Romha (Migration)

[2019] AATA 5757

Romha (Migration) [2019] AATA 5757 (27 August 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Eden Meressa Romha

CASE NUMBER:  1713768

DIBP REFERENCE(S):  BCC2016/3635221

MEMBER:Nicholas McGowan

DATE:27 August 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 100 (Spouse) visa.

Statement made on 27 August 2019 at 11:02am

CATCHWORDS
MIGRATION – cancellation – Partner (Migrant) (Class BC – Subclass 100 (Spouse) – incorrect answers – failed to declare child – visa application forms purportedly drafted by sponsor with no knowledge of child – applicant responsible for ensuring accuracy of information – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth) ss 101, 107, 109
Migration Regulations 1994 (Cth), r 2.41

CASES
MIAC v Khadgi (2010) 190 FCR 248

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 100 (Spouse) visa under s.109(1) of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa on the basis that the visa holder did not comply with Section 101(b) of the Migration Act in relation to answers provided in her Combined Partner visa application. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. The applicant appeared before this tribunal in a public hearing held in Melbourne to give evidence and present arguments. This tribunal also received oral evidence from a number of witnesses. This tribunal’s hearing was conducted with the assistance of an interpreter in the Amharic and English languages. The applicant was represented in relation to the review by her registered migration agent. The representative attended the Tribunal hearing.

   CONSIDERATION OF CLAIMS AND EVIDENCE

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 immigration department of any incorrect information of which they become aware and of any relevant changes in circumstances. The exercise of the cancellation power under s.109 of the Act is conditional on the Minister issuing a valid notice to the visa holder under s.107 of the Act, providing particulars of the alleged non-compliance. Where a notice is issued that does not comply with the requirements in s.107, the power to cancel the visa does not arise. In the present matter, this 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?

5. The issue before this 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. By way of submission to this tribunal dated 22 March 2018, the applicant’s agent advises: “Ms Romha has acknowledged non-compliance with Section 101(b) as incorrect answers were provided in her application as dependent member of the family unit of Etalem Salvatory. This non-compliance was the failure to declare that she had a child, Noad, who was born shortly before the application was lodged.”

6. For the reasons above, this tribunal finds that there was non-compliance as outlined by the applicant in the way described in the s.107 notice.

   Should the visa be cancelled?

7. As this tribunal has decided that there was non-compliance in the way described in the notice given to the applicant under s.107 of the Act, it is necessary to consider whether the visa should be cancelled pursuant to s.109(1). Cancellation in this context is discretionary, as there are no mandatory cancellation circumstances prescribed under s.109(2). In exercising this power, this 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.

8. 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. This 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.

   ·     the correct information

   It is not disputed that the applicant failed to declare that she had a child, Noad, as part of her subclass 309 visa application (in which she was included as a dependent member of the family unit of Etalem Salvatory). The concern that the applicant was in a de facto relationship with the father of Noad at the time of the visa application has been raised by the Minister’s delegate, though this tribunal notes the applicant maintains she was not. Regardless of her ‘relationship status’ with the child’s father at the time of the application, it is clear (indeed irrefutable) that the applicant gave incorrect answers in her application in the full knowledge she had a child. This is the correct information.

   ·     the content of any genuine document

   This consideration is not pertinent to this review.

   ·     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

   Any assessment of the applicant’s dependency (where as a secondary applicant she must establish her dependency upon a primary applicant) would be incomplete if such as assessment failed to take into consideration the fact the secondary applicant had a child of a relationship, which she had not declared, and therefore render the decision maker unable to properly consider the actual circumstances of the secondary applicant. It follows that the decision by the Minister to grant the visa relied partly on the incorrect information given by the applicant.

   ·     the circumstances in which the non-compliance occurred

   The applicant claims that at the time of the visa application her relationship with Noad’s father was that of a boyfriend and girlfriend rather than a couple committed to a life together. The applicant claims she was ashamed to tell her parents she was pregnant at that time. The applicant claims her family only learned of the existence of the baby and of her relationship (as boyfriend and girlfriend) with Noad’s father, after her arrival in Australia. The applicant claims that the relevant visa applicant forms were drafted by her sponsor who had no knowledge of either her child, or the relationship with his father. Further, the applicant claims neither she nor the sponsor could read or understand English, and she was “almost illiterate.” Even were the tribunal to accept the claims as made, it is the responsibility of the applicant, and sponsor, to ensure the accuracy of the information given by them. It follows this tribunal accords no weight in the applicant’s favour, because of these reasons.

   ·     the circumstances of the visa holder

   The applicant claims to be settled in Australia with her family.  The applicant claims to be integrated into the Australia community and active in her local church, has undertaken work training and is employed. The applicant also claims to have remitted money back to family in Ethiopia. While this tribunal is prepared to accept these claims at face value, there is nothing so forceful about these circumstances such that it causes this tribunal to place any more than minimal favourable weight on them in considering a decision whether to cancel.

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

   It is the applicant’s claims that she has settled in Australia life and is a model citizen, complying with “…Australian laws and community expectations.” While this tribunal is prepared to accept these claims at face value, there is nothing so forceful about these circumstances such that it causes this tribunal to place any more than minimal favourable weight on them in considering a decision whether to cancel.

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

   None is evident, and none declared by the applicant, to this tribunal. As lawful behaviour is a minimal expectation of any person in their daily interactions, there is nothing about this circumstance that causes this tribunal to place any more than minimal favourable weight on it in considering a decision whether to cancel.

   ·     the time that has elapsed since the non-compliance

   The visa was lodged on 5 October 2010. The visa was refused, and appealed to this tribunal (differently constituted), which subsequently remitted the application to the Minister for further consideration on 27 September 2012. Therefore, it has been since that time that the incorrect information has been relied upon by any authority in making a migration decision. Given the delay in considering the matter is principally due to an appeal, which is the right of the applicant, this circumstance in itself does not, in this tribunal’s view, somehow give favourable weight in consideration of a decision whether to cancel.

   ·     any breaches of the law since the non-compliance and the seriousness of those breaches

   This tribunal is not aware of any breaches of the law since the non-compliance. As lawful behaviour is a minimal expectation of any person in their daily interactions, there is nothing about this circumstance that causes this tribunal to place any more than minimal favourable weight on it in considering a decision whether to cancel.

   ·     any contribution made by the holder to the community.

   The applicant claims to be an active member of her church and active in the broader Australian community, in addition to that of her own family. The applicant has also worked, and as a full-time employee and citizen generally, would generally pay taxes. The applicant is also involved in the day to day care of her other family member and claims a hardship would arise should she not be able to perform these acts, both for her and them. By extension, the support and care she provides to her family might reasonable be considered support to the community. All that being so, this tribunal has nonetheless only given this minimal weighting favourably when coming to a decision whether to cancel. It has done this because it is not unreasonable to expect a level of hardship to exist when a person may be repatriated. There is nothing in the evidence before this tribunal which has so forcefully moved it to conclude that the contribution made to the community is such a circumstance that should be accorded such weight that either considered in itself (or when taken with all the other circumstances), the visa should not be cancelled.

   ·     Other matters that have been considered by this tribunal are the fact that no other person’s visa would be cancelled consequentially, notwithstanding other applications are being consideration. The applicant would be free to return to Ethiopia to be reunited with her family. The applicant has been found not to be a Refugee under the Convention and protocol relating to the Status of Refugees, and therefore Australia has no non-refoulement obligations to the applicant. No other international legal obligations arise for Australia in respect to the child, or husband of the applicant, as they reside outside Australian jurisdiction. It follows, no favourable weight has been accorded these circumstances in regards to a decision to cancel.

   ·     The mandatory legal consequences that would arise from a cancellation decision would likely include a limiting of the types of visas the applicant could apply for: s.48 of the Act, making the applicant liable for detention and being removed from Australia, and making the applicant being subject to Public Interest Criteria 4013 which would have the effect of preventing further visa applications of some classes of visa for a period of three years after a decision to cancel her visa. As these are standard outcomes that are applied in such cancellation proceedings, they are given no weight in the applicant’s favour.

   FINDINGS

9. In a post hearing submission to this tribunal (folio 88) the applicant’s agent claims the applicant’s Notification to Cancel her visa was not valid as the Notification did not specify the time period in which a review could be made. In the Notification of Cancellation provided to this tribunal (by the applicant) it is clear that on page 2 (folio 9 (REVERSE)) the timeline in which the applicant is taken to have received the Notification and make an appeal to the AAT is outlined. It follows, the Notification of Cancellation outlined the time in which the application for review may be made.  Further, the applicant made an application within time.

10. This 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 decided that there was non-compliance in the way described in the notice issued, this tribunal has considered all of the prescribed matters set out in regulation 2.41 of the migrations regulations 1993, and has not been satisfied that there are compelling reasons why the visa should not be cancelled.

11. This tribunal concludes that the visa should be cancelled.

    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.