Ghebre (Migration)

[2020] AATA 5665

Ghebre (Migration) [2020] AATA 5665 (11 November 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Harnet Yeman Ghebre

CASE NUMBER:  1811191

DIBP REFERENCE(S):  BCC2016/4252413

MEMBER:Kira Raif

DATE:11 November 2020

PLACE OF DECISION:  Sydney

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

Statement made on 11 November 2020 at 11:19am

CATCHWORDS
MIGRATION – cancellation – Refugee and Humanitarian (Class XB) visa – Subclass 202 (Global Special Humanitarian) – ground for cancellation – incorrect information in visa application – failure to notify change in circumstances – relationship status – engagement – marriage registered – consideration of discretion – member of family unit – grant of visa based on incorrect information – claimed lack of knowledge or understanding – limited education and language skills – unintentional breach – non-refoulement obligations – immediate family are Australian citizens – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 101, 104, 107, 109

Migration Regulations 1994 (Cth), r 2.41

CASES
MIAC v Khadgi (2010) 190 FCR 248

STATEMENT OF DECISION AND REASONS

Application for review

1. This is an application for review of a decision made by a delegate of the Minister for Immigration to cancel the applicant’s Subclass 202 (Global Special Humanitarian) visa under s.109(1) of the Migration Act 1958 (the Act).

2. The applicant is a national of Eritrea, born in July 1986. She made the application for the Global Special Humanitarian visa as a member of the family unit of her mother, in January 2014 and was granted the visa in April 2014. In November 2017 the applicant was issued with the Notice of Intention to Consider Cancellation (NOICC, Notice) because the delegate considered that the applicant did not comply with ss. 101 and 104 of the Act. The applicant provided her response in writing and her visa was cancelled in April 2018. The applicant seeks review of the delegate’s decision.

3. The Tribunal exercised its discretion to hold the hearing by video. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by video, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by video. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.

4. The applicant appeared before the Tribunal on 11 November 2020 to give evidence and present arguments. The applicant was represented in relation to the review by her registered migration agent. 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 following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

   Relevant law

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

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

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

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

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

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

9. The issue before the Tribunal is whether there was non-compliance in the way described in the s.107 notice, being the manner particularised in the notice, and if so, whether the visa should be cancelled. The non-compliance identified and particularised in the s.107 notice was non-compliance with s. 101 and 104 of the Act.

10. The applicant provided to the Tribunal a copy of the primary decision record. It indicates that the applicant made the application for the visa on 24 January 2014 as a dependent applicant of her mother. To meet the requirements for visa grant, the applicant had to establish that she was a member of the family unit or a member of the immediate family of the primary visa applicant. The applicant stated on the application form 842 that she was ‘never married or been in a de facto relationship’. On 15 January 2014 the applicant signed a declaration on that form stating that the information she supplied was complete, correct and up to date and undertaking to inform the Australian government of any material changes to her circumstances before she was immigration cleared.

11. The applicant was interviewed in Sudan on 7 April 2014. During the interview the applicant asked if she was engaged and she answered ‘no’. The applicant asked if she was in another relationship and she answered that she had a boyfriend Abel Yohannes Haile and they started dating 2 years ago. She said they had not engaged because they had no jobs. The applicant was granted the visa as a secondary applicant on 30 April 3014 and she entered Australia on 30 May 2014.

12. On 31 July 2016 an application for a Partner visa (Subclass 309/100) was made by Abel Yohannes. He was sponsored in that application by the present applicant, Ms Ghebre. Mr Yohannes attended an interview on 28 November 2016 and is recorded to have stated that he met the applicant in 2006 and started the relationship around March 2012 and he considers that they were a couple from that date. He asked Ms Ghebre to marry him in March 2012, she accepted and they were engaged since March 2012. Mr Yohannes is recorded to have stated that the marriage was registered on 22 April 2014 and they had a religious wedding celebration on 2 May 2014. He submitted a letter from the Congregation of Jehovah’s Witnesses (JW) to confirm this.

13. In her written submission to the Tribunal the applicant denies that the above is an accurate record of the responses provided during the interviews. The applicant notes that there was no contemporaneous recording of evidence and requests the Tribunal not to place weight on the information contained in the interview records. In oral evidence the applicant told the Tribunal that the relationship started in 2012 and that there was no engagement ceremony and nothing formal between her and Mr Yohannes, they were not engaged. The applicant said that her partner told the Immigration officer that they were in a relationship and would have said that they wanted to start a relationship but he would not have referred to an engagement. Ultimately, it is not necessary for the Tribunal to determine when, or whether, the parties were engaged.

14. The primary decision record indicates that Mr Yohanees submitted with his Partner visa application a statement from the JW Congregation in Khartoum which refers to the parties registering marriage in April 2014. The applicant concedes in her written and oral evidence to the Tribunal that the marriage took place. The Tribunal finds that by April 2014 the applicant was legally married. She claimed in her visa application that she was not married. Following the marriage, her circumstances had changed so that an answer on the application form became incorrect. The applicant had not informed the Department about the changes in her circumstances in writing before she was immigration cleared on 30 May 2014. The Tribunal finds that the applicant did not comply with s. 104 of the Act in the way described in the s. 107 Notice. Having made that finding, it is not necessary to determine whether there was also non-compliance with s. 101 of the Act.

    Should the visa be cancelled?

15. 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).

16. In exercising this power, the Tribunal must consider the applicant’s response (if any) to the s.107 notice about the non-compliance, and have regard to any prescribed circumstances: s.109(1)(b) and (c). The prescribed circumstances are set out in r.2.41 of the Regulations. Briefly, they are:

    The correct information

17. The primary decision record indicates that Mr Yohanees submitted with his partner visa application evidence that he and the applicant were married in April 2014 and the marriage was registered and socially recognised. The applicant confirms that the marriage took place before her entry to Australia. The correct information is that the applicant had a spouse before she was immigration cleared.

    The content of the genuine document (if any)

18. This is not relevant in this case.

    Whether the decision to grant a visa or immigration clear the visa holder was based, wholly or partly, on incorrect information or a bogus document

19. In her response to the NOICC the applicant states that she fled Eritrea to Sudan because of the situation in her home country and as a practising JW, she would have been entitled to the grant of the visa in her own right and not as a member of the family unit. In her submission of 4 November 2020 the applicant also states that while she no longer met the definition of being a member of the family unit, she would have met the primary criteria for vias grant and she also met the dependency requirements.

20. In oral evidence the applicant also states that her circumstances were the same as her mother’s, who was granted the visa. The applicant submits that she had the same case as her mother and would have been granted the visa. The applicant states that she was interviewed on her own and explained her circumstances. The applicant’s representative submits that the notes on the Immigration file indicate that all applicants’ claims were assessed, not only the mother’s, so the applicant had not obtained any benefit by not informing of the changes in her circumstances because she would have been granted the visa in her own right.

21. The Tribunal does not accept the applicant’s argument. The applicant did not make an application as the primary applicant and was never assessed against all the primary criteria (whether or not the delegate accepted her evidence on the issue of discrimination). She was only assessed against the secondary criteria. It is irrelevant whether the applicant could have been granted the visa in her own right because the primary decision record indicates that the applicant had in fact applied for, and was assessed, as a secondary applicant and was found to have met the visa criteria as a secondary applicant and not as a primary applicant. As a secondary applicant, the applicant would have been required to meet only the secondary criteria for visa grant and the Tribunal does not accept that all the primary criteria would have been assessed with respect to the applicant.

22. Neither is it helpful to state that the applicant received no benefit because she could have been granted the visa anyway. In the Tribunal’s view, it is necessary to consider what had in fact taken place, not the hypothetical situation that could have occurred.

23. Clause 202.321 required the applicant to continue to be a member of the family unit of another person. The term ‘member of the family unit’ is defined in r. 1.12 and the primary decision record indicates that the applicant claimed to be a dependent child of the primary visa applicant. The term ‘dependent child’ relevantly refers to a child other than a child who is engaged to be married or has a spouse or de facto partner. Thus, once the applicant married, she ceased being a dependent child of the primary visa applicant and was no longer a member of the family unit of the primary visa applicant. She may not have met the criteria for visa grant as a member of the family unit, had the correct information been disclosed.

24. The Tribunal finds that the decision to immigration clear the applicant was based, at least partly, on incorrect information.

    The circumstances in which the non-compliance occurred

25. The applicant explained in her response to the NOICC and her written evidence to the Tribunal that when completing the form, she did not receive professional advice. The applicant states that at that time, she did not consider herself to be married, engaged or in de facto relationship and selected what she believed was the most appropriate response. Her view of the relationship was shaped by her religious beliefs, they discussed marriage but she did not consider this to be an engagement. There was no formal religious or cultural expectations associated with engagement.

26. With respect to the marriage, the applicant states that she was unaware that she was required to inform the Department about the changes in her circumstances and her failure to inform was unintentional. The Tribunal is mindful, however, that the application form that the applicant had signed, does inform the applicant of the need to inform the Australian government of any material changes in her circumstances before she is immigration cleared. The applicant states in her submission to the Tribunal of 4 November 2020 that she could not recall if an interpreter was used to interpret the document prior to her signing. In her written submission of 4 November 2020 the applicant states that after arriving in Australia she obtained legal advice and notified the department about the marriage and she did not have an intention to mislead. The applicant submits that she was leaving Sudan after a lifetime of discrimination and persecution, had minimal formal education and no advice and in her circumstances, she did not have the ability to understand her legal obligations. The applicant notes that she attempted to rectify the non-compliance after receiving legal advice.  

27. The applicant told the Tribunal in oral evidence that the information she gave on the form was correct. After she was married, she did not know how to inform the Department. Her level of education was very low and she did not understand anything about her application, she could not even recall what she signed. There was nobody helping them during the interview when they were required to fill in and sign many papers and even though they had a friend helping with the form when the initial application was made, she was not given the information in the declaration and was not informed of her obligation.

28. The applicant told the Tribunal that after she arrived in Australia, she spoke to a teacher in her English class and was told that she had to inform Immigration about the changes in her circumstances. She then obtained legal advice and notified of the changes straight away. The applicant said that she made a mistake because her level of understanding and education was very low. She did not intend to lie or mislead Immigration.

29. The Tribunal is prepared to accept that the applicant may have had limited understanding of the content of the application form. However, The Tribunal is of the view that the applicant had the responsibility of familiarising herself with the application form information, and her obligations before signing the form. The Tribunal does not consider that claimed lack of knowledge or understanding, even based on limited education and language skills, justifies the non-compliance.

    The present circumstances of the visa holder

30. The applicant has been living in Australia since April 2014, for a period of approximately six and a half years. She provided evidence of her employment and the Tribunal accepts that the applicant has been gainfully employed and that she is settled in Australia. The applicant’s immediate family live in Australia.

31. In oral evidence the applicant told the Tribunal that before her visa was cancelled, she was hoping to study and help the community but since her visa was cancelled, she cannot study as her visa does not allow her to study. She had previously completed a Certificate III and was hoping to work and earn some money before continuing with her study but she can no longer do it.

32. The applicant states that she works as an assistant nurse in a hospital. The applicant said that she put her and her mother’s lives in danger to help the community and her aim was to help the community.

33. In her written evidence the applicant refers to her worsening mental state following the cancellation of her visa and her fear of being returned to her home country. The applicant told the Tribunal that she made a genuine mistake and that has affected her life.

34. The applicant states that all her siblings and her mother are now Australian citizens and her situation makes her upset. She cannot start a family and she does not know when she would be able to see her husband and start a family. The applicant said that her husband’s visa application is on hold and if her visa is reinstated, she would continue to sponsor him.

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

35. Nothing adverse is known about the applicant’s subsequent behaviour concerning her obligations under the Act.

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

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

    The time that has elapsed since the non-compliance

37. The applicant was immigration cleared in May 2014. Six and a half years passed since the non-compliance.

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

38. There are no known breaches of the law

    Any contribution made by the holder to the community.

39. In her evidence to the Tribunal the applicant refers to having completed study in Hospitality and Aged care and her employment as an assistant nurse with the Royal Melbourne Hospital. The applicant told the Tribunal that she works despite the Covid threat because she wants to help the community. The Tribunal acknowledges the applicant’s evidence that her work as an assistance nurse in Melbourne during Covid pandemic signifies her contribution to the community.

40. The applicant states that she cannot study to obtain a nursing qualification and due to the cancellation of her visa, has limited other visa options. The Tribunal accepts that evidence.

41. The applicant referred to her practice as a JW, stating that she attends sessions twice a week. The applicant referred to her community activities through the church, such as proselytising, cooking food for the community and other activities in the church. The Tribunal accepts the applicant’s evidence.

1. While these factors must be considered, they do not represent an exhaustive statement of the circumstances that might properly be considered to be relevant in any given case: MIAC v Khadgi (2010) 190 FCR 248. The Tribunal may also have regard to lawful government policy. The relevant policy is set out in the Department’s Procedural Advice Manual) PAM3 ‘General visa cancellation powers’, which refers to matters such as the consequences of cancelling the visa, international obligations and any other relevant matters.

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

2. If the applicant’s visa is cancelled, unless she is granted other visas, the applicant would be an unlawful non-citizen and may be detained. While the applicant refers to being stateless, there is no suggestion that she will be detained indefinitely. The Tribunal acknowledges that unless the applicant is granted another visa, she may be an unlawful non-citizen and subject to detention and possible removal from Australia. There may be restrictions on the applicant’s future travel and future visa applications as a consequence of the cancellation. The cancellation of the applicant’s visa would also affect the visa application made by her partner as the applicant may no longer be eligible to sponsor her partner if she is not a holder of a permanent visa. There are no provisions in the Act which prevent the applicant from making a valid visa application without the Minister’s intervention, although there will be limited opportunities for her to do so in Australia as a result of the cancellation. The applicant may be subject to an exclusion period in relation to future visa applications. The applicant may also lose some entitlements she may have acquired as an Australian permanent resident.

   Whether there would be consequential cancellations under s.140

3. There are no persons who would be affected by the consequential cancellation.

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

4. The applicant submits that she is a practising JW and would be subjected to persecution or discrimination in her home country. The applicant provided to the delegate a number of country reports, indicating that under a presidential degree of October 1994, those who practise JW religious have their Eritrean citizenship revoked. The applicant states that she cannot return to Eritrea where she could face persecution, and has no right to live in Sudan or any other country, so she may become stateless and subject to indefinite detention. The Tribunal accepts that on the face of it, the applicant’s claims may give rise to Australia’s protection obligations, although the Tribunal is mindful that the applicant may be eligible to seek protection in Australia.

5. The applicant states that she is close to her nieces and nephews and also her cousins. They spend much time in her household and she teaches them to be respectful. There is little independent before the Tribunal concerning the applicant’s relationship with these children, but the Tribunal accepts that the applicant may have a close relationship with them. The applicant has not established, in the Tribunal’s view, that the children’s best interests would be adversely affected by the cancellation of the applicant’s visa.

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

6. The applicant states that if her visa is cancelled, she will become stateless as her Eritrean citizenship had been cancelled due to her religious beliefs. In her evidence to the Tribunal the applicant referred to the discrimination and persecution she experienced in Eritrea, stating that the situation in the country has not improved for JWs. The applicant refers to the hardship she and her family are facing as a result of the cancellation, particularly due to her fear of harm if returned to her home country. The applicant presented to the Tribunal several letters in support of her claims.

7. The applicant submits that if she is required to make an application for a Protection visa, she would remain on a Bridging visa for a potentially long period, and that would affect her ability to work and study, sponsor and be reunited with her husband and the uncertainty of her future will affect her mental state.

8. The Tribunal has considered the totality of circumstances. The Tribunal has found, and it is not in dispute, that the applicant did not comply with s.104 of the Act because she did not inform the Department about the changes in her circumstances prior to being immigration cleared. The information about the applicant’s marriage was highly relevant to the decision to grant her the visa and the Tribunal places significant weight on the fact that the definition of being a ‘member of the family unit’ requires that the applicant was not engaged or married. That is, if the information was known, the applicant may not have been entitled to the visa which she was granted. The Tribunal has rejected the applicant’s argument that she could have been granted the visa by meeting the primary criteria because she had not made the application on that basis. The applicant was assessed against the secondary criteria and was granted the visa on the basis of meeting secondary criteria which she no longer met following the marriage. In the Tribunal’s view, that fact offers a very strong reason why the visa should be cancelled.

9. However, there are other factors that do not support the cancellation. The Tribunal accepts the applicant’s evidence that she was subjected to persecution before leaving her home country and there is a real possibility she would face harm or persecution if she was to return to Eritrea. She has no right to enter and reside in any other country. This circumstance provides a strong reason why the visa should not be cancelled.

10. The Tribunal places significant weight on the fact that there does not seem to be a basis for finding that the applicant intentionally or knowingly withheld the information or misled the Department. The Tribunal accepts the applicant’s evidence that the forms were completed with the help of another person and the applicant was not informed of her obligations. The Tribunal does not consider that in itself to be an extenuating circumstance because the Tribunal is of the view that a visa applicant has an obligation to familiarise herself with the content of the form before signing it. Nevertheless, the Tribunal accepts that the applicant was unaware of her obligations and, importantly, as soon as she became aware of the obligation to inform, she took the positive step of contacting the Department and advising of the changes in her circumstances. This was done two years before she sponsored her partner for the visa, so it cannot be said that she only did so to facilitate her partner’s visa application. The applicant’s actions indicate that she did her best to be truthful with the Department and in the Tribunal’s view, such conduct supports a finding that the visa should not be cancelled.

11. The Tribunal acknowledges that the applicant’s immediate family – her mother and siblings – are in Australia and are Australian citizens and the Tribunal accepts that the applicant has a close relationship with other family members. The Tribunal accepts that the applicant is well settled in Australia, having completed some study here and having stable employment. The applicant has contributed to the community through her employment and church activities. The Tribunal accepts that considerable hardship would be caused to the applicant and her family if her visa is cancelled. All these factors indicate that the visa should not be cancelled.

12. Overall, the Tribunal has formed the view that the factors against the cancellation outweigh those in favour of the cancellation.

13. 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. Having regard to all the relevant circumstances, as discussed above, the Tribunal concludes that the visa should not be cancelled.

    DECISION

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

    Kira Raif
    Senior Member