Gebremeskel (Migration) - [2024] AATA 2480

Gebremeskel (Migration) [2024] AATA 2480 (24 June 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mrs Lwam Tsegai Gebremeskel
Mr Estifanos Gebremicheal Tesfa
Miss Merina Estifanos Gebremicheal
Master Milkias Estifanos Gebremicheal
Miss Mikal Estifanos Gebremicheal
CASE NUMBER:  2217144
HOME AFFAIRS REFERENCE(S):          BCC2022/3993986
MEMBER:Bridget Cullen
DATE:24 June 2024
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the first named Applicant’s Subclass 202 (Global Special Humanitarian) visa.
The Tribunal has no jurisdiction with respect to the other Applicants.

Statement made on 24 June 2024 at 6.25pm

CATCHWORDS
MIGRATION – cancellation – Subclass 202 (Global Special Humanitarian) visa – applicant had given incorrect information – applicant was unaware of the information at the time she applied for the visa – applicant did not receive the NOICC given her residential move – there is no issue with the notification to the applicant – there was non-compliance with s 101(b) by the applicant in the way described in the s 107 notice – applicant’s spouse had previously been in a de facto relationship, and had a child from that relationship – time that has elapsed since the non-compliance – best interests of the children – contribution to the Australian community – decision under review set aside
LEGISLATION
Migration Act 1958, ss 100, 101, 109, 140
Migration Regulations 1994, r 2.41, Schedule 2

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 Home Affairs to cancel the first named Applicant’s Subclass 202 (Global Special Humanitarian) visa under s 109(1) of the Migration Act 1958 (Cth) (the Act).
The Delegate cancelled the visa on the basis that the Delegate considered that the Applicant had provided incorrect information in her application for the visa, and failed to comply with s101(b) of the Act. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
For the purposes of the Tribunal’s jurisdiction, the only decision that is before the Tribunal is that with respect to the first named Applicant (the Applicant). The other visas were automatically cancelled as a consequence of that cancellation, not by a decision but by force of the operation of s 140(1) of the Act. As no decision was involved in the visa cancellation under s 140(1), the Tribunal has no jurisdiction with respect to the other Applicants.
The Applicant appeared before the Tribunal on 29 April 2024 to give evidence and present arguments. The Applicant was assisted by Ms Tiffany Ozherelyeva, Samuta McComber Lawyers. The Tribunal provided Ms Ozherelyeva an opportunity to make submissions on the Applicant’s behalf.
For the following reasons, the Tribunal has concluded that the decision to cancel the Applicant’s visa should be set aside.
CONSIDERATION OF CLAIMS AND EVIDENCE
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.
In the present case, there is a question as to whether the notice issued by the Minister’s Delegate complied with s 107.
Background
Helpfully, the Applicant’s Representative has provided a comprehensive outline of the relevant background to this matter:
The Applicant is a citizen of Eritrea, born 1 January 1991.
On 21 April 2007, the Applicant was married by religious arrangement to Estifanos Gebremicheal Tesfa (“Estifanos”).
The Applicant has three children to Estifanos:
(a) Merina Estifanos Gebremicheal (daughter) born 2008 (‘Merina’);
(b) Milkias Estifanos Gebremicheal (son), born 2009 (‘Milkias’); and
(c) Mikal Estifanos Gebremicheal (daughter) born 2013 (‘Mikal’).
Merina and Milkias have diagnosed intellectual disabilities with significant language
and functional impairments requiring extensive assistance and ongoing access to
external support services.
On 28 April 2017, the Applicant completed and lodged an application for a Global Special Humanitarian (subclass 202) visa.
On 14 June 2018, the Applicant’s Global Special Humanitarian (subclass 202) visa
was granted.
On 8 September 2018, the Applicant and her immediate family arrived in Australia, and have resided in Australia since.
On 20 September 2022, a delegate of the Minister sent a Notice of Intention to
Consider Cancel (‘NOICC’) by registered post to the Applicant’s former address in Inala; and Australia Post records indicate the NOICC was delivered to this address on 26 September 2022.
On 7 November 2022, a delegate of the Minister decided to exercise its discretion to
cancel the Applicant’s visa under s 109 of the Act (‘Cancellation Decision’);
and sent the Notification of Cancellation (‘Cancellation Notice’) and Decision Record (‘Decision’) by registered post to the Applicant’s former Inala address.
On 15 November 2022, the Applicant contacted the Minister and requested a copy of
the Cancellation Notice and Decision because she had not received the original copies that were sent to her former Inala Residence.
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 s 107 notice is significant in the context of the cancellation process. The purpose of the notice is to afford the Applicant with an opportunity to comment on a potential finding that grounds for cancellation exist, and to then make submissions relating to the appropriate exercise of discretion. The Notice must provide sufficient details of the basis upon which cancellation is being considered in order to assist the Applicant to then make relevant submissions.
The non-compliance identified and particularised in the s 107 notice was non-compliance with s.101 of the Act, which states:
Visa 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.
Where the non-citizen is unaware that a question on the application is incorrect, section 100 of the Act states:
Incorrect 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.
The incorrect information provided by the Applicant in conjunction with her visa application related to her family composition. The Applicant failed to include a child of her spouse, Estifanos, in her Application.
The incorrect information became known to the Department following the Applicant, her spouse, and children, having been granted Global Special Humanitarian (subclass 202) visas. The Department became aware following Estifanos’s making an application to sponsor his child, Salem Estifanos Gebremichael (Salem), born in 2003, to Australia, stating that he is Salem’s biological father. DNA testing results provided to the Department indicate that Estifanos is Salem’s biological father.
Further, there was incorrect information given by the Applicant in response to the question, “Have you or any other person included in this visa application previously been legally married, in a de facto relationship or in a customary/traditional/religious marriage that is not legally recognised?” The Applicant answered ‘No,’ to this question, which was incorrect because Estifanos told the Department, in a statement dated 1 June 2020, that in or around 2001, he met a woman by the name of Tirhas Gebru Tesfagaber, and lived with her as boyfriend and girlfriend for approximately one and a half years in Sudan. Ms Tirhas Gebru Tesfagaber returned to Eritrea after she fell pregnant to Estifanos, and then delivered his child, Salem, in Eritrea.
The Applicant says that she has complied with s 101 of the Act, as she answered all questions truthfully, based on the information available to her at the time of her Application for the visa.
The Applicant says that she only learned about Estifanos’s previous relationship, and of his daughter, three years after arriving in Australia. The Tribunal accepts the Applicant’s evidence that she was unaware of these matters at the time of her Application. The Applicant’s evidence is supported by an affidavit from her sister, Selemawit Tseghai, dated 27 April 2024, explaining that neither she, the Applicant, nor their parents knew that Estifanos had been in a previous relationship. The Applicant, Ms Tesghai’s, and Estifanos’s own evidence is that he represented to the Applicant and her family that he had not been in any previous intimate relationships, and did not have any children. The Tribunal observes that these representations were made in the context of an arranged marriage agreement entered into between the Applicant’s parents and Estifanos when she was aged 14. The religious marriage then took place when the Applicant was 16.
The Tribunal considers that in the absence of any information suggesting that the Applicant did know of Estafanos’s previous relationship and child, of which there is none, that the Applicant is entitled to the benefit of the doubt.
The Applicant concedes that pursuant to s 100 of the Act, an answer on her visa application became incorrect three years after the application was completed and lodged by her. The Tribunal accepts that the Applicant was unaware of the information at the time she applied for the visa.
Notification of the Applicant by the Department
The Applicant says that she did not respond to the NOICC for the reason that it was sent to her family’s former rental address in Inala. Approximately one month before the NOICC was delivered, the Applicant and her spouse purchased a home located in nearby Doolandella.
In her written submissions, lodged in the Tribunal on 29 April 2024, the Applicant asserts the following:
In addition, the Applicant submits that she did not receive either the NOICC or the
Cancellation Notice with Decision Record by registered post because:
(a)On 20 July 2022, the Applicant purchased a residential home at [redacted] (‘Doolandella Address’).
(b)On 30 August 2022, one month before the Minister sent the NOICC, the Applicant and her immediate family relocated from their rental residence at [redacted] (‘Inala Address’), to their Doolandella Address.
(c)The NOICC and Cancellation Notice with Decision Record were sent to the Inala Address on 20 September 2022, and 7 November 2022, respectively.
Upon reading an email from the Minister on or about 15 November 2022 affirming the
decision to cancel her 202 Visa, the Applicant visited the Inala Address and asked the tenants if they had received any registered post in her name. The tenants responded that they had not.
The Applicant submits that she did not respond to the NOICC, pursuant to s 107(1)(b) of the Act, because she did not receive the NOICC; nor did she know of its existence until after her visa was cancelled.
The Tribunal has been provided with evidence of the relocation and Doolandella home purchase, and accepts the Applicant’s evidence that she did not respond to the NOICC as she did not receive it given her relocation.
Therefore, the Applicant submits that the Minister was unable to take into account any prescribed considerations, as prescribed by ss 108 and 109 of the Act, and reg 2.41, when making the Cancellation Decision.
Section 108 of the Act states:
Decision 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.
Section 109 of the Act states (relevantly) that:
Cancellation 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.
(3) If the Minister cancels a visa under subsection (1), the Minister must give the former visa
holder of the visa a written notice that …
(4) … must be given in the prescribed way.15
(5) Failure to give notice of a decision does not affect the validity of the decision.
Regulation 2.41 sets out the prescribed circumstances:
Whether to cancel visa--incorrect information or bogus document (Act, s 109(1)(c))
For the purposes of paragraph 109(1)(c) of the Act, the following circumstances are
prescribed:
(a) the correct information;
(b) the content of the genuine document (if any);
(c) 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;
(d) the circumstances in which the non - compliance occurred;
(e) the present circumstances of the visa holder;
(f) the subsequent behaviour of the visa holder concerning his or her obligations
under Subdivision C of Division 3 of Part 2 of the Act;
(g) any other instances of non - compliance by the visa holder known to the Minister;
(h) the time that has elapsed since the non - compliance;
(i) any breaches of the law since the non - compliance and the seriousness of those
breaches;
(j) any contribution made by the holder to the community.
The evidence before the Tribunal establishes that the Applicant’s assertion that she contacted the Department on 15 November 2022, after she read an email from the Minister, is correct. On the Departmental file, there is a record indicating that the Department was called by the Applicant on 15 November 2022, asserting that she did not receive the earlier correspondence as “client didn’t update mailing or email address so correspondence had been delivered to an incorrect address”.
The Act does not prescribe a method by which the s 107 notice is to be given. For notification of cancellation decisions to persons not in immigration detention given before 1 November 2023, the Minister may notify the former visa holder using the power in s 494A(1), which provides that the Minister may give the document to the person by any method they consider appropriate (which may be one of the methods in s 494B).[1] If the Minister does not exercise the discretion to exercise s 494A(1), they are required to send the notification by reg 2.55.
[1] MICMA v EVE21 [2023] FCAFC 91 at [48], [60].
In MICMA v EVE21, the Full Federal Court held that reg 2.55 may be used to notify a former visa holder, and held that no question of inconsistency between s 494A(1) and reg 2.55(3)(c) can arise until the power in s 494A(1) has actually been exercised, and where it has not been exercised, there can be no inconsistency.[2] Here, the Minister sent the NOICC by Registered Post to the last residential address for the Applicant known to the Minister, consistent with reg 2.55(3)(c). An address for the purpose of reg 2.55 does not need to have been provided to the Minister, whereas this is a requirement for s 494B.
[2] Ibid at [48].
Although the Tribunal accepts that the Applicant did not receive the NOICC given her residential move, on the basis of the decision in MICMA v EVE21, the Tribunal is satisfied that there is no issue with the notification to the Applicant at her last residential address known to the Minister.
Further, the Tribunal finds that there is no issue with the substance of the NOICC. Although the Tribunal finds that the Applicant did not know of Estifanos’s previous relationship or child at the time of her application, the information provided by her to the Department was not correct. Section 100 of the Act clearly contemplates that the Applicant, who is in a better position than the Department to ensure that their own application is correct in all respects, does not need to be aware that the information is incorrect at the time it is given.
For these reasons, the Tribunal finds that there was non-compliance with s 101(b) by the Applicant 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 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 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
·     any contribution made by the holder to the community.
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.
There are several very compelling reasons why, in the Tribunal’s view, that the Applicant’s visa should not be cancelled. The prescribed circumstances are considered, in turn, below.
The correct information:
The correct information is that the Applicant’s spouse had previously been in a de facto relationship, and had a child from that relationship.
While the Tribunal has found that the Applicant provided incorrect information in respect to the questions regarding her spouse and her family composition, it is also the case that the Tribunal accepts that the Applicant did not know the information was incorrect at the time she provided it.
The Applicant has explained that the reason she did not reply to the NOICC was that she had moved residence, and did not receive the NOICC.
The Tribunal gives this consideration some weight in favour of visa cancellation.
The content of the genuine document (if any):

This prescribed circumstance is not relevant in this case because the NOICC relied solely on s 101, not on s 103 (relating to bogus documents).
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 Applicant was assessed as meeting the relevant criteria for grant of the Global Special Humanitarian (subclass 202) visa, including Regulation 202.229(2), which states:
Reg 202.229
(…)
(2) Each member of the family unit of the applicant who is not an applicant for a Subclass 202 visa is a person who:
(a) satisfies public interest criteria 4001, 4002, 4003 and 4004; and
(b) satisfies public interest criterion 4007, unless the Minister is satisfied that it would be unreasonable to require the person to undergo assessment in relation to that criterion.
In the decision record, the Delegate points out, that when the visa application was assessed, the Department was not aware of the existence of Estifanos’s child, Salem. As such, a decision was made without all the relevant information before the Delegate, including whether Salem met health and character requirements. The Delegate flags the following concern:
I note departmental policy states the requirement for non-migrating family unit members to undergo (as part of the "one fails, all fail" criterion) PIC 4007 health checking may be waived if officers are satisfied that it would be "unreasonable" to require the family unit member to undergo assessment in relation to that criterion. There was no information submitted by the visa holder to indicate if this was considered by them at time of visa application.
It is plausible the visa holder may have been aware of a possible health condition of the child that may have prevented them from meeting the relevant health criterion, but this remains unknown. If this were the case, all applicants for the visa would have failed to meet the requirements for grant of the visa.
As explained above, the Tribunal accepts that the Applicant did not know of Salem’s existence at the time of the Applicant’s visa application, and could not therefore have known of any health conditions relevant to Salem.
Nevertheless, the Tribunal is satisfied the Delegate made a decision to grant the visa based wholly or partly on incorrect information and therefore gives this consideration significant weight in favour of cancellation.
The circumstances in which the non-compliance occurred:
The incorrect information was provided by the Applicant in conjunction with her 28 April 2017 application for a Global Special Humanitarian (subclass 202) visa. The Applicant provided incorrect information in respect of her family composition, in answering questions to the effect that her spouse had not previously been in a relationship and did not have any other children from a previous relationship. This led to the assessing Delegate making a decision to grant the visa without having all the relevant information.
The Delegate explains that:
The correct information became known to the Department once the visa holder and her family had been immigration cleared, and settled in Australia, some three years later. This is because the visa holder’s spouse lodged an application to sponsor a child for a Child (subclass 101) visa, claiming to have fathered the child with another woman. Subsequent parentage testing (DNA) evidence provided by the visa holder’s spouse was presented to the Department substantiating his claims he was the biological father of the child.
The Tribunal has found that the Applicant, who was married to her spouse as a 16-year old following an arranged marriage, was not aware of her spouse’s previous relationship history or child. Learning this information later, post visa application, caused her grief, and a desire to divorce her spouse. However, the Applicant set aside her own feelings to remain married to Estifanos, in what she considered to be the best interests of her three young children with Estifanos.
Whilst the Applicant is better placed than the Department to ensure the accuracy of her own family composition, hence the importance of the Applicant providing correct information, the Tribunal also accepts the Applicant’s evidence that she was unaware of the incorrect information at the time of its provision.
In balancing these considerations, the Tribunal places some weight on the circumstances in which the non-compliance occurred as a factor in favour of cancellation.
The present circumstances of the visa holder:
The Applicant’s representative has prepared comprehensive written submissions, addressing the very significant factors that weigh against cancellation of the Applicant’s visa. These submissions are extracted below (with unnecessary personal details and footnotes redacted by the Tribunal):
The Applicant’s children have resided in Australia for the better part of their formative years having arrived in Australia in September 2018 when Merina was 10 years old, Milkias was 9 years old, and Mikal was 5 years old.
In October 2018, the Applicant’s children commenced at [redacted] state primary school.
Mikal is currently 11 years old. Her teachers report that she exhibits a positive, responsible, and respectful attitude, and is consistently improving. Mikal is also a long-term participant in extracurricular gymnastics.
In January 2019, Milkias and Merina commenced at [redacted] State Special School.
Merina and Milkias are diagnosed with intellectual disabilities that present significant language and functional impairments, which necessitate ongoing extensive assistance and support from external agencies for the children and their family members.
On 16 May 2019, the Applicant’s daughter, Merina, was diagnosed with a significant intellectual language impairment.
On 9 August 2019, Milkias’ Intellectual Disability Verification Report confirms that he has Autistic Spectrum Disorder, Level 3, as diagnosed by Dr [redacted], a pediatrician with the Mater Refugee Complex Care Clinic. The report also states that at that time, Milkias’ assessments indicate he requires significant supervision, his ‘level of communication to be commensurate with an 18-24 month old, and he ‘demonstrat[es] significant developmental delays and deficits, with his most significant deficits and impairments remaining in the areas of communication, daily living skills, socialisation and cognition.’
On 13 January 2021, Dr [redacted] supported Milkias’ National Disability Insurance Scheme (‘NDIS’) application citing he has ‘significant functional impairment’ and needs full-time supervision and care.
On 10 March 2021, Milkias was approved for NDIS.
It is imperative That Milkias and Merina continue to receive and have access to the high level of care and support services offered in Australia, with access to modern resources that will assist them in leading fulfilling lives, contributing positively to their communities, and reaching their full potential.
The standard of care that Milkias and Merina need is not available to them in Sudan. The lack of relevant health services in Sudan will significantly impact the likelihood of them reaching their full potential. If deported these children are at risk of exposure to systemic prejudices and neglect because of their disabilities.
In the above premises, revoking the Cancellation Decision is in the best interests of these three children.
Significant Australian Familial Ties
The Applicant and her immediate family have enduring, significantly close relationships with their extended family members who reside in Australia as citizens and permanent residents. This is especially so of the relationship the Applicant and her children have with the Applicant’s older sister, Selemawit Tsegai, and Selemawit’s three daughters (redacted).
The Applicant’s submissions are comprehensively supported by medical information, school reports, and documentation in relation to the Applicant’s job, education, and property acquisition. Overwhelmingly, in the Tribunal’s view, the medical and educational needs of the Applicant’s children (diagnosed after the Applicant’s arrival in Australia and the enrolment of the children in Australian schools), support an exercise of discretion in favour of not cancelling the visa.
The Tribunal accepts that the Applicant’s children would not be able to be supported through adequate provision of medical and educational care, in either Eritrea (where they are refugees from and therefore cannot return), or in Sudan (where they have no legal right of return).
The Applicant and her immediate family have now resided in Australia since 2018, meaning that the Applicant’s children have been schooled in English for approximately six-years. Considering their very significant special needs, the Tribunal accepts that the children’s best interests would be severely compromised were they required to depart Australia and lose the stable environment that the Applicant has built for them here. The Tribunal places very significant weight on the Applicant’s present circumstances as a factor in favour of not cancelling the Applicant’s 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:
Although the Applicant did not respond to the NOICC, for the reason that she did not receive it, she has participated meaningfully in the review process before the Tribunal and has been straightforward in her both her evidence, and in acknowledging that the information provided, once it became known to her, was incorrect. The Tribunal gives this fact some limited weight against cancelling the visa.
Any other instances of non-compliance by the visa holder known to the Minister:
The Tribunal is not aware of any other instances of non-compliance by the Applicant.
The time that has elapsed since the non-compliance:
The non-compliance took place when the Applicant applied for a Subclass 202 (Global Special Humanitarian) visa in 2017, which is 7 years ago. Although this is not, in the Tribunal’s view, a significant amount of time in the overall context of the Applicant’s life, it is a meaningful period of time in the context of the lives and education of the Applicant’s young children.
Further, the Applicant, her spouse, and children have been successful in obtaining permanent residency since their arrival in Australia, and proceeded to set up their lives in Australia with the view that they would continue to reside in Australia. The Tribunal gives this factor considerable some weight in favour of not cancelling the visa.
Any breaches of the law since the non-compliance and the seriousness of those breaches:
The Tribunal is not aware of any breaches of the law by the Applicant since the non-compliance.
Any contribution made by the holder to the community:
The Applicant submits the following, in relation to her contributions to the community:
Significant Australian Community Ties
The Applicant has contributed significantly to the Australian community as a tax paying employee and volunteer. She is praised for her commitment, dedication, and service.
The Applicant has completed her Accounting and Bookkeeping diploma since residing in Australia.
The Applicant owns residential property in Doolandella, which is where she and her immediate family reside.
The Tribunal considers the positive contribution the Applicant has made to the community to be favourable and gives this factor some limited weight in favour of the visa not being cancelled.
Other factors: Departmental guidelines:
While the factors in reg 2.41 of the Regulations 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 government policy. The Tribunal has considered the following additional matters.
Whether there are persons in Australia whose visas would, or may, be cancelled consequentially.
At the time the Applicant was granted a Subclass 202 (Global Special Humanitarian) visa, her spouse and three young children were granted secondary Subclass 202 (Global Special Humanitarian) visas, as they were assessed as meeting criteria as members of the family unit of the Applicant. If the Applicant’s visa is cancelled, all four secondary visa holders will also have their visas cancelled consequentially, under s140(1) of the Act.
Given the special needs of the Applicant’s children, the Tribunal considers that cancellation would have a profound impact on the children’s ability to have their basic health care and schooling needs met. The Tribunal gives this factor considerable weight towards not cancelling the Applicant’s visa, for the reasons already canvassed above, in relation to the Applicant’s current circumstances.
Whether Australia has obligations under relevant international agreements that would or may be breached as a result of the visa cancellation.
Australia is a signatory to several international treaties regarding human rights, including the Convention on the Rights of the Child (CRC). The Applicant has three children in Australia, who are all under the age of eighteen. The Tribunal finds that the three children, given their needs and ages, would continue to reside with both the Applicant and her spouse (their father) were the Applicant’s visa cancelled.
The Delegate observed the following in their decision:
Based on open source information, I consider the children would currently enjoy a significantly higher standard of education in Australia, in addition to health care and general standard of living, as opposed to their previous living conditions in Sudan. However, as the children are refugees of Eritrea, they have no legal right to return to Sudan. The children, and their parents, are unable to return to their country of origin, as they fear torture and imprisonment, labour exploitation and other human rights violations.
I consider that the circumstances of this case may lead to a breach of Australia’s international obligations under the CRC, should the visa be cancelled and the visa holder’s children be returned to Eritrea.
If the visa holder’s visa is cancelled, an International Treaties Obligations Assessment (ITOA) would be completed by a departmental officer before a decision was made to remove the visa holder and her family to their country of origin.
Given the ages and disability related medical and schooling needs of the Applicant’s children, the Tribunal gives this consideration significant weight as a factor against cancellation.
Whether there are mandatory legal consequences to a cancellation decision.
If the visa is cancelled, the Applicant, her spouse, and three children will all become unlawful non-citizens, and be liable for detention under s189 and removal under s198 of the Act.
Furthermore, the Applicant will become subject to s48 of the Act, restricting the types of visas she could apply for from within Australia. The secondary visa holders would not be subject to s48.
In addition, the Applicant will be affected by a risk factor in accordance with Public Interest Criterion 4013, meaning that she will be subject to an exclusion period where she will be precluded from having most types of visas granted, for a period of three years. This would make retaining her connection to her sister and sister’s family exceedingly difficult.
The Tribunal gives this consideration some weight against visa cancellation.
Overall discretionary consideration
The Tribunal considers that the factors against cancellation outweigh those in favour of the Applicant’s visa remaining cancelled. In summary, the key considerations against cancellation are as follows:
·The Applicant did not have any knowledge of Estifanos’s previous intimate relationship and child until three years after arriving in Australia;
·The Applicant did not receive the NOICC until after she received an email from the Minister confirming the decision to cancel, as she had relocated to a new address following the purchase of her family home;
·The Applicant has significant ties to the Australian community through her employment and family connections (who are citizens or permanent residents); and
·The best interests of the Applicant’s children, owing to their disability related educational and medical needs, diagnosed in Australia, support the cancellation decision being set aside; and
·The Applicant has been a positive member of the Australian community, by working, volunteering, and paying taxes as required.
For these reasons, the Tribunal considers it appropriate to exercise its discretion not to cancel the Applicant’s visa.
CONCLUSION
For the reasons above, the Tribunal has decided that there was non-compliance by the Applicant in the way described in the notice given under s 107 of the Act. Further, having regard to all the relevant circumstances, as discussed above, the Tribunal concludes that the visa should not be cancelled.
DECISION
The Tribunal sets aside the decision under review and substitutes a decision not to cancel the first named Applicant’s Subclass 202 (Global Special Humanitarian) visa.
The Tribunal has no jurisdiction with respect to the other Applicants.
Bridget Cullen
Senior 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.