Karami (Migration)

[2020] AATA 5974

Karami (Migration) [2020] AATA 5974 (23 October 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Gul Bakht Karami

CASE NUMBER:  1711704

DIBP REFERENCE(S):  BCC2016/2629618 CLF2001/16888

MEMBER:Nicholas McGowan

DATE:23 October 2020

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 117 (Orphan Relative) visa.

Statement made 23 October 2020 at 12:20pm

CATCHWORDS
MIGRATION– cancellation – Subclass AH (Orphan Relative) visa – Subclass 117–incorrect answer provided – visa holder was not under the age of 18 years at the time of application– decision under review affirmed

LEGISLATION
Migration Act 1958, ss 101, 109, 365, 366
Migration Regulations 1994, r 1.14, Schedule 2, cl 117.211

CASES
MIAC v Khadgi (2010) 190 FCR 248

WRITTEN STATEMENT OF DECISION AND REASONS

REVIEW

1. On 29 May 2017 a delegate for the Minister for Immigration made a decision to cancel under section 109 of the Migration Act 1958 a Subclass AH-117 Orphan Relative visa.

2. The visa was issued on 27 September 2010. The visa’s expiry date was 27 September 2015. The period of stay for this class of visa was indefinite.

3. The visa holder is an Afghan citizen, whose birth was declared as 1 January 1997. Her corresponding age (at ‘time of application’) 12 years 6 months and 6 days old. Her name is Gul Bakht Karami.

4. The visa holder was notified of the Minister’s intention to cancel her Subclass AH-117 visa on 21 March 2017. The visa holder responded to notice of intention to cancel on 30 March 2017.

5. The Minister was of the view the visa holder had not complied with a section of subdivision C of the Act which requires: ‘visa application to be correct’; 101. A non-citizen must fill in her or her visa application form in a such way that (b) no incorrect answers are given.

   Review hearing

6. The visa holder appeared before the Tribunal on 29 September 2020 to give evidence and present arguments. As the visa holder is under the legal guardianship of her brother, Jawad Karami, the Tribunal recognised him as her legal guardian. Accordingly, there is no impediment to the Tribunal taking all evidence from the visa holder’s brother (on her behalf. A copy of the Guardianship Order has been provided to this Tribunal and will be shared with the Minister (Secretary of the Department), as part of this Decision record.

7. The Tribunal also received oral evidence from the visa holder’s sister-in-law. The visa holder’s representative was asked whether the visa holder wished to make any statement, provide any oral evidence or argument. Citing her mental capacity, and relevant medical records provided to the Tribunal, the visa holder’s representative declined the opportunity for the Tribunal to take any oral evidence from the visa holder, other than that provided by her brother, as her legal guardian. The Tribunal made plain any statement/submission provided by the visa holder, would be considered.

8. The Tribunal hearing was conducted with the assistance of an interpreter in the Hazaragi and English languages.

9. In the Tribunal’s written invitation to the visa holder to attend a hearing, the Tribunal explained to the visa holder that the Tribunal had considered all the material before it relating to the cancellation but was unable to make favourable decision on that information alone.

10. Because of the SARS-CoV-2 pandemic, the Tribunal conducted the hearing via telephone. The Migration Act 1958 gives the Tribunal the authority to conduct matters in this way: Section 366(1). Though this was not the preferred method for the visa holder (who sought a hearing ‘attendance’ at the Tribunal premises), the Tribunal proceeded with the review in this way, having considered all the circumstances and determining it was appropriate..

11. Further to the above, and importantly, as the visa holder’s guardian is now representing the visa holder, there is no disadvantage to the visa holder from proceeding with her Guardian as scheduled and via teleconference. In addition, the Tribunal invited the visa holder and her representative to make any submission, or provide any further evidence, post-hearing, thereby allowing the visa holder further opportunity to present any evidence or arguments in her matter for the Tribunal’s consideration.

12. Consistent with section 365(3) of the Migration Act 1958 the Tribunal conducted the hearing without opening it to the public as it is satisfied that during the SARS-CoV-2 pandemic it is impracticable to take oral evidence in public.

13. The visa holder was represented in relation to the review by her lawyer who is also a registered migration agent.

    CONSIDERATION OF CLAIMS AND EVIDENCE

14. 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.

15. 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.

16. 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. In coming to this finding the Tribunal considered the submission of the visa holder via her representative, and the relevant Court determinations.

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

17. 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 holder’s visa should be cancelled.

    Consideration of claimed non-compliance

18. On 7 July 2009 the visa holder lodged the application for a Subclass AH-117 visa. As part of that application, a relevant question in the Form 47CH asks for the visa holder’s date of birth. The answer provided to the question by the visa holder was 1 January 1997. Accordingly, the visa holder was declaring she was 12 years old at that time, and therefore eligible (in respect of her age) to apply for a child orphan relative Subclass AH-117 visa (which requires an applicant to be aged under 18 years: regulation 1.14(a)(i)).

19. Prior to the lodgement of the visa holder’s Subclass AH-117 visa, the visa holder had been listed as a non-migrating family member in other family members’ applications. In these applications the applicants declared a different birth date (for the visa holder) which meant she was identified as being aged over 18 years, relevantly, at the time of her Subclass AH-117 application (lodged on 7 July 2009).

20. Specifically, the visa holder’s brother (Jawad Karami) arrived in Australia as an illegal maritime arrival on 8 March 2001. In completing a written response to part of a questionnaire (which he completed prior to being formally interviewed on 21 March 2001), Jawad Karami declared the names and ages of any siblings, in which he included the visa holder, who he named and stated was 11 years old. On 23 March 2001, Jawad Karami declared the visa holder’s date of birth as 1990 in his formal application for a Protection visa (Part B of Form 866). Jawad Karami was subsequently granted a temporary protection visa. On 21 May 2001, Jawad Karami applied for a permanent protection visa, again he declared his sister (the visa holder) as being born in the year 1990. Extrapolating, this meant his sister was 18 years and six months and seven days (on the day she lodged her Subclass AH-117 visa application - and which is based on the favourable assumption she was born on the latest possible day of 1990, i.e. December 31, 1990. This affords the visa holder the minimum age possible - had she been born in 1990 – and, as her brother consistently declared in his protection applications (temporary and permanent).

21. On 10 January 2005 the visa holder’s father, Ghulam Karami lodged an offshore protection visa application, in which he listed his daughter, the visa holder, as born 1 January 1990. As part of this application, the visa holder’s brother, Jawad Karami was the prosper, and in his completed Form 681 – Refugee and special humanitarian visa proposal, he listed the visa holder (his sister’s) date of birth as 1 January 1990. Were the Minister to accept the declared date of birth as 1 January 1990, the visa holder would have been aged 19 years and 6 months and 6 days at the time of application for her Subclass AH-117 visa, and not the claimed 11 years: DOB 1 January 1997 as stated in her Subclass AH-117 visa application.

22. The visa holder has disputed that there was non-compliance in the way outlined by the Minister’s delegate.

23. Section 108 of the Act provides (broadly) that the Minister consider any written response by the visa holder and decide whether there was non-compliance by the visa holder in the way described in the notice.

24. The visa holder has submitted that her brother was “confused” about the ages of his siblings, including because Afghans do not use calendars. The visa holder also argued her brother’s difficult journey to Australia affected his ability to give exact ages of his siblings. To this point, it is argued that the visa holder’s brother completed the subsequent visa application for his father (as they sought to provide consistent information), and therefore the same error in the siblings ages were repeated. The visa holder’s brother has also obtained (after the death of their father) documents which support the visa holder’s claimed date of birth as 1 January 1990 including a birth record document known as a ‘Tazkira’, and an Afghan passport, both which were issued in 2010 and state the visa holder is born in 1997 as she claims. In addition, the visa holder attended an Australian hospital and as part of her treatment undertook an x-ray of her wrist and hand (though the visa holder through her representative has told the Tribunal they do not seek to rely on that evidence as accurate evidence of a person’s age based on their own medical advice, as provided to this Tribunal). Nonetheless, according to the treating doctor, he estimates the visa holder’s age at an estimated 13.5 to 14 years at that time.

    Assessment

25. The visa holder was granted the visa on the basis she satisfied the criteria that she was under 18 years old at the ‘time of application’. However, the consistent historic evidence from her own brother, on three occasions (as discussed above), and the evidence from her own father (on one occasion), is that the visa holder was born in the year 1990, and specifically (and on no fewer than two occasions ) on 1 January 1990, and not “1 January 1997” as claimed by her. The visa holder’s father’s application was refused, and he later passed-away. The Tribunal concludes that after two members of her family have repeatedly declared her year of birth - on four occasions over four years (and never once amended any claimed ‘error’ in respect to any of these forms or declarations until this review) strongly suggests to the Tribunal the visa holder was born, as claimed by them, on 1 January 1990.

26. The Tribunal has had regard to the responses of the visa holder, including the submissions made ‘pre’ and post-hearing. The Tribunal does not accept the error was inadvertent as claimed. It has come to this finding because at no point did the visa holder’s brother amend or correct any error in any application (until this review, by means of an email to the Departmental case officer, and two Form 1023s, lodged 22 September 2020), and because it is apparent that the brother of the visa holder was able to provide significant information, unaffected by his claimed difficult journey to Australia, or because of his claimed non-familiarity with a calendar (as an Afghan who does not use one or the Gregorian calendar – though the Tribunal notes the visa holder’s representative now submits a calendar confusion was not the reason for the incorrect date, rather the visa holder’s brother’s lack of knowledge of his sister’s age). To accept the brother’s claims, the Tribunal would need to accept that the visa holder’s brother made an error in the magnitude where he mistook a 12-year-old for a five-year-old. In the view of the Tribunal, this is implausible in the circumstances presented by the visa holder and her sponsor (the visa holder’s brother and Guardian).

27. In respect to the visa holder’s brother’s claim he completed the visa application forms for his father (who is also the visa holder’s father) the Tribunal notes the application was completed (as declared) by a registered migration agent, Daniel Moya. It is reasonable to assume the migration agent, who has a duty to discharge, made appropriate enquiry with both the father and the visa holder’s brother throughout the application process including ultimately the correctness of the application prior to lodgement. In addition, further to the above, at no point were any amendments made (until this review).

28. In respect to the ‘Tazkira’ and Afghan national passport, no weight has been given to these documents insofar as their reliability as evidence of the visa holder’s date of birth. The Tribunal comes to this finding because during the hearing into the review, the visa holder’s brother gave frank and categoric oral evidence in their regard. He told the Tribunal a “uncle” of his (and the visa holder) had helped the visa holder obtain the Tazkira and passport. He told the Tribunal they were obtained separately, from what he understood, and that one document may not have relied on the other for its later issuance. He told the Tribunal he was not sure whether the Tazkira was obtained before, or after the passport. He told the Tribunal that when his “uncle” had accompanied the visa holder and obtained the Tazkira, the basis for the date of birth in the visa holder’s Tazkira, was the assessment of the officer issuing the Tazkira based on her appearance alone. The visa holder’s brother made it plain that to this day he did not actually know what his sister’s date of birth was/is, except to accept it as stated in her Tazkira as declared by the issuing officer based on that Officer’s estimate.

    Finding

29. Given the above, it follows that the visa holder has not complied with Section 101(b) of the Migration Act in relation to the declaration of her birth date as provided in her Application for a Child (Orphan Relative) Subclass AH-117 visa lodged 7 July 2009.

30. As the definition of an orphan relative excludes applicants who are not under 18 at the ‘time of application’ the Tribunal finds the visa holder provided an incorrect answer to the relevant question in which she was asked to provide her birth date; and she answered the year of her birth as “1997”, and not “1990”.

31. For the reasons given above, the Tribunal finds that there was non-compliance with Section 101(b) by the visa holder in the way described in the Section 107 notice.

    Should the visa be cancelled?

32. 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).

33. 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

    ·     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.

34. Consideration of prescribed circumstances as set out in r.2.41 of the Regulations:

    The correct information

    The visa holder claimed to be under 18 years old when she applied for the Subclass AH-117 visa. The oral evidence from the visa holder’s legal Guardian is that the visa holder’s actual age is unknown. Accordingly, having considered the circumstances in which the grounds for the cancellation arose – based on the correct information – which based on all the evidence is that the visa holder’s date of birth of 1 January 1990 (meaning the visa holder would have been aged 19 years and 6 months and 6 days at the time of application for her Subclass AH-117 visa). Accordingly, this factor weighs   in favour of cancelling the visa and the Tribunal gives this significant weight as the basis for the grant of the visa is the requirement the applicant is aged under 18 at the ‘time of application’.

35. The content of the genuine document (if any)

    The Tribunal has taken into consideration the content of the visa holder’s Tazkira and Afghan national passport. No accompanying documentation has been provided to indicate on what basis the passport was issued, and the visa holder’s own evidence (via her legal Guardian/brother) is that the basis of the information pertaining to her date of birth in her Tazkira was a guess/estimate by a local official (Officer). It follows that the Tribunal gives this consideration some weight in favour of cancelling the visa.

36. 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 decision to grant the visa holder the Subclass AH-117 visa was principally based on the incorrect information that the visa holder’s declared date of birth was 1 January 1997 (which was also declared in her Tazkira and Afghan national passport). The Tribunal gives this consideration significant weight in favour of cancelling the visa.

37. The circumstances in which the non-compliance occurred

    The visa holder (and her legal Guardian/brother) claim the date of birth – 1 January 1997, was provided because that is what an official (Officer) who issued her Tazkira (national identity document in Afghanistan) arrived at based on his own guess/estimate. This occurred in the absence of both parents, who the visa holder and her brother state are deceased, and in the absence of any other remaining siblings or relatives, except for an “uncle” who accompanied the visa holder to obtain the Tazkira. While the Tribunal appreciates it can be difficult to obtain evidence of age and birth in Afghanistan, the absence of any plausible account of how and when the visa holder actually obtained her Tazkira, including an understanding of the timing in respect to whether the Tazkira or passport was obtained firstly or later, and whether one document relied upon the other (that is, whether the passport relied upon the information in the Tazkira in order to issue the passport), cause the Tribunal to conclude that the circumstances in which the non-compliance occurred were preventable had the visa holder declared her date of birth was ‘unknown’ (as is required). Accordingly, the Tribunal gives this consideration significant weight in favour of cancelling the visa.

1. The present circumstances of the visa holder

   The visa holder has provided medical evidence of a diagnosis of Turner’s syndrome – an intellectual impairment (disability), including a recent psychological assessment. The visa holder’s representative claims (via submission dated 22 September 2020) that the visa holder’s family were not aware of “any disability” until “about 2012”. The Tribunal observes however, the visa holder’s own medical report notes provided to the Tribunal in which the treating Doctor notes recall, “…learning difficulties back in Pakistan prior to coming to Australia”, and “auto-immune screening” and “investigations” in December 2010. This conflicting evidence leads the Tribunal to find it has not been provided a consistent claim in respect to when the visa holder’s medical issue began, much less a complete understanding of the treatment history of the visa holder, in Australia or abroad.

   Given the evidence, the Tribunal is satisfied the visa holder suffers a disability and is well cared for by her brother and his family here in Australia. However, as the visa holder has siblings in Pakistan, and relatives in Afghanistan (based on her own evidence), the Tribunal does not accept the visa holder would be left alone to care for herself (also discussed under ‘hardship’ considerations – detailed below). Further, the Tribunal does not accept that there is anything so specific or unusual about the nature of the care (including medical care) that the visa holder, and her family, would be unable to access and meet the visa holder’s needs either in Afghanistan, or any number of nearby countries, as she can travel, as is her evidence before this Tribunal.

   Given all the above, this consideration weighs against cancellation of the visa and the Tribunal gives it some weight..

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

   There’s no evidence before the Tribunal, or previously the Department, that the visa holder’s behaviour concerning her obligations under Subdivision C of Division 3 of Part 2 of the Act have not been met. Given the above, the Tribunal finds this consideration weighs neither in support of nor against cancelling the visa.

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

   The Tribunal is unaware of any other instances of non-compliance. As compliance with a visa is a minimum requirement, the Tribunal finds this consideration weighs neither in support of nor against cancelling the visa.

4. The time that has elapsed since the non-compliance

   The visa holder applied for the visa on 7 July 2009. The visa was issued in 2010, and notification of the cancellation provided in 2017. After the visa holder received the cancellation decision, she sought a review as is her right, though, the period that has now elapsed has been prolonged. That said, given the longevity of the time that has elapsed since the non-compliance, the Tribunal finds this consideration weighs neither in support of nor against cancelling the visa.

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

   The Tribunal has no evidence before it that the visa holder has somehow breached any law since the non-compliance. It follows, the Tribunal finds this consideration weighs neither in support of nor against cancelling the visa.

6. Any contribution made by the holder to the community.

   The visa holder has an ability to make a positive contribution toward the Australian community, notwithstanding her health. The Tribunal accepts the contributions the visa holder may make to her family, notably her brother’s, who are part of the community. Accordingly, the Tribunal finds this consideration weighs against cancelling the visa and the Tribunal gives it some weight.

   Lawful government policy

7. While the factors (above) must be considered, they do not represent an exhaustive statement of the circumstances that might properly be considered to be relevant in any given case: MIAC v Khadgi (2010) 190 FCR 248. The Tribunal may also have regard to lawful government policy. As per the above, 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.

8. Purpose of the applicant’s travel to stay in Australia

   While the Tribunal acknowledges the purpose of the visa holder’s travel and stay in Australia was her claim of being a child orphaned relative, as it has determined that she was not a child at the time she applied for the visa (because the visa holder’s age is either unknown according to the latest oral evidence, or over the age of 18 according to the consistent historic evidence of the visa holder’s brother (and that of her deceased father)), the Tribunal gives this consideration some weight in favour of  cancelling the visa.

9. The extent of the applicant’s compliance with the visa conditions

   As there are no conditions attached to the visa holder of an AH-117 subclass visa, the Tribunal finds this consideration weighs neither in support of nor against cancelling the visa.

10. The degree of hardship that may be caused to the applicant and any family members

    It is claimed the visa holder is unable to care for herself day-to-day, which is supported by a psychological report obtained by the visa holder for the purpose of this review. It is claimed that if the visa holder had to return to Afghanistan, she would have nobody to assist with her care, and would suffer as she is unable to care for herself. In this regard, the Tribunal notes the visa holder has a brother (in Pakistan), a country the visa holder could travel to temporarily, if not permanently. In addition, the Tribunal notes from another of the medical reports provided by the visa holder, dated 2 August 2013 from Dr Cecilla Garcia Rudaz MD, who remarked in her notes about the visa holder, “…she did not attend last July clinic because she was, in the last two months, in Afghanistan visiting relatives.” Dr Rudaz continued, “According to her, she was completely healthy.”

    Given the above, the Tribunal finds while some hardship can be expected to be endured by the visa holder, and her Australian relatives here in Australia, she has at least one sibling, and other relatives - who have assisted the visa holder previously (including obtaining documents in Afghanistan) – and any of which may extend support and care, including their assistance in obtaining appropriate medical care for the visa holder. These considerations, while not removing all hardship, nonetheless logically lessen the hardship the visa holder may face. In respect to the visa holder’s brother, while the Tribunal has considered the stress the visa holder’s return to Afghanistan may present, the evidence before the Tribunal is that he continues to manage, and receive support, in maintaining his mental well-being.

    Overall, the Tribunal accepts a level of hardship may be expected should the visa holder be required to return to Afghanistan, but there is no evidence before the Tribunal that that level is any greater than that which existed prior to her departure.

    Given the above, this consideration weighs against cancellation of the visa and the Tribunal gives it some weight..

11. The circumstances in which the ground for cancellation arose

    This consideration has been discussed at paragraph 37 above. Accordingly, the Tribunal gives this consideration some weight in favour of a decision to cancel the visa.  

12. The applicant’s past and present behaviour towards the Department

    Other than the provision of the incorrect information (discussed and weighted above), there’s no evidence presently before the Tribunal of the applicant behaving in an adverse manner toward the Department. The Tribunal finds this consideration weighs neither in support of nor against cancelling the visa.

13. Any consequential cancellations that may result

    There is no information to indicate to the Tribunal that cancellation of the visa holder’s visa would result in any consequential cancellations. The Tribunal finds this consideration weighs neither in support of nor against cancelling the visa.

14. Legal consequences of a decision to cancel the visa

    As the visa holder is an Afghan citizen, and there is no information before the Tribunal that indicates the visa cancellation would impact Australia’s international legal obligations or place Australia in breach of its non-refoulement obligations, this consideration is neutral and the Tribunal finds it weighs neither in support of nor against cancelling the visa.

15. Other legal consequences of a decision to cancel the visa

    A visa cancellation decision may result in the visa holder being detained under section 189 and removed from Australia under section 198 of the Migration Act as the applicant would no longer hold a valid visa. The visa holder may also be subject to section 48 of the Migration Act, which may prevent her from applying for further visas while in Australia. Additionally, the visa holder may be affected by Public Interest Criteria 4013 which limits the granting of a further visa for a specified period. The visa holder may also not be permitted to work following a visa cancellation (even though the evidence from the visa holder’s legal Guardian is that currently, she is not working - and based on the medial evidence presented to the Tribunal, may be highly limited by the extent to which she can work). As these are standard legal consequences that may flow in the event where a visa is cancelled, the Tribunal acknowledges they may cause some hardship, though any hardship maybe mitigated by the visa holder’s voluntary departure from Australia and continued care while in Australia by her family and legal Guardian. For these reasons the Tribunal finds these considerations are neutral and the Tribunal finds they weigh neither in support of nor against cancelling the visa.

16. Post-hearing submission (evidence or arguments)

    The Tribunal confirmed in writing with the visa holder’s representative it had received the post-hearing submissions from the visa holder’s representative. As no additional time has been sought (at this time) to provide any further, or outstanding evidence or argument, the Tribunal has moved to make a decision mindful the visa holder and her representative have been given ample opportunity to make any submission(s), argument, provide any evidence, and/or seek additional time to do so.

17. Summary and findings

    The visa holder’s Orphan Relative visa was granted on the basis of her meeting the criteria to be satisfied at the time of application, namely clause 117.211 of the Regulations which specifies that the visa holder must be an Orphan Relative. An orphan relative is defined at Regulation 1.14 and specifies that the applicant must be under the age of 18. The evidence before the Tribunal is that the visa holder was not under the age of 18 years at the time of application, notwithstanding the considerations which weigh in favour of cancelling the visa. Moreover, when weighing all of the considerations, the Tribunal has placed significant weight in favour of cancellation on the ‘correct information’; 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; and, ‘the circumstances in which the non-compliance occurred’ (as detailed above). The Tribunal finds that overall those considerations that weigh in support of cancelling the applicant’s visa outweigh those considerations the Tribunal has found weigh against cancelling the applicant’s visa.

18. 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.

19. Having regard to all the relevant circumstances, as discussed above, the Tribunal concludes that the visa should be cancelled.

    DECISION

20. The Tribunal affirms the decision to cancel the applicant’s Subclass 117 (Orphan Relative) visa.

    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.