Ater (Migration)

[2019] AATA 4337

Ater (Migration) [2019] AATA 4337 (25 September 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Manyang Mading Ater

CASE NUMBER:  1800060

DIBP REFERENCE(S):  BCC2017/1899041 F2006/087168

MEMBER:Kira Raif

DATE:25 September 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 202 (Global Special Humanitarian) visa.

Statement made on 25 September 2019 at 2:18pm

CATCHWORDS

MIGRATION – cancellation – Refugee and Humanitarian (Class XB) – Subclass 202 (Global Special Humanitarian) – incorrect information provided – not biological relative – informally adopted – mental health – genuine family unit – contribution to society – significant hardship – decision under review set aside

LEGISLATION

Migration Act 1958 (Cth), ss 107, 109

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 202 (Global Special Humanitarian) visa under s.109(1) of the Migration Act 1958 (the Act).

2. The applicant is a national of Sudan, born in January 1989. He was granted the Class XB Global Special Humanitarian visa on 8 April 2009 as a secondary applicant of Ms Yom Mading Ater. The applicant claimed to the biological brother of Ms Ater sharing the same mother and father. In October 2017 the applicant was issued with the Notice of Intention to Consider Cancellation (‘the notice, NOICC’) as the delegate formed the view that the applicant did not comply with s. 101 of the Act. The applicant provided his response in November 2017 and his visa was cancelled on 28 December 2017. The applicant seeks review of the delegate’s decision.

3. The applicant appeared before the Tribunal on 25 September 2019 to give evidence and present arguments. The applicant had nominated a number of witnesses but the Tribunal determined it was not necessary to take oral evidence from them. The applicant was represented in relation to the review by his registered migration agent. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

   Relevant law

4. Section 109(1) of the Act allows the Minister to cancel a visa if the visa holder has failed to comply with ss.101, 102, 103, 104, 105 or 107(2) of the Act. Broadly speaking, these sections require non-citizens to provide correct information in their visa applications and passenger cards, not to provide bogus documents and to notify the Department of any incorrect information of which they become aware and of any relevant changes in circumstances.

5. The exercise of the cancellation power under s.109 of the Act is conditional on the Minister issuing a valid notice to the visa holder under s.107 of the Act, providing particulars of the alleged non-compliance. Where a notice is issued that does not comply with the requirements in s.107, the power to cancel the visa does not arise.

   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.The applicant made the application for the Global Special Humanitarian visa as the brother of the primary visa applicant, Ms Yom Mading Ater.

   b.In response to Question 1 of Form 80 the applicant stated his name as Manyang Mading Ater. He did not provide a response to Question 2 “other names you have been known by”.

   c.In response to Questions 15 and 16, the applicant stated the name of his father as Mading Ater and stated he was deceased. He gave the name of his mother as Kanach Nyapath and stated she was deceased. The applicant did not provide other names his parents had been known by or used before.

   d.On 14 June 2011 Ms Emelia Timotia Ataya made an application for a Class XB visa, sponsored by Ms Ater. She stated that she was never known by any other name, that her husband’s name was Morris Tombek and he has not been known by any other name. Ms Ataya stated that Ms Ater’s name was Lona Seluwa Morris Tombek and that she had five children.

   e.Ms Ater provided to the Department evidence that she had three biological children who gave different surnames on their incoming passenger cards and birth certificates stating their mother’s name as Lona Salawa Tombe Jada.

   f.A search of Facebook using the applicant’s mobile links to an account in the name of Awan Nemar. The photographs appear to be those of the applicant.

   g.The delegate found that contrary to s. 101(b) of the Act, the applicant provided incorrect answers to

   i.Question 1 of Form 80 by stating that his name was Manyang Mading Ater. The delegate noted that there was no evidence that this was the applicant’s name or that his father’s name was Mading Ater. The delegate noted that in her application, Ms Emelia Timotia Ataya stated she had five children and the applicant was not listed among them. Ms Ataya also stated that the name of the father’s children was Morris Tombek, which is not consistent with the name given to the applicant.

   ii.Question 15 of Form 80 which asked about the identity of the applicant’s father.

   iii.Question 16 of Form 80 which asked about the identity of the applicant’s mother.

   iv.Question 17 of Form 80 which asked about the applicant’s brothers and sisters. In response to that question, the applicant stated he had a brother Akim Mading and a sister Yom Mading Ater. The delegate found this to be incorrect as Ms Ataya (Ms Ater’s mother) claimed to have 5 children and did not include the applicant. If that evidence is correct, it may indicate that the applicant provided an incorrect answer by stating that his sister Yom Mading Ater was not known by any other name and also by failing to declare four sisters. However, if the applicant is not the biological brother of Yom Mading Ater, he provided an incorrect answer by claiming to be her brother.

   h.The delegate also found the applicant failed to comply with s. 101(a) of the Act by

   i.Not providing an answer to Question 2 whether he has been known by another name

   ii.Not providing an answer to Question 15 whether his father was known by any other name

   iii.Not providing an answer to Question 16 whether his mother was known by any other name

   iv.Not providing an answer to Question 17 whether his sister was known by any other name

10. In his response to the NOICC of 16 November 2017 the applicant stated that he was included in the application made by Yom Mading Ater and was 17 years old at the time the application was made. The applicant states that the information in the NOICC came as a surprise to him as he always believed Yom to be his biological sister and he grew up with Yom as a child in South Sudan. The applicant states that his parents were killed when he was about 5 and he lived with Mading and Yom with Mr Ater’s grandparents. After receiving the NOICC he contacted Yom and learned that he was not the biological brother but was informally adopted into the family by his grandparents. The applicant confirmed that the information in his application was incorrect. He states that he was a minor at the time and had no involvement in the preparation or lodgement of the application. He had no ability to read or write English and at the time the form was completed, he provided what he believed to be correct information. The applicant states that when the form was completed, he was not known by any other name but has since changed his name in March 2010 and his Facebook profile in 2017.

11. The applicant submits that it is open to find that he has not breached s. 101. However, the Tribunal is mindful that the applicant claimed to be the brother of the primary applicant sharing the same parents and he now concedes that he is not the biological brother of the primary applicant. The applicant provided no evidence of being a brother through adoption and in any case, as the claim was made that they share the same parents, the applicant claimed to be the biological brother and not the adopted brother of the primary applicant. In the Tribunal’s view, the answer about the applicant’s relationship with the primary visa applicant was incorrect and so was the information concerning the applicant’s parents.

12. In his written submission to the Tribunal of 18 September 2019 the applicant provided a declaration outlining his background. He describes his relationship with the primary visa applicant and her family, stating that he believed Yom to be his sister. The applicant described his relationship with the visa applicant’s family. With respect to the application, the applicant states that he was not involved in the application process as he was under 18 and could not read or write English to complete the forms and he relied entirely on the primary visa applicant and her husband. He did not personally complete Form 80 and when interviewed, he was only asked his name and date of birth.

13. The applicant explains that he legally changed his name to Manyang Richard and was never formally known as Awan Nemar in the community and it was not a formal change of name. The applicant states that it was only after receiving the NOICC that he realised Yom was not his sister and that he but was adopted into, and raised by, her family. The applicant refers to the death of Akim in Rumbek.

14. The applicant’s representative provided a further written submission to the Tribunal on 23 September 2019. As the hearing in this case was scheduled for the morning of 25 September 2019 the Tribunal has found the late submission of claims unhelpful. No explanation is offered by the applicant’s representative for failure to comply with paragraph 5.1 of the AAT Practice Directions on Migration and Refugee Matters. The applicant was represented by Ms Jessica Edis of Putt Legal Migration. The Tribunal has had regard to that submission and the evidence contained in this submission is addressed elsewhere in this decision.

15. In oral evidence, the applicant stated that he was very young when the forms were completed. He states that the forms were done by another person. When he was interviewed by Immigration, he was only asked for his name and date of birth and he had no other involvement with the application. The applicant stated that after coming to Australia, he was asked to choose a Christian name and he chose the name Richard.

16. The applicant’s representative claims in the submission of 24 September 2019 that there was no breach of s. 101 because the applicant provided information on the forms which he believed to be true at the time. In the Tribunal’s view, that submission fails to have regard to the relevant legislative provisions. Section 100 of the Act provides that an answer to a question is incorrect even though the person who gave or provided the answer, or caused the answer to be given or provided, did not know that it was incorrect. Further, s. 111 states that sections 107, 108 and 109 apply whether the non-compliance was deliberate or inadvertent. Contrary to the application of, for example, PIC 4020 which contains the temporal requirement that the information was incorrect at the time it was given, there is no corresponding requirement in relation to the cancellation. It is not correct to state, in the Tribunal’s view, that the information was believed to be correct at the time it was given and therefore there was no breach. Firstly, the information was not correct at the time it was given (whether or not the parties were aware of it). Secondly, the provisions noted above make it clear that the cancellation provisions apply whether or not the person knew the information was incorrect.

17. It is not necessary, for the purpose of establishing the breach, to determine whether the applicant was aware of the provision of incorrect answers. For the same reason, it is not necessary to determine whether it was the applicant, or another person, who completed the forms.

18. The Tribunal finds that the applicant is not the biological brother of the primary visa applicant and that they do not share the same parents. The Tribunal finds that the applicant did not comply with s. 101(b) of the Act by claiming to be the brother of the primary visa applicant and by referring to the visa applicant’s parents as his parents. These answers were incorrect. The Tribunal further finds that the applicant did not comply with s. 101(a) of the Act because his claimed parents had been known by other names. The applicant did not provide information in response to questions on the application forms about the other names they had been known by.

19. The Tribunal finds that there was non-compliance with s. 101 by the applicant in the way described in the s.107 notice.

    Should the visa be cancelled?

20. 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).

21. 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

22. The applicant claimed to be the brother of the primary visa applicant sharing the same parents. The correct information is that he is not a biological brother of the primary visa applicant. The correct information also is that the applicant’s claimed parents and the primary visa applicant were known by other names and the applicant failed to disclose these names.

    The content of the genuine document (if any)

23. 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

24. The applicant states in his response to the NOICC that it is not possible to determine the basis on which the visa was granted. The applicant states that he was most likely to have been assessed as a dependent child of the primary visa applicant and even if the correct information was provided, he would still have been likely to be granted the visa. The applicant refers to the relevant policy for split family members, noting that he was a minor when the application was made, was living with Yom and her family as a family group with no other adult responsible for him.

25. In his written submission to the Tribunal the applicant states that whether or not he was the biological sibling of the primary visa applicant, it is arguable that he was a member of her family group and would have satisfied the secondary criteria. The Tribunal is mindful, however, that in the absence of a biological relationship between the applicant and the primary visa applicant would have necessitated an assessment of his relationship on other grounds, such as being a member of the family unit, which may have required an assessment of adoption and dependency. It may or may not have been accepted that the applicant was adapted by the primary visa applicant’s family and that he was a sibling of Ms Ater. The assessment of his relationship with the family would have been quite different to the one that would have been carried out by the delegate in the belief that the applicant was a biological sibling of the primary visa applicant.

26. Ultimately, it is not necessary to determine whether the applicant wold have been assessed as being a member of the family unit of the primary applicant at the time the application was made and whether he would have been granted a visa if the correct information was known. The applicant claimed to be related to the primary visa applicant in a particular way. The assessment of his application would have entailed an assessment of that relationship. The claimed relationship was not correctly represented. The Tribunal finds that the decision to grant the visa was based, in part, on incorrect information.

    The circumstances in which the non-compliance occurred

27. The applicant claims that he did not know he was not biologically related and always assumed he was biologically related to Yom. The applicant claims that even though they had different parents, they never spoke about it and they were a genuine family unit. The applicant states that the relationship has not been contrived for migration purpose.  The applicant states that he did not knowingly provide incorrect information to the Department and considered Yom to be his biological sister until he received the NOICC. He was genuinely a member of Yom’s family group. He was also not known by any other name.

28. The applicant states that the forms were completed by another person and he has no recollection of signing the form. During the interview he was only asked his name and age and nothing else. The applicant repeated this information in his evidence to the Tribunal, stating that he was too young to be involved with the visa application, and did not speak or read English, and he relied on the primary applicant and her husband to do the paperwork.

29. In his written submission to the Tribunal the applicant states that this is not a case that has been contrived for migration purpose and that he was genuinely mistaken about his biological relationship with the primary visa applicant. The applicant claims he did not know the information he gave was incorrect and there was no deliberate intention to mislead, rather there was a “genuine and longstanding mistake” about his parentage and he genuinely believed Yom to be his biological sister. The applicant suggests that in the circumstances of civil war, such an adoption would have been ‘unremarkable’.

30. The applicant provided with his submission to the Tribunal a declaration from Chiweer Machot outlining the circumstances of the visa sponsorship and the family’s circumstances.

    The present circumstances of the visa holder

31. The applicant states in response to the NOICC that he is currently employed as a security officer. He completed a Diploma in Civil and Structural Engineering and commenced a Bachelor degree, which he has deferred and intends to resume in 2018. The applicant states that he is settled in Australia and considers Australia his home and had applied for citizenship. He had only returned to South Sudan once in 2014 for a short period and found it to be unsafe.

32. The applicant included in his submission to the delegate evidence of his study in Australia and evidence of enrolment at university, as well as evidence of his employment with Telstra.

1. In his submission to the Tribunal the applicant refers to his community and church involvement. He states that he was an employee of SNP, doing security work. The applicant states that he completed a Diploma of Civil and Structural Engineering and enrolled in university but had deferred his studies but has now resumed the course in July 2019 and has six units left to finish the degree.

2. The applicant states that his GP referred him to a psychologist for counselling and was prescribed an anti-depressant but later stopped because of the side effects and he is not in the financial position to see the psychologist again.

3. The applicant states that in late 2018 he moved to live with Chiweer who look after him and acts as a father figure and it helped him being around family during the difficult period. As he lives in Melbourne, he has been driving Uber and also does casual construction work as a labourer. He has not been active with the community work in Melbourne. The applicant told the Tribunal that he commenced his course online and intends to return to Perth.  

4. In oral evidence, the applicant spoke about his involvement in church activities, evangelising and helping new migrants.

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

5. Nothing adverse is known about the applicant’s behaviour concerning his obligations under the Act.

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

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

   The time that has elapsed since the non-compliance

7. The application was made in December 2006 and close to 13 years passed since the non-compliance. The Tribunal acknowledges it is a lengthy period.

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

8. In his submission to the Tribunal the applicant refers to a fine of $500 for disorderly behaviour in 2018, stating it was out of character for him. The applicant explained the circumstances of that offence in oral evidence to the Tribunal.

   Any contribution made by the holder to the community.

9. In his response to the NOICC the applicant refers to his voluntary involvement with a community organisation in Perth which helps young Sudanese refugees settle in Australia. The applicant provided to the delegate a statement from South Sudan Community Association and Rumbek Youth Association, as well as a letter from the Anglican Church and evidence of his community involvement is also before the Tribunal.

10. In his written submission to the Tribunal the applicant states that he became involved with the South Sudanese community in Perth, working for a Youth Association for about two years, helping young refugees settle in Australia. The applicant states that he is a committed Christian and became a youth leader in church, working closely with congregation members. The Tribunal accepts that the applicant has made a meaningful contribution to the community.

11. 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

12. If the applicant’s visa is cancelled and unless he is granted another visa, the applicant will be an unlawful non-citizen and may be detained. The applicant states that he 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 he 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 he may have acquired as a permanent resident of Australia.

    Whether there would be consequential cancellations under s.140

13. There are no persons affected by consequential cancellations.

    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.   

14. In his submission to the delegate the applicant refers to Australia’s protection obligations. The applicant refers to the unsafe situation in South Sudan. In his submission to the Tribunal the applicant also refers to the dangerous situation in South Sudan and to the death of his brother. The applicant states that he fears violence in South Sudan and he has no close relatives there and no ties to the country. He claims he wold be homeless and starving. The Tribunal acknowledges other declarations and other evidence that the applicant presented to the Tribunal concerning the situation in South Sudan.

15. The applicant referred to looking after his brother’s children. It is not apparent from the presented evidence that the best interests of the children would be adversely affected by the cancellation.

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

16. The applicant provided to the delegate a number of character references and several letters of support in his submission to the Tribunal. The Tribunal accepts that the applicant is well regarded in the community and is considered to be of good character and the Tribunal also accepts that the applicant has been involved in community activities. The applicant refers to the length of time he has spent in Australia and his ties to the community. He states that he wants to finish his education and find a job as an engineer. He states that he considers Australia to be his home. The Tribunal accepts that evidence.

17. The applicant also refers to the unsafe situation in Sudan and the hardship that would be caused if he is required to leave Australia and be separated from his family and the support network.

18. The applicant told the Tribunal that his health has been affected by the cancellation as he is worried about his future and cannot sleep. The applicant confirmed that he was previously on medication but has stopped medication on the advice of the doctor.

19. The Tribunal has considered the totality of the applicant’s circumstances. The Tribunal has found that the applicant answered questions on the application form in a way that incorrect answers were given and that he had not complied with s. 101 of the Act. The Tribunal found that there are grounds for cancelling his visa.

20. The Tribunal accepts the applicant’s evidence that he was unaware of his relationship with the primary visa applicant and that he genuinely believed to be the biological brother of the primary visa applicant when the application was made. While that does not affect the existence of the breach and of the grounds for cancellation of the visa, the Tribunal places significant weight on the fact that the breach was unintentional. The Tribunal also places weight on the fact that the applicant was a minor at the time the application was made and would have had little, if any, involvement in the completion of the forms and the preparation of the application paperwork.

21. The Tribunal accepts that the applicant is well settled in Australia. He is pursuing a university course, has been employed and involved in community activities. The Tribunal acknowledges evidence from third parties about the applicant’s involvement in various activities in Australia and his contribution to the community.

22. The Tribunal also accepts that the applicant would experience a significant degree of hardship if he was required to leave Australia. The Tribunal acknowledges the country reports about the situation in South Sudan and notes that the applicant is unlikely to have family or other support in his home country, given the length of time he has spent in Australia. Having regard to all the relevant circumstances, the Tribunal concludes that the visa should not be cancelled.

    DECISION

23. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 202 (Global Special Humanitarian) visa.

    Kira Raif
    Senior Member