Hailu (Migration)

[2019] AATA 6773

Hailu (Migration) [2019] AATA 6773 (4 October 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Yordanos Haleform Hailu

CASE NUMBER:  1834619

DIBP REFERENCE(S):  BCC2017/2128872

MEMBER:Kira Raif

DATE:4 October 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 117 (Orphan Relative) visa.

Statement made on 04 October 2019 at 7:24am

CATCHWORDS
MIGRATION – cancellation – Child (Migrant) (Class AH) visa – Subclass 117 (Orphan relative) – ground for cancellation – failure to notify change in circumstances – marital status – information in subsequent Partner visa application – formal engagement and marriage – decision under review set aside

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

CASES
Briginshaw v Briginshaw (1938) 60 CLR 336
Zhao v MIMA [2000] FCA 1235

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 117 (Orphan Relative) visa under s.109(1) of the Migration Act 1958 (the Act).

2. The applicant is a national of Ethiopia, born in August 1992. She was granted the Orphan Relative visa in May 2013. On 30 May 2018 the applicant was issued with the Notice of Intention to Consider Cancellation (NOICC) because the delegate formed the view that the applicant did not comply with s. 104 of the Act. The applicant provided a written response to the NOICC and her visa was cancelled on 22 November 2018. The applicant seeks review of the delegate’s decision.

3. The applicant provided a large volume of documents to the Tribunal, as well as her submission outlining claims and arguments, on 1 and 2 October 2019. As the hearing in this case was scheduled for the morning of 3 October 2019, the Tribunal considers such late provision of evidence less than helpful. No explanation is offered by the applicant’s representative for his failure to comply with paragraph 5.1 of the AAT Practice Directions on Migration and Refugee Matters. The applicant was represented by Mr Emete Joesika of Global Movement Migration Consultants.

4. The applicant appeared before the Tribunal on 3 October 2019 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Hartley of the Salvation Army and Ms Abera, the applicant’s aunt. The Tribunal hearing was conducted with the assistance of an interpreter in the Amharic (Ethiopian) and English languages. The applicant was represented in relation to the review by her registered migration agent. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

   Relevant law

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. In the present matter, the Tribunal is satisfied that the delegate had reached the necessary state of mind to engage s.107 and that the notice issued under s.107 complied with the statutory requirements.

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

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. 104.

10. The applicant provided to the Tribunal a copy of the primary decision record which contains the following information.

    a.    On 25 June 2009 the applicant made the application for an Orphan Relative (Subclass 117) visa. She was sponsored in that application by her aunt Ms Abera.

    b.    In response to Question 14 of the Application Form 47CH the applicant stated that she was ‘never married’.

    c.     The applicant was granted the Orphan Relative visa on 24 May 2013 and she arrived in Australia on 15 June 2013.

    d.    On 23 March 2016 Mr Kibrom Kinfu Tsegay made an application for a Partner visa, sponsored by the applicant. Mr Tsegay included in his application the Sponsorship Form 40SP completed by the applicant. Question 24 of form 40SP asked when the sponsor and the visa applicant committed to a shared life together to the exclusion of all others. The answer was 5 May 2012.

11. In her written response to the NOICC the applicant stated that she did not conceal anything and did not intentionally mislead the Department to gain her visa. The applicant stated that she made an honest mistake due to misunderstanding and cultural differences. The applicant stated that she was not engaged to her husband prior to her arrival in Australia and he was her boyfriend. They did not live under one roof before marrying. The applicant states that on 5 May 2012 she visited Mr Tsegay’s house for a religious festival and he asked her to marry him and she agreed, which was like fun. This was not done in a traditional way which required the bridegroom parents and elders seeking consent of the bride’s parents. The applicant states that in the absence of the traditional process, she did not consider that she was engaged to be married and that is why she answered ‘never married’ in her application form. The applicant states that her husband suggested to write 5 May 2012 as the date they committed to a shared life. The applicant also provided a written statement to the Tribunal of 25 November 2011.

12. The delegate notes in the decision record, however, that the applicant claimed that her parents had passed away or were of unknown whereabouts, so the traditional engagement could not have been performed. The delegate noted the applicant’s evidence that she has been in a relationship with Mr Tsegay for two years by the time of the proposal and concluded that by the time the proposal was accepted, the parties committed to a shared life together to the exclusion of all others. The delegate also noted that in her response to the NOICC the applicant stated that she and Mr Tsegay discussed marriage in detail in July 2015 before providing information on form 40SP. The delegate found that the applicant’s relationship status changed on 5 May 2012 when she was engaged and she failed to inform the Department about changes in her circumstances.

13. The applicant provided a written submission to the Tribunal on 24 September 2019. The applicant provided to the Tribunal evidence of the birth of her Australian citizen child in November 2018. There is evidence of marriage from the church and government agency in Ethiopia and several photographs.

14. In his submission to the Tribunal dated 30 September 2019 the applicant’s representative addressed the meaning of the term ‘committed to a shared life together to the exclusion of all others’. The representative states that when the applicant left Ethiopia to migrate to Australia, she was not committed to a life with her husband, the couple did not live together before September 2015 and did not have children together. The representative also submits that 5 May 2012 was not an engagement date, there was no proper proposal and no proper consent to marry. The ‘correct and proper’ engagement took place in September 2015. The representative submits that the proper engagement was a religious procedure conducted by the priest as both parties are deeply religious and got married in accordance with the rules of their church. The representative submits that if the date of the marriage is considered as the date of the religious marriage, then the date of engagement should also be considered in accordance with the religious procedures and that took place a few days before the wedding. The representative submits that two weeks before the marriage, there was another religious procedure whereby the parties’ parents agreed to the marriage in the presence of the priest and the engagement took place at that time. The representative rejected the delegate’s argument that visa applicant could not get engaged if her parents had died or were missing, stating that another relative participated in the ceremonies. The representative submits that in May 2012 the couple did not live together, did not share their finances and did not enter into a de facto relationship. There was no engagement and no changes to the applicant’s circumstances.

15. With respect to the information provided on the form by Kibrom, being 5 May 2012 as the date of a committed relationship, the representative submits that the parties are not highly educated and did not engage a representative to assist with the Partner visa application and had misunderstood the meaning of the question.

16. The applicant provided a number of documents in support of her claims, as well as evidence relating to her present circumstances. The applicant included a letter from the priest, explaining the engagement and marriage ceremonies, a statement from a friend who was present in May 2012 and other evidence concerning the marriage and the engagement.

17. In oral evidence, Mr Hartley told the Tribunal that he was aware that the engagement took place around September 2015 and that is when the families got together and made arrangements. Mr Hartley stated that he participated in the celebration activities in Melbourne, so he is familiar with what was going on. He suggested there was a misunderstanding with the Department. He states that for Ethiopians, dates are meaningless and often change.

18. The review applicant told the Tribunal that the engagement took place in 2015 and there was nothing between her and her husband before that date. The applicant said her husband made a mistake when completion the form as they did not have professional advice. The applicant said that in 2012 there was a social function when her husband asked whether she would marry him and she agreed as a joke but there was nothing between them and the next day they returned to their normal lives.

19. The applicant told the Tribunal that her husband filled in the forms by himself and she did not help with the paperwork. His English was not good and he asked her questions but she was working two jobs and did not have time to help him.

20. The applicant states that after coming to Australia, she had contact with her husband but only as friends. Before April 2015 their conversations were only as friends. When she returned to Ethiopia around July 2015, they had a conversation about getting married, as they grew up together and went to Sunday school together. The review applicant said her husband proposed after she entered Ethiopia, not while she was in Australia.

21. The applicant explained how the engagement was arranged, noting that the two families got together and gave their approval. She said that all the arrangements were made after she left Australia. The review applicant said that since coming to Australia in 2013, she only travelled to Ethiopia twice, in 2015 to get married and in 2018 when their child was conceived.  

22. There is ample evidence before the Tribunal about the applicant’s relationship with her husband. The marriage certificate shows that the couple married in 2015. There is no evidence that that in May 2012 or prior to 2015 the couple had established a joint household or shared their finances. There is no evidence that they had represented themselves to others as being in a marital or de facto relationship. There is insufficient evidence to establish that they formed a commitment to the relationship before 2015. The Tribunal does not consider that the parties either married or formed a de facto relationship before the review applicant’s entry to Australia and before she was immigration cleared.

23. The Tribunal also considered whether the review applicant had engaged before being immigration cleared, noting that the questions on the application form distinguished between marital, de facto relationships and an engagement. There is evidence before the Tribunal that the formal engagement took place a few weeks before the marriage. There is no evidence that there was another ceremony or any other form of engagement prior to 2015. The only evidence of the commitment, which formed the basis of the delegate’s decision, is the information in the husband’s Partner visa application. It is possible, in the Tribunal’s view, that such information was incorrect due to a misunderstanding or because the parties wanted to exaggerate the duration of their relationship for the purpose of the Partner visa application.

24. The Tribunal is mindful that despite noting 2012 as the date their relationship formed, it was not until mid-2015 that the formal engagement and marriage took place. The visa application was not made until 2016. In the Tribunal’s view, such delay is consistent with the parties’ claim that the engagement did not take place until 2015. There was nothing preventing an earlier marriage and an earlier visa application by the applicant’s husband if the relationship did commence in 2012. The Tribunal also notes that the review applicant did not return to Ethiopia between her entry to Australia in 2013 and 2015 when the marriage and formal engagement took place. That may also support the claim that there was no committed relationship between the parties at the time she left Ethiopia.

25. Overall, the Tribunal has formed the view that there is insufficient evidence to make a positive finding that the applicant married or formed a de facto relationship or engaged with her husband before she was immigration cleared. In light of the presented evidence, the Tribunal does not consider that the information on the husband’s application form is on its own sufficient to override other evidence submitted by the applicant, including evidence from religious and community members, statements from the priest and other materials.

26. In Zhao v MIMA [2000] FCA 1235 the Court stated at [25] and [32].

    The decision-maker, acting under s 116, must be satisfied of one or other of the matters set out in that section before the visa can be cancelled. That state of satisfaction is a real state of satisfaction which must be reached on a consideration of the available material. A visa cannot be cancelled simply because the visa holder has failed to show cause why it should not. … A visa cannot be cancelled because the decision-maker has identified a possible ground of cancellation which the visa holder has not been able to rebut.

27. While that case was concerned with cancellation under s.119, the Court’s comments would be equally applicable to s.109. Furthermore, although the principles enunciated in Briginshaw v Briginshaw (1938) 60 CLR 336 have no direct application in the context of administrative decision making, in the context of s.109, particularly where questions of fraud are involved, in deciding whether the ground for cancellation is made out it may be appropriate to bear in mind the nature of the allegations and the gravity of the consequences.

28. The Tribunal has formed the view that the information in the husband’s Partner application, which is not supported by any other evidence and not consistent with other presented evidence, is not sufficient and is not of sufficiently detailed and probative nature as to lead to a positive satisfaction that the applicant had breached 104 of the Act. In particular, the Tribunal is not satisfied that the applicant and her husband engaged, formed a de facto relationship or married before the applicant was immigration cleared in June 2013. Should further information become available, the cancellation of the visa held by the applicant may be considered anew.

29. For these reasons, the Tribunal finds that there was no non-compliance by the applicant in the way described in the s.107 notice. It follows that the discretionary power to cancel the applicant’s visa does not arise.

    Conclusion

30. As the Tribunal is not satisfied that there was non-compliance by the applicant in the way described in the notice given under s.107 of the Act, it follows that the discretionary power to cancel the applicant’s visa does not arise.

    DECISION

31. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 117 (Orphan Relative) visa.

    Kira Raif
    Senior Member