Fayeza Batol (Migration)

Fayeza Batol (Migration) [2022] AATA 2659 (10 February 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Ms Ghulam Rasool Fayeza Batol
CASE NUMBER:  1933875
DIBP REFERENCE(S):  BCC2016/2583839
MEMBER:P. Maishman
DATE:10 February 2022
PLACE OF DECISION:  Perth
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 117 (Orphan Relative) visa.

Statement made on 10 February 2022 at 2:02pm
CATCHWORDS
MIGRATION – cancellation – Child (Migrant) (Class AH) visa – Subclass 117 (Orphan Relative) – incorrect answers in the visa application – orphan relative of an Australian relative – applicant’s mother not deceased as claimed – confessing through compliance with authority – applicant’s mother adopted a false identity – identity details – family composition – bogus documents – employment – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 48, 97-105, 107-109, 111, 112, 140, 189, 196, 198, 359AA, 359A, 362A, 375A
Migration Regulations 1994, Schedule 2 cl 573.111; Schedule 8, Condition 8202; rr 1.14, 2.41
CASES
MIAC v Khadgi (2010) 190 FCR 248
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration to cancel the applicant’s (the visa holder) Subclass 117 (Orphan Relative) visa under s.109(1) of the Migration Act 1958 (the Act).
The delegate cancelled the visa on the basis that incorrect answers were given or provided on the visa holder’s visa application form. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
At the visa holder’s request, the Tribunal postponed a hearing listed for 19 November 2020 to allow time to examine file documents released close to the hearing date. Hearings on subsequent dates, 16 December 2020 and 3 February 2021 were unable to proceed because of the Member availability and the impact of lockdowns as a result of the Covid-19 pandemic.
The visa holder appeared before the Tribunal on 3 March 2021 and 10 February 2022 to give evidence and present arguments. The Tribunal also received oral evidence from the visa holder’s brother, Mohammad Ali Hussaini (Mr Hussaini), by telephone.
The Tribunal hearing was conducted with the assistance of an interpreter in the Hazaragi and English languages.
The visa holder was represented in relation to the review by her lawyer.
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
The Tribunal had before a copy of the Department’s file. The file includes a copy of the Departments Notice of Intention to Consider Cancellation under Section 109 of the Migration Act 1958 (NOICC) dated and sent to the visa holder on 15 April 2019 and her written response signed and dated 29 April 2019.
Certificate under s.375A of the Act.
The Department’s file contained a certificate dated 6 December 2019 pursuant to s.375A of the Act restricting disclosure of folios 1 – 46; 96 – 104; and 106 – 167 of its file BCC2016/2583839. The Tribunal provided the visa holder partial access to the Department’s file, aside from the documents covered by the s.375A certificate, on 7 July 2020 in accordance with her request pursuant to s.362A of the Act. The Department revoked that certificate on 22 October 2020.
The Department issued a further certificate pursuant to s.375A of the Act on 22 October 2020 restricting the disclosure of the documents or information contained in folios 1 - 46 and 155 – 156 of its file BCC2016/2583839 because the release of the information would be contrary to the public interest because it would disclose lawful methods for preventing, detecting and investigating breaches or invasions of the law, which would be likely to prejudice the effective use of those methods.
The Tribunal provided the visa holder copies of documents not covered by the s.375A certificate issued 22 October 2020 (Folios 96 – 104; 106 – 154; and 157 – 168) on 30 October 2020, in accordance with the applicant’s earlier request for access to written material pursuant to s 362A of the Act.
The Tribunal sent the visa holder a copy of the s 375A certificate issued 22 October 2020 and invited her in writing to comment on the validity of the s.375A certificate on 29 October 2020.
The Tribunal did not receive a written response to the invitation to comment on the validity of the certificate. At hearing the visa holder declined to make any submissions about the validity of the certificate.
The Tribunal is satisfied the disclosure of the documents covered by the s.375A certificate is contrary to the public interest for the reasons specified in the certificate. The certificate has been signed and dated by a delegate. The Tribunal is satisfied the certificate is valid.
The Tribunal considered its obligations under s 359A and s 359AA do not apply to the adverse information contained in the documents protected by the s 375A certificate. Information protected from disclosure by the certificate that is adverse to the visa holder’s case has been disclosed in the delegates decision record, a copy of which was given to the Tribunal by the applicant. The Tribunal has addressed each issue raised by the delegate with the visa holder and has not relied on the information or documents protected by the s 375 certificate to reach its decision.
Evidence given to the Tribunal
The visa holder gave the Tribunal a copy of the delegates decision record with her application for review. The summarised visa history outlined by the delegate is as follows. The visa application was made on 2 September 2009 and sponsored by the applicant’s Australian citizen brother, Mohammad Ali Hussaini. Based on the answers provided in her visa application, the delegate determined the visa holder met the requirements for an Orphan Relative visa and the visa was granted on 22 March 2011. The delegate says subsequent investigation of the Department’s records showed information given by Mr Hussaini during an interview in 2001; by Fatima, the visa holder’s mother, on [a visa application] on 3 October 2005 and the corresponding [form] declared by Mr Hussaini contradicted information given by the visa holder for her Orphan Relative visa application. The delegate formed the view the visa holder may have provided incorrect answers in relation to her Orphan Relative visa application and sent a Notice of Intention to Consider Cancellation (NOICC) on 15 April 2019. The visa holder responded to the NOICC in writing dated 29 April 2019.
The Tribunal received written submissions dated 9 December 2020 with a bundle of documents labelled Document 1 to Document 16. The visa holder submits, via her representative, she was 12 years of age (born 1997) when the application was lodged in September 2009. She was not required to sign the visa application because of her age. She submits any false information provided on the visa application was not information provided by her. The visa holder gave the Tribunal a witness statement signed 9 December 2020 (Document 16) and a statutory declaration signed by her brother Mohammed Ali Hussaini on 9 December 2020 (Document 15).
The Tribunal received a letter from the visa holder’s employer dated 21 January 2021 and further submissions after the hearing on 21 June 2021.
The visa holder’s evidence
The visa holder adopted the information in her witness statement signed 9 December 2020. The visa holder gave oral evidence she was little and does not remember her father clearly or when her father died. As is customary, her brother Mohammed Ali Hussaini completed her visa application on her behalf and completed all the birth dates for her siblings. She does not know her, or her siblings, correct years of birth or how her taskera was obtained. Her official year of birth is 1997 and is the only year she uses. She believes she is 23 years and not closer to 28. Her mother, Fatima, is alive and has assumed the name of her deceased sister, Durnisa Azimi. Durnisa Azimi died before the visa holder came to Australia. The visa holder lives with her mother in Australia.
Evidence of Mohammed Ali Hussaini
Mr Mohammed Ali Hussaini affirmed the information in his statutory declaration dated 9 December 2020. Mr Hussaini declared he is the older brother of the visa holder and her siblings. Their father is dead and, as the eldest son, he is the head of the family and makes the decisions for the family. Mr Hussaini acknowledged that if the visa holder was born in 1992, as he first declared in 2005, she would have the physical appearance of a 13 year old child, rather than an 8 or 9 year old child if she was born in 1997, as he subsequently declared on the Partner visa application. Mr Hussaini said the birth dates of the visa holder and their siblings are estimates. He thinks 1997 is the visa holder’s correct year of birth, but some of their sibling’s birth years may be incorrect. Their mother’s name is Fatima and she is alive and assumed the name of her dead sister, Durnisa Azimi, to travel to Australia because the Department had been previously advised his mother was deceased. Mr Hussaini decided the visa holder should declare her mother to be dead, and told her to maintain that position when responding to the NOICC.
The Tribunal noted the visa holder’s taskera (applicant bundle Document 2) issued on 20 October 2005 indicates the visa holder was 8 years old in 2005 (born 1997). The Tribunal asked Mr Hussaini to explain how that taskera was obtained. Mr Hussaini told the Tribunal he went to Pakistan for a little over 3 months in 2005 and married in early 2006 prior to returning to Australia. He arranged for his mother, Fatima, and her neighbour, Awaz, to obtain the taskeras and told them what years of birth to use for the visa holder and her siblings. Mr Hussaini said the dates he told his mother to record on the visa applicants taskera, and those of her siblings, are incorrect. His mother also obtained his father’s death certificate from Afghanistan but he does not know if the death certificate was obtained during the same journey into Afghanistan to obtain the taskeras. Mr Hussaini maintains his father is deceased.
After the hearing, the visa holder’s representative provided written submissions that the Tribunal should attach minimal weight to, or disregard, Mr Hussaini’s oral evidence in relation to the incorrect information on taskeras of the visa holder and her siblings obtained in October 2005. In summary, the representative submits Mr Hussaini’s agreement with the Tribunal’s suggestion that it appeared he had declared the correct years of birth (1992) for the visa holder and her siblings in 2001 and 2005 and then arranged taskeras to be issued using dates he knew were not correct is an example of ‘confessing through compliance with authority’. The Tribunal had regard to various academic and government literature cited in support the submission.
The Tribunal was not satisfied it properly afforded the visa holder procedural fairness in relation to her brother’s evidence. At the resumed hearing the Tribunal adopted the procedure in s 359AA and advised the visa holder it considered Mr Hussaini’s oral evidence, that he told his mother to record the wrong birth dates on the visa applicants and her siblings’ taskeras was information that would be the reason, or part of the reason for affirming the decision under review. The Tribunal explained the information is relevant to the review because it could lead the Tribunal to find incorrect information was provided in her visa application. The Tribunal invited the applicant to respond or comment on that information or to seek extra time in which to do so. The visa holder declined to seek time in which to consider her response. The visa holder told the Tribunal her brother is a simple man who was very anxious about giving evidence. The visa holder told the Tribunal his friends had told him not to argue or disagree with the tribunal and the result was that he agreed with the Tribunal Member when the Member indicated the dates it ‘believed’ to be correct. The Tribunal noted the visa holder’s representative provided submissions on 21 June 2021 addressing Mr Hussaini’s evidence.
The Tribunal does not consider Mr Hussaini a reliable witness overall and attributes any weight to his evidence with caution. Mr Hussaini’s oral evidence that he arranged taskeras to be obtained for the visa holder and her siblings using incorrect years of birth contradicts the information in his statutory declaration of 9 December 2020 that he believed the visa holder’s year of birth was probably correct. On his evidence, Mr Hussaini arranged for his mother, Fatima, to adopt the false identity of Durnisa Azimi in order to obtain an Australian visa. Further, he insisted his siblings claim their mother, Fatima, was deceased again on their visa applications and again when responding to the NOICC despite the Department’s concern the contrary was true.
Legislation
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.
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.
Did the notice comply with the requirements in s.107?
In the present case, there is a question as to whether the NOICC under Section 109 of the Act issued by the Minister’s delegate on 15 April 2019 complied with s 107.
The visa holder submits the NOICC does not comply with the requirements of s 107(1)(a). The application form completed by the visa holder on 2 September 2009 was destroyed by fire in 2014 so is not in the possession of the Department. The visa holder submits the NOICC does not specify what was asked or answered by the visa holder and so fails to give adequate particulars of the alleged non-compliance.
File notes on the Department’s file confirm the applicants file was destroyed by fire in 2014 and only IRIS (Immigration Records and Information System – the Department’s computerised records) remain. The Tribunal acknowledges the visa holder’s submission the visa application form is not available to confirm the actual questions asked on the form, nor the actual answers recorded to those questions.
The Tribunal considers the visa holder’s visa could not have been granted without the delegate taking into account answers to questions relevant to the criteria needing to be satisfied for the grant of the visa. Questions relevant to the criteria for the grant of a visa are routinely contained on visa application forms. Section 99 of the Act provides that information given or provided by, or on behalf of, a person is taken to be an answer to a question in the application form, whether the information is given orally or in writing and whether at an interview or otherwise. The Tribunal is satisfied the delegate assessed the criteria relevant to the grant of the visa based on information given by the visa holder either orally or in writing at an interview or on an application form in respect of her visa application on 2 September 2009.
The Tribunal considered the content of the NOICC dated 15 April 2019. The delegate formed the view there had been non-compliance with s 101(b) of the Act requiring a non-citizen to fill in or complete the visa application form in such a way that no incorrect answers are given or provided.
The NOICC identified the applicant lodged a visa application on 2 September 2009 for an Orphan Relative (subclass 117) visa and that visa was granted on the basis of answers in relation to that visa application. The NOICC particularised information before the delegate that indicated possible non-compliance with s 101(b) of the Act included information provided in responses given in respect of [a visa application] made on 3 October 2005 and a Partner visa application made on 22 January 2007, both of which included the visa holder as a secondary applicant.
The NOICC particularised the visa holder’s possible non-compliance to be her answers about her year of birth; about her four siblings’ years of birth; her claim her mother passed away in 2006; and her claim her father passed away in 2003.
The Tribunal is satisfied the delegate had regard to the information provided in respect of the visa application and the contradictory information and considered the applicant possibly did not comply with s 101(b). The NOICC complies with the requirement to give particulars of the possible non-compliance of s 107(1)(a).
The NOICC provided the visa holder the opportunity to comment on the possible non-compliance and required a written response within the period of 14 days: s 107(1A). The NOICC complies with the requirement of s.107(1)(b).
The NOICC told the visa holder if she did not respond to the notice within the time frame a decision to cancel her visa would be made using the information held by the Department; if she wrote to the Department declining to respond the issue of cancellation would be considered and that if it was decided there was non-compliance a decision about whether to cancel the visa would take into account any written response received. The NOICC complies with the requirements in s 107(1)(c).
The NOICC set out the effect of sections 108, 109, 111, and 112 of Act; informed the applicant her obligations under section 104 or 105 of the Act continue; and required her to keep the delegate informed of her residential address. The NOICC complies with the requirements in ss 107(d), (e), and (f).
The Tribunal is satisfied that the delegate 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?
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 described in the s 107 notice was non-compliance with s 101(b) in the following respects. The applicant claimed:
a.to have been born in 1997, but was born in 1992;
b.her sister Umalbanin was born in 1994, but she was born in 1987;
c.her sister Mansoora was born 1990, but she was born in 1980;
d.her brother Asif Ali was born in 1991, but he was born in 1981; and
e.her brother Aref Ali was born 1993, but he was born in 1986;
f.her mother Fatima passed away in 2006, but her mother applied for a [visa] on 27 October 2016 in the name of Durnisa Azimi and is not deceased; and
g.her father passed away in 2003, but he is not deceased.
The Tribunal considered the visa holder’s response to the NOICC in writing on 29 April 2019:
In Afghanistan we are belong to small town Uzmuk we never been to school, in Afghanistan we have different calendar afghan people are used to it and we always make mistakes in telling dates let alone we are an illiterate person, we get nervous and confuse at interviews, if someone interview us now still we make mistakes.
Durnisa Azimi is our aunty When we were in Pakistan my mother told my aunty that she should tell her husband Safdar Ali to go to Afghanistan to make tazkiras for us because my mother was very sick and she could not walk and eat properly, she could not go to Afghanistan neither my siblings we were all young and it is very dangerous too for us to go to Afghanistan to make Tazkiras, we are Hazara and shia Muslim for us its extremely dangerous to travel in Pakistan, Afghanistan and in between lots of people lost their lives in the past, we also had great fear from son of Nazir and his people who threatened to kill us all, the tazkira office in Nili not far from Uzmuk.
It came to know when my aunty husband went to Afghanistan that without the head of family or family members the Tazkiras can not be made, Safdar All returned to Pakistan my mother asked my aunty to go to Afghanistan with my her husband to make tazkiras for us, because she look very similar to my mother they were twins sisters, the Tazkira's authorities can not differentiate, she provided her photo and finger thumb and she provided finger thumb for all of siblings tazkirazs.
The date of birth on our Tazkiras are correct we are providing a verification certificate from Afghan embassy in Canberra also for my fathers death certificate
I deeply request you to not to cancel our visas, because it will create lots of problems for us, we can not go to Afghanistan we will definitely killed by Taliban, AIqaeda, Daesh or son of Nazir who already killed my brother, we love Australia more than anywhere else we would like to die here.
(sgd) Fayeza Batol

The visa holder disputes that the answers about her, and her siblings, years of birth are incorrect. The visa holder maintained Durnisa Azimi is her aunty. The visa holder also disputes that her answer that her father is dead is incorrect.
The visa holder disclosed in her witness statement dated 9 December 2020 her mother is not dead, but is alive and living in Australia under the name of Durnisa Azimi. The visa holder affirmed that information at the hearing. The visa holder maintains she does not know the correct dates of birth for her siblings. The visa holder maintains her father is dead.
At hearing, Mr Hussaini adopted the information in his statutory declaration signed 9 December 2020. Mr Hussaini claims he told the visa applicant, and his other siblings, to claim their mother, Fatima, was dead when they applied for their respective visas and insisted that response be maintained in response to their respective NOICC. Mr Hussaini affirmed the visa holder’s mother is not dead. Mr Hussaini maintains he estimated his sibling’s dates (or years) of birth and does not know their precise birth details. Mr Hussaini maintains his father is dead.
The visa holder submits she was a child when her visa application was made and the answers for her visa application were made by adults on her behalf. She did not know that answers on her visa application were incorrect.
Section 100 of the Act provides 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.
Are answers in respect of the visa holders, and/or her siblings, dates of birth correct?
The visa holder does not dispute her visa application contained answers that:
a.she was born in 1997;
b.her sister Umalbanin was born in 1994;
c.her sister Mansoora was born 1990;
d.her brother Asif Ali was born in 1991; and
e.her brother Aref Ali was born 1993.
The delegate says the birth years declared on the visa holder’s application are the same as recorded on Mr Hussaini’s wife’s Partner (Subclass 309) visa application in January 2007[1] which included the visa holder as a secondary applicant.
[1] The delegates decision reasons records this application was made on 22 January 2007, and later refers to a Partner visa application in 2005. Later reference to a 2007 interview in relation the 309 application suggests it more likely the Partner visa application was made in 2007. The Tribunal does not consider the date germane to its findings and has not clarified.
The visa holder says her and her siblings birth dates are estimates, but she believes she is currently about 23 years old (i.e. born around 1997) and not 29 years old (i.e. born in 1992). She uses 1997 as her official birth year.
The applicant does not dispute the delegates claim the Department’s records show declarations were made by Mr Hussaini in 2001; by Fatima, the visa holder’s mother, on [a visa application] on 3 October 2005; and again by Mr Hussaini on a corresponding [form] in respect Fatima’s [visa application]; that:
a.the visa holder, Fayeza, was born 31 December 1992;
b.her sister Umalbanin was born 31 December 1987;
c.her sister Mansoora was born 31 December 1980;
d.her brother Asif Ali was born 31 December 1981; and
e.her brother Aref Ali was born 31 December 1986.
The Tribunal acknowledges that births in Afghanistan are often not officially registered and reasonable estimates of a person’s age and approximate year of birth are commonly accepted.
The applicant does not dispute the delegates claim the Department’s records show interviewing officers who conducted in person interviews with the visa holder and her siblings in Islamabad in May 2006 were concerned their physical appearances suggested they were older than the ages recorded on the Partner visa application or the visa holder’s application. The interviewing officers observed the dates declared Mr Hussaini in 2001; by Fatima, the visa holder’s mother, on [a visa application] on 3 October 2005; and again by Mr Hussaini on a corresponding [form] in respect Fatima’s [visa application] more closely reflected the physical appearance of the visa holder and her siblings.
Mr Hussaini gave oral evidence that in October 2005 he visited his family in Pakistan for about 3 months. He saw the visa holder and guessed her to be younger than 13 years (i.e. born later than 1992). He arranged for taskeras to be obtained using incorrect years of birth for the visa holder and her siblings. Mr Hussaini said Afghanistan was not safe for his family and he was trying everything to bring his family to Australia. These incorrect birth years were used for by the visa holder in her subsequent Orphan Relative application and the Partner visa application on which she was included a secondary applicant. The Tribunal acknowledges the submission Mr Hussaini may have been ‘confessing through compliance with authority’. The Tribunal is however satisfied it clarified Mr Hussaini’s evidence with him and his evidence was understood and was not given simply in order to appease the Tribunal. In the context of this application, supported by his statements in 2001 and 2005 and observations by Departmental officers about the physical appearance of the visa holder and her siblings and their ages during interview, the Tribunal gives Mr Hussaini’s evidence significant weight in making a conclusion about whether incorrect information was given.
The Tribunal finds the taskeras of the visa holder and her siblings were obtained using the incorrect years of birth as determined by Mr Hussaini. The Tribunal attributes no weight to the information recorded on the taskeras of the visa holder, or her siblings, as an accurate reflection of their ages or years of birth.
The Tribunal acknowledges the visa holder’s, and her siblings, ages are likely to have been an issue previously determined by the Department’s delegates and the Tribunal (differently constituted) in relation to their respective visas being granted. The Tribunal has not been provided with the earlier Tribunal decisions and, in any case, is not bound by those decisions. The evidence before the Tribunal is that taskeras for the visa holder and her siblings were obtained in October 2005 using incorrect information, which were subsequently included in Partner and Orphan Relative visa applications for the visa holder.
There is no conclusive independent evidence before the Tribunal to establish with any certainty the correct dates, or years, of birth for the visa holder or her siblings. The Tribunal acknowledges the visa holder has adopted the birth year 1997 as declared on her taskera as her ‘official’ year of birth.
The Tribunal attributes weight to the consistent information provided by Mr Hussaini during his interview in 2001 and on [a form] on 3 October 2005; by Fatima, the visa holder’s mother in [a visa application] on 3 October 2005; and the observations of the Departmental officers that the visa holder and her siblings physically appeared to be older than they claimed.
The Tribunal finds:
a.the visa holder, Fayeza, was born 31 December 1992;
b.her sister Umalbanin was born 31 December 1987;
c.her sister Mansoora was born 31 December 1980;
d.her brother Asif Ali was born 31 December 1981; and
e.her brother Aref Ali was born 31 December 1986.
The Tribunal finds the visa holders visa application includes incorrect answers that:
a.she was born in 1997;
b.her sister Umalbanin was born in 1994;
c.her sister Mansoora was born 1990;
d.her brother Asif Ali was born in 1991; and
e.her brother Aref Ali was born 1993.
Is the answer that the visa applicant’s father passed away correct?
In summary, the delegates decision record says the visa holder declared her father to have died in 2003. The delegate says this is an incorrect answer based on inconsistent information from the visa holder, Fatima (the visa holder’s mother) and Mr Hussaini.
The delegate’s reasons are that Fatima, the visa holder’s mother, included the visa holder and her siblings as secondary applicants on [a visa application] on 3 October 2005. Fatima declared her partner relationship with her husband (the secondary visa applicant’s father), Ghulam Rasul, ceased when he died on 1 January 2004. When Fatima applied for a [visa] on 27 October 2016 using the name Durnisa Azimi, she claimed she was widowed on 31 December 2011.
When the visa holder and her siblings attended an interview with Departmental officers on 25 May 2006, as the secondary applicants on Fatima’s [visa application], they claimed Fatima had died and their father, Ghulam Rasul, died after Mr Hussaini went to Australia and around 5 years prior to the interview (i.e. around 2001).
The visa holder told the Tribunal she was very young and does not remember living with her father or when he died. The visa holder denies she has had any contact with her father and she did not meet with him when she travelled with her sister-in-law to Quetta in 2015. The visa holder maintains her father is dead.
Mr Hussaini’s wife applied for a Partner visa on 22 January 2007 and included the visa holder and her siblings as dependants and secondary visa applicants. The visa holder’s father, Guhlam Rasool, was claimed to have died on 4 March 2003. Mr Hussaini provided a death certificate letter dated 7 September 2006 purporting to be from the Afghan Consulate in Quetta, Pakistan to support his claim his father was dead. The Afghan Consulate in Quetta advised the Department on 21 March 2007, following it’s attempts to authenticate the document, the death certificate letter dated 7 September 2006 was not genuine. Mr Hussaini subsequently provided a letter dated 30 October 2007 he purportedly obtained from the Afghan Consulate in Quetta claiming the letter was genuine. The Department repeated its attempts to authenticate the document and were advised by the Afghan Embassy in Islamabad on 22 May 2008 the death certificate dated 7 September 2007 is bogus.
In response to the NOICC the visa holder gave the Department a letter dated 12/003/2009 (sic) purporting to be Certification [number] from the Embassy of the Islamic Republic of Afghanistan in Canberra. The letter claims to certify that Ghulam Rasool died in Afghanistan on 4 March 2003.
The Tribunal attaches no weight to documents purporting to be death certificates of Ghulam Rasool as genuine certification of his death. The visa holder and Mr Hussaini have a vested interest in establishing the visa holder to be orphaned to meet the visa requirements. The Department, which does not have a vested interest in a positive or negative visa outcome, twice attempted to authenticate the death certificate letter dated 7 September 2006, and were told in both instances the document was not genuine. The Tribunal prefers the information obtained by the Department independently to the certification purportedly obtained by Mr Hussaini on 30 October 2007 from the Afghan Consulate in Quetta.
The visa holder gave the Tribunal a copy of a death certificate for her father (marked Annexure B) attached to Mr Hussaini’s statutory declaration dated 9 December 2020. The certificate purports to have been issued on 5 September 2007 and certifies Ghulam Rasool died as a resident of Quetta on 4 March 2003. Mr Hussaini’s declared the certificate incorrectly records Ghulam Rasool to have been resident in Quetta at the time of his death. On his evidence. Ghulam Rasool did not travel to Pakistan with Fatima or the visa holder, but remained in Afghanistan where he died. The certificate is at best inaccurate and at worst bogus. The Tribunal gives no weight to the death certificate of Ghulam Rasool as genuine evidence of his death.
The visa application in the name of Durnisa Azimi indicates her husband died in 2011. That visa application identifies the deceased husband to Safdar Ali, not Ghulam Rasool. The Tribunal does not conclude that declaration, although by Fatima, can be taken as inconsistent with other previous declarations about the death of Ghulam Rasool. The Tribunal does not attribute any weight to that declaration in reaching its conclusion.
The Tribunal is not satisfied the documentary evidence about the visa holder’s father’s death is genuine.
The oral evidence of the visa holder and Mr Hussaini that their father is dead is broadly consistent with the various visa applications. The inconsistency of claims about when Ghulam Rasool died however lead the Tribunal to question whether Ghulam Rasool is in fact dead. The Tribunal takes into account Mr Hussaini’s suggestion that if their father was alive he would have come to Australia to be with his family.
The Tribunal is unable to determine with any certainty if Mr Ghulam Fasool, the visa holder’s father, is dead or that he died in 2003. The Tribunal accepts the visa holder’s evidence that she has had no contact with him, did not meet him when she travelled to Quetta, and believes him to be dead.
The Tribunal cannot determine with any confidence if the answer that the visa holder’s father passed away is correct or incorrect information. For the purposes of this decision the Tribunal relies on the consistent claims of the visa holder, Mr Hussaini and Fatima to find the visa holder did not give incorrect information or an incorrect answer when she indicated her father had passed away.
Is the answer that the visa applicant’s mother, Fatima, passed away correct?
The delegate notes the Department’s fingerprint specialist concluded fingerprint samples from a taskera of Fatima, the visa holder’s mother with finger print against samples provided with [a visa application] made on 3 October 2005 and finger print impressions given on 22 December 2012 by the person claiming to be Durnisa Azimi belonged to the same person.
In response to the NOICC the visa holder claimed Durnisa Azimi was her aunty. In their statutory declarations of 9 December 2020 and their oral evidence the visa holder, and her brother Mr Hussaini, concede their mother, Fatima, is alive. The visa holder does not contest that Durnisa Azimi is in fact her mother, Fatima.
The Tribunal finds the visa holder’s mother, Fatima, is alive and living in Australia under the name Durnisa Azimi.
The Tribunal finds information on the visa holder’s visa application that her mother was dead is an incorrect answer.
For these reasons, the Tribunal finds that there was non-compliance s 101(b) by the visa holder in the way described in the s 107 notice.
Should the visa be cancelled?
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).
In exercising this power, the Tribunal must consider the applicant’s response (if any) to the s107 notice about the non-compliance, and have regard to any prescribed circumstances: s109(1)(b) and (c). The prescribed circumstances are set out in reg 2.41 of the Regulations. Briefly, they are:
·     the correct information;
·     the content of the genuine document (if any);
·     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;
·     the circumstances in which the non-compliance occurred;
·     the present circumstances of the visa holder;
·     the subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act;
·     any other instances of non-compliance by the visa holder known to the Minister;
·     the time that has elapsed since the non-compliance;
·     any breaches of the law since the non-compliance and the seriousness of those breaches; and
·     any contribution made by the holder to the community.
Prescribed Circumstances
The correct information
The correct information is that the visa holder was born in 1992, not 1997 as declared. The Tribunal accepts the visa holder was eligible (in respect of her age) to apply for a child orphan relative Subclass AH-117 visa (which requires an applicant to be aged under 18 years: reg 1.14(a)(i)).
The correct years of birth of the visa holder’s siblings are as described earlier and do not directly affect the requirements for the child orphan relative Subclass AH-117 visa granted to the visa holder.
The correct information is the visa holder’s parent, her mother Fatima, is alive. The visa holder does not claim Fatima was permanently incapacitated or of unknown whereabouts so that she could not care for the visa holder.
The Tribunal gives the correct information significant weight in favour of exercising the discretion to cancel the visa.
The content of the genuine document (if any)
This consideration does not apply in this case.
Whether the decision to grant a visa was based, wholly or partly, on incorrect information or a bogus document
The visa holder was granted the visa on the basis of incorrect information that both her parents are deceased. The visa holder’s mother is not deceased, and is not claimed to be incapacitated or missing.
This factor weighs significantly in favour of exercising the discretion to cancel the visa.
The circumstances in which the non-compliance occurred
The visa holder submits she was a young person when the visa application was made. The application was made by adults (her brother Mr Hussaini) on her behalf, without her input or knowledge of incorrect information.
The Tribunal accepts the visa holder was younger than 18 years did not directly control the information given in her visa application. The Tribunal accepts that culturally the visa holder relied on the patriarch of the family, Mr Hussaini, to make decisions on her behalf. The Tribunal accepts Mr Hussaini directed the incorrect information to be given, and the visa holder had no direct input into the information given on her visa application.
The circumstances in which the non-compliance occurred weighs against exercising the discretion to cancel the visa holder’s visa.
The present circumstances of the visa holder
The visa holder does not claim to a spousal or de facto relationship and has no dependent children. She lives with her mother and siblings in regional Western Australia. Members of the Supporting Migrants in Learning English (SMILE) volunteer network have provided supporting statements indicating the visa holder is hardworking and making a contribution to the community. She is a valued employee of Early Education Centre who gave the Tribunal a letter of support.
The Tribunal accepts the visa holder is employed in a regional area of Western Australia in an industry frequently searching for employees. The visa holder has been in Australia for nearly 10 years and is settled in Australia with her siblings and mother.
The present circumstances of the visa holder weigh against exercising the discretion to cancel 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
Subdivision C of Division 3 of Part 2 of the Act includes ss 105 and 107.
Section 105 of the Act obliges the visa holder (non-citizen) to notify the Department in writing, as soon as practicable, if they become aware information was incorrect when it was given.
Notwithstanding the visa holder’s youth and reliance on adults to act honestly on her behalf, she was aware that her mother was not dead when the visa application was made. Further the visa holder was aware, and knew incorrect information was provided in her response to the NOICC in April 2019.

The visa holder did not make any attempt to correct the incorrect information her mother was dead prior to giving the Tribunal a written witness statement dated 9 December 2020.
Section 107(2) of the Act requires a visa holder who responds to a NOICC to do so without making any incorrect statement.
The visa holder responded to the Department’s NOICC claiming that the birth dates recorded on the Tazkera’s are correct and that Durnisa Azimi was her aunt and her mother’s twin sister. The visa holder claimed Afghan people use a different calendar, are illiterate and get nervous and confused at interviews causing them to make mistakes.

100. The visa holder told the Tribunal her written response to the NOICC on 29 April 2019 was informed by Mr Hussaini’s advice to her to maintain her mother was dead. The visa holder acknowledged she was, at the time of her response, living with her mother and knew her mother had assumed the name Durnisa Azimi. The visa holder acknowledged she knew the information she provided about Durnisa Azimi was incorrect when she responded to the NOICC and expressed regret she had given that information. The visa holder maintained her, and her siblings, dates of birth were closely aligned to those disclosed on their Taskera’s.
101. The visa holder was an adult woman when she responded to the NOICC. Notwithstanding her reliance on Mr Hussaini, as the patriarch of the family, to give her advice she knew her response about the identity of Durnisa Azimi was incorrect. Despite being informed by the Department of its concerns about the integrity of specific information and having the opportunity to address information she knew was incorrect, the visa holder chose to maintain the information previously given was correct for her, and her families’, advantage.
102. The visa holder’s preference not to correct incorrect information and to continue to provide incorrect information in response to the Department’s NOICC is contrary to her obligations under Subdivision C of Division 3 of Part 2 of the Act. The Tribunal weighs the visa holder’s behaviour, specifically to provide an incorrect statement about the identity of Durnisa Azimi significantly in favour of exercising the discretion to cancel the visa.
Any other instances of non-compliance by the visa holder known to the Minister
103. There are no other instances of non-compliance by the visa holder known to the Tribunal and gives neutral weight to this factor.
The time that has elapsed since the non-compliance
104. The visa application containing the incorrect information was lodged more than 12 years ago in September 2009 when the visa holder was younger than 18 years. The visa holder provided a further incorrect statement in response to the Department’s NOICC when she responded in writing on 29 April 2019 at which time she was an adult.
105. The time that has elapsed since the visa application is significant, however the preference of the visa holder to maintain the incorrect information for her own advantage as recently as 2019 weighs in favour of cancelling the visa.
Any breaches of the law since the non-compliance and the seriousness of those breaches
106. The Tribunal is unaware of any breaches of the law since the non-compliance and gives neutral weight to this factor.
Any contribution made by the holder to the community
107. The Tribunal acknowledges the letters of support provide by members of the volunteer group, SMILE, of which the visa holder has been a participant to improve her English and integrate into the community. The Tribunal also acknowledges the visa holder obtained certificates in her chosen field and is employed at a Childcare centre.
108. The Tribunal accepts the visa holder contributes positively to the community and weighs this factor against exercising the discretion to cancel the visa.
Lawful Government Policy
109. While the factors (above) 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.
110. The visa holder submitted she has no family support if she was to return to Afghanistan. As a Hazara woman and Shi’a Muslim she would be subjected to harm and potentially hurt or killed if she returned to Afghanistan. She could not participate in work or the community as she does in Australia, where she lives with her family and is part of the community. The visa holder acknowledges she can apply for a Protection visa but the cost to the Australian public of processing such a claim makes that option undesirable. The visa holder further submits it is likely any consequent Bridging Visa (Class WE) (BVE) she obtained would be subject to a ‘no work’ condition (8101) forcing her to resign her employment to the detriment of her Early Childhood employer, the families that use the Early Childhood centre and to the visa holder.
Consequences of cancelling the visa
111. If the visa holder's Subclass 117 visa is cancelled and she does not hold a valid visa she will become an unlawful non-citizen and liable to detention under s.189 of the Act and removal under s.198 of the Act. She may also be subject to s.48 of the Act, which limits further specific onshore visa applications by a person who does not hold a substantive visa and who has had a visa cancelled since they last entered the migration zone. Further, the applicant may be subject to an exclusion period regarding future visa applications.
112. Current policy in relation to Afghan citizens in Australia provides that temporary visa holders will not be asked to return to Afghanistan given the current security situation.[2] However it remains the case that section 196 provides that an unlawful non-citizen must be kept detained in immigration detention until removal and any consideration of how the Minister may exercise his discretion is merely speculative.
[2] Home Affairs website, Afghanistan update, cited in the submissions of the applicant’s representative lodged 30 September 2021 at 3.5
113. It is however open to the visa holder to apply for a Protection visa. The Tribunal acknowledges the ongoing deteriorating circumstances in Afghanistan suggest the visa holder may face the real prospect of harm if she was to return to Afghanistan. The visa holder would be at particular risk because of her gender, her ethnicity and her religious beliefs. The Tribunal accepts the visa holder could not work or participate in the community in Afghanistan as she does in Australia. These are issues that would be properly assessed during the process of determining a Protection visa application.
114. The Tribunal acknowledges the assessment and determination of a Protection visa application incurs a cost, essentially borne by Australian tax-payers. The Tribunal does not consider this cost outweighs the legitimate interest of Australian citizens that the integrity of the Australian visa scheme is protected. The visa was granted based on incorrect information given on the visa application.
115. The Tribunal accepts the applicant may initially have her work rights restricted if she is granted a Bridging visa consequent to a Protection visa application. It is open to the visa holder to put her case to the Department to have restrictive conditions attached to her visa lifted.
116. In this case, while the applicant has family members in Australia, being her siblings and mother, there are no persons in Australia whose visas would, or may, be cancelled under s 140 of the Act.
117. On balance, the Tribunal finds that the consequences of the visa being cancelled weigh in favour of cancellation of the applicant's Subclass 117 visa given they are the intended consequences of the legislation.
Other relevant matters
118. The Tribunal acknowledges the visa holder may suffer emotional and financial hardship if her visa is cancelled. The visa holder has lived in Australia for more than 10 years and has established community ties and working relationships. She lives with her family and has no near family outside of Australia. Subject to her making a further visa application, she would lose her right to work and would suffer uncertainty about her status in Australia. The Tribunal acknowledges if the visa holder was unable to work for her current employer, her employer would face challenges finding a qualified employee to take her place.
119. The Tribunal gives these circumstance some weight against the exercise of the discretion to cancel the visa.
CONCLUSION
120. Having given careful consideration to all the relevant circumstances, the Tribunal considers the matters to which it is required to have regard weigh strongly in favour of exercising the discretion to cancel the visa. In particular I give significant weight to the following matters:
·Had the correct information been known to the delegate when the decision to grant the visa was made in 2011 the visa may not have been granted.
·In response to the Department’s NOICC the visa holder did not disclose that incorrect information was given.
·The visa holder has the option to have her claim that she cannot return to Afghanistan properly considered if she applies for a Protection visa. If that application was favourably decided, the visa holder would legitimately hold an Australian visa granted based on her true circumstances.

121. 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
122. The Tribunal affirms the decision to cancel the applicant’s Subclass 117 (Orphan Relative) visa.
P. Maishman
Member

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.

[2022] AATA 2659

10 February 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Natural Justice

Statutory Construction

Jurisdiction