecution. The applicant referred to the clashes in the local area, her detention and rape during detention. She claims that there was an order to execute her partner but he escaped from prison, collected her and the children and they fled to Uganda. The delegate found this answer to be incorrect because in the statement provided in support of the Child visa application lodged in July 2012, the applicant stated that her husband was taken away to fight in 1997. In March 1997 the fighting broke out in her village and she fled with her mother and children and came to the Rhino Refugee camp in Uganda where she met her second husband after two years and they had three children born in 2001, 2003 and 2007.

    l.In response to Question 36 of the application form the applicant stated that she spoke Dinka and some Arabic, while her children declared that they spoke Kakwa.

    m.In response to Question 16 of Form 80, the applicant stated that her mother’s name is Nyarath Kanach and that she was deceased. In June 2011 Ms Emelia Timotia Ataya lodged the application for a visa and claimed to be the mother of the applicant. She stated she was not known by any other name. In her statement submitted in support of the Child visa application, the applicant also confirmed that around September 2009 she learned that her mother was alive.

    n.In response to Question 18 of Form 80, the applicant stated that between 1982 and August 2005 she lived in Juba, Sudan. The delegate found this to be incorrect because in the statement provided in support of the Child visa application, the applicant stated she left Sudan in 1997 and travelled to a refugee camp in Uganda where she met her second husband and had three children.

11. The delegate found that the applicant did not comply with s.101(a) of the Act when making the application for the Global Special Humanitarian visa in the following ways:

    a.In response to Question 13 of the application form, the applicant did not specify any non-dependent children who were not included in the application as dependents. The Humanitarian visa application included four children, including her sister’s child. In her statement provided in support of the Child visa application made in July 2012, the applicant claimed to have seven children and she provided the DNA results confirming her maternity of Peter, Steven and Viola.

    b.In response to Question 2 of Form 80, the applicant did not provide a response to a question whether she has been known by any other name. The applicant stated in that application that her name as Yom Mading Ater. She did not provide any evidence that this was her correct name. In support of the Child visa application the applicant gave different names for her parents and later changed her name to Lona Seluwa Morris Tombek. In November 2014 she submitted her children’s birth records showing her name as Lona Salawa Tombe Jada.

12. In her written response to the NOICC of 24 November 2017 the applicant states that a ‘number of errors’ were made in her initial application for the Global Special Humanitarian visa. The applicant states that due to her difficulty understanding English, she required assistance from her spouse and aid workers in the refugee camp and much of the information in her application was provided to the refugee camp by her husband. Her husband received a low level of education and had difficulties with reading and providing information for her application but he took on the responsibility because of cultural expectations and attempted to answer the questions to the best of his ability. The applicant states that as soon as she became aware of the various errors made in the application, she endeavoured to notify the Department and to make corrections.

13. The applicant concedes that her name at birth was Lona Seluwa Morris Tombek, her father was Morris Tombek and her mother Emelia Timotia Ataya. She has four  sisters and was not aware that her application listed five brothers but her husband may have referred to clan members. The applicant states that she married her first husband in 1993 in Sudan and they had three children. The applicant explained why the children used the surname Jarden when entering Australia rather than Morris, stating that their father was killed when they were young and she registered the children under their grandfather’s name.

14. The applicant confirmed that she speaks Kakwa, a language that was not specified on her application form.

15. The applicant stated that her first husband was taken away in 1997 and she had not seen him since. Soon after she fled with her mother, sister and children and she took care of her sister’s baby boy, Kolo. The applicant states that she did not formally adopt Kolo but was his sole carer in the refugee camp and considered him to be her child. She met her second husband in 1999 and upon marriage, she was given a Dinka name and her parents were also given Dinka names. She believes her husband provided her and her parents’ Dinka names on the forms. The applicant confirms that her parents were listed as being deceased on the application forms because at the time her application was completed, she believed her mother was killed and it was only later that she became aware that her mother and eldest children were alive.

16. The applicant confirms that she had three children with her second husband and that some of their names and dates of birth were incorrectly recorded on the application forms. She states that her husband provided his nicknames for the children rather than their actual names. The applicant states that she did not realise the incorrect information was included in her application and she always attempted to be honest with the Department. Due to the language barrier, she relied on others to make the application.

1. The applicant states that she was honest about the circumstances of fleeing Sudan, which are set out in her statement in support of the Child visa application made in 2012. The applicant states that there must have been a mistake in the refugee camp and she was confused with another person. The applicant confirms that she fled Sudan in 1997 and was living in a refugee camp for about 12 years. The applicant states that she never wilfully supplied the Department with incorrect information but due to her limited understanding of the questions and her vulnerability while living in a refugee camp, she was reliant on others.

2. The applicant repeated these claims in her written submission to the Tribunal on 17 September 2019. In that submission, the applicant concedes that a number of errors were made in her initial application. The applicant states that due to her difficulty understanding English, she required assistance from her then spouse and aid workers and much of the information in her application was provided by her husband, who took on the responsibility of dealing with the paperwork. As soon as she realised the information was incorrect, she sought to change it and she became distressed once she became aware of the situation. The applicant provided her birth name as Lona Seluwa Morris Tombek, her date of birth and the names of her parents and siblings. She confirmed she had four sisters and was not aware that five brothers were listed on the application. The applicant referred to her two marriages and the children from those marriages. She explained the differences in the recording of the children’s names and dates of births. The applicant acknowledged that both her parents were recorded as being deceased in the application as she believed her mother had been killed. With respect to the children’s names, the applicant states that her husband had provided their nicknames rather than actual names. The applicant states that she was unaware that incorrect information was provided with the application and she always tried to be honest and open with the Department. She states that she was reliant on others to make the application.

3. Having regard to the applicant’s evidence, the Tribunal finds that there were several incorrect answers given in the application form submitted in relation to the Global Humanitarian visa. While the applicant refers to these as mistakes made by others, and her reliance on others, the Tribunal notes that under s.100 of the Act, an answer is incorrect even though the person who gave or provided the answer, or caused an answer to be given or provided, did not know it was incorrect.

4. The Tribunal finds that the applicant completed her application form in a way that incorrect answers were given or provided, as set out in paragraphs 11 and 12 of this decision. The Tribunal finds that the applicant did not comply with s.101 of the Act in the way described in the s.107 notice.

   Should the visa be cancelled?

5. 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).

6. 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

7. The correct information is that the applicant had been known by another name and had another marriage. She had three biological children who were not mentioned in the application form and one of the children who was claimed to be her biological child was not her biological child. The correct information is that the names and dates of birth for the applicant’s children were different to those stated on the forms. The correct information is that the names of the applicant’s parents were different and that her mother was alive. The correct information about the reasons the applicant left her home country is different to the claims provided in her application.

   The content of the genuine document (if any)

8. This is not relevant in this 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

9. The issue of identity is relevant to any visa application. It is relevant in determining whether the applicant meets the character criteria in s.501 and public interest criterion 4001. Further, cl.202.222 relevantly stated at the time the application was made that there must be compelling reasons for giving special consideration to granting to the applicant a permanent visa, having regard to the degree of discrimination to which the applicant is subject in the applicant’s home country. Therefore, the applicant’s claims concerning the harm she experienced in Sudan were central to that assessment. The applicant concedes that the evidence in her application concerning the circumstances in which she left Sudan was incorrect.

10. The Tribunal has formed the view that the decision to grant the visa was based, in part, on incorrect information or bogus documents.

    The circumstances in which the non-compliance occurred

11. The circumstances in which the non-compliance occurred are set out in the applicant’s response to the NOICC and her evidence to the Tribunal. Essentially, the applicant states that due to her lack of English and cultural expectations, she relied on her husband and others to complete the application forms. The applicant states that the breach was not intentional and that as soon as she became aware of the errors, she informed the Department, complying with s.105 of the Act.

12. The Tribunal is of the view that whether the applicant completed the forms herself or with the help of another person, she had the responsibility of ensuring that the information in the forms was correct. It was imperative for the applicant to ensure she was aware of, and familiar with, the information that was being supplied on her behalf and that such information was correct and accurate. Such an obligation cannot be dismissed by stating that another person completed the paperwork.

    The present circumstances of the visa holder

13. The applicant states in response to the NOICC and her evidence to the Tribunal that all of her children have travelled to Australia and live in Perth, having been reunited after 17 years living apart. She lives with her husband and children and is the children’s primary carer and is responsible for the daily domestic chores. All of the children are studying and she is the primary caregiver for them, being responsible for the housework

14. The applicant states that in addition to her care of the children, she is involved with Malaga Christian Centre, attends weekly service and participates in the centre events. She is keen to continue being involved with the Malaga Christian community.

15. The applicant states that she has no prior criminal record in Australia and shows respect for the law and willingness to comply.

16. The applicant states that she has made Australia her home since 2009 and has been reunited with her children.

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

17. Nothing adverse is known about the applicant’s behaviour concerning her obligations under the Act. The applicant’s evidence to the Tribunal is that as soon as she became aware of the incorrect answers, she engaged with the Department and provided correct information.

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

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

    The time that has elapsed since the non-compliance

19. The application for the visa was made in December 2006. Close to 13 years have passed since the non-compliance.

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

20. There are no known breaches of the law. The applicant states in her submission to the Tribunal that that she has always complied with the Australian laws.

    Any contribution made by the holder to the community

21. The applicant refers to her involvement with the Malaga Christian community.

22. 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 are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and subject to detention, or whether indefinite detention is a possible consequence of cancellation, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention

23. If the applicant’s visa is cancelled and unless she is granted another visa, the applicant will be an unlawful non-citizen and may be detained. The applicant states that she cannot return to South Sudan because it is unsafe there. The Tribunal is mindful that if it is determined that Australia owes protection obligations to the applicant, the applicant may not be returned to Sudan and if she cannot be returned to any other country and is not granted any other visa, the applicant may be subject to a lengthy detention. There may be restrictions on the applicant’s future travel and future visa applications as a consequence of the cancellation and the applicant may be subject to an exclusion period in the future. There are no provisions in the Act which prevent the applicant from making a valid visa application without the Minister’s intervention although there would be limited options available to the applicant in Australia. If the visa is cancelled, the applicant may lose some entitlements she may have acquired as a permanent resident of Australia.

    Whether there would be consequential cancellations under s.140

24. The applicant states in her response to the NOICC that if her visa is cancelled, the visas held by her children may also be cancelled. The Tribunal is mindful that the children are not included in the application for review and there is no information before the Tribunal concerning any cancellation decisions relating to the children.

    Whether any international obligations would be breached as a result of the cancellation, such as non-refoulement obligations, family unity principles or the obligation to consider the best interests of the child   

25. In her response to the NOICC and in her written submission to the Tribunal the applicant refers to the various Conventions to which the applicant is a signatory. The applicant states that she is from South Sudan and fled to Uganda in 1997 as a result of her village being destroyed during the civil war. While the war officially ended in 2005, there was another armed conflict in December 2013 resulting in human rights atrocities and famine. The UN report indicates that thousands of civilians have been murdered. The applicant states that as a woman of Bari origin, she is frightened of the prospect of returning to South Sudan, given the mass ethnic cleansing that has been reported by human rights organisations. The applicant also refers to the abuses prevalent in South Sudan, including sexual violence, genital mutilation and recruitment of child soldiers. She is worried about what may happen to her but also deeply concerned about her children.  The applicant provided further evidence to the Tribunal in her submission of 1 October 2019, referring to the situation in Sudan and the harm she could experience if she were returned to Sudan. The applicant states that she belonged to a minority and experienced ethnic violence and there is a significant risk that she would be displaced and would not find refuge within the country. The Tribunal acknowledges that evidence.

26. The applicant also refers to the Convention on the Rights of the Child. The applicant states that she lives with all seven of her children as their primary carer and two of the children, born in 2003 and 2007 respectively, are minors. The applicant states in her submission of

    
    

    1 October that the children are presently holding Bridging visas granted on the basis of an application for a substantive visa and should the applicant be required to leave the country, these children will be separated from their mother, which is not in their best interests. The applicant states that the children may be placed at risk if returned to Sudan.

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

27. The applicant refers to the length of time she has lived in Australia, having strong family and community ties and the hardship she would experience if she were to leave the country. The Tribunal accepts that evidence.

28. The Tribunal has considered the totality of the applicant’s circumstances. The Tribunal has found that the applicant did not comply with s.101 of the Act and that there are grounds for cancelling her visa. While the Tribunal acknowledges the applicant’s evidence that the forms were filled out by another person, the Tribunal has formed the view that the applicant had the responsibility of ensuring the information in the forms was correct and that all questions were answered. Delegating the completion of the forms to another person did not absolve the applicant of these responsibilities.

29. The Tribunal accepts that considerable hardship would be caused to the applicant if the visa is cancelled and if the applicant was required to leave the country. This is because the applicant has extensive family links to Australia, including seven of her children, and it is not apparent that the other family members would also be required to leave the country if the applicant was to leave the country. The applicant’s evidence indicates that her children are holding other visas and may be eligible to remain in Australia. That is, the cancellation of the visa may lead to the separation of the applicant and her family, including her seven children. The Tribunal accepts that the applicant is the primary caregiver to these children, two of whom are minors. The Tribunal has formed the view that it is in the best interests of the applicant’s minor children to remain with their mother.

30. The Tribunal also accepts that South Sudan may not be safe for the applicant in her circumstances and that there is at least some risk to the applicant if she were returned to her home country.

31. The Tribunal accepts that considerable time has passed since the non-compliance, that the applicant has been living in Australia for many years and is settled in Australia and has contributed to the community through various activities. Having regard to the applicant’s present circumstances, the degree of hardship that may be caused by the cancellation and the best interests of the applicant’s children, the Tribunal has formed the view that these considerations outweigh others that may favour the cancellation.

32. 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

33. 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