Kamara (Migration)

[2024] AATA 3100

Kamara (Migration) [2024] AATA 3100 (23 July 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Suffian Kamara

REPRESENTATIVE:  Mr Berthram Opara

CASE NUMBER:  2407085

HOME AFFAIRS REFERENCE:               BCC2022/1391602

MEMBER:Kira Raif

DATE:23 July 2024

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 101 (Child) visa.

Statement made on 23 July 2024 at 9:47am

CATCHWORDS
MIGRATION – cancellation – Child (Migrant) (Class AH) visa – Subclass 101 (Child) – ground for cancellation – failure to notify change in circumstances – marital status – consideration of discretion – grant of visa based on failure to notify the changes – deliberately withheld information – degree of hardship – decision under review affirmed

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

Migration Regulations 1994 (Cth), r 2.41; Schedule 2, cls 101.213, 101.221

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 Home Affairs to cancel the applicant’s Subclass 101 (Child) visa under s 109(1) of the Migration Act 1958 (Cth) (the Act).

2. The applicant is a national of Sierra Leone, born in November 1998. He was granted the Child visa in July 2018. In January 2024 the applicant was issued with the Notice of Intention to Consider Cancellation (NOICC) of his visa as it was considered that he may not have complied with s 104 of the Act. The NOICC was reissued in March 2024 due to an error. It is recorded in the primary decision record that the applicant did not respond to the NOICC and his visa was cancelled. The applicant seeks review of the delegate’s decision.

3. The applicant appeared before the Tribunal on 17 July 2024 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s mother Hawa Kamara and sister Fudia Kamara. The applicant was represented in relation to the review. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.

   Relevant law

4. 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.

5. 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.

6. 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?

7. 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 of the Act.

8. The applicant provided to the Tribunal a copy of the primary decision record. It indicates that he made an application for the Child visa on 23 March 2017. In that application, in response to Question 14, the applicant stated that he had never been married or in a de facto relationship. The delegate notes that cl 101.221 of the Migration Regulations 1994 (Cth) (the Regulations) required the applicant to continue, at the time of decision, to meet the requirements of cl 101.213 which, in turn, required that the applicant does not have, and has never had, a spouse or de facto partner and is not engaged to be married. The primary decision record indicates that the applicant was determined to have met the criteria for the grant of the visa and was granted the Child visa on 11 July 2018. He entered Australia on 31 July 2018.

9. It is stated that on 22 September 2021 the applicant sponsored his wife Isatu Bangura for a Partner visa and completed the relevant sponsorship form. Ms Bangura stated in that application that she and the applicant married on 9 July 2017 and that they had been in a de facto relationship since March 2016 and were engaged in January 2017. Ms Bangura included with her application a marriage certificate confirming that she and the applicant were married on 9 July 2017 at Masjid Hameed Mosque in Sierra Leone.

10. The delegate concluded that the applicant failed to inform Immigration about the changes in his circumstances and did not comply with s 104 of the Act.

11. In his oral evidence to the Tribunal the applicant stated that he and Ms Bangura were dating and had a relationship as boyfriend and girlfriend but they were not married until January 2020. The applicant states that when his wife made the application, she made a mistake on the application form. The applicant states that the marriage certificate also contains a mistake and the marriage certificate was given to his sister who prepared the application, so he was not aware of the mistake. The applicant submits that the wrong date was initially given by mistake and he now has a document to confirm that.

12. The applicant provided to the Tribunal, in the course of the hearing, an affidavit purportedly issued by Mr Sesay, identified as the National Chief Imam of Sierra Leone and Imam of Jama’atu Tawa Rahman Masjid Hamed. The affidavit states that the marriage took place in January 2020 and the earlier date was a mistake.

13. The Tribunal has decided to give no weight to that document for the following reasons:

    a.Firstly, the document appears to be a scanned copy or a photocopy. The Tribunal has not been presented with the original document. (The applicant told the Tribunal it was emailed to him.) The letterhead on that document does not appear to be consistent with the presentation of a genuine document. It has uneven lines and smudged writing. The Tribunal does not consider this to be a genuine document.

    b.Secondly, the writer fails to offer any explanation as to how the date on the original marriage document was mistakenly recorded. Notably, the mistake was in the date, month and year of the marriage and a significant one – a matter of years, rather than days. It is unclear to the Tribunal how it could have occurred and, in the absence of that explanation, the Tribunal considers the affidavit to be of limited probative value.

    c.Thirdly, and significantly, according to the primary decision-maker, both the applicant on the sponsorship form and his partner in her visa application form indicated that the marriage took place in 2017, consistently with the marriage certificate. The Tribunal does not consider it plausible that the applicant, his wife and the imam had all made that same mistake. The applicant offered a number of explanations for what he now claims was incorrect information on the application form and these are addressed below, but generally the Tribunal does not accept that a mistake was made on the application and sponsorship forms and considers it more likely that the consistent reference to the marriage in 2017 by the applicant, the sponsor and the imam reflect that the marriage took place at that time.

    d.Fourthly, and fatally to the applicant’s present claims in the Tribunal’s view, the formal marriage certificate was issued in 2019. The applicant states that his partner collected a document from the imam and took it to the local issuing authority which issued the marriage certificate on the basis of the letter from the imam. The applicant states that his wife had mistakenly given the incorrect date of the marriage when obtaining the marriage certificate. It is unclear to the Tribunal how the marriage certificate could have been issued in July 2019 if the marriage did take place in January 2020 as the applicant now claims, irrespective of the date in the imam’s letter. That is, even if the date on the imam’s letter was incorrectly recorded as 2017 instead of 2020, the imam’s letter was not in existence until the marriage in 2020 and could not have been used as a basis for issuing the marriage certificate in 2019. The applicant told the Tribunal that this was also a mistake but the Tribunal considers it implausible that the issuing authority would mistakenly record a date when the document was issued (in addition to all other mistakes to which the applicant refers, made by him, his wife, his sister and the imam).

    The applicant’s representative submits that the document was issued on the basis of a mistaken belief that the marriage had already taken place. The Tribunal does not accept that explanation because the applicant’s evidence is that after the marriage, his wife took the letter from the imam to another authority to obtain the marriage certificate. Thus, while the date of the marriage recorded in the marriage certificate may have been based on an incorrect belief that the marriage had already taken place, the date the document was issued could not have been recorded before the marriage took place and before the imam’s letter was issued.

14. With respect to the information recorded on the Partner visa application form, the applicant states that his wife was not very good in writing and comprehending, so his sister filled in the papers. The applicant states that he himself did not read the sponsorship form before signing it. The applicant’s sister Fudia Kamara told the Tribunal that her brother did not tell her or their mother about the marriage because the marriage was not culturally appropriate. Ms Kamara said that she helped with the papers for her sister-in-law’s visa application. She initially said that the information on the form was given by her brother, including the date of the marriage, and her brother then proofread the form. Ms Kamara then changed her evidence and said that she relied on documents when completing the form and that she had only asked her brother and sister-in-law some questions but not all the questions and her brother did not proofread the form.

15. The Tribunal has considerable concerns about this explanation. Notably, the sponsorship form (as noted in the primary decision record) refers to the date of engagement and the date the de facto relationship commenced. Ms Kamara said that she obtained these dates from her brother and his wife. The applicant claims that he never had a de facto relationship and had not been engaged. The Tribunal considers that the reference in the form to a de facto relationship and engagement is strong evidence that the applicant or his wife were involved in the completion of the form, contrary to the applicant’s evidence that neither of them had much involvement in or understanding of it.

16. The applicant’s representative submits that there are different stages to a relationship and they had mistakenly put the date when they got to know each other as the date of the marriage. The Tribunal does not accept that explanation, noting that the application form refers to the date of engagement and the date of the commencement of the de facto relationship, as well as the date of marriage. The couple clearly did not believe 2017 to be the date when they first met each other if the visa applicant believed they were in a de facto relationship since March 2016 and were engaged in January 2017.

17. The applicant’s mother Ms Hawa Kamara told the Tribunal that culturally it is not appropriate for the marriage to take place without the involvement of the family and her son would not have entered marriage before he came to Australia. The Tribunal does not accept that as evidence that the marriage did not take place in 2017 because there is no suggestion that there was any family involvement in – or even family knowledge about – the marriage in 2020. If the present claim is that the applicant married in 2020 without the knowledge and involvement of his family and contrary to cultural expectations, it is unclear why the same could not have occurred in 2017.

18. The Tribunal has had regard to the evidence of the applicant’s sister and mother, who both confirmed that the marriage took place in 2020 and not in 2017. However, the Tribunal did not consider their evidence to be convincing or persuasive. The sister’s oral evidence changed and does not explain the other dates that are noted on the application form such as dates of engagement and de facto relationship. The mother’s evidence is that the marriage took place after the applicant came to Australia (i.e. in 2020 and not in 2017) but also that the applicant did not tell her about his circumstances until recently. She may simply be unfamiliar with her son’s circumstances.

19. Ultimately, the Tribunal has found the “correction” document purportedly issued on 16 July 2024 to be unhelpful and, in all likelihood, not a genuine document (for the reasons set out above). The Tribunal gives greater weight to the fact that in her signed application the applicant’s partner stated that she married the applicant in 2017 (and the applicant’s evidence is that they had a child born in September 2018), the sponsor stated on the signed sponsorship form that he married in 2017 and the application for the Partner visa was accompanied by the marriage certificate which was issued in 2019 and refers to the marriage in 2017. In the Tribunal’s view, the totality of evidence offers a strong indication that the applicant and his partner married in 2017 and not in 2020 as is now claimed. The Tribunal finds that the marriage did take place in July 2017.

20. The Tribunal finds that when making the application for the Child visa, the applicant claimed that he was never married. The Tribunal finds that this answer became incorrect once the applicant married his partner in July 2017 and his circumstances changed. There is no evidence that the applicant had informed Immigration about the changes in his circumstances. The Tribunal finds that the applicant did not comply with s 104 of the Act.

21. For these reasons, the Tribunal finds that there was non-compliance with s 104 by the applicant in the way described in the s 107 notice.

    Should the visa be cancelled?

22. 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).

23. 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. They are:

    The correct information

24. The correct information is that the applicant was married after he made the application for the Child visa and before the visa was granted, so that the applicant’s circumstances changed in a way that an answer on the application form became incorrect.

25. The applicant repeatedly told the Tribunal that the marriage certificate has a mistake and that he married in 2020 and not earlier. For the reasons set out above, the Tribunal does not accept that evidence.

    The content of the genuine document (if any)

26. This is not relevant in the present 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

27. Clause 101.213 relevantly required the applicant not to be in a married or in a de facto relationship and not to be engaged. The applicant was required to continue to meet that requirement at the time of decision: cl 101.221.

28. The applicant told the Tribunal that he married in 2020 and he did not get married in 2017. The Tribunal prefers the evidence in the marriage certificate and the Partner visa application and finds that the applicant married Ms Bangura in July 2017. If the information about the applicant’s marriage was known to the decision-maker, it is likely that it would have affected the consideration of the applicant’s ability to continue to meet cl 101.213 at the time the decision on his Child visa was made. That is, there is a likelihood that the applicant may not have been able to meet the requirements of cl 101.221.

29. The Tribunal finds that the decision to grant the visa was based, partly but to a significant extent, on the applicant’s failure to notify the changes in his circumstances.

    The circumstances in which the non-compliance occurred

30. The applicant states that he did not get married in 2017. He states that his sister filled in the papers for the Partner visa application, including the sponsorship form, and he was not aware of its content before signing the form. The applicant claims that his wife was not familiar with the process either and his sister helped her with the application papers. The applicant states that the marriage certificate has an incorrect date recorded.

31. For the reasons set out above, the Tribunal does not accept the applicant’s explanations. The Tribunal has formed the view that the marriage did take place in 2017. The Tribunal is also of the view that the applicant and his wife had a greater involvement in the completion of the Partner visa application, noting not only that they both signed the forms but also that the forms contain information that the applicant’s sister would not have known on her own (including the reference to the de facto and engagement dates). The Tribunal does not accept the explanation that both the applicant and his wife failed to notice what they claim to be an incorrect reference to the marriage in 2017 on the application and sponsorship forms and that they both failed to notice that the marriage certificate had an incorrect marriage date when the Partner visa application was submitted. The Tribunal does not accept that in addition to those mistakes, the imam made a mistake when referring to 2017 as the date of marriage and the issuing authority made a mistake by stating the marriage certificate was issued in 2019, before the marriage is now claimed to have taken place.

32. The Tribunal is of the view that the applicant had deliberately withheld information about the marriage so as not to jeopardise the grant of his Child visa.

    The present circumstances of the visa holder

33. The applicant told the Tribunal that he has been working as a carer/support worker for the past three years and he also drives for Uber. The applicant presented no documentary evidence concerning his employment.

34. The applicant states that he supports his mother by paying rent and driving her to appointments. He states that he has eight siblings in Australia, mostly living in Sydney, and his sister lives in the same household. The applicant and his mother claim that the other siblings are unwilling to help. There is no supporting evidence before the Tribunal to indicate that the applicant does provide support to his mother (either financial support or other support, such as statements from health professionals).

35. The applicant states that he is the youngest child and his mother needs him. The Tribunal is prepared to accept that this may be the case but the Tribunal is of the view that emotional support can continue irrespective of the applicant’s visa status and country of residence.

36. The applicant states that he has been living in Australia for about six years and has been law-abiding during that period. The applicant suggested that he supports members of the community but he presented no evidence to support this claim and withdrew that claim.

1. The applicant states that his wife’s Partner visa was withdrawn as there was a mistake in the application and because his visa was cancelled and he plans to sponsor her again in the future.

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

2. The Tribunal has formed the view, for the reasons set out above, that the affidavit purportedly issued on 16 July 2024 is not a genuine document. The applicant repeatedly told the Tribunal that all the references to a 2017 marriage were mistakes. The Tribunal has rejected these claims and has formed the view that the applicant continued to provide untruthful information in his evidence to the Tribunal.

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

3. There are no other known instances of non-compliance and the applicant submits that he has been a law-abiding citizen.

   The time that has elapsed since the non-compliance

4. The marriage took place in July 2017 and that is when the applicant’s circumstances changed, giving rise to the obligation to inform under s 104 of the Act. Approximately seven years have passed since the non-compliance and that is a significant period.

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

5. There are no known breaches of the law.

   Any contribution made by the holder to the community

6. The applicant claims that he contributes through his employment and the payment of taxes. The Tribunal is prepared to accept that evidence.

7. 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 Procedures 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 would be consequential cancellations under s 140

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

   If there are children whose interests would be affected by cancellation, or consequential cancellation, decision-makers should consider the best interests of those children as a primary consideration when deciding whether to cancel the visa

9. The applicant told the Tribunal that he has a daughter from his relationship with his wife, who was born in September 2018. The applicant states that the child was included in his wife’s Partner visa application. The applicant states that he wants his daughter to come to Australia where she would have better opportunities.

10. The Tribunal accepts that if the applicant cannot remain in Australia as a holder of a permanent visa, he would not be able to sponsor his wife and child and the child may not be able to migrate to Australia. Conversely, if the applicant cannot remain in Australia, he may return to his home country where he will be able to spend time with, and support, his child.

11. The Tribunal is mindful that the child has never lived in Australia and has never held an Australian visa or a permission to live in Australia. There is very little evidence before the Tribunal in relation to that child and her circumstances to be satisfied that the child’s best interests would be best served if she lives in Australia. On the limited evidence before it, the Tribunal does not accept that is necessarily the case.

12. The Tribunal does not consider that the best interests of the applicant’s daughter would be adversely affected by the cancellation of his visa.

    Whether the cancellation would lead to the person’s removal in breach of Australia’s non-refoulement or family unity obligations

13. The applicant is not the subject of a protection finding.

14. The applicant told the Tribunal that his home country is not safe or stable and there are ‘a lot of things going on there’. The applicant refers to strikes and political fights. The applicant states that the country is not stable, particularly in the city areas, where he comes from. The applicant states that if others know that he has been living overseas, he may be targeted. The representative refers to generalised ethnic cleansing, tribal issues and compulsory military conscription.

15. The Tribunal found the applicant’s claims to be generalised and vague and unsupported by any probative evidence. The applicant’s evidence seems to be entirely speculative. On the limited evidence before it, the Tribunal does not accept there is a real chance or a real risk of the applicant being harmed upon return to his home country. The Tribunal also notes that the applicant is eligible to make an application for a protection visa if he genuinely believes he cannot return to his home country. In these circumstances, the Tribunal is of the view that Australia’s non-refoulement obligations would not be breached by the cancellation of the visa.

16. The Tribunal accepts that the applicant’s mother and siblings reside in Australia, while his partner and child live overseas. The Tribunal does not consider that the family unity obligations would be breached by the cancellation.

    Whether there are mandatory legal consequences, such as whether the person would become unlawful and liable to detention and removal, whether detention is a likely consequence of the cancellation decision and if so, for how long, and whether there are provisions in the Act which prevent the person from making a valid application for any visa without the Minister personally intervening

17. If the applicant’s visa is cancelled, and if he does not have another visa, the applicant would be an unlawful non-citizen and would be subject to detention and removal from Australia. The cancellation of the visa will also result in the application of s 48, limiting the applicant’s options of applying for another visa onshore and the application of an exclusion period in relation to offshore applications. If the applicant’s visa is cancelled, he will not be able to act as a sponsor in relation to the application made by his partner. (The applicant told the Tribunal the application has been withdrawn but he intends to sponsor her again.) He will also lose the entitlements he may have acquired as a permanent resident of Australia.

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

18. The applicant refers to the turmoil in his home country. He states that he has no family overseas and has nowhere to go. He states that the situation in his home country is not safe. The applicant states that his friends used to laugh at him as he does not have a father and if he is to return to his home country, that would continue.

19. The applicant presented no evidence to support these claims, however, the Tribunal accepts that the applicant has been living in Australia for a number of years and is settled here. The Tribunal is prepared to accept that the applicant may have limited or no support in his home country. The Tribunal accepts that there may be significant hardship to the applicant if he is required to leave Australia as a result of the cancellation of his visa.

20. The applicant states that he looks after his mother, who is unwell, and she will lose that support if he cannot remain in Australia. The applicant’s mother also gave oral evidence to the Tribunal and stated that although all her children live in Australia, it is only the applicant and his sister who are close to her and support her while others do not ‘come close’. The applicant also refers to the financial support he provides to his mother through the payment of rent as his mother is unemployed. No evidence has been provided to support these claims. There is no medical evidence before the Tribunal concerning the applicant’s mother and no evidence concerning her needs and how these are being met. The applicant failed to provide evidence as to whether any of his siblings residing in Australia would be able to provide such support, even if they do not do so now. In these circumstances, and on the very limited evidence before it, the Tribunal does not accept that significant hardship would be caused to the applicant’s mother by the cancellation of his visa.

21. The applicant refers to his surgery to remove tonsils and states that he sometimes needs to see the doctor to monitor it in case his tonsils grow back. The applicant’s evidence appears to be that he might need medical oversight in the future (he does not suggest he has a chronic illness) and he might not be able to find a doctor in his home country. The representative submits that the applicant will need money to get medical attention. He presented no evidence to support these claims and, in particular, there is no evidence that the applicant requires ongoing treatment and medical support and that such support will not be available to him in the future. The Tribunal does not accept these matters will give rise to any hardship.

22. Ms Fudia Kamara states that in the past, her brother was always humiliated and it would be hard to re-establish himself and return home. As noted above, the Tribunal is prepared to accept that hardship would be caused to the applicant and his family if he was to leave Australia.

23. The Tribunal has considered the totality of the applicant’s circumstances. The Tribunal has formed the view that the applicant had not complied with s 104 and that there are grounds for cancelling his visa.

24. The Tribunal finds that the cancellation would not result in the breach of Australia’s international obligations and not be contrary to the best interests of his child. The Tribunal accepts that the applicant has been living in Australia for a period of six years and that he is settled here and, importantly, that he has extensive family ties to this country, in addition to employment ties. The Tribunal accepts that the applicant supports his mother, who relies on him in several respects, and that he may not have significant support and other opportunities available to him in his home country. The Tribunal accepts that hardship may be caused to the applicant and his family if the visa is cancelled and if he is to leave Australia as a result. These factors weigh against the cancellation.

25. In the circumstances of this case, the Tribunal has decided to give greater weight to other considerations. In particular, the Tribunal gives weight to the fact that the decision to grant the visa was based on the applicant’s failure to notify of the changes in his circumstances. It is significant, in the Tribunal’s view, that the applicant would not have been entitled to the visa if it was known that he was married before the visa grant. In the Tribunal’s view, that weighs very heavily in favour of the cancellation and outweighs other factors. The Tribunal also gives some weight to the fact that the applicant continued to provide incorrect information in his dealings with the Tribunal. That also weighs in favour of the cancellation.

26. The Tribunal has decided to give the factors that weigh in favour of the cancellation the greatest weight. 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

27. The Tribunal affirms the decision to cancel the applicant’s Subclass 101 (Child) visa.

    Kira Raif
    Senior Member