Desta (Migration)

[2020] AATA 4751

Desta (Migration) [2020] AATA 4751 (3 September 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Liya Gebresilassie Desta

CASE NUMBER:  1901522

DIBP REFERENCE(S):  BCC2017/3312247
OSF2016/047262
OSF2012/049476
OSF2012/015633

MEMBER:Nicholas McGowan

DATE:3 September 2020

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 100 (Spouse) visa.

Statement made 3 September 2020 at 12:16pm

CATCHWORDS

MIGRATION – cancellation – Partner (Migrant) (Class BC) visa – Subclass 100 (Spouse) – incorrect answers in the visa application – genuine, exclusive and continuing de facto relationship – evidence of another committed relationship at the same time – Australian citizen children of the other relationship – Convention on the Rights of the Child – decision under review affirmed 

LEGISLATION

Migration Act 1958, ss 5(1), 48, 97-105, 107-109
Migration Regulations 1994, Schedule 8, Condition 8202; 2.41

CASES

MIAC v Khadgi (2010) 190 FCR 248

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 100 (Spouse) visa under s.109(1) of the Migration Act 1958 (the Act).

2. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. The applicant appeared before the Tribunal on 4 September 2019. The Tribunal hearing was conducted with the assistance of an interpreter in the Amharic and English languages. The applicant was represented in relation to the review by her registered migration agent. The representative attended the Tribunal hearing.

4. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. 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.

6. 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. Extracts of the Act relevant to this case are attached to this decision.

7. In the present matter, the Tribunal is satisfied that the delegate had reached the necessary state of mind to engage s.107 and 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 section 101.

   Particulars

9. On July 18, 2018 the Minister’s delegate invited Ms Liya Gebresilassie Desta (the ‘applicant’) to comment on the delegate’s intention to consider cancellation of Ms Desta’s permanent Partner (Subclass 100) visa. The applicant had been granted a Subclass 100 visa on 8 September 2014. No response was received from the applicant to the delegate’s notification.

10. On 17 January 2019 the Minister’s delegate decided to exercise discretion under section 109 of the Act to cancel the applicant’s visa having decided that the applicant did not comply with section 101 of the Migration Act. In that decision the Minister’s delegate concluded the reasons for not cancelling the applicant’s visa did not outweigh the non-compliance.

11. Section 101 of the Act states: “A non-citizen must fill in or complete his or her application form in such a way that: (b) no incorrect answers are given or provided.”

    Claimed non-compliance

12. On February 28, 2012 the applicant applied for her Subclass 100 visa (a permanent visa). The applicant’s sponsor was a man by the name of Abiy Ayele Ambaw. In the applicant’s Subclass 100 visa application the applicant stated she was married to the sponsor on 24 August 2011 and intended to maintain a relationship. The first stage of the Subclass 100 visa (the 309 visa) was granted to the applicant on the basis of her sponsorship from, and relationship with, Mr Ambaw.

13. On July 29, 2014 the applicant submitted to the Minister a three page statutory declaration in support of her Subclass 100 visa, and stated that she had a mutual commitment to a shared life as husband and wife to the exclusion of all others (with Mr Ambaw); that their relationship was genuine and continuing; that Mr Ambaw and the applicant live together; and, their relationship had begun in 2011 and they had lived together for more than 1.5 years.

14. Based (in part on the information above) the Minister’s delegate found the applicant was the spouse of her sponsor as defined under the Act and therefore met the criteria for the grant of the permanent Subclass 100 visa.

15. On October 4, 2016 a person by the name of Mr Yonas Gidey Gebregiorgies applied to the Minister for a temporary Subclass 309 partner visa. Mr Gebregiorgies’ sponsor was the applicant (Ms Desta). The applicant had divorced Mr Ambaw on 30 April 2016. The applicant later married Mr Gebregiorgies on September 3, 2016. The applicant declared in a one page statement (dated September 29, 2016) in support of Mr Gebregiorgies’ Subclass 309 visa application, that she had met Mr Gebregiorgies for the first time in early September 2009, and after meeting one another (“…we got along very well, we started to become closer, both of us developed good friendship, understood each other, finally we started to love each other and also we continue to see each other until I depart Ethiopia.” “Sometimes at the end of 2013 during our conversation I have express my interest to be in relationship with him. Since then we talked about all sort of relationship responsibilities including having children and our future in depth…”. The statement continues: “…in early 2014 after my arrival in Australia I realised something was not normal with my health condition and I went to the Dr for a checkup, and finally I been told that I am pregnant and need more attention…”. The statement concludes with: “Finally on 26 September 2014, Meraf Yonas was born in Melbourne…I remember how my husband Yonas was happy when he heard that he became a father of Meraf…”.

16. The applicant provided to the Minister’s delegate a copy of the birth certificate and DNA evidence to prove the parentage of Meraf Yonas Gidey being herself and Mr Yonas Gidey Gebregiorgies.

    Finding

17. It is clear from the timelines outlined in the evidence provided by the applicant herself, that prior to the applicant departing Ethiopia for Australia (to join Mr Ambaw - her sponsor for her partner visa), she was already pregnant with Mr Gebregiorgies’ child. This is the evidence from the applicant herself, including in her oral evidence before this Tribunal.

18. It is also clear from the applicant’s evidence that during the period the applicant was pregnant, she continued to advise the Minister - by means of a three-page statutory declaration dated July 29, 2014, that she had with Mr Ambaw “…a mutual commitment to a shared life as husband and wife… to the exclusion of all others.” The applicant confirmed this at the public hearing held 4 September 2019 by the Tribunal.

19. Ms Desta maintained in her oral evidence before the Tribunal that she only had a single sexual encounter with Mr Gebregiorgies prior to departing Ethiopia. The applicant says she was drunk at the time. The applicant maintains she was at that time, and until the later breakdown of that relationship, in a relationship with Mr Ambaw.

20. Regardless of how many sexual encounters the applicant and Mr Gebregiorgies had before she left Ethiopia for Australia, what is clear to the Tribunal is that the applicant’s subsequent evidence in support of Mr Gebregiorgies’ visa application (in her signed written statement of 29  September 2016) is that she and Mr Gebregiorgies continued to pursue their relationship and the “life choices” for the proceeding two years, and then on 28 May 2016 Mr Gebregiorgies proposed marriage to the applicant.  To quote the applicant:

    “Finally, on the 26^th September 2014 Maraf Yonas was born in Melbourne Victoria, Australia. I remember how my husband Yonas was happy when he heard that he became a father of MERAF.

    Having discussed about interest and choices in life for about 2 years on the 28^th May 2016 my husband have proposed to marry me and I accepted his proposal.”

21. Therefore, the evidence form the applicant herself is that since at least May 2014 the applicant and Mr Gebregiorgies pursued their interest in one another and continued to discuss their choices in respect to their relationship, notwithstanding the applicant claimed during that time (for the purposes of her Subclass 100 visa) to be in a married relationship with Mr Ambaw where she claimed she had a mutual commitment to a shared life as husband and wife to the exclusion of all others with Mr Ambaw; and claiming that the relationship between herself and Mr Ambaw that is genuine and continuing (among other claims).

22. For the above reasons, the Tribunal finds that there was non-compliance with section 101 (b) by the applicant in the way described in the s.107 notice.

    Should the visa be cancelled?

23. 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).

24. 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

25. The applicant claimed to be in an exclusive relationship with her sponsor for the purposes of the grant of a Subclass 100 visa, although the relationship was not exclusive (on at least one occasion) according to the applicant’s own evidence; regardless, the applicant continued to explore her relationship options with the father of her child throughout her claimed married relationship with her sponsor. Accordingly, having considered the circumstances in which the grounds for the cancellation arose – based on the correct information – the Tribunal gives this consideration significant weight in favour of cancelling the visa.

    ·     the content of the genuine document (if any)

26. The Tribunal has taken into consideration the content of the applicant’s three-page statutory declaration dated July 29, 2014 (discussed above) and the contradictory contents provided latterly in the applicant’s statement of 29 September 2016 (discussed above). It follows that the Tribunal gives this consideration little weight in favour of cancelling the visa.

    ·     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

27. The decision to grant the applicant the Subclass 100 visa was partly based on the incorrect information contained in the applicant’s three-page statutory declaration dated July 29, 2014. That information as that she was in a genuine and exclusive relationship, when we know (latterly) from the applicant’s statement of 29 September 2016, that the applicant had not had an exclusive relationship with her sponsor, and continued to pursue a relationship with the father of her child during her claimed relationship wither sponsor. The Tribunal gives the above consideration significant weight in favour of cancelling the visa.

    ·     the circumstances in which the non-compliance occurred

28. The applicant claims the non-exclusive aspect of her relationship with her sponsor was a one-off because she was drunk. Even were the Tribunal to accept that claim at face value, the applicant’s own evidence (in her statement of 29 September 2016) is that after the time of the birth of the child, the applicant pursued options in respect to the relationship with the father of her child, while at the same time claiming (to the Minister) to be in a genuine and exclusive relationship with her sponsor (not the father of her child). The Tribunal gives the above consideration little weight in favour of cancelling the visa.

    ·     the present circumstances of the visa holder

29. The applicant has divorced the sponsor. The applicant has married the father (of her child). They had a second child born 29 April 2017. Both children have Australian citizenship. The applicant is a full-time mother and does not work. The applicant would like her husband to come to Australia. The applicant and her children rely upon Centrelink and support from her sister, Mahadere Desta.

30. While the Tribunal appreciates the applicant’s desire to unite the family in Australia, as the citizenship of her children has been obtained, initially because of the claim the child had an Australian partner (Citizen or resident), and the second child (because of the applicant’s migration status which is now the subject of this review), in these circumstances, the Tribunal gives the above considerations little weight against cancelling the visa.

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

31. There’s no evidence before the Tribunal, or previously the Department, that the applicant’s behaviour concerning her obligations under Subdivision C of Division 3 of Part 2 of the Act have not been met. Given the above, the Tribunal feels unable to give any weight in favour of a decision to cancel the visa for this consideration.

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

32. The Tribunal is unaware of any other instances of non-compliance. As compliance with a visa is a minimum requirement, the Tribunal only gives this consideration little weight against cancelling the visa.

    ·     the time that has elapsed since the non-compliance

33. The time elapsed since the latest information is more than three years. In circumstances where the applicant received a primary decision, but has sought a review, the period that has elapsed since the non-compliance is not considered significant in the Tribunal’s opinion. It follows therefore, that the Tribunal only gives this consideration little weight against cancelling the visa.

    ·     any breaches of the law since the non-compliance and the seriousness of those breaches

34. The Tribunal has no evidence before it that the applicant has somehow breached any law since the non-compliance. It follows, this consideration has been given no weight in favour, or against, cancellation of the visa.

    ·     any contribution made by the holder to the community.

35. The applicant claims to be integrated into the Australian community, as are her children, including schooling and enrolment for kinder. The applicant is involved in St Mary Orthodox Church.  The Tribunal accepts the contributions the applicant and children make, and value their participation, within the Australia community, and according, gives this consideration some weight against cancelling the visa.

36. 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.

37. 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.

    Purpose of the applicant’s travel to stay in Australia

38. While the Tribunal acknowledges the purpose of the applicant’s travel and stay in Australia was her claimed partner relationship with her sponsor, as this relationship has now ceased, the Tribunal gives this consideration little weight against a decision to cancel the visa.

    The extent of the applicant’s compliance with the visa conditions

39. As there are no conditions attached to the visa holder of a 100 subclass visa, the Tribunal is unable to give any weight for or against a decision to cancel the visa for this consideration.

    The degree of hardship that may be caused to the applicant and any family members

40. The Tribunal has weighed consideration of the applicant and her two Australian citizen children, including the claimed and anticipated financial hardship, and hardships that may arise in Ethiopia (including food insecurity, healthcare and education services, general public security, political instability, and differing employment opportunity). While acknowledging some hardships (financial, emotional, psychological) are likely to flow from a decision to cancel the applicant’s visa, the Tribunal finds the behaviour of the applicant, ultimately outweighs the anticipated hardships the applicant identifies in her submissions to the Tribunal, both in respect to herself, and her family. According, the Tribunal gives these considerations little weight against cancelling the visa.

    The circumstances in which the ground for cancellation arose

41. This consideration has been discussed at paragraph 30.

    The applicant’s past and present behaviour towards the Department

42. Other than the provision of the incorrect information (discussed and weighted above), there’s no evidence presently before the Tribunal which causes it to give this consideration further weight in favour of cancelling the visa.

    Any consequential cancellations that may result

43. There is no information to indicate to the Tribunal that cancellation of the applicant’s visa would result in the consequential cancellation of any dependent visa holders. It follows, this consideration has been given no weight in favour or against cancellation of the visa.

    Legal consequences of a decision to cancel the visa

44. As the applicant is an Ethiopian citizen, and there is no information before the Tribunal that indicates the visa cancellation would impact Australia’s international legal obligations or place Australia in breach of its non-refoulement obligations, this consideration has been given no weight in favour or against cancellation of the visa. The Tribunal, in coming to this view, has considered the children of the applicant. The Convention on the Rights of the Child has also been considered, though on balance, when considering all the information, the cancellation of the visa would not impact the welfare of the children, as they can reunite as a family in Ethiopia (where the applicant has also visited) and therefore, these circumstances would not lead to a breach of Australian international obligations under the Convention. It follows, this consideration has been given little weight against cancellation of the visa.

45. In coming to the above, the Tribunal understands the applicant’s claim the children may need to pursue a migration pathway to facilitate their permanent stay Ethiopia. The Tribunal is mindful to that the Australian authorities may investigate how Australian citizenship was acquired for the applicant’s first child, when neither parent had Australia citizenship or residency. Further, should the applicant’s visa be cancelled, it may also have further consequences for the second child’s Australian citizenship, which appears to rely upon the applicant’s legal status acquired as a result of her relationship with her sponsor (not the child’s father). In any case, these are not considerations which have been given weight against cancellation, as the applicant has avenues which can be pursued, including maintaining the family unit in Ethiopia, despite the inconvenience that may flow from needing to comply with Ethiopian migration and visa requirements.

    Other legal consequences of a decision to cancel the visa

1. A visa cancellation decision may result in the visa holder being detained under section 189 and removed from Australia under section 198 of the Migration Act as the applicant would no longer hold a valid visa. The applicant may also be subject to section 48 of the migration Act, which may prevent her from applying for further visas while in Australia. Additionally, the applicant may be affected by Public Interest Criteria 4013 which limits the granting of a further visa for a specified period. The applicant may also not be permitted to work following a visa cancellation, even though the evidence from the applicant is that currently, she is not working. As these are standard legal consequences that may flow in the event a visa is cancelled, the Tribunal acknowledges they may cause some hardship, though any hardship maybe mitigated by the applicant’s voluntary departure from Australia should her partner visa be cancelled. For these reasons the Tribunal has been given little weight against cancellation of the visa.

   Other considerations

2. The Tribunal has had regard to information, including allegations, contained on the Departmental files BCC2017/3312247 and OSF2016/047262. However, as the information has been provided anonymously, and is unverified, the Tribunal places no adverse weight on any of these matters whatsoever. Accordingly, under the Act, there is no requirement to put any of the information to the applicant. The Tribunal notes for the record, there are no non-disclosure certificates attached to any of the Departmental case files in this matter.

   Findings

3. Considering the circumstances as a whole, the Tribunal concludes that having considered all the information, the visa should be cancelled.

4. 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 be cancelled.

   DECISION

5. The Tribunal affirms the decision to cancel the applicant’s Subclass 100 (Spouse) visa.

   ATTACHMENT – Migration Act 1958 (extracts)

   5Interpretation

   (1)In this Act, unless the contrary intention appears:

   bogus document, in relation to a person, means a document that the Minister reasonably suspects is a document that:

   (a)     purports to have been, but was not, issued in respect of the person; or

   (b)     is counterfeit or has been altered by a person who does not have authority to do so; or

   (c)      was obtained because of a false or misleading statement, whether or not made knowingly.

   97Interpretation

   In this Subdivision:

   application form, in relation to a non‑citizen, means a form on which a non‑citizen applies for a visa, being a form that regulations made for the purposes of section 46 allow to be used for making the application.

   passenger card has the meaning given by subsection 506(2) and, for the purposes of section 115, includes any document provided for by regulations under paragraph 504(1)(c).

   Note:Bogus document is defined in subsection 5(1).

   98Completion of visa application

   A non‑citizen who does not fill in his or her application form or passenger card is taken to do so if he or she causes it to be filled in or if it is otherwise filled in on his or her behalf.

   99Information is answer

   Any information that a non‑citizen gives or provides, causes to be given or provided, or that is given or provided on his or her behalf, to the Minister, an officer, an authorised system, a person or the Tribunal, or the Immigration Assessment authority, reviewing a decision under this Act in relation to the non‑citizen’s application for a visa is taken for the purposes of section 100, paragraphs 101(b) and 102(b) and sections 104 and 105 to be an answer to a question in the non‑citizen’s application form, whether the information is given or provided orally or in writing and whether at an interview or otherwise.

   100Incorrect answers

   For the purposes of this Subdivision, 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.

   101Visa applications to be correct

   A non‑citizen must fill in or complete his or her application form in such a way that:

   (a)all questions on it are answered; and

   (b)no incorrect answers are given or provided.

   107Notice of incorrect applications

   (1)If the Minister considers that the holder of a visa who has been immigration cleared (whether or not because of that visa) did not comply with section 101, 102, 103, 104 or 105 or with subsection (2) in a response to a notice under this section, the Minister may give the holder a notice:

   (a)     giving particulars of the possible non‑compliance; and

   (b)     stating that, within a period stated in the notice as mentioned in subsection (1A), the holder may give the Minister a written response to the notice that:

   (i)if the holder disputes that there was non‑compliance:

   (A)shows that there was compliance; and

   (B)in case the Minister decides under section 108 that, in spite of the statement under sub‑subparagraph (A), there was non‑compliance—shows cause why the visa should not be cancelled; or

   (ii)if the holder accepts that there was non‑compliance:

   (A)give reasons for the non‑compliance; and

   (B)shows cause why the visa should not be cancelled; and

   (c)      stating that the Minister will consider cancelling the visa:

   (i)if the holder gives the Minister oral or written notice, within the period stated as mentioned in subsection (1A), that he or she will not give a written response—when that notice is given; or

   (ii)if the holder gives the Minister a written response within that period—when the response is given; or

   (iii)otherwise—at the end of that period; and

   (d)     setting out the effect of sections 108, 109, 111 and 112; and

   (e)      informing the holder that the holder’s obligations under section 104 or 105 are not affected by the notice under this section; and

   (f)      requiring the holder:

   (i)to tell the Minister the address at which the holder is living; and

   (ii)if the holder changes that address before the Minister notifies the holder of the Minister’s decision on whether there was non‑compliance by the holder—to tell the Minister the changed address.

   (1A)The period to be stated in the notice under subsection (1) must be:

   (a)     in respect of the holder of a temporary visa—the period prescribed by the regulations or, if no period is prescribed, a reasonable period; or

   (b)     otherwise—14 days.

   (1B)Regulations prescribing a period for the purposes of paragraph (1A)(a) may prescribe different periods and state when a particular period is to apply, which, without limiting the generality of the power, may be to:

   (a)     visas of a stated class; or

   (b)     visa holders in stated circumstances; or

   (c)      visa holders in a stated class of people (who may be visa holders in a particular place); or

   (d)     visa holders in a stated class of people (who may be visa holders in a particular place) in stated circumstances.

   (2)If the visa holder responds to the notice, he or she must do so without making any incorrect statement.

   108Decision about non‑compliance

   The Minister is to:

   (a)consider any response given by a visa holder in the way required by paragraph 107(1)(b); and

   (b)decide whether there was non‑compliance by the visa holder in the way described in the notice.

   109Cancellation of visa if information incorrect

   (1)The Minister, after:

   (a)     deciding under section 108 that there was non‑compliance by the holder of a visa; and

   (b)     considering any response to the notice about the non‑compliance given in a way required by paragraph 107(1)(b); and

   (c)      having regard to any prescribed circumstances;

   may cancel the visa.

   (2)If the Minister may cancel a visa under subsection (1), the Minister must do so if there exist circumstances declared by the regulations to be circumstances in which a visa must be cancelled.